Keep On Truckin': Central District Of Illinois Allows Testimony About Destroyed Log Books Under Rule 1004(1)

Federal Rule of Evidence 1002, the Best Evidence Rule, provides that

To prove the content of a writing, recording, or photograph, the original writing, recording, or photograph is required, except as otherwise provided in these rules or by Act of Congress.

That said, Federal Rule of Evidence 1004(1) provides that

The original is not required, and other evidence of the contents of a writing, recording, or photograph is admissible if--

(1) Originals lost or destroyed. All originals are lost or have been destroyed, unless the proponent lost or destroyed them in bad faith....

So, let's say that an individual driving a minivan is injured in a car crash with a semi truck and trailer. And let's say that the minivan driver later pleads guilty to driving under the influence. Finally, let's say that the driver of the semi truck and trailer keeps log books but that neither he nor his employer are under any obligation to preserve the log books for more than six months. Of the log books are destroyed after the individual pleads guilty to DUI and before she sues the truck driver and his employer for negligence, should the court find that the log books were destroyed in bad faith? According to the recent opinion of the United States District Court for the Central District of Illinois in Campbell v. RAP Trucking Inc., 2011 WL 3924157 (C.D.Ill. 2011), the answer is "no."

In Campbell, the facts were as stated above, with Jodi Campbell bringing a negligence action against Samuel Gross, the driver of the truck, and RAP Trucking, his employer. Before trial, Campbell filed a motion to preclude testimony about the contents of his now destroyed log books. Specfically, the defendants planned to call Charles Burwell,

who inspected the log books in connection with the accident on or about February 10, 2008, in his role as an Illinois State Police commercial vehicle compliance officer. Burwell is expected to testify that: (1) he inspected Gross's semi and reviewed his log books, including for any hours of service or other violations; (2) he wrote a report of the inspection; (3) the report does not identify any hours of service or other violations as might have been discovered in the log books; and (4) if the log books had reflected a violation of any kind, it would have been indicated in his report.

The Central District of Illinois denied the motion. Campbell then filed a motion to reconsider, and the court concluded that the issue was governed by Federal Rule of Evidence 1004(1). The court thus found that

the admissibility of Burwell's testimony depends on whether the log books in question were destroyed in bad faith. Plaintiff asks this Court to infer that the log books were destroyed in bad faith simply because the log books were actually destroyed, based on the theory that if the log books were favorable to the Defendants, they would have been retained. Defendants argue that RAP Trucking is not obligated or required by any authority to maintain the log books in question for longer than six months after their creation, as acknowledged by one of Plaintiff's disclosed experts, George P. Huston. Although RAP Trucking was clearly aware of the accident at the time the log books were discarded, no suit had been filed and they did not expect a suit to be filed as Plaintiff had been charged and plead guilty to driving under the influence (DUI) in connection with the accident.

The court thus "agree[d] with the Defendants that there is no evidence of bad faith destruction of the log books advanced by the Plaintiff, and further that the explanation for the destruction of the log books is not unreasonable."

-CM