The National Highway Traffic Safety Administration has mandated that all automobile manufacturers must equip their new vehicles with event data recorders (EDRs), commonly known as the “black box,” by the year 2013. These devices have similar technology to the black boxes found on airplanes that help investigators determine why an airplane crashed. Likewise, an EDR is a device installed in a motor vehicle to record technical and occupant information for a brief period of time before, during, and after a crash. Collecting data from a vehicle’s EDR provides a unique opportunity to determine how or why an automobile accident occurred by providing a comprehensive picture of the events leading up to the crash. But, since the NHTSA mandate, there has been a great deal of debate about the legal issues surrounding EDRs.
There are positive benefits to EDRs as they relate to products liability litigation. An EDR records a variety of events surrounding an automobile accident, such as: vehicle speed before the crash, deceleration rates, and vehicle trajectory before, during, and after the crash. The EDR also records the time that elapses between the moment of impact and airbag deployment. Such information is sometimes invaluable in proving that a driver’s or passenger’s injuries are consistent with the physics of the accident. Given these characteristics, this sort of technology could be extremely beneficial to consumers in products liability litigation. While an EDR is supposed to help determine seat belt use, we haven’t found that application to be too reliable.
NHTSA reported that, as of 2008, nearly 90% of vehicles manufactured today are equipped with EDRs. Despite this, the information is not consistently available to all parties. Only GM, Ford, and Chrysler have made the technology to download and interpret the EDRs available to the public. All other manufacturers have refused to do so. In fact, it is only through litigation that a consumer can obtain this needed information.
Another issue that must be addressed relating to EDRs is consumer privacy. Who owns the data collected on an EDR and how can it be used? Most agree that the owner of the vehicle owns the EDR. But, auto manufacturers get around this by including boiler plate language in a sale or lease agreement in which the purchaser or lessor waives any privacy rights to EDR data in the event that he or she sues the manufacturer.
Since EDRs only record seconds before, during, and after a crash, an issue of spoliation arises. That’s because EDR data from a crash can be easily overwritten by new data if the car is still drivable. Accordingly, Defendant manufacturers may argue that the Plaintiff failed to preserve evidence that may be essential to their case. Automobile manufacturers must be required to find ways to improve their EDR data preservation.
Given these facts, for EDRs to be consistently beneficial or reliable to consumers in products liability litigation, there must be standardization for their manufacture and use. Issues regarding ownership of the information, access to the information to interpret the EDR, and other privacy concerns must be addressed in the near term. As this technology expands, the government must play catch-up to address the legal ramifications of these systems. If you would like more information on EDRs, contact Dana Taunton or Cole Portis at 800-898-2034 or by email at Dana.Taunton@beasleyallen.com or Cole.Portis@beasleyallen.com.
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