[945] [946] Richard L. Denney, (Lydia JoAnn Barrett, Denney & Barrett, P.C., Norman, Oklahoma and Robert R. Robles, Oklahoma City, OK, on the briefs; Richard J. Goralewicz, Turner, Turner, Goralewicz & Dillingham, Oklahoma City, OK, with him on the briefs), for Plaintiffs-Appellants.

Mary Quinn Cooper, (William S. Leach and Andrew L. Richardson, on the brief), Eldridge, Cooper, Steichen & Leach, P.L.L.C., Tulsa, OK, for Defendant-Appellee.

Before KELLY, McKAY, and HENRY, Circuit Judges.

PAUL KELLY, JR., Circuit Judge.

Gregory and Tracey Cummings brought this suit against General Motors Corporation ("GM") to recover for injuries Mrs. Cummings sustained in an automobile accident involving a 1995 Pontiac Grand Am. The Cummings allege that Mrs. Cummings's injuries resulted from a flawed seat belt system and seat designed by GM, as well as inadequate warnings of the dangers inherent in the product. A jury returned a verdict in favor of GM, and the Cummings appeal, asserting that the court should have directed a verdict in their favor based on the evidence, and that the district court abused its discretion with regard to several discovery rulings. Approximately eight months after the trial, the Cummings filed a motion in the district court for relief under Federal Rule of Civil Procedure 60(b) based on alleged discovery misconduct on GM's part. The district [947] court denied relief, and the Cummings appeal. We have jurisdiction under 28 U.S.C. § 1291 over both appeals and consider them in turn below, affirming in all respects.

Background

Gregory and Tracey Cummings were involved in a car accident on the evening of September 13, 1998 in rural Carter County, Oklahoma. Mr. Cummings was driving a 1995 Pontiac Grand Am with his wife, Tracey, in the front passenger seat. Their children were in the back seat, with the three-month-old in a car seat behind Mrs. Cummings. Mr. Cummings ran a "partially obscured" stop sign at a T-type intersection and drove off the road, through a ditch, and into a field. I Aplt.App. at 191. Although the other passengers sustained only minor injuries, Mrs. Cummings sustained a compression fracture of the third vertebra resulting in paraplegia. I Aplt. Br. at 12.

The Cummings brought this suit against GM, asserting that Mrs. Cummings sustained such severe injuries as a result of the design of the seat belt and the seat, as well as GM's failure to warn. Prior to trial, the parties engaged in multiple discovery disputes, including disputes over the adequacy of responses to requests for production, expert witness designations, depositions, and electronic discovery. See I Aplt.App. at 17-37. These disputes resulted in three motions to compel by the Cummings and several motions for protective orders by GM. The magistrate judge addressed the majority of these disputes in an order dated June 18, 2002, in which the judge denied Plaintiffs' motions, granted Defendant's motions for protective orders, and granted Defendant's their attorney's fees and costs. Id. The district court reviewed the Plaintiffs' motions de novo and affirmed the magistrate's findings in all respects. Id. at 3.

At trial, GM countered the Cummings' claims with evidence that there was no defect in either the seat, the seat belt system, or the warning. See id. at 714-15, 725, 865, 889-90, 1030-32. GM contended that Mrs. Cummings's injuries resulted not from any defect, but rather from a combination of the forces exerted on her during the accident and her position and posture at the time of the accident. Although the Cummings offered evidence that Mrs. Cummings had her seat angled back approximately 25 degrees, id. at 157, 524, GM's experts testified that she was most likely reclined at 40-45 degrees at the time of the accident, id. at 689; sitting slouched in the seat, id. at 686-87, 900-02; and/or turned to attend to the children in the back seat, I Aplee. Supp.App. at 316. The Cummings argued that such a conclusion was impossible because there was a rear-facing child safety seat located behind Mrs. Cummings that prevented her from reclining her seat. GM offered evidence that the child seat was actually installed in a forward-facing direction at the time of the accident, thus allowing the front passenger seat to recline.

At the close of all the evidence, out of the presence and hearing of the jury, both the Cummings and GM moved for judgment as a matter of law. I Aplt.App. at 1041-49. GM made its motion first, moving for judgment as a matter of law with regard to all claims, including the alleged defective seat, seat belt, failure to warn, and punitive damages claims. The Cummings responded to GM's contentions, and then the court directed them to make their motion for judgment as a matter of law. Counsel for the Cummings stated:

Your Honor, I would move for judgment as a matter of law on the foreseeable misuse or the so-called misuse defense. [948] Throughout the trial we have had to listen to [General Motors] accuse Mrs. Cummings of reclining the seat. I don't need to tell Your Honor. Your Honor knows foreseeable misuse is not a defense. No one denies that this is foreseeable misuse of a seat. No one denies that they built the capability into the seat to do it. They knew the risk, that they knew people would be injured if they did that. No one whatsoever denies that in this trial. This jury should be instructed that reclining the seat is not a defense, and that if this Defendant built a recliner seat that is dangerous, this Defendant should be held legally responsible for the consequences. That's the law in Oklahoma.

Id. at 1047-48. The court denied both motions.

The jury returned a verdict for GM, finding GM not liable for any design defect or failure to warn. I Aplee. Supp.App. at 324. The Cummings failed to make any motions following the return of the verdict. Id. at 327. The Cummings filed a timely appeal, asserting that (1) they were entitled to judgment as a matter of law with regard to liability, and (2) the trial court abused its discretion in its rulings on various discovery motions.

One month after the verdict, and after filing the appeal, the Cummings discovered six videos of child safety seat acceleration tests conducted by GM and produced by GM in an unrelated trial. The videos show tests by GM involving child-sized dummies in forward-facing child car seats placed in the back seat. In the videos, the children are thrown from the car seat during various accident simulations. The Cummings argue the tests fall within their prior requests for production and would have demonstrated that it was impossible for Mrs. Cummings to have her seat fully reclined at the time of the accident, as their child would have been injured had the child been in a forward-facing child restraint.

The Cummings did not immediately move for relief upon discovery of the videos. Instead, they waited seven months to file a motion for relief under Federal Rule of Civil Procedure 60(b). The district court, finding the motion both untimely and lacking in support, denied the motion, and the Cummings appeal. The appeals have been consolidated and are addressed jointly below.

Discussion

A. Preserving Appellate Review of Sufficiency of the Evidence

The Cummings assert the trial court erred in not granting judgment in their favor, arguing that the "[e]vidence of defect and causation presented at trial entitled [them] to judgment as a matter of law." I Aplt. Br. at 26. GM contends that the Cummings have failed to preserve this issue for appeal, stating (1) the Cummings moved for judgment as a matter of law at the close of evidence only on the defense of product misuse and not on liability generally, and (2) the Cummings failed to renew their motion for judgment as a matter of law after the verdict. I Aplee. Br. at 5, 6.

A party challenging the sufficiency of the evidence during a civil trial must make a motion for judgment as a matter of law before the case is submitted to the jury, in accordance with Federal Rule of Civil Procedure 50(a). "If, for any reason, the court does not grant a motion for judgment as a matter of law made at the close of all the evidence, the court is considered to have submitted the action to the jury subject to the court's later deciding the legal questions raised by the motion." Fed.R.Civ.P. 50(b). If the court denies the motion and submits the case to the jury, the party may nevertheless renew its motion [949] after the verdict if the jury finds for the opposing party or fails to reach a verdict. Id.

Because a motion for judgment as a matter of law at the close of evidence and following a verdict are closely intertwined, we consider both in turn. A motion for judgment as a matter of law at the close of the evidence, formerly referred to as a motion for a directed verdict, serves several purposes. Anderson v. United Tel. Co. of Kan., 933 F.2d 1500, 1503 (10th Cir.1991) (collecting cases). A motion under Rule 50(a) protects the Seventh Amendment right to trial by jury. Such a motion alerts the opposing party to any deficiencies in the case, thereby giving the party an opportunity to rectify any deficiencies prior to the case being submitted to the jury. Id. A motion for judgment as a matter of law also alerts the court to a claim of insufficient evidence before the case is submitted to the jury so the court is not faced with such a claim after the fact when the court's ability to address the motion is limited. Id. Finally, a motion at the close of evidence preserves the issue as a question of law for appeal. Id.

These purposes are met when the moving party alerts the court and the opposing party to the insufficiency of the evidence prior to submission of the case to the jury. Greenwood v. Societe Francaise De, 111 F.3d 1239, 1244-45 (5th Cir.1997). Upon such a motion, the court "may grant a directed verdict only if the evidence points but one way and is susceptible to no reasonable inferences which may support the opposing party's position," with the evidence and inferences construed in the light most favorable to the nonmoving party. Q.E.R., Inc. v. Hickerson, 880 F.2d 1178, 1180 (10th Cir.1989). On appeal, this court reviews de novo the district court's denial of a motion for judgment as a matter of law, Cadena v. Pacesetter Corp., 224 F.3d 1203, 1208 (10th Cir.2000), applying the same standard as applied in the district court, Q.E.R., 880 F.2d at 1180. "[W]e ... will reverse only if there is no legally sufficient evidentiary basis ... with respect to a claim or defense ... under the controlling law.'" Cadena, 224 F.3d at 1208 (internal quotations and citations omitted).

Where a party fails to move for judgment as a matter of law before the close of the evidence, however, we have repeatedly held that such a failure bars appellate review of the sufficiency of the evidence. F.D.I.C. v. United Pac. Ins. Co., 20 F.3d 1070, 1076 (10th Cir.1994); Green Constr. Co. v. Kan. Power & Light Co., 1 F.3d 1005, 1012 (10th Cir.1993); Comcoa, Inc. v. NEC Tels., Inc., 931 F.2d 655, 663 n. 11 (10th Cir.1991). The motion must also be sufficiently certain as to the issues raised. Rule 50(a) requires that a motion for judgment as a matter of law at the close of the evidence "specify the judgment sought and the law and the facts on which the moving party is entitled to the judgment." Fed.R.Civ.P. 50(a)(2). The motion must include all issues challenged, as the "failure to move for a directed verdict [now judgment as a matter of law] on a particular issue will bar appellate review of that issue." Davoll v. Webb, 194 F.3d 1116, 1136 (10th Cir.1999).

When determining whether a particular issue has been raised in a motion for judgment as a matter of law, the court has liberally construed such motions, Aguinaga v. United Food & Commercial Workers Int'l Union, 993 F.2d 1463, 1470 (10th Cir.1993), stating that "[t]echnical precision is not necessary in stating grounds for the motion so long as the trial court is aware of the movant's position," United States v. Fenix & Scisson, Inc., 360 F.2d 260, 266 (10th Cir.1966); see also Anderson, 933 F.2d at 1504. While technical [950] precision is not required, "merely moving for directed verdict is not sufficient to preserve any and all issues that could have been, but were not raised in the directed verdict motion." United Int'l Holdings, Inc. v. Wharf Ltd., 210 F.3d 1207, 1229 (10th Cir.2000). Rule 50 "does require that [the grounds for a motion] be stated with sufficient certainty to apprise the court and opposing counsel of the movant's position with respect to the motion." Id.

In this case, the Cummings moved for judgment as a matter of law with regard to the defense of misuse only and requested a jury instruction on this issue. Counsel did not move for judgment as a matter of law with regard to GM's liability generally. The Cummings assert that the motion should be read liberally in accordance with Aguinaga to include the issue of liability generally. Although technical precision is not required, the moving party must adequately notify the court of the issues being raised in order to satisfy the purposes of the rule. The Plaintiffs' motion was limited to a motion for judgment as a matter of law on the issue of misuse, and therefore any appeal is so limited. See Dilley v. SuperValu, Inc., 296 F.3d 958, 962 (10th Cir.2002); Smith v. Northwest Fin. Acceptance, Inc., 129 F.3d 1408, 1415-16 (10th Cir.1997); United Pac. Ins., 20 F.3d at 1076. Beyond the issue of foreseeable misuse, we are limited to review for "`plain error constituting a miscarriage of justice.'" Dilley, 296 F.3d at 962 (quoting First Sec. Bank v. Taylor, 964 F.2d 1053, 1057 (10th Cir.1992)); see also Smith, 129 F.3d at 1416.

GM also asserts that the Cummings' failure to renew their motion after the verdict results in a waiver. While true in most circuits,^[1] under Tenth Circuit precedent, even where a party fails to make a post-verdict motion for judgment as a matter of law, it is not barred from appealing the issue of the sufficiency of the evidence, at least where an appropriate motion has been made prior to the submission of the case to the jury. See Morrison Knudsen Corp. v. Fireman's Fund Ins. Co., 175 F.3d 1221, 1246 (10th Cir.1999) (holding such a failure does not bar appellant "from appealing the issue of the sufficiency of the [951] evidence"); Marshall v. El Paso Natural Gas Co., 874 F.2d 1373, 1385 (10th Cir.1989) (holding "failure to move for judgment notwithstanding the verdict does not bar an appeal"); Hansen v. Vidal, 237 F.2d 453, 454 (10th Cir.1956) (holding motion for judgment as a matter of law not a "condition precedent to appeal from a final judgment"). Thus the Cummings' failure to move for judgment as a matter of law following the adverse jury verdict does not bar their appeal regarding the sufficiency of the evidence to support the misuse defense.

In the absence of a Rule 50(b) motion, however, we are limited in the relief we may grant. The Supreme Court has repeatedly noted that in the absence of a motion for judgment as a matter of law following an adverse jury verdict "made in the trial court within ten days after reception of a verdict [, Rule 50(b)] forbids the trial judge or an appellate court to enter such a judgment." Johnson, 344 U.S. at 50, 73 S.Ct. 125; see also Globe Liquor Co. v. San Roman, 332 U.S. 571, 574, 68 S.Ct. 246, 92 L.Ed. 177 (1948); Cone v. W. Va. Pulp & Paper Co., 330 U.S. 212, 218, 67 S.Ct. 752, 91 L.Ed. 849 (1947) (holding appellate court is "without power to direct the District Court to enter judgment contrary to the one it had permitted to stand"). Thus, "[t]his court has no authority to direct a verdict contrary to that of the trial court where, as here, the complaining party has not given the trial court an opportunity to first correct its own error." Fortier v. Dona Anna Plaza Partners, 747 F.2d 1324, 1334 (10th Cir.1984). In this situation, the only remedy available is a new trial. Johnson, 344 U.S. at 50-51, 73 S.Ct. 125; Morrison Knudsen, 175 F.3d at 1246; Fortier, 747 F.2d at 1334.

As to whether the court should have granted the Cummings judgment as a matter of law with regard to GM's liability generally, because the Cummings' Rule 50(a) motion was limited to the issue of GM's misuse defense, we review the sufficiency of the evidence only for plain error constituting a miscarriage of justice. In addition, we are limited to determining whether a new trial is required, as we are without power to grant judgment in the Cummings' favor. As noted previously, judgment as a matter of law is appropriate only "if the evidence points but one way and is susceptible to no reasonable inferences which may support the opposing party's position." Davis v. United States Postal Serv., 142 F.3d 1334, 1339 (10th Cir.1998) (internal quotations and citations omitted). "This stringent standard of review is further heightened under plain error review, which has been limited to errors which seriously affect the fairness, integrity or public reputation of judicial proceedings." Dilley, 296 F.3d at 963 (internal quotations and citations omitted). After a thorough review of the record in this case, we find nothing that rises to the level of such a miscarriage of justice. Therefore we conclude the district court did not commit plain error in allowing the Cummings' products liability claims to go to the jury.

We review the district court's denial of the Cummings' motion for judgment as a matter of law as to GM's defense of misuse de novo, although as above noted we are limited to determining whether the Cummings are entitled to a new trial. Under Oklahoma law, to establish a manufacturer's product liability, a plaintiff must prove that (1) "the product was the cause of the injury," (2) the defect existed in the product "at the time the product left the manufacturer's possession and control," and (3) "the defect made the article unreasonably dangerous." Kirkland v. Gen. Motors Corp., 521 P.2d 1353, 1363 (Okla.1975). However, where a plaintiff is using [952] a product for a purpose for which it was not intended, and is injured, the plaintiff may not recover. Id. at 1366. Misuse of a product is a "defense subject to being pleaded and proved by defendant." Stewart v. Scott-Kitz Miller Co., 626 P.2d 329, 331 (Okla.App.1981). "Abnormal or misuse of a product occurs where the method of using a product is not that which the maker intended or is a use that could not reasonably be anticipated by a manufacturer." Treadway v. Uniroyal Tire Co., 766 P.2d 938, 941 (Okla.1988). Oklahoma has drawn a distinction between "use for an abnormal purpose" or misuse, and "use for a proper purpose but in a careless manner." Id. Use for a proper purpose but in a careless manner is considered contributory negligence, id., and contributory negligence is not a defense to a products liability claim, Fields v. Volkswagen of Am., Inc., 555 P.2d 48, 56 (Okla.1976).

Although GM's main defense was that there was no defect in the seat or seat restraint system, GM also asserted that Mrs. Cummings's injuries may have resulted from either her posture or position at the time of the accident. GM presented evidence that Mrs. Cummings was reclined in her seat and that the injury resulted due to her position at the time of the accident. GM presented evidence of a warning in the owner's manual against such use, which contained a picture of a person reclined and a warning that "[e]ven if you buckle up, your safety belts can't do their job when you're reclined like this." I Aplt.App. at 809. The experts testified that riding with the seat reclined was not an advised use of the seat given the warning and safety concerns, id. at 406-07, and that the seat reclined for uses while the car was parked rather than moving, id. at 760-61, 998. The Cummings countered with evidence that such a use was foreseeable by manufacturers. I Aplee. Supp.App. at 319. The Cummings' own statements were that such a use was "unsafe" and that Mrs. Cummings would never ride in this position. Id. at 154.

A motion for judgment as a matter of law at the close of the evidence may only be granted if "the evidence points but one way and is susceptible to no reasonable inferences which may support the opposing party's position." Q.E.R., 880 F.2d at 1180. Construing the evidence and inferences in the light most favorable to GM, and refraining "from weighing the evidence, passing on the credibility of witnesses, or substituting our judgment for that of the jury," Brown v. Wal-Mart Stores, Inc., 11 F.3d 1559, 1563 (10th Cir.1993), we find there was evidence supporting both parties' positions, and consequently the court did not err in denying the motion for judgment as a matter of law and submitting the issue to the jury.

B. Discovery Rulings

With regard to the Cummings' appeal of the trial court's discovery rulings, we discern three main arguments: (1) GM failed to respond adequately to requests for discovery; (2) GM withheld names and locations of persons responsible for the design and implementation of the seat system; and (3) GM failed timely to produce research, development, and testing, including the failure to provide access to GM's databases. I Aplt. Br. at 39-40.

The district court has broad discretion over the control of discovery, and we will not set aside discovery rulings absent an abuse of that discretion. GWN Petroleum Corp. v. OK-Tex Oil & Gas, Inc., 998 F.2d 853, 858 (10th Cir.1993). This standard of review applies equally to the denial of a motion to compel, Motley v. Marathon Oil Co., 71 F.3d 1547, 1550 (10th Cir.1995) (noting a denial of a motion to compel discovery will not be disturbed [953] absent an abuse of discretion), and the grant of a protective order, Kidd v. Taos Ski Valley, Inc., 88 F.3d 848, 853 (10th Cir.1996) ("The decision of a district court to enter a protective order under Rule 26(c) is reviewed for an abuse of discretion."). Under this standard, "we will not disturb a trial court's decision absent a definite and firm conviction that the lower court made a clear error of judgment or exceeded the bounds of permissible choice in the circumstances." Id. (internal quotations and citations omitted). Such an abuse will occur only when the judge renders "an arbitrary, capricious, whimsical, or manifestly unreasonable" judgment. Coletti v. Cudd Pressure Control, 165 F.3d 767, 777 (10th Cir.1999) (internal quotations and citations omitted).

We do not find such an abuse of discretion in this case. The Cummings assert that GM abused the discovery process and failed to adequately respond to discovery requests, yet they fail to point to anything in the record to support this proposition. We agree with the district court's conclusion that "numerous miscommunications and unnecessary disputes have been caused by Plaintiffs' failure to frame precise discovery requests and notices in accordance with the provisions of the rules." I Aplt.App. at 24.

We similarly find no support for the Cummings' assertion that GM failed to provide the names and locations of persons, including a Mr. Zurkiwskyj, responsible for the design and implementation of the seat system. GM provided several representatives from the company to be deposed under Rule 30(b)(6) on the issues of the seat design, seat restraint system, and the All-Belts-To-Seats design. I Aplt.App. at 27-28, 30. The Cummings cannot place the blame on GM for their own failure to depose the designated representatives.

To the extent the Cummings attempted to depose specific individuals, their service of notice to GM was in error. Under Federal Rule of Civil Procedure 30(b)(6), a party may issue a notice of intent to take a deposition to an organization, and then the organization shall designate "one or more officers, directors or managing agents, or other persons who consent to testify on its behalf." The corporate entity itself designates the representative. Id. To the extent a party wants to subpoena an individual of its choice for a deposition, it must do so under Rule 30(a)(1), which states that a party "may take the testimony of any person, including a party, by deposition upon oral examination without leave of court." Rule 30(a) allows the Cummings to take the deposition of nonparty witnesses, including employees. "Except where the employee has been designated by the corporation under Rule 30(b)(6), an employee is treated in the same way as any other witness. His or her presence must be obtained by subpoena rather than by notice...." 8A Wright, Miller & Marcus, Federal Practice and Procedure Civ.2d § 2103. Mr. Zurkiwskyj's attendance must be compelled as any other nonparty witness-by subpoena. Fed.R.Civ.P. 45.

The Cummings' reliance on Rule 26 is similarly misplaced. The magistrate ruled the newest version of Rule 26 would govern in this case, including the 2000 amendments, I Aplt.App. at 26 n. 5, and the Cummings did not object to this holding. Under the 2000 amendments, a party's "initial disclosure obligation ... has been narrowed." Fed.R.Civ.P. 26 advisory committee's note, 2000 amends. Rule 26(a)(1) only requires automatic disclosure of "the name and, if known, the address and telephone number of each individual likely to have discoverable information that the disclosing party may use to support its claims or defenses." Fed.R.Civ.P. 26(a)(1)(A). [954] Under this rule, a party is not obligated "to disclose witnesses or documents, whether favorable or unfavorable, that it does not intend to use." Fed.R.Civ.P. 26 advisory committee's note, 2000 amends.; see Gluck v. Ansett Austl. Ltd., 204 F.R.D. 217, 221-22 (D.D.C.2001) (holding under the new version of Rule 26 that the opposing party was not required to produce information with regard to potential witnesses because "the essential inquiry is whether the disclosing party intends to use the witness.").

Finally, we find no abuse of discretion in the denial of the motion to compel access to GM's databases and the grant of a protective order to GM. As noted by the magistrate judge, "Plaintiffs' proposed computer database searches are overly broad in scope, duplicative of prior requests and unduly burdensome." I Aplt.App. at 35. "It is the unusual or exceptional case where the reviewing court will vacate a protective order entered by a trial court under Fed.R.Civ.P. 26(c)," In re Coordinated Pretrial Proceedings in Petroleum Prods. Antitrust Litig., 669 F.2d 620, 623 (10th Cir.1982), and there is no support for such a conclusion in this case. Rather than an abuse of discretion, the record reveals a thorough and reasoned disposition on the part of the court, especially given the multiple motions before the court and the breakdown of communication between the parties.

C. Rule 60(b) Motion

Federal Rule of Civil Procedure 60(b) provides that "[o]n motion and upon such terms as are just, the court may relieve a party or a party's legal representative from a final judgment, order or proceeding for ... fraud ..., misrepresentation, or other misconduct of an adverse party." We review a district court's denial of a Rule 60(b) motion for an abuse of discretion. Amoco Oil Co. v. EPA, 231 F.3d 694, 697 (10th Cir.2000); see also Stubblefield v. Windsor Capital Group, 74 F.3d 990, 994 (10th Cir.1996) (collecting cases). In undertaking such a review, we are guided by the principle that "[r]elief under Rule 60(b) is extraordinary and may only be granted in exceptional circumstances." Bud Brooks Trucking, Inc. v. Bill Hodges Trucking Co., 909 F.2d 1437, 1440 (10th Cir.1990).

1. Timeliness of Rule 60(b) Motion

In denying the Cummings' Rule 60(b) motion, the district court relied in part on counsel's delay in filing the motion. II Aplt. Br., Att. 1 at 3-4. Rule 60 requires that such a motion be "made within a reasonable time, and for reasons (1), (2), and (3) not more than one year after the judgment, order, or proceeding was entered or taken." Fed.R.Civ.P. 60(b). Because the Cummings have argued misconduct under Rule 60(b)(3), the motion must have been filed within a "reasonable time," and not more than a year after the judgment.

The Cummings filed the Rule 60(b) motion within a year of the judgment. However, "[a] motion is not timely merely because it has been filed within one year of the judgment." White v. Am. Airlines, Inc., 915 F.2d 1414, 1425 (10th Cir.1990). The Cummings waited seven months after discovery of the tests to file the motion. This court has upheld several Rule 60(b) denials based on delay where the motion was nevertheless filed prior to the one year deadline. See White, 915 F.2d at 1425 (finding motion untimely where delay of almost a year with only justification that party needed time to raise a defense); Sec. Mutual Cas. Co. v. Century Cas. Co., 621 F.2d 1062, 1067-68 (10th Cir.1980) (finding motion untimely where unexplained delay of 115 days after [955] received notice of grounds for motion). Where a party delays in filing a Rule 60(b) motion after discovery of the grounds for the motion, it must offer sufficient justification for the delay. White, 915 F.2d at 1425. The Cummings argue their motion was presented in a "reasonable time in light of their numerous attempts at securing relief through other procedural channels." II Aplt. Br. at 20. However, the Cummings fail to explain what "other procedural channels" were explored. Id. at 20-21. They also state that they did not want to rush for relief "lest they risk the imposition of sanctions" under Rule 11. Id. at 21. Although it is true Rule 11 imposes a duty on attorneys to conduct "a reasonable inquiry" into the facts and law prior to signing any pleading filed with the court, Cooter & Gell v. Hartmarx Corp., 496 U.S. 384, 392, 110 S.Ct. 2447, 110 L.Ed.2d 359 (1990), the Cummings do not explain why seven months were needed to conduct such an inquiry. They merely assert that, given the extraordinary nature of the remedy under Rule 60, they did not want to rush into filing such a motion. Such an assertion, without more, is insufficient to justify the delay. See White, 915 F.2d at 1425 (concluding party's asserted need for more time to assess defense was insufficient justification for delay). Given this court's precedent, and the failure of the Cummings to offer sufficient justification for the delay, it was not an abuse of the court's discretion to consider the Cummings' delay in denying the motion.

2. Denial of Rule 60(b) Motion on Merits

In addition to finding the motion untimely, the district court concluded that the motion should be denied "more importantly, because the plaintiffs have failed to establish misconduct by GMC." II Aplt. Br., Att. 1 at 4. As noted above, "[r]elief under Rule 60(b) is extraordinary and may only be granted in exceptional circumstances." Bud Brooks, 909 F.2d at 1440. Parties seeking relief under Rule 60(b) have a higher hurdle to overcome because such a motion is not a substitute for an appeal. Id. Given the lower court's discretion, the district court's ruling is only reviewed to determine if a "definite, clear or unmistakable error occurred below." Amoco Oil Co., 231 F.3d at 697. The burden is on the moving party, Wilkin v. Sunbeam Corp., 466 F.2d 714, 717 (10th Cir.1972), and they must show "clear and convincing proof" of fraud, misrepresentation, or misconduct, Anderson v. Dep't of Health & Human Servs., 907 F.2d 936, 952 (10th Cir.1990); Yapp v. Excel Corp., 186 F.3d 1222, 1231 (10th Cir.1999). The application must be "clearly substantiated by adequate proof," Wilkin, 466 F.2d at 717, and the challenged behavior must substantially have interfered with the aggrieved party's ability fully and fairly to prepare for and proceed at trial." Woodworker's Supply, Inc. v. Principal Mut. Life Ins. Co., 170 F.3d 985, 993 (10th Cir.1999)(internal quotation marks and citations omitted).

Failure to disclose information requested during discovery may constitute "misconduct" under Rule 60(b)(3). Woodworker's Supply, Inc. v. Principal Mut. Life Ins. Co., 170 F.3d 985, 993 (10th Cir.1999). However, the Cummings have failed to provide clear and convincing evidence that GM's failure to disclose the videos in this case constitutes misconduct. The Cummings assert that the videos in question show "infant-sized crash dummies squirt[ing] out of their safety seats in simulated accidents similar to that suffered by the Cummings," II Aplt. Br. at 6; they argue such evidence would have been crucial in countering GM's defense, as the videos show that a scenario involving a forward facing child seat would have resulted in injury to the infant in this case. GM counters that the videos are irrelevant, as they involve child dummies ages [956] three and above, in dissimilar car seats, in dissimilar cars. II Aplee. Br. at 14-15.

Even assuming the videos were relevant, GM was under no duty to produce the videos given the requests for production in this case. Plaintiffs offer various requests for production and a subpoena duces tecum, arguing the tests fall within the requested documents. However, the requests are either overly broad or focus solely on the "seat, shoulder anchorages, seat bottom/pan, the seat back, the seat belt anchorages and seat belt angles." II Aplt.App. at 123-24. The Cummings have failed to point to any discovery requests that would encompass the videos in question.

This is particularly true given that the scope of the discovery in this case was limited to 1992-1998 N-cars, which included the 1995 Pontiac Grand Am. The magistrate judge stated during discovery that "[i]nformation about "N" cars that do not share pertinent designs and component parts with the car model at issue would not be relevant to the claims and defenses in this case." I Aplee. Br. at 18 (quoting I Aplt.App. at 34). Given the scope of discovery set forth by the district court, it does not appear the failure to produce the videos in response to the Cummings' discovery requests was "misconduct" on the part of GM.

The Cummings point to two cases, Anderson v. Cryovac, Inc., 862 F.2d 910, 925-26 (1st Cir.1988), and Rozier v. Ford Motor Co., 573 F.2d 1332, 1339 (5th Cir.1978), to support their argument that GM's conduct constituted "misconduct." We are unpersuaded. The particular documents at issue in those cases were clearly requested during discovery. In Anderson, the court specifically found that "[e]ach and all of these Rule 34 demands, fairly read, necessitated divulgement of the Report." 862 F.2d at 928. In Rozier, the court determined that "[b]y any fair reading, the district court's ... discovery order called for production of this Trend Cost Estimate." 573 F.2d at 1339. These cases merely stand for the principle that the failure to disclose in response to a request for production, where proven with clear and convincing evidence, may constitute misconduct under Rule 60(b)(3).

We similarly find lacking the Cummings' argument that GM was required to disclose the video tapes under Federal Rule of Civil Procedure 26. To the extent the Cummings argue GM is required to automatically produce any document "relevant" to the disputed facts at issue in this case, see II Aplee. Br. at 10-11, as discussed above, their reference to the prior version of the rule is inappropriate. Rule 26(a)(1) requires that parties make initial disclosures of "all documents, data compilations, and tangible things that are in the possession, custody, or control of the party and that the disclosing party may use to support its claim or defenses, unless solely for impeachment." Fed.R.Civ.P. 26(a)(1)(B). Under the applicable version of the rule, GM was not required to automatically disclose documents that it did not intend to use. Id., advisory committee's note, 2000 amends. Although a party "may obtain discovery regarding any matter, not privileged, that is relevant to the claim or defense of any party" under Federal Rule of Civil Procedure 26(b)(1), it is the party's own responsibility to seek such discovery through depositions and interrogatories.

The Cummings argue that "the letter and the spirit of the federal rules" require a new trial in this case. II Aplt. Br. at 22. The policies of full and fair disclosure, however, do not relieve them of their burden to prove misconduct. The district court concluded that the Cummings failed to satisfy this burden. Given the extraordinary nature of this remedy, and the lack [957] of support for the motion, this conclusion was not an abuse of discretion. All outstanding motions are denied.

AFFIRMED.

[1] We note that the vast majority of other circuits have held that the failure to renew a motion for judgment as a matter of law following a jury verdict precludes an appellate court from reviewing the sufficiency of the evidence. See Adames v. Perez, 331 F.3d 508, 511-12 (5th Cir.2003) (holding failure to file a post-verdict motion waives a sufficiency claim, limiting court to a review for plain error); Cross v. Cleaver, 142 F.3d 1059, 1069-70 (8th Cir.1998) (holding, where a party fails to move for judgment as a matter of law following the verdict, the court cannot test sufficiency of evidence beyond plain error to prevent a manifest miscarriage of justice); Patel v. Penman, 103 F.3d 868, 879 (9th Cir.1996); Varda, Inc. v. Ins. Co. of N. Am., 45 F.3d 634, 638 (2d Cir.1995) (failure to make motion results in a waiver of challenge to sufficiency of evidence); Velazquez v. Figueroa-Gomez, 996 F.2d 425, 426-27 (1st Cir.1993); Biodex Corp. v. Loredan Biomedical, Inc., 946 F.2d 850, 862 (Fed.Cir.1991) (concluding the "failure to present the district court with a post-verdict motion precludes appellate review of sufficiency of the evidence"); Dixon v. Montgomery Ward, 783 F.2d 55, 55 (6th Cir.1986); Woods v. Nat'l Life & Accident Ins. Co., 347 F.2d 760, 769 (3d Cir.1965) ("A party's failure to file a motion for judgment n.o.v. in the trial court precludes an examination of the record by that court or this court for the purposes of ascertaining whether that party was entitled to a directed verdict."); cf. Benner v. Nationwide Mut. Ins. Co., 93 F.3d 1228, 1234 (4th Cir.1996) (failure to move for judgment as a matter of law pursuant to Rule 50(b) limits the court's remedial powers, but not the ability to review for error). Despite the fact that our approach diverges from that taken by the other circuits, we are constrained to follow our prior precedent, as we are "without power to overrule the unequivocally contrary precedent of this Circuit." Morrison Knudsen, 175 F.3d at 1246 n. 34.

[584] [585] ARGUED: Marc Seldin Rosen, Shar, Rosen & Warshaw, L.L.C., Baltimore, MD, for Appellant. Harold Bruce Dorsey, Piper, Marbury, Rudnick & Wolfe, L.L.P., Baltimore, MD, for Appellee.

ON BRIEF: Proctor D. Robison, Ann Arbor, MI, for Appellant. Jeffrey M. Yeatman, Piper, Marbury, Rudnick & Wolfe, L.L.P., Baltimore, MD, for Appellee.

Before WIDENER, NIEMEYER, and TRAXLER, Circuit Judges.

Affirmed by published opinion. Judge NIEMEYER wrote the opinion, in which Judge WIDENER joined. Judge TRAXLER wrote an opinion concurring in part and dissenting in part.

OPINION

NIEMEYER, Circuit Judge:

Mark Silvestri filed this products liability action against General Motors Corporation, alleging that the airbag in a 1995 Chevrolet Monte Carlo he was driving did not deploy as warranted when he crashed into a utility pole and that, as a result, his injuries from the accident were enhanced. Because Silvestri failed, before the vehicle was repaired, to give General Motors notice of his claim and an opportunity to inspect the vehicle — which the district court concluded was "the sole piece of evidence in this case" — the court dismissed Silvestri's action, finding dismissal to be the appropriate sanction for the spoliation of evidence in this case. For the reasons that follow, we affirm.

[586] I

On November 5, 1994, Mark Silvestri was involved in a single vehicle crash in Preble, New York. Driving his landlady's Chevrolet automobile while intoxicated and at an excessive rate of speed, Silvestri lost control of the vehicle on a curve and slid off the road. The vehicle crashed through a split-rail fence and, as it was spinning, the front of the vehicle obliquely struck a utility pole. The vehicle rotated around the pole and continued past it, coming to rest in the front yard of a residence. During the accident, the airbag in the Chevrolet did not deploy. Although it appears that Silvestri was wearing his seatbelt, he sustained severe facial lacerations and bone fractures, permanently disfiguring his face. He contends that, had the airbag deployed, he would not have sustained these disfiguring injuries.

While Silvestri was in the hospital, his parents retained attorney William G. Moench to protect Silvestri's legal interests, both with respect to Silvestri's ticket for driving while intoxicated and his potential civil action against General Motors. When Moench later contacted Silvestri, Silvestri requested that Moench continue to represent him until his period of incapacitation ended and he was able to meet with Moench in person. Later, Silvestri discharged Moench, perhaps over a dispute with Moench about the advancement of litigation costs, which then had grown to $3000, and retained present counsel.

While acting on behalf of Silvestri, Moench retained two accident reconstructionists, Erik Carlsson and Albert Godfrey, to inspect the damaged Chevrolet and to visit the crash scene so that they could render expert opinions regarding the circumstances of the crash. Carlsson later testified that it was his understanding that he was conducting his investigation "in anticipation of filing a lawsuit against General Motors." Carlsson and Godfrey inspected and photographed the vehicle and inspected the site, and each prepared a report of his findings. Because Carlsson considered it important that General Motors have an opportunity to see the car, Carlsson "suggested" to Attorney Moench, at the time he conducted his inspection, that "the car has to be kept"; and Carlsson stated, "General Motors needs to see the car." He also told Moench after the inspection that "he does indeed have a case [against General Motors] because the airbag should have deployed."

At his inspection, which took place approximately a week after the accident, Carlsson examined the vehicle and took photographs. However, he took only one measurement of the vehicle and conducted no inspection of its undercarriage. While the one measurement he took was a "crush" measurement, he made no note of the measurement. At his deposition several years later, he "seem[ed] to recall" that the "crush" measurement was 18 inches, but he could not definitely remember the measurement. Similarly, Godfrey failed to make notes of any measurements that he may have taken during his inspection. He did, however, photograph a ruler on the hood of the vehicle to measure the extent to which the front of the hood was bent off centerline. When inspecting the site of the accident, Godfrey failed to measure the skid marks left by the vehicle, confessing that he formed his initial opinion about Silvestri's speed at the time of the accident by "eyeball[ing]" the skid marks.

After their inspections, both Carlsson and Godfrey prepared written reports, dated December 6, 1994, which they submitted to Moench. In his report, Carlsson concluded that the vehicle had been subjected to two impacts at the accident, a side impact and a frontal collision. The report stated, "It is evident that the damage [587] was caused by the vehicle striking a wooden fence. A piece of wood is stuck in the passenger side door, and another piece in the rear tire." "The frontal impact was evidently, as depicted in the police report, with the utility pole.... The damage indicates a collision with a narrow object, the initial point of impact being slightly to the right of the vehicle's center line." Carlsson explained further, "In spite of the substantial front end damage that affected the rails of the frame, the vehicle's airbag did not deploy at the accident. Yet, the diagnostics of the airbag showed no defect or malfunction." Carlsson concluded, "The failure by the airbag to deploy in this accident must be considered a defect that unnecessarily added to Mr. Silvestri's injuries."

In Godfrey's written report, Godfrey stated his opinion that the vehicle "struck the utility pole at an angle of approximately 25 Degrees and rotated through the window of 30 Degrees either side of the center line of the vehicle whereby the dual airbags in the vehicle should have inflated, however, failed to do so." He concluded, "A major question arises as to why the air bags did not inflate upon impact with the utility pole. Had the air bags worked properly the operator would not have struck his face on the steering wheel causing the massive facial injuries that were incurred."

Notwithstanding the anticipation of litigation against General Motors, neither Moench nor Silvestri took any steps to preserve the vehicle or to notify General Motors of the existence of the vehicle and Silvestri's potential claim. Indeed, General Motors was not notified about the accident until almost three years later when Silvestri commenced this action against the corporation. Yet, the vehicle remained in its damaged condition for more than three months after the accident. In early 1995, the title-owner of the vehicle, Carl E. Burhans, the husband of Silvestri's landlady, transferred title of the vehicle to his insurance company, and his insurance company in turn sold the vehicle to Prestige Collision, Inc., which repaired the vehicle and then sold it. General Motors ultimately found the vehicle in June 1998 in Quebec, Canada, in the possession of Real T. Durand. When, in 1998, General Motors inspected the airbag sensing and diagnostic module, which monitors and retains in its memory defects in the airbag system, it found that the module had not been damaged in the accident. The module revealed that there had been no defect in the airbag system. Silvestri's expert, however, questioned whether this was the original module that had been in the vehicle at the time of the accident.

After General Motors was named the defendant in this action, its reconstruction expert, Keith Schultz, evaluated the evidence collected by Carlsson and Godfrey, as well as the sensing and diagnostic module from the repaired vehicle. Based on the available evidence, Schultz concluded that the oblique impact of the vehicle with the utility pole did not meet the airbag deployment criteria set forth in General Motors' warranty to provide head and face protection in a frontal impact. He stated, "My investigation indicates that the impact speed and direction and conditions of the subject accident were not sufficient to cause the deployment of the SIR [Supplemental Inflatable Restraint] system and that the subject airbag properly did not deploy." He added, "It is my opinion that the injuries sustained by [Silvestri], due to the violent impact of wood from a fence impacting the vehicle compartment, could have been greater if the SIR had deployed as claimed by [Silvestri]." Schultz explained further that "the plaintiff was injured not by an impact with a telephone pole but rather when the vehicle ran [588] through a wooden fence, violently projecting portions of the fence into the passenger compartment of the vehicle. The change in velocity, or the `delta V', of the vehicle when it impacted the telephone pole was not sufficient and not directionally correct to deploy the airbags." Schultz added a serious caveat to his opinions, however, indicating that Silvestri's failure to preserve the vehicle in its condition after the accident "hinders General Motors['] ability to defend plaintiff's claim of a product defect." He explained,

Although the information stored in the SDM [Sensing and Diagnostic Module] indicates that the airbag system was operating properly at the time of the accident, a detailed inspection of the condition of the vehicle post-accident before any body repairs are performed is critical to performing a crush analysis of the vehicle. A crush analysis is performed by actually measuring the amount of crush at numerous points on the vehicle. These crush measurements are used to create a crush profile of the vehicle, which, in turn, is used to determine the change in velocity, or "delta V" of the vehicle in the accident. Such information is important to a detailed reconstruction of the accident.

He concluded that the destruction of this evidence had prejudiced General Motors' defense.

Following receipt of Schultz's report, both Carlsson and Godfrey changed some of their conclusions about their observations of the vehicle following the accident. For example, although Carlsson initially stated that the windshield on the vehicle had collapsed and fallen completely inward, making no reference to seeing any blood, he changed his report later to say that he saw blood on the windshield. Carlsson also originally concluded that Silvestri's face struck the windshield rather than the steering wheel and that he had not seen any deformation to the steering wheel nor any evidence that the steering column had been "stroked" (compressed) as a result of the accident. But in his later opinions, he concluded that Silvestri's face struck the steering wheel with a force sufficient to deform the steering wheel and cause the steering column to be stroked.

Godfrey likewise changed his opinions as well as his "original" observations. In his deposition, taken before Schultz's report became available, Godfrey stated that he did not take any crush measurements of the car and therefore did not calculate the equivalent barrier speed of the vehicle as it struck the utility pole. After Schultz's report, however, Godfrey gave a specific crush measurement of "approximately" 24 inches and a calculation of the equivalent barrier speed of 24 miles per hour, based on "a rule of thumb" of one mile per hour for each inch of crush. Not only had Godfrey previously indicated that he never took a crush measurement, Carlsson, who did take a crush measurement but did not make a note of it, "seemed to recall" that it was probably 18 inches. Under Godfrey's "rule of thumb," this would result in an 18 miles-per-hour barrier speed. In addition, Godfrey originally testified that he did not believe that anyone could calculate the angle at which Silvestri hit the steering wheel. But in a subsequent report, issued after Schultz's report, he stated that the front of Silvestri's skull and face hit the right side of the steering wheel.

Following discovery, General Motors filed a motion for summary judgment on various grounds, including the ground that Silvestri could not establish a prima facie case for a product defect. General Motors also asked that the case be dismissed based on Silvestri's spoliation of evidence. The district court concluded that Silvestri had not stated a prima facie case and [589] therefore did not address the spoliation issue. On appeal, we concluded that under the law of New York, which the parties agreed governed this case, Silvestri had stated a prima facie case. In response to General Motors' alternative request that we address the spoliation issue, we declined and remanded the case to the district court, stating that "the district court has broad discretion to address the matter, and in this case, the district court did not address spoliation in its ruling on General Motors' motion for summary judgment." Silvestri v. General Motors Corp., 210 F.3d 240, 245 (4th Cir.2000).

On remand, the district court addressed General Motors' spoliation claim and dismissed the case on that basis. The district court concluded that Silvestri had breached his duty either to preserve the vehicle or to notify General Motors about its availability and his claim. The court concluded that Silvestri's failure to discharge this duty caused General Motors to be "highly prejudiced." After recognizing that the determination of whether the airbag should have deployed could only be determined by a reconstruction of the accident, the court explained that General Motors was denied the opportunity to reconstruct the accident accurately because of its inability to take the necessary crush measurements. As the court said:

Therefore, Defendant is now forced to rely on the few measurements taken by Plaintiff's experts, Carlsson and Godfrey. As to these measurements, Carlsson admitted, during his deposition, that he only took one crush measurement — that of what he believed to be the area of "maximum crush." ... Not only was this lone measurement uncorroborated, but it was also inadequate. Defendant's expert opines, and plaintiff does not dispute, that crush measurements are generally taken at numerous points on the vehicle.... Based on the inability to take crush measurements alone, there is little doubt that defendant has been highly prejudiced.

In addition, the court noted that General Motors was prejudiced in its examination of the sensing and diagnostic module which monitored the airbag deployment system because Silvestri's expert challenged the results of the examination. As the court explained:

In his second report, Carlsson cast doubt on whether or not the airbag system inspected in 1998, which indicated no system faults, was, in fact, the same system in the car at the time of the accident.... Defendant, at this late date, has no way of proving that the systems are the same. This is critical to Defendant's case as their defense rests, in large part, on the fact that, because the airbag system showed no faults, the conditions of the accident must not have met the threshold requirement to deploy the airbag.

The court added that not only was Silvestri put on notice that the evidence should have been preserved or General Motors notified, but he also "remained silent until almost three years later when his suit was filed."

From the district court's order of dismissal, Silvestri noticed this appeal.

II

On appeal, Silvestri contends that he is not responsible for any spoliation of evidence because (1) he had no duty to preserve the vehicle in question as he was not its owner, and (2) any act of spoliation was that of attorney Moench, hired by his parents, not him, and therefore was not imputable to him. He also argues that the sanction of dismissal was too harsh because General Motors was not so severely [590] prejudiced that it could not adequately defend itself in the action.

In their briefs and at oral argument, the parties have agreed that the law of New York — where the accident occurred — supplies the applicable principles of spoliation, and they have cited that law to the court. We conclude, however, that a federal law of spoliation applies because, as we note below, the power to sanction for spoliation derives from the inherent power of the court, not substantive law. Nevertheless, we have recognized the articulation of spoliation principles from some of the New York cases cited to us.

A

Spoliation refers to the destruction or material alteration of evidence or to the failure to preserve property for another's use as evidence in pending or reasonably foreseeable litigation. West v. Goodyear Tire & Rubber Co., 167 F.3d 776, 779 (2d Cir.1999) (citing Black's Law Dictionary 1401 (6th ed.1990)). The right to impose sanctions for spoliation arises from a court's inherent power to control the judicial process and litigation, but the power is limited to that necessary to redress conduct "which abuses the judicial process." Chambers v. NASCO, Inc., 501 U.S. 32, 45-46, 111 S.Ct. 2123, 115 L.Ed.2d 27 (1991) (recognizing the inherent power of the courts to fashion appropriate sanctions for conduct that disrupts the judicial process); see also United States v. Shaffer Equip. Co., 11 F.3d 450, 462 (4th Cir.1993) (recognizing "that when a party deceives a court or abuses the process at a level that is utterly inconsistent with the orderly administration of justice or undermines the integrity of the process, the court has the inherent power to dismiss the action"); cf. Fed.R.Civ.P. 37(b)(2) (authorizing sanctions for violations of discovery orders).

The policy underlying this inherent power of the courts is the need to preserve the integrity of the judicial process in order to retain confidence that the process works to uncover the truth. "[B]ecause no one has an exclusive insight into truth, the process depends on the adversarial presentation of evidence, precedent and custom, and argument to reasoned conclusions — all directed with unwavering effort to what, in good faith, is believed to be true on matters material to the disposition." Shaffer Equipment, 11 F.3d at 457. The courts must protect the integrity of the judicial process because, "[a]s soon as the process falters ... the people are then justified in abandoning support for the system." Id.

Thus, while the spoliation of evidence may give rise to court imposed sanctions deriving from this inherent power, the acts of spoliation do not themselves give rise in civil cases to substantive claims or defenses.

While a district court has broad discretion in choosing an appropriate sanction for spoliation, "the applicable sanction should be molded to serve the prophylactic, punitive, and remedial rationales underlying the spoliation doctrine." West, 167 F.3d at 779. In addition, a court must find some degree of fault to impose sanctions. We have recognized that when imposing spoliation sanctions, "the trial court has discretion to pursue a wide range of responses both for the purpose of leveling the evidentiary playing field and for the purpose of sanctioning the improper conduct." Vodusek v. Bayliner Marine Corp., 71 F.3d 148, 156 (4th Cir.1995). But dismissal should be avoided if a lesser sanction will perform the necessary function. West, 167 F.3d at 779.

We review the district court's exercise of its discretion for abuse. Hartford [591] Ins. Co. v. Am. Automatic Sprinkler Sys., Inc., 201 F.3d 538, 543-44 (4th Cir.2000); West, 167 F.3d at 779.

B

Silvestri contends first that he had no duty to preserve the vehicle because he was not its owner and because neither he nor his agents were in any way engaged in the destruction of the evidence. This argument assumes too narrow an understanding of the duty at issue.

The duty to preserve material evidence arises not only during litigation but also extends to that period before the litigation when a party reasonably should know that the evidence may be relevant to anticipated litigation. Kronisch v. United States, 150 F.3d 112, 126 (2d Cir.1998). If 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. See Andersen v. Schwartz, 179 Misc.2d 1001, 687 N.Y.S.2d 232, 234-35 (N.Y.Sup.Ct.1999) (holding that in a products liability action arising from a vehicle collision where the vehicle was not owned by the plaintiffs, the plaintiffs nonetheless had an obligation to notify General Motors of the date and time of the initial and only inspection of the vehicle because the plaintiffs were aware that General Motors would be brought in as a defendant).

In this case, it is true that Silvestri did not own the vehicle, nor did he even control it in a legal sense after the accident because the vehicle belonged to his landlady's husband. But it is apparent that Silvestri had access to the vehicle, as his attorney Moench and his retained experts were given apparently unlimited access to the vehicle for inspection purposes. Moreover, the vehicle was preserved in its post-accident condition for perhaps two to three months, or more, a period during which Silvestri, his lawyer, and his experts recognized not only that they would be suing General Motors but also that General Motors should be given an opportunity to inspect the vehicle. Within a couple of weeks of the accident, Silvestri's counsel had a conversation with his experts about the need to preserve the vehicle and have General Motors inspect it. One of Silvestri's expert witnesses, Erik Carlsson, testified that it was his understanding that his inspection of the vehicle was being conducted in anticipation of filing a lawsuit against General Motors and that he advised Moench that Silvestri had a valid case against General Motors "because the airbag should have deployed." In recognition of this, he stated to Moench, "therefore General Motors needs to see the car."

Indeed, Silvestri himself, Silvestri's parents, Moench, and the experts all recognized the need to act quickly to preserve evidence. The reason why Moench was retained and why he promptly retained reconstruction experts was to collect evidence before it was lost. The relevance of the evidence and the type of lawsuit to file became clear when Silvestri's experts conducted their inspection and concluded that the "failure by the airbag to deploy in this accident must be considered a defect that unnecessarily added to Mr. Silvestri's injuries." Even after these experts completed their inspection and their reports, the vehicle remained in its post-accident condition, yet no notice of any claim was given to General Motors nor was General Motors advised of any opportunity to inspect the vehicle. Moreover, there is no evidence to indicate that Silvestri attempted to buy the damaged vehicle or to request that it be maintained in its post-accident condition until General Motors could inspect it. It is [592] readily apparent, therefore, that Silvestri, his attorneys, and his expert witnesses anticipated filing suit against General Motors and were fully aware that the vehicle was material evidence in that litigation. Yet, they failed to take any steps to ensure that Silvestri discharged his duty to prevent the spoliation of evidence.

Silvestri now argues, frivolously we conclude, that Moench was not his attorney and therefore that Moench's failure to preserve the evidence should not be imputed to Silvestri. The record belies any such contention. It is undisputed that following Silvestri's accident, he was incapacitated and his parents retained Moench to look after Silvestri's legal interests. Moreover, when Silvestri became aware of that fact, he explicitly ratified his parents' retention of Moench by instructing Moench to continue representing him until he and Moench could get together to discuss the matter. Apparently, when they finally did meet, some two months after the accident, they found themselves in disagreement about who would advance the quickly increasing litigation costs, which at that point had reached several thousand dollars. Silvestri discharged Moench and retained new counsel, but he did not disavow the existence of an attorney-client relationship and the benefits of that relationship. In fact, Moench also represented Silvestri in connection with the related criminal matter involving Silvestri's driving while intoxicated, and Silvestri continued to use the investigative materials that Moench and the experts developed. Moreover, when Moench later sued Silvestri for attorneys fees and costs, Silvestri filed a counterclaim alleging attorney malpractice, a claim that could arise only out of an attorney-client relationship. As the district court correctly pointed out, to allow Silvestri to partake in the benefits provided by Moench — the testimony and expert reports of Carlsson and Godfrey — and at the same time disavow the acts of Moench in failing to preserve the evidence or notify General Motors would be "particularly unjust."

The district court concluded that even independent of Moench's conduct, the spoliation of evidence was imputable to Silvestri himself. First, Silvestri knew that Moench had retained experts to examine the vehicle, and he had authorized Moench to continue on his behalf to collect data in support of a potential lawsuit. Second, he knew the significance of preserving the automobile because when Moench sued him, he counterclaimed for malpractice, alleging that Moench had failed to preserve the vehicle which was to be evidence in this lawsuit. This all occurred long before General Motors was sued or had knowledge of the suit, and yet Silvestri took no steps to assure General Motors equal access to the evidence or to give General Motors notice of his claim.

In sum, we agree with the district court that Silvestri failed to preserve material evidence in anticipation of litigation or to notify General Motors of the availability of this evidence, thus breaching his duty not to spoliate evidence.

C

Silvestri contends that dismissal was an unduly harsh sanction for the spoliation that occurred in this case and that the district court could have, instead, entered an order that designated facts be taken as established for purposes of the action or that presumptions be applied in connection with the burden of proof. In this vein, counsel for Silvestri made clear during oral argument that Silvestri was disavowing his experts' demand for proof that the sensing and diagnostic module that General Motors inspected in 1998 was the same one in the vehicle during the accident. Counsel stated during argument [593] that Silvestri accepted the fact that the module that General Motors inspected in 1998 was the original one and that it revealed no system defect. Although counsel was attempting to mitigate the prejudice found by the district court by conceding this fact on appeal, the district court did not have the benefit of that concession. Even so, this issue was only one of the factors relied upon by the district court to find prejudice. Even without this factor, we still conclude that General Motors was severely prejudiced by the spoliation of evidence that occurred.

We agree with Silvestri that dismissal is severe and constitutes the ultimate sanction for spoliation. It is usually justified only in circumstances of bad faith or other "like action." Cole v. Keller Indus., Inc., 132 F.3d 1044, 1047 (4th Cir.1998). But even when conduct is less culpable, dismissal may be necessary if the prejudice to the defendant is extraordinary, denying it the ability to adequately defend its case. As the Supreme Court noted in Chambers, the district court has discretion "to fashion an appropriate sanction for conduct which abuses the judicial process." 501 U.S. at 44-45, 111 S.Ct. 2123. And it went on to point out that "outright dismissal of a lawsuit, which we had upheld in Link [v. Wabash R.R. Co., 370 U.S. 626, 630-31, 82 S.Ct. 1386, 8 L.Ed.2d 734 (1962)], is a particularly severe sanction, yet is within the court's discretion." Id. at 45, 111 S.Ct. 2123.

As the New York courts have recognized, sometimes even the inadvertent, albeit negligent, loss of evidence will justify dismissal because of the resulting unfairness: "The expansion of sanctions for the inadvertent loss of evidence recognizes that such physical evidence often is the most eloquent impartial `witness' to what really occurred, and further recognizes the resulting unfairness inherent in allowing a party to destroy evidence and then to benefit from that conduct or omission." Kirkland v. New York City Housing Auth., 236 A.D.2d 170, 173, 666 N.Y.S.2d 609 (N.Y.App.Div.1997). In fashioning an appropriate sanction, the New York courts have focused not only on the conduct of the spoliator but also on the prejudice resulting from the destruction of the evidence. See, e.g., Squitieri v. New York, 248 A.D.2d 201, 669 N.Y.S.2d 589, 590-91 (N.Y.App.Div.1998) (finding dismissal appropriate where a party negligently disposed of the street sweeper at issue in the litigation, preventing the opposing party from countering the design defect claim with evidence of misuse, alteration, or poor maintenance of the sweeper); Kirkland, 236 A.D.2d at 173-74, 666 N.Y.S.2d 609 (finding dismissal appropriate where a party unintentionally failed to preserve the crucial piece of evidence, a stove alleged to be defective, and, therefore, no actual inspection of the item at issue could be performed because "[i]ts loss `irrevocably stripped'[the defendant] of useful defenses").

At bottom, to justify the harsh sanction of dismissal, the district court must consider both the spoliator's conduct and the prejudice caused and be able to conclude either (1) that the spoliator's conduct was so egregious as to amount to a forfeiture of his claim, or (2) that the effect of the spoliator's conduct was so prejudicial that it substantially denied the defendant the ability to defend the claim.

In the case before us, the conduct of the spoliator may have been either deliberate or negligent. We know that Silvestri's attorney knew that the vehicle was the central piece of evidence in his case against General Motors and that he had been reminded that this piece of evidence should be preserved or that General Motors should be notified. As it turned out, [594] the vehicle was not preserved, and neither Silvestri nor his attorneys notified General Motors of Silvestri's claim until almost three years after the accident; by then, the evidence had been destroyed by the repair of the vehicle. Whether Silvestri's counsel believed he was securing advantage to his client's case by deliberately remaining silent for three years or whether he simply ignored his responsibilities through carelessness is not revealed in the record. But what is revealed is a level of culpability that was at least negligent and may have been deliberate. Accordingly, it is not clear whether Silvestri's conduct alone would justify dismissal.

When we turn to the prejudice suffered by General Motors, we agree with the district court's finding that the spoliation was "highly prejudicial." It denied General Motors access to the only evidence from which it could develop its defenses adequately. First, by not having access to the vehicle, General Motors could not develop a "crush" model to prove that the airbag properly failed to deploy. In order to establish this model, General Motors needed crush measurements taken at several places on the automobile. These measurements would reveal not only the speed at impact, but also the direction of forces imposed on the car. This information would lead to an ability to determine whether the airbag device acted as designed and therefore was critical to the central issue in the case.

Silvestri's expert, Carlsson, testified that he took one crush measurement, but he did not write it down. At his deposition, however, he seemed to recollect the measurement to be around 18 inches. Godfrey made no such measurement. Yet, Godfrey later assumed a 24-inch crush measurement to conclude that the impact causing such a crush was a vehicle traveling at 24 miles per hour. Silvestri argues that General Motors could have used these same figures to determine its own crush model. But, as Silvestri acknowledges and General Motors has pointed out, General Motors needed more than one crush measurement to develop a crush model, and in this case the one crush measurement available was unreliable.

In addition, because of the spoliation, General Motors could not resolve the critical question of how Silvestri injured his head. General Motors asserts that Silvestri's injuries were actually caused by pieces of wood that entered the vehicle from the side when the vehicle struck the fence. It points out that if the accident was caused by the fencing, then the airbag would not have prevented Silvestri's injuries. Silvestri's experts, however, have contended, inconsistently, that Silvestri either hit the steering wheel or hit the windshield. In support of their contention they rely on changed recollections about the vehicle's condition. At one point, they argued that the steering wheel had not been deformed nor had its steering column been stroked. Yet, at another point, they say that it had been deformed and stroked. These inconsistencies could have been resolved by a thorough examination of the vehicle cabin to look for wood in the car, to determine the location of blood and hair, and to take measurements of the steering column.

Thus, not only was the evidence lost to General Motors, but the evidence that was preserved was incomplete and indefinite. To require General Motors to rely on the evidence collected by Silvestri's experts in lieu of what it could have collected would result in irreparable prejudice. Short of dismissal, the district court would have been left to formulate an order that created facts as established or that created presumptions. But when Silvestri presents vehicle data as his only evidence of a [595] product defect and that data is incomplete and perhaps inaccurate, the court would have no basis for determining what facts should be taken as established. On the other hand, if the court denied Silvestri's experts from testifying, as would be an alternative, then Silvestri would have no case at all.

In short, we conclude that the district court's finding that General Motors was "highly prejudiced" was not clearly erroneous and that in the peculiar circumstances of this case, the court's order dismissing this case, although severe, was not an abuse of discretion. Accordingly, the judgment of the district court is

AFFIRMED.

TRAXLER, Circuit Judge, concurring in part and dissenting in part:

I agree with the majority that Silvestri failed to discharge his duty to preserve the accident vehicle or at least notify General Motors that the vehicle was potential evidence. Therefore, I concur in sections IIIB of Judge Niemeyer's opinion.

I believe, however, that the complete dismissal of the case was an excessive sanction. Keith S. Schultz, General Motors' expert witness and corporate designee, formed the opinion that "[t]he change in velocity, or the `delta V', of the vehicle when it impacted the telephone pole was not sufficient and not directionally correct to deploy the air bags" because "[t]he right front corner of the vehicle struck the telephone pole as it was sliding sideways off the roadway." J.A. 378. During his deposition, Schultz agreed that "General Motors does not need any information between what the vehicle looked like from these photographs immediately after the accident and the present time in order to support its position," J.A. 584, and that he had "sufficient information in order to form the opinions that [he had] expressed," J.A. 268.

In light of Schultz's ability to form an expert opinion, I am not convinced that General Motors suffered such prejudice that dismissal was the only solution. The district court did not conduct a hearing before dismissing the case, and there is nothing in the record indicating whether the court considered lesser sanctions. I would remand for the district court to consider imposing a sanction short of outright dismissal. Accordingly, I respectfully dissent only from section IIC of the majority opinion.