Purpose of a Spoliation Letter

Use a spoliation letter to preserve information about the crash and truck involved in the crash.

Spoliation Letter

DATE

Via (delivery type)

Recipient Name/Address

RE: USDOT #

Plaintiff v. Defendant(s)

This is to notify you that I have been secured as counsel to represent (client) due to (injury, ex. the death of husband, (name)), in an accident on (date), along ((road) in (county) (state)).  

A (describe truck, ex. 2000 Kenworth Conv. White TK-St-Van) commercial motor vehicle owned by (owner) and leased to (lessee) with United States Department of Transportation (UDOT) No. #, and truck Vehicle Identification No. (VIN) operated by (driver’s name) for the benefit of ((owner) and/or (lessee)), was involved in the accident.

Pursuant to our investigation into the matter, certain physical items and routine records should be retained in anticipation of possible litigation concerning this matter.

Our investigation indicates certain documents are routinely maintained in accordance with State and Federal regulations and in the routine course of business of a commercial vehicle operation.  As of the date of the writing of this letter, your company is within the routine and required minimum retention period for those records.  You are herein notified of the possibility that certain information may be requested in this matter, and you are provided notice of our request for retention of these records pursuant to the legal discovery process.  Failure to maintain these records pursuant to our reasonable request as well as routine record retention, common to your course of business, will be assumed an effort to suppress, secrete or destroy relevant items which may be of issue in this case.  

Items of specific interests include, but are not limited to:

  1. All driver’s files to include but not limited to those maintained pursuant to the qualification, application, training, annual reviews of driver record, controlled substance/alcohol testing (49 CFR Part 382) and periodic review of subject driver, (driver’s name), which are routinely maintained by your company and required as a course of industry standard as well as compliance with the Controlled Substance and Alcohol use and Testing standards (49 CFR Part 383), Commercial Driver’s License Standards (49 CFR Part 383) and Federal Motor Carrier Safety Regulations (49 CFR Part 391).
  2. All records pertaining to the routine course of business, dispatching, trip monitoring, dispatch progress reports, communications with the driver of the subject vehicle, pay records and bills of lading of the subject driver, for the subject accident date and all such documents for a period of six (6) months preceding the subject accident.
  3. All records pertaining to the routine course of business, dispatch logs, driver call-in logs, telephone records of driver/dispatch communications for a period six (6) months preceding the subject accident (49 CFR 395.8(k)).
  4. All fuel receipts, toll receipts, hotel/motel receipts, meal receipts of subject driver and vehicle for a period six (6) months preceding the subject accident (49 CFR 395.8(k)).
  5. All driver’s daily logs maintained pursuant to 49 CFR Part 395.8 of the Federal Motor Carrier Safety Regulations AND SUPPORTING DOCUMENTS (49 CFR Part 395.8(k)(1)) for subject driver.
  6. All driver’s daily inspection reports on these and all drivers of your company pursuant to 49 CFR Part 396.11 and 396.13.
  7. All mechanical or electronic records by any on-board recording, satellite or other communication device of the subject vehicle, to include but not limited to, tacographs, Tripmaster™, Highway Master®, ARGO Fleet Management System™, Cadec™, Detroit Diesel IRIS® Infrared Information System, Triplogger®, QualCom™ Trip Reports, OmniTrac®, DataTrax/GPS®, AMSC® (American Mobile Satellite Corp.), any satellite locator records, any vehicle tracking records or any similar device (if your vehicles are so equipped).
  8. Any and all maintenance records on vehicles subject to your control, to include but not limited to, the truck involved in this accident.  
  9. Any and all maintenance records maintained pursuant to 49 CFR Part 396 of the Federal Motor Carrier Safety Regulations.  
  10. Any and all records produced or received pursuant to inspections by State or Federal officials to include “Compliance Reviews” (audits), “Driver/Vehicle Inspection Reports” and/or “Out of Service” reports produced under the motor Carrier Safety Assistance Program (MCSAP) or any related inspection program.
  11. Any and all records maintained on the truck involved in the collision with vehicle identification number (VIN).  
  12. Any notes, records, or statements produced to facilitate completion of the accident register pursuant to compliance with 49 CFR Part 390.15 of the Federal Motor Carrier Safety Regulations.
  13. A copy of the accident register and reports filed pursuant to 49 CFT Part 390.15 of the Federal Motor Carrier Safety Regulations.
  14. Any records of the weighing of any vehicles subject to your control pursuant to a bill of lading or any weighing of vehicles subject to your control by State or Federal officials pursuant to weight control and enforcement.  Any and all records that adequately support financial and operational data required by the U.S. Department of Transportation pursuant to 49 CFR Part 379, “Preservation of Records,” and Appendix A to this part.
  15. All IFTA (International Fuel Tax Agreement) reports of the subject vehicle for the annual quarter of the collision and the preceding quarter.  
  16. Copies of all printed and/or preserved mechanical or electronic records, trip reports by any on-board recording Electronic Control Module (ECM) or Motor Vehicle Event Data Recorder (MVEDR) commonly known as a “black box” of the subject vehicle, to include but not be limited to, devices such as Cummins Celect™, Cummins Quik-Link®, NEXIQ Pro-Link®, Detroit Diesel Pro Driver®, Detroit Diesel DDEC III® & DDEC IV®, Caterpillar Fleet Information System®, Caterpillar ADEM® or any similar device (if your vehicles are so equipped).

Our preliminary investigation indicates that these are records which are required and routinely maintained by lawfully operated motor carriers to comply with the Federal Motor Carrier Safety Regulations, and which may be extremely relevant to this matter.  As the records are required to be retained in the normal course of business and must be produced within 48 hours, excluding Saturdays, Sundays and holidays (49 CFR Part 390.29) this will require no unusual or burdensome efforts.  The request herein is formal notification to insure no spoliation of these records and that they are not lost or destroyed.  

Attached is the official interpretation of “Supporting Documents” by the Federal Motor Carrier Safety Administration (Formerly the USDOT / Office of Motor Carrier Safety).

49 CFR 395.8 states with respect to “Supporting Documents” as follows:

Supporting documents are the records of the motor carrier which are maintained in the ordinary course of business and used by the motor carrier to verify information recorded on the driver’s record of duty status.  Examples are: Bills of lading, carrier pros, freight bills, dispatch records, driver call-in records, gate record receipts, international registration plan receipts, international fuel tax agreement receipts, trip permits, port of entry receipts, cash advance receipts, delivery receipts, lumper receipts, interchange and inspection reports, lessor settlement sheets, over/short and damage reports, agricultural inspection reports, CVSA reports, accident reports, telephone billing statements, credit card receipts, driver fax reports, on-board computer reports, border crossing reports, customs declarations, traffic citations, overweight/oversize reports and citations, and/or other documents directly related to the motor carrier’s operations, which are retained by the motor carrier in connection with the operation of its transportation business.  Supporting documents may include other documents which the motor carrier maintains and can be used to verify information on the driver’s records of duty status.  If these records are maintained at locations other than the principal place of business but are not used by the motor car4rier for verification purposes, they must be forwarded to the principal place of business upon a request by an authorized representative of the FHWA or State official within 2 business days.  

[REQUEST FOR INSPECTION OF TRUCK]

Further, this correspondence will also serve to memorialize that this is a formal request to inspect the subject vehicle involved in the subject collision.  The (decedent’s representative) requests a non-destructive examination of the subject vehicle specifically including, but not limited to, access to the subject vehicle for inspection, and that (J.B. Expedited Services Inc.) and/or (C&M Transport, Inc. and driver’s name) do, or permit, the following:

  1. Provide access to the vehicle to include the ignition key and other keys or access codes as may be necessary to examine the vehicle, its mechanical components, storage compartments and allow recording or downloading of mechanical or electronic on-board recording Electronic Control Module (ECM) or Motor Vehicle Event Data Recorder (MVEDR) commonly known as a “black box” of the subject vehicle, to include but not be limited to, devices such as Cummins Celect™, Cummins Quik-Link®, NEXIQ Pro-Link®, Detroit Diesel Pro Driver®, Detroit Diesel DDEC III® & DDEC IV®, Caterpillar Fleet Information System®, Caterpillar ADEM® or any similar device (if your vehicles are so equipped).  In the event that immediate access to the truck cannot be provided in the county where the accident occurred, then it is specifically requested that measures be taken to download all such information before it is lost so that it may be preserved for purposes of litigation.  
  2. Provide access to the vehicle to start the engine, charge the air reservoirs and allow brake system examination and testing.
  3. If the vehicle’s engine cannot be started or the air brake system has been compromised so it will not retain air pressure, remote air pressure supply may be used to charge the system for examination and testing.
  4. Air pressure supply lines and air pressure gauges may be inserted at points that will not change adjustment of the foundation brakes of the subject vehicle.  
  5. The vehicle may be moved or lifted onto portable scales for the purpose of ascertaining the vehicle’s weight.
  6. Items of evidence located that may be lost, contaminated or destroyed will be identified, photographed and turned over to appropriate representatives of the parties using reasonable evidence storage practices.  

Accordingly, please contact my office to arrange a mutually convenient time for the examination of the subject truck.  If the subject truck is not under the control of (driver’s name) and (J.B. Expedited Services Inc. and/or C&M Tranport Inc.), please provide information as to its last known whereabouts, and take all reasonable measures to ensure its preservation.  Also, if the subject truck and trailer is no longer under the control of (driver’s name) and (J.B. Expedited Services Inc. and/or C&M Tranport Inc.), then please provide a similar model which is similarly configured for purposes of examination.  

Further, of specific vital importance is that the Log Book of (driver’s name) not be altered, destroyed, or tampered with so that it is preserved for evidentiary purposes.  

Additionally, it is requested that ((owner) and/or (lessee)) preserve all records identified in the attached Exhibits A, B, C, and D.

This request will serve to state the vital importance that the records and vehicle identified herein be maintained and preserved for purposes of litigation such that no spoliation or suppression of material with potential evidentiary value occurs.  Failure to preserve the material identified herein will result in court action seeking to draw an adverse inference or presumption that such evidence, if preserved, would have been unfavorable to (driver’s name) and ((owner) and/or (lessee)).  

I await your reply.  

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