Many years ago, a young woman left work in Bentonville and was driving north to her home in Pineville, Missouri. At the same time, a young man from New Zealand was south bound behind the wheel of an eighteen-wheeler headed back to central Arkansas. Traffic suddenly slowed in the south bound lane and the young truck driver hit his breaks. Failing to stop, he pulled the massive truck to the left instead of the right and crossed the center line.
The semi slammed head-on into my client’s car. She miraculously survived but was seriously injured.
What I learned was that the driver’s employer, an Arkansas trucking company, was hiring very young men through an agency that recruited them from New Zealand to spend a year or two in America driving these massive trucks. And, not so coincidentally, one week after the wreck, the truck driver left the company’s employment and returned to New Zealand. Despite my pre-suit demand that the trucking company maintain the truck driver’s hours of service logs, and initially telling me in discovery that the logs existed, the company later could not, or would not, produce them and swore under oath that they were lost or destroyed.
Several months later, my client’s husband found a small notebook in a box of items that had been picked up at the crash scene and placed into the trunk of his wife’s demolished car. It was obvious that the notebook was the young truck driver’s journal in which he made rather intimate notes of this thoughts and activities. Fortunately, he had also recorded the time of his diary entries as well as his location. I provided the information to my trucking expert and it became clear that the driver could not be in the locations on the date and times he had recorded without running well over the hours of service he was allowed to be on the road.
I also immediately contacted my opposing counsel and provided them with a copy of the journal. I remember getting a call from the lead attorney for the defendant trucking company and his telling me, “that journal will never see the light of day.” He knew of course that it’s contents contained objectionable hearsay, and that in order for me to offer it into evidence, it had to first be authenticated under oath. He also knew that the only person who could do that was the truck driver on the other side of the world.
Not to be deterred, I began to research how I might depose the driver. I found an article by a New York lawyer who had taken a deposition in New Zealand in a civil case and contacted the attorney. He explained to me that because there was no formal treaty between our two countries, I would have to petition the U.S. District Court in which my case was pending for a Letter of Request to the High Court of Auckland, New Zealand, for the issuance of a subpoena requiring the driver to attend a deposition. I also learned that, if both courts agreed, the deposition would have to take place in the High Court of Auckland.
To make a long blog post shorter, both courts agreed, and I’ll never forget the lead counsel for the defendant trucking company as he walked into the lobby of the Stamford Hotel in Auckland, shake his head (and my hand) and say, “I do admire your bull-doggedness.”
The High Court of Auckland, New Zealand.
Bruce L. Mulkey is a member of the Academy of Truck Accident Attorneys. Please click HERE to learn more about Bruce.