Part 390 contains a set of requirements for recordkeeping that may provide a roadmap to potential discovery, as well as a spoliation argument should the motor carrier be found to have destroyed the records. The recordkeeping requirements apply to the entire subchapter, which encompasses all the FMCSRs.
1. Unless otherwise specified elsewhere in the regulations, the motor carrier’s records may be kept at its principal place of business, regional officer, or driver work-reporting location.
2. All records required to be kept shall be available for inspection by the FMCSA within forty-eight hours of request.
3. The records must be maintained in their original form unless “suitably photographed” and the microfilm is retained for the required retention period.
4. Any significant characteristic, feature or other attribute which will not show up in a black and white photo shall be clearly indicated before the photograph is made.
5. All records, except those requiring a signature, may be maintained on a computer so long as the data can be produced on a print-out.
Note that these requirements and the methods by which the records may be kept apply to “all records and documents required by this subchapter,” that is, Subchapter B, Chapter III, Subtitle B of Code of Federal Regulations Title 49. In other words, all records and documents required by the FMCSRs, except any mentioned in parts 303, 325, and 40, must be maintained.
The motor carrier must be able to produce any and all required documents within forty-eight hours of request by the FMCSA. This is important to remember when counsel for the motor carrier claims that “it will take some time to get all this stuff together.” To be fair, things are different in the litigation arena. Opposing counsel will want to review the documents, and a discovery request is not the same as a demand from the FMCSA pursuant to federal law. Still, the motor carrier should be capable of at least producing the records to their own counsel within forty-eight hours. At the least, the forty-eight hour timeframe of the rules may have some resonance with a judge when a document production is overdue.