Burnett et al v. Ford Motor Company, No. 3:2013cv14207 - Document 477 (S.D.W. Va. 2015)
Court Description: MEMORANDUM OPINION AND ORDER denying 357 MOTION to Quash; granting in part and denying in part 357 MOTION for Protective Order; granting in part and denying in part 393 MOTION for Reconsideration as outlined within this Memorandum Opinion and Order. Signed by Magistrate Judge Cheryl A. Eifert on 7/8/2015. (cc: attys; any unrepresented party) (skm)
Download PDF
<![CDATA[
Burnett et al v. Ford Motor Company Doc. 477 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 TON Y BU RN ETT, e t al., Plain tiffs , v. Cas e N o .: 3 :13 -cv-14 2 0 7 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 are two related m otions: Ford Motor Com pany’s (“Ford”) Motion to Quash Notice of Deposition and for Protective Order, (ECF No. 357), and Plaintiffs’ Motion for Reconsideration, (ECF No. 393). Both m otions have been thoroughly briefed by the parties.1 Moreover, issues underlying the m otions have been discussed at several discovery status conferences. Consequently, the undersigned finds the m otions to be fully developed and ready for resolution, without the need for oral argum ent. Having carefully considered the argum ents of the parties, the Court D EN IES Ford’s Motion to Quash the Notice of Deposition; GRAN TS, in part, and D EN IES, in part, Ford’s Motion for a Protective Order; and GRAN TS, in part, and D EN IES, in part, Plaintiffs’ Motion for Reconsideration, as m ore fully discussed below. 1 Plaintiffs also filed a m otion to seal three confidential documents attached as exhibits to their Motion for Reconsideration, (ECF No. 40 2). The Court GRAN TS Plaintiffs’ m otion for good cause shown. Considering that these exhibits were attached to a discovery m otion, rather than a dispositive m otion, the undersigned finds that sealing the exhibits does not im properly interfere with the public’s right to access court docum ents. 1 Dockets.Justia.com I. Re le van t Facts an d Pro ce d u ral H is to ry These cases involve 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 a defective Electronic Throttle Control (“ETC”) system that was not fault tolerant, resulting in open throttle events that could not be prevented or corrected by the drivers. Plaintiffs assert that the m echanism s causing the throttles to open unexpectedly were num erous; included electrom agnetic interference, resistive shorts, and other voltage and resistance fluctuations; and these issues were known to Ford. However, despite having knowledge of the potential for sudden unexpected acceleration, Ford 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 (“BOA”) function, that would allow drivers to physically prevent or m itigate sudden acceleration by applying the brakes. Discovery in the present cases began in late J uly 20 14, with the first form al dispute occurring in m id-Septem ber 20 14. By Decem ber, Plaintiffs requested regularly scheduled discovery conferences in an effort to expedite what they anticipated would be volum inous discovery. A discovery status conference was held on December 17, 20 14, during which the undersigned set a schedule for bi-weekly discovery conferences to be held, for the m ost part, telephonically. The first discovery conference took place on J anuary 7, 20 15 and prim arily addressed the status of unanswered and allegedly inadequately answered discovery requests. In addition, the parties reported on their progress in establishing agreed protocols for depositions, discovery of electronically stored inform ation (“e-discovery”), and clawback requests. At the February 10 , 20 15 conference, Plaintiffs raised concerns regarding the 2 reasonableness of the searches being perform ed by Ford in its effort to respond to Plaintiffs’ requests for docum ents. In particular, Plaintiffs were disturbed by the lack of electronic m ail (“e-m ail”) in the docum ent productions. Indeed, Ford conceded that it had not produced e-m ail in certain instances, because it did not understand that the request sought e-m ail com m unications. Nonetheless, Ford represented to the Court that for ten to twenty specific individuals identified by Ford as having the m ost involvem ent in the design, developm ent, and failure m odes and effects analysis of Ford’s ETC system s, Ford had already com m enced a “sweep” of their e-m ails, searching for term s either identified by Plaintiffs, or otherwise designed to uncover relevant docum ents. (ECF No. 327 at 27-28).2 Ford described the sweep as a “selfselection” process being conducted by the individual em ployees, who had each been given inform ation about Plaintiffs’ claim s, as well as suggested search term s. Ford explained that its em ployees were allotted lim ited space on com pany servers for the collection and storage of e-m ail. Accordingly, the employees kept a Personal Filing Cabinet (“PFC”) folder on their hard drives in which they stored e-m ails. For that reason, the em ployees were personally conducting the required searches of their PFC files. After further discussion, it becam e clear that the parties had never agreed on a set of keywords and phrases for the em ployees to use when searching their electronic files, and an e-discovery protocol had not yet been im plem ented. Accordingly, the Court ordered the parties to m eet, confer, and agree on search term s, so that Ford could provide those term s to the em ployee custodian (ten identified for design and developm ent of the ETC system and ten identified for the failure m odes and effects 2 Citations to hearing transcripts refer to the docket numbers of transcripts filed in the lead case, Johnson v. Ford Motor Com pany , No.: 3:13-cv-0 6529. 3 analysis). (Id. at 32-35). As the conference continued, Plaintiffs reiterated and supplem ented their concerns regarding Ford’s docum ent production up to that date. Plaintiffs advised the Court that they had deposed several Ford em ployees and had received troubling responses when asking the em ployees about their search for relevant docum ents. For instance, one em ployee testified that he m ade no effort to search for docum ents concerning the ETC system . Rather, he had been asked to lim it his search to inform ation about a BOA function im plem ented by Ford in 20 11. A sim ilarly restricted search had been m ade by one of Ford’s senior engineers, Ms. Kelly Arbanas, notwithstanding her extensive involvem ent in the developm ent of the ETC system . Ms. Arbanas reportedly testified that she was never asked to collect docum ents, including e-m ails, regarding the ETC system . Another em ployee, Mr. Eric Luehrsen, was identified by Ford as an individual that had no responsive docum ents in his custodial file, yet Plaintiffs located hundreds of relevant docum ents in other productions that were either authored or received by Mr. Luehrsen. Plaintiffs likewise uncovered over 20 0 docum ents that were authored or received by Mr. Baum , an em ployee also identified by Ford as having no responsive docum ents in his custodial file. (ECF No. 327 at 44-48). Plaintiffs expressed grave doubts that the self-selection process used by Ford to collect relevant docum ents was reasonable. In response, Ford disputed Plaintiffs’ factual representations and further pointed out that while the docum ent searches were underway, they were not com pleted. (Id. at 49-52). Ford represented that it had produced thousands of pages of relevant inform ation, including docum ents from all of the witnesses m entioned by Plaintiffs. Moreover, Ford reassured the Court and Plaintiffs that searches were being done as prom ptly as 4 possible, expressing its frustration with the breadth of Plaintiffs’ discovery requests. After listening to the parties, the undersigned expressed m isgivings regarding the tim eliness and effectiveness of Ford’s search and its subsequent productions. (Id. at 52-60 ). However, as the parties regularly supplied contradictory reports to the Court about the status of discovery, and generally failed to supply evidence supporting their reports, the undersigned was not in a position to determ ine which party’s representations were accurate. (Id. at 62). Consequently, Plaintiffs were advised to take som e depositions and investigate through the testim ony whether Ford’s searches were reasonable. If Plaintiffs concluded that Ford had not m et its discovery obligations, they were encouraged to bring a m otion to com pel and for sanctions. In the m eantim e, the parties were again ordered to m eet, confer, and agree on keywords and phrases to search the electronically stored inform ation (“ESI”), and were strongly urged to include their IT experts in the discussions. (ECF No. 327 at 78). By February 18, 20 15, the parties had m et and conferred on several occasions and had included their IT experts. (ECF No. 345 at 5-10 ). They had not yet agreed on search term s, but were m aking progress. Ford had decided to involve a third-party vendor in the docum ent collection process, which was expected to hasten Ford’s productions. During the March 4 conference, Ford represented that it had provided Plaintiffs with the nam es of custodians for whom keyword searches would be appropriate, and had continued to search its records by having em ployees self-select docum ents responsive to discreet discovery requests. (ECF No. 40 0 at 31). However, the parties disagreed as to whether Ford should be expected to search the hard drive of every em ployee identified by Plaintiffs, although the parties were still discussing 5 this option. With respect to agreed-upon search term s, the parties continued to struggle. For the first tim e, Plaintiffs raised the issue of whether Ford should be com pelled to share with Plaintiffs the search term s that were currently being used by Ford in its docum ent identification and retrieval process. (Id. at 46-49). Ford objected to sharing its search term s on two grounds. First, Ford contended that the search term s used were protected attorney work product. Second, Ford indicated that a “list” of search term s did not exist, because Ford had allowed each individual em ployee to develop his or her own term s and phrases to search his or her docum ents, after having m et with counsel and discussed the nature of the litigation. (Id.). The next tim e Plaintiffs raised issues touching on the adequacy of Ford’s search for docum ents was April 15, 20 15. (ECF No. 448 at 12-16). At this discovery conference, Plaintiffs reported that the parties had negotiated a list of search term s, and Ford had swept the records of two test custodians to determine the efficacy of the term s. Unfortunately, although not entirely unexpectedly, the parties now disagreed as to whether the term s had returned m ore relevant than non-relevant docum ents. Plaintiffs com plained that Ford refused to share a search report with them that would reflect which term s returned the m ost, or the least docum ents, while Ford insisted that the search report would not assist in resolving problem s with the search term s. Consequently, the parties were at another stalem ate, unable to agree on if, and how, the list of search term s and phrases should be revised. (Id. at 15-20 ). To m ove the m atter forward, the Court ordered Ford to share the search report with Plaintiffs. Plaintiffs also requested that Ford be com pelled to share with them the nam es of all records custodians whose personal files had been searched for responsive docum ents. 6 Ford objected and indicated that it intended to form ally argue this issue in a m otion for protective order. At the May 13, 20 15 discovery conference, Plaintiffs again expressed m isgivings with Ford’s docum ent production. (ECF No. 499 at 13-15). Plaintiffs explained that Ford had produced the nam es of the ten people m ost im portant to the design and developm ent of the ETC system , and the ten people m ost im portant to the failure m ode and effects analysis (“FMEA”) of the ETC system . After accounting for overlap, twelve individuals had been identified, and those twelve individuals supposedly had their custodial files searched using the agreed-upon term s. Plaintiffs asserted that the productions had been unnecessarily delayed, pointing out that the exercise started in m id-February and still was not com pleted. Moreover, out of the twelve individual searches, Ford had advised that five of the individuals had no relevant docum ents in their files, and the rem aining custodians had less than 150 docum ents. (Id.). According to Plaintiffs, the purported lack of docum ents found in the em ployees’ custodial files dem onstrated a problem with the search terms, and further raised a question as to how thoroughly Ford was looking for relevant docum ents. In response, Ford blam ed Plaintiffs for the delay, arguing that Plaintiffs’ search term s and phrases were too im precise to m axim ize the responsive hits, causing the searches to return thousands of irrelevant docum ents that had to be reviewed by Ford before productions could occur. In addition, Ford contended that Plaintiffs were intransigent about changing the search term s, even though they yielded a vast num ber of unresponsive docum ents. (ECF No. 499 at 21-23). Two issues quickly becam e obvious to the Court. First, Ford was not forthcom ing in sharing specifics about the results of the searches with Plaintiffs; thereby, hindering 7 m odifications to the search term s and phrases. Second, the parties sim ply were not com m unicating well with each other. Accordingly, the Court suggested som e different strategies to m ove the e-discovery forward, including face-to-face discussions between the parties’ IT experts about how to refine the search term s and phrases. On J une 10 , 20 15, Plaintiffs advised the Court that another group of custodians had searched personal files for docum ents pertaining to unintended acceleration and ETC system faults, with very few responsive docum ents having been produced by Ford. (ECF No. 545 at 6-7). Ford responded by explaining that the custodians, all m embers of a critical concerns com m ittee, sim ply did not com m unicate by e-mail regarding m atters discussed in com m ittee m eetings. Ford confirm ed that the custodians searched their e-m ails for any docum ents pertaining to ETC and sudden unintended acceleration, and produced everything that was relevant. (Id. at 8-9). By this tim e, both of the instant m otions had been filed and briefed, with only one reply m em orandum left to be subm itted. II. Th e Partie s ’ Po s itio n s A. M o t io n t o Qu a s h a n d fo r Pr o t e ct iv e Or d e r In the m otion to quash and for protective order, Ford asks the Court to prohibit Plaintiffs from seeking testim ony from a corporate designee on four topics, identified as topics 15, 18, 78, and 79. (ECF No. 357 at 1-2). Topic 15 involves the identification and explanation of how Ford handled com plaints of unintended acceleration. Topics 18 and 78 deal with Ford’s docum ent retention policies and practices, and its knowledge of the destruction or loss of any docum ents relating to unintended acceleration or stuck throttle incidents. Finally, topic 79 requests 8 testim ony regarding the identity of Ford custodians whose files have been searched for relevant docum ents, and the process by which the custodians searched for docum ents. Ford argues that topic 15 is overly broad and burdensom e, requiring the corporate designee to learn details about num erous lawsuits and claim s asserted against Ford over the years. Ford also states that it has provided Plaintiffs with all of the significant paperwork regarding prior claim s and lawsuits; consequently, the inform ation sought has already been supplied in a more convenient m anner. With respect to topic 79, Ford contends that it seeks im proper “discovery on discovery,” and is overly burdensom e given that each individual custodian perform ed his or her own unique search. Furtherm ore, Ford contends that the identities of the custodians and the m anner in which they searched their files are protected from disclosure as attorney work product. Finally, Ford claim s that topics 18 and 78 do not relate to a claim or defense in the cases and, therefore, are outside the scope of discovery perm itted by Fed. R. Civ. P. 26. Ford stresses that no claim has been m ade that Ford has com m itted discovery abuses, or that there has been spoliation of evidence. For that reason, discovery of Ford’s records retention policies and its knowledge of lost or destroyed records is irrelevant non-m erits based discovery. In their m em orandum opposing Ford’s m otion, Plaintiffs allege that topic 79 is clearly a proper avenue of discovery in these cases given Ford’s secretive approach to discovery. (ECF No. 392 at 5-12). Instead of cooperating with them , Plaintiffs claim that Ford has refused to provide any details about the efforts it has taken to respond to discovery. According to Plaintiffs, the lack of m aterials produced by Ford’s critical witnesses is suspect, as are the delays in the productions. In support of their position, 9 Plaintiffs attach portions of deposition transcripts in which several of Ford’s witnesses testified to having conducted lim ited or partial searches of their records, despite their roles as key players in the developm ent, design, or analysis of Ford’s ETC system . Plaintiffs disagree that the nam es of the custodians and their m ethod of searching files are protected as work product, arguing that the underpinnings of how Ford reviewed its files for relevant docum ents constitute facts, not m ental im pressions or strategies of counsel. Moreover, if Plaintiffs are prohibited from discovering this inform ation, they will likewise be precluded from evaluating the reasonableness of Ford’s search. Sim ilarly, Plaintiffs contend that topics 18 and 78 are proper areas of inquiry under Rule 26(b)(1), which explicitly perm its parties to discover facts about “the existence, description, nature, custody, condition and location of any ... docum ents.” (ECF No. 392 at 14). Lastly, in regard to topic 15, Plaintiffs posit that Ford has failed to show that the topic is overly broad or burdensom e. Plaintiffs em phasize that Ford has identified only two individuals who conducted investigations into claim s of unintended acceleration and has produced only fifteen relevant docum ents. According to Plaintiffs, they are entitled to know how Ford investigated and handled com plaints, claim s, and litigation concerning unintended acceleration, as this area of inquiry will inform Plaintiffs of the m easures taken by Ford to determ ine the cause of unintended acceleration and its conclusions, which are key to Plaintiffs’ claim s, and m ay also shed light on Ford’s defenses. B. M o t io n fo r R e co n s id e r a t io n In their m otion for reconsideration, Plaintiffs ask the Court to change a “decision” m ade during the February 10 , 20 15 discovery conference, allowing Ford’s 10 em ployees to conduct self-selected searches of their files. (ECF No. 393 at 1). Plaintiffs request a “transparent discovery process in which Ford discloses its collection m ethods and runs Plaintiffs’ search term s across appropriate custodians and sources of docum ents.” (Id.). Plaintiffs further seek a reversal of the Court’s ruling that Ford need not produce docum ents relating to a BOA function im plem ented by Ford of Europe. Plaintiffs also ask that Ford be required to provide inform ation about Ford’s SlowE BOA installed in Am erican-sold vehicles beginning with m odel year 20 0 8, Ford of Europe’s ETC system , and Ford’s switch from a threesensor accelerator pedal to a two-sensor pedal. In support of the m otion, Plaintiffs argue the relevance of the inform ation, as well as witness testim ony that allegedly establishes the haphazard and unreliable search and collection procedures followed by Ford to date. (Id. at 2-4). Ford opposes the m otion by contending that Plaintiffs fail to provide justification for reconsideration. (ECF No. 444). Ford claim s that the Ford of Europe inform ation rem ains irrelevant to the Plaintiffs’ claim s, reiterating that the ETC system used in European m odel vehicles is entirely different from the ETC system at issue in the pending cases. In addition, Ford notes that the European BOA was triggered only in cases of a stuck accelerator pedal. Since Plaintiffs’ allegations do not involve stuck accelerator pedals, the European BOA has no bearing on the instant actions. Finally, Ford contends that the Court should not reconsider its approval of a self-selection search m ethod for several reasons. First, the searches conducted to date have been reasonable, and Ford can explain the cause underlying every perceived deficit in its docum ent productions. Second, Ford stresses that the party best positioned to determ ine an efficient m ethod of docum ent location and retrieval is the 11 producing party. (ECF No. 444 at 15). Ford argues that it knows its em ployees and its docum ent storage locations; as such, it should be perm itted to conduct the searches as it sees fit, so long as the searches are reasonable. 3 Third, Ford contends that Plaintiffs only speculate as to the insufficiency of Ford’s docum ent collection and production. Ford points out that m ost of the Ford em ployees that have been deposed testified to conducting robust searches of their personal files. In Ford’s view, Plaintiffs have failed to dem onstrate any deficiencies that justify a plaintiff-driven collection process, or require close judicial supervision. III. Re le van t Law Federal Rule of Civil Procedure 26(b)(1) provides that “[p]arties m ay obtain discovery regarding any m atter, not privileged, that is relevant to the claim or defense of any party, including the existence, description, nature, custody, condition, and location of any books, docum ents, or other tangible things and the identity and location of persons having knowledge of any discoverable m atter ... Relevant inform ation need not be adm issible at the trial if the discovery appears reasonably calculated to lead to the discovery of adm issible evidence.” Although the Rules do not define what is “relevant,” Rule 26(b)(1) m akes clear that relevancy in discovery is broader than relevancy for purposes of adm issibility at trial. Caton v. Green Tree Services, LLC, Case No. 3:0 6-cv-75, 20 0 7 WL 2220 281, at *2 (N.D.W.Va. Aug. 2, 20 0 7) (the “test for relevancy under the discovery rules is necessarily broader than 33 Ford relies on statem ents by the Sedona Conference for this argum ent. “The Sedona Conference, a non-profit legal policy research and education organization, has a working group com prised of judges, attorneys, and electronic discovery experts dedicated to resolving electronic docum ent production issues. With regard to electronic discovery m any courts have looked to the Sedona Principles and Sedona Comm entaries thereto, which are ‘the leading authorities on electronic docum ent retrieval and production.’” DeGeer v. Gillis, 755 F.Supp.2d 90 9, 918 (N.D. Ill. 20 10 ) (quoting Rom ero v. Allstate Ins. Co., 271 F.R.D. 96, 10 6 (E.D.Pa.20 10 )). 12 the test for relevancy under Rule 40 2 of the Federal Rules of Evidence”4 ); Carr v. Double T Diner, 272 F.R.D. 431, 433 (D.Md. 20 10 ) (“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 m ay be in the case. Although ‘the 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. Nevertheless, sim ply because inform ation is discoverable under Rule 26 “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 Nicholas 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), a party m oving to resist discovery on the grounds of burdensom eness 4 Under the Federal Rules of Eviden ce, relevant evidence is ‘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, Case No. 5:10 -cv591-FL, 20 11 WL 5599283 at * 2 (E.D.N.C. Nov. 17, 20 11) (citing United Oil Co., v. Parts Assocs., Inc, 227 F.R.D. 40 4. 40 9 (D.Md. 20 0 5)). 13 and oppression m ust do m ore to carry its burden than m ake conclusory and unsubstantiated allegations. Convertino v. United States Departm ent of Justice, 565 F. Supp.2d 10 , 14 (D.D.C. 20 0 8). 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). In addition, Rule 26(b)(2)(C) requires the court, on motion 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). Motions to reconsider interlocutory orders are governed by Fed. R. Civ. P. 54(b), which provides that “any order or other decision, however designated, that 14 adjudicates fewer than all the claim s or the rights and liabilities of fewer than all the parties does not end the action as to any of the claim s or parties and m ay be revised at any tim e before the entry of a judgm ent adjudicating all the claim s and all the parties' rights and liabilities.” Fed. R. Civ. P. 54(b) “Notwithstanding that precept, it is im proper to file a m otion for reconsideration sim ply to ask the Court to rethink what the Court had already thought through—rightly or wrongly.” W .W . McDonald Land Co. v. EQT Prod. Co.,983 F.Supp.2d 790 , 819 (S.D.W.Va. 20 14) (quoting In re: C.R. Bard, Inc., 948 F.Supp.2d 589, 649 (S.D.W.Va.20 13)). Guided by the principles set forth in Rule 59(e) and Rule 60 , courts in this circuit generally have granted a m otion for reconsideration only to satisfy one of the following conditions: “(1) to accom m odate an intervening change in controlling law; (2) to account for new evidence not available at trial; or (3) to correct a clear error of law or prevent m anifest injustice.” Id. (citing Pac. Ins. Co. v. Am . Nat'l Fire Ins. Co., 148 F.3d 396, 40 3 (4th Cir. 1998)). IV. D is cu s s io n A. M o t io n t o Qu a s h a n d fo r Pr o t e ct iv e Or d e r Ford first asks for an order prohibiting Plaintiffs from inquiring into “the identification and explanation of how Ford handled com plaints received relating to a possible SUA event during the Relevant Tim e Period, including what investigations, evaluation analysis, inspection Ford undertook or perform ed regarding these reported events, and what corrective action Ford took in response to any such reported SUA event” (topic 15). Ford’s prim ary objection is the burden im posed upon it to educate a corporate designee about the details of each and every com plaint, claim , and lawsuit lodged against Ford over a ten-year period. Plaintiffs respond that 15 the requested inform ation is relevant and is not overly burdensom e given that Ford has identified only 15 docum ents pertaining to its investigation of UA events. Regardless of how m any docum ents exist, preparing a corporate designee to answer detailed questions regarding specific claim s, lawsuits, and investigations that have been lodged during a ten-year period would be difficult and, to a degree, would likely require preparation that is out of proportion to the benefits of the testim ony. Plaintiffs do not contend that every incident of UA is related to the ETC system . Accordingly, requiring the designee to be fully fam iliar with the details of investigations in which another cause for the UA has been determ ined is a waste of tim e and resources. Therefore, the Court GRAN TS Ford’s m otion for protective order to lim it the inquiry under topic 15. Ford shall prepare its corporate designee to provide an overview of Ford’s com plaints, claim s, and lawsuits involving UA events in the vehicle m odels at issue in the litigation, explaining the m ethods and processes used by Ford to investigate the allegations. The overview shall include details such as the num ber of com plaints, claim s, or lawsuits, the dates of assertion, the nam es of persons supervising any investigations, the general steps taken, any conclusions reached, and the outcom e of the process. However, the corporate designee need not be prepared to discuss every m inute detail of the individual investigations. To the extent that Plaintiffs wish to inquire regarding specific claim s, lawsuits, or docum ents, Plaintiffs shall identify, at least ten (10 ) days prior to the deposition, the docum ents, claim s, or lawsuits which will be the subject of inquiry. Ford m oves to quash topics 18 and 78, arguing that questions regarding Ford’s docum ent retention policies and potential loss or disposal of relevant docum ents constitute irrelevant “non-m erits” discovery and are im proper in the absence of a 16 threshold showing that spoliation or discovery abuse has occurred. Along the sam e line, Ford contends that topic 79, seeking inform ation regarding Ford’s docum ent collection and production in this case, should be quashed because it is irrelevant “discovery on discovery” and invades attorney work product. The Court D EN IES Ford’s m otion to quash these topics. In its Cooperation Proclam ation, the Sedona Conference notes that the “costs associated with adversarial conduct in pre-trial discovery have becom e a serious burden to the Am erican judicial system ;” particularly, in light of e-discovery. See The Sedona Conference, The Sedona Conference Cooperation Proclam ation (Nov. 20 12). Cooperation in a transparent discovery process is the path to efficient, cost-effective litigation and achieves the purpose of the federal discovery rules; that being, to reduce “gam esm anship” and to insure “forthright sharing of all parties to a case with the aim of expediting case progress, m inim izing burden and expense, and rem oving contentiousness as m uch as practicable.” Id. (citing Board of Regents of the University of Nebraska v. BASF Corp., No. 4:0 4-cv-3356, 20 0 7 WL 3342423, at *5 (D. Neb. Nov. 5, 20 0 7). The 20 0 6 am endm ents to Fed. R. Civ. P. 26(f) encourage cooperation and transparency early in the discovery process by requiring the parties to discuss at their initial conference “any issues about preserving discoverable inform ation” and “any issues about disclosure or discovery of electronically stored inform ation.“ Fed. R. Civ. P. 26(f)(1) and 26(f)(3). The Rule anticipates a sharing of facts and, if necessary, discovery about the sources to be searched for ESI. Fed. R. Civ. P. 26(f) advisory com m ittee notes (20 0 6) (stating that the “identification of, and early discovery from , individuals with knowledge of a party’s com puter system s m ay be helpful.”). For som e tim e now, federal courts have insisted on a collaborative 17 approach to discovery, recognizing that this attitude best achieves the “spirit and purposes” of the federal discovery rules. Mancia v. May flow er Textile Servs. Co., 253 F.R.D. 354, 357-58 (D. Md. 20 0 8) (“It cannot seriously be disputed that com pliance with the ‘spirit and purposes’ of these discovery rules requires cooperation by counsel to identify and fulfill legitim ate discovery needs, yet avoid seeking discovery the cost and burden of which is disproportionally large to what is at stake in the litigation. Counsel cannot “behave responsively” during discovery unless they do both, which requires cooperation rather than contrariety, com m unication rather than confrontation.”). Parties and attorneys that refuse to work collaboratively with their adversaries are at odds with the federal system and have been routinely sanctioned. Id. at 361 n.3. The obligation on the parties to m eet and confer early in the case includes a “discussion that can and should include cooperative planning, rather than unilateral decision-making, about m atters such as ‘the sources of inform ation to be preserved and searched; num ber and identities of custodians whose data will be preserved or collected ...; topics for discovery; [and] search term s and m ethodologies to be em ployed to identify responsive data ...’” Ruiz-Bueno v. Scott, 20 13 WL 60 5540 2, at *3 (S.D. Ohio Nov. 15, 20 13) (quoting Millberg LLP and Hausfeld LLP, “E-Discovery Today: The Fault Lies not in Our Rules ...,” 4 Fed. Cts. L. Rev. 131, 163 (20 11). When two-way planning does not occur upfront, and questions about the adequacy of the docum ent production subsequently arise, com m on sense dictates that the party conducting the search m ust share inform ation regarding the universe of potentially relevant docum ents being preserved, and those that no longer exist, as well as the search term s used in collecting relevant docum ents and the identities of the custodians from whom the docum ents were retrieved. After all, the party 18 responsible for the search and production has the duty to dem onstrate its reasonableness. See Sm ith v. Life Investors Ins. Co. of Am erica, No. 2:0 7– cv– 681, 20 0 9 WL 20 45197, at *7 (W.D. Pa. J uly 9, 20 0 9) (citing Victor Stanley , Inc. v. Creative Pipe, Inc., 250 F.R.D. 251, 262 (D.Md.20 0 8)). Consequently, Ford’s generic objections to “discovery on discovery” and “non-m erits” discovery are outm oded and unpersuasive. Here, there have been repeated concerns voiced by Plaintiffs regarding the thoroughness of Ford’s docum ent search, retrieval, and production. Although Ford deflects these concerns with frequent com plaints of overly broad and burdensom e requests, it has failed to supply any detailed inform ation to support its position. Indeed, Ford has resisted sharing any specific facts regarding its collection of relevant and responsive m aterials. At the sam e tim e that Ford acknowledges the existence of variations in the search term s and processes used by its custodians, along with lim itations in som e of the searches, it refuses to expressly state the nature of the variations and lim itations, instead asserting work product protection. Ford has cloaked the circum stances surrounding its docum ent search and retrieval in secrecy, leading to skepticism about the thoroughness and accuracy of that process. This practice violates “the principles of an open, transparent discovery process.” DeGeer, 755 F.Supp.2d at 929. Contrary to Ford’s contentions, discovery of docum ent retention and disposition policies is not contingent upon a claim of spoliation or proof of discovery abuses, and m ay be accom plished through a Rule 30 (b)(6) witness. See Doe v. District of Colum bia, 230 F.R.D. 47, 55-56 (D.D.C., 20 0 5) (finding that Rule 26(b)(1) m ay be construed to allow discovery into docum ent retention and destruction policies 19 by perm itting “[p]arties [to] obtain discovery regarding any m atter, ... including the existence, description, nature, custody, condition, and location of any ... docum ents.”); New m an v. Borders, 257 F.R.D. 1, 3 (D.D.C. 20 0 9) (“That a party's docum ent retention policies, including its policies as to electronically stored inform ation, m ay be a fit subject of discovery cannot be gainsaid ... It is equally clear that a party m ust produce as its 30 (b)(6) designee a person who can speak knowingly as to the topic and, if necessary, educate that designee so that she can do so.”); and Heartland Surgical Specialty Hosp., LLC v. Midw est Div., Inc., 20 0 7 WL 10 54279, at *4 (D. Kan. Apr. 9, 20 0 7) (stating that the topics of docum ent retention policies and destruction, alteration, or loss of records are relevant and discoverable). Moreover, broader “discovery on discovery” m ay be appropriate and relevant under Rule 26(b) when it aids a party in the presentation of its case. Ruiz-Bueno, 20 13 WL 60 5540 2, at *1-2 (collecting cases). Plaintiffs have identified several instances in which docum ent productions have been slow-to-com e, incom plete, or inconsistent. Furtherm ore, they have supplied excerpts of deposition transcripts in which key em ployees testified to perform ing either lim ited searches for relevant docum ents, or no searches at all. The reservations expressed by Plaintiffs regarding the thoroughness of Ford’s docum ent production and the m ethod by which its em ployees have conducted the review of their records are sufficiently corroborated to justify investigation into the reasonableness of Ford’s search. Ford’s assertion that sharing facts about its search term s and the identities of custodians who searched their records will require disclosure of attorney work product is equally unavailing. See Form Factor, Inc. v. Micro-Probe, Inc., 20 12 WL 15750 93, at *7, n. 4 (N.D. Cal. May 3, 20 12) (finding that search term s and custodian 20 nam es are not work product and collecting cases). Ford argues that its counsel m et with each custodian and discussed the case, and that based upon these com m unications, each custodian selected search term s and reviewed his or her personal files for docum ents. For that reason, Ford claim s work product protection, citing cases that ostensibly support that position. However, as the court explains in Form Factor, “[s]uch inform ation is not subject to any work product protection because it goes to the underlying facts of what docum ents are responsive to Defendants' docum ent request, rather than the thought processes of Plaintiff's counsel.” Id. Undoubtedly, the search term s used by the custodians and the nam es of the custodians that ran searches can be disclosed without revealing the substance of discussions with counsel. See, also, Nissan North Am erica, Inc. v. Johnson Electric North Am erica, Inc., No. 0 9-CV-11783, 20 11 WL 10 0 2835, at *4 (E.D. Mich. Feb. 17, 20 11) (stating that the party issuing docum ent request “is of course entitled to know what search criteria was used in retrieving relevant ESI”); Apple Inc. v. Sam sung Electronics Co. LTD, No. 12-CV-0 630 -LHK (PSG), 20 13 WL 1942163, at *2 (N.D. Cal. May 9, 20 13) (noting that case law suggests that search term s and choice of custodians used in the docum ent collection and production process are not protected as attorney work product). Ford argues that its 30 (b)(6) witness on this topic would likely be an attorney; however, that argum ent contradicts Ford’s prior description of its docum ent retrieval process as a “self-select” m ethod by which the individual em ployees conducted searches of their own docum ents using term s of their own choosing. Thus, while Ford correctly notes that the deposition of a party’s attorney is generally not perm itted, Ford should also un derstand that it cannot avoid a legitim ate area of inquiry sim ply by selecting an attorney as its corporate designee. 21 Ford’s final objections are based upon the burdensom eness of preparing a corporate designee to testify regarding the actions of each custodian, and the cum ulative nature of requiring a corporate designee to testify regarding docum ent retention and destruction policies that have already been produced to Plaintiffs. With respect to the latter objection, having a written policy in hand does not obviate the need to have a corporate representative testify about the policy. Not only is a 30 (b)(6) deposition of value to authenticate the policy and verify its relevance to the tim e fram e in question, but the testim ony of a corporate designee is useful to explain and clarify the policy and procedures, to provide the corporation’s interpretation of the docum ent, and to confirm how the policy was applied within the corporation. In regard to the burdensom eness argum ent, Ford again fails to supply any factual basis to support its claim . Certainly, if Ford had twenty people search for docum ents, preparing a witness to identify those individuals and report on the search term s used by them would not be extraordinarily burdensom e. On the other hand, the task grows in difficulty as the num ber of custodians and search term s increase. Ford does not share this inform ation; consequently, there is no good cause basis upon which the Court can find the required preparation to be burdensom e. Accordingly, Ford is ORD ERED to produce a Rule 30 (b)(6) witness to provide an overview of its claim s investigation process, to testify regarding its docum ent retention and destruction policies, and to supply details regarding the docum ent search perform ed by Ford to date. B. M o t io n fo r R e co n s id e r a t io n Plaintiffs first ask the Court to reconsider its ruling regarding the efficacy of the self-selection searches by Ford’s custodians. Because the undersigned m ade no 22 specific ruling related to the reasonableness of the searches, Plaintiffs’ m otion for reconsideration on this point is D EN IED as m oot. At the February 10 , 20 15 hearing, the undersigned m ade it clear that while self-selection searches were not per se im perm issible, Plaintiffs were not precluded from bringing a m otion to compel and for sanctions if they believed that Ford’s m ethod of docum ent search, retrieval, and production violated its obligations under the federal discovery rules; thereby, resulting in insufficient responses. Given that Plaintiffs are now challenging the reasonableness and adequacy of Ford’s docum ent search, the undersigned will construe their m otion for reconsideration as a m otion to com pel. Plaintiffs ask the Court to order Ford to participate in a transparent discovery process in which “Ford discloses its collection m ethods and runs Plaintiffs’ search term s across appropriate custodians and sources of document.” (ECF No. 393 at 1). Plaintiffs also request that the Court “oversee” the process. In light of the Court’s ruling allowing Plaintiffs to proceed with a Rule 30 (b)(6) deposition related to Ford’s search and collection of docum ents responsive to discovery requests, Plaintiffs’ dem and for a m ore transparent process is GRAN TED . Nevertheless, until Plaintiffs have deposed the designee and confirm ed the nature of the docum ent search perform ed by Ford, the Court is not in a position to rule on whether Ford has acted reasonably, or whether its production to date has been sufficient. Accordingly, to the extent Plaintiffs seek a ruling that Ford’s prior search, retrieval, and production have been inadequate, the Court D EN IES the m otion as prem ature. After gathering the relevant details, Plaintiffs are given leave to file another m otion if the facts so m erit. Plaintiffs are rem inded of their obligation to m eet and confer in an effort to resolve any disagreem ents about the sufficiency of the 23 productions prior to filing the m otion. Going forward, the Court GRAN TS Plaintiffs’ m otion com pelling Ford to disclose its collection m ethods, including the nam es of custodians whose records will be searched, and further ORD ERS the parties to continue stream lining the process with agreed-upon search term s and phrases as previously instructed. In this regard, the parties are ORD ERED to involve their IT experts and to consider other m ethods of searching such as predictive coding; perhaps, m aking use of the publications of the Sedona Conference. See, e.g., Sedona’s Com m entary on Achieving Quality in the E-Discovery Process (20 13), Best Practices Com m entary on the Use of Search & Inform ation Retrieval Methods in E-Discovery (20 13), and Com m entary on Proportionality in Electronic Discovery (20 13). As the Court is already overseeing the process with bi-weekly discovery conferences and m otion practice, the undersigned declines to take additional steps at this tim e to further supervise the process. Plaintiffs next ask for an order com pelling Ford to disclose inform ation related to its SlowE/ BOA, its conversion from a “2 track to 3 track system ” in Class vehicles, and Ford of Europe’s ETC system and BOA function. Once again, the undersigned has not m ade any rulings with respect to the SlowE/ BOA and the conversion from a two sensor pedal to a three sensor pedal. As such, there is nothing for the Court to reconsider. If Plaintiffs have m ade discovery requests that cover these topics, and Ford has failed to properly respond, Plaintiffs should m ove to com pel answers to the discreet requests, after having engaged in the necessary m eet and confer sessions. These m atters m ay also be addressed at the regular discovery conferences. The undersigned did rule on Ford’s obligation to produce docum ents from Ford of Europe regarding the European ETC system and BOA function, concluding 24 that the European ETC system was dissim ilar to the system used in the Class Vehicles, and thus, the European docum ents were not relevant or likely to lead to adm issible evidence. Furtherm ore, the undersigned found that m ore focused discovery needed to be com pleted in North Am erica before a final determ ination could be m ade about the need for the parties to collect docum ents housed overseas. Applying the fram ework for evaluating m otions to reconsider, the Court sees no basis upon which to reconsider its prior ruling related to Ford of Europe’s docum ents. Until Plaintiffs can dem onstrate through evidence rather than argum ent, that the ETC system in Ford of Europe’s vehicles was sufficiently sim ilar to the system used in the Class Vehicles, and the European BOA function dealt with som ething other than a stuck accelerator pedal, the undersigned continues to find that the burdens associated with conducting discovery overseas are disproportionate to the anticipated benefits of that proposed discovery. Therefore, Plaintiffs’ m otion to reconsider the Ford of Europe discovery is, at this tim e, D EN IED . The Clerk is instructed to provide a copy of this Order to counsel of record and any unrepresented party. EN TERED : J uly 8 20 15 25
]]>
Some case metadata and case summaries were written with the help of AI, which can produce inaccuracies. You
should read the full case before relying on it for legal research purposes.
This site is protected by reCAPTCHA and the Google
Privacy Policy and
Terms of Service apply.
