CMV Driver’s Logs: Observations
If there is any question about whether time or fatigue is a factor in a wreck, an audit of the logs produced in discovery should be performed quickly after they are received. If counsel finds significant errors, this may provide a basis to seek more logs in order to determine whether the motor carrier was not properly monitoring its drivers, and whether this was a problem driver who fell through the cracks of a careless motor carrier’s substandard system. Auditing even a few weeks worth of logs can be time-consuming, but it is important to carve out enough time to do it right.
It may be helpful to devise some type of system to graphically illustrate the flaws found in the logs, either when before the court on a motion to compel, in mediation, or before the jury at trial. No one type is likely to work in every case. The trick is to find the flaw and figure out a visual way to illustrate it without having to go back and do everything a second time.
Once counsel has established that the hours add up, and that the logs themselves do not show a violation on their face, the next important component of the process is to use the “supporting documents,” which the regulations require to be kept for six months (just like the logs themselves). These supporting documents should be cross-checked with the logs to make certain the driver was where he says he was at the times given. The question of just what constitutes a “supporting document” is answered by the USDOT interpretations.
The list is, to say the least, extensive. A request for production of each such document will likely draw an objection, but the motor carrier should be reminded that it is really objecting to producing exactly what the FMCSRs, as interpreted by the USDOT, say they must preserve to support their logs. Also note that the list is not exhaustive, but rather includes a “catch-all” of other documents “directly related to the motor carrier’s operation, which are retained by the motor carrier in connection with the operation of its transportation business.”
Some drivers decide that, because the graph used to fill out hours is in fifteen minute increments, they need not log any activity that lasted for less than fifteen minutes. This is incorrect. The USDOT interpretations specifically provide a method for a driver to log a change of duty status under fifteen minutes. Interpretative Question No. 1 (“Question 1: How should a change of duty status for a short period of time be shown on the driver’s record of duty status? Guidance: Short periods of time (less than 15 minutes) may be identified by drawing a line from the appropriate on-duty (not driving) or driving line to the remarks section and entering the amount of time, such as “6 minutes,” and the geographic location of the duty status change.”) However, a driver may make multiple short stops within a town while making deliveries without logging each one, and instead showing the graph of his logs as “on-duty not driving” with a notation of total driving time entered “immediately following the ‘on-duty not driving entry.’” If a driver’s logs contain such an entry, counsel should make certain during his deposition that that is what the driver was intending to do.
A motor carrier may return a driver’s incorrect logs to him for correction or completion. The USDOT interpretation suggests, but does not command, that the motor carrier mark such a log as “corrected” and staple it to the original. Given the absence of a mandate on this issue, a motor carrier may just as easily opt to substitute the corrected log for the erroneous one, or the one never fully completed, with no one the wiser. During his deposition, counsel should ask the driver if this happened. The logs should be scrutinized and compared to surrounding days to see if it appears that a different type pen or marker was used.
Note that a driver may use a CMV as a personal conveyance (unless it is laden) to travel home, back to the terminal, etc., and such time driving may be logged as “off-duty.” This rule also applies to short trips from the hotel to a restaurant. Counsel should be aware of this rule, and keep in mind that what may appear to be a logging violation may not actually be so.
The first step in assembling an accurate history of driving, and assessing the prospect of cumulative fatigue as a factor in a wreck, is the discovery of more than just a day or even a week of logs and their supporting documents. Typically, attorneys for motor carriers try to limit discovery of logs to a week or two at most. This may not be enough to determine whether some long-term logging malfeasance has taken place, nor is it usually sufficient to demonstrate the long-term fatigue or sleep deprivation of a driver. Assuming just two weeks of logs are produced in response to an initial round of discovery, they should be analyzed for a series of violations, particularly those that show a trend or pattern. This will provide a stronger grounds to demand additional production of earlier logs. The converse is also true; a clean record in the weeks preceding the accident is not going to be of much help in front of a judge.
Finally, just what is the implication for a motor carrier whose driver has falsified his logs? The USDOT says:
A carrier is liable both for the actions of its drivers in submitting false documents and for its own actions in accepting false documents. Motor carriers have a duty to require drivers to observe the [FMCSRs].
This is an especially useful interpretation. The FMCSRs have the force of law, and this official USDOT interpretation of § 395.8 makes an excellent jury charge.
Pertinent Case Law
The majority of the cases citing § 395.8 involve criminal prosecutions for the failure to maintain the required logs. If such a prosecution occurred after a wreck that also gave rise to a personal injury claim, the criminal proceedings may have included helpful testimony. Counsel should follow the criminal case as it develops, and at least obtain a transcript of any hearing at which the driver or motor carrier representative testified.
The issue of “supporting documents” was addressed in Commodity Carriers, Inc. v. FMCSA. 434 F.3d 604 (D.C. Cir. 2006). There, the United States Court of Appeals for the D.C. Circuit upheld the USDOT’s decision to require that motor carriers maintain copies of independent owner–operators’ toll receipts without first going through the formal rulemaking process. The opinion includes helpful language regarding the requirements that a motor carrier keep supporting documents, and thus may be of some aid to counsel during a discovery dispute regarding those types of documents.
In the recent case of Osborne v. Pinsonneault, 2009 WL 1046008 (W.D. Ky. Apr. 20, 2009) the court upheld the admission of logs for the purpose of demonstrating that a CMV driver was fatigued. The case outlines an analysis that a court may use in determining what logs may be used, and how old the violations may be to remain admissible. The admissibility of logs was also addressed in Hill v. Western Door, 2005 WL 2991589 (D. Colo. Nov. 8, 2005) There, the Colorado federal district court held:
Although the regulations do not explicitly declare their purpose, the tie between safety and fatigue is clear. Safety undoubtedly is one of the key purposes of the limitations on hours of service in Part 395, and of the record keeping requirement of regulations. I find that this regulation was intended to promote the safe operation of commercial vehicles, including the safety of people, like the plaintiffs, who share the road with commercial vehicles. Although the regulation also might have been designed to aid the management and organization of commercial vehicles, as the defendants argue, the connection between safety and limitations on driving times is so clear that I cannot disregard that purpose. A tired driver has the same potential to jeopardize the safety of others on the road as does a truck stopped on the highway.
However, the court in Hill nevertheless went on to grant the defendant’s motion for summary judgment on the plaintiffs’ allegation that the wreck was proximately caused by the violation of regulations, noting that the plaintiffs produced nothing more than speculation. As emphasized throughout this book, proximate cause must always be kept in mind – even when a clear violation of a safety-oriented regulation is shown.
Discovery of several months of logs was ordered over the motor carrier’s objection by a Texas district court in Ashton v. Knight Transp., Inc., 2009 WL 4580801 (N.D. Tex. Dallas Div. Dec. 4, 2009). Ashton involved a fatality accident where the CMV driver left the scene. The plaintiff sought the driver’s record of duty status as required by regulation for a period beginning two months before the wreck and continuing one month afterwards. Notably, after the driver fled the scene, he continued to drive until police eventually located him. The court found that discovery of the logs was “unquestionably relevant” to plaintiff’s claims. Ashton v. Knight Transp., Inc., 2009 WL 4580801 at *2. The motor carrier objected to the time frame of logs sought, arguing that such disclosure was “overly broad, unduly burdensome and irrelevant.” Ashton v. Knight Transp., Inc., 2009 WL 4580801 at *2. (Authors’ Note: This is, of course, a very familiar objection) The motor carrier failed to articulate exactly why this was the case, so the court ordered the production.
It must be kept in mind that the FMCSA performs audits of motor carriers and requires production of these logs as part of the process , which is why they must be retained for at least six months. This is useful when addressing an “overly broad, unduly burdensome, and irrelevant” objection. Counsel should pose the question of why producing logs that the FMCSA requires to be made available upon request is such a burdensome thing when requested by an injured plaintiff. Moreover, any reputable motor carrier that is facing serious liability will usually immediately hire an attorney that will request and review those same logs. There is no reason why a motor carrier is able to make the logs available to its own attorney without problem, but yet be “burdened” to do so for another.
Finally, if the motor carrier claims it just cannot find the logs, counsel should ask for a copy of any document analyzing them before they were lost. The response may come in the form of a work product objection, but it will probably be overruled if there is no other way to get the data.