n M. Garner Berry is a partner in the Jackson, Mississippi, office of Daniel, Coker, Horton, and Bell, P.A., focusing on trucking litigation, product liability, premises liability and general litigation. Mr. Berry sits on the firm’s E-discovery committee, and he is a member of DRI’s Trucking Law, Young Lawyers, Product Liability and E-Discovery Committees. Mr. Berry is currently serving as the Substantive Liaison between the DRI Trucking Law and Young Lawyers Committees.
E-Trucking
Industry Can’t
Hide from
E-Discovery
mercial carriers to more safely, efficiently and innovatively transport goods across the country. Additionally, the emergence of electronic control modules, satellite track-ing equipment, messagtrack-ing systems and trip recorders have created a new dimension of discovery and document production once litigation against a trucking company or its employees arise. The vast amount of elec-tronic information that now exists, along with the Federal Rules of Civil Procedure amendments related to e- discovery, has brought new obligations, and every truck-ing company and trucktruck-ing lawyer should be aware of them. The days of gathering and producing boxes of paper logs, trip inspections, maintenance documents and the like, are slowly dwindling to an end.
Further, large, national carriers are not the only carriers affected by new e- discovery obligations. Regional carriers, and even the smallest “mom and pop shops” in rural Mississippi can be affected by electronic discovery obligations. While small truck-ing companies may not have high-tech
sat-ellite equipment, many of even the smallest companies still have cell phones or personal GPS tracking systems, such as Tom-Tom or Garmin, which have become commonplace and may contain mounds of electronic information that could be relevant, discov-erable and require preserving.
Under the newest e- discovery- related rules and case law interpreting them, it is not enough for a lawyer to simply rely on a company to preserve relevant informa-tion or documents. It is now incumbent on a company and the lawyers working for that company to see that all relevant elec-tronic information that another party might seek as discoverable is preserved very early. Communication between a carrier and its attorney and determining where this elec-tronic information resides and is stored are key obligations for a trucking carrier law-yer before, during and after litigation. Given that the field of electronic discovery in gen-eral is growing at a rapid pace and its ex-tensive size and complexity should not be dismissed or trivialized, having some
nec-By M. Garner Berry
I
t is important for
both lawyers and
trucking companies
to proactively
identify and preserve
potentially relevant
electronic information
as early on as possible
in litigation.
E-discovery is invading almost every aspect of
litiga-tion these days, particularly in the trucking industry.
Advances in technology and in the equipment found in
trucks over the past 10 years have allowed large
com-T r u c k i n g L a w
essary building blocks and positive open communication with a trucking company can well get you on your way to effectively defending a company and addressing many of the e- discovery issues that may arise dur-ing litigation. What follows is a basic, elec-tronic discovery “primer” and brief best practices guide to assist a trucking lawyer in planning and litigating trucking cases.
Electronic Discovery Primer
The discovery of electronically stored information (ESI) has been covered for quite some time by the Federal Rules of Civil Procedure, as well as by state court rules, such as the Mississippi Rules of Civil Procedure. Mississippi Rule of Civil Pro-cedure 34, along with many other states, and Federal Rule of Civil Procedure 34, prior to its amendment, have long stated that requests for production of documents from a party include “other data compila-tions.” The recognition that advances in technology had opened a new frontier in discovery led to the amendments to the Federal Rules of Civil Procedure. In 1999, the Civil Rules Advisory Committee began to meet and propose amendments to the Federal Rules of Civil Procedure to accom-modate the technological advancements, ESI and electronic production. After pub-lic consideration and comment on a pro-posed set of rules, the propro-posed rules were revised and submitted to the United States Supreme Court, which approved them in April 2006. These new rules went into effect on December 1, 2006. Most significant are the e- discovery amendments that affected rules 16, 26, 33, 34, 37 and 45 and Form 35. The Committee Notes to each amended rule offer examples of ESI discovery that may be encountered, as well as explain the rationale of each amendment.
While the explosion of electronic dis-covery, governing rules and precedent
has developed primarily in federal courts, which have taken the lead in interpreting the new landscape, state courts have also recognized emerging electronic discov-ery issues and reacted accordingly. This expansion of e- discovery issues in state courts has vastly increased the prevalence of electronic discovery in trucking litiga-tion against nalitiga-tional, regional and local carriers, and hence created a necessity for all trucking lawyers to become familiar with the landscape and gain some under-standing of electronic discovery to effec-tively represent a client. For instance, on May 29, 2003, the Mississippi Supreme Court amended Mississippi Rule of Civil Procedure 26(b) to include discovery of “electronic or magnetic data,” which is clarified in Rule 26(b)(5). While Missis-sippi case law interpreting the amendment is sparse, the amendment process in and of itself represents recognition of technologi-cal advancements and their effects on dis-covery in litigation.
Because of the breadth of the changes, an attorney should read and become fa-miliar with the amended rules, as well as the Committee Notes and Comments, to the extent possible. Under the e- discovery amendments, an attorney might need to take immediate action on receiving notice of a complaint, so the time to familiarize yourself with the applicable concepts is now. An attor-ney who waits to read the rules and notes un-til after litigation has commenced will be at a distinct disadvantage. Furthermore, many tasks related to electronically stored informa-tion may be required well before a suit is filed, such as preservation obligations and “litiga-tion hold” directives, which are of particular interest to corporate counsel.
Pre-Litigation Client Relationship Best Practices
The author recognizes that due to spon-taneously created relationships between many trucking companies and their attor-neys, which frequently first occur when a lawsuit is anticipated or when a com-plaint is first served, an attorney may not have the ability to complete many of the tasks described below as early as would be ideal. However, each task is still vital and you should complete them as soon as your involvement begins and continually monitor task completion. In the world of
e- discovery, knowledge, continual moni-toring and compliance are key.
First, become familiar with a trucking company’s overall business structure and organization. Zubulake v. UBS Warburg LLC, illustrates the importance of this task. 217 F.R.D. 309 (S.D.N.Y. 2003) (Zubulake I). In this case, the court held that decid-ing the scope and cost of electronic dis-covery requires a three-step analysis: (1) A thorough understanding of the responding party’s computer system, with respect to active data and stored inaccessible data; (2) Because a cost- shifting analysis is so fact- intensive, it’s necessary to determine what information the inaccessible data contains; and (3) the cost- shifting analysis requires consideration of multiple factors.
To this end,
• Familiarize yourself with a company’s electronic information technology and computer operating systems and deter-mine what information is created and retained by the company.
• Determine how electronic information that may be relevant to a company’s legal needs is stored within the company and where it is stored.
Second, determine methods that a com-pany may use to restore and retrieve rele-vant information. Be mindful of the cost of retrieving electronic information and whether retrieval can be accomplished by a company’s document retention or IT per-sonnel, if such personnel exist, or whether an outside vendor will be necessary. Id.
Third, establish a relationship with a company’s document retention department and IT departments and personnel. Zubu-lake v. UBS Warburg LLC, 229 F.R.D. 422, 439 (S.D.N.Y. 2004) (Zubulake V) (“In sum, counsel has a duty to effectively communi-cate to her client its discovery obligations so that all relevant information is discovered, retained, and produced. In particular, once the duty to preserve attaches, counsel must identify the sources of discoverable infor-mation. This will usually entail speaking directly with the key players, as well as the client’s IT personnel”).
To this end,
• Identify document retention and IT per -sonnel to assist and guide you through the life of a lawsuit.
• Educate document retention and IT per -sonnel on the litigation process and the
First, become familiar
with a trucking company’s
overall business structure
and organization.
will likely seek during particular types of lawsuits.
• Identify early the document retention and IT personnel who may serve as
30(b)(6) witnesses in litigation to tes-tify regarding a company’s electronic systems and information.
Fourth, identify and collect company document retention policies. Specifically,
• Review and analyze document retention
policies and discuss a company’s proto-cols for carrying out the policy with the policy custodian or custodians, meaning
the individuals responsible for routine
destruction of business documents.
• If appropriate and feasible, address and
correct any shortcomings in the policy or procedures implementing the policy.
• Ensure the document retention policy
is being adhered to and complied with
exactly! In order to benefit from “rou -tine good-faith” destruction of business
information and avoid later spoliation instructions or even sanctions, the pol -icy must be adhered to at all times. Doe v. Norwalk Community College, 248
F.R.D. 372 (D. Conn. 2007); In Re Krause,
367 B.R. 740 (Bankr. D. Kan. 2007); United Medical Supply v. United States, 77 Fed. Cl. 257, 259 (Fed. Cl. 2007); Disability Rights Council v. Washington Metro. Transit Auth.,
242 F.R.D. 139, 146 (D.D.C. 2007); School-Link Technologies, Inc. v. Applied Resources, Inc., 2007 U.S. Dist. Lexis 14723 (D. Kan. Feb. 28, 2007); and Peskoff v. Faber, 244
F.R.D. 54 (D.D.C. 2007).
Best Practices in Anticipation of and During Litigation Discovery You will want to undertake the following tasks if you anticipate litigation, as well as
during litigation discovery.
First, at the moment that impending liti-gation is known or should have been known
or expected, an attorney must become
pro-active. Zubulake v. UBS Warburg LLC, 220
F.R.D. 212 (S.D.N.Y. 2003) (Zubulake IV). Once a party reasonably anticipates litiga-tion, it must suspend its routine document retention and destruction policy and put in
place a “litigation hold” to ensure the pres
-ervation of relevant documents. Id. Imple
-mentation of a “litigation hold” within a
trucking company is required at this point, if not already in place.
team consisting of the attorney or attor-neys who will work on the case, the
truck-ing company’s IT personnel, the trucktruck-ing
company’s document retention personnel, the contact person within the company, in-house counsel and any other person deemed appropriate, to work together throughout litigation to gather and
pro-duce relevant electronic information prop
-erly and effectively. Communication and
collaboration within the team are essen-tial. National Ass’n of Radiation Survivors v. Turnage, 115 F.R.D. 543, 557–558 (N.D. Cal. 2006). Not only must a party identify, locate and maintain relevant information,
but it must also communicate these obliga-tions to employees in possession of the
rel-evant information. Id.
To this end,
• Anticipate the electronic information
that an opposing party might seek and begin implementing your plan for
re-trieving and organizing potential infor
-mation that you might have to produce. • Identify and interview document custo
-dians and key players—persons, drivers or other employees who may have cre
-ated or are storing information—very
early in the process, to discuss the case and information that a company must
retrieve.
• Implement a plan to alter or suspend rou -tine destruction of business records, to
assure that relevant discoverable infor -mation is not destroyed during routine business operations.
Third, determine the point at which
pres-ervation of all relevant information is neces -sary, which will likely be a date in the past,
and distribute a preservation litigation hold
letter throughout the company to all doc-ument custodians and key players to stress
the importance of preservation from the de
-termined preservation date until litigation
concludes. Kronisch v. United States, 150 F.3d 112, 126 (2nd. Cir. 1998). The duty may arise when an individual or entity should have known that specific documents and re
-cords would be relevant to future litigation.
Id. There is no bright-line rule about when
the duty begins. For a plaintiff, the duty may begin when the plaintiff determines that it has a sufficient basis to initiate a cause of action or at the time that it attempts to re-tain counsel to prosecute an action. For a
tice of a demand or claim is received. An attorney must, however, continually mon -itor throughout the litigation process
ad-herence to preservation and litigation hold procedures and send follow- up preserva -tion litiga-tion hold letters to the appropri-ate custodians and key players within the
company. It is counsel’s obligation to mon
-itor compliance with a client’s preservation
obligations. See, e.g., Heng Chan v. Triple 8 Palace Inc., 2005 U.S. Dist. Lexis 16520, at *16 (S.D.N.Y. 2005); Fayemi v. Hambrecht and Quist, Inc., 174 F.R.D. 319, 326 (S.D.N.Y. 1997); and Turner v. Hudson Transit Lines, Inc., 142 F.R.D. 68, 73 (S.D.N.Y. 1991).
Fourth, issue a preservation letter to
opposing counsel immediately.
• Remind opposing counsel of the general duty to preserve.
• It is best also to cite specific documents
and information that want opposing
counsel to preserve, to avoid confusion.
Fifth, provide copies of the document
retention policy to the document custodi-ans and key players and discuss with them
their duty to preserve during the litigation
process.
Sixth, determine your discovery strat
-egy for the case overall, and specifically, your strategy for obtaining needed relevant
electronic information from the oppos-ing party.
To this end,
• Determine what electronic information you may need from the opposing party.
• Consider an early 30(b)(6) deposi-tion of the opposing party, to assess the electronic information that may be
available.
Seventh, pursuant to the Federal Rules,
confer with opposing counsel to discuss the
electronic information relevant to the case and the means for retrieval and produc
-tion. Develop a plan, and preferably com -mit the plan to writing, constituting the
agreements. Communicating and effec
-tively planning with the other side greatly
reduces the burdens on the parties and the court. Fed. R. Civ. P. 26(f); Rebman v. Fol-let Higher Education Group, Inc., 2007 U.S. Dist. Lexis 32601 (M.D. Fla. 2007); and In re Seroquel Products Liab. Litig., 2007 U.S. Dist. Lexis 61287 (M.D. Fla. 2007).
In particular, discuss (1) the types of
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party for production and the format in which the information is to be produced; (2) search terms and keywords and the best methods to be used when retrieving ESI and documents, including date ranges; and (3) how to handle inadvertent produc-tions of privileged information and doc-uments, including “clawback” provisions or opportunity for “quick peek” at
docu-ments. See The Scotts Co. v. Liberty Mutual Ins. Co., 2007 U.S. Dist. Lexis 43005 (E.D. Ohio 2007); Cache La Poudre Feeds, LLC v. Land O’Lakes Farmland Feed, LLC, 244 F.R.D. 614, 628 (D. Colo. 2007) (“[I]n the typical case, responding parties are best situated to evaluate the procedures, meth-odologies, and technologies appropriate for preserving and producing their own elec-tronic data and documents”); Hopson v. Mayor and City Council of Baltimore, 2005 U.S. Dist. Lexis 29882 (D. Md. 2005); Wil-liams v. Taser, Int’l, Inc., 2007 U.S. Dist. Lexis 40280, *7 (N.D. Ga. 2007).
In addition, address the costs of retrieval and production and who will bear the cost. Toshiba America Elec. Components, Inc. v. Superior Court, 21 Cal. Rptr. 3d 532, 538– 541 (Cal. Ct. App. 2004) (holding that a requesting party may be required to share in the expense of restoring backup tapes when the costs are “beyond those typically involved in responding to routine discov-ery”). Identify and discuss potential wit-nesses and key players at this juncture with opposing counsel, as well.
Finally, promptly and adequately respond to the opposing party’s discovery requests. Keep the following in mind:
• Remember, your duty to produce rele-vant information, including ESI, begins
with initial disclosures. If possible, address ESI in your initial disclosures. • Review discovery requests thoroughly
with document retention and IT per-sonnel to find the information requested and determine how to retrieve and pro-duce it. While company personnel may be knowledgeable about the company’s the electronic processes, they are typi-cally strangers to the litigation process and its requirements.
• Review all information prior to its pro-duction, specifically marking and with-holding all privileged material.
• Maintain a detailed list of the infor-mation produced during discovery, the processes followed in identifying and retrieving the information, where the information was maintained and retrieved and how the information had been stored within the company. This procedure should avoid spoliation charges and related sanctions and estab-lish the foundation for admissibility of the information as evidence.
Post-Litigation Best Practices
As long as post-trial motions and appeals are ongoing, all above procedures should be continually followed. Once a case is completely resolved, routine business pro-cedures should resume in their entirety, in-cluding resumption of routine document retention policies.
Post- litigation is an ideal time to reeval-uate company procedures for the creation, storage, handling and destruction of doc-uments and information, including ESI and document retention policies. See The Sedona Conference Working Group Series, The Sedona Guidelines: Best Practices & Commentary for Managing Information & Records in the Electronic Age (2004).
Common Trucking Industry Sources for Electronic Information and Discovery
Sources of electronically discoverable infor-mation can be quite numerous in a truck-ing company. Ustruck-ing the above practices along with effective and open communica-tion with the trucking company and outside vendors that a company may utilize, a law-yer and trucking company can efficiently identify electronically stored information that may exist and its location, and begin
the process of preserving and retrieving the information that a plaintiff may ultimately ask you to produce during litigation. Satellite Tracking and Monitoring Devices Many trucking companies, particularly large national and regional carriers, uti-lize satellite tracking and monitoring de-vices on trucks to track trucks, trailers and loads, and to communicate quickly with drivers. Many and various satellite systems are used by trucking companies. Basically understanding where the electronic infor-mation for these various systems is stored will allow a company and lawyer to begin navigating the roads to retrieval of the rel-evant electronic information. For exam-ple, Qualcomm systems, which produces OmniTRACS, OmniVision, OmniExpress, TrailerTRACS and SensorTRACS, consist of computer hardware installed on a trac-tor truck that communicates with two sat-ellites orbiting the earth. The combined use of the onboard computer equipment and the satellites allows a driver and a dis-patcher to communicate with one another electronically while a driver is on the road. Such communication abilities allow a driver and dispatcher to exchange text messages regarding the existing trip, a trip change or other driver routing information that may arise during a trip. Additionally, Qual-comm systems, depending on what track-ing service plan a trucktrack-ing company may choose to purchase, allows drivers to re-cord their driving time and log data elec-tronically, enter and monitor information about loads through the system, and also tracks for a company the location of trucks and the loads. Satellite systems also allow engine monitoring and monitoring of trac-tor performance, much as an electronic con-trol module (ECM), as discussed below.
In short, retrieving electronic informa-tion may require an attorney to search be-yond a trucking company, for instance, with a satellite monitoring company that the trucking company utilizes. Case law has made clear that it is no longer enough to check only with the trucking company and rely on what the company retrieves and produces. Lawyers now have an affirmative duty to exhaust all possible sources of elec-tronic information generated by trucking companies and to assure that these compa-nies have diligently searched and preserved
Lawyers now have
an affirmative duty to
exhaust all possible
sources of electronic
information generated by
trucking companies.
tion. For example, although Qualcomm, lo-cated in San Diego, California, converts the raw information received from its satellites and sends it electronically to the dispatch center of a trucking company in a read-able form, the raw data remains on Qual-comm’s networks and servers and it may become necessary for an attorney to re-trieve certain information from Qualcomm. Other information transmitted over satel-lite equipment may be stored at the compa-ny’s dispatch center or on a truck’s onboard computer hardware. Other situations could arise in which a trucking company no lon-ger retains electronic information, depend-ing on its electronic storage procedures and document retention policies, and you may need to obtain the information from a sat-ellite company for a particular case. Satel-lite companies do retain this transmitted information on their systems.
As a result of this increased electronic information from technology such as sat-ellite tracking systems, trucking com-panies now store millions of documents electronically. And while these systems have their obvious advantages, retriev-ing this electronic information requires increased knowledge and communication, as described above, between a lawyer and a trucking company.
Electronic Control Modules
Most tractor- trailers, particularly models from the past 10 years, are now equipped with electronic control modules (ECMs). An ECM is built into the engine of a truck and records onboard data from the truck during events such as a motor vehicle acci-dent. It can contain a wealth of electronic information related to a crash or other truck- related litigation. ECMs can record data such as speed, braking times, RPM data and mileage, as well as almost any other mechanical feature associated with a tractor- trailer. Unlike satellite tracking device systems, ECMs do not record data on a remote server, but instead, they record data onboard the actual modules in vehi-cles. Typically an ECM records data on a continuous loop of approximately 30 to 90 days, so if a particular tractor is involved in an accident, early identification of the ECM can be essential to preserving the potential electronic evidence.
ECM is only half the battle, as its data is not stored in an identifiable form on the actual onboard computer that you can produce, but must be downloaded to a separate com-puter or other device with appropriate soft-ware so that the data can be organized into a recognizable form. Therefore, when you know that an ECM exists, it is necessary to identify an individual within the trucking company, or retain a third- party vendor, such as an accident reconstruction consul-tant or e- discovery consulconsul-tant, to download the information, organize it into a readable form and have the information preserved for production during litigation.
Other Possible Sources of Electronic Information
When identifying a trucking company’s electronic information, attorneys should make sure to identify all electronic com-puter systems that a company may use. These systems may include networks, stor-age systems, backup media, business com-puters and personal comcom-puters of drivers and other employees. Attorneys should also consider external media, such as “flash” drives, CDs and mobile devices.
Counsel for a trucking company should also be acutely aware of the various soft-ware applications that a company may use that produce electronic information. One common service offered by many trucking companies today includes electronic data interchange (EDI), which allows a truck-ing company customer to transmit ship-ping and load information electronically, and thereafter, monitor the status of the shipping. All of this EDI information is, of course, maintained on a trucking compa-ny’s computer servers and may be relevant to discovery.
Electronically stored information is not limited only to a company’s internal stor-age devices either, but also to various exter-nal devices. Exterexter-nal storage systems may include third- party companies that retain, transfer and destroy data, or sources from which it can become difficult to obtain information, such as a driver’s or other employee’s PDA, a GPS navigation device, MP3 player or other device. All of these devices store electronic information, some onboard and some in remote locations, and you should consider them when
deter-exist. Obtaining electronic information and tracking a company’s work product from these latter devices can be very dif-ficult, and may even be considered “inac-cessible,” if a company has no means to track and preserve information not kept as part of the ordinary course of business. However, to avoid spoliation and informa-tion destrucinforma-tion consequences, a company and attorney may be required to preserve information from these devices, should they be deemed to have potentially rele-vant information. The prevalence of these small, readily available devices, such as cell phones, PDA’s and personal GPS nav-igation devices, has made retrieving elec-tronic information during litigation from even the smallest trucking company a com-mon reality.
Conclusion
Given federal and state rules related to elec-tronic discovery and case precedent inter-preting them that emerges every day, it is important for both lawyers and trucking companies to proactively identify and pre-serve potentially relevant electronic infor-mation as early on as possible in litigation. E- discovery rules and related law can affect the largest carriers to the smallest com-panies. However, communicating with appropriate individuals from the first pos-sible moment can have an impact. While e- discovery and its ins and outs can seem daunting for the average trucking defense litigator, the tools necessary and essen-tial to understanding what is needed is not difficult to attain. The key is to identify a company’s technology from the outset and then contact sources to retain and retrieve information.
The technology and safety features used in today’s tractors as well as those of the future will continue to move a once paper-filled industry to store information with more frequency in electronic format. The key to effectively preserving relevant elec-tronic information and competently repre-senting a trucking company, now and in the future, is and will be open and honest com-munication between a lawyer and trucking company, as early and often as possible, to learn about the company’s operations and technology, to avoid unnecessary adverse instructions, penalties and sanctions.
