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February 24, 2011 8:45 AM, EST

Opinion: ‘Black Box’ Retrieval Policies

By Raymond McElfish and Jeffrey Lynn

Attorneys

McElfish Law Firm

This Opinion piece appears in the Feb. 21 print edition of Transport Topics. Click here to subscribe today.

Loss of event data recorder — or “black box” — information is one of the biggest problems in trucking accident litigation. While the market for EDR monitoring software has exploded in recent years, accident experts and attorneys are finding that much of this technology is incorrectly downloaded, analyzed and stored, creating legal and financial risks that can threaten the very existence of the company that makes use of it.

Much of the problem can be attributed to the increasing complexity of the software and the seemingly nonstop updates and improvements that accompany it. Every week brings a new press release touting amazing new products and advances in black box monitoring. Because of this, even the largest trucking companies are finding it difficult to stay current regarding the procedures necessary for data preservation and often cut corners, rely on insufficiently trained employees or ignore the situation altogether.

Adding to the difficulty is that few companies have policies in place — or policies that actually are implemented — relating to data collection in the event of a serious accident. Logging systems, protocols for creating backup files and the designation of employee data custodians often exist only in theory.

These black-box data are vital to attorneys because the black box collects precise and objective information relating to a particular event such as a trucking accident and is crucial to providing unbiased information about what actually happened — as opposed to what participants and witnesses believe they saw. With current technology, almost every element of an accident can be recorded, including:

• Fuel consumption.

• Heavy braking.

• Excessive speeding.

• Excessive rpm.

• Sudden accelerations.

• Engine throttle.

• Change in velocity.

• Seat belt use.

• Seated driving time.

• Time between crashes.

The financial ramifications of neglecting this technology can be severe. For example, in a lawsuit involving an accident that resulted in two women becoming quadriplegics, a California trucking company was found liable for $20 million by a jury because of the loss of EDR data. At trial, the judge allowed a jury instruction of “willful destruction of evidence” because there were no records or explanation regarding what occurred to the data beyond the vague recollections of some front-office employees.

The company claimed it had downloaded the relevant data from the truck in question, but no one could remember specifically who did it or how or where it was stored. Not only was there no formal logging or maintenance policy in place regarding accident-related data, the employees claimed that because “our driver did nothing wrong,” there was no reason to give it priority or special handling.

The jury disagreed.

In another lawsuit, this time involving a fatal truck accident, one of the trucks in the incident had an EDR unit that needed to be activated by the dealer from whom the truck was purchased. Unfortunately, neither the fleet owner nor the driver in question was aware of this, and vital data never were collected that easily could have exonerated the driver.

Even when truck drivers have a basic understanding of different black box models and procedures, they rarely know how many or what models exist on each truck. For example, older trucks have EDR systems that can and will be erased if the damaged truck is moved, so immediate downloading is necessary before third parties — the police, for example — insist that the damaged vehicles be towed or removed from the highway. Truck drivers who routinely drive newer trucks may not be aware of potential data loss.

These situations could be avoided if trucking companies implemented firm policies regarding the handling and preservation of EDR data. But accident-data preservation is often neglected for the more immediate, day-to-day technological concerns of the company such as storage of daily driver logs, emissions data and delivery documents. As a result, mastering and maintaining data from “event-specific” technology unfortunately is given a low priority.

What can truck companies do to protect themselves? At a minimum, the following protocol should be implemented:

• Select a designated data person (DDP) to assume responsibility in the event of a serious crash. This person will have responsibility for all accident-data retrieval, storage and record-keeping.

• Next, allow only a fully trained expert to download the data. Many trucking company employees believe that downloading accident data is no different than downloading general maintenance data, similar to what a truck mechanic might do during routine maintenance. But after an accident has occurred, additional types of data suddenly become relevant and need to be included in the analysis, and deciding what additional data to include is usually beyond the knowledge of even the most technologically savvy trucker.

• Specify the procedures to be followed by the DDP, especially regarding the downloading of data. Scenarios where an outside expert may be called should be clearly described and understood.

• Record the number and type of black boxes, video cameras and satellite tracking devices on each truck, along with specific instructions for data retrieval from each device.

• Note which devices have third-party data storage, how long the data are stored and how they can be accessed.

• Specify how many backup copies will be made and stored in-house, and, most importantly, where they will be stored.

• Create a logging system for the data, with all relevant factors (e.g., time, place and driver) clearly noted.

Implementing policies such as these and ensuring they are enforced easily can make the difference between a complete defense verdict and a seven-figure jury award with adverse, if not catastrophic, consequences for a company’s bottom line. It’s more than worthwhile for trucking companies to take appropriate steps to keep pace with this variable and constantly evolving technology.

The McElfish Law Firm, which has offices in West Hollywood, Calif., has a core practice of insurance defense and transportation law.