Evidence Collection Issues
One huge issue that could arise as self-driving cars become more prevalent is the difficulty of collecting evidence when one of these vehicles is involved in an accident.
If the car involved in an accident were only partially automated, meaning that sometimes the car was self-driving and sometimes the human driver operated the vehicle, a litigant would need access to a plethora of information to determine who was liable. Was the car in autopilot mode? Was the driver in control? If the car was in an autonomous mode, had it indicated that the human driver needed to take control? If so, how long before the accident did the indicator go off? If the car were in self-driving mode, was the system up to date with any relevant software updates or patches? If not, who had failed to install the relevant updates – the driver or the manufacturer?
If the car were fully autonomous, the issue of who was in control would not be relevant, but there would still be numerous discovery issues. Was all of the software and hardware (like cameras) functioning properly at the time of the accident? Were there any uninstalled updates? If the accident was due to a code glitch, had that same issue caused accidents before?
The problem with collecting evidence to answer these important questions is that most of them would require car manufacturers to reveal protected technology and coding information. Because driverless car technology is such a competitive field, it is unlikely that any car manufacturer would willingly divulge information that could potentially be used by its competitors. Attempts to keep code secret could present significant hurdles for litigants injured by self-driving cars, as they would have to fight to gain access to relevant liability information in their cases.
It would be unfortunate if a lawsuit had to be filed to get access to information to see if a lawsuit was appropriate. In other words, to the extent we still have a fault-based liability system in motor vehicle wrecks, it would be extremely difficult for a lawyer or an insurance company to get access to the data about the collision to determine who, if anyone, was at fault for the wreck because the entity that holds the data will not want to “unlock” it for an evaluation, particularly if doing so exposes it to liability. The data may be available via a subpoena, but under current rules, a lawsuit must be filed before a subpoena can be issued.
Another issue is cost. Today the vast majority of the vehicles on the market contain “black boxes” that record data about the operation of the vehicle. If a wreck occurs, the data stored on the data recorders can provide essential information that is very helpful in reconstructing how the wreck occurred as well as other information. (Note that Tesla used a black box in June 2016 to show that a car was not in autopilot mode when it crashed and that the accident was thus the fault of the driver). However, some vehicle manufacturers make it very difficult and expensive to get this data – we recently had to pay an expert witness $2,000 to download the data for us. Spending this amount of money to access the data is simply unaffordable in “small” cases. And remember: today we can figure out how and why a wreck occurred based on eyewitness testimony, physical evidence, and some common sense. That will not often be possible with Level 3 automation vehicle wrecks, particularly when the wreck also involves a Level 1 or Level 2 vehicle.
Thus, there needs to be a process developed so that insurance companies and lawyers can obtain access to information about the operation of the vehicle in the seconds before and after the crash and performance information about the operating software in an economical fashion, while still protecting the proprietary interest of the software developer. We all understand that the goal of autonomous vehicles is to substantially reduce, if not eliminate, personal injury, death and property damage, but we also need to accept the fact that, especially in the early years, there can and will be wrecks that cause human and other losses and we must find a way to address such issues in our civil justice system.