Bruner et al v. American Honda Motor Co., Inc. et al
ORDER granting 53 Motion to Compel. Signed by Magistrate Judge Katherine P. Nelson on 5/12/2016. (srr)
IN THE UNITED STATES DISTRICT COURT
FOR THE SOUTHERN DISTRICT OF ALABAMA
LEROY BRUNER and
AMERICAN HONDA MOTOR CO.,
Civil Action No. 1:15-00499-N
This action is before the Court on Plaintiffs’ Motion to Compel (Doc. 53) and
evidentiary material in support. Defendant has timely filed a response in opposition
On April 7, 2016, in accordance with a previous order from the
undersigned, the parties filed Status Report indicating that they were unable to
resolve two issues and requesting disposition by the Court (Doc. 61). The matter
was set for hearing and oral argument was held on April 26, 2016. See Doc. 63.
Present at the hearing were Charles J. Potts, Esq., for counsel for Plaintiffs and
Houston Lanier Brown II, Esq., counsel for Defendant. Stephanie Stephens
Monplaisir, Esq., additional counsel for Plaintiffs, participated by telephone.
Upon consideration of the pertinent (remaining) portion of the motion to
compel, the response of defendant and the arguments made at the hearing, the
Court finds that the motion to compel is due to be GRANTED.
At the joint request of counsel, a ruling on this motion was initially deferred to allow the parties
The allegations in this complaint stem from an accident involving a 2007
Defendant. Doc. 1-1 at 4-5.
Plaintiffs allege a number of counts, including
negligence, wantonness, loss of consortium, and manufacturer’s liability claims.
Doc. 1-1 at 5-9.
The parties agree that the only remaining issues concern the production of
emails in response to Plaintiffs’ requests for production and whether Defendant or
its counsel should issue a litigation hold in this action. Id. The email issue concerns
Plaintiffs’ Requests for Production #6, #7, #10, and #24 (Id. at 1.), which state:
Please produce all documents, e-mails, notes, memos or papers
published by Honda employees or articles written based upon research
funded in whole or in part by Honda on airbags, side air curtains and
inflation induced injuries from 1997-2011 . . .
Please produce any and all meeting minutes, documents, emails, PowerPoint presentations or other writings with all
attachments and presentations on automotive side curtains from 2001
to 2011 . . .
Please produce all customer complaints[,] Field Performance
Reports, DSI field data, Field Investigations, e-mails or related
investigations regarding restraint system crashworthiness of the
subject vehicle or similar vehicles . . .
24. Please produce any and all notes, memos, e-mails and minutes of
the Working Group meeting including the names of representatives at
all meetings. This would include any notes, e-mails or other writings
produced as a result of the Working Group Meeting Minutes.
Doc. 53 at 6-8.
Counsel for Defendant maintains that any relevant e-mails are “no longer
retained due to the passage of time in accordance with the relevant Document
Retention Policy(ies)”. Doc. 53-3 at 1; Doc. 61 at 4. Defendant further contends that
it has conducted thorough searches of customer complaints and related email in
response to the requests for production and found no responsive e-mails. Doc. 61 at
Specifically, these searches include inquiries in the Customer Relations
Management System (CRMS), Customer Retention Resolution System (CRRS), and
the Tech Line System. Doc. 56 at 4-5. Defendant contends that it could not have any
responsive e-mails because its Document Retention Policies (DRP) did not call for
retaining e-mails for longer than 30 days. Doc. 61 at 4-5. A Defendant affidavit also
states that the CRRS comprises a “complete record of the handling of customer
complaints. Id. at 5-6.
Plaintiffs argue that further searches should be conducted to discover and
identify any responsive e-mails. Doc. 61 at 6. Specifically, Plaintiffs argue that the
“complete record” contentions concerning the CRRS cannot be accurate since the
CRRS references e-mails which it does not include or attach. Id. Plaintiffs also
argue that the lack of responsive e-mails due to the retention policy is
unreasonable, since the policy is either “in violation of [Defendant’s] duty to
preserve ESI, or [Defendant] is not conducting a thorough search.” Doc. 53 at 10.
Plaintiff seeks an order from this Court “to conduct a thorough search of identified
custodians with identified search terms and to issue a litigation hold in this case.”
Doc. 61 at 6. Plaintiff also seeks an order directing Defendant to implement a
litigation hold so that it is not continuously deleting any relevant e-mails. Id.
The scope of discovery under the Federal Rules of Civil Procedure is broad,
allowing parties to “obtain discovery regarding any nonprivileged matter that is
relevant to any party’s claim or defense . . . Relevant information need not be
admissible at the trial if the discovery appears reasonably calculated to lead to the
discovery of admissible evidence.” FED. R. CIV. P. 26(b)(1). The “ ‘party resisting
discovery “must show specifically how ... each interrogatory is not relevant or how
each question is overly broad, burdensome or oppressive....” ’ ” Panola Land Buyers
Ass'n v. Shuman, 762 F.2d 1550, 1559 (11th Cir. 1985) (quoting Josephs v. Harris
Corp., 677 F.2d 985 (3d Cir. 1982)). Stated another way, “[t]o be adequate,
objections . . . should be ‘plain enough and specific enough so that the court can
understand in what way the interrogatories are alleged to be objectionable.’ ” Id.
(quoting Davis v. Fendler, 650 F.2d 1154, 1160 (9th Cir. 1981)). See also Coker v.
Duke & Co., 177 F.R.D. 682, 686 (M.D. Ala. 1998) (“Generally, a party seeking to
avoid discovery on a burdensomeness argument must substantiate that position
with detailed affidavits or other evidence establishing an undue burden. An
objection must show specifically how a discovery request is overly broad,
burdensome or oppressive, by submitting evidence or offering evidence which
reveals the nature of the burden. The resisting party must make a particular and
specific demonstration of fact and cannot rely on simple conclusory assertions about
the difficulty of complying with a discovery request. A mere showing of burden and
expense is not enough.” (citations and quotations omitted)); Burlington N. & Santa
Fe Ry. Co. v. U.S. Dist. Court for Dist. of Mont., 408 F.3d 1142, 1149 (9th Cir. 2005)
(“[B]oilerplate objections or blanket refusals inserted into a response to a Rule 34
request for production of documents are insufficient to assert a privilege.”).
In its responses (Doc. 56 and Doc. 61) and at oral argument, Defendant
advances two arguments concerning the production of e-mails: (1) that more
thorough searches and a litigation hold are unnecessarily burdensome and (2) that
no responsive e-mails exist. Defendant has failed to offer any specific evidence as to
how additional searches or a litigation hold will be especially burdensome or
Regarding Defendant’s argument that no responsive e-mails exist, Plaintiffs
note that Defendant had a duty to preserve relevant electronically stored
information since this action was originally filed on May 15, 2015. See Doc. 53 at 910 compare Doc. 1-2 at 1. A party has a duty to preserve ESI if that party
“reasonably anticipates litigation.” Fed. R. Civ. P. 37(e); Zubalake v. UBS Warburg
LLC, 229 F.R.D. 422, 431-34 (S.D.N.Y. 2004). Another district court has found that:
Once a party reasonably anticipates litigation, it must suspend its
routine document retention/destruction policy and put in place a
“litigation hold” to ensure the preservation of relevant documents . . .
“The touchstone in evaluating a party’s preservation efforts is the party’s good faith
and reasonableness.” In re Delta/AirTran Baggage Fee Antitrust Litig., 770 F.
Supp. 2d 1299, 1312 (N.D. Ga. 2011). The deletion of potentially relevant emails
since the instigation of this action is unreasonable considering their potential
importance to this litigation. Additionally, the deletion of some responsive emails
does not absolve Defendant of its obligation to thoroughly search for still-extant
ESI. See, e.g., Fed. R. Civ. P. 26(b), 26(g).
Defendant has stated that it “considered but did not implement a litigation
hold in reliance on its existing Document Retention Policy (DRP).” At oral
argument, Defendant advanced conclusory arguments that a litigation hold would
be overly burdensome. Since it remains possible that relevant responsive emails are
being regularly deleted under Defendant’s present DRP, the Court concurs with
Plaintiffs that a litigation hold is necessary to preserve ESI.
Accordingly, it is ORDERED that Plaintiffs’ Motion to Compel (Doc. 53), as
supplemented (Doc. 61) is due to be and is hereby GRANTED. Defendant is
ORDERED to serve Plaintiffs with full and adequate responses to Requests for
Production Nos. 6, 7, 10, and 24 in accordance with the Federal Rules of Civil
Procedure and all other applicable rules and laws, no later than May 26, 2016. Full
and adequate responses will be those which follow further searches of the CRRS,
CRMS, Tech Line System, and any existing emails utilizing Plaintiffs’ requested
search terms. Additionally, Defendant is ORDERED to implement a litigation hold
on the email accounts of any designer, engineer, customer service representative, or
other employee who may possess any responsive non-privileged email. Said
litigation hold will remain in place at least until the close of discovery. 2
DONE and ORDERED this the 12th day of May 2016.
/s/ Katherine P. Nelson
KATHERINE P. NELSON
UNITED STATES MAGISTRATE JUDGE
Plaintiffs' motion does not seek the award of fees for bringing the motion.
After hearing oral argument on the issues, the undersigned concludes that the
response of Defendant was “substantially justified”. Accordingly, no fees will be
awarded. See Fed. R. Civ. P 37(a)(5)(A).
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