In motorcycle cases, which tend to have higher damages exposure than auto cases, my first order of business in defending the case is sending out a Notice to Preserve. Because of the exposure, I often receive notification of the claim before the complaint is even filed. I make demands for the leathers and helmet worn and for the motorcycle itself upon learning of the claim to the attorney.

If the plaintiff fails to preserve it, I have a pro forma motion for discovery sanctions because the kind of helmet and leathers worn are crucial to a defense on the plaintiff's conduct (was s/he wearing proper protection?) and the motorcycle treads can be used to demonstrate riding style and sometimes even the angle of attack of turns by experts. There are times when I won't even examine the helmet or motorcycle. But having the notice out there is a good card to be holding.

Products liability is another field of law where this concept is employed. A claim against a manufacturer is often based on not just negligent design and testing, but also negligent manufacture. In order to defend, the argument goes, the actual product is required to determine user misuse. Failure to preserve the evidence hampers the defense of the case and, in some cases, warrants dismissal of the entire claim.

Bear in mind: spoliation is not reserved for intentional destruction. Negligent destruction is just as bad. The Kirkland case, the lead case in NY and one of the lead cases in the country, dealt with the defendant's negligent failure to preserve a stove central to the litigation. The tenant in the apartment needed a new stove and the housing authority workers, when replacing the stove, accidentally threw out the stove instead of putting it into storage. The appellate court found the excuse of bureaucratic stupidity unavailing.

Litigation is like a game. Some compare it to chess, some to poker. There are all sorts of strategies that are used, most of which are employed before the trial stage. Discovery is where a case can be won or lost and there is more to discovery than the ham-handed "flood of paper" attack. With good planning, traps can be laid and weaknesses exploited. It's all how the game is played.

God made the pretty girls pretty because he likes them more

The cost of the cab comes from the cost of the medallion, which gives the cab the right to pick up hails from anywhere in NYC. The cost of a taxi medallion is a little over $300,000.

Next time you take a "yellow cab", look on the hood. Bolted to the hood, you will see a steel medallion. That medallion is worth a lot of money.

God made the pretty girls pretty because he likes them more

lulabale

It appears that "It can only hurt you [to destroy evidence]" doesn't apply in all cases.

AlfaSpider

Also the data they are referring to is usually stored in the tracks. You can look through the data on you computer just like they can. Oh and yes you can delete it.

MacBandit

menu
preferences
track
OFF.
sometimes yous guys make it too hard on yourselves...

ltcmurray

iamausername

This was a TLC decision, not a voluntary owner decision; a lot of the owners were actually against it as well - cost, maintenance, oversight of how they used their cabs, etc.

In fact, one of the issues was to what extent and for what reasons the TLC would use the information. And part of the TLC's position in return is that, by entering the regulated Medallion market, owners (and subsequently drivers) had agreed to a reduced Reasonable Expectation of Privacy.

So yes, your boss has a right to monitor you, but that doesn't necessarily mean a NYC agency does.

92BuickLeSabre

kc2idf

Im irish, Because of gangland violence and murders we recently lost our right to remain silent. Of course they cant force you to talk, but they can take any meaning they see fit from silence. if you are being questioned about a murder and they ask you if you committed the murder and you dont answer, they can legally take that as a yes.

Too many drug barons were getting away with murder by saying absolutely nothing as soon as they were arrested, it was a plague.

prodigal_son

Negligent destruction of evidence warrants discovery sanctions. Intent is not relevant.

As far as the cab driver strike is concerned, the GPS issue is a red herring. The drivers and the owners hate each other and GPS is just another reason to fight.

Speney: The "only the guilty need to worry about privacy" line has been disregarded by every American court and goes against over two centuries of American history.

In America, every person is secure against unreasonable invasion of his or her privacy. The penumbra of privacy and restriction against unreasonable intrusion of one's person is a fundamental tenet of a republican democracy.

The cab GPS was poorly grafted as a privacy issue. My boss has the right to monitor the computer I use at work because I'm using his computer. Similarly, a cab owner has the right to keep track of his cab, an investment worth several hundred thousand dollars. You're partly correct, but you arrive at the conclusion through a completely legally and constitutionally unsound reasoning process.

God made the pretty girls pretty because he likes them more

jerrt

So the implications are little different.

As for your first sentence, I fundamentally disagree with using that as a way to evaluate essentially any privacy/speech/security issue, so we'll have to agree to disagree on that part.

92BuickLeSabre

SpeneyG

PHJ

um... hope that was a joke. Ever heard of E911? What about that triangulation product (GPS-wannabe) for iPhone?

Also, Uncle Sam has soooooo many more ways to track you nowdays. You'd damn near have to drive an old Chevy, not carry any electronic gizmos, heck - even your MP3 player could be rigged to stick a chip that can track you anywhere. No credit cards, no EZPass (for those in N.E. US), stay away from most retail locations and banks, you'd be almost incognito. If it weren't for those pesky license plates.

cynep

Andham

I know some people who could unintentionally lose an amazing amount of stuff...

ideaman2020

92BuickLeSabre

ghmlco

(That and who really needs the hassle of one more device that can break down when 80% of the time it's just telling you how to get from 1st Ave and 3rd St to 8th Ave and 68th St. It's a freakin' grid! Who needs GPS for a freakin' grid!?!)

92BuickLeSabre

Here's a hypothetical. Your Garmin records data. Tou are involved in a car accident and, fearing what the data will reveal, you destroy the Garmin.

If I make a demand for the data and your excuse is "I destroyed it", you're looking possible discovery sanctions, such as being prevented from denying liability. In fact, even "the data was lost after the accident" can result in such sanctions. It is known as "spoliation of evidence" and some jurisdictions even recognize it as an independent cause of action.

In NY, intention to destroy evidence isn't even an issue. The issue is whether you knew or should have known that the evidence would be material to litigation. The defense is based on prejudice: was the evidence crucial to the case? If so, discovery sanctions may be meted out.

Additionally, even if spoliation sanctions aren't doled out, a trial judge can always give the jury a "missing evidence" charge, whereby the jury is advised that there was evidence regarding the issue, that the evidence is missing, and that the jury may draw whatever negative inference it pleases from the loss of the evidence against the party who lost the evidence.

Don't destroy evidence. Not pre-suit. Not after litigation commences. Not ever. It can only hurt you.

God made the pretty girls pretty because he likes them more

With respect to subpeonas, local, state, and most federal agencies are required to get a search warrant for records (i.e., cell phone, landline, etc.). Probable cause is required (note that I said 'MOST' federal agencies). There's this one exception that seems to be getting some press lately. The NSA? You may have heard about them.

"Probable cause? We don't need no stinking probable cause!"

jcrochford

That brings up the point I was wondering: Are they pulling the data off the unit's memory or their GPS data access servers somehow..? After all, doesn't triangulating your position by accessing that satellite network require two-way communication?

If the data comes from your personal unit, you've got a chance to hide/destroy it. If the data is coming from their servers, how do they prove which unit is yours?

ideaman2020

Canadian Impostor

ChopSue-Me

ecobore

Geisrud

Redwraithvienna

Redwraithvienna

lafond66

Geisrud

Illicom

Geisrud

I can bet 100% there is a way to factory restore those puppies.. you just need to find the button or key combo

auger282

SpeneyG

Geisrud

RainyDayInterns

Necromatik

It's not unlike demanding "black box" data in airbag deployment cases and is another lovely thing to demand during discovery.

Yay billable hours.

God made the pretty girls pretty because he likes them more

Moral of the story?
Don't register your product.

curiosa863

Yes there is, it's called an incinerator.

ChopSue-Me