EDRs and admissibility

[Seattle S65B40]

Event Data Recorders. I found a thread on this subject here, but it is in a location of the forum that gets little traffic. Please share your thoughts here.

In short my question is whether law enforcement or insurance adjusters can obtain the information and use it against you in an accident and to what degree and level of information the recorder provides. I understand dealers use this in engine repair scenarios to ensure you weren't revving too high, etc...

Thanks.

[mkoesel]

http://www.m3post.com/forums/showthread.php?t=173567

[Seattle S65B40]

Thank you, sir. The car is surely equipped with it, but I'm not yet sure on the level of data it provides and whether this is admissible in a criminal or civil litigation context.

Is it even obtainable by anyone other than BMW?

I have seen cases, albeit on a GM truck, where, following a serious collision, the insurance adjuster downloaded data from before the accident. He determined the insured was going the speed limit the entire time before the accident.

Obviously, there can be other situations where it doesn't quite work to the vehicle operator's benefit. It would be nice to know exactly what data is recorded and whether that is available to anyone other than BMW.

[esquire]

The real q here is what were you doing before your accident that has you so worried?

[Seattle S65B40]

Originally Posted by esquire

The real q here is what were you doing before your accident that has you so worried?

Thankfully, no accident here. I do "speed" in the sense that I do not travel the the precise speed limit at all material times. Just curious whether that data could ever harm my interests (or anyone else on here), or is it simply dealerships that are getting this data from our cars.

[nick3753]

I'd imagine it couldn't be used against you for moving violations (other than a fine)for the simple fact it wouldn't indicated who was actually driving the car. For accident issues..?

[JCtx]

BMW would have to produce it by court order, so it'd only come into play in case of a very serious accident IMO. Otherwise it'd only be used by BMW to vindicate themselves in case of a bogus claim like 'unintended acceleration'. Or to deny a warranty claim due to a mechanical overrev (6MTs only), or something like that. By the way, I think it's only permissible to record the last 5 seconds, if I'm not mistaken, but who knows. Good day.

[Seattle S65B40]

Originally Posted by elp_jc

BMW would have to produce it by court order, so it'd only come into play in case of a very serious accident IMO. Otherwise it'd only be used by BMW to vindicate themselves in case of a bogus claim like 'unintended acceleration'. Or to deny a warranty claim due to a mechanical overrev (6MTs only), or something like that. By the way, I think it's only permissible to record the last 5 seconds, if I'm not mistaken, but who knows. Good day.

Who's to say someone with a laptop and a OBD compatible input is not able to obtain this?

I agree, that only it would only be an issue in serious accidents. The adjuster example I cited above included a fatality.

The problem is that the plaintiff's bar is really empowering attorneys to push for this kind of evidence in other accidents, and i wonder whether they will succeed in their efforts at getting this kind of evidence from BMWs. A 12 year old could get this info from a GM or Ford vehicle. I highly doubt your local, state or federal officers have the capability of getting this info at the scene from a car like the M3, but that may change.

Btw, I think BMW would not be involved most likely. I think this info would be obtainable under Rule 34, in which case you would need a protective order to avoid giving it up, and I don't see a judge granting such an order. It's completely relevant to causation and there is no competing interest to weigh in favor of exclusion...

No matter how you slice it, I see this as something that will only be expanded in the future. Federal legislation calling for similar and even more detailed data on all cars and having it be admissible in all criminal and civil actions is not out of the question.

[Jaypod]

You must have way too much time on your hands.......

[Seattle S65B40]

Originally Posted by Jaypod

You must have way too much time on your hands.......

Thanks - I guess

[mkoesel]

Originally Posted by Jaypod

You must have way too much crime on your hands.......

fixed













Easy - joking! Just joking!

[Seattle S65B40]

Originally Posted by mkoesel

fixed



Easy - joking! Just joking!

haha - Canton, representing! I'm VERY familiar with the Mitten state. Please tell me you didn't buy your car from Erhard in Farmington...

[JCtx]

Originally Posted by Seattle S65B40

Who's to say someone with a laptop and a OBD compatible input is not able to obtain this?

Not admissible in court then . You seriously have too much time in your hands man; do something .

EDRs are a fact of life in this litigious country now, just like cameras everywhere, and who knows what else, so just don't do anything stupid and you won't have anything to worry about .

[Seattle S65B40]

Originally Posted by elp_jc

Not admissible in court then . You seriously have too much time in your hands man; do something .

EDRs are a fact of life in this litigious country now, just like cameras everywhere, and who knows what else, so just don't do anything stupid and you won't have anything to worry about .

I'm a defense litigator, so I am thinking about things relevant to my clients, while at the same time looking out for fellow enthusiasts. So, technically, i'm getting paid to do this.

Just because someone obtains it with a laptop, doesn't mean it's not admissible. It can still be authenticated and have the foundation laid. The issue is whether or not it's even attainable in a useful form for Plaintiff's lawyers and law enforcement. This seems to remain the unanswered question here.

I agree with the rest of your statement though

[JAJ]

Originally Posted by Seattle S65B40

I'm a defense litigator, so I am thinking about things relevant to my clients, while at the same time looking out for fellow enthusiasts. So, technically, i'm getting paid to do this.

Just because someone obtains it with a laptop, doesn't mean it's not admissible. It can still be authenticated and have the foundation laid. The issue is whether or not it's even attainable in a useful form for Plaintiff's lawyers and law enforcement. This seems to remain the unanswered question here.

I agree with the rest of your statement though

I thought I read somewhere recently that a judge somewhere in the US had ruled that the ECU data was "private property" or some similar legal construct that meant that a search warrant was required to access it. In turn, the search warrant required "cause", raising the bar somewhat on just downloading it and using it in court.

[Seattle S65B40]

Originally Posted by JAJ

I thought I read somewhere recently that a judge somewhere in the US had ruled that the ECU data was "private property" or some similar legal construct that meant that a search warrant was required to access it. In turn, the search warrant required "cause", raising the bar somewhat on just downloading it and using it in court.

Good to know. Thank you sir. I have only begun looking into this issue, and would be happy to update fellow members on my findings. That's the first I've heard of any private property analogy. If someone is speeding along the highway at X speed, it's not private by any means. A mere recording of the same likely wouldn't be classified as private. I'd have to read the case though to know the legal basis of the decision.

[JAJ]

Originally Posted by Seattle S65B40

Good to know. Thank you sir. I have only begun looking into this issue, and would be happy to update fellow members on my findings. That's the first I've heard of any private property analogy. If someone is speeding along the highway at X speed, it's not private by any means. A mere recording of the same likely wouldn't be classified as private. I'd have to read the case though to know the legal basis of the decision.

I am not a lawyer, and I'm in Canada where the law is rather different, but I took notice of the issue because it would be an issue here too.

That said, the reasoning that I remember was that if you speed on the highway, it's in plain view and anyone who sees you do it can testify to that fact. Your EDR data, on the other hand, is not in plain view and nobody but you has access to it.

The issue seems to hinge on the question of whether someone can, with no evidence whatever, download and investigate your EDR data to find out if you've been speeding. It's evidence if you're accused of a crime, but it's unlawful search and seizure if you're not.

[kenwelch]

I had a chance to hear a little about EDR technology at a Toyota Technical class this last summer. We also reviewed the service procedures and reality of unintended acceleration in their vehicles.

There will be standardized EDR data coming I believe to the 2012 or 2013 vehicles much like the OBD-II standard for emission monitoring. As I was told there is a plan to make retrieval simpler and easier to display / graph. Currently most data is engineering based and requires specialized software to retrieve and someone trained in the interpretation of the data.

Here are a few links about the systems:
Introduction:
http://www.blackboxofsecrets.com/

Types of information recorded (this varies by mfg.)
http://airbagcrash.com/

State laws and privacy:
http://www.ncsl.org/IssuesResearch/T...5/Default.aspx

[kenwelch]

Originally Posted by Seattle S65B40

Good to know. Thank you sir. I have only begun looking into this issue, and would be happy to update fellow members on my findings. That's the first I've heard of any private property analogy. If someone is speeding along the highway at X speed, it's not private by any means. A mere recording of the same likely wouldn't be classified as private. I'd have to read the case though to know the legal basis of the decision.

This is a link for Privacy Legislation:
http://www.ncsl.org/IssuesResearch/T...5/Default.aspx

Another great bit:
http://www.injurysciences.com/Docume...ive%20EDRs.pdf

[Legion5]

BMW is probably talking about the codes that the computer stores and used the word not to reffer to classical event data recorders like GM uses, but the use of the word is just a result of the translation from German.

[mkoesel]

Originally Posted by Seattle S65B40

haha - Canton, representing! I'm VERY familiar with the Mitten state. Please tell me you didn't buy your car from Erhard in Farmington...

Ah, so you're one of the lucky ones who escaped.

Nope, I did not buy from Erhard. However, my previous E46 M3, which was my first BMW, was bought there. We'll take the rest of that discussion to PM. I bought my current E93 at Yark in Toledo, Ohio, and the 335i was actually purchased from a dealership in Missouri.