CMV Litigation: Retention of Documents

Retention of Documents: Overview

Document retention requirements are found throughout the various subchapters and subsections of the FMCSRs. While the overview of the qualification process laid out thus far in these blog posts has addressed document retention at various points, it makes sense to compile the requirements for quick reference.

Document Retention

1. The DQ file and driver investigation history file shall be retained by the motor carrier during the term of the driver’s
employment and for three years afterwards, with limited exceptions
2. Certain documents may be “removed” from the DQ file three years after their date of execution. These are:

  • MVR(s) received from various states as part of the annual review
  • The motor carrier “note” relating to the annual review
  • The driver’s list of convictions for motor vehicle offenses or certificate that none exist
  • The medical examiner’s certificate or a copy thereof
  • Any medical variance issued by the FMCSA, including a skill performance evaluation certificate or a medical exemption letter

Observations

As previously discussed, it is helpful to double-check the DQ file to determine if all required documents are present, and also to note the deletion or absence of any documents. If some are legitimately missing but others are still in the file, find out why. Keep in mind that the motor carrier may have internal policies regarding retention following a wreck. These may be concealed from plain vanilla discovery requests, so it is important to frame interrogatories and requests for production to specifically seek any and all document preservation or retention policies.
The motor carrier’s insurer may possess copies of certain required documents from when it investigated the wreck, which may have since been “misplaced” by the motor carrier. If the insurer has documents that are no longer available and would be discoverable if in the possession of the motor carrier, it may be possible to overcome any claim of work product privilege to their production. At the very least, plaintiffs’ counsel should be able to discover what documents the insurer possesses.
There are other document preservation requirements elsewhere in the regulations. It is crucial to issue a preservation letter to create a spoliation argument, should “routine” and otherwise timely document destruction take place following an accident. If the motor carrier has destroyed important records pertaining to an incident, even where no spoliation letter has been sent, counsel should consult and pay particular heed to subchapter 379, Appendix A, Note A in the regulations.

Pertinent Case Law

The body of law addressing spoliation of evidence and its ramifications is extensive and beyond the scope of this work. Certainly, the prejudice caused by the failure to properly preserve documents may give rise to an adverse inference, sanctions such as exclusion of evidence, or in some states, a separate claim for damages.

J.B. Hunt Transport, Inc. v. Bentley

For example, in J.B. Hunt Transport, Inc. v. Bentley, motor carrier J.B. Hunt destroyed driver logs under a policy that required disposal after 6 months. Disposal of logs after six months is permitted under the regulations. However, J.B. Hunt knew a wreck had occurred involving the driver whose logs were destroyed and had conducted its own investigation prior to disposing of the logs. The company was also found to have a history of violating hours of service regulations. Viewing the situation, the appellate court upheld the presumption that the logs would have been unfavorable to J.B. Hunt.

Wallen v. Allen

However, a court may require a causal link be shown between the missing or destroyed documents and the accident. In Wallen v. Allen, the court refused to admit evidence of the motor carrier’s guilty plea to the charge of failure to maintain a proper DQ file. The court observed that “the most meticulous record-keeping would not have disclosed evidence of [the driver’s] unfitness [and] the collision would not have been averted if [his employer] had filled a warehouse with such files.”

Kelley v. Blue Line Carriers

Do not rely on the mere fact of a failure to retain alone; the breach must be tied to the case. It is important to follow the proper procedures in order to pin down when the motor carrier destroyed documents and caused the spoliation. In Kelley v. Blue Line Carriers, LLC, the plaintiff sent a pre-suit spoliation letter requesting preservation, inter alia, of the DQ file. However, when suit was filed and the documents were requested during discovery, the motor carrier was unable to produce them.
Later, the motor carrier moved for summary judgment on claims of negligent hiring, which plaintiff countered by arguing that the motor carrier was guilty of spoliation of evidence, creating an adverse inference sufficient to defeat summary judgment. However, the court found that the plaintiff should have done more once confronted with the motor carrier’s failure to produce the documents, observing in pertinent part:

Given this evidence, the record may in fact support a finding that Blue Line spoliated [the driver’s] employment records. But citation to such evidence on appeal does not automatically result in a rebuttable presumption that the records support Kelley’s negligent hiring claim. Instead, Kelley should have properly raised the issue below and elicited a ruling by the trial court, which would have determined if in fact the evidence was spoliated. If so, the trial court would have then decided whether, in the exercise of its discretion, to impose sanctions against Blue Line…

Potential sanctions to remedy the prejudice resulting from the spoliation of evidence include:

  •  a jury charge that spoliation of evidence creates the rebuttable presumption that the evidence would have been harmful to the spoliator
  • dismissal of the case
  • exclusion of testimony about the evidence

Here, however, Kelley did not file a motion for sanctions against Blue Line based on the spoliation or otherwise elicit a ruling by the trial court on this issue[.] Absent a ruling by the trial court on the spoliation issue we will not address it on appeal. Thus, this enumeration presents no basis for reversal.

Fowler v. Smith

The procedure explicitly required in Georgia should be followed wherever and whenever spoliation is suspected in order to obtain a ruling that may be used at trial and preserved for use on appeal. Other Georgia cases have set forth the same procedural requirements. The plaintiff was more successful in Fowler v. Smith. There, the plaintiff sought summary judgment on the issue of whether the motor carrier had breached regulations by failing to retain a DQ file. Interestingly, between the time of the hearing on plaintiff’s motion and the issuance of a ruling, the motor carrier was able to locate what it claimed was the lost DQ file. However, since it failed to produce the file in response to the motion, the trial court’s grant of summary judgment was affirmed.

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