Collecting Documentary Evidence to Prepare the Heavy Truck Case

• Publication year: 2002
• Pages: 79
• Citation: Vol. 31 No. 2 Pg. 79

31 Colo.Law. 79 Colorado Lawyer 2002.

2002, March, Pg. 79. Collecting Documentary Evidence to Prepare the Heavy Truck Case

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79

Vol. 31, No. 2, Pg. 79

The Colorado Lawyer
March 2002
Vol. 31, No. 3 [Page 79]

Specialty Law Columns
Young Lawyers Column
Collecting Documentary Evidence to Prepare the Heavy Truck Case
by Bryan J. Kemler

This column is sponsored by the Young Lawyers Division of the CBA and is designed to provide educational and professional information to younger and newer members of the CBA. The column is published four times per year

This month's article was written by Bryan J. Kemler Boulder, an associate at the Law Offices of Bartley A Costello, Jr., P.C.?(303) 442-7200.

Cases involving heavy trucks are document-intensive and require knowledge of regulations that govern the industry. This article is designed to help plaintiffs' attorneys become familiar with the information and documents needed to handle a heavy truck case.

In 1999, heavy trucks were involved in seventy-one fatalities and 1,565 injuries in Colorado.1 The data do not indicate that heavy trucks were at fault, only that they were involved. However, these statistics, which are the most recent available from the U.S. Department of Transportation, indicate a need for attorneys to understand this area of law. Although heavy truck cases often come to lawyers familiar with automobile cases (including young attorneys), heavy truck cases must be handled differently from automobile cases.

For purposes of this article, heavy truck cases involve interstate commercial vehicles that weigh over 10,000 pounds (see a discussion of "truck safety regulations" below). Heavy truck cases are far more document-intensive than automobile cases. A heavy truck case requires an investigation not only into the collision, but into the fitness of the driver and the regulatory compliance of the trucking company. It is essential for attorneys handling heavy truck cases to be familiar with the many federal and state regulations that govern the industry and to understand the legal duties imposed by those regulations. Most important are the Federal Motor Carrier Safety Regulations ("FMCSR"),2 as trucking companies that operate vehicles across state lines are required to adhere to those regulations.

This article is designed to help plaintiffs' attorneys identify and locate the information needed to properly handle heavy truck cases. It also is of interest to defense attorneys in the trucking industry because they, too, need to understand the myriad regulations governing the trucking industry. This article discusses initial issues in discovery, regulations governing the trucking industry, the particular kinds of documents that should be requested, and additional resources of use to plaintiffs' attorneys who handle heavy truck cases.

Preserving Documentary Evidence

Trucking companies are required to keep certain records, including drivers' daily logs, for a period of only six months, after which they legally may be destroyed.3 The FMCSR contain no less than nine separate record retention requirements, depending on the type of record.4 Many documents that could assist in a heavy truck case have no required retention period.

It is important to take immediate steps to preserve the documentary evidence. One approach is to commence litigation immediately and request an order to preserve evidence. A less drastic approach is to send a certified letter to the trucking company requesting that it preserve the records. Failure to preserve the records after receipt of such a letter could result in charges of spoliation of evidence and a claim for punitive damages.5 At a minimum, the letter should specifically list the documents set forth later in this article.

Once attorneys have taken steps to ensure that relevant documentary evidence is preserved, they should request documents regarding the truck driver, as well as the trucking company. Because these documents likely will be voluminous, counsel may need to request permission to exceed the discovery limitations set forth in C.R.C.P. 26(b)(2). For example, C.R.C.P. 26(b)(2)(D) limits production of documents to twenty per request, which would not suffice to gather all of the information described in this article.

Truck Safety Regulations

A familiarity with regulations that govern the trucking industry will help determine which documents are needed to prepare a heavy truck case. The FMCSR apply to any company that: (1) operates a truck with a gross weight exceeding 10,000 pounds across state lines; (2) operates a bus designed to transport more than fifteen persons, including the driver, across state lines; (3) operates a 10,000-pound truck or bus (as described above) within one state, but as part of a movement that begins or ends in another state; or (4) operates a truck of any weight that is used to transport a hazardous material in a quantity requiring a placard.6 The federal Hazardous Materials Regulations ("HMR") impose legal duties to certain carriers of hazardous materials.7 Both the FMCSR and the HMR are revised frequently, so attorneys need to stay abreast of the changes.8

Moreover, the state of Colorado has additional regulations and statutes concerning commercial vehicles that should not be overlooked.9 For example, because of its mountainous and snowy terrain, Colorado has specific laws that apply to all commercial vehicles regarding the use of chains or alternate traction devices.10

Documents That Should Be Requested

Some documentary evidence should be requested pursuant to C.R.C.P. 34...