Distribution and logistics companies regularly face litigation challenges. These challenges hinder operations and negatively impact company financials. Factors such as anchor bias; the development of the phantom damages industry; an increasingly collaborative plaintiffs’ bar; and inflation have recently contributed to the growth of these challenges. We have seen these factors materialize into nuclear verdicts, the inflated costs of claims and rising insurance premiums.

While these factors have become part of the cost of doing business to an extent, there are measures distribution and logistics firms can take to mitigate their risk. The simplest and most available measure to mitigate risk is to develop and implement standard evidence preservation practices. This is because many cases involving tractor-trailer crashes are often exacerbated because the defendant company failed to preserve critical evidence such as forensic cell phone data, hours-of-service logs, vehicle maintenance records, driver hiring and training materials, post-accident drug and alcohol test results, telematics data and engine and brake data.

These evidence preservation practices are best applied to three primary categories: driver hiring, driver training and forensic accident evidence.

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These practices are critical because many skilled plaintiffs’ attorneys take the position that if a document does not demonstrate that something occurred, then it did not occur. While this position is unreasonable, many jurors have a dramatically inflated amount of confidence in a corporation’s capacity to maintain and preserve documents. Therefore, distribution and logistics companies can shield themselves from overinflated litigation costs and can bolster their defense simply by ensuring evidence is preserved.

When it comes to driver hiring and driver training, jurors will place an unfairly high burden on companies to vet, hire, and train drivers due to the potential catastrophic consequences of a tractor trailer-involved motor vehicle collision. While these potential collision consequences apply to anyone behind the wheel of any vehicle, jurors oftentimes still place a higher standard on “professional” commercial drivers. Therefore, it is vital for these firms to be able to demonstrate with documents the full scope of their hiring and training procedures.

The Federal Motor Carrier Safety Regulations require a certain minimum of documents to be preserved for each driver in their Driver Qualification File, but documents not required to be maintained in this file such as all employment-related drug and alcohol test results, attendance at safety meetings, written test results and all ongoing driver training activities can serve the defense. These documents help defendants because they demonstrate how seriously the company took hiring and training and how well-trained its drivers are. Oftentimes, driver’s personnel files are quite sparse, and this absence of evidence gets used against the defendant to argue that it does not take driver hiring and training seriously and therefore does not value safety.

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That said, even the most thoroughly vetted and well-trained drivers can be involved in accidents. Given the amount of driving volume a contemporary distribution or logistics company undertakes, accidents are inevitable. Considering this, a thorough and coordinated preservation plan should be a chief priority. The focus of this priority should be on what is often the most critical evidence in an accident: the tractor-trailer involved and the driver’s cell phone. It cannot be overstated how many cases turn into significant problems with high-risk exposure because the company or their insurance carrier failed to preserve the tractor trailer involved or failed to preserve the driver’s cell phone.

It is imperative that as soon as an accident occurs, particularly one that includes injuries at the scene and a driver’s citation, that evidence preservation efforts begin immediately. Defense counsel is, of course, suited for this purpose, but many companies are sophisticated enough to have in-house personnel, or their insurance adjusters, handle it. These efforts should concentrate on a formal vehicle inspection with an accident reconstructionist engineer expert that can perform a data download from the vehicle’s engine and brake system, preservation of any on-board camera system data, telematics data, and an accident scene inspection to reveal physical evidence such as skid marks, roadway damage, or scattered vehicle components.

Further, companies should ensure that the driver’s cell phone is forensically imaged, especially in major accidents. Cell phone service providers maintain records that will show timestamps associated with text messages, phone calls and sometimes data usage. But these records are oftentimes ambiguous and difficult to interpret. This can lead to savvy plaintiffs’ lawyers using those records, or the absence of cell phone evidence, against the driver and their company. If and only if a company preserves the vehicle data download and forensically images a driver’s cell phone can it show with certainty facts that are vital to the defense of a case: that the driver was not speeding, that the driver reacted timely, and that the driver was not using his cell phone.

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These facts are vital to the defense of a case because if they are not present, they likely will amount to aggravating factors, which inflame a jury and lead to large verdicts and significant settlements. If a defendant distribution or logistics company failed to preserve evidence that would show that the driver was thoroughly vetted before being hired, was well trained, was not speeding, was not on their cell phone, and timely reacted to the roadway hazard, then the absence of this evidence will be used against the defendant. Jurors will assume a corporation is sophisticated enough to preserve all this evidence and will deduce that if the corporation failed to do so then it must be because that evidence was harmful. They also will likely receive spoliation instructions from the judge to reach this conclusion.

This preservation failure resulting in spoliation is one of the greatest contributors to increasing costs of settlement and litigation, and it is often one of the easiest fixes available to a distribution or logistics company. Thorough and immediate preservation action targeted at the vehicle involved and the driver’s cell phone can result in a front-end expense that pays huge dividends down the line, especially in major accidents with significant injuries.