Legal News & Updates

How to implement a “Litigation Hold” after a catastrophic injury?

After a catastrophic injury (or really any other serious accident, like a truck wreck or commercial automobile accident) in Georgia counties, such as Brookhaven, Chamblee, and Decatur, it is important not only to have the at-fault party save certain information and documentation, but you should have them implement a “Litigation Hold” too. This term sounds a bit complex; however, we can help distill it for you and share with you some of our sample, language:

Routine Document Destruction Programs

Oftentimes, companies have systems in place that will get rid of documents every so-many days. Think about a surveillance feed at restaurant or a hotel — It will usually overwrite every thirty days. You don’t want to let this happen in a catastrophic injury case in Georgia because you would loose valuable information about the accident itself and, ultimately, may not be able to prove your case without it. REMEMBER — A plaintiff has the burden of proof “beyond a preponderance of evidence” in a civil lawsuit in Georgia .

So here’s some sample language about what to say:

 Any routine document destruction programs (e.g., shredding or the recycling of backup tapes) must be discontinued immediately, and all hard copy files and electronically stored information that may be relevant, whether stored onsite or offsite, must be secured and preserved….  

Identifying Key Individuals

Another important consideration is having the at-fault company in Georgia to take the step of identifying/specifying employees, etc. that have the responsibility of keeping evidence and thus implementing the litigation hold. They can be record custodians, IT personnel, employees, officers, directors, and even legal counsel. The key is making sure the company doesn’t plead ignorance, i.e. “We didn’t know what to do,” and this type of letter basically tells the what to do.

Here’s some more sample language:

You are directed to identify all employees, personnel, and other persons who have access to potentially relevant documents, data and information and notify them in writing of the Litigation Hold…. 

Monitoring & Compliance

To close out the letter, please consider making sure that the company that caused the accident in Georgia knows to follow-up and be vigilant about the litigation hold. A great example — New employees don’t always know about accidents that may have happened before their hire date, but nevertheless, they may still need to do things in their current job with holding information about the accident. So let them know too!

A last bit of sample language:

You are further directed to monitor compliance with the Litigation Hold including periodic follow-ups with the Noticed Persons and notices to new employees regarding the Litigation Hold to insure that documents, including ESI, are not destroyed inadvertently….

In sum, litigation holds are a very important part of building a personal injury case in Georgia, especially when it involves a serious injury. Our firm routinely sends them out, and make sure that you (or your attorney) do the same. It’s simply good practice.

Feel free to let us know if you have any more questions about catastrophic injuries or would like to see one of our full letters in cases. We’re here for you: Kevin@patricktriallaw.com or (404) 566-8964. Our personal injury cases have stretched throughout Georgia, and our offices are close to those of you in Brookhaven and Chamblee. Happy to travel to you too!

What items should a trucking company save after a collision?

Building off the earlier blog post about preservation/spoliation of evidence after a truck wreck in Georgia, it’s perhaps equally important to know what to request that the trucking company along with the driver, and even the insurance company preserve after a collision. Each case is admittedly different, but there are some common things. We thought it would be helpful to make a “Top 10”  list (of sorts) of those items for you:

10. The daily logs for the driver of the subject vehicle on the day of the collision and the eight (8) day period preceding the collision;

9. The daily inspection reports on the subject vehicle for the day of the collision and the eight (8) day period preceding the collision;

8. All maintenance, inspection, service and repair records or work orders for the subject vehicle involved in this collision for the previous two (2) years;

7. Annual and other periodic inspection reports for subject vehicle involved in this collision;

6. Driver of the subject vehicle’s complete driver’s qualification file including, but not limited to: a. Application for employment; b. CDL license; c. Driver’s certification of prior traffic violations; d. Driver’s certification of prior collisions; e. Driver’s employment history; f. Inquiry into driver’s employment history; g. Pre-employment MVR; h. Annual MVR; i. Annual review of driver history; j. Certification of road test;
k. Medical Examiner’s certificate; and, l. Drug testing records.

5. Photographs of the vehicles involved in this collision or the collision scene;

4. Driver’s post-collision alcohol and drug testing results;

3. Any lease contracts or agreements covering the driver or the subject truck involved;

2. Any data or printout from on-board recording devices, including but not limited to the Engine Control Module (ECM), Event Data Records (EDR), black box or similar instrument on the truck involved in this collision;in this collision; and,

1. Any post-collision maintenance, inspection, service or repair records or invoices for the subject vehicle.

While those items certainly round out the top ten, there are a number of other valuable pieces of information to preserve after a trucking collision in Georgia. Here are the “Honorable Mentions” for our list:

1. Any e-mails, electronic messages, letters, memos, reports or other documents concerning this collision;

2. The collision register maintained by the motor carrier as required by federal law for the one (1) year period preceding this collision;

3. Any drivers manuals, guidelines, rules or regulations given to drivers;

4. Any reports, memos, notes, logs or other documents evidencing complaints about the driver; and,

5. Any DOT or State Department reports, memos, notes or correspondence concerning the driver or the subject vehicle involved in this collision.

These items can be requested by sending a formal letter, which is often referred to as a “Litigation Hold Letter” or “Spoliation Letter,” to the trucking company, driver, and insurance company. It’s always a good idea to send it right away by overnight mail and fax. (Quick tip  —  In some situations, you may want to even consider using a courier to deliver it to the register agent on the very same day.)  As always, feel free to let us know if you ever have any questions about trucking accidents in Georgia. My e-mail is kevin@patricktriallaw.com and direct number is (404) 566-8964.