Burd et al v. Ford Motor Company, No. 3:2013cv20976 - Document 142 (S.D.W. Va. 2014)
Court Description: MEMORANDUM OPINION AND ORDER granting in part and denying in part 106 MOTION by Ford Motor Company to Compel Written Discovery Responses from Plaintiffs Shane Mayfield and Charles Burd as set forth herein; the plaintiffs shall serve their supplemental response on Ford within 7 days of the date of this Order. Signed by Magistrate Judge Cheryl A. Eifert on 11/18/2014. (cc: attys; any unrepresented party) (mkw)
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Burd et al v. Ford Motor Company Doc. 142 IN TH E U N ITED STATES D ISTRICT COU RT FOR TH E SOU TH ERN D ISTRICT OF W EST VIRGIN IA H U N TIN GTON D IVISION CH ARLES T. BU RD , e t al., Plain tiffs , v. Cas e N o .: 3 :13 -cv-2 0 9 76 FORD MOTOR COMPAN Y, D e fe n d an t. MEMORAN D U M OPIN ION AN D ORD ER Pending before the Court is Ford Motor Com pany’s (“Ford”) Motion to Com pel Discovery. (ECF No. 10 6). Plaintiffs have filed a response in opposition to the m otion, (ECF No. 120 ), and Ford has replied. (ECF No. 122). Having considered the argum ents of the parties, the Court GRAN TS, in part, and D EN IES, in part, the m otion to com pel. I. Re le van t Backgro u n d Plaintiffs in this action are purchasers of one or m ore vehicles m anufactured by Ford between 20 0 2 and 20 10 that were equipped with an electronic throttle control system . Plaintiffs claim that although this particular type of throttle control system is prone to episodes of sudden unintended acceleration, Ford failed to equip the affected vehicles with an adequate fail-safe m echanism to m itigate the unwanted acceleration. Plaintiffs have sued individually and on behalf of others sim ilarly situated. 1 Dockets.Justia.com In late J uly, Ford served discovery requests on seven plaintiffs, including Shane Mayfield and Charles Burd. Responses were supplied by Mayfield and Burd in Septem ber, which Ford found to be deficient. Thereafter, the parties m et and conferred, but were unable to resolve all of their differences. Accordingly, Ford filed the instant m otion seeking an order com pelling Mayfield and Burd (hereinafter “the plaintiffs”) to serve full and com plete responses to the discovery requests. II. Co n tro llin g Le gal Prin cip le s Federal Rule of Civil Procedure 26(b)(1) perm its a party to obtain discovery regarding any nonprivileged m atter that is relevant to any party’s claim s or defenses. “While the Federal Rules of Civil Procedure do not define ‘relevant inform ation,’ the Federal Rules of Evidence define it as ‘evidence having any tendency to m ake the existence of any fact that is of consequence to the determ ination of the action m ore probable or less probable than it would be without the evidence.’” Boy kin Anchor Co., Inc. v. W ong, No. 5:10 – CV– 591– FL, 20 11 WL 5599283, *2 (E.D.N.C. Novem ber 17, 20 11), citing United Oil Co., v. Parts Assocs., Inc, 227 F.R.D. 40 4, 40 9 (D.Md. 20 0 5). However, adm issibility under the Federal Rules of Evidence is not the guideline for relevancy in the context of discovery. Relevancy in discovery is broader in scope, because “[d]iscovery is of broader scope than adm issibility, and discovery m ay be had of inadm issible m atters.” King v. Conde, 121 F.R.D. 180 , 194 (E.D.N.Y. 1988); See also Carr v. Double T Diner, 272 F.R.D.431, 433 (D.Md.) (“The scope of relevancy under discovery rules is broad, such that relevancy encom passes any m atter that bears or m ay bear on any issue that is or m ay be in the case. For purposes of discovery, inform ation is relevant, and thus discoverable, if it ‘“bears on, or ... reasonably could lead to other m atter[s] that could bear on, any issue that is or may be in the case. Although ‘the 2 pleadings are the starting point from which relevancy and discovery are determ ined ... [r]elevancy is not lim ited by the exact issues identified in the pleadings, the m erits of the case, or the adm issibility of discovered inform ation.’” Kidw iler v. Progressive Paloverde Ins. Co., 192 F.R.D. 193, 199 (N.D.W.Va. 20 0 0 ) (internal citations om itted). Depending upon the needs of the particular case, “the general subject m atter of the litigation governs the scope of relevant inform ation for discovery purposes.” Id. The party resisting discovery, not the party seeking discovery, bears the burden of persuasion. See Kinetic Concepts, Inc. v. ConvaTec Inc., 268 F.R.D. 226, 243– 44 (M.D.N.C. 20 10 )(citing W agner v. St. Paul Fire & Marine Ins. Co., 238 F.R.D. 418, 424– 25 (N.D.W.Va. 20 0 6). Sim ply because inform ation is discoverable under Rule 26, however, “does not m ean that discovery m ust be had.” Schaaf v. Sm ithKline Beecham Corp., 233 F.R.D. 451, 453 (E.D.N.C. 20 0 5) (citing N icholas v. W y ndham Int'l, Inc., 373 F.3d 537, 543 (4th Cir. 20 0 4)). For good cause shown under Rule 26(c), the court m ay restrict or prohibit discovery that seeks relevant inform ation when necessary to protect a person or party from annoyance, em barrassm ent, oppression, or undue burden or expense. Fed. R. Civ. P. 26(c). To succeed under the “good cause” standard of Rule 26(c), the party resisting discovery m ust m ake a particularized showing as to why a protective order should issue. Baron Fin. Corp. v. Natanzon, 240 F.R.D. 20 0 , 20 2 (D.Md. 20 0 6). Conclusory and unsubstantiated allegations are sim ply insufficient to support an objection based on the grounds of annoyance, burdensom eness, oppression, or expense. Convertino v. United States Departm ent of Justice, 565 F. Supp.2d 10 , 14 (D.D.C. 20 0 8) (the court will only consider an unduly burdensom e objection when the objecting party dem onstrates how discovery is overly broad, burdensom e, and oppressive by subm itting 3 affidavits or other evidence revealing the nature of the burden); Cory v. Aztec Steel Building, Inc., 225 F.R.D. 667, 672 (D.Kan. 20 0 5) (the party opposing discovery on the ground of burdensom eness m ust subm it detailed facts regarding the anticipated tim e and expense involved in responding to the discovery which justifies the objection); Bank of Mongolia v. M & P Global Financial Services, Inc., 258 F.R.D. 514, 519 (S.D.Fla. 20 0 9) (“A party objecting m ust explain the specific and particular way in which a request is vague, overly broad, or unduly burdensom e. In addition, claim s of undue burden should be supported by a statem ent (generally an affidavit) with specific inform ation dem onstrating how the request is overly burdensom e”). Furtherm ore, Rule 26(b)(2)(C) requires the court, on m otion or on its own, to lim it the frequency and extent of discovery, when (1) “the discovery sought is unreasonably cum ulative or duplicative;” (2) the discovery “can be obtained from som e other source that is m ore convenient, less burdensom e, or less expensive;” (3) “the party seeking the discovery has already had am ple opportunity to collect the requested inform ation by discovery in the action;” or (4) “the burden or expense of the proposed discovery outweighs its likely benefit, considering the needs of the case, the am ount in controversy, the parties’ resources, the im portance of the issues at stake in the action, and the im portance of the discovery in resolving the issues.” Fed. R. Civ. P. 26(b)(2)(C)(i)-(iii). This rule “cautions that all perm issible discovery m ust be m easured against the yardstick of proportionality.” Ly nn v. Monarch Recovery Managem ent, Inc., 285 F.R.D. 350 , 355 (D. Md. 20 12) (quoting Victor Stanley , Inc. v. Creative Pipe, Inc., 269 F.R.D. 497, 523 (D. Md. 20 10 )). To insure that discovery is sufficient, yet reasonable, district courts have “substantial latitude to fashion protective orders.” Seattle Tim es Co. v. Rhinehart, 467 U.S. 20 , 36, 10 4 S.Ct. 2199, 81 L.Ed.2d 17 (1984). 4 III. D is cu s s io n At the tim e the motion to com pel was filed, the plaintiffs had unresolved objections to twelve interrogatories and twenty-six requests for production of docum ents. However, according to the response and reply m em oranda filed by the parties, only five interrogatories and nine production requests rem ain in dispute. In t e r r o g a t o r y N o s . 1 a n d 18 ; R e q u e s t N o . 15 In Interrogatory No. 1, Ford asks for the nam es and addresses of all persons with knowledge of any relevant facts concerning the plaintiffs’ claim s, including anyone who has operated or ridden in the subject vehicles, anyone who has inspected, serviced, or repaired the vehicles, and anyone with knowledge of the plaintiffs’ decisions to purchase or lease the vehicles. In Interrogatory No. 18, Ford requests m ore detailed inform ation about the work done by persons that have inspected, serviced, or repaired the subject vehicles, including descriptions of the work, dates of service or inspection, and any supporting paperwork. Finally, in Request No. 15, Ford asked the plaintiffs to produce copies of the docum ents reflecting repairs, service, and inspections. In response to all three discovery requests, the plaintiffs argue that the inquiries are so broad, they would be forced to collect and produce a volum inous am ount of inform ation, m uch of which would have little or no value in developing the claim s and defenses in this litigation. When evaluating whether an interrogatory is overly broad, the court must consider various factors, including the burden on the responding party to gather the inform ation and the anticipated benefit of the inform ation to the party propounding the request. See Maren’s v. Carrabba’s Italian Grill, Inc., 196 F.R.D. 35, 37 (D.Md. 20 0 0 ). Logically, the burden placed on the responding party should decrease in direct proportion to the decrease in likelihood that the discovery request will yield useful 5 inform ation to the propounding party. Part of the court’s task is to determ ine the level of discovery that is reasonable considering the needs of the particular case. In regard to Interrogatory No. 1, Ford clearly is entitled to know the identities and addresses of all persons with knowledge of the plaintiffs’ claim s, including any person present in the subject vehicles at the tim e of an alleged sudden unintended acceleration. In addition, Ford is entitled to know the nam es and addresses of individuals that regularly drive or ride in the vehicles. Accordingly, the plaintiffs are ORD ERED to provide this inform ation. However, the plaintiffs are not required to provide the nam e of every individual that has ever driven or ridden in the subject vehicles. As the plaintiffs point out, over the years, hundreds of people m ay have ridden in the subject vehicles depending upon how the plaintiffs use them . The likelihood is slight that individuals will have useful inform ation if they have had only m inim al contact with the vehicles and no exposure to a sudden acceleration event; therefore, the potential burden on the plaintiffs in com piling that inform ation outweighs any anticipated benefit to Ford. On the other hand, production of the nam es and addresses of persons repairing, servicing, or inspecting the vehicles is m ore likely to lead to useful inform ation given that this lawsuit involves an alleged defect in the subject vehicles. Ford contends that episodes of sudden unexpected acceleration m ay occur from different causes. Ford also argues that the plaintiffs have not identified a single, definite defect in the subject vehicles upon which they base their claim s. For these reasons, the overall condition of the vehicles, the scope and regularity of their m aintenance, and the training and experience of the service providers m ay provide inform ation highly relevant to Ford’s defenses. The plaintiffs contend that the task of gathering the nam es of service providers and inspectors is overly burdensom e, yet they have provided no specific or 6 particularized showing to support their objection. Accordingly, the undersigned finds the objection to be without m erit and further finds that the plaintiffs have im properly lim ited their responses to service and repairs related to sudden acceleration, the electronic throttle control system , or for any purpose related to the allegations in the com plaint. Accordingly, the plaintiffs are ORD ERED to provide Ford with the nam es and addresses of all individuals, or entities (such as the nam es of garages, dealerships, outlets, stores) that have serviced or inspected the subject vehicles, as requested in Interrogatory No. 1. Considering that m ost consum ers take their vehicles to the sam e local m echanics or entities for servicing and repairs, it is likely that collecting this inform ation will not be unduly burdensom e. In response to Interrogatory No. 18 and Request No. 15, the plaintiffs are required to m ake a good faith effort to answer the questions posed and conduct a reasonable and conscientious search to provide the docum ents requested. See Frontier-Kem per Constructors, Inc. v. Elk Run Coal Co., Inc. 246 F.R.D. 522, 529 (S.D.W.Va. 20 0 7); Jackson v. Kroblin Refrigerated Xpress, Inc., 49 F.R.D. 134, 137 (N.D.W.Va. 1970 ) (“A party to civil litigation in the federal system is under a severe duty to m ake every effort to obtain the requested inform ation and, if, after an adequate effort, he is unsuccessful, his answer should recite in detail the attem pts which he m ade to acquire the inform ation.”) Most m echanics keep records of their work. Garages, dealerships, and national chains generally m aintain com puterized records, which can be easily obtained and could be supplied under Fed. R. Civ. P. 33(d) in lieu of detailed answers. Therefore, the plaintiffs are further ORD ERED to fully respond to Interrogatory No. 18 and Request No. 15. 7 In t e r r o g a t o r y N o . 8 ; R e q u e s t N o . 2 1 In Interrogatory No. 8 and Request No. 21, Ford seeks inform ation regarding every written and oral com m unication the plaintiffs have had with any person regarding the subject vehicles, an alleged episode of unintended acceleration,1 or alleged defect in the subject vehicles. Plaintiffs object on the ground of breadth, arguing that Ford should lim it its query to “substantive” com m unications because the interrogatory and request, as written, require the plaintiffs to identify, detail, and provide docum entation on even non-substantive, “passing” comm ents. The undersigned agrees that an interrogatory that asks for “any” com m unication regarding the subject vehicles is, on its face, overly broad; thus, a response to that particular query will not be com pelled. In its reply, Ford states that it is prim arily interested in com m unications pertaining to alleged unintended acceleration events and purported defects related to the operation of the subject vehicles. Certainly, written com m unications pertaining to those topics are relevant and should not be especially burdensom e to com pile. Therefore, the plaintiffs are ORD ERED to provide Ford with full responses to the requests regarding any such written com m unications. In regard to oral com m unications, the likelihood that the search will yield useful inform ation decreases as the nature of the com m unication becom es less inform al. For instance, a passing com plaint about the vehicle m ade to a social friend has less evidentiary value than an oral report m ade to a law enforcem ent officer after a traffic accident attributed to an event of sudden and unexpected acceleration. Therefore, the plaintiffs shall not be required to go to the trouble of recollecting and recounting every passing com m ent 1 Actually, the discovery requests repeatedly refer to “Occurrences.” Unfortunately, neither party provided the Court with the definition of “Occurrences.” However, the undersigned presumes the term “Occurrences” refers to episodes of unintended sudden acceleration. 8 m ade regarding events of unintended acceleration or purported defects in the subject vehicle. However, the plaintiffs are ORD ERED to provide Ford with the requested inform ation regarding any relevant oral com m unications m ade to a current or form er Ford em ployee or Ford dealership or service shop; any governm ent agency, em ployee or representative-including law enforcem ent agencies; any consum er group; and any news agency concerning events of unexpected acceleration or defects in the subject vehicles related to their operation. In t e r r o g a t o r y N o . 19 Ford asks for inform ation about additions, alterations, or m odifications m ade to the subject vehicles since their purchase or lease. Plaintiffs object on the basis of breadth and burdensom e, contending that they should only have to provide responses that are specific to sudden acceleration and the electronic throttle control system . Plaintiffs com plain that the interrogatory forces them to collect inform ation about m atters as trivial as windshield wipers and gas caps; however, they provide no factual support for their burdensom eness argum ent. Moreover, the plaintiffs’ argum ent on breadth is sim ply not persuasive. As Ford em phasizes, questions about additions, m odifications, and alterations do not require the production of m aterials about sim ple repairs. In addition, the cause or causes of the alleged sudden acceleration episodes and the alleged defects in the subject vehicles are not, as yet, established. Therefore, inform ation regarding changes m ade to the subject vehicles is highly relevant, and the plaintiffs are ORD ERED to fully respond to the interrogatory. In t e r r o g a t o r y N o . 2 0 In Interrogatory No. 20 , Ford requests the current location of the subject vehicles and all parts thereof, as well as other inform ation designed to establish the chain of 9 custody. The plaintiffs object on the grounds of breadth and burdensom eness, prim arily due to Ford’s use of the phrase “all parts thereof.” They argue that this language requires them to track parts that were discarded as part of routine oil changes. Therefore, the plaintiffs seek som e lim itation on the interrogatory. Having reviewed Ford’s reply, the Court ORD ERS the plaintiffs to provide Ford with the chain of custody inform ation related to the subject vehicles and their central com ponent parts (which would exclude parts com m only rem oved and discarded as part of routine m aintenance). Req uest Nos. 8 a nd 9 Ford seeks docum ents in production requests nos. 8 and 9 detailing inspections, testing, or exam inations of the subject vehicles. The plaintiffs object on the grounds of burdensom eness, although they provide no factual showing to support that objection. They also contend that the requests are overly broad, as they encom pass such events as annual state inspections, which plainly would not yield relevant inform ation. The plaintiffs propose that the requests be lim ited to inspections involving sudden unexpected accelerations and the electronic throttle control system . Once again, discovery is broad and allows investigation into m atters that ‘“bear on, or ... reasonably could lead to other matter[s] that could bear on, any issue that is or m ay be in the case.” Kidw iler, 192 F.R.D. at 199. Here, Ford alleges that a vehicle’s sudden unintended acceleration m ay have m any different causes. Although the plaintiffs allege that the acceleration is due to the electronic throttle control system , Ford apparently has not conceded that point. Furtherm ore, Ford argues that the plaintiffs have not agreed on the nature of the alleged defect in the subject vehicles. For that reason, Ford necessarily m ust conduct broad discovery on the vehicles, collecting both docum ents establishing the historical m aintenance, repairs, m odifications, and alterations of the vehicles, but 10 also any testing, exam inations, and inspections perform ed. The undersigned agrees that under the current circum stances, Ford is entitled to som e latitude in discovery of these issues. Accordingly, the plaintiffs are ORD ERED to fully respond to the requests. Req uest No. 3 In Request No. 3, Ford seeks all photographs, diagram s, videotapes, film s, slides, drawings, and sim ilar m aterials relating to the claim s. The plaintiffs object on the ground of breadth and burdensom eness, indicating that there could be thousands of photographs responsive to the request. Ford nonetheless insists that it is entitled to all of the photographs and film s. Under Fed. R. Civ. P. 26(b)(2)(C)(i), the court m ay, on its own, lim it the frequency or extent of discovery when the discovery sought is unreasonably cum ulative or duplicative. Contrary to Ford’s contention, it is not entitled to every film , photograph, videotape, or audiotape ever taken of the subject vehicles and the plaintiffs at the tim e of or after an event of unintended acceleration. Therefore, the plaintiffs are ORD ERED to provide Ford with a representative sam pling of the requested m aterials, if any such m aterials exist. R e q u e s t N o s . 11 a n d 12 In these Requests for Production of Docum ents, Ford seeks warranty docum ents, owner’s m anuals, and extended service plans in the possession of the plaintiffs, as well as any written warranties, representations, prom ises, and agreem ents upon which the plaintiffs base their claim s. The plaintiffs object on the ground of burdensom eness. Additionally, they argue that Ford already has access to these docum ents either because the docum ents are in Ford’s custody and control, or because they are readily available in the public dom ain. Once again, the plaintiffs fail to m ake a particularized showing to support their burdensom eness objection. Furtherm ore, an objection based upon the 11 availability of the docum ents to Ford is not m eritorious. See Jackson v. W est Virginia University Hospitals, Inc., Case No. 1:10 -cv-10 7, 20 11 WL 1831591, at *2 (N.D.W.Va. May 12, 20 11) (citing cases) (holding that “courts have unam biguously stated that this exact objection is insufficient to resist a discovery request”). As the court points out in Jackson, even though inform ation m ay be available in the public dom ain or in the possession of the propounding party, the benefits of requiring form al production of the docum ents through discovery requests are that: 1) both parties to the litigation will be working from the sam e docum ents at depositions or trial; 2) there is a certification by counsel that the docum ent produced is the docum ent on which he will rely whereas there is no such certification when the docum ent is procured outside of discovery ...; and 3) experts will be able to rely on a com m on set of docum ents in researching and form ulating any opinion relevant to the litigation. In short, production through discovery ... prom otes clarity in the litigation context. These protections do not exist with respect to docum ents not produced in discovery. Id. at *3. Ford is entitled to know what docum ents form the basis of the plaintiffs’ claim s. Accordingly, the plaintiffs are ORD ERED to fully respond to these two requests. Req uest No. 36 Ford asks the plaintiffs to produce copies of their fee agreem ents with counsel in order to determ ine whether there are any conflicts of interest in this potential class action lawsuit. The plaintiffs refuse to produce the agreem ents on the ground of attorney/ client privilege. Ford explains that production of the fee agreem ents has becom e necessary due to two concrete concerns that have developed over the adequacy of the nam ed plaintiffs in this action. First, Ford expresses concern that deposition testim ony has revealed that som e of the plaintiffs have “personal or fam ilial relationships” with counsel of record. 12 Therefore, “for the purposes of assessing the adequacy of class representatives at the certification stage,” the agreements are relevant to insure that no plaintiff has been offered preferential treatm ent. Second, Ford contends that there are 30 distinct subclasses of plaintiffs, all with conflicting interests. Without reviewing the retainer agreem ents, it will be difficult for Ford and the Court to “sort out which counsel are actually representing which Plaintiffs.” However, Ford does not indicate any specific concerns or questions related to either Mayfield or Burd, the plaintiffs whose responses are the subject of the instant m otion to com pel. The inform ation that Ford seeks can be obtained at the depositions of the plaintiffs without need for the production of the fee agreem ents. Indeed, Ford should be able to explore all of its concerns with plaintiffs without invading the attorney/ client privilege. If after exhausting this less invasive m ethod of discovery, Ford is unable to collect the necessary inform ation, then it m ay repetition the Court for production of the fee agreements. Nevertheless, at this tim e, the plaintiffs are not required to produce their agreem ents with counsel. Req uest Nos. 37 a nd 39 Ford requests copies of any social m edia posting and text messages sent or received by the plaintiffs relating to the subject vehicles and/ or incidents of sudden acceleration. The plaintiffs object to the breadth of the requests, arguing that they require production of even the m ost trivial and irrelevant com m ents. The plaintiffs also indicate that they have searched for all responsive docum ents relating to occurrences of sudden acceleration in the subject vehicles and for those pertaining to the electronic throttle control system , but have not located any such documents. The undersigned agrees that the requests are phrased m uch too broadly; however, the plaintiffs’ search 13 has been too circum scribed. Accordingly, the plaintiffs are ORD ERED to also produce all text m essages or social m edia postings that in any way concern an alleged defect affecting the operation of said vehicles. IV. Co n clu s io n Having fully considered the argum ents, the Court GRAN TS, in part, and D EN IES, in part, Ford’s m otion to com pel m ore com plete discovery responses from Plaintiff Shane Mayfield and Plaintiff Charles Burd as set forth herein. The plaintiffs shall serve their supplem ental responses on Ford within s e ve n ( 7) d ays of the date of this Order. The Clerk is instructed to provide a copy of this Order to counsel of record and any unrepresented party. EN TERED : Novem ber 18, 20 14 14
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