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Electronic record keeping and discovery in interstate trucking

Effective 12/19/08, the Federal Motor Carrier Safety Administration rescinded a 1997 policy in order to permit motor carriers to use electronic systems in lieu of paper logs. The change of policy recognizes the reality that most motor carriers now use some sort of technology to trace, route and manage their business. This is good in that it is difficult to falsify a GPS log and it is difficult for a motor carrier to claim it could not have known of violations of hours of service rules when it is using software designed to automatically check for such problems.

However, discovery of the electronic records may be difficult. Motor carriers are obligated to preserve electronically stored information just like paper records. But they and their lawyers are likely to claim that the information was inadvertent, that no backups exist, and that hard copies that do not include all the information are just as good. For example, software used by the motor carrier may allow for comments to be typed in a pop-up box,, but reports may be printed out without the comments that were entered.

The move toward electronic record keeping is a net positive, but it will require a more sophisticated approach to discovery in the litigation of serious trucking accident cases.

Those of us who handle serious trucking accident cases are gearing up for a much tougher approach to electronic discovery.

Ken Shigley is a trial attorney in Atlanta, Georgia who 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), and is a Certified Civil Trial Advocate of the National Board of Trial Advocacy. He served as chair of the Southeastern Motor Carrier Litigation Institute, is on the National Advisory Board for the Association of Interstate Trucking Lawyers of America, and is a frequent speaker at continuing legal education programs for the Interstate Trucking Litigation Group of the American Association for Justice. Mr. Shigley has extensive experience representing parties in trucking and bus accidents, products liability, catastrophic personal injury, wrongful death, spinal cord injury, brain injury and burn injury cases. Currently he is Secretary of the 40,000 member State Bar of Georgia.This post is subject to our ethical disclaimer.

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