The Crossroads of Cost and Due Diligence.

This post was written to incite commentary regarding the reasonable trigger to preserve and produce admissible electronic evidence from Event Data Recorders (EDRs) on passenger motor vehicles.

“Aside perhaps from perjury, no act serves to threaten the integrity of the judicial process more than the spoliation of evidence.”[1]

What is the reasonable trigger to incite preservation and production of EDR data?

Pursuant to the Federal Rules of Civil Procedure, this data can be reasonably viewed as an electronic document. We want to promote a relevant understanding that cost and undue burden are no longer the primary exclusionary means for the lack of EDR evidence preservation and; moreover, the inability to request this evidence in a motion of discovery.

A February 2005 American Bar Association newsletter publication titled, “The Duty To Preserve And Collect Electronic Evidence,” states, “Counsel has a duty, as officers of the court, and under the Rules of Professional Conduct, to ensure that evidence that one may reasonably anticipate may later become relevant is preserved.”[2] Furthermore, “The duty to preserve documents, electronically stored information, or tangible evidence based on the existence of pending, threatened, or reasonably foreseeable litigation arises under the common law.”[1]

In the 1970 Advisory Committee’s explanation of The Federal Rules of Civil Procedure Rule 34 "electronic data compilations from which information can be obtained only with the use of detection devices are included within the definition of "document.”[2] Additionally, “The term "evidence" includes...all electronically stored information on any medium and in any electronic format.”[2] In other words, the Black Box is the storage device with an internal medium on which crash data exists in its native format. This raw data file is the admissible evidence.

The Federal Rules of Civil Procedure Title V Rule 26 (b) Discovery Scope and Limits (1) Scope in General (2) Limitations on Frequency and Extent (2B) Specific Limitations on Electronically Stored Information states:

"Parties may obtain discovery regarding any nonprivileged matter that is relevant to any party's claim or defense and proportional to the needs of the case, considering the importance of the issues at stake in the action, the amount in controversy, the parties’ relative access to relevant information, the parties’ resources, the importance of the discovery in resolving the issues, and whether the burden or expense of the proposed discovery outweighs its likely benefit." And upon the "motion to compel discovery...the party from whom discovery is sought must show that the information is not reasonably accessible because of undue burden or cost.”[3]

The American Bar Association published the Civil Discovery Standards - 2004 and also addressed the same issue. When “...resolving a motion seeking to compel or protect against the production of electronic information...the court should consider such factors as: The burden and expense of the discovery, considering among other factors the total cost of production in absolute terms and as compared to the amount in controversy.”[4]

This same document also clarifies that when electronic documents are sought by a motion of discovery, it should be specifically stated. However, in the absence of such clarity, “a request for documents should ordinarily be construed as also asking for information contained or stored in an electronic medium or format.”[4]

It has been recommended that counsel, “consider whether to retain a consultant or vendor to assist with preservation and/or production of electronically stored information.”[1]

As an officer of the court, there exists a professional duty to pursue due diligence regarding the law. This pursuit might insight specific items be retained for evidence. The court seeks to "secure the just, speedy, and inexpensive determination of every action."[4]

EDR data clearly falls within the understanding of electronic documentation. The data recorded by an EDR is non-responsive and is admissible evidence. This data is pertinent to tort law and holds significant value to the determination of negligence, liability, and personal injury damages.

Currently, how are the issues of cost and undue burden being resolved?

With services by Black Box Recovery.

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David AtkinsonComment