Use and Abuse of Automobile “Black Boxes”

The Toyota sudden acceleration litigation has focused public attention on the fact that many late model cars contain event data recorders (i.e., “black boxes) – devices that, under certain circumstances, record information about what happened in and around a vehicle in the moments before and during a crash. We are accustomed to hearing about the use of such devices in reconstructing airplane crashes, but the fact that many of us are driving around every day with these black boxes in our cars, “spying” on us as we drive to work, has come as a surprise to many.

Event data recorders (“EDR’s”) have been a hot button issue in automobile products liability cases for years. What we have recently been discovering, however, is that the use of EDR’s has now extended into dangerous roadway cases and even garden variety auto accident cases, not to mention criminal matters.

The following are some facts and considerations to keep in mind when deciding whether to seek EDR evidence and whether to cooperate with or oppose efforts by the other side to obtain such evidence:

1. The typical EDR is constantly recording data as a vehicle is moving, but this data is also being constantly “overwritten.” The question is under what circumstances is the data retained in a permanent form that can be analyzed after the fact. For most EDR’s, the triggering event for data retention is deployment of an air bag, although more advanced EDR’s also retain data in other types of crash “events.” Once an event occurs, the EDR retains data from a short slice of time before the crash (usually just several seconds) and during the crash.

2. As of now, there is no uniformity in terms of when EDR’s retain data and what sorts of data are retained. However, that will soon change. The National Highway Traffic Safety Administration (“NHTSA”) has issued a rule which will go into effect for 2013 model cars and which requires EDR’s to record certain information, including vehicle speed, whether the brakes were applied, how far down the accelerator was pressed, seat belt usage and certain diagnostic trouble codes.

3. Not all vehicles contain EDR’s, and the new NHTSA rule does not require them. Mercedes, for example, does not use EDR’s. Approximately 64% of 2005 model year cars had EDR’s, and that number is growing. NHTSA has made it clear that it is considering making them mandatory.

4. Before committing the time and money involved in an EDR download, it makes sense to learn whether, given the type of EDR in your vehicle and the circumstances of your crash, the EDR is likely to have recorded meaningful data. Many (though not all) accident reconstructionists have experience with EDR downloads and can give you some guidance about whether an EDR download is likely to be fruitful in your case.

5. If it appears that there might be useful data to be had, the next question is who can download the data and what protocols need to be followed. The new NHTSA rule requires that all manufacturers share information with the public about how to download their EDR’s. At this point, however, there are still EDR’s (the ones in Toyota vehicles being the most notable example) that can only be downloaded by the manufacturer. In an auto defect case, a lawsuit against the manufacturer would typically need to be filed before an EDR download could occur. In other types of cases, in which the manufacturer is not a defendant, the manufacturer’s cooperation would need to be obtained, and the parties would have to cover the costs associated with the EDR download. Also, there can be substantial delays. In a recent case involving a Mazda vehicle, we were told that the EDR would need to be sent to Japan to be downloaded and that the results would not be available for another six months.

6. Once it has been decided that an EDR download will occur, it is important to discuss with your accident reconstructionist and with opposing counsel what the specific protocol for the download will be. If the download is not handled properly, data can be lost or corrupted. If your accident reconstructionist has little or no experience with EDR’s and if the value of the case warrants it, it may be prudent to bring in an EDR expert, which is typically someone with expertise in air bag technology. There are a very small number of such experts in the U.S. It is also important to videotape every aspect of the downloading process and perhaps even have a computer IT person on hand to monitor the process. If the EDR data can make or break your case, you’ll want to have a solid evidentiary basis for arguing that the data is or is not reliable.

7. Speaking of reliability, it is important to understand that EDR’s are not perfect, that data is not always stored when it was supposed to be and that the data that comes out of the EDR can sometimes be completely ridiculous. We were involved in a Toyota sudden acceleration case in which the father of a teenager who was killed in a crash spent years trying to force Toyota to download the EDR from his son’s vehicle. Finally, during the congressional hearings over the sudden acceleration issue, the father’s U.S. Senator secured a commitment from Toyota’s upper management that the download of this vehicle’s EDR would occur. Shortly thereafter, the EDR was downloaded in Toyota’s Torrance office, and the data purported to show that the vehicle was traveling at upwards of 170 mph at the time of the crash. This was of course impossible (this was not a race car) and completely inconsistent with all other physical evidence.

8. Aside from the technical issues, there is the often more important strategic question of whether to push for or oppose an EDR download. On the issue of vehicle speed, eyewitnesses are notoriously inaccurate, and accident reconstructionists can often make only rough estimates of vehicle speed based on the amount of crush damage to the vehicle. It is tempting to look to the EDR as a definitive source of information on that subject. But what if the information comes back in a way that’s unfavorable to your client? You can’t put the genie back in the bottle, and if the judge allows the EDR data into evidence, it is likely to carry with it an aura of scientific certainty that will be very persuasive with a jury. You may have compelling technical arguments as to why the EDR data is unreliable, but you face an uphill battle in getting a jury to understand and appreciate those arguments. Given the current state of EDR technology, it is important for each lawyer to make a reasoned decision about whether the risk of bad EDR data is outweighed by the possible reward of good data.

9. If the other side wants a download of your client’s EDR, you technically have the right to say no, because the conventional wisdom is that the EDR data belongs to the vehicle owner. However, our sense is that most judges will grant a motion to compel an EDR download, and this is likely to become more and more true as the technology improves and the use of EDR’s in all sorts of litigation becomes more common. Likewise, unless the data is demonstrably and obviously inaccurate, most judges will tend to let it into evidence at trial. For a list of cases in which EDR data was used in a trial court or legal issues regarding EDR use were addressed in an appellate opinion, click here.

The clear trend is in favor of widespread use of EDR data at trial. Given the growing use of EDR’s in vehicles, the improving technology and uniformity among these devices and the growing use of EDR evidence in litigation, all trial lawyers would be well-advised to become more familiar with these issues.

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