As a commercial trucking trial attorney in Atlanta, Georgia, I am often called after another lawyer has messed around with a tractor trailer or big rig crash case, not knowing what he is doing, for about eighteen months. By then, much of the evidence that would have been invaluable in preparation of the case has been discarded, shredded, or otherwise lost or destroyed.
Therefore, I am providing (below the break) a “spoliation letter” suitable for adaptation to the specific circumstances of a commercial trucking case. I would prefer that clients or attorneys who do not ordinarily handle large trucking cases contact me soon after the incident occurs, But if I am contacted later, it would be much better if the first attorney had used some variation on this letter soon after the event, and in any event within six months.
[motor carrier] VIA FEDERAL EXPRESS
[truck driver] VIA FEDERAL EXPRESS
Re: [client] vs. [motor carrier] & [truck driver]
Date of crash : [date]
Location : [accident location]
Dear [registered agent or president] and Mr. [truck driver]:
I have been retained to represent [client] with regard to serious bodily injuries incurred in the above-referenced crash. Please direct all future communication to me. I look forward to working with you toward the prompt and amicable resolution of this case.
Enclosed is a copy of my letter to [motor carrier’s insurer] in which I have given your insurance company an opportunity to protect your assets and income from the risk of liability exposure in excess of insurance policy limits, provided the matter is settled within thirty (30) days from the delivery of [client]’s medical records which we have ordered.
I cannot offer you any legal advice, but I do suggest that you immediately confer with an independent attorney of your own, who is not paid by the insurance company, and who is experienced in insurance law in Georgia.
As you know, this incident occurred on [date], when a [motor carrier] tractor driven by a [motor carrier] driver, [truck driver], [describe wreck]. A copy of the police report is enclosed, though I assume you already have it. [truck driver] was charged with [citation].
This is to notify you of our intent to make a claim and, if necessary, pursue litigation. In the event of litigation, of course, I would be obligated to probe more deeply into violations of Federal Motor Carrier Safety Regulations that may be underlying causes of such driver error and may provide the basis for punitive damages. In that context, I have noted that [motor carrier] has Safestat data [characterize Safestat data].
This letter is also to formally demand preservation of certain evidence relevant to this collision. If you fail to properly secure and preserve those important pieces of evidence, it will give rise to a legal presumption that the evidence would have been harmful to your side of the case. The destruction, alteration, or loss of any of the relevant evidence, may constitute spoliation under applicable law. If you fail to preserve and maintain this evidence, we will seek sanctions available under law. We specifically request that the following evidence be maintained and preserved and not be destroyed, modified, altered, repaired or changed in any manner.
1. The tractor and trailer involved in this collision.
2. All copies of [truck driver]’s daily logs for the day of the collision, and for the six-month period preceding the collision, together with all material required by 49 C.F.R.396.8 and 395.15 for the driver involved in the above matter.
3. All existing driver/vehicle inspection reports required under 49 C.F.R.396.11 for the vehicles involved in the collision.
4. All existing daily inspection reports for the tractor and trailer involved in this collision.
5. All existing maintenance, inspection and repair records or work orders on the tractor and trailer involved in the above collision.
6. All annual inspection reports for the tractor and trailer involved in the above collision covering the date of the collision.
7. [truck driver]’s complete driver’s qualification file, as required by 49 C.F.R.391-51, including, but not limited to:
a. Application for employment;
b. Inquiries into driver’s employment history;
c. Responses to inquiries into driver’s employment history;
d. Driver’s employment history;
e. CDL License;
f. Driver’s Certification of Prior Traffic Violations;
g. Driver’s Certification of Prior Collisions;
h. Pre-employment MVR;
i. Annual MVR for last two years;
j. Annual review of driver history;
k. Certification of road test;
l. Medical examiner’s certificates for last two years;
m. Drug testing records;
n. HAZMAT or other training documents;
8. Photographs, videos, computer generated media, or other recordings of the interior and exterior of the vehicles involved in this collision, the collision scene, the occurrence, or relating to any equipment or things originally located at or near the site of the occurrence;
9. The driver’s pre-employment, random, and post-collision alcohol and drug testing results;
10. Any lease contracts or agreements covering the driver or the tractor or trailer involved in this collision;
11. Any interchange agreements regarding the tractor or trailer involved in this collision;
12. Any data and/or printout from on-board recording devices, including, but not limited to, the ECM (electronic control module), or any on-board computer, tachograph, trip monitor, trip recorder, trip master or other recording or tracking device for the day of the collision and the six-month period preceding the collision for the equipment involved in the collision;
13. Any post-collision maintenance, inspection, or repair records or invoiced in regard to the tractor and trailer involved in the above collision;
14. Any weight tickets, fuel receipts, hotel bills, or other records of expenses, regardless of type, regarding the driver or the tractor or trailer involved in this collision for the day of the collision and the thirty (30) day period preceding the collision;
15. Any trip reports, dispatch records, trip envelopes regarding the driver or the tractor or trailer involved in this collision for the day of the collision and the thirty (30) day period preceding this collision;
16. Any e-mails, electronic messages, letters, memos, or other documents concerning this collision;
17. The collision register maintained by the motor carrier as required by federal law for the one (1) year period preceding this collision;
18. Any drivers’ manuals, guidelines, rules or regulations given to drivers such as the one involved in this collision;
19. Any reports, memos, notes, logs or other documents evidencing complaints about the driver in the above collision;
20. Any DOT reports, memos, notes or correspondence concerning the driver or the tractor or trailer involved in this collision;
21. Any downloadable computer data from the tractor’s computer system to include but not be limited to Electronic Control Modules, Event Data Recorders, Eaton VORAD collision warning system, and other similar systems;
22. The pre-trip inspection report completed by the driver for the trip involved in this collision;
23. All OmniTRAC, Qualcomm, NVPc, QTRACS, OmniExpress, TruckMail, TrailerTRACS, SensorTRACS, JTRACS, and other similar systems data for the six (6) months prior to the collision for this driver and truck. You are hereby notified that you are required to place your supplier of the above system, as your agent, on notice that it is to save this data;
24. All settlement sheets and expense sheets for the truck driver pertaining to trips taken for the day of the collision and thirty (30) days prior to the collision;
25. Cargo pickup or deliver orders prepared by motor carriers, brokers, shippers, receivers, driver, or other persons, or organizations for thirty (30) days prior to the date of the collision as well as the day of the collision;
26. All documents pertaining to the ownership of the tractor and the trailer involved in this crash, including but not limited to title and registration documents;
27. Accounting records, cargo transportation bills and subsequent payments or other records indicating billings for transportation or subsequent payment for the transportation of cargo, with both the front and back of cancelled checks for cargo transported by the driver and/or truck involved in the collision for thirty (30) days prior to the date of the collision, as well as the day of the collision;
28. Any other items associated in any way with the wreck, documents, database, or other piece of evidence concerning or reflecting upon the driver, the collision, the tractor, trailer, or the truck;
29. [motor carrier]’s entire personnel file on [truck driver];
30. Any and all communications via CB radio, mobile or satellite communication systems, e-mail, cellular phone, pager or other cab communication device to include the bills for the devices for the seven (7) days before, the day of, and the two (2) days after the collision;
31. Any and all computer, electronic, or e-mail messages of any type created in the seven (7) days prior to the collision and the first forty-eight (48) hours immediately after the collision, by and between the defendant and any agents or third parties, as well as any computer message, which relate to this particular incident, whether generated or received by you or your agents. We require you to put any vendor which hosts or stores this data for you on notice of the need to preserve this data;
32. If not previously listed, all documents required by Federal Motor Carrier Safety Regulation 395.8, specifically those items identified in the Department of Transportation’s interpretation of the regulation.
33. All documents identifying the insurer of the trailer involved in the crash, including but not limited to all documents naming the insurance company and policy number on such trailer.
34. All documents identifying any freight broker that was involved in making arrangements for transportation of the freight that was in the trailer at the time of the crash.
In order to assure that your obligation to preserve documents and things is met, please immediately forward a copy of this letter to all persons and entities with custodial responsibility for the items referred to in this letter.
In regard to the tractor and trailer involved in this collision, we would like to set up a mutually convenient time for our expert to inspect, examine, and conduct tests on the unit. We specifically request that you make no repairs or adjustments to the tractor or trailer, until this inspection is completed. Please contact us to discuss the scheduling of an inspection.
In addition, in order to facilitate early resolution of this matter within the limits of your insurance coverage, I respectfully request copies of each and every liability insurance policy applicable to this vehicle which was in effect as of [date]. [client]’s affidavit pursuant to O.C.G.A. § 33-3-28, requiring disclosure of all liability insurance coverage, is enclosed. Please provide that information to me within thirty days from your receipt of this letter. In order to facilitate compromise, I would appreciate it if you would also send me, by return mail, a copy of the declarations page of each such insurance policy.
I look forward to working with your counsel and your insurer toward the prompt and amicable resolution of this tragic matter.
Ken Shigley is a trucking safety trial attorney representing seriously injured people in tractor trailer, big rig, intermodal container freight, cement truck, dump truck and bus accidents statewide in Georgia. He served as chair of the Southeastern Motor Carrier Litigation Institute in 2005, is a national board member of the Interstate Trucking Litigation Group of the American Association for Justice, and is on the National Advisory Board for the Association of Interstate Trucking Lawyers of America.
He has extensive experience representing parties in interstate trucking collision cases, and in the past two years has spoken at national interstate trucking litigation seminars in Chicago (trucking insurance), New Orleans (trial tactics and side underride issues), St. Louis (punitive damages), San Francisco (dealing with insolvent trucking companies), Atlanta (trucking insurance, closing argument), Nashville (use of Federal Motor Carrier Safety Regulations), and Amelia Island (overview of trucking litigation).
A Certified Civil Trial Advocate of the National Board of Trial Advocacy, he has been listed as a “Super Lawyer” (Atlanta Magazine), among the “Legal Elite” (Georgia Trend Magazine), and in the Bar Register of Preeminent Lawyers (Martindale). In addition to trucking litigation, he has broad experience in products liability, catastrophic personal injury, wrongful death, spinal cord injury, brain injury and burn injury cases. Currently he is Treasurer and a candidate for President-Elect of the 41,000 member State Bar of Georgia.This post is subject to our ethical disclaimer.