By Brendan Faulkner, Esq. and Mike A. D’Amico, Esq.
Fault in a truck accident case is often most effectively proven through violations of the rules of the road. Government regulations and modern technology provide plaintiff’s counsel with a wealth of evidence concerning rules violations. Much of this evidence is electronic or computer data. Digital data from computerized dispatch records, electronic control modules, event data recorders, on-board messaging systems, cell phone forensics, 911 calls and GPS technology, for example, can all be critical to establishing liability. Ensuring the admissibility of such electronic or computer evidence requires careful consideration of admissibility requirements when pleading and throughout discovery. Quick action after the crash will preserve information which might otherwise be lost.
ELECTRONIC OR COMPUTER EVIDENCE MAY PROVE VIOLATIONS OF THE RULES OF THE ROAD
Federal regulations limit the amount of time a truck driver may spend driving in a single day and over the course of a week.1 Due to financial incentives, drivers frequently disregard federal laws by driving more than is legally permitted, and by falsifying their log books. These violations can often be proven with electronic evidence from the truck itself and from the trucking company’s computer systems.
In a recent jury trial in Hartford, Connecticut,2 the trial court admitted computer data which demonstrated violations of the Federal Motor Carrier Safety Regulations’ (“FMSCR”) hours-of-service limitations. In particular, GPS-like positioning data (from the trucking company’s Qualcomm OmniTRACS3 system) demonstrated how far the truck driver had driven in the day and a half preceding the crash. This positioning data recorded several significant changes in the truck’s latitude and longitude during time periods in which the driver claimed in his log books that he had been sleeping. That information was corroborated by engine usage data from the tractor’s engine control module (“ECM”), which was also admitted over objection.4 The ECM data recorded whether the truck tractor’s engine was in drive, idle, or off at certain points in time, and showed that the engine had been in driving mode when the driver claimed to have been sleeping.
Another type of electronic evidence, the times of certain telephone calls, was also admitted by the trial court, and impeached the truck driver’s claim not to have been on his cell phone just prior to the crash. The first 911 call indicated the latest possible time the accident could have occurred, which, when compared with the truck driver’s and his wife’s cell phone records, showed that he had been on the phone when the crash occurred.
The data concerning the truck’s positioning, engine usage, and the telephone calls was all “raw,” in that it had been created automatically and was not subject to manipulation or processing. The court also admitted electronic evidence that had been created as a result of human input, such as messages between the driver and dispatch sent over the OmniTRACS system, which also helped establish liability and further impeached the driver’s credibility.
Proper planning and legwork resulted in all of the electronic or computer evidence being admitted over many strenuous objections. The evidence was used to show the likelihood that the truck driver was distracted from fatigue because he had been on duty and driving too long in violation of the hours-of-service limitations and from being on his cell phone.5 (Note that even in the absence of specifically pleaded FMSCR violations against a truck driver, such breaches should be considered as some evidence of the driver’s negligence (i.e. failure to make proper use of his faculties); and may also establish the direct liability of the trucking company6 for recklessness if it is established that the company repeatedly turned a blind eye towards evidence of repeated hours-of-service violations.) The electronic and computer evidence that was admitted also effectively demonstrated that the driver had falsified his logs in violation of the FMSCR, and had lied to the police; lied at his deposition; and lied in court about how long he had driven, and whether he had been on his cell phone just prior to the crash.7
ELECTRONIC EVIDENCE MAY BE EVANESCENT EVIDENCE UNLESS PRESERVED
Undoubtedly, the trucking company will begin to defend a claim within minutes of an accident, with the help of experienced trucking litigation counsel and aggressive investigators. Companies typically send an investigator to the scene immediately.8 Computer or electronic information can disappear quickly. For example, some data stored in ECMs is erased as soon as the truck is moved. No matter when counsel is contacted to investigate claims stemming from a trucking accident, the first step should be to make every effort to preserve the electronic evidence. Trucking experts should be consulted, and spoliation letters should be sent to the trucking company and driver immediately.9
WHAT TO ASK FOR IN DISCOVERY
Documents and information that should be requested in discovery include:
- records generated and data recorded by all on-board tracking systems(such as OmniTRACS); collision avoidance systems or other on-board computer / satellite systems10 with which the truck is equipped [identified by VIN and other truck specific ID numbers];
- records generated and data recorded by any electronic control module(ECM) or event data recorder (EDR) on the truck;
- dispatch records for the truck;
- pick-up and delivery records, trip summaries, delivery manifests, trip reports, bills of lading and weigh bills;
- toll tickets, fuel receipts, weight tickets, state entry and departure records;
- service orders, repairs and maintenance records for the truck and the trailer;
- the truck driver’s credit card receipts and copies of his credit card statements for any credit cards which he had whether for business or personal use including gas credit cards;
- the trip envelope (and contents thereof);
- all trucking company policies, procedures, manuals, or other written rules, directives, or guidance concerning driver training, loss prevention,11 dispatching, compliance with FMCSR, collision investigation, driver log acquisition and verification, ECMs, satellite tracking / positioning / communication devices (e.g. Qualcomm), and document retention; and
- cell phone records.
The discovery requests should be limited to an appropriate time period.12
DEPOSITION CONSIDERATIONS FOR OVERCOMING TRIAL OBJECTIONS TO THE ADMISSION OF COMPUTER EVIDENCE
In order to admit computer-generated evidence, the proponent must adduce testimony to establish that (1) the computer equipment is accepted in the field as standard and competent and was in good working order; (2) qualified computer operators were employed; (3) proper procedures were followed in connection with the input and output of information; (4) a reliable software program was utilized; (5) the equipment was programmed and operated correctly; and (6) the exhibit is properly identified as the output in question. State v. Swinton, 268 Conn. 781, 812-13 (2004) (noting that, “we stress that these factors represent an approach to admissibility of computer generated evidence, and not a mechanical, clearly defined test with a finite list of factors to be considered,” 268 Conn. at 814);13 see Federal Deposit Ins. Corp. v. Carabetta, 55 Conn. App. 369, 375-77, cert. denied, 251 Conn. 927 (1999) (concluding that it is not necessary to produce as a witness the person who actually entered information into the computer or the programmer who designed the processing program; what is crucial is not the witness’ job description, but rather his or her knowledge of the basic elements that afford reliability and trustworthiness to computer printouts; also observing that the business records rule of Conn. Gen. Stat. 52-180 is one of convenience and that the liberal application of that statute is derived from the recognition that the trustworthiness of such documents comes from their being used in the ordinary course of business ); see Shawmut Bank Connecticut. N.A. v. Connecticut Limousine Services, Inc., 40 Conn. App. 268, 276, cert. denied, 236 Conn. 915 (1996) (“[t]he witness must be a person who is familiar with computerized records not only as a user but also as someone with some working acquaintance with the methods by which such records are made.”)
Take corporate representative depositions to satisfy the framework used in Swintonfor establishing the reliability of the computer evidence. Find out all of the ways in which the trucking company relied on this computer information (e.g. identifying mechanical problems, increasing fleet efficiency and profitability, investigating accidents, ensuring on-time pick-ups and deliveries), and establish that neither the company or its vendors have any record of a problem with the system that produced the data at the time in question. Search for trucking company and technology vendor statements about the reliability of the technology at issue. The trucking company and vendor websites14 are often helpful; as are marketing materials.
During corporate representative depositions, make sure the requirements of the business records exception to the hearsay rule are satisfied. Keep in mind that the business records exception focuses upon whether data was input (as opposed to extracted) as a regular business practice. See SKW Real Estate LP v. Gallicchio, 49 Conn. App. 563, 575-578, cert. denied, 247 Conn. 926 (1998) (testimony that computer-generated loan history prepared in the ordinary course of business contemporaneously with events described therein was sufficient) ; United States v. Hernandez, 913 F.2d 1506, 1512-13 (10th Cir. 1990), cert. denied, 499 U.S. 908 (1991) (“[s]o long as the original computer data compilation was prepared pursuant to a business duty in accordance with regular business practice, the fact that the hard copy offered as evidence was printed for purposes of litigation does not affect its admissibility.”); AMPAT/Midwest, Inc. v. Illinois Tool Works Inc., 896 F.2d 1035, 1045 (7th Cir. 1990) (data which was not “manufactured for litigation . . . [but] lifted out of regular business records” is admissible.).
It may also be necessary to depose third party representatives (i.e. from vendors such as Qualcomm, or from the manufacturer of the ECM or EDR, or from the cell phone carrier) who can speak to the reliability of their system information. For example, in preparation for the trial in Hartford, CT, plaintiffs’ counsel deposed a most knowledgeable representative of Qualcomm who testified about the contract between Qualcomm and the trucking company and the impressive reliability of the OmniTRACS positioning data. Similarly, representatives of the driver’s cell phone carrier and an IT person from the area 911 system were able to explain the reliability of the times of the important phone calls.
It is also important to make sure plaintiff’s experts have reviewed all of the pertinent electronic evidence both to comment on its reliability and to ensure a backup, expert-reliance avenue for its admission. See George v. Ericson, 250 Conn. 312, 321 (1999) (“[a]n expert’s opinion is not rendered inadmissible merely because the opinion is based on inadmissible hearsay, so long as the opinion is based on trustworthy information and the expert had sufficient experience to evaluate that information so as to come to a conclusion which the trial court might well hold worthy of consideration by the jury”)(internal quotation marks omitted.); In re Barbara J., 215 Conn. 31, 43 (1990)(“[a]n expert may base his opinion on facts or data not in evidence, provided they are of a type reasonably relied on by experts in the particular field. . . . This is so because of the sanction given by the witness’s experience and expertise…. when the expert witness has consulted numerous sources, and uses that information, together with his own professional knowledge and experience, to arrive at his opinion, that opinion is regarded as evidence in its own right and not as hearsay in disguise. . . .”)(citations omitted; internal quotation marks omitted); see also Conn. Evid. Code 7-4.
PREEMPTING OBJECTIONS TO ELECTRONIC EVIDENCE THAT IS RAW DATA
In the recent Hartford, CT trial, the trucking company (ATS, Inc.) claimed that the raw data (the Qualcomm positioning coordinates, ECM data, and cell phone times) were hearsay, lacked foundation, and were inaccurate and unreliable.15 All such objections should be overruled if discovery on these topics has been appropriately pursued.
Hearsay requires a statement (or nonverbal conduct) by a person. Conn Evid. Code 8.1. Courts across the country have held that computer-generated data is not hearsay because it does not involve “statements” or “declarants.” See Indiaweekly.com, LLC v. Nehaflix.com, Inc., 2011 U.S. Dist. LEXIS 58683 (D. Conn.), citing United States v. Washington, 498 F.3d 225, 230-31 (4th Cir. 2007) (printed result of computer-based test was not the statement of a person and thus would not be excluded as hearsay where there was testimony that data was automatically generated and the computer’s functions were reliable); United States v. Hamilton, 413 F.3d 1138, 1142-43 (10th Cir. 2005) (automatically generated header information not hearsay); United States v. Khorozian, 333 F.3d 498, 506 (3d. Cir.), cert. denied, 540 U.S. 968 (2003) (“nothing ‘said’ by a machine … is hearsay”).
In Hamilton, for instance, the Tenth Circuit agreed with the trial court in holding that computer-generated “header” information (including the screen name, subject of the posting, the date the images were posted, and the individuals’ IP address) was not hearsay:
Of primary importance to this ruling is the uncontroverted fact that the header information was automatically generated by the computer hosting the newsgroup each time [the defendant] uploaded a pornographic image to the newsgroup. In other words, the header information was generated instantaneously by the computer without the assistance or input of a person. As concluded by the district court, this uncontroverted fact places the header information outside of Rule 801(c)’s definition of ‘hearsay.’ In particular, there was neither a ‘statement’ nor a ‘declarant’ involved here within the meaning of Rule 801….
413 F.3d at 1142-43.
Similarly, computer-generated information from the Qualcomm proprietary positioning system, or data from an ECM or EDR should not be considered hearsay. In the trial involving ATS, Inc. and its driver in Hartford, CT plaintiffs’ experts on engine control modules and downloads testified that the information was the raw data from the DDEC-IV module (e.g. that it did not involve human statements) and explained why it was reliable.
All of the raw data (from the OmniTRACS system, the DDEC-IV modules, the driver’s and his wife’s cell phone carrier, and the 911 system) was relevant to establishing precisely when the crash occurred and was material to and highly probative of what the truck driver had been doing prior to the crash. It also refuted much of his pre-trial deposition testimony and was therefore evidence of his lack of credibility.
OVERCOMING OBJECTIONS TO ELECTRONIC EVIDENCE THAT IS THE RESULT OF HUMAN INPUT
Another type of computer evidence, that which requires some human input in its creation (such as Qualcomm messages16), may be admitted under the business records exception to the hearsay rule, and as statements of a party opponent.
Such computer-stored records are admissible as business records if they are kept in the course of regularly conducted business activity, it was the regular practice of the business to make the records, and the records were made at or near the time when the acts, transactions, or events occurred, as shown by the testimony of the custodian or other qualified witness. First Union National Bank v. Woermer, 92 Conn. App. 696, 706 (2005), cert. denied, 277 Conn. 914 (2006); New England Sav. Bank v. Bedford Realty Corp., 246 Conn. 594, 600-606 (1998); see generally Conn. Gen. Stat. 52-180; Conn. Evid. Code 8-4 and 8-7 (Official Commentary); D. Faulkner & S. Graves, Connecticut Trial Evidence Notebook (2d ed. 2011 rev.) B-17 – B-21 (Business Record Statute), C-31 – C-32 (Computer Evidence).
Business records, computer printouts included, must be authenticated by a competent witness who can testify to the statutory predicates. Competent witnesses include those with some degree of computer expertise, who have sufficient knowledge to be examined and cross-examined about the functioning of the computer. American Oil Company v. Valenti, 179 Conn. 349, 359-60 (1979).
American Oil is the seminal case in Connecticut for the admissibility of computer records through the business records exception to the prohibition of hearsay. American Oil established a general principle for courts to apply in ruling on the adequacy of the foundation for such records. “In view of the complex nature of the operation of computers and general lay unfamiliarity with their operation, courts have been cautioned to take special care to be certain that the foundation is sufficient to warrant a finding of trustworthiness and that the opposing party has full opportunity to inquire into the process by which information is fed into the computer.” American Oil v. Valenti, supra, 179 Conn. 359 (internal citation and quotation omitted).17
Electronic evidence that is the result of some human input (as opposed to automatically generated by a machine) may also be admitted pursuant to Conn. Evid. Code 8-3(1) governing the admission of statements by a party opponent. See generally D. Faulkner and S. Graves, Connecticut Trial Evidence Notebook, supra, A-13 – A-15 (Admission of a Party Opponent). Any relevant out-of-court statement by a party declarant may be admitted against him by his opponent. “There is no requirement that the statement be against the interest of the party when made or that the party have firsthand knowledge of its content. Basically, the only objection that can be made to the admission of a party/opponent is that it is irrelevant or immaterial to the issues.” C. Tait, Connecticut Evidence (3d Ed. 2001) 8.16.3 (c), pp. 589-90; see also State v. Calderon, 82 Conn. App. 315, 325 (statements made out of court by party opponent universally admissible when offered against him as long as statements relevant, material to issues in case), cert. denied, 270 Conn. 905, 853 A.2d 523, cert. denied, 543 U.S. 982, 125 S. Ct. 487, 160 L. Ed. 2d 361 (2004). “The rule can be neatly summed with the phrase ‘everything you say can be used against you.'” C. Tait, Connecticut Evidence, supra, 8.16.5, p. 594.
The abundance of information available from the trucking company and truck itself can be compelling evidence that the defendants violated the rules of the road. Admission of this evidence at trial is the result of a process which ideally begins shortly after the crash, continues throughout discovery, and culminates (often contentiously) at trial through defense motions in limine. In short, defendants in a truck crash case will make every conceivable argument for keeping damning electronic data and information out of evidence; but if plaintiff’s counsel has made good use of discovery and legal authority, this evidence should be admitted. Proper planning is essential and a key to winning big in a trucking case.
1See 49 CFR Parts 385, 386, 390 and 395 and Federal Motor Carrier Safety Administration (“FMCSA”) Final Rule dated 12/27/11, 76 FR 81134. In summary, commercial truck drivers (a) may drive a maximum of 11 hours after 10 consecutive hours off duty; (b) may not drive beyond the 14th consecutive hour after coming on duty; and (c) may not drive after 60/70 hours on duty in 7/8 consecutive days. (A driver may restart a 7/8 consecutive day period after taking 34 or more consecutive hours off duty.) See 49 C.F.R. 395.3.
Effective July 1, 2013, truck drivers cannot drive after working eight hours without first taking a break of at least 30 minutes. Drivers can take the 30-minute break whenever they need rest during the eight-hour window. See 49 C.F.R. 395.3(a)(3)(ii). Also effective July 1, 2013, truck drivers who maximize their weekly work hours are required to take at least two nights’ rest when their 24-hour body clock demands sleep the most-from 1:00 a.m. to 5:00 a.m. See 49 C.F.R. 395.3(c).
Pursuant to recent changes to the rules, driving (or allowing a driver to drive) 3 or more hours beyond the driving-time limit may be considered an egregious violation and subject to maximum civil penalties. See FMCSA Final Rule: Hours of Service of Drivers, 76 FR 81134 (Dec. 27, 2011). See 49 C.F.R. Part 386, Appendix B, (a)(6).
2 Verdict rendered on April 20, 2011
3 Qualcomm’s OmniTRACS system provides mobile users with a two-way message and position location service using satellites.
4 An electronic control module such as those produced by Detroit Diesel Corporation or an event data recorder (EDR) (also known as the “black box”) such as those made by Vorad or Siemens may contain a wealth of information such as vehicle speed, hard breaking events, vehicle top speeds, last stop, cruise control settings, and vehicle monthly activities (i.e. engine time spent idling, driving, or off).
5See 49 C.F.R. 392.80 (prohibiting texting while operating a commercial motor vehicle).
In December, 2011 the National Transportation Safety Board (NTSB) recommended a ban on all non-emergency cell phone use while driving. This ban would apply to all cell phone use whether hand held or hands free. The NTSB has analogized cell phone use while driving to DUI. In 2010 the NTSB reported 3,092 fatalities caused by distracted driving but believed the actual number to be higher. A human factors expert with experience in driving safety will be able to testify to driver distraction caused by cell phone use.
6 The hours-of-service regulations apply to motor carriers (trucking companies) as well as their drivers. A trucking company is likely aware of any hours-of service violations as a result of tracking technology, which often has the particular ability to alert for FMCSR hours-of-service violations.
7 The Federal Motor Carrier Safety Administration may conduct an audit of a motor carrier’s records upon a timely complaint related to a serious injury or fatality. The authors would encourage such a complaint routinely. The authors were also advised by the FMCSA that the Inspector General’s Office in Washington DC may further pursue investigation and recommend criminal charges if appropriate on a case-by-case basis although we have not seen criminal charges pursued in cases in which we have been involved.
8 With the crash that was the subject of the recent trial in Hartford, CT, the trucking company investigator was on scene before the extrication of the victim had been completed.
9 In detailing the information to be preserved be sure to include cell phone text messages. Cell phone carriers do not typically maintain text messages. Those would exist only on the phone itself or, if backed up by a computer, on that computer.
10 The FMSCA has used the terminology “electronic mobile communication / tracking systems” and “electronic mobile communication / tracking records” to refer to technologies and records that allow a motor carrier to identify the location of a motor vehicle or driver, or that allow a motor carrier to send or receive messages to or from its drivers. See FMSCA Policy on the Retention of Supporting Documents, 75 FR 32984-32987 (June 10, 2010).
11 Loss prevention is an important issue to the trucking company. Some companies prevent losses by outfitting large, expensive assets with GPS tracking devices. GPS tracking devices (which are different from the GPS navigation systems the trucking companies use for route information) are designed to provide specific real-time feedback to an end user. This information includes location, direction of travel, speed, and “geo-fencing” (sending alerts when an asset breaches a pre-set boundary on a map). Semi-trailers may also be outfitted with these devices.
12 For regulations concerning the preservation of motor carrier company records, see 49 CFR Part 379; for retention requirements for a driver’s record of duty status, see 49 CFR 395.8; for retention regulations concerning a commercial driver’s qualification and investigation file, see 49 CFR 391.51 and 391.53.
13 In Swinton, the defendant was found guilty of murder. The victim’s body was found in a snow bank and showed several crescent shaped bruises, identified as bite marks. Police made a mold of the defendant’s teeth to match the bite marks. At trial, two items of computerized evidence were critical in linking the defendant to the bite marks: computer-enhanced digital photographs of a bite mark, and an overlay of the bite marks. Two experts testified about the computer evidence. Nearly half of the Supreme Court’s lengthy opinion focused on the two pieces of computer evidence. The state claimed the computer technology was simply presenting the evidence to jurors. The defense argued the computer technology altered the original images and therefore the technology’s reliability needed to be established. Building on American Oil v. Valenti, 179 Conn. 349 (1979), the Supreme Court set forth the factors listed above but noted that the same factors would not necessarily require consideration in every case.
14 Consider using the “Wayback Machine” to access historical editions of the trucking company’s and technology vendors’ web sites.
15 For example, if the ECM data hurts the trucking company, the company will challenge the reliability of the data, claiming that the device was not functioning properly. An expert in event data recorder / electronic control module downloading and evaluation can set the record straight. Note that the devices often experience “clock drift,” but that the amount thereof can be readily calculated in order to sync the data with universal time. The data from an ECM can be downloaded onto a laptop with the appropriate software by way of an extraction file. If the investigating police officers are trained in investigating trucking accidents this may be done by them. More often a trucking company representative will conduct the download. When the data is requested in discovery, the request should be for the entire extraction file including the audit trail which may provide the date of changes to the clock/calendar, the amount of the change, and an identification to indicate who made the change.
16 Typically the trucking company’s dispatch center and drivers will communicate via OmniTRACS messages to communicate assignments, scheduling, special instructions for pick-ups or deliveries, and any problems encountered on the road.
17 In American Oil Co., the Supreme Court concluded that the plaintiff had provided an adequate foundation for admitting computer printouts, reasoning that a person without detailed knowledge of computers who uses computer records and has only an indirect role in their production is competent to testify that the records were made in the ordinary course of business, and that the witness’ personal knowledge regarding production of the documents is a question that goes to the weight of the evidence only. Id., 357-58. “While a witness from the computer department may well be the optimal proponent of such evidence, such a person may not always be available to testify. What is crucial is not the witness’ job description but rather his [knowledge] about the basic elements that afford reliability to computer printouts. . . . The witness must be a person who is familiar with computerized records not only as a user but also as someone with some working acquaintance with the methods by which such records are made.” Id., 360-61 (internal citation omitted).