                                             Filed:   November 29, 2001

                    UNITED STATES COURT OF APPEALS

                        FOR THE FOURTH CIRCUIT


                              No. 00-2523
                           (CA-97-4214-WMN)



Mark N. Silvestri,

                                                Plaintiff - Appellant,

           versus


General Motors Corporation,

                                                 Defendant - Appellee.



                              O R D E R



     The court amends its opinion filed November 14, 2001, as

follows:

     On page 4, second full paragraph, line 12 -- “June 1988" is

corrected to read “June 1998.”

                                          For the Court - By Direction




                                          /s/ Patricia S. Connor
                                                   Clerk
PUBLISHED

UNITED STATES COURT OF APPEALS

FOR THE FOURTH CIRCUIT

MARK N. SILVESTRI,
Plaintiff-Appellant,

v.                                                             No. 00-2523

GENERAL MOTORS CORPORATION,
Defendant-Appellee.

Appeal from the United States District Court
for the District of Maryland, at Baltimore.
William M. Nickerson, District Judge.
(CA-97-4214-WMN)

Argued: September 27, 2001

Decided: November 14, 2001

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 con-
curring in part and dissenting in part.

_________________________________________________________________

COUNSEL

ARGUED: Marc Seldin Rosen, SHAR, ROSEN & WARSHAW,
L.L.C., Baltimore, Maryland, for Appellant. Harold Bruce Dorsey,
PIPER, MARBURY, RUDNICK & WOLFE, L.L.P., Baltimore,
Maryland, for Appellee. ON BRIEF: Proctor D. Robison, Ann Arbor,
Michigan, for Appellant. Jeffrey M. Yeatman, PIPER, MARBURY,
RUDNICK & WOLFE, L.L.P., Baltimore, Maryland, for Appellee.

_________________________________________________________________
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 con-
cluded was "the sole piece of evidence in this case" -- the court dis-
missed 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.

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, Sil-
vestri 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 repre-
sent him until his period of incapacitation ended and he was able to
meet with Moench in person. Later, Silvestri discharged Moench, per-
haps over a dispute with Moench about the advancement of litigation
costs, which then had grown to $3000, and retained present counsel.

                   2
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 ren-
der 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 vehi-
cle 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. How-
ever, 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 center-
line. When inspecting the site of the accident, Godfrey failed to mea-
sure 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 was caused by the
vehicle striking a wooden fence. A piece of wood is stuck in the pas-
senger side door, and another piece in the rear tire." "The frontal
impact was evidently, as depicted in the police report, with the utility

                  3
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 com-
menced this action against the corporation. Yet, the vehicle remained
in its damaged condition for more than three months after the acci-
dent. 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 sys-
tem, it found that the module had not been damaged in the accident.
The module revealed that there had been no defect in the airbag sys-
tem. Silvestri's expert, however, questioned whether this was the
original module that had been in the vehicle at the time of the acci-
dent.

                   4
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 mod-
ule from the repaired vehicle. Based on the available evidence,
Schultz concluded that the oblique impact of the vehicle with the util-
ity pole did not meet the airbag deployment criteria set forth in Gen-
eral 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 suffi-
cient 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 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 perform-
       ing a crush analysis of the vehicle. A crush analysis is per-
       formed 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 impor-
       tant to a detailed reconstruction of the accident.

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

                  5
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 ini-
tially 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, how-
ever, 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 mea-
surement 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 Sil-
vestri'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 spo-
liation of evidence. The district court concluded that Silvestri had not
stated a prima facie case and 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

                  6
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 dis-
cretion to address the matter, and in this case, the district court did not
address spoliation in its ruling on General Motors' motion for sum-
mary 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 con-
cluded that Silvestri had breached his duty either to preserve the vehi-
cle 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 mea-
        surements taken by Plaintiff's experts, Carlsson and God-
        frey. 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 plain-
        tiff 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 sys-
        tem faults, was, in fact, the same system in the car at the

                  7
        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 thresh-
        old requirement to deploy the airbag.

The court added that not only was Silvestri put on notice that the evi-
dence 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 spo-
liation 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 dis-
missal was too harsh because General Motors was not so severely
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 princi-
ples from some of the New York cases cited to us.

A

Spoliation refers to the destruction or material alteration of evi-
dence or to the failure to preserve property for another's use as evi-
dence in pending or reasonably foreseeable litigation. West v.

                   8
Goodyear Tire & Rubber Co., 167 F.3d 776, 779 (2d Cir. 1999) (cit-
ing 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 nec-
essary to redress conduct "which abuses the judicial process." Cham-
bers v. Nasco, Inc., 501 U.S. 32, 45-46 (1991) (recognizing the
inherent power of the courts to fashion appropriate sanctions for con-
duct that disrupts the judicial process); see also United States v. Shaf-
fer 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 confi-
dence that the process works to uncover the truth."[B]ecause no one
has an exclusive insight into truth, the process depends on the adver-
sarial 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 pro-
tect the integrity of the judicial process because,"[a]s soon as the pro-
cess 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 spo-
liation do not themselves give rise in civil cases to substantive claims
or defenses.

While a district court has broad discretion in choosing an appropri-
ate 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 recog-
nized that when imposing spoliation sanctions, "the trial court has dis-
cretion to pursue a wide range of responses both for the purpose of
leveling the evidentiary playing field and for the purpose of sanction-

                   9
ing 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 Ins. Co. v. Am. Automated 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 liti-
gation 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 pos-
sible destruction of the evidence if the party anticipates litigation
involving that evidence. See Andersen v. Schwartz, 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 Gen-
eral 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 vehi-
cle belonged to his landlady's husband. But it is apparent that Sil-
vestri 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

                  10
not only that they would be suing General Motors but also that Gen-
eral 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 wit-
nesses, 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 Sil-
vestri 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 con-
sidered 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 condi-
tion until General Motors could inspect it. It is readily apparent, there-
fore, that Silvestri, his attorneys, and his expert witnesses anticipated
filing suit against General Motors and were fully aware that the vehi-
cle 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

                  11
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 liti-
gation 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 bene-
fits of that relationship. In fact, Moench also represented Silvestri in
connection with the related criminal matter involving Silvestri's driv-
ing 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 cor-
rectly pointed out, to allow Silvestri to partake in the benefits pro-
vided by Moench -- the testimony and expert reports of Carlsson and
Godfrey -- and at the same time disavow the acts of Moench in fail-
ing to preserve the evidence or notify General Motors would be "par-
ticularly 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 sig-
nificance 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 law-
suit. This all occurred long before General Motors was sued or had
knowledge of the suit, and yet Silvestri took no steps to assure Gen-
eral 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 pre-
serve material evidence in anticipation of litigation or to notify Gen-
eral 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

                   12
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 Sil-
vestri 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 vehi-
cle during the accident. Counsel stated during argument 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 preju-
dice. 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 circum-
stances 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 dis-
cretion "to fashion an appropriate sanction for conduct which abuses
the judicial process." 501 U.S. at 44-45. 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 (1962)], is a particularly
severe sanction, yet is within the court's discretion." Id. at 45.

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 evi-
dence 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 (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 destruc-

                   13
tion of the evidence. See, e.g., Squitieri v. New York, 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 main-
tenance of the sweeper); Kirkland, 236 A.D.2d at 173-74 (finding dis-
missal appropriate where a party unintentionally failed to preserve the
crucial piece of evidence, a stove alleged to be defective, and, there-
fore, 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 substan-
tially 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 evi-
dence should be preserved or that General Motors should be notified.
As it turned out, 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

                  14
"crush" model to prove that the airbag properly failed to deploy. In
order to establish this model, General Motors needed crush measure-
ments 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 there-
fore was critical to the central issue in the case.

Silvestri's expert, Carlsson, testified that he took one crush mea-
surement, but he did not write it down. At his deposition, however,
he seemed to recollect the measurement to be around 18 inches. God-
frey 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. Sil-
vestri's experts, however, have contended, inconsistently, that Sil-
vestri 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 loca-
tion of blood and hair, and to take measurements of the steering col-
umn.

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

                  15
experts in lieu of what it could have collected would result in irrepara-
ble prejudice. Short of dismissal, the district court would have been
left to formulate an order that created facts as established or that cre-
ated presumptions. But when Silvestri presents vehicle data as his
only evidence of a product defect and that data is incomplete and per-
haps 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. Accord-
ingly, 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 I-
IIB 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 tele-
phone 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.

                  16
In light of Schultz's ability to form an expert opinion, I am not con-
vinced 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 dis-
missal. Accordingly, I respectfully dissent only from section IIC of
the majority opinion.

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