Recently the New Jersey Assembly unanimously passed legislation limiting access to information from event data recorders (EDR) in automobiles to various people or groups, including insurance carriers, law enforcement and adverse parties in a civil lawsuit. An identical bill is currently pending in the NJ Senate Law and Public Safety Committee. Currently at least 13 other states have enacted similar statutes limiting the availability of data collection from EDRs. Other states are expected to follow the trend.
The bill defines a recording device as a mechanism whose primary function is to record or preserve data collected by various sensors or provided by other systems in the vehicle. It specifically excludes video cameras dashboard cameras, and mobile telephones with recording capabilities. The bill also makes the EDR data the property of the vehicle's owner. In order for law enforcement to obtain the EDR data, they must first obtain a warrant, which requires a showing of probable cause. In order for an adverse party to obtain the EDR data, they must produce a discovery order from the court. Of course, the owner of the vehicle can have a repair facility download the data at any time. However, in order to make the playing field even, the bill also prohibits an owner of the automobile from knowingly destroying the data on an EDR for two years after an accident that has caused injury or death; coinciding with the NJ statute of limitations for filing a lawsuit for personal injury or death. An owner who violates this could face a $5,000 civil penalty and spoliation charge in a civil lawsuit unless the data was overwritten during the vehicle's normal operation.
There is also a push to have the National Highway Transportation Safety Administration (NHTSA) adopt regulations requiring auto manufacturers to state in the owners' manuals that the EDR data belongs to the vehicle owner; prohibiting EDRs from collecting video, audio or location information; and limiting the retention of information to just five seconds before an accident.
In light of the above, if not already in place, every motor carrier should have an immediate response team which is mindful of EDR data and the challenges to preserving and/or obtaining it. In fact, sometimes it means sending a letter to a decedent's family and/or insurance company demanding the preservation of the vehicle and it's EDR data and/or requesting permission to download same. Motor carriers should also be mindful of the foregoing when deciding whether or not to have its own Electronic Control Module (ECM) data downloaded. In fact, we recommend downloading the tractor ECM data whenever reasonably possible to avoid any assertion that the data was intentionally destroyed. Such pre-planning will avoid costly spoliation claims asserted against a motor carrier and/or the loss of auto EDR data which can be used to defend future lawsuits.
For more information, please contact Jeffrey A. Segal at firstname.lastname@example.org or 856.382.3052.
Sara L. De Long