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Truck accident records destruction and duty to preserve evidence

As a Georgia attorney litigating hard-fought trucking accident cases, I often get into cases after the trucking company claims to have discarded driver logs and other records that they are only required to routinely keep for six months.

Then when we try to get driver logs, trip receipts, inspection and maintenance records, etc., in discovery, they respond that they no longer exist.

Sometimes it’s amazing that a company would have been so bold as to discard or destroy those records when they knew there was an accident with injury. If the records were favorable, one might suppose they would have kept them for use in their defense.

The duty to preserve evidence “arises not only during litigation but also extends to the period before the litigation when a party reasonably should know that the evidence may be relevant to anticipated litigation.” Silvestri v. Gen. Motors Corp., 271 F.3d 583, 591 (4th Cir.2001). Therefore, once a party reasonably anticipates litigation, it has a duty to suspend any routine document purging system that might be in effect and to put in place a litigation hold to ensure the preservation of relevant documents-failure to do so constitutes spoliation. Lewy v. Remington Arms Co., Inc., 836 F.2d 1104, 1112 (8th Cir.1988); Thompson v. United States Dep’t of Hous. & Urban Dev., 219 F.R.D. 93, 101 (D.Md.2003).

And, certainly, there is a duty not to initiate a document destruction procedure if the party reasonably anticipates litigation. Rambus, Inc. v. Infineon Technologies AG, 220 F.R.D. 264 (E.D.Va.,2004).

Ken Shigley, of the Shigley Law Firm, LLC, in Atlanta, Georgia, served as chair of the Southeastern Motor Carrier Litigation Institute, is actively involved as a seminar speaker for the Interstate Trucking Litigation Group of the American Association for Justice, and is on the National Advisory Board and serves as a seminar speaker for the Association of Interstate Trucking Lawyers of America. A Certified Civil Trial Advocate of the National Board of Trial Advocacy, he is also a Master of the Lamar Inn of Court at Emory Law School, and Secretary of the 39,000 member State Bar of Georgia.