The transportation industry is always searching for new technology and best practices that can eliminate or reduce risky driving behavior, improve the overall efficiency and effectiveness of fleets, and avoid frivolous and time-consuming lawsuits. Current on-board video camera technology and analysis may provide these benefits to commercial fleets, but this technology also presents reasons for concern. What are the potential litigation pitfalls facing those commercial entities that are using or may use on-board video technology, and how can they avoid or reduce the probability of encountering those potential pitfalls?

Several vendors offer on-board video camera technology and related services to commercial fleets, two of the most prominent vendors being DriveCam and Smart-Driver. The technology and services that these vendors provide offer many risk-reducing benefits to motor carriers and others in the transportation industry. In principle, the technology is relatively simple to understand. Generally, a vendor will install one or more cameras inside of a truck’s cab. The cameras – recording video and possibly audio – will have one lens facing inward to capture the inside of the cab and another lens facing outward capturing events directly in front of the truck. By design, the cameras record on a continuous loop, but they are programmed to not save any data until there is a “triggering event.” A triggering event, based upon the change in gravitational forces, includes events such as hard braking, tight turning, or impact; a vendor has the ability to adjust the instruments to the desired sensitivity level. When a triggering event occurs, the equipment saves the video and/or audio from roughly eight (8) seconds before the event to four (4) seconds after the event. Depending upon the level of service offered by the vendor, the technology then automatically uploads and wirelessly transmits the recording to the vendor’s processing center, where an employee of the vendor may analyze the recording. Based upon this analysis, the vendor provides a report to the transportation company that includes a scoring sheet, and if the triggering event was an accident, an opinion as to whether or not it was preventable and an apportionment of fault between the parties involved. Some vendors will also offer affirmative coaching for drivers seen as demonstrating risky driving behavior.

This technology offers several notable benefits to transportation companies. One obvious benefit is that the technology would likely promote and encourage safer driving practices by a company’s drivers. A transportation company may also use the data as a teaching tool to reduce the likelihood of future accidents. Further, if a driver was involved in an accident, the recording may be invaluable in establishing how the accident occurred and confirming when the driver was not at fault. Although the aforementioned benefits are quite valuable, transportation companies must be aware of the potential risks and drawbacks of this technology, especially as they pertain to protecting the company’s legal rights in accident litigation.

If a lawsuit is brought against a company and/or its driver based upon a motor vehicle accident, one of the primary concerns implicated by the use of recorded video technology is the scope of discoverable information. In every jurisdiction across the country – including all federal and state courts – any video or audio recording captured by the cameras likely would be considered discoverable information in litigation and would have to be produced to the complaining party. Even more terrifying are the potential consequences involving any report rendered by the vendor; the default rule in litigation is that a third party’s involvement probably waives the protections otherwise afforded to confidential material between the transportation company and its attorney. Therefore, regarding a vendor’s report, a court may consider the technology vendor to be a third party, and because neither the transportation company nor the attorney created the report, a court may force the company to turn over both the recording and the report. First, this disclosure could lead to even more requests from the opposing party, who may seek to obtain access to earlier recordings and reports that may be unrelated to the triggering event at issue but which might be used to argue that the company has a history of employing bad drivers, that a specific driver has a history of accidents or unsafe driving practices, or that the company knew or should have known that the driver exhibited risky driving behavior. Second, if the vendor’s services included ranking the severity of the triggering event, providing analysis, and assessing fault – all done outside of the protections of the attorney-client privilege and work production doctrine and with no guarantee of accuracy – these reports could be catastrophic to a company’s litigation defense.

Before utilizing or implementing on-board video technology, a company should also be mindful of the associated financial costs, including the costs of acquiring and installing the technology and any ongoing service or maintenance fees. Further, the federal government and most state governments have privacy and wiretapping laws that restrict or prevent the recording of an individual’s voice and/or image without his/her consent. For example, several states would permit these recordings, but only if the company placed proper signage in the cab warning the driver and any passengers of the recording. Therefore, it is important to ensure that a transportation company understands all applicable federal and state laws before it uses this technology. Additionally, a user would also need to understand its jurisdiction’s requirements regarding the preservation of data in advance of possible litigation. Specifically, a company may have an affirmative duty to preserve all recordings and reports for a certain length of time after a triggering event; failure to do so may result in significant litigation sanctions.

Crucially, on-board video technology and services are highly customizable, and most vendors will negotiate with a transportation company to edit and tailor the structure of the technology and services to meet the needs of the company. If done properly, this tailoring can address and alleviate most, if not all, of the aforementioned litigation concerns. Only by recognizing and addressing these potential risks, however, may a transportation company completely recognize and profit from the significant benefits offered by on-board video camera technology. The Transportation, Distribution and Logistics attorneys at McNees Wallace and Nurick have significant experience with identifying and avoiding any potential litigation pitfalls associated with the implementation of new technology.