Lawyers pursuing the first nationwide trial over sudden acceleration defects have moved for sanctions, accusing Toyota of violating a preservation order by secretly inspecting the event data recorder on a 2008 Camry that was involved in an accident in Utah.

The case at issue — alleging that the driver and another passenger died and two passengers were injured when the car suddenly accelerated — is the first bellwether case scheduled for trial in the multidistrict litigation against Toyota; more than 200 cases are pending in federal court in Santa Ana, Calif. The trial is scheduled for Feb. 19, 2013.

Mark Robinson, lead counsel on the plaintiffs’ steering committee for personal injury and wrongful death cases in the MDL, asked on Feb. 17 for terminating sanctions, which would mean a default judgment against Toyota in lieu of going to trial. Alternatively, he asked for lesser sanctions that would prevent or limit Toyota’s use of evidence from the device, which is similar to an airplane’s “black box” and records what the car was doing at the time of a crash.

“No consent was ever given by Plaintiffs or anyone on their behalf to inspect the Van Alfen vehicle, nor to access and download the EDR,” wrote Robinson, senior partner in Robinson Calcagnie Robinson Shapiro Davis in Newport Beach, Calif. “Toyota has scrambled the eggs and they cannot be unscrambled.”

Such sanctions would essentially declare the plaintiff the winner or substantially impair Toyota’s ability to present evidence.

Toyota’s lead attorney, Vincent Galvin, in an opposition motion filed on March 12, argued that the bid for sanctions was “massive overkill” — an attempt to prevent the inspection’s findings from getting into trial. The event data recorder indicated that the driver had failed to step on the brakes just before the accident, he wrote.

“Plaintiffs’ motivation is obvious. The EDR evidence devastates their case,” wrote Galvin, managing partner of the San Jose, Calif., office of Bowman and Brooke.

A hearing on the sanctions motion is scheduled for April 9. Robinson did not return a call for comment. Celeste Migliore, a Toyota spokeswoman, declined to comment.

The case involves Paul Van Alfen, a driver who died in the Nov. 5, 2010, accident. His wife and son were injured and his son’s fiancée was killed. The suit alleges that Toyota was at fault for not installing a brake override in the car, but Toyota plans to argue that Van Alfen was to blame.

In his sanctions motion, Robinson cited U.S. District Judge James Selna’s preservation order, issued on July 16, 2010, which prohibited Toyota from inspecting the event data recorder on the Van Alfen vehicle “without Plaintiffs’ consent and outside of their presence.” Four employees from Toyota’s legal department conducted the inspection anyway, Robinson said, along with another individual who worked for an outside contractor to the U.S. National Highway Traffic Safety Administration.

At the time, Toyota’s employees knew that the Van Alfens had retained counsel, he continued. The Utah Highway Patrol had previously removed the event data recorder from the vehicle, but Toyota never informed officers about the preservation order, Robinson wrote. He accused Toyota of violating its own internal policy by failing to obtain consent from the vehicle’s owner before inspecting the device.

Toyota’s actions threatened the integrity of the device, which could have been altered or destroyed, he wrote. “Toyota’s conduct violated the Preservation Order, destroyed data, and has undermined the litigation process by denying Plaintiffs the ability to analyze the EDR evidence,” Robinson wrote.

Robinson suggested that, if Selna isn’t prepared to order terminating sanctions, he prevent Toyota from introducing the recorder’s readout as evidence, or, at the very least, inform jurors that Toyota may have spoiled evidence.

Galvin, Toyota’s attorney, noted in response that it was NHTSA, not Toyota, that first inspected the recorder, and that federal regulators simply asked Toyota to provide a repair history of the vehicle. He disputed that Toyota had violated the preservation order, since the plaintiffs hadn’t even filed their lawsuit at the time of the inspection; the preservation order applied only to cases pending in the MDL. As for obtaining the consent of the Van Alfens, Galvin wrote that it wasn’t required; in an event, officials at Utah Highway Patrol and NHTSA had informed Toyota that they had obtained the family’s consent.

“The EDR data flatly disprove plaintiffs’ attempt to blame Toyota,” Galvin wrote. “The car did not accelerate, it slowed down. The engine did not rev — it was normal. The car did not fail to respond to the brakes, the driver failed to press the brake.”

Galvin wrote that NHTSA and Utah Highway Patrol had asked Toyota to assist in the inspection and that there is no evidence that the device had been compromised.

In addition to opposing sanctions, Toyota has sought to strike declarations by expert witnesses for the plaintiffs in their sanctions motion and, in a March 30 filing, objected to allegedly new arguments brought by plaintiffs in a reply brief. That brief, filed on March 26, claims that Toyota had a “duty to speak up” about the preservation order to government officials. The brief noted that a Toyota executive, during the inspection, physically removed a plastic part from the vehicle’s throttle body, damaging the evidence.

Galvin has asked for the hearing to be delayed until April 30 so that he could respond to those arguments.

Contact Amanda Bronstad at [email protected].