chevron-down Created with Sketch Beta.
May 24, 2019 Articles

A Road Map to Autonomous Vehicle Discovery

Cases are won and lost in the discovery phase—and autonomous vehicle litigation will be no different.

By Peter Moomjian

Over the past decade, autonomous vehicles have transitioned from science fiction fodder to a multibillion-dollar industry that will reshape the future of travel. Autonomous vehicles will solve a lot—but not all—of the safety problems plaguing the roads today. Indeed, we have already seen accidents involving them. In November of 2017, an autonomous shuttle was involved in an accident in Las Vegas. The fatal accident involving one of Uber’s autonomous vehicles in Arizona in 2018 was another highly publicized incident. As autonomous vehicles take to the road in ever-increasing numbers, accidents will continue to happen. As lawyers, we know that this means there will also be litigation.

Currently, a federal framework does not exist for autonomous vehicle law. Given the highly technical nature of autonomous vehicles, lawsuits stemming from autonomous vehicle accidents will likely apply products liability concepts to hold manufacturers of autonomous vehicles responsible for any harm that they cause. Products liability is typically an area where state law controls; thus, it stands to reason that unless federal laws are promulgated, states will be left to determine the appropriate laws for cases involving autonomous vehicles.

This article offers an overview of the discovery that should be sought in autonomous vehicle cases prior to the establishment of a statutory framework. As the adage goes, cases are won and lost in the discovery phase—and autonomous vehicle litigation will be no different. 

What Happened?

Determining what happened is an obvious place to start as it shapes the legal theories that underpin the case.

The first question to consider is “What was the likely root cause of the accident, i.e., was the autonomous vehicle being operated in a manner consistent with its suggested use?” The car’s user manual may provide valuable evidence. The user manual’s suggested operation for the autonomous vehicle should be compared to how the driver operated the vehicle. Currently, the most advanced vehicles on the road are semiautonomous and require human operation at times. Thus, an accident could be caused due to driver error, vehicle error, or both. Even when autonomous vehicles become more advanced and reach Level 5 (fully autonomous) automation, this question is still relevant as it may be possible for an occupant to disengage the autonomous driving function or input commands to the car that violate traffic laws. This aspect of discovery will help determine where liability should be attributed. It will also determine whether the plaintiff is pursuing the case under the theory of negligence against the occupant of the vehicle or under the theory of strict liability against the manufacturer.

A related question to consider is “Did the crash likely occur because of user error, a software error, a mechanical error, or something else?” The answer to this question will establish which parties may be able to file dispositive motions, which parties remain in the lawsuit after the discovery phase, and the type of information that can be sought throughout discovery. One of the benefits of autonomous vehicles is the reams of data that they provide. This includes a plethora of camera angles and sensors that identify where the car was in relation to other objects, the car’s speed and direction, weather conditions at the time of the accident, and whether any systems in the car were not functioning properly. This list is not exhaustive, but you get the picture (pun intended). As we have seen with the black boxes and flight data recorders in airplanes, investigators will be able, in some instances, to deconstruct the causes of accidents without eyewitness accounts. The owners of the data, whether it be the car manufacturers or the companies that created the components that enable the car to drive autonomously, will likely need to educate their attorneys about the technical aspects of their products and the data they collect and store so that the data is interpreted correctly in litigation and regulatory proceedings.

As with traditional auto accident cases, determining who may be at fault will also require depositions; review of police reports; and an evaluation of the vehicle’s maintenance history, including software updates.

Broken Promises?

In design-defect products liability cases, some state courts will apply the consumer-expectation test or the risk-utility test when considering the representations that were marketed to consumers and how these representations influenced consumers. For example, in Aubin v. Union Carbide Corp., the Supreme Court of Florida applied the consumer-expectation test to a design-defect products liability case and stated that the consumer-expectation test “intrinsically recognizes that a manufacturer plays a central role in establishing the consumers’ expectations for a particular product, which in turn motivates consumers to purchase the product.” 177 So.3d 489, 503 (Fla. 2015).

When litigating an autonomous vehicle case, an analysis should be performed to determine whether the autonomous vehicle manufacturer made representations about the capabilities of the vehicle that did not comport with the vehicle’s actual capabilities. If the vehicle’s capabilities were oversold, was this a contributing factor to the accident?

To properly assess the manufacturer’s representations regarding the capabilities of its vehicles, the autonomous vehicle manufacturer’s user manual, as well as other marketing materials that may have influenced the autonomous vehicle purchaser’s decision to buy the vehicle, should be reviewed.

There Will Be Data

The movie Cars is no longer fiction as autonomous vehicles are able to “speak” to us. In other words, autonomous vehicles generate massive amounts of data. For purposes of a lawsuit, the data is the car’s version of testimony. Knowing the type of information and data to request in discovery, the potentially valid objections to certain discovery requests, and the data that is appropriate to disclose will be pivotal to discovery. As mentioned above, video recordings made by the autonomous vehicle’s cameras and other data generated by the autonomous vehicle’s sensors should all be sought in discovery because this information is highly likely to be relevant to determining the cause of an accident.

Attorneys also need to examine the history of the autonomous vehicle’s software. Was the software known to be problematic? Did the owner of the autonomous vehicle fail to update the software in a timely fashion? Were the software’s capabilities up to par with the industry standard? This year, the software used in Boeing’s 737 MAX aircraft has come under scrutiny following two accidents in the span of five months. Lawsuits will undoubtedly seek information concerning Boeing’s prior knowledge of any alleged software problems. Autonomous vehicle discovery undoubtedly will involve a similar type of investigation.

Additionally, attorneys should consider retaining experts to synthesize the data obtained in discovery and to opine as to the cause of the accident based on their review of the data. 

Buckle Up

Autonomous vehicle technology is only beginning to scratch the surface. The Governors Highway Safety Association predicts that by the 2040s, 30 percent to 50 percent of vehicle traffic will consist of autonomous vehicles. Governors Highway Safety Association, Preparing for Automated Vehicles: Traffic Safety Issues for States 17 (Nov. 18, 2018).

As autonomous vehicles take on an ever-increasing presence on our roads, attorneys must be prepared to litigate an ever-increasing number of cases—and adapt to the challenges presented by autonomous-vehicle-accident litigation. When more specific legislation is enacted for autonomous vehicles, greater clarity regarding the discovery process will emerge. In the meantime, embrace the data and welcome the wealth of information offered by autonomous vehicles. This will allow you to litigate autonomous vehicle cases successfully on behalf of your client.

Peter Moomjian is an associate attorney at Lester Schwab Katz and Dwyer in New York, New York.

Copyright © 2019, American Bar Association. All rights reserved. This information or any portion thereof may not be copied or disseminated in any form or by any means or downloaded or stored in an electronic database or retrieval system without the express written consent of the American Bar Association. The views expressed in this article are those of the author(s) and do not necessarily reflect the positions or policies of the American Bar Association, the Section of Litigation, this committee, or the employer(s) of the author(s).