You've got physical evidence that matters, a suspected claim that hasn't been filed, and an adverse party eager to examine the item. Do you hold everything as it is, or allow inspection now, risking alteration of what you might need later?
A federal court in Maryland recently tackled this dilemma. General Motors filed a Fed.R.Civ.P. 27 motion to preserve vehicle components from a fatal collision before any lawsuit existed. The court allowed a nondestructive inspection and instructed the parties to create a protocol for destructive testing. They couldn't agree. This ruling serves as a case study for legal operations teams deciding how aggressively to preserve versus investigate.
The Question at Hand
Rule 27 allows a person who wants to perpetuate testimony to file a verified petition in the district where an expected adverse party resides. It's primarily for depositions but was stretched here to cover inspection of physical evidence, showing the demand for a pre-suit mechanism that works.
The tension is clear. Preservation means keeping evidence unchanged. Investigation can mean altering it, sometimes irreversibly. Without a filed complaint or a defined defect theory, it's uncertain which steps are benign and which are destructive. The court noted this: no lawsuit had been filed and no specific defect identified.
So, where do you draw the line between maintaining the status quo and permitting testing before claims are defined?
The Case for Approach A: Preserve Intact, Test Later
GM's position was straightforward. They aimed to preserve the vehicle's status quo until a lawsuit was filed, except for steps in their own protocol. Advocates of this approach argue:
- You can't un-ring a bell. Destructive steps can't be reversed. Altering a component before a defect theory exists might eliminate crucial evidence for a defense not yet framed.
- Testing should follow pleading. Once a complaint is filed and a theory is articulated, scope can be tied to actual claims. Before that, steps are approved in a vacuum.
- Uncertainty calls for restraint. The respondents wouldn't limit their theory to specific systems. The court noted this uncertainty reinforced GM's concern that destructive testing could undermine its defense against an unasserted theory.
- Contamination is real. GM's objection that loosening covers in an unenclosed location risked contamination was credited. The court moved the inspection to a dealership facility.
The core logic here is that a Rule 27 proceeding should be a holding action, not a discovery substitute.
The Case for Approach B: Allow Controlled Testing Now
The respondents argued the opposite, and the court gave their argument weight. Advocates of this side argue:
- Efficiency matters. The court cited Rule 1's instruction for just, speedy, and efficient determination. Respondents suggested that loosening covers for visual inspection might spare additional inspections and expenses later.
- A party can't have it both ways. The court resolved GM's contamination concern by relocating the inspection. When GM objected that the same steps would "destroy" components, the court found the argument unconvincing.
- Evidence degrades anyway. Vehicles in storage aren't static. Early inspection may argue that waiting poses its own preservation risk.
- The party moving first shouldn't control the pace. If the party filing the Rule 27 motion can freeze everything it dislikes, the proceeding becomes one-sided.
The core logic here is that a pre-suit proceeding should produce usable information, with safeguards, rather than defer everything.
Where Practitioners Actually Land
Most experienced litigators and legal operations teams don't choose a pure side. They find a middle ground, as the court's order demonstrates.
First, sequence the steps. Loosening and visual inspection could occur only after GM completed other steps in its protocol, including testing the vacuum pump or master cylinder in an exemplar vehicle. Sequencing allows the more cautious party to gather what it needs before riskier actions.
Second, leave room for agreement. The court allowed the parties to pursue any mutually agreed steps. Consensual expansion is cost-effective; court-ordered expansion over objection is not.
Third, put the risk on the party who asked for it. The court told the respondents they were "taking a calculated risk." If steps spoiled evidence GM needed, the trial court could impose sanctions, and approval over GM's objection wouldn't protect the respondents. The order places the downside on the party pushing for access.
One technical point for records and eDiscovery teams: Fed.R.Civ.P. 37(e) applies only to electronically stored information, so it doesn't govern here. Tangible evidence falls under the court's inherent authority and case law. In Silvestri v. General Motors Corp., 271 F.3d 583 (4th Cir. 2001), sanctions were imposed where GM was deprived of an opportunity to inspect the vehicle in a product liability claim. Don't assume the ESI safe harbor applies to physical evidence.
Our Take
The order gets the allocation of risk right, and that's the lesson to carry into your programs.
If you're seeking early access, treat any court-approved step over objection as a bet you might lose. Approval to proceed isn't approval of the outcome. Build a record before you act: document the item's condition, photograph and video each step, define the scope in writing, and keep your chain-of-custody and Legal Hold records tight. If the step proves harmful, that documentation is your best defense against a spoliation argument.
If you're seeking to preserve, don't let your position drift. The court's skepticism toward GM was driven less by the merits of the destruction concern than by a shift in stated objections after the court addressed the first one. State your concerns completely and early, tie each to a specific mechanism of harm, and be prepared to explain it factually. A vague claim that a step will "destroy" evidence doesn't carry weight.
For legal operations teams, this means your preservation playbook needs two tracks. One covers ESI under Rule 37(e). The other covers physical evidence, where inherent-authority sanctions and case law apply, and the safe harbor doesn't. Rule 27 petitions are rare, and the pre-suit posture is unusual, but the principle is durable: preserve first, test in sequence, document everything, and know who carries the risk before anyone touches the evidence.
Early testing is defensible when it's controlled, sequenced, and owned by the party who wants it. Without those conditions, hold the item as it is and wait for a defined claim.
