Spoliation

Protocol, Preservation, Spoliation

The operator of a late model Chevrolet vehicle was traveling on a darkened interstate highway when she encountered a disabled vehicle resting partially in her lane of travel.  Unable to perceive, react, and avoid the disabled vehicle in time, the front of her vehicle struck the rear of the disabled vehicle pushing it forward a substantial distance.   After the police concluded their investigation, the vehicles were released to the custody of their respective owners.  The owner of the Chevrolet placed the vehicle in its fenced parking lot, pending possible future litigation.

The impacting Chevrolet was equipped with an Event Data Recorder (EDR) capable of recording pre-crash vehicle parameters such as speed, braking, and accelerator pedal position.  An initial, post-incident forensic examination, occurring within several weeks of the incident, confirmed that the EDR survived the incident and remained intact.  Recognizing the benefit of downloading the EDR information jointly with all relevant parties in attendance, no data was obtained at that time.  However, between that time and the first of several joint-party inspections, the EDR was removed from the vehicle and was never seen again.

The primary question in the ensuring civil litigation was the speed of the Chevrolet upon impact.  All of the collision reconstruction experts roughly agreed as to the range of possible speed the Chevrolet was traveling, and strongly agreed it was traveling well above the posted speed limit.  However, one expert opined that had the EDR information from the Chevrolet been available, his analysis could have been aided and refined.   As a result, a spoliation claim was levied, ultimately resulting in a separate trial.

In the initial primary trial, the jury assigned liability to the operators of the disabled vehicle and the Chevrolet, with a slight majority of liability assigned to the former.  However, after hearing competing expert testimony at the spoliation trial, the jury revised its verdict slightly, suggesting what their initial verdict would have been had they had the benefit of the EDR information.

Ultimately, the initial liability apportionment changed only slightly after the spoliation trial; however, substantial resources were spent investigating, analyzing, and defending the claim, demonstrating the importance of following proper inspection protocols and evidence preservation.

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