CONCANNON & CHARLES, P.C.

Consider the following real-life scenarios:

 

1. A scuba instructor enters the water with a student to complete the deep-dive portion of an advanced open-water class.  Only one diver comes out of the water alive — the instructor.  In a subsequent lawsuit, the instructor is alleged to have abandoned the student underwater and allowed him to drown.

 

2. A scuba instructor enters the water with a student to complete the deep-dive portion of a technical diving class.  Only one diver comes out of the water without decompression sickness — the instructor. In a subsequent lawsuit,the instructor is alleged to have negligently supervised the student by failing to prevent him from omitting several decompression stops and shooting to the surface in a panic.

 

3. A scuba instructor enters the water with a student and two support divers.  Only one diver does not come out of the water alive — the instructor.  In a subsequent lawsuit, the instructor’s family alleges that he died because his dive equipment malfunctioned and the manufacturer failed to warn him of defects associated with the equipment.

 

What do these scenarios have in common (aside from the accumulation of massive legal fees)?  In each case, the existence of data stored in dive computers would have shown that the defendants were not liable for causing the plaintiffs’ injuries.  I say would have because, in each case, somebody failed to properly store and/or retrieve the dive computer data; therefore, it was unavailable.

 

Downloadable dive computers have been on the market for more than a decade yet, unbelievably, divers do not routinely review or preserve the data stored on their dive computers after an accident or serious incident.  Now, new court rules could sink your business if you fail to stop, think and act after an incident and preserve critical evidence stored on your dive computers.

 

The New Reality

 

We live in a digital age. Most of us communicate by cell phone and e-mail, data is stored electronically rather than on paper, and few of us are still filling filing cabinets with business records.  To address this new reality, the federal court system recently adopted changes to the rules of civil procedure and evidence to ensure that data stored in electronic form is included in the litigation process.

 

Now, data that may be relevant to the claims and defenses asserted in litigation, no matter how it was created or where it is stored, must be preserved, disclosed and produced in litigation.  The new rules apply in the federal court system in all 50 states, and they serve as a model to the state court systems, many of which have already adopted the same rule changes.

 

Acceptance of Responsibility

 

I represent dive equipment manufacturers, training agencies, live-aboard fleets, dive centers and instructors.  Hardly a week goes by when there is not an incident somewhere involving a diver who was injured while underwater, often in the presence of an instructor.  Although the facts of every incident are different, all of the incidents have two things in common: All of the  participants are surprised and saddened that something happened either to them, in their presence, off their boat or in their training facility; and whether an incident will develop into a lawsuit depends on determining exactly what happened and, in the absence of a clear explanation, whether the participants (or the injured diver’s family) can accept that somebody may have done something wrong.

 

The presence of the first factor, an emotional reaction, complicates the response to an incident and its investigation.  People fail to think and act objectively when emotion clouds their judgment.  They forget events, perceive things differently, speculate and often make conclusions without knowing all the facts.

 

The presence of the second factor determines whether the participants will see themselves in a courtroom two or three years down the road, defending their actions on the day in question and placing their fate in the hands of a judge and jury that often have no idea what it is like to venture underwater or of the risks involved.

 

In dive accident cases, the existence of objective evidence showing what happened can make or break the case.  This evidence often resides in the dive computers of the accident victim and their dive buddy.  Unfortunately, this evidence is routinely overlooked, omitted from accident reports or, worse, destroyed as data is overwritten or by the passage of time.

 

Types of Evidence

 

Generally speaking, there are two types of evidence: documents and testimony.  When given the choice of which type of evidence to use to prove my case, I choose documents every time.  The reason is simple:  People are not perfect and documents don’t lie.  Anybody who has ever witnessed or been in an accident knows that perception behaves in a fluid manner — not all perceptions are alike or even complete.  Two people can see the same event from the same vantage point and give two different descriptions of what happened.

 

Fifty people can be present at the scene of an accident and nobody could have seen everything that happened. In fact, depending on whether they “want to get involved,” 48 of these people may say they saw nothing at all, which brings us to documents.  Lawyers have a saying: “Documents don’t lie.”  Documents also don’t forget, disappear (more on this later), or suddenly change their story.  For these reasons, documents are the best source of evidence when a case goes to trial.

 

New Rules Governing Electronically Stored Information

 

Beginning in 2004, the federal judiciary began to recognize that more and more electronically stored information — e-mail, voice mail and computer data — was being used to prove cases.  However, the traditional forms of “discovering” documentary evidence — which principally meant examining and copying reams of paper stored in file cabinets, organized in folders by date or category — did not address the new realities of the digital age.  Instead, vast amounts of data are now stored in computers and other devices, and this data may never see the printed page.  Accordingly, the federal judiciary changed its rules of civil procedure, which govern the way litigation is conducted, to ensure that data stored in electronic form is incorporated into the litigation process throughout the United States.  It did so in several ways.

 

First, the definition of “documents” has been changed to include data stored in electronic form, no matter where it resides.  This means electronic data stored in a dive computer is technically a “document.”  The data does not have to be printed on paper or even retrieved, it simply has to exist.

Second, the days of playing a discovery game called “hide the ball” (i.e., “tell me what you want and I’ll see if I’ve got it”) are over.  It used to be that litigants and witnesses could sit back and wait for a document request or subpoena to come in the mail.  Then they would turn over as little as possible, and certainly no more than what had been asked for.  Not anymore.  Now the rules have been changed to require litigants to find out what they’ve got, and to disclose everything to the other side without being asked.  After this, the parties must sit down and jointly develop a plan describing how electronic data will be retrieved and the method by which it will be produced to the other side.  This plan, which the parties must agree on, is submitted to the court for approval.  Once the court approves the plan, it is turned into a court order from which the litigants can be punished if they fail to comply.

 

This is where things start to get interesting.

 

The rules also have been amended to provide significant sanctions for failing to disclose or produce data stored in electronic form.  These sanctions range from the imposition of stiff fines meant to reimburse the other side for the attorneys’ fees and costs it incurred to find or obtain electronic data to a finding by the court that a party’s failure to disclose or produce electronic data means they have “spoiled” the evidence.  Monetary sanctions imposed in recent cases have ranged from mere thousands of dollars to $1.25 million.

 

But the pain of sanctions does not end with simply having to pay money. In fact, a finding of spoliation can be the death knell for your case. After finding that evidence has been spoiled, the court will instruct the jury that it may infer the missing evidence was destroyed by you because it would have been helpful to your opponent’s case and harmful to yours.

 

Translation:  The judge will tell the jury you should lose, and the jury will follow the judge’s instructions.

 

There are other amendments to the rules that apply to electronic evidence, but you get the idea.  If you fail to properly identify, store, disclose and make use of electronic data, you are likely to spend tens of thousands of dollars in legal fees (or insurance premiums) simply to lose your case. You will be bled before you are killed.

 

Learning From the Aviation Industry

 

This brings me to dive computer data.  Remember when I said humans are not perfect?  Their memories can be faulty or clouded by emotion, or they just may not see or hear everything.  Well, when an accident occurs, the answer to the question “what happened?” is often right at our fingertips, stored in the data recorded in a dive computer.

 

Today’s dive computers have become just as sophisticated as PDAs or laptop computers.  They record time, temperature, depth, nitrogen saturation and human behavior, in small increments. They display this information in detailed readouts or, more commonly, in graphs.  There is hardly a dive computer on the market today that is not downloadable to a PC, providing detailed information recorded in “real time.”  These computers are like “black boxes” in aircraft, recording critical information that can be retrieved and analyzed in the event of an accident to determine exactly what went wrong.

 

Amazingly, the dive industry has not fully recognized the potential of this information.  But this is starting to change.  At least one training agency has recognized the benefits of routinely retrieving and analyzing data stored in dive computers after an incident.  The agency issued

a training bulletin in 2007 requiring its instructors to download data from their dive computers and submit this information with their incident reports after a mishap.

 

Other training agencies will likely follow this agency’s lead.  However, dive centers should not wait for training bulletins to begin instituting policies of downloading and storing dive computer data in the event of an incident occurring with one of their instructors or students. This is especially true if the injured diver was using rental equipment.  If so, the dive center should immediately download data stored on the dive computer, before it is overwritten and “spoiled” by the next user.

 

I cannot overemphasize the importance of immediately retrieving dive computer data and storing it until it can be handed over to a competent attorney who knows how to interpret it. In the past three years, I have had several cases in which the existence of dive computer data has or could have cracked the case.  In addition to the examples described above, I know of at least three other recent incidents in which lawsuits were not filed after dive computer data demonstrated that the injured divers caused their own injuries by making mistakes or ignoring warnings. These were incidents in which massive legal fees were not accumulated.

 

What to Do Now and In the Future

 

The new changes to the Federal Rules of Civil Procedure went into effect December 1, 2006.  The amended rules were immediately adopted by several states, and they are likely to be adopted everywhere else very soon.  However, some courts began to apply the new amendments even before they officially went into effect.

 

Consequently, trial lawyers have already had a head start of more than a year over the dive industry in applying the new rules to lawsuits.  This means that if you have an incident this weekend and you fail to download data from the dive computer, you can expect to be hit with a charge that you spoiled evidence two years from now when the case eventually goes to court.

 

Conversely, the learning curve for nondiving lawyers is steep.  Many do not know what a dive computer is or all of what it does.  Therefore, chances are good that lawsuits will be filed by lawyers and plaintiffs who cannot accept that an injured diver did anything wrong, and they have failed to look at the unbiased evidence in their possession.

 

When properly educated, these parties often drop their claims.  Of course, if a dive computer shows that one party was clearly at fault, this evidence tends to bring clarity to the litigation and/or negotiation process.  Claims are quickly dropped or settled, which allows dive centers to return to business without the significant distraction and expense of litigation.

 

The Bottom Line

 

As small-business owners, dive centers often have piles of documents to contend with. It is easy to overlook the little things.  However, when your business is at stake, you can’t afford any surprises.  The next time your business is threatened by an incident in which a diver is injured, take a few minutes to download the data from the dive computers involved. Store this data in a safe place and attach it to your incident report.  Think about amending your liability waivers to require students and divers to turn over their dive computer data upon request.

 

If you do not, you are making a mistake that could come back to haunt you.  Don’t let your business take a dive because you did not stop; think and act at the time of an incident and preserve critical information.