Discovery is the next pre-trial phase in a lawsuit. During this phase each party can request documents and other evidence from other parties.

The discovery process will follow the same basic path as the interrogatories, but it will require that the carrier turn over requested documents and evidence for review by the plaintiff’s attorneys, investigators, and experts.

Here is a list of typical discovery requests in litigation involving a motor carrier:

• Driver’s logs and time cards (if applicable) for the previous 7, 15, or 30 days.
• Driver’s qualification and personnel file.
• Driver trip envelopes (if still used) and payroll records for the previous 7, 15, or 30 days.
• Bills of lading and delivery receipts for all loads carried/delivered in the previous 7, 15, or 30 days.
• Driver’s income tax records.
• Company and driver credit card transactions and cell phone records.
• Any cash advance or reimbursement receipts.
• Toll and scale clearance device receipts (both cash and electronic).
• Tractor and trailer maintenance records for the equipment involved.
• Driver’s disciplinary, training, and accident records.
• Any records for this incident (including any investigative reports or photos) or internal determination of preventability.
• Insurance settlement records.
• Any written statements pertaining to the incident.
• Any electronic records (computerized dispatch records and communications, GPS position reports, electronic logs, dash cam video, etc.).
• Data downloads from the vehicle’s on-board computers.
• Gate or maintenance logs (if the carrier logs vehicles in and out).

Of course this is not an exhaustive list of all the requests you may see. Any answers to requests (interrogatories, discovery, etc.) should go through your attorney.

Spoliation

One idea that has been tried is to not turn everything over when it is requested. Hiding materials from the other party in litigation can be an extremely dangerous move. The other party will have a team of investigators and experts who know what a reasonable motor carrier would retain and how long it should be retained during normal operations. The other attorneys will be expecting additional preservation due to the reasonable expectation of litigation.

If you tell the plaintiff’s attorneys that you did not retain the requested documents, they will be making a major point of this later. The other attorneys will be asking the judge and jury the rhetorical question “Why did the defendant not retain the requested documents? The regulations require it, the expectation of litigation would warrant it; why did they not save the requested documents?” In some jurisdictions, if the plaintiff can prove you should have retained a document, the judge will tell the jury to assume that the missing materials were damaging to the defendant.

If you have deliberately destroyed evidence, you have committed spoliation. Spoliation is the intentional destruction, mutilation, alteration, or concealment of evidence. If a carrier destroys or alters documents that may be of use to another party in litigation, the carrier has committed spoliation of evidence. This in itself can be grounds for the plaintiff suing the carrier or asking for additional sanctions (penalties).

The way to avoid having to turn over “painful” information is to make sure to operate in such a way that there is nothing negative for the other party to find. If you have drivers who have poor compliance or driving records, you have equipment that is not in compliance, or you have operational tendencies that could be hard to explain in court, it would be better to try to fix the problems rather than try to hide them.