[EDRM Editor’s Note: The opinions and positions are those of Michael D. Berman.]

General Motors filed a Fed.R.Civ.P. 27 motion to preserve evidence that “could” be involved in an as-yet unfiled lawsuit. The motion centered on parts of a vehicle that had been involved in a fatal collision. General Motors LLC v. Drumwright, 2026 WL 272906 (D. Md. Oct. 30, 2026)(Coulson, J.).

Rule 27 governs “depositions to perpetuate testimony.” It states in part: “A person who wants to perpetuate testimony about any matter cognizable in a United States court may file a verified petition in the district court for the district where any expected adverse party resides. The petition must ask for an order authorizing the petitioner to depose the named persons in order to perpetuate their testimony.”

In an initial proceeding, the General Motors Court ordered nondestructive inspection of the vehicle. The Court also instructed the parties to develop a protocol for destructive testing to be performed in a second inspection. However, after the initial inspection and additional Judicial guidance, the parties were not able to reach a protocol.

The Court explained: “It is important to remember the procedural posture of this matter. Although it takes place against the backdrop of a tragic motor vehicle crash caused by what Respondents suspect was a vehicle defect (which suspicion has been conveyed to GM), no lawsuit has been filed and no specific alleged defect has been articulated.”

In fact, Respondent’s factual theory was not solidified: “[A]lthough Respondents’ proposed inspection focuses on the multiple components of the vehicle’s braking system, Respondents would not agree to limit their defect theory to the vehicle’s braking system or unintended acceleration but preserve all potential theories for any ensuing lawsuit.”

The “chief point of contention” during the initial, non-destructive inspection turned on the braking system. 

• Respondent wanted to loosen the covers of the master cylinder and vacuum pump to permit visual inspection underneath.
• General Motors asserted that, because the location of the vehicle was not enclosed, this process might permit contamination. 

The General Motors Court agreed with GM and directed that those steps take place in an appropriate facility. It also ordered the parties to meet, confer, and develop a protocol for the second inspection. That second protocol was to allow for visual inspection after loosening the covers.

However, the parties could not reach agreement on a protocol for the second inspection. While agreement was reached on some steps, GM argued that others requested by Respondent “will result in the destruction of key components that could be vital to its defense in a future lawsuit, depending on Respondents’ theory of defect.” The Court added:

GM argues that instead, those components should be preserved intact and await future testing once a lawsuit has been filed and a defect theory articulated. This is consistent with GM’s original intent in filing this matter: to largely preserve the status quo of the condition of the vehicle pending the filing of the anticipated lawsuit, with the exception of those steps set forth in its protocol. [emphasis added].

However, the Court felt that GM had—in my words, not the Court’s—flip flopped, writing:

The Court notes however that GM now objects to the loosening of the covers of the vacuum pump and master cylinder to allow visual inspection underneath, something specifically contemplated for the second inspection by the Court’s prior decision as articulated at the initial hearing of this matter and subsequent order…. At the first hearing, GM’s objection to that process centered on the potential for contamination that could occur if that process went forward in “the field.” Thus, the Court ordered that the second inspection allowing for loosening of those covers to as to allow a visual examination underneath would go forward at a GM dealership such that that concern has been addressed. [emphasis added].

In my words (and not the Court’s), the Court felt that it had resolved GM’s stated concerns and it was too late for GM to change positions.

The Court added: “The Court also was mindful of Rule 1’s instruction that these rules be administered to effectuate the just, speedy and efficient determination of matters before the Court, such that the Court placed particular weight on Respondents’ assertion that incorporating these two steps into the second inspection may well save Respondents from the future time and expense of additional inspections.”

Further, the General Motors Court found that GM’s assertion lacked sufficient factual support, writing: “GM was unable to convincingly articulate in its opposition and at today’s hearing the basis for its new assertion that those steps, even if undertaken in a controlled environment, will ‘destroy’ the master cylinder and vacuum pump.” Therefore, the Court ordered that the second-inspection protocol incorporate the two steps of loosening the covers to allow visual inspection.

However, the General Motors Court made three other important decisions.

First, it gave the parties latitude to pursue any other mutually agreed steps.

Second, the loosening and visual inspection would occur only “after GM performs the other steps in its protocol to include, if it wishes, placing the vacuum pump and/or master cylinder in an exemplar vehicle for testing.”

Third, the Court wrote:

To be clear, as discussed at the hearing, Respondents are taking a calculated risk in pursuing these two steps. To the extent they result in spoliation of evidence necessary to GM’s ultimate defense in a future lawsuit, the trial court may find it appropriate to impose appropriate sanctions depending on the circumstances. That is, the undersigned’s approval of incorporating these steps into the protocol is strictly at Respondents’ behest and over the objection of GM and shall not inoculate Respondents from such arguments if their assertion that such steps are benign proves to be incorrect. [emphasis added].

The General Motors Court noted that Respondent’s “understandable” uncertainty of the factual predicate for its claims “reinforces GM’s concern that destructive testing at this stage could undermine its ability to defend a future lawsuit based on a theory of defect yet to be anticipated or asserted.”

Because Fed.R.Civ.P. 37(e) applies only to ESI, it would not be operative here. Where General Motors was deprived of an opportunity to inspect the vehicle involved in a product liability claim, sanctions were imposed. Silvestri v. General Motors Corp., 271 F.3d 583 (4^th Cir. 2001).

For more information on preservation orders in other contexts, please visit:

• The Standard for a Preservation Order (Oct. 21, 2026);
• Request for Preservation Order Denied Under the “Cry Wolf” Doctrine (May 31, 2026);
• A Request for a Preservation Order Was Denied: Preliminary Injunction Standard Was Not Applied (Apr. 3, 2026);
• Failed Request for a Preservation Order (Jul. 13, 2022);
• Requests for a Preservation Order (Mar. 7, 2022)(“[a] federal court may also issue preservation orders as part of its inherent authority to manage its own proceedings”).

Assisted by GAI and LLM Technologies per EDRM’s GAI and LLM Policy.