INS IDE SCOOP SAVING INFORMATION COULD
SAVE YOU IN A LAWSUIT Maintaining and preserving electronic information
BYNATHANR. SKEEN Contributing Writer
One of the most
troubling aspects of a lawsuit is when poten- tially relevant evidence is lost, especially when that evidence could prove your innocence.
We recently published an article on preserv- ing the data stored on black box data record- ers (commonly referred to as Event Data Recorders [“EDR’s”] or Electronic Control Modules [“ECM’s”]) in newer passenger vehi- cles. Significant measures should also be taken to preserve the data recorded on your tractors’ EDR’s and ECM’s after they are involved in an accident. These devices record data such as acceleration, speed, braking, and bag deployment in the moments leading up to a collision. Because this data is often the most reliable and objective evidence of the events leading up to a crash, its loss can be devastating. Therefore, each time one of your tractors is involved in a wreck, you should ensure that the black box data is extracted and preserved as soon as possible. The failure to preserve this evidence not only could result in court-imposed penalties, but it may also deprive you of the evidence that could save you from liability. On the other hand, electronic evidence can
also be used against you in a lawsuit. Lawyers are discovering that social media is an excellent source of evidence. There are currently more than 1 billion Facebook users. More than half of them post something on their accounts daily, and nearly 75% use Facebook on a mobile device. Twitter and Instagram also have more than 100 million users. The result: countless posts and photo- graphs that could be used for some purpose in a lawsuit. The same applies to other elec-
24 UTAH TRUCKING ~ Issue 5, 2013
tronic evidence, such as mobile phone records and text messages. It is obvious that a Facebook post admitting to liability in a trucking accident is devastating, but the tim- ing of a text message or a photograph show- ing a character flaw could also add fuel to a litigation fire. In order to avoid technology coming back to bite you in a lawsuit, you should create and implement written compa- ny policies regarding the appropriate use of mobile phones and social media by your employees. These policies must be written
carefully in order to ensure that they are not so broad as to encompass communications that are protected by the Constitution. Your lawyer should be able to help you create a pol- icy that fits the needs of your business. UT
For questions or comments about this article, please contact Nathan R. Skeen, Lawyer with the Transportation Practice Group with Snow, Christensen & Martineau. Telephone: (801) 322-9166 | Email:
nrs@scmlaw.com | Website:
www.scmlaw.com
www.utahtrucking.com
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