Below is an example of a spoliation letter written in a truck accident case. What you want to ask for in a particular case depends on the case. If you are not sure what the case calls for, ask for everything even it is not applicable to the case.
This letter puts defendants on notice of a potential claim and underscores their obligation to not destroy any potentially relevant evidence. There is a preexisting obligation to not destroy, alter, or conceal evidence. But this letter gives you additional ammunition to seek relief from the court if evidence is destroyed, usually in the form of evidentiary assumptions for the jury.
It is crucial to send this letter as soon as possible. Judges are making an equitable call as to whether to give the jury a spoliation instruction so it is important make the case against the destructor as strong as possible.
August 20, 2020
Via Certified Mail
Franklin & Prokopik, P.C.
Andrew T. Stephenson, Esq.
Two North Charles Street, Suite 600
Baltimore, Maryland 21201
Our Client: Joe Smith
Date of Loss: October 10, 2017
Location of Loss: I-95 (Baltimore, MD)
Your Clients: Baltimore Trucking & Kevin Smith
Preservation of Evidence/ Spoliation Notice
As you know, Laura Zois and I are representing Joe Smith concerning the above-referenced incident.
As you have anticipated, we wish to arrange an inspection of your clients’ tractor and two trailers. I understand you will be sending us photographs of the vehicles. I would appreciate if you would send me any identifying information relating to the other drivers/vehicles involved in the crash.
Additionally, I am writing to make certain that Bate’s Trucking Company preserves any and all physical evidence related to this incident. This includes, but is not limited to the truck itself. We would like to schedule a time to have our expert examine the vehicle involved in this loss and are asking that this equipment is preserved until an inspection can take place. We also ask that any and all electronic data be made available for download by our expert at an agreed upon date and time
Please preserve any cell phones, cell phone data, written materials such as witness statements, log books, service time records, dispatch records, maintenance records, accident reporting records, driver hiring and employment records relative to the employees involved, any electronic data such as ECM, PCM or GPS data; any video or audio recordings, as well as any data relating to the use of any cell phones or other communication devices.
Please do not dispose of any of this material, as I expect that it will be both discoverable and admissible in any litigation that may arise out of this claim. Failure to preserve this material will result in a request for a spoliation instruction at any trial in this matter and may ultimately be considered by a court as an attempt to destroy evidence.
I look forward to hearing from you.
Very truly yours,
Ronald V. Miller, Jr.
Additional Thoughts on Spoliations Letters
- Some truck accident lawyers try to slip in as much technical mumbo-jumbo into these letters to impress the trucking company or opposing counsel to show just how much they know about truck accident cases. We think all it really shows is that you have mastered cut and paste in Microsoft Word. You impress the other side in discovery and at trial, not with your five-page spoilation letter.
- You often begin by sending a spoliation letter to the possible defendants with the idea that they will pass the letter along to their truck accident attorney. In Maryland, it is sometimes pretty easy to figure out who the defense lawyer in the case is by asking the lawyer you believe handles cases for that defendant. There is a handful of defense attorneys that specialize in truck accident cases. If so, notifying that attorney is the same thing as notifying the defendant.
- Both Maryland and federal regulations require trucking companies to maintain records of logs of how many hours the driver slept before driving, employee records (including drug testing), vehicle safety regulations and a host of other records. In too many of these cases, these records are awful. Companies are trying to hire low-cost carriers. To keep costs low, many companies cut safety corners.
- This spoliation letter is important. But keep in mind that federal regulations also prescribe mandatory record retention. Driver logs and supporting documents must be retained for six months pursuant to 49 C.F.R. §395.8(k)(1). Driver vehicle inspection reports must be kept for 90-days (49 C.F.R. §396.11(c)(2). Vehicle inspection, repair, and maintenance records must be maintained for one year and for 6 months after the motor vehicle leaves the motor carrier’s control (49 C.F.R. §396.3(c).
What Should Be in the Truck Accident Lawyer’s Spoliation Letter?
Here are some other resources truck accident lawyers looking for help writing a spoliation letter have found helpful.
- What you are looking to accomplish with a spoliation letter
- Spoliation law in Maryland
- Why the black box so critical
- Settlement value of your client’s claim
- Sample Demand Letter #1
- Sample Demand Letter #2
- Get to know your defendants. The same defendants reappear in these cases. FedEx, J.B. Hunt, UPS, Swift Transportation, Werner, Schneider, and private carriers like Giant, Costco, Walmart, Pepsi, etc. Trucking cases are often the ripest for spoliation instructions.
Do trucking companies really try to destroy evidence so that it cannot be used against them at trial?
In the experience of our Maryland truck accident lawyers, larger companies rarely try to destroy records after a truck accident because they know what is at stake if they get caught. But with smaller trucking companies, it is pretty amazing how often they will destroy or alter records. Thankfully, our attorneys often are able to expose exactly what they were trying to do and why.
How long does federal law require trucking companies to maintain documents?
Federal regulations prescribe mandatory record retention. Driver logs and supporting documents must be retained for six months pursuant to 49 C.F.R. §395.8(k)(1). Driver vehicle inspection reports must be kept for 90-days (49 C.F.R. §396.11(c)(2). Vehicle inspection, repair, and maintenance records must be maintained for one year and for 6 months after the motor vehicle leaves the motor carrier’s control (49 C.F.R. §396.3(c).
In a letter to the trucking accident company and their attorneys, a truck accident lawyer should make broad requests to preserve all documents, equipment, data, photographs, and other items related to the truck accident. In gathering facts in truck accident cases, more is more. The truck accident lawyer should consider, if applicable, specifically requesting:
- Black box data;
- Truck driver’s personnel file and driving history;
- The driver’s qualification file as required by 49 C.F.R. 391-51;
- Driver’s log for the last two years (which must be kept per 49 C.F.R. 395.8 and 395.15);
- All statements obtained from investigation of the truck accident;
- GPS or other tracking data; and
- The truck’s maintenance and repair history
With respect to item #4, a truck accident should send a letter immediately to the trucking company requesting that they retain the log books and that they not be altered, modified or changed in any way. The attorney’s correspondence should reference 49 CFR 395.8(k), which specifically addresses the retention of drivers record of duty status. If the trucking company fails to produce the driver’s logs, you should be able to get a charge of spoliation instruction if the case goes to trial. The letter should also specifically request all the operational documents associated with each trip the driver the truck driver took at least three years before the truck wreck (although the CFRs only require 6 months).
What is a little bit tricker is asking the trucking company to maintain the truck. Sure, you would love them to do it on their dime. But you have to make sure you are clear that they must contact you to “explore other options” before wrecking the vehicle. In some cases, it is just best to pick up the tab for retaining the truck. Some judges are going to understand if the trucking company chooses to get rid of a useless crashed truck vehicle rather than paying for its storage when there is no further use for it.
- Sample Truck Spoilation Letter
- Spoliation (an overview of spoilation claims in Maryland)
- Truck Accidents (an overview)
- Maryland Truck Accident Lawyer Blog
- Maryland Personal Injury Attorney Help Center (help for truck accident lawyers in putting their case together)
- What Maryland Truck Accident Lawyers Should Know About the Trucking Industry
- Risks Associated with the Size and Weight of Big Rig Trucks
- More on Truck Accidents