Direct answer: Name the systems. A truck crash can leave data in the ELD, the engine module, telematics, cameras, phones, dispatch and shop software, and some of it shows what the driver and carrier knew. Your letter should list each source with dates, a custodian and a usable file format. A vague demand for “all electronic evidence” won’t tell a carrier or its vendor what to stop overwriting.
Start with the collision question
Data is only worth chasing if it answers a question about this crash. How fast was he going? Did he brake? Those are the obvious ones. Hours, route, a warning or dispatch message, a bad part and the moments after impact can matter just as much.
Pick the question first and work backward from it. Find the person or company in charge of that safety task, the device that recorded it, and someone who can explain the record.
Trucking companies spread information around. The driver has some of it. The carrier has more. The truck’s owner, a repair shop, a telematics vendor, a shipper, a broker or a customer might hold the rest. Sometimes the carrier runs an app and a vendor hosts the data behind it. Your plan has to reach whoever controls a source that matters. That list looks a lot like the list of parties who may be liable for a commercial truck crash, and the truck accident litigation hub walks through who those parties usually are.
Which records may matter?
ELD and hours-of-service records
An electronic logging device tracks a driver’s duty status. It also keeps the edits to those entries, plus supporting documents and account or transfer details. Ask for the specific driver and truck, the dates, the original export and the edit history. Ask for whatever explanation the system gives, too.
Not every truck or trip needs an ELD, though. 49 C.F.R. § 395.8 has exceptions, including some limited-use and older-vehicle situations.
If the carrier is covered, § 395.8(k)(1) makes it keep duty-status records and supporting documents for at least six months from receipt. Section 395.22(i) adds a six-month backup copy of ELD records. That copy has to sit on a device separate from the original, and the driver’s privacy has to be protected.
Those six-month rules are about ELD records. They don’t set a clock for dashcams, phones, telematics or shop software. Don’t assume they do.
Engine and event data
The engine control module and other onboard systems might store speed, braking, throttle or fault events. It depends on the truck and what’s installed. So pin down the hardware first: the tractor, the engine, the module, and any other part that could hold data.
Next, find out who can download it and what tool they need. A repair might change the data, and so might more driving. Ask about both. Then ask what the export actually contains.
Keep the truck and the module as they are. If someone wants to download or inspect, settle the details first. Who does the work, and with what equipment? How does the file get copied? How does the other side watch or record it? Data varies by make, model and setup. Don’t promise a field exists until someone has checked.
Telematics, GPS, dispatch, and route data
A fleet platform may show the truck’s route and stops. It may log alerts, geofences, messages and arrival times. Dispatch software is different. That’s where you find instructions, schedule changes, customer messages and the driver’s acknowledgments.
Narrow wins here. List the platform, the data fields, the trucks and the accounts. Ask only for a short stretch of time before and after the crash. Name the custodians at the carrier and at the vendor, and the export format.
Clocks are a mess. The camera may run on UTC while the log uses terminal time, or a device clock may never have been synced at all. Exports differ too, since some convert the time and some don’t. Check every timestamp against an event you can prove some other way.
Forward-facing and cab video
Find every camera that might have caught the truck or the crash. Forward-facing and cab-facing cameras, sure. But also side, rear and trailer cameras. A nearby vehicle may have caught it too, if the facts point that way.
Each camera has its own settings. What starts it? How long does it record before it loops and writes over itself? Does it tag events, pick up audio, push files to the cloud? Who can pull them, and for how long? Ask for the whole stretch of video, approach to aftermath. A few seconds of the impact won’t do.
Get the native file if it exists. Get the player software or export instructions with it, the metadata, and any log of when a clip was made, viewed, tagged, copied or deleted. A screen recording or PDF is fine for a first look. But it can drop frames, audio, timestamps or context. Whether a copy is good enough depends on what’s in dispute.
Phones, messaging, and other applications
A driver’s phone can hold calls, texts, a dispatch app, navigation and safety alerts. The carrier, customer and vendor may have messages of their own. Ask narrowly. Name the people and accounts, the subject, and a short window around the crash.
Phones raise real privacy and access issues. Use a process that fits the issue and the law that applies. Don’t ask for open access to someone’s personal phone.
Maintenance, inspection, and diagnostic platforms
Maintenance systems hold inspection forms, defect reports and repair orders. They show the work done, the parts, the diagnostic codes and any out-of-service decision. Preserve the native entries along with revision history, attachments, vehicle IDs and shop or vendor records.
Alleging a defect? Then tie each request to the part, symptom, inspection, repair or return-to-service decision you’re fighting about.
Make the preservation request specific
A good preservation letter identifies the crash: date, place, trucks and trailers, driver, and the trip or shipment. Then it names the electronic sources to keep. Name actual systems and categories. A catch-all phrase won’t do the job.
Routine deletion needs to stop for those sources. Say that. And if an outside vendor hosts or controls the data, ask for its name.
Keep the letter and whatever comes back. Then follow up to learn what was actually kept, who collected it and when, how and in what format, and whether there are edits, gaps or a backup. “We have the video” doesn’t say which camera, what time span or which version.
Once suit is filed, Texas Rule of Civil Procedure 196.4 applies. A request for electronic or magnetic data has to specifically ask for that form and say what production format you want. The rule covers data reasonably available in the responding party’s ordinary course. If reasonable efforts can’t retrieve or produce it as asked, the party must make a compliant objection.
And if the court orders production that takes extraordinary steps, it must also order the requesting side to pay the reasonable cost of those steps. So build the request around the crash issue and what the system can really do.
Connect the file to a witness and a claim
Ask where each record came from. Somebody or something created it. Find out what, and how your copy got made. You’ll also want to know how the system stores and edits data, how long it holds on to it, and who has access.
Drivers explain their own log entries. Safety managers explain policy, and who changed what. For a platform export you may need the vendor. It depends on the record and what you’re proving with it: liability, or the value of the damages claim.
Texas Rule of Evidence 901 requires the proponent to offer evidence sufficient to support a finding that an item is what the proponent claims it is. Rule 1001(d) treats an accurate, readable output of electronically stored information as an original.
Neither rule makes an export self-authenticating. Neither one answers hearsay, completeness or relevance objections. You still need the export method, the system context, the metadata and a witness who knows the system.
Spoliation in Texas turns on the facts too. In Brookshire Brothers, Ltd. v. Aldridge, 438 S.W.3d 9 (Tex. 2014), the Supreme Court of Texas set out two steps. The trial court decides whether spoliation happened. Then it picks a proportionate remedy.
A spoliation jury instruction is a severe remedy. It generally takes a finding that the party specifically intended to conceal discoverable evidence and that a lesser remedy wouldn’t cure the prejudice. There’s a narrow exception when negligent loss irreparably deprives a party of a meaningful ability to present its claim or defense.
Write down what should have been preserved and what really happened to it. Don’t expect the missing file to prove the case alone.
When a company says the data is unavailable
There are several possible explanations. The event never got recorded, or it was overwritten before anyone asked, or a vendor has it. A backup sometimes exists. Another source might rebuild part of the timeline.
Pin down the retention rule and system settings in place that day, and the date the data disappeared. Find out who knew about the crash or claim by then and what anyone did to save it. Then see what other records survive.
Requests can also go too far. Asking for “all electronic evidence” for every driver, customer, device and year invites a burden or proportionality objection. It also doesn’t point to the records that matter. Narrow it by issue, person, vehicle, system, dates and data type.
Texas discovery rules allow limits when discovery is cumulative, available from a more convenient source, or disproportionate to the needs of the case. A tight request is easier to answer. It’s easier for a judge to evaluate, too.
Questions to ask about a production
- What system, device, account and truck did this come from?
- What dates does it cover, and on what clock?
- Is it a native export, a report, or a screenshot? What’s missing from this copy?
- Can users edit or annotate it? Is there an audit trail?
- Was it copied before a repair, a replacement, a routine overwrite or a system change?
- Who at the vendor or the company can explain the system and the export?
- What other source could back it up or contradict it?
Discovery and deposition strategy
Interrogatories tell you who and where. Which companies, custodians and vendors? Which devices, accounts and repositories? Who ran the safety function at issue? Requests for production get you the core records and the system documentation. Requests for admission are for points the other side can fairly admit or deny. The advanced truck accident litigation guide covers the broader discovery sequence.
Then depositions. There’s the fact witness with personal knowledge. There’s the corporate designee, who prepared on what the company knows. And if nobody else can explain how the system works, there’s a vendor or forensic witness. Which ones you need depends on the record and the issue.
Lay the exhibits out in time order. For each one, cover who made it and why, whether edits show, what clock it runs on and how long it’s kept. Ask what the company did about it. Ask if anything is missing.
With a corporate witness, nail down what sources they prepared from and who they talked to. And keep two things apart: a witness who doesn’t personally know something, and a company that doesn’t have the information.
Chapter 72 and the purpose of corporate proof
Chapter 72 may affect trial sequence and admissibility. Know which phase of trial you’re in. Know the permitted purpose for each kind of corporate proof. Not all of it is necessarily excluded. The answer turns on the claim, the evidence and the procedural posture.
Related reading
- Advanced Texas Truck Accident Litigation Knowledge Hub
- Advanced Texas Truck Accident Litigation Guide
- Who Can Be Held Liable for a Commercial Truck Accident in Texas?
Founding Attorney
Aaron A. Herbert is a Texas attorney, Board Certified in Personal Injury Trial Law by the Texas Board of Legal Specialization.
Education
- Texas A&M University (B.S. Criminal Justice, 1999)
- University of Oklahoma College of Law (J.D., 2002)
Professional background
For over a decade he has shown an unwavering commitment to clients who were seriously injured by major accidents and industrial catastrophes. During that time he has earned the reputation as one of America’s most aggressive trial lawyers by achieving noteworthy recoveries from judges and juries, as well as substantial settlements prior to trial, the majority of which contained negotiated confidentiality agreements at the request of the defense. When asked about these cases, Mr. Herbert has said that each case not only justified the recovery level, but that no one would trade places with any one of these victims in return for any amount of money, once they know the facts and severity of the injuries and tragedy involved. According to Mr. Herbert, “there can be no substitute for passion, preparation and persistence in the practice of law.” He is known not only for this tenacious preparation, but also for his imagination in the courtroom. He is passionate and persistent in seeking to obtain the maximum case value for each individual client at trial or through settlement, while reducing the stress of litigation on his clients.
Born and raised in Dallas, Texas, Mr. Herbert enlisted in the United States Marine Corps after high school and later received an Honorable Discharge. After the Marines, he obtained a Bachelor of Science in Criminal Justice from Texas A&M University, then a Juris Doctorate from the University of Oklahoma College of Law. There he graduated in the top of his class and became an eternal Sooners Football fan. Aaron has worked as a zealous advocate for injured clients at several boutique personal injury litigation firms where he amassed numerous jury verdicts. After spending a year as the top earning litigation attorney at a firm that frequently tops verdict search as one with the highest number of trial wins in Texas, Aaron accepted a position as the managing pre-litigation attorney at another Dallas personal injury firm. Over the next seven years he transitioned to the managing litigation attorney, and that firm grew to one of the largest personal injury firms in Dallas. In 2010 he formed the Law Firm of Aaron A. Herbert, to get back to a focus on developing each individual case and maximizing case value for each client.
Mr. Herbert practices law with the belief that a well taken care of, highly engaged and motivated team of employees working in a cooperative team environment will result in superior representation and great results for the firm clients. He believes in always setting a goal of achieving the best possible results for each and every client.
Professional affiliations and publication
Professional Associations
- Licensed to practice in Texas (2002)
- Board Certified in Personal Injury Trial Law, Texas Board of Legal Specialization (2008)
Publications
- Litigating Dog Bite Cases, Texas Dog Law Seminar, Dallas 2009
Member
- State Bar of Texas
- American Bar Association
- American Trial Lawyer Association
- Texas Trial Lawyers Association
- Dallas Trial Lawyers Association
- Dallas County Bar Association
- Tarrant County Bar Association
- Million Dollar Advocates Forum
- National Trial Lawyers – Top 100 Trial Lawyers
Texas Bar #24036761 · The Law Firm of Aaron A. Herbert, P.C. · Dallas, Texas
This article provides general information about Texas law and evidence preservation. It is not legal advice for a particular case. Preservation duties, applicable regulations, and admissibility depend on the facts and the systems involved. Consult a Texas attorney about a specific collision.