Dispositive Sanction Denied in Auto Tort—Defendants Failed to Request Lesser Sanctions

Two defendants moved to dismiss an auto tort Complaint because of alleged spoliation of the Plaintiff’s automobile.  The motions were denied.  Baez v. Uber Technologies, Inc., 2026 WL 2603075 (D. Md. Sep. 3, 2026)(Sullivan, J.).

On November 4, 2024, Defendant Jung, an Uber driver, rear-ended Plaintiff Baez’s 1999 Honda Accord, driving it into a guardrail. One factual dispute was whether the Honda was stopped in the left lane.  Jung said it was. Baez “states that he has no recollection of the vehicle being stopped, and that the vehicle was in proper working condition and not disabled at the time of the collision.”  The Honda was not preserved.

The preservation/spoliation facts were straightforward:

Both vehicles were removed from the scene by N & S Towing….  Plaintiff suffered serious bodily injuries and while he was in the hospital, his mother “independently ascertained” the location of his vehicle…. On November 8, 2024, she traveled to the N & S Towing location and took photographs of his vehicle, which were later shared with defense counsel…. By November 12, 2024, Plaintiff had retained counsel…. And on November 20, 2024, Defendant Jung’s counsel provided a formal preservation request asking Plaintiff to preserve all relevant evidence, including the 1999 Honda Accord…. The request was sent to Plaintiff’s prior counsel, John Lyding of Morgan & Morgan…. Plaintiff is currently represented by Terence Davis of the same firm…. Defendant Jung’s counsel contacted Morgan & Morgan on three occasions about the status of the vehicle….

Suit was filed on August 11, 2025.  The Court wrote: “Finally, on August 15, 2025, Plaintiff’s counsel (through his paralegal) notified Defendant Jung’s counsel that the vehicle was a total loss and had been discarded on an unknown date. [emphasis added].

First, the Court held that the defense motions to dismiss the Complaint were in fact “clearly intended to be motions for sanctions, the sanction requested being dismissal.”  This was significant because, instead of applying the Rule 12(b)(6) standard, it meant that “the Motions will be construed as motions for sanctions based on the destruction of Plaintiff’s vehicle.”

The Fourth Circuit long ago addressed the duty to preserve an automobile.  Silvestri v. Gen. Motors Corp., 271 F.3d 583 (4th Cir. 2001).  Spoliation includes “the failure to preserve property for another’s use as evidence in pending or reasonably foreseeable litigation.”  Id.  Because an automobile is not ESI, Fed.R.Civ.P. 37(e) is inapposite.  The Baez Court held that its inherent power governed the sanctions requests: “Here, Plaintiff failed to preserve a tangible piece of evidence and the Court’s inherent authority to impose sanctions is implicated.”

The Baez Court explained that a party seeking sanctions “must show that: (1) the party having control over the evidence had an obligation to preserve it when it was destroyed or altered; (2) the destruction or loss was accompanied by a culpable state of mind; and (3) the evidence that was destroyed or altered was relevant to the claims or defenses of the party that sought the discovery of the spoliated evidence, to the extent that a reasonable factfinder could conclude that the lost evidence would have supported the claims or defenses of the party that sought it.”

TRIGGER AND BREACH OF THE DUTY TO PRESERVE

Trigger of the Preservation Duty

The first step was to determine when the duty to preserve was triggered, i.e., when Baez reasonably anticipated litigation. Id. at *3.  At that time, a party must institute a litigation hold.  “And when a party cannot fulfill this duty to preserve because he does not own or control the evidence, he still has an obligation to give the opposing party notice of access to the evidence or of the possible destruction of the evidence if the party anticipates litigation involving that evidence.” Id. (citation and quotations omitted). The Court wrote:

It cannot be disputed that Plaintiff had an obligation to preserve his vehicle. The accident occurred on November 4, 2024, and only four days later Plaintiff’s mother had located the vehicle and visited N & S Towing’s location to take photographs of it….  Less than ten days later, Plaintiff had retained counsel…. And sixteen days later, Defendant Jung’s counsel provided a formal preservation request asking Plaintiff to preserve all relevant evidence, including the 1999 Honda Accord…. Plaintiff’s duty to preserve arose on November 12, 2024, when he obtained counsel. Even had Plaintiff not obtained counsel, his duty to preserve would have been triggered on November 20, 2024, when Defendant Jung’s counsel sent him a preservation letter.… 

Id. at *3.

Breach of the Preservation Duty

The Court then addressed breach of the duty:

Despite having a duty to preserve his vehicle, Plaintiff’s counsel failed to inquire about the vehicle’s status with N & S Towing until almost a year after defense counsel sent the preservation letter…. The first step in the sanctions analysis is satisfied.

Id.  It added: “Plaintiff argues that because the preservation letter was sent to Plaintiff’s prior counsel, his current counsel was not aware of the Defendants’ desire to inspect the vehicle…. This argument borders on ridiculous. Morgan & Morgan has represented Plaintiff since November 12, 2024, and both Plaintiff’s previous and current counsel are Morgan & Morgan attorneys…. Any blame that Plaintiff directs at his former attorney is therefore properly attributed to Plaintiff himself.” Id. at n. 5.

CULPABLE STATE OF MIND

The next step was to evaluate culpability. Id. at *4. Sanctions may be imposed for “any fault—be it bad faith, willfulness, gross negligence, or ordinary negligence….  In the context of spoliation, ordinary negligence is the failure to identify, locate, and preserve evidence, where a reasonably prudent person acting under like circumstances would have done so.”  Id.

However, the degree of culpability affects the severity of the possible sanction. Id.  Case-dispositive sanctions are reserved for the “most extreme circumstances.”  Id.

PREJUDICE AND SECONDARY EVIDENCE

Here, the Defendants asked too much: “The only sanction requested by Defendants is dismissal. But because there is insufficient evidence to warrant such a sanction, the Motions are denied.”  Id. at *4.

The Court looked at what I call secondary evidence in deciding that Defendants could still defend the claims, writing: “Through the police report, vehicle images, the testimony of Plaintiff (who admits his memory of the collision is ‘hazy’ and contradicts the police report), Defendant Jung’s testimony, and any other materials produced throughout discovery, Defendants are able to build their defense without a forensic examination of Plaintiff’s vehicle.”

Moreover, following the collision on November 4, 2024, Plaintiff spent several days in the hospital…. His mother, on her own accord and while he was in the hospital, located and photographed his vehicle on November 8, 2024…. These photos were shared with defense counsel…. [emphasis added].

The Court also found, in my words, a lack of diligence by the defense:

Additionally, the police report states that both vehicles were removed from the accident scene by “NS Towing” and removed to the tow lot…. But despite having the details of what company removed the vehicles and where that company took the vehicles, neither party attempted to inspect or preserve Plaintiff’s vehicle while it sat in the tow lot. Defendant Jung’s counsel failed to follow up with Plaintiff’s counsel about the preservation of the vehicle until July 28, 2025, over eight months after the collision.

Id. at *4 (emphasis added).

DATE OF LOSS?

The first element of spoliation is that “the party having control over the evidence had an obligation to preserve it when it was destroyed or altered….”  Here, a key fact was absent—no one knew when the car went missing.  The Court wrote:

Finally, the parties do not provide any information about when Plaintiff’s vehicle was destroyed. It could be that N & S Towing destroyed the vehicle after Plaintiff’s mother photographed it on November 8, 2024, and before Plaintiff retained counsel on November 12, 2024, or received Defendant Jung’s preservation request on November 20, 2024….

Id. (emphasis added).  Further, this appeared to be relevant to culpability:

There is no evidence that Plaintiff or his counsel purposefully deprived Defendants of the opportunity to examine the vehicle or facilitated its destruction. To the contrary, the record reflects a police report providing where the vehicle was towed and the Plaintiff’s mother locating and photographing Defendant’s vehicle in a tow lot, where both parties knew it to be located, and where it was eventually disposed of on an unknown date and time. These facts do not support dismissal.

Id.

CONDUCT OF PLAINTIFF’S COUNSEL WAS CONCERNING, BUT IRRELEVANT

The Court wrote:  “To be clear, Plaintiff’s counsel’s conduct is concerning. Only sixteen days after the collision, Defendant Jung sent a preservation letter to Mr. Lyding requesting that Plaintiff preserve his 1999 Honda Accord that was involved in the accident…. It is entirely unclear what Mr. Lyding did, if anything, to preserve this evidence. At some point, another Morgan & Morgan attorney, Mr. Davis, took over Plaintiff’s case and replaced Mr. Lyding. But despite both attorneys being from the same law firm and there being only one client, Mr. Davis now claims that he had no knowledge of the preservation letter sent to Mr. Lyding on November 20, 2024.” Id. at *5 (emphasis added).

However, that was irrelevant because Defendants asked only for dismissal, writing: “Any other remedy would be an unacceptable outcome and surely undermine the integrity of the judicial process.” Id. at *5.  Based on Defendants’ request, the Court wrote:  “While Plaintiff’s counsel’s failure to comply with the fundamental obligation to preserve material evidence may indeed be considered negligence or with a culpable state of mind, the Court does not need to reach this question. Defendants have not asked the Court to impose any lesser sanction than dismissal.”

CONCLUSION: THE DOOR WAS LEFT OPEN

The Court held that:  “Because Defendants have not established that Plaintiff’s conduct was so egregious as to warrant dismissal, the vehicle’s relevance, as it relates to the sanctions analysis, is immaterial.” Id. at *5.

However, it left the door open to a lesser sanction, stating that “the Court need not reach the question of whether Plaintiff’s conduct warrants a lesser sanction. Instead, the Court retains the ability to consider this issue at trial, at which time the Court may order appropriate sanctions, including an adverse inference jury instruction.”

In prior decisional authority in this District, the Court has pointed out that a party asking only for game-ending sanctions may effectively waive lesser sanctions. Court Recommends Denial of Rule 37(e)(2) Motion, While Providing Guidance Under Rule 37(e)(1) (May 19, 2025)(Defendants moved for “game ending” sanctions under Fed.R.Civ.P. 37(e)(2); however, the United States Magistrate Judge recommended that the motion be denied.  The Court provided a Rule 37(e)(1) suggestion.); Rule 37(e)(1) Sanctions for Breach of Duty to Preserve Communications (Oct.11, 2025).