REGION
New federal regulations require more documents
New rules that went into effect at the end of 2006 could require trucking companies to produce more types of electronic documents during federal court cases. That would make it harder and more expensive for companies to defend themselves in court, said Kim Selemba, an attorney with McNees, Wallace & Nurick in Harrisburg.
Trucking companies have many kinds of electronic records, ranging from shipping invoices to e-mail messages. The new rules mean companies need to keep those records for up to four years. Companies often need those records to defend themselves against lawsuits, such as after accidents.
Companies will spend more money backing up files that are periodically erased in electronic-recycling programs. This is easier for smaller companies to accomplish because they have fewer drivers, trucks, routes and customers, Selemba said. But larger companies will require additional backup tapes and will have to temporarily stop electronic-recycling schedules.
The rules stem from the increased use of electronic documents in all industries over the past six years. Other sectors, such as government, have begun using electronic documents and data storage, which reduces the need for expensive paper and filing space.
"The transportation industry more than any other has embraced technology, including electronic documents," said Curtis Stambaugh, also an attorney with McNees, Wallace & Nurick. Stambaugh and Selemba concentrate on transportation, distribution and logistics law. Court cases involving trucking companies often end up in federal court because drivers make cross-country trips when accidents occur. If a company is based in Texas and its driver has an accident in Pennsylvania, chances are, the case will be filed in federal court.
Lawsuits involving accidents and damage to freight are two common types of cases, Stambaugh said. Electronic information such as satellite tracking of trucks, engine-monitoring devices, package tracking and even e-mail could become relevant to a court case.
"Everything and anything the driver can come in contact with is asupporting document, and it's important, especially after an accident," said Don Scikerman, safety director for the Pennsylvania Motor Truck Association.
With the shifting rules, Seikerman advises companies and truckers to save and back up all electronic documents. That way, those documents will be available when they're needed. Even still, he said, electronic documents can get erased or lost like paper documents.
"There's probably an inherent concern about whether the data will inhibit the company's ability to defend itself," Stambaugh said. "But often it proves the company and the driver were not liable."
If a company's management does not understand the rules, the firm should call an attorney to clarify the company's responsibility, Stambaugh said. And if you think the company could be sued in the future for an incident, don't erase electronic documents.
"Drivers need to be aware," Selemba said. "That duty arises as soon as he's in an accident. Steps should be taken to preserve those documents." The statute of limitations in federal court for accident cases is two years, Selemba said. Breach-of-contract suits can be filed up to four years after the dispute.
Court penalties for not producing required documents could include fines. Another sort of penalty is adverse jury instruction. That's when the judge tells the jury to assume that missing documents are detrimental to the company's case.
The new rules partially stem from an employment lawsuit, said Michael Moore, an attorney with the firm of Russell, Krafft & Gruber in East Hempfield Township, Lancaster.
Known as Zubalake v. UBS Warburg, the case established the standards for how companies should keep and handle records, Moore said. The case said companies should have well-defined retention and recycling policies for records, otherwise they could be liable for not producing those records later in court.
"They don't prescribe any time schedule," Moore said of the new rules.
Companies should consider the records they have, their importance and the expense of maintaining them. Then they should develop a policy for storage and purging.
"Generally, I think people would understand that you can't keep things forever," Moore said. Frank Costanzo, president of J.P. Donmoyer Inc., agreed that things can't be kept forever but said lawsuits can be avoided. J.P. Donmoyer, based in East Hanover Township, Lebanon County, hauls dry bulk items such as limestone regionally with 165 trucks and 190 drivers. The company's drivers seldom cross the Mississippi River.
"I would be fine by it, because we run a safe operation, a legal operation," Costanzo said of the new rules.
In most cases, J.P. Donmoyer only keeps its electronic documents for about two weeks, he said. Most other documents are kept for six months before being purged. Keeping them longer could increase costs.
"There may be some mandates we don't like, but we can fight those through our industry's lobbyist, we can challenge them, or we can just find other ways to save money," Costanzo said.
[Sidebar]
Records required
On Dec. 1, stricter federal court rules were put into place that require trucking and transportation companies to produce electronic documents the same as they would paper records in lawsuits. Here are some examples of those electronic documents:
* Bills and computer shipping records
* Dispatch records
* Service and maintenance records for the vehicle involved in the particular litigation
* Logbooks maintained by the driver involved in the case
* Supporting documentation for logbooks
* Downloads from the relevant vehicle's electronic-data module, global positioning system and engine-monitoring system
* Black-box-type records, including on-board electronic data-recording devices.
* E-mail between drivers and their home offices
SOURCE: MCNEES, WALLACE & NURICK
[Author Affiliation]
BY JIM T. RYAN
jimr@journalpub.com
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