Discovery and Retention of Drug and Alcohol Records: Overview
The regulations erect hurdles to production of drug and alcohol testing records and privileges which may prevent the motor carrier from disclosing results even when it would like to do so. Note that a subpoena will not suffice and may be met by a Motion for Protective Order. The regulations describe the procedure to obtain these records. Motor carriers are required to maintain such documents, but they may not be part of the DQ file. Knowledge of the regulations regarding retention will assist you in framing requests, preparing an appropriate motion and knowing what to request so that you do not waste time and energy in a motions battle.
Discovery and Retention of Testing Records
1. Drug and alcohol test records are subject to privilege which prohibits release of individual test results or medical information without the subject employee’s written consent. 40.321
2. An employer may, however, release drug and alcohol test results without the employees consent in certain legal proceedings, including a lawsuit brought by the employee aggrieved over action taken as a consequence of the results. 40.323(a)(1)
3. The employer may also release the records in a criminal or civil action brought as a result of the employee’s actions, where a court of competent jurisdiction finds the information relevant and issues an order compelling production. In response to an order of the court, the employer may release the documents to the court only with a binding stipulation that the court will only release the documents to the parties. 40.323(a)(2)
4. A driver is entitled upon written request to a copy of “any records” pertaining to the driver’s use of alcohol or controlled substances, and production may not be conditioned upon pre-payment. The driver may also direct the employer, in writing, to provide the records to a third party. 382.405
5. Motor carriers are required to keep copies of alcohol tests with a result of .02 or higher, all positive drug test results, documentation of refusal to take a test, follow-up tests, Driver evaluation and referrals and calibration documents for five years(40.333(a)(1); 382.401(b)
6. Motor carriers are required to keep negative drug tests and alcohol tests under .02 for one year. (382.401(3); 40.333(4))
Do not expect a motor carrier to produce any record pertaining to drug or alcohol testing absent either a court order or written consent by the driver. Under the regulations, a court of competent jurisdiction must perform a relevancy analysis before determining whether to order disclosure, and then the documents are to be produced only to the court. Retention should be addressed in the spoliation letter. (Example at Appendix __)
Pertinent Case Law
Production by a motor carrier in violation of the confidentiality provisions of 40.321 and 382.405 may constitute a violation of the ADA. Giaccio V. City of New York, 502 F. Supp. 2d 380 (S.D.N.Y. 2007). In Bowen V. Galbreath, the court engaged in a relevancy inquiry before finding that the defendant motor carrier should produce drug and alcohol test records, noting “[Defendant] correctly points out that pursuant to federal regulations it may not produce a commercial driver’s drug and alcohol test results absent a court order and limitations on the dissemination of the information.” Bowen V. Galbreath, 2009 WL 4405812 (W.D.N.C. Nov. 25, 2009). The court limited production in conformity with the regulation.
In a similar fashion, the Northern District of California held that the plaintiff in a case of alleged racial discrimination failed to demonstrate the relevancy of requested drug and alcohol test documents, and barred their production under 40.321. Hardeman v. Amtrak/Caltrain Railroad, 2006 WL 1156395 (N.D. Cal. May 2, 2006) (Finding request was “nothing more than a fishing expedition”). If you seek the documents, be prepared to demonstrate some evidence of relevancy. Do not depend on the fact of a truck accident to furnish the necessary degree of relevancy. It seems likely a court should at least permit disclosure of whether the post accident test was positive, in considering whether production should occur.
Discovery requests should be seek prior tests, possibly hinged upon a positive finding in the subject accident.