Johnson et al v. Ford Motor Company, No. 3:2013cv06529 - Document 621 (S.D.W. Va. 2015)
Court Description: MEMORANDUM OPINION AND ORDER granting in part and denying in part Plaintiffs' 537 MOTION to Sanction Ford Motor Company Regarding Engle Documents as more fully set forth herein; directing Defendant to supply the privilege log within twenty (2 0) days of the date of this Order; directing that Plaintiffs shall have through and including 9/25/2015 in which to file an affidavit of reasonable fees and costs incurred in making and arguing their motion; Defendant shall file a response within 14 days. Signed by Magistrate Judge Cheryl A. Eifert on 9/11/2015. (cc: counsel of record; any unrepresented party) (jsa)
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Johnson et al v. Ford Motor Company Doc. 621 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 JOH N SON , e t al., TON Y BU RN ETT, e t al., an d Cas e N o .: 3 :13 -cv-0 6 52 9 Cas e N o .: 3 :13 -cv-14 2 0 7 Cas e N o .: 3 :13 -cv-2 0 9 76 CH ARLES T. BU RD , e t al., Plain tiffs , v. 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 Plaintiffs’ Motion to Sanction Ford Motor Com pany Regarding Engle Docum ents. (ECF No. 537).1 Defendant Ford Motor Com pany (“Ford”) has filed a m em orandum in opposition to the m otion, (ECF No. 555), and Plaintiffs have replied. (ECF No. 568). On August 18, 20 15, the Court heard oral argum ent on the m otion. (ECF No. at 591 at 56-10 5). For the reasons that follow, the Court GRAN TS, in part, and D EN IES, in part, 1 The docket numbers referenced in this Order are taken from the lead case, Johnson v. Ford Motor Com pany , Case No.: 3:13-cv-0 6529. Corresponding motions to sanction Ford over the Engle docum ents are found at ECF No. 452 in Burnett v. Ford Motor Com pany , Case No.: 3:13-cv-1420 7, and ECF No. 411 in Burd v. Ford Motor Com pany , Case No.: 3:13-cv-20 976. 1 Dockets.Justia.com Plaintiffs’ Motion to Sanction Ford Regarding Engle docum ents. (ECF No. 537). 2 I. Re le van t Facts This putative class action involves alleged events of sudden unintended acceleration in certain Ford vehicles m anufactured between 20 0 2 and 20 10 . In particular, Plaintiffs claim that their vehicles were equipped with defective electronic throttle control (“ETC”) system s, which were not fault tolerant, resulting in open throttle events during which the drivers of the vehicles lacked the ability to control the throttles. Plaintiffs assert that the m echanism s causing the throttles to open unexpectedly were num erous; they included electromagnetic interference, resistive shorts, and other voltage and resistance fluctuations; and these issues were known to Ford. Despite having knowledge of the potential for sudden unexpected acceleration, Ford allegedly failed to properly design the ETC system to correct the events when they occurred, and further neglected to install fail-safes, such as a Brake Over Accelerator system , which would allow the drivers to physically prevent or m itigate sudden acceleration. During discovery, Ford identified Mr. J am es Engle as a key em ployee with relevant inform ation regarding the ETC system and allegations of sudden unexpected acceleration in Ford vehicles. Ford described Mr. Engle as being fam iliar with the general design of the ETC system and as one of only two individuals tasked with investigating claim s of sudden unintended acceleration. In addition, Ford designated Mr. Engle as a corporate representative to address m ultiple topics for purposes of a Rule 30 (b)(6) deposition. At the deposition, Mr. Engle testified that he had conducted 2 This Order likewise GRAN TS, in part, and D EN IES, in part, ECF No. 452 in Burnett v. Ford Motor Com pany , Case No.: 3:13-cv-1420 7, and ECF No. 411 in Burd v. Ford Motor Com pany , Case No.: 3:13cv-20 976. 2 approxim ately thirty investigations into claim s that Ford vehicles equipped with an ETC system suddenly and unexpectedly accelerated. He also confirm ed that he was the prim ary investigator of unintended acceleration events in ETC-equipped vehicles. This m otion arises from Plaintiffs’ belief that Ford has failed to conduct a proper search of Mr. Engle’s custodial file and has im properly withheld m aterials reflecting Mr. Engle’s investigations. Secondary to those assertions, Plaintiffs com plain that Ford has failed to provide a privilege log properly identifying relevant docum ents that have been withheld under the guise of a “presum ptive” attorney-client privilege, or a work product protection. In addition, Plaintiffs indicate that Ford has not been tim ely in its productions, has provided inconsistent inform ation regarding the existence of docum ents, and has not insisted that Mr. Engle conduct an adequate search of his files. II. D is cu s s io n A. Ad e qu acy o f Pro d u ctio n Plaintiffs argue that the production of docum ents pertaining to Mr. Engle has been insufficient. In support, they note the following deficiencies in productions allegedly containing Engle docum ents: 1. The first two productions included only deposition transcripts; 2. A purported “Engle” production on October 31, 20 14 contained no m etadata including Mr. Engle’s nam e; the cover letter did not m ention Mr. Engle; and Mr. Engle was not listed as a custodian of any of the docum ents; 3. A production on Novem ber 26, 20 14, related to internal investigations by Mr. Engle, contained only four docum ents consisting of 228 pages and relating to only three of his thirty investigations. 4. Four supplem ental productions in 20 15 were sparse and prim arily included public records, like deposition transcripts and expert reports. 3 5. The m etadata of only one produced document shows Mr. Engle as its custodian. 6. From the m eet and confer sessions between the parties, Plaintiffs believe that Ford is withholding the vast m ajority of Mr. Engle’s docum ents under a claim of a privilege; however, Ford has refused to supply a privilege log. Given the integral role played by Mr. Engle in investigating events of unintended acceleration, Plaintiffs contend that the m eager quantity of docum ents attributed to Mr. Engle is, by itself, evidence of bad faith discovery tactics on the part of Ford. Ford responds that its production of Mr. Engle’s docum ents is com plete. Ford has supplied Plaintiffs with all “relevant, non-privileged documents” from the open and closed litigation files m aintained by Ford’s Office of the General Counsel reflecting Mr. Engle’s investigations, as well as the entirety of the non-litigation files involving Mr. Engle’s investigations of sudden unintended acceleration. Ford concedes that it has not logged the rem aining portions of Mr. Engle’s files on a privilege log, but m aintains that the docum ents are either irrelevant, or are “presum ptively privileged” as attorney-client com m unications. (ECF No. 555 at 2). Ford further asserts that “docum ents and com m unications generated or received by Mr. Engle in connection with prior or pending litigation involving allegations of SUA [sudden unintended acceleration] in class vehicles is beyond the scope of discovery as defined by Rule 26(b)(1)’’ and, thus, need not be described on a privilege log. (Id.). With respect to Plaintiffs’ accusation that Mr. Engle has not conducted a thorough search of his files (particularly, his e-m ail com m unications) and Ford has not undertaken its own search, Ford argues that Mr. Engle knows what docum ents are in his possession and confirm ed at deposition that he does not have any other relevant m aterials to provide to Plaintiffs. Mr. Engle corroborates Ford’s position in a subsequently-filed 4 declaration, (ECF No. 589), stating that he has checked his files for non-litigation m atters involving sudden unintended acceleration in putative class vehicles and could only find a few reports that he understood had been supplied to Plaintiffs. Mr. Engle adds that, to his knowledge, all of the docum ents he located pertaining to litigation files, both open and closed, were given to counsel and subsequently provided to Plaintiffs. (Id.). In their reply, Plaintiffs take issue with Ford’s “self-proclaim ed ‘presum ptive privilege,’” stating that such a privilege does not apply to the type of docum ents being withheld by Ford. (ECF No. 568 at 5-12). Plaintiffs insist that Ford is required to identify these documents on a privilege log, and its failure to do so has resulted in a waiver of the privilege or protection asserted. Once again, Plaintiffs argue that the scant production of docum ents attributable to Mr. Engle attests to Ford’s substandard collection process. Addressing first Plaintiffs’ contention that the sm all quantity of produced docum ents directly attributable to Mr. Engle is evidence of Ford’s non-com pliance with discovery m andates, the undersigned recognizes “that even an inform ed suspicion that additional non-privileged docum ents exist ... cannot alone support an order com pelling production of docum ents.” Kinetic Concepts, Inc. v. ConvaTec Inc., 268 F.R.D. 226, 252 (M.D.N.C. 20 10 ) (collecting cases). It follows, then, that a suspicion cannot justify the award of sanctions. Here, Plaintiffs claim that Ford has m ade an incom plete production of docum ents related to Mr. Engle. Ford disputes Plaintiffs’ claim , indicating that it has produced all non-privileged and relevant docum ents. The Kinetic Court described the dilem m a faced by judicial officers in this type of situation, stating: 5 [T]o the extent Plaintiffs allege that [Defendant] has not produced all docum ents, the Court notes the difficulty of the decision it faces. On one hand, Plaintiffs m aintain that [Defendant's] docum ent production rem ains incom plete, yet on the other [Defendant] contends that it has produced all that it can produce. Adm ittedly, there is no way for the Court to independently verify whether [Defendant] possesses the docum ents Plaintiffs allege exist and whether [Defendant] has in fact produced all relevant docum ents.... Id. at 251-52 (quoting Ropak Corp. v. Plastican, Inc., No. 0 4C5422, 20 0 6 WL 2385297, at *5 (N.D.Ill. Aug.15, 20 0 6)). Thus, the best the court can do is bear in m ind the parties’ inconsistent positions and any troubling discrepancies, and require the producing party to provide inform ation on the steps it took to locate, identify, collect, and produce responsive docum ents. Id. at 252. Plaintiffs have already acquired som e knowledge of Ford’s efforts in responding to discovery and will have the opportunity to depose a corporate designee on Ford’s docum ent retention, search, and production as those processes pertain to this litigation. Consequently, at present, there is little m ore the Court can do to address the m atter. As to the parties’ disagreem ent regarding a “presum ptive privilege,” the undersigned is not persuaded that such a privilege applies to docum ents collected in prior litigation. See, e.g., Bey er v. Medico Ins. Group, 266 F.R.D. 333, 338 (D.S.D. 20 0 9) (holding that non-privileged docum ents relating to prior litigation be produced, along with a privilege log for m aterials that are withheld). Indeed, none of the cases cited by Ford addresses the circum stances before this Court. Although Ford m akes a logical point that creating a privilege log for attorney-client com m unications in unrelated cases is burdensom e, Ford again fails to provide any of the factual support necessary to succeed on a burdensom eness argum ent. See Convertino v. United States Departm ent of Justice, 565 F. Supp.2d 10 , 14 (D.D.C. 20 0 8) (the court will only 6 consider an unduly burdensom e objection when the objecting party dem onstrates how discovery is overly broad, burdensom e, and oppressive by subm itting 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”). Moreover, with only twenty seven files at issue, the burden associated with creating a log is unlikely to be heavy; particularly, when Plaintiffs have agreed to an abbreviated log. (See ECF No. 591 at 64). Therefore, the Court GRAN TS Plaintiffs’ m otion for sanctions to the extent that Ford is hereby com pelled to produce a log of the Engle docum ents that have been withheld based upon a privilege or protection. Ford is ORD ERED to supply the privilege log within tw e n ty ( 2 0 ) d ays of the date of this Order. B. Ad d itio n al San ctio n s In addition to reasonable expenses, Plaintiffs seek sanctions against Ford, including a stay of the litigation until Ford runs specific word searches on Mr. Engle’s docum ents, an order finding Ford in contem pt of court, and a monetary award against Ford in favor of Plaintiffs. Plaintiffs argue that awarding these sanctions is the only way to force Ford to approach discovery in a good faith m anner. In response, Ford asserts that none of these sanctions is appropriate when applying the four-factor 7 analysis outlined by the United States Court of Appeals for the Fourth Circuit in Anderson v. Found. for Advancem ent, Educ., & Em ploy m ent of Am . Indians, 155 F.3d 50 0 , 50 4 (4th Cir. 1998). Other than com pelling the production of a privilege log, the undersigned D EN IES the m otion for sanctions, declining to award the requested relief for several reasons.3 First, Plaintiffs were not entirely successful in dem onstrating a basis for the relief requested in their m otion for sanctions. Ford claim s that it has produced all relevant, non-privileged docum ents relating to Mr. Engle’s investigations, and there is no com pelling evidence before the Court to contradict that representation. Second, m uch of Plaintiffs’ dissatisfaction with discovery arises from Ford’s failure to run adequate word searches on its em ployees’ (including Mr. Engle’s) electronic files. For m onths, the undersigned has encouraged, prodded, and pressured the parties to agree on search term s; even threatening to hire a third-party expert to develop the term s if the parties could not resolve their issues expeditiously. Despite the Court’s repeated urging, the parties only recently agreed to term s. Consequently, the delay in discovery occasioned by the lack of search term s can be attributed to both parties. Finally, although the cases have been pending for over two years, the issues are com plex and discovery is still ongoing. Accordingly, Plaintiffs cannot dem onstrate prejudice to a level that would justify the sanctions requested. 3 Arguably, Plaintiffs’ m otion for sanctions is prem ature as Ford has not failed to com ply with a written court order; failed to disclose or supplem ent answers; failed to attend a deposition, provide answers to discovery, or allow an inspection; or failed to participate in a discovery plan. Plaintiffs fram e their m otion as a m otion for sanctions arising from Ford’s failure to follow the Court’s oral order to produce documents or provide a privilege log regarding Mr. Engle’s inspections. However, as the undersigned explained at the hearing, that order pertained specifically to investigative documents and did not explicitly take into account alleged attorney-client com m unications prepared in prior litigation. (ECF No. 591 at 63). 8 On the other hand, Plaintiffs are entitled to an award of reasonable expenses. While Plaintiffs were not successful on their request for a stay, for a finding of contem pt, for a m onetary award, and for word-specific searches, they did succeed on their request for a privilege log. Ford’s explanations for failing to provide a log are unavailing, and its failure to m ove for a protective order, or properly support an argum ent of burdensom eness, caused Plaintiffs to file and prosecute the m otion to sanction. Therefore, it is hereby ORD ERED that Plaintiffs shall have through and including Se p te m be r 2 5, 2 0 15 in which to file an affidavit of reasonable fees and costs incurred in m aking and arguing their m otion related to Ford’s failure to provide a privilege log, as well as any supportive docum entation or argum ent to justify the am ount of fees and expenses requested. See Robinson v. Equifax Inform ation Services, LLC, 560 F.3d 235, 243-44 (4th Cir. 20 0 9). Within fo u rte e n ( 14 ) d ays after Plaintiffs have filed the aforem entioned documents, Ford shall file a response either agreeing to the am ount requested, or objecting to specific fees or costs. Ford is hereby notified that the failure to file a response shall be deem ed an agreem ent with the representations and argum ents of Plaintiffs. The Clerk is directed to file a copy of this Order in all three actions and provide a copy of this Order to counsel of record and any unrepresented party. EN TERED : Septem ber 11, 20 15 9
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