Trial Magazine

A vehicle’s “event data recorder” (EDR)—sometimes referred to as a “black box”—was originally intended to record the data used by the air bag sensing system in deployment and, in some cases, near-deployment situations.¹ Because each vehicle manufacturer designs its own device, no uniform standard was in place with respect to the EDR’s configuration.² Many manufacturers even denied that their vehicles contained an EDR,³ instead using names such as “sensing and diagnostic module.”

In 2006, however, federal regulations went into effect to ensure that EDRs recorded data that could be used to investigate crashes and evaluate safety equipment performance.⁴ To standardize available information, the regulations provided formatting and accuracy standards for some of the data—for example, speed and engine revolutions per minute—collected by the EDR.⁵ But the regulations left other standards, including longitudinal and normal acceleration, to the manufacturer’s discretion.⁶ The regulations also set forth the information to be recorded and the intervals at which that data is to be recorded.⁷

The regulations apply to passenger cars, multipurpose passenger vehicles, trucks, and buses with a gross weight of 8,500 pounds or less and an unloaded vehicle weight of 5,500 pounds or less.⁸ But they apply only to vehicles equipped with an EDR and manufactured on or after Sept. 1, 2012.⁹ Accordingly, the presence of pre-2012 vehicles on the road means that you must research the particular vehicle involved to determine if it is equipped with an EDR and, if so, the parameters of what it records.

Available Information

The historical lack of standardization makes an exhaustive list of available information difficult to construct. For example, depending on the make, model, and year, passenger vehicles can contain engine control modules (ECMs), power train control modules (PCMs), body control modules (BCMs), and air bag control modules (ACMs),¹⁰ with information including but not limited to time relative to air bag deployment, throttle position, acceleration, brake status, seat belt status, vehicle speed, velocity change, air bag status, and ignition cycle count.¹¹

Data also may be available from the infotainment and telematics systems. Infotainment refers to the in-dash information and entertainment centers, such as hands-free voice technology, apps, and integrated GPS and 4G connectivity capabilities. Telematics refers to the vehicle’s ability to connect remotely to an outside data source to feed information back to the vehicle, such as OnStar. These systems can act as a secondary black box, storing information that an EDR will not record, such as call logs, contact lists, text messages, social media feeds, and navigation history.

Heavy trucks and buses may have a wide variety of data recorders or ECMs that can contain vehicle configuration data, trip and event data recording, a last stop record, incident event reports, engine usage histograms,¹² heavy braking, and speed history.¹³ If equipped with a vehicle onboard radar, or “Vorad,” the truck’s or bus’s speed, turn signal status, brake status, alert status, and turn rate also may be available.¹⁴ Vehicles with Qualcomm, telematics, or a wireless fleet management system may be able to report the vehicle’s real-time location, historical location, driver-to-dispatch two-way texting, time on breaks, engine idle time, time at full throttle, and cruise control status, among other information.¹⁵ Finally, trucks and buses also may be equipped with digital video recorders, GPS monitoring, and cell phone usage data.¹⁶

Use of the Data

Information taken from EDRs often appears in hexadecimal coding, which consists of a two-digit string of characters using numbers between zero and nine and letters between A and F.¹⁷ The code is then translated into decimal codes and interpreted with various tables.¹⁸ Because the process for retrieving the data poses certain risks, such as erroneous data or inadvertent destruction of the data,¹⁹ it is crucial to hire an expert to both retrieve and interpret the data.

Once the expert has downloaded and interpreted the data, the information can be used to reconstruct the scene. Courts have allowed experts relying on such data to offer opinions about the speed and orientation of vehicles and whether a particular piece of equipment was functioning properly.²⁰

In Hiropoulos v. Juso, the court even permitted an expert to base his opinion on data retrieved from the vehicle despite never having examined the physical scene of the incident.²¹ Despite objections, the court noted that “the fact that [the expert] did not personally examine the scene of the accident does not necessarily undermine the validity or usefulness of the data provided by the in-dash camera, the event data recorder or the PC Crash program.”²²

It would be “irrational and impractical,” the court said, “to enforce any outdated rule that requires an expert to personally investigate the scene of the accident, when today’s technology is capable of assisting the expert in doing the same (or perhaps a better) job.”²³

Obtaining the Data

Given its importance, take prompt action to ensure preservation of the data. If it is early on and a third party or the opposing party has the vehicle in its possession, immediately file a petition for a temporary restraining order or preliminary injunction with the court. Due to the sensitive nature of an EDR, request that the court order the parties to refrain from moving, repairing, or removing the vehicle; removing the EDR; or retrieving or attempting to retrieve the data.

Defense counsel likely will become involved at this point, and typically an agreement is reached about inspecting and retrieving the electronic evidence. Retain a qualified expert with the necessary training and experience in downloading data from an EDR after you obtain it.

If you are concerned that the opposing party or a third party, such as law enforcement, may have already acted, you could request that their expert preserve and provide all the EDR data, as well as the electronic data points plotted while surveying the crash scene.²⁴ This way, your expert can review the data to determine whether the EDR was recording properly and can also recreate the survey points.²⁵

It is advisable to have written stipulations with opposing counsel and third parties about sharing such evidence, and experts can help you design and agree to retrieval protocols. However, discuss and plan for anything that may be considered destructive testing²⁶—failure to comply with a written agreement can lead to harsh penalties.²⁷

Many states have enacted statutes outlining ownership of recorded vehicle data and permitting its retrieval—even without the owner’s consent—if it is ordered by a court.²⁸ Moreover, in some jurisdictions, it may be possible to obtain this information before commencing a lawsuit.²⁹ Check your jurisdiction’s rules, and petition the court if faced with recalcitrant owners or third parties who control the vehicle.

Timely action, whether it’s reaching an agreement with the parties involved or seeking court assistance, can protect the evidence. But if the data is lost, it can open up the party responsible to sanctions, negative inferences, and charges of spoliation of evidence for which you may wish to file a motion.³⁰ Failing to act promptly, however, can also lead to evidence loss at no consequence to the opposing party.³¹

Providing all interested parties with the time and place of the data retrieval can avoid potential claims of spoliation of evidence.

If your client owns the vehicle, provide the opposing party with notice before attempting to retrieve the EDR data. Providing all interested parties with the time and place of the data retrieval can avoid potential claims of spoliation of evidence. If you do not provide notice, other parties may argue that the retrieval of EDR data was improperly performed.³² And if an interested party or that party’s expert cannot be present for the retrieval, have your expert make a photographic or video record of the evidence.³³ Failure to take these safety measures could open you and your client up to the same sanctions, inferences, and charges of spoliation.

EDRs provide a wealth of information to attorneys handling vehicular crash cases. But remember that many people may not even know that their vehicle contains an EDR. Prompt action is crucial to preserve this valuable information and protect your client’s interests.

Marion Munley is a partner at Munley Law in Scranton, Pa. She can be reached at mmunley@munley.com.

Notes

1. 84 Am. Jur. 3d Proof of Facts §10 (2006).

2. Kenneth H. Levinson et al., Litigating Major Automobile Injury and Death Cases §32:1 (2016–2017).

3. Id. at §32:1.

4. 49 C.F.R. §563.1 (2017). 

5. See id. §563.8(a).

6. See id. §§563.7(b), 563.78(b).

7. Id. §563.7. For example, speed, safety belt status, and whether the front air bag warning lamp was on or off are required data elements. Id. §563.7(a).

8. Id. §563.3.

9. Id.

10. The name depends on the vehicle manufacturer.

11. Levinson et al., supra note 2, at §32:5.

12. Engine usage histograms are graphical representations of the data retrieved from the vehicle’s engine that illustrate data such as the engine speed, engine revolutions per minute, acceleration, and steering input. 

13. Michael J. Leizerman, Litigating Truck Accident Cases §12:4, 491–92 (2017). 

14. Id. §12:14, at 499. 

15. See id. §12:10, at 495.

16. See generally id. §§12:9, 12:11–13. 

17. John W. Chandler & Karen Koehler, Handling Motor Vehicle Accident Cases §11A:20 (2d ed. Sept. 2017).

18. Levinson et al., supra note 2, at §32:6.

19. Id. 

20. See, e.g., Bailey v. Golden State Foods Corp., 2016 WL 4275651, at *2 (E.D. Mo. Aug. 12, 2016) (expert relying particularly on data from ECM permitted to testify as to his opinion regarding the cause of the collision, the relative positions, and the speeds of the vehicles leading up to the collision, as well as to create a simulation based on that analysis); Matos v. State, 899 So. 2d 403 (Fla. Dist. Ct. App. 2005); Bachman v. Gen. Motors Corp., 776 N.E.2d 262, 288–89 (Ill. App. Ct. 2002) (in driver’s personal injury action, delta-velocity data downloaded from similar-occurrence witnesses’ vehicles was admissible to support car manufacturer’s and others’ theory that air bag did not inadvertently deploy and cause incident); Commonwealth v. Zimmermann, 873 N.E.2d 1215, 1217–21 (Mass. App. Ct. 2007); Commonwealth v. Safka, 95 A.3d 304, 307–09 (Pa. Super. Ct. 2014), aff’d, 141 A.3d 1239 (Pa. 2016) (determining vehicle’s speed based on data recovered from an EDR in defendant’s vehicle was not novel scientific evidence and, thus, did not violate the Frye test for admissibility of scientific evidence in prosecution for homicide by vehicle).

21. 2011 WL 3273884 (D. Nev. July 29, 2011).

22. Id. at *2.

23. Id. at *3.

24. Experts use electronic surveying equipment to measure final resting positions, skid marks, scrub marks, and gouge marks. This data is then used to create a -computer-generated scale diagram to reconstruct the collision.  

25. Colin C. Murphy, Defending DUI Vehicular Homicide Cases: Creating Reasonable Doubt Through Independent Forensic Investigation, in Lawrence M. Hansen et al., Defending DUI Vehicular Homicide Cases: Leading Lawyers on Understanding DUI Cases, Developing a Thorough Defense, and Negotiating Settlements, 2012 WL 5884847, at *4 (2013 ed.).

26. Destructive testing refers to a test that by its nature will destroy or alter the evidence. For example, certain tests conducted to obtain an odometer reading from the data stored in the read-only memory may reset the odometer after it is performed.

27. See, e.g., Then ex rel. Then v. N.Y.C. Transit Auth., 881 N.Y.S.2d 367 (N.Y. Sup. Ct. 2009).

28. See, e.g., Ark. Code Ann. §23-112-107 (2017); Cal. Veh. Code §9951 (West 2017); Colo. Rev. Stat. §12-6-402 (2017); Conn. Gen. Stat. §14-164aa (2017); Me. Rev. Stat. Ann. tit. 29-A, §1972 (West 2017); Mont. Code Ann. §§61-12-1002, 61-12-1004 (2017); N.H. Rev. Stat. Ann. §357-G:1 (2017); N.Y. Veh. & Traf. Law §416-b (McKinney 2017); N.D. Cent. Code §51-07-28 (2017); Tex. Transp. Code Ann. §547.615 (West 2017); Utah Code §41-1a-1503 (2017); Va. Code Ann. §46.2-1088.6 (2017); Wash. Rev. Code §46.35.030 (2017). 

29. See, e.g., N.Y. C.P.L.R. 3102(c) (“Before an action is commenced, disclosure to aid in bringing an action, to preserve information or to aid in arbitration, may be obtained, but only by court order.”); see also Ala. R. Civ. P. 27; Ohio R. Civ. P. 34(D).

30. See, e.g., Kilburg v. Mohiuddin, 990 N.E.2d 292, 299 (Ill. App. Ct. 2013) (duty to preserve EDR found when passenger’s counsel had sent a letter to driver and owner demanding that they preserve the taxi three days after crash; passenger had filed her negligence complaint and served it on driver and owner seven days after crash, and passenger had obtained and served a protective order from court requiring driver and owner to preserve the evidence nine days after crash); Pearl River Cnty. v. Bethea, 196 So. 3d 1012, 1018–19 (Miss. Ct. App. 2015) (even negligent destruction permitted a negative inference of spoliation of evidence against county when county was on notice that it should have preserved all information relevant to crash that was in its possession and the destroyed evidence would have shed light on car’s inspection and maintenance prior to the crash), cert. denied, 202 So. 3d 616 (Miss. 2016).

31. See, e.g., Garnett v. Pugh, 2015 WL 1245672, at *6 (E.D. La. Mar. 18, 2015) (no sanctions for spoliation when defendants downloaded the ECM data within eight days of a written request for such data from plaintiff, which was not made until approximately 16 months after the crash).

32. Brian D. Casey, Electronic Witnesses: The Use of Event Data Recorders in Motor Vehicle Accidents, 80 N.Y. St. B.J. 45, 46–47 (May 2008).

33. See Dennis Donnelly, Black Box Technology in the Courtroom, 38 Trial 41 (Apr. 2002).