Truck Injury Lawyer Blog : Truck Accident Lawyer & Attorney: Morgan Adams : Contingency Fee Truck Accident Lawyer

Spoliation letters require trucking companies to preserve evidence that shouldn't be, but often is, destroyed after a wreck. While the trucking companies know they should put a litigation hold on documents that will show whether they caused a wreck, they generally destroy this evidence if they know they are negligent. I have blogged repeatedly on this subject in past posts.

Why do trucking companies allow this evidence to be destroyed? Trucking companies have found that juries will often believe them when they say the damaging documents were "destroyed accidentally" or destroyed or purged in keeping with "DOT Regulations." Spoliation letters help the jury see that the trucking company knew not to destroy evidence but chose to do so anyway. 

What if the documents prove a trucking company's innocence you ask? Well, those they always seem to be able to find when they need them and they never get destroyed.

You, or your lawyer, should make sure a spoliation letter is sent as soon as possible after a wreck. You can use mine, downloadable here, as a form for what should be sent. As no case is identical to another, this form letter is modified for every case we handle. It may not be exactly what is needed in your case but should be a great starting point.

Do you have an experienced trucking lawyer as your attorney? You should ask for a copy of the spoliation letter sent in your case.Remember, you can send this letter to a trucking company even if you don't have a lawyer, but if you need to send this letter, you need to hire a lawyer ASAP!

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Swift Transportation, like other trucking companies, destroys evidence. Whether a trucking company calls it a document retention policy, purging files of old records, or they have some other description for the act, the fact is people who trust the trucking company's insurance adjuster to "be fair" are being lied to as the company is actively destroying documents.

When trucking companies know there are people who are killed and injured, laying in a hospital as a result of the trucking companies negligence, the trucking companies deliberately destroy evidence that would prove they were at fault in a wreck while they send out flunkies to hold the victims hands and tell them that everything is going to be "all right." Everything will not be all right if you listen to a trucking company's insurance adjuster. The insurance adjuster uses a calculated and deliberate tactic to lull victims into a false sense of security.

Even when lawyers and courts do get involved, trucking companies will frequently still destroy evidence BUT, if a good lawyer is involved for the victims, the company will be sanctioned and often has to pay sanctions for their actions. Unfortunately most people hire lawyers who don't regularly handle trucking cases so trucking companies get away with destroying evidence, which is why they still do it. I have previously written on how to find a good lawyer for a truck or bus injury case.

Back to Swift. In a Motion  for Sanctions for destruction of evidence by Swift in South Carolina a California lawyer, in a sworn affidavit attached to the Motion, made clear that Swift "purposely mislead the Court... regarding the existence and destruction of evidence..." Swift was sanctioned for discovery abuse. The lawyer went on to state in his sworn affidavit: "In my 39 years of Practicing law, I have never come across a company that so willfully and flagrantly abuses the discovery process as does Swift and their attorneys."

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As many of you recall I was surprised and angered from a recent letter I received from Swift Transportation. In this letter Swift refused to save the evidence I requested which would prove whether Swift contributed to the collision and what, if any responsibility Swift had for the wreck with my client. This evidence could show they were innocent, or it could show they were guilty of contributing to the wreck which caused my client's injuries.

I believe destruction of evidence is a common practice in the trucking industry, as most trucking companies involved in accidents violate the rules and procedures required of safe trucking companies. This is why spoliation letters, requesting a company save evidence, must be sent immediately in every case. I was shocked that Swift sent a letter saying they were not going to save the evidence I requested.

Since my receipt of Swift's letter I have done some research and found Swift has been sanctioned by courts for failing to save evidence, even in violation of court orders to keep the critical evidence. While there were many references to this sort of action by Swift, an example of a violation Swift has been sanctioned for by a judge is the Order of Judge, Perry Buckner of South Carolina, dated August 9, 2004, in McCurdy v. Swift, 02-CP-25-100, referencing sanctions for discovery abuse and destruction of evidence in violation of the Court's Orders dated March 29, 2001, and October 21, 2003.

I think it critical that victims and surviving family members understand that trucking companies, and their insurance companies, play hardball. They say one thing and do another. Even in the face of judicial sanctions these companies are willing to destroy evidence if it helps their defense and saves them money. Don't let insurance adjusters sweet talk you into delaying hiring an experienced truck accident lawyer to protect your and your families rights. If the courts have a hard time getting trucking companies to do what is right, what chance do you have by yourself? 

The Truck Accident Lawyers at the Law Offices of Morgan Adams concentrate in protecting the rights of those who were seriously injured or lost a loved one in an accident with a commercial truck or bus. Our lawyers are based in Tennessee, but serve clients throughout the nation. If you or someone you love has been seriously hurt by a careless driver, don’t sign anything the trucking company gives you -- contact us as soon as possible at 800-580-4878 or by email to learn more at a free, confidential consultation.

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Recently Swift Transportation was ordered to pay $23.5 Million for a wreck where one of its drivers was on drugs, specifically meth. Ken Shigley blogged about this case and his comments can be read here. Only when evidence of wrongdoing is preserved can lawyers obtain justice for their clients. Delay in hiring a lawyer in your case can be fatal, particularly with Swift. My blog has several orders where the courts have found Swift destroyed evidence AFTER THEY WERE AWARE OF THE LAWSUIT! Imagine what they are doing to the evidence without a lawyer in your case!

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I have a client that was hit by a Swift Transportation Truck in mid-May 2009. Some weeks later, after my client left the hospital, I was hired. I sent a spoliation letter to Swift on June 5, 2009 by fax, mail, and certified mail alerting them to the fact my client was injured and they needed to keep documents that might help figure out who was responsible for the wreck. A spoliation letter is a letter that asks a company to preserve evidence that would show why the wreck happened. Often the major cause of a wreck is not the driver, but the trucking company. The trucking company is typically found at fault for failing to train its drivers, refusing to fire dangerous drivers or hiring them in the first place, failing to properly maintain trucks and not giving drivers the tools they need to drive safely, and for not supervising the drivers while they are on the road. Click her to see a sample spoliation letter.

Swift responded to this letter by stating they refused to save all the documents requested but only to "preserve information [Swift] believe is relevant..." If that isn't putting the fox in charge of the hen house I don't know what is! They went on to say "we will not preserve each and every item enumerated on your list. ...If you believe this response to your request is inadequate, you may wish to file a lawsuit..." They say they will only preserve documents "as required by the Federal Motor Carrier Safety Administration..." which allows documents, relevant to determining fault in a wreck, to be destroyed in 30 days. (Specifically, post trip inspection documents are only required to be saved for 30 days according to  FMCSR 396.11(c)(2). ) Electronic material is frequently only kept for days and can be critical in a case. Many of the most important liability documents are destroyed in 6 months while a minority of documents are required to be kept for 3 years.

The ironic thing is that Swift will have insurance adjusters actively discouraging surviving family members from hiring a lawyer, even though the company itself is destroying documents which are critical to proving Swift was responsible for the wreck. Families typically are told to "wait and see what we offer before hiring a lawyer," even though the proof a lawyer needs to prove your case is actively disappearing." This is the worst sort of corporate abuse.

PLEASE DON'T THINK SWIFT, OR ITS INSURANCE AGENTS, IS ON YOUR SIDE. For more on problems caused by insurance adjusters see my prior post  "Insurance Companies Trick Victims in Trucking Cases"

The Law Offices of Morgan Adams concentrates in protecting the rights of those who were seriously injured or lost a loved one in a serious accident with a commercial truck. Our lawyers are based in Tennessee but serve clients throughout the nation. If you or someone you love has been seriously hurt by a careless truck driver, don’t sign anything the trucking company gives you -- contact us as soon as possible at 800-580-4878 or by email to learn more at a free, confidential consultation.

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Evidence in a trucking case vanishes quickly. There are several computers on-board a tractor trailer these days and all have critical information which helps determine the extent of liability and what happened in a truck wreck.  One of the computers is called an event data recorder (EDR). This computer records the speed, time of braking, time of impact from time of braking, and much more information can be wiped clean by a trucking company in a few hours. (Some companies don't even have them turned on, fearing an impartial scientific witness to key facts in a collision). On-board computer records of the trucks location, and emails to and from the company, are often held for only 14 days. Many of the paper records a trucking company is required to keep by federal regulations, to show how long a driver was on the road and if he was speeding, is held only for six months. This despite the fact that most states allow a lawsuit to be filed one to three years after the date of the collision. What do you do?

You must send a spoliation letter. Spoliation is the destruction of evidence. A spoliation letter informs the trucking company of the documents and things it must keep and preserve prior to litigation being filed. It is CRITICAL that this letter be sent as soon as possible whenever a tractor trailer is involved in a collision. Once the letter is sent, failure to save the evidence can result in an inference that the trucking company had something to hide, sanctions, or even in some states a direct cause of action against the trucking company for the destruction of evidence.

It is our practice to send our spoliation letters by fax, regular mail, certified mail, and FedEx  to the president of the company, the safety director, and/or the risk manager.

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