Visual evidence of the accident can be extremely helpful in evaluating liability, especially early in the case.   Investigate whether the accident was captured by a surveillance camera.  I recently had a case where the full accident was caught on the security camera of a nearby construction site.  The plaintiff’s passenger’s descriptions of the accident were inconsistent with the video footage.  Our experts were also able to analyze the crash before we deposed witnesses and responding police officers.

Some cities install webcams at well-known intersections that are broadcast on the internet.  Caltrans streams live traffic on its website:  http://www.video.dot.ca.gov/.  Webcams may be less useful in litigation because they are usually streamed in real-time (or on a short delay) and are rarely recorded.  Caltrans specifically states that its videos are not saved.http://www.video.dot.ca.gov/

Local communities also sometimes install security cameras in public places to deter crime.  Napa, San Francisco and Hollywood are three California communities that have security cameras installed on public streets that may capture traffic accidents.

Television stations may also film the scene of the accident if it is deemed newsworthy.  If the accident was aired on television, search for the broadcast on YouTube or the station website and consider subpoenaing the original footage.  The picture and sound quality of internet video is sometimes inadequate for trial presentation.

Determine whether a traffic camera was installed at the scene of the accident.  Traffic cameras can include red light cameras, speeding cameras, turn cameras or parking cameras.  While many drivers dispute the accuracy of traffic cameras, the photographs and videos they capture may provide essential information, such as the identity of the driver, the license plate, vehicular speed and other traffic violations.  Traffic camera images are controversial, as the images are sometimes blurred and consumer groups claim that certain red light cameras are strategically placed at intersections with lights that are times to turn red too quickly for the speed limit.  Some California traffic courts have ruled them inadmissible because of their lack of reliability, particularly because the lights are operated and managed by private entities.  Additionally, some photos do not show the traffic signal or traffic signs in place at the scene of the incident.

Again, evidence from traffic cameras can be controversial — remember a proper foundation must be laid before such evidence can be admitted at trial. A recent California Appellate Court decision evaluated the admissibility of traffic camera photographs and held that the photographs were inadmissible hearsay and violated a traffic court defendant’s confrontation rights.  People v. Khaled 2010 S.O.S. 4217.  In that case, the appellant appealed a traffic court decision wherein a declaration by a police officer was used to lay a foundation for introducing photographs from a traffic camera.  The police officer was not present at the time of the alleged violation and the camera was maintained by a private contractor.  The contractor’s employees who maintained the cameras and data did not testify or prepare any declarations.  The appellant objected to the declaration as hearsay and violative of his confrontation rights.  The trial court overruled the objection and admitted the declaration regarding the traffic camera as a business record, with proper foundation laid by the police officer’s declaration.  In reaching its holding, the Appellate Court determined that the plaintiff did not lay an adequate foundation for characterizing the photographs as business records for the hearsay exception to apply.  To avoid exclusion of the records, determine the entity that actually records the footage and obtain declarations or testimony from persons with knowledge of how the footage is recorded and maintained to demonstrate that the business records exception to the hearsay rule applies.

YouTube, Facebook and MySpace can also be useful resources for locating witnesses.  Content posted by users is less searchable on Facebook and MySpace, but those websites can be useful for tracking down more information about witnesses, such as their location, employer and possibly their email address.

On Board Technology and Potential Distractions
Consider the technology in the vehicle and its potential impact on the case.  For example, a car salesman recently tried to sell me a vehicle that had a lane change warning device installed in it.  He pointed out that the feature was excellent because I could change lanes without looking.  Will plaintiff claim that your driver relied too much on technology, such a traffic collision warning system?  This is an important issue to evaluate if you represent a commercial vehicle driver or a recreational vehicle because these types of devices are more frequently found on those vehicles.

Following the presentation, I was inspired to explore the ways in which technology impacts motor vehicle accident cases.  This blog series will address the various types of technology and related issues that may arises in auto accident litigation.

Use of Cellular Phones and Navigation Devices
California’s Anti-Texting Law (SB 28) makes it illegal to send, receive or read data on hand held mobile devices.  Violation of the law could give rise to negligence per se in your case.

A pedestrian or other vehicle is clearly within the class protected by the statute.  Ask your driver detailed questions about whether he or she was using any technology during the course of the accident.  Many pre-installed navigation devices are inaccessible when driving.  However, stand alone devices and truck navigation systems may still operate while the vehicle is moving, a potential distraction that plaintiff may point to as a cause of the accident.

Plaintiff is likely to seek cell phone records, emails and other data from before, during and after the accident.  A navigation device may also store certain data, including the driver’s planned destination, departure point and prior destinations.

Drivers and Social Networking
If you represent a driver, find out about ALL of the driver’s social networking sites.  Ask for your driver’s email address as well so you can run a search of their email address.  Always run an internet search for your client, plaintiff and witnesses.  This should be your one of your first steps when you receive a case and police report.   Know the players before you propound or respond to any discovery.

Retrieval of e-mail from backup media for production in discovery may be costly and time consuming, raising the issue of whether and to what extent the demanding party must share in the expense associated with production of such information. In Toshiba America Electronic Components, Inc. v. Superior Court (2004) 124 Cal.App.4th 762, plaintiff Lexar Media demanded production of 60 categories of “documents,” which Lexar defined to include “electronic mail” and “other forms of electronically or magnetically maintained information.” Defendant TAEC claimed that email correspondence stored on its computer backup tapes was not “readily available” and that recovery of such email correspondence would entail analyzing the data contained on the tapes, identifying and restoring the files, searching the restored files for responsive items, and producing the specified data, at a cost of between $1.5 and $1.9 million. Alternatively, TAEC represented that processing a selection of 130 tapes surrounding 15 key dates would cost at least $211,250. TAEC then requested Lexar to pay some or all of the cost depending upon how many tapes Lexar wanted processed. Lexar refused, and Toshiba petitioned for a writ of mandamus, contending that the court should have applied California CCP section 2031(g)(1) and ruled in its favor. Section 2031(g)(1) states that “[a]ny documents demanded shall either be produced as they are kept in the usual course of business, or be organized and labeled to correspond with the categories in the demand. If necessary, the responding party at the reasonable expense of the demanding party shall, through detection devices, translate any data compilations included in the demand into reasonably usable form.” (emphasis added)

The appellate court ruled that:

(1) California CCP Section 2031(g)(1) expressly shifted to the demanding party the cost of recovering usable information from tapes;
(2) the trial court’s failure to consider the applicability of the discovery statute was abuse of discretion; and
(3) the trial court had discretion to set the reasonable expenses of the demanding party.

Because they were raised for the first time on appeal, the appellate court did not address Lexar’s theories that 1) section 2031(g)(1) was inapplicable since its document demand sought only email communications and not the backup tapes themselves and 2) the expenses were unnecessary and resulted only from TAEC’s refusal to produce the tapes in their original form.

Consequently, in drafting discovery, consider requesting email communications themselves, rather than backup tapes, to preserve an argument that Section 2031(g)(1) is inapplicable. If a dispute arises, one option is to informally propose that the backup tapes be released to a neutral third party for data retrieval, if it appears that expenses claimed by the producing party associated with retrieval and analysis of the email communications are truly unnecessary, as claimed on appeal by Lexar.

For a more detailed discussion of the proposed changes, please visit:

http://www.courtinfo.ca.gov/invitationstocomment/documents/spr06-13.pdf

* Source: Legal Technology – California E-Discovery Rule Changes on Hold (http://www.law.com/jsp/legaltechnology/pubArticleLTN.jsp?id=1167945422881&rss=ltn).