Event Data Recorders and Automobile Accident Litigation

By: Robert L. Thompson

As technology continues to develop, cars are increasingly more computerized each year. One of the main developments over the past decade has been the installation of "Event Data Recorders" (EDR) in modern motor vehicles. EDRs are commonly known as the car's "black box." They are actually small silver boxes attached to the floor of the car that house a variety of sensors from throughout the vehicle. (Doug Newcomb, "Car Black Box Recorders Capture Crash Data", December 18, 2012.) In fact, the National Highway Traffic Safety Administration is currently proposing that all new consumer vehicles be equipped with them by September, 2014. 49 CFR Part 571. Furthermore, the NHTSA estimates that as of 2011, 91.6% of light motor vehicles are already equipped with these EDR devices.

EDRs are extremely useful because at any moment they record the car speed, engine speed, steering angle, throttle position, braking status, force of impact, seatbelt status, and airbag deployment. When there is an automobile accident, they can be much more reliable for determining the cause of the accident over the recollection of the drivers, witnesses, or police reports. As such, they have increasingly become the subject of investigation by attorneys, insurance companies, and accident reconstruction experts during lawsuits.

Nevada is one of thirteen states that have passed laws governing the disclosures of EDR data. NRS 484.485 states that if a car is equipped with a black box, it must be disclosed in the owner's manual. The owner of the vehicle retains sole control of the EDR and the statute requires that the owner give consent to any party that wants to download the data of the box. Id. However, subsection 2 states that the data can be retrieved by a non-owner pursuant to a court order. Id. As such, if the owner is the subject of a lawsuit relating to an accident involving the vehicle, the attorney may subpoena the box and have an accident reconstruction expert download the data. The data may only be disclosed to the expert solely for the purpose of litigation and the box must then be returned to the owner. Id.

For a lawsuit involving an automobile accident, getting access to the black box data should be an early priority of opposing counsel. The first step is to determine whether the car even has a black box. This can easily be done by checking the owner's manual of the vehicle, but the information should nevertheless be requested by the attorney in the first round of written discovery. Once that is determined, the attorney should issue a subpoena for the black box in order to download its data. Typically, both parties may have accident reconstruction experts and so after the subpoena is issued, a time and place to inspect the box can be scheduled for the convenience of all parties. Once the data is downloaded the box should be returned to the owner. This information could prove to be crucial to the defense of any claims made as a result of a motor vehicle accident.

Robert L. Thompson is an Associate with Kring & Chung, LLP's Las Vegas, NV office. He can be contacted at (702) 260-9500 or rthompson@kringandchung.com.

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