39 Trial Lawyer • Summer 2023 curred. Downloading the EDR off of the ACM requires a special tool to read and copy the information and translate it into English. BOSCH has a tool that will read most vehicles driven in the US and Canada. There are certain exceptions, most notably, KIA, Hyundai and Genesis (Chrysler) who have their own special tool to help download their EDRs. The information is directly downloaded from the vehicle. Ideally, the vehicle’s OBDII (On-board diagnostic second generation) port, located in the driver’s well, can be accessed using the vehicle’s own electrical system. If the vehicle’s electrical system is too badly damaged, the ACM can be removed from the vehicle and downloaded directly to a desktop or laptop using a special cable. Downloading and reading the EDR takes about 15 minutes. Once the EDR report is in hand, it’s important to have it analyzed by an expert. Each EDR report will come with multiple pages of “data limitations” that need to be read and interpreted to ensure that the report is from the crash you are investigating. The careful lawyer needs to make sure the tires on the vehicle are in fact the size tires that the vehicle has been calibrated against, which has a direct impact on the speed displayed. Takeaways There are some important ACM/ EDR take-aways from a discovery standpoint that can be useful. If you read nothing else in this article, hopefully it is this list. Please keep these in the back of your head anytime you’re litigating a vehicle case. These are not in order of importance but numbered for convenience: 1. An airbag does not have to deploy for data to be recorded and retrievable. In any vehicle case, you should consider pulling ACM data. 2. Airbag non-deployment includes some vehicle versus pedestrian strikes as well. There are crashes where impact with the pedestrian was enough for the ACM to “wake-up” and record the event to the EDR. Again, in any vehicle case, including versus a pedestrian, you should consider pulling ACM data. 3. An EDR is like a thumb drive, and the download machine is only capable of copying the information. It cannot upload, or alter the information. 4. Even for vehicles that only report post-crash information, it is worth downloading the data. The post-crash data, along with a good scene diagram, can be used to determine the speed of the vehicle. 5. Speed is not the only data for which an EDR can be useful. Consider a three-vehicle crash during rush hour on Interstate 5. All vehicle speeds are well below the posted speed limit. With the EDR reports from the middle vehicle, I can prove that the third vehicle rear-ended the second vehicle first, and then pushed both vehicles into the first vehicle. The post-crash longitudinal signals show the first impact happened from rear to front, and the second impact from front to rear. 6. EDR can show if a vehicle was stopped or not. 7. EDR can show if brakes were applied. 8. Information from the EDR can be used for a time-distance analysis to show the “what-ifs” in crashes. I altered the facts of this case to protect the victim’s family. There was a young victim, and their airbag did not deploy. I only learned about their amazing personality after death. It’s a heartbreaking but necessary conversation to explain our system of recovery. There’s no easy way to do it, but I learned a lot from this case. Not just about product defects and respondeat superior liability, but family grief. I also learned about the idea of “joint” discovery or discovery gathered by parties at the same time under a strict agreement. This case resulted in a substantial recovery through settlement for the surviving heirs. Most of the settlement details are confidential and even the manufacturer’s name cannot be disclosed. The author thanks Michael Klews, a certified accident reconstructionist, for his assistance. Klews proved valuable in analyzing the data from the airbag control module. He can be reached at 541-9540866 or mklews@me.com. Blaine Clooten is a trial attorney specializing in personal injury, family law and estate planning. Clooten owns and operates Clooten Law with his wife, M. Nicole Clooten. Clooten Law has offices in Hermiston and Pendleton and receives mail at P.O. Box 1832, Pendleton, OR, 97801. Clooten can be reached at 541-667-7993 or clootenlaw@gmail.com.
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