A modern vehicle can create important evidence while a crash is happening.
An event data recorder, often called an EDR, can record information from shortly before or during a collision. Depending on the vehicle and system, that information can include vehicle speed, braking, throttle position, seat-belt use, air-bag deployment, and changes in vehicle speed during the crash.
That kind of digital crash evidence can become important in a Kentucky personal injury or car accident case.
But there is a problem. Kentucky has rules for discovering electronic information and rules addressing missing evidence. What Kentucky does not currently have is a specific civil procedure rule explaining what courts should do when electronically stored information that should have been preserved is lost.
Kentucky should adopt one.
Can Digital Evidence Be Discovered in a Kentucky Lawsuit?
Yes.
Kentucky Rule of Civil Procedure 34.01 allows parties to request documents, data compilations, and tangible things that are within another party’s possession, custody, or control.
Kentucky evidence rules also recognize electronic information. KRE 901 allows electronic evidence to be authenticated through proof that the process or system used to create it produces an accurate result. KRE 1001 also recognizes electronically stored information as a writing or recording.
The basic point is straightforward: digital evidence can be evidence in a Kentucky lawsuit.
But the right to preserve evidence and the right to access it are not always the same thing.
Who Owns the Data in a Vehicle’s Event Data Recorder?
Federal law generally treats EDR information as belonging to the vehicle owner or, in the case of a leased vehicle, the lessee.
The federal Driver Privacy Act limits when another person may access that information.
Access may be allowed in certain situations, including through owner consent, a court order, certain government investigations, emergency medical purposes, or qualifying traffic-safety research.
That distinction matters.
A Kentucky court may need to preserve a vehicle or its digital evidence while the parties argue about whether someone is legally entitled to retrieve the data.
A preservation order should preserve evidence. It should not automatically grant access to it.
What Happens When Evidence Is Lost in Kentucky?
Kentucky currently relies heavily on its missing-evidence doctrine.
Two important Kentucky Supreme Court cases are University Medical Center, Inc. v. Beglin and Norton Healthcare, Inc. v. Disselkamp.
In Beglin, the Kentucky Supreme Court approved a missing-evidence instruction that allowed a jury to infer that missing evidence would have been unfavorable to the party responsible for its loss.
But the instruction required more than simple carelessness.
The jury had to find that the evidence existed, contained important information, and was intentionally and in bad faith lost or destroyed.
The Court also explained that simple negligence does not amount to bad faith.
That is an important safeguard.
What Did the Kentucky Supreme Court Say in Disselkamp?
In Disselkamp, the Kentucky Supreme Court identified several things courts may consider when evidence goes missing:
- whether the evidence was important or relevant;
- whether the opposing party had care, custody, and control of it;
- whether that party knew the evidence was relevant when it was lost or destroyed; and
- whether there was an unexplained failure to produce the evidence when requested or ordered.
The Court rejected the idea that a party automatically gets a missing-evidence instruction simply because evidence disappeared after litigation became possible.
The Court also declined to create a more detailed preservation rule for electronic evidence.
That leaves an important gap.
Why Is Lost Digital Evidence Different?
Traditional evidence may be a paper document, photograph, physical object, or written report.
Modern electronic evidence is different.
Digital information may be automatically overwritten. A vehicle may be repaired, sold, totaled, destroyed, or placed back into service. Software may overwrite data. Electronic records may disappear through routine system operations.
That means valuable evidence can disappear without anyone physically shredding a document or throwing something away.
Kentucky’s current missing-evidence doctrine primarily answers this question:
When is the loss serious enough to justify an adverse inference against a party?
It does not provide a full procedure for deciding what should happen when electronic information should have been preserved but is gone.
How Does Federal Rule 37(e) Handle Lost Electronic Evidence?
Federal courts already have a specific rule for this problem.
Federal Rule of Civil Procedure 37(e) applies when electronically stored information:
- should have been preserved because litigation was anticipated or already underway;
- was lost because reasonable steps were not taken to preserve it; and
- cannot be restored or replaced through additional discovery.
If another party was prejudiced by the loss, a federal court may order measures necessary to cure that prejudice.
The harshest remedies require more.
A court may presume that the missing information was unfavorable, give an adverse-inference instruction, dismiss a case, or enter default only when the court finds an intent to deprive another party of the information’s use in the litigation.
That structure makes sense.
Kentucky should adopt a similar approach.
What Should a Kentucky Digital Evidence Rule Require?
A Kentucky rule should be narrow.
It should not require every person or business to save every electronic record after every accident.
Instead, it should apply only when electronically stored information should reasonably have been preserved because litigation was anticipated or already underway.
The rule should then ask several questions.
1. Should the Evidence Have Been Preserved?
The first question should be whether there was actually a duty to preserve the information.
Courts should consider what the party knew at the time and whether litigation was reasonably anticipated.
2. Were Reasonable Steps Taken?
The rule should require reasonable preservation, not perfect preservation.
A court should be able to consider:
- who controlled the evidence;
- what the party knew;
- how difficult preservation would have been;
- what steps were actually taken; and
- whether comparable evidence remained available elsewhere.
3. Can the Lost Information Be Replaced?
Before imposing a remedy, the court should determine whether the information can be restored or replaced through other discovery.
If equivalent evidence is still available, there may be little or no reason for a sanction.
4. Was the Other Party Actually Prejudiced?
If evidence is truly gone and cannot be replaced, the court should determine whether the loss actually harmed another party’s ability to present its case.
Any remedy should be no greater than necessary to fix that harm.
5. Was the Evidence Intentionally Destroyed?
This is where the harshest remedies should be reserved.
An adverse presumption, adverse-inference instruction, dismissal, or default should require a finding that the party intended to deprive another party of the evidence.
That approach would remain consistent with Kentucky’s existing rule in Beglin that simple negligence is not enough to justify an adverse inference.
Should Kentucky Courts Be Able to Enter Early Preservation Orders?
Yes.
A new rule should also make it easier for a court to enter an early preservation order directed at a specific source of electronic evidence.
For example, an order could identify a vehicle or electronic data source that must be maintained and prohibit destructive alteration while the parties work through the legal issues.
The order could also establish a process for inspection or retrieval.
At the same time, it should preserve objections concerning:
- ownership;
- consent;
- privacy;
- privilege;
- admissibility; and
- statutory access rights.
Again, preserving evidence should not automatically mean giving someone unrestricted access to it.
Why Does This Matter in a Kentucky Car Accident Case?
Modern crash cases may involve much more than a police report and photographs.
A serious Kentucky car accident or truck accident may involve electronically stored information from vehicles, phones, commercial trucking systems, electronic logs, cameras, or other digital sources.
When important digital evidence disappears, Kentucky judges need a clear procedure for deciding:
- whether the evidence should have been preserved;
- whether reasonable preservation steps were taken;
- whether the evidence can be restored or replaced;
- whether another party was prejudiced; and
- whether the loss was intentional.
That is better than forcing every lost-digital-evidence dispute into a doctrine developed before much of today’s electronic evidence existed.
Kentucky Needs a Clear Rule for Lost Digital Evidence
Kentucky law already recognizes electronic data as discoverable and potentially admissible evidence.
Kentucky law also allows a missing-evidence instruction when the facts support intentional and bad-faith loss.
But Kentucky does not currently have a rule comparable to Federal Rule 37(e) that specifically addresses electronically stored information that should have been preserved but no longer exists.
Kentucky should adopt one.
A carefully written rule could require reasonable preservation, ask whether missing information can be restored or replaced, allow courts to cure actual prejudice, and reserve the harshest remedies for intentional destruction.
That would give Kentucky courts, lawyers, businesses, insurance companies, and injured people a clearer road map for handling evidence that increasingly exists only in digital form.
About the Author
Connor M. Breen, Esq. is President of Richard Breen Law Offices, P.S.C., a Louisville, Kentucky personal injury law firm representing people injured in car accidents, truck accidents, and other serious injury cases.
Legal Authorities and Sources
- 49 C.F.R. §§ 563.3, 563.5, 563.6 and 563.7
- Kentucky Rule of Civil Procedure 34.01
- Kentucky Rule of Civil Procedure 37.02
- Kentucky Rules of Evidence 901 and 1001
- University Medical Center, Inc. v. Beglin, 375 S.W.3d 783 (Ky. 2011), modified on denial of rehearing (Mar. 22, 2012)
- Norton Healthcare, Inc. v. Disselkamp, 600 S.W.3d 696 (Ky. 2020)
- Louisville Cement Assets Transition Co. v. Snyder, Nos. 2023-CA-1383-MR & 2024-CA-0007-MR (Ky. Ct. App. June 5, 2026) (not to be published)
- Federal Rule of Civil Procedure 37(e)
- Driver Privacy Act of 2015
- Kentucky Supreme Court Rule 3.130(3.4)(a)
