Litigation hold: freezing trip records, GPS, and video once a claim is likely

When the duty to preserve starts

The duty starts when a lawsuit becomes reasonably foreseeable, not when papers are served, and it covers the same records that decide liability claims at a ride company. Federal courts trace it to a common-law duty, and the 2015 notes to Rule 37(e) say courts look at how far a party was on notice that litigation was likely and that the information would be relevant.

A well-known federal case shows how early that can be. In Zubulake v. UBS Warburg (2003), the court found that the duty began in April 2001, when the employer’s relevant people anticipated she might sue, about four months before she filed her discrimination charge on August 16, 2001. Texas uses its own test: the duty arises when a party knows or reasonably should know there is a substantial chance a claim will be filed and that evidence it holds will be relevant (Brookshire Brothers v. Aldridge, 2014).

For a ride company, these events usually mean the clock has started:

• A rider reports an injury, at the scene or days later.
• A letter arrives from a rider’s lawyer asking you to keep evidence. The passenger injury claim guide covers what those letters ask for.
• A broker opens an incident review. Modivcare’s own incident report form tells providers they may already owe a duty to keep emails, photos, video, and files about the event, since incidents so often turn into lawsuits.
• A driver or dispatcher files an EEOC charge. Federal rules then require you to keep the personnel records relevant to the charge (29 CFR 1602.14).
• A subpoena or records request arrives, which the subpoena guide handles step by step.

What a hold covers at a ride company

A hold covers whatever is relevant to the dispute and held by the people most involved, whom the Zubulake court called the key players. At a NEMT company those are usually the driver, any attendant, the dispatcher who handled the trip, and the supervisor who reviewed the incident. Their records include:

• The trip log for the leg, with scheduled and actual times, addresses, vehicle, and driver.
• GPS history for the van that day.
• Dash camera footage, before the loop records over it.
• Dispatch messages, texts, call recordings, and email about the trip or the rider.
• The driver’s file: license, driving record, training, and any past complaints.
• Vehicle inspection, maintenance, and securement records for that van.
• The incident report and every version of it.

The court did not require keeping every copy of everything. Zubulake held that a party must keep one copy of each relevant document that existed when the duty attached, plus relevant documents created afterward.

Putting a hold in place

1. Write it down. Name the rider, the trip date, the van, the people involved, and the kinds of records to keep, and say plainly that nothing in scope may be deleted or changed.
2. Stop the automatic deletion. Pull the dash camera clip, export the trip and GPS records, and switch off auto-delete on phones and messaging tools for the people involved. The committee notes say the prospect of litigation may call for stepping into routine operations like these.
3. Send it to each person on the list and get a written acknowledgment.
4. Remind them while the matter stays open, and add anyone new who turns out to have relevant records.
5. Lift it in writing when the matter ends, then return those records to your normal retention schedule. The record disposal guide covers destroying them safely after that.

What courts do when evidence is lost

Federal Rule 37(e) applies when electronically stored information that should have been kept is lost because a party failed to take reasonable steps, and it cannot be restored or replaced. If the loss prejudiced the other side, the court may order measures no greater than needed to cure it. Only on a finding of intent to deprive may the court presume the lost information was unfavorable, tell the jury it may or must presume so, or dismiss the case or enter a default judgment. The notes add that reasonable steps do not mean perfection, and that a small company’s resources count.

State courts follow their own rules. In Brookshire Brothers, a store kept about eight minutes of video from a camera that recorded over itself roughly every 30 days. The trial court told the jury it could assume the missing footage hurt the store, and the jury returned a verdict of $1,063,664.99. Texas’s highest court called that instruction an abuse of discretion, because it requires intentional spoliation or a loss that leaves the other side with no meaningful way to prove its case, and sent the case back for a new trial. The store won the legal point and still faced a second trial. Saving the full window around an incident, not only the moment itself, avoids that fight.

How long cameras should keep footage in ordinary times belongs to the dash camera guide.

Exporting the trip record

The first record anyone asks for is the trip itself. HealthRide’s trip log report shows each leg’s scheduled and actual times, addresses, driver, vehicle, and GPS-verified miles, and exports as a spreadsheet or a print-ready PDF, so the record for the trips in question can be saved with the hold notice the day it goes out.