Pertile et al v. General Motors, LLC et al
ORDER by Magistrate Judge Nina Y. Wang on 3/17/16. Plaintiffs' Motion to Compel Production of General Motors, LLC's Finite Element Models for the GMT 900 Series 87 is DENIED. (bsimm, )
IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLORADO
Civil Action No. 1:15-cv-00518-WJM-NYW
DANIEL PERTILE, an individual, and
GINGER PERTILE, an individual,
GENERAL MOTORS, LLC a Delaware limited liability company,
TRW VEHICLE SAFETY SYSTEMS, INC., a Delaware corporation,
KELSEY-HAYES COMPANY, a Delaware corporation,
JOHN DOE NOS. 1-25, and
JOHN DOE COMPANIES NOS. 1-25,
Magistrate Judge Nina Y. Wang
This matter comes before the court on Plaintiffs’ Motion to Compel Production of
General Motors LLC’s Finite Element Models for the GMT 900 Series (the “Motion to Compel
FEA Models”) [#87, filed Sept. 1, 2015]. The matter was referred to this Magistrate Judge
pursuant to the Order of Reference dated May 12, 2015 [#58] and the memorandum dated
September 2, 2015 [#88]. The Parties submitted briefing on the Motion to Compel FEA Models,
including an Opposition by Defendant General Motors LLC (“GM”) 1 [#96, filed Sept. 22, 2015]
and a Reply filed by Plaintiffs Daniel and Ginger Pertile (“Plaintiffs” or “the Pertiles”) [#107,
GM’s Opposition is styled as an “Opposition to Plaintiffs’ Motion to Compel and a Motion for
Protective Order.” [#96]. A party may not make a motion in a response or reply to an original
motion. D.C.COLO.LCivR 7.1(d). Therefore, this Order only addresses whether Plaintiffs are
entitled to compel production of GM’s FEA Models at this juncture. It is not intended to act as a
Protective Order absolutely barring production of FEA Models under any circumstances.
filed Oct. 9, 2015]. The court held oral argument on October 30, 2015, and took the Motion to
Compel FEA Models under advisement. Having now fully considered the issue presented, this
court DENIES the Motion to Compel FEA Models for the following reasons.
The Pertiles originally initiated this action in state court in the District Court for the City
and County of Denver, Colorado on February 17, 2015. [#1-1]. The Pertiles allege that Plaintiff
Daniel Pertile was catastrophically injured during a rollover accident in which he was the front
1GC1KVCG9BF167901, that occurred on or about February 25, 2013. [#1-1 at ¶ 35]. As
initially pled, Plaintiffs named a number of defendants that were purportedly involved in the
design and manufacturer of a Chevrolet Silverado 2500 HD crew cab truck, its safety restraint
system, and the electronic stability control system. [#1-1 at ¶¶ 39-41]. On March 12, 2015, one
of those defendants, Delphi Automotive Systems, LLC, removed the action to this court. [#1].
On April 8, 2015, Plaintiffs filed an Amended Complaint, dismissing a number of
Defendants (including Delphi Automotive Systems). 2 [#31]. By the time that the Scheduling
Order was entered in this case on May 13, 2015, only five named entities remained as
Defendants: GM, TRW Vehicle Safety Systems, Inc. (“TRW”), Kelsey-Hayes Company
(“Kelsey-Hayes”), DPH Holdings Corporation and DPH-DAS, LLC (collectively “DPH”). DPH
was subsequently dismissed [#69], leaving GM, TRW, Kelsey-Hayes, the John Doe Individuals
and John Doe Companies as Defendants. The court entered a Protective Order, to which the
Parties had stipulated, on July 6, 2015, and an Electronically Stored Information (“ESI”)
The Parties also stipulated to the dismissal of a number of Defendants after filing the Amended
Complaint. See e.g., [#39, #40, #41, #42].
Protocol to facilitate discovery.
The ESI Protocol reflected the Parties’
disagreement as to whether GM would be required to produce ESI related to its finite element
analysis. [#79 at 3]. Finite element analysis (“FEA”) refers to “a computer modeling technology
used to create a mathematical simulation of three dimensional, virtual representation of a vehicle,
component or system subjected to prescribed load conditions.” [#96 at 2]. It is used to simulate
real-world behavior of physical objects. See Cordis Corp. v. Medtronic Ave, Inc., 511 F.3d
1157, 1169-70 (Fed. Cir. 2008). It does not reflect actual real-world testing performed on the
final design of the vehicle at issue.
The Parties proceeded with discovery, including the exchange of documents and ESI
through Initial Disclosures.
GM has produced ESI related to the design of the Chevrolet
Silverado at issue, in the form of Computer Aided Design (“CAD”) files. [#96-1 at ¶ 5]. On
August 25, 2015, this court held a telephone discovery conference regarding Plaintiffs’ request
for GM’s FEA Models. Specifically, Plaintiffs request production “in their original native
formal all finite element models depicting the roof and pillar structures of the subject vehicle
design including but not limited to inputs, outputs, pre and post processing, and mesh files.”
[#87-1 at 1]. GM refused to produce its trade-secret FEA Models, on the grounds that the
discovery sought by Plaintiffs was not reasonable or necessary, particularly in light of the other
discovery provided by GM.
The court then asked the Parties to brief the issue, and include any evidentiary support for
their positions. This instant Motion to Compel FEA Models, and the related briefing, followed.
The recent amendment to Federal Rule of Civil Procedure 26(b)(1), effective December
1, 2015, reads “[u]nless otherwise limited by court order, the scope of discovery is as follows:
Parties may obtain discovery regarding any nonprivileged matter that is relevant
to any party’s claim or defense and proportional to the needs of the case,
considering the importance of the issues at stake in the action, the amount in
controversy, the parties’ relative access to relevant information, the parties’
resources, the importance of the discovery in resolving the issues, and whether the
burden or expense of the proposed discovery outweighs its likely benefit.
Pursuant to 28 U.S.C. § 2074(a) and the Order of the Supreme Court dated April 29, 2015, the
amendment shall govern all civil cases commenced after December 1, 2015 and “insofar as just
and practicable, all proceedings then pending.” 3
Although this case was initiated prior to
December 1, 2015, this court applies the principles of proportionality as discussed above because
they are the same principles that would have applied through the former Rule 26(b)(2)(C)(iii).
See Fed. R. Civ. P. 26(b)(1) advisory committee’s note to 2015 amendment (“Most of what now
appears in Rule 26(b)(2)(C)(iii) was first adopted in 1983.”).
In this case, the threshold inquiry is whether, pursuant to Rule 26(b)(1), the FEA Models
should be produced in native format, to support Plaintiffs’ claims for product liability and
negligence. 4 GM asserts (and Plaintiffs do not contest) that it has already produced over 150,000
pages of discovery materials and data, including three-dimensional CAD drawings. [#96-1 at 5].
GM has also produced the engineering analysis reports and the evaluation reports resulting from
the FEA Models. [Id. at ¶ 10]. Plaintiffs contend, however, that the production to date is
insufficient because the FEA Models are necessary to reflect what GM knew when it designed
and tested the roof. [#87 at 5]. Plaintiffs further contend that with the FEA Models, Plaintiffs
could conduct their own simulations and would be able to understand what GM knew or could
have known about the truck’s design and testing. [Id.].
Plaintiffs’ Amended Complaint also includes claims for breach of warranties and a violation of
the Colorado Consumer Protection Act, but Plaintiffs do not argue that the FEA Models are
relevant to those causes of action. [#87].
There is no dispute that the FEA Models do not necessarily reflect the Chevrolet
Silverado 2500 HD crew cab, VIN number 1GC1KVCG9BF167901, as manufactured that was
subject to the roll-over accident at issue. [#96 at 8; #96-1 at ¶ 7]. The FEA Models allow GM
engineers assess pre-production designs of vehicle systems, components or parts. [#96-1 at ¶ 8].
Therefore, the inputs for the FEA Models may reflect materials and their properties that vary in
isolation or combination from the final product design, such as the composition of the material at
issue, the thickness of a material, and the size of the component tested. See e.g., [#107 at 3].
Plaintiffs’ expert 5 acknowledged these variations, but noted that the FEA Models could be
updated to reflect a final design. [#107-1 at ¶ 15].
Based on the record before it, this court
respectfully agrees that if there were no other considerations other whether the discovery at issue
might yield helpful information, the FEA Models would likely be discoverable because “the
inputs, outputs, pre and post processing, and mesh files” reflects information that was available
to GM during the design process.
However, “might yield helpful information” is not the
Instead, this court must look at proportionality and, because of the
sensitivity of the information at issue, necessity.
Proportionality and Necessity
Relevance has never been the only consideration under Rule 26—this court must also
look at other factors to determine whether the requested discovery is proportional to Plaintiffs’
Plaintiffs introduce for the first time on Reply the affidavit of their expert, Dr. Andreas
Vlahinos. [#107-1]. Arguably, such testimony is not properly before the court. See Kerber v.
Qwest Group Life Ins. Plan, 727 F. Supp. 2d 1076, 1079 (D. Colo. 2010). Nevertheless, the
court declines to strike Dr. Vhalinos’ affidavit because it is focused on responding to the
Declaration of Huizhen Lu, who was offered by GM to testify about the technical aspects and
relevance of the FEA Models.
needs, including the importance of this information to the issues presented by the case, the
relative access to information by the Parties, and whether the burden or expense of the discovery
outweighs the benefit. Fed. R. Civ. P. 26(b)(1); In re Cooper Tire & Rubber Co., 568 F.3d 1180,
1184 (10th Cir. 2009) (observing under the former Rule 26(b)(1), all discovery was subject to the
limitations of Rule 26(b)(2)(iii) that considered proportionality). In considering these issues, the
court notes that there is no dispute that these FEA Models are proprietary, trade secret
information of GM. [#87 at 2; #96 at 3-4; #96-2 at 1]. Therefore, as the Parties recognize, while
there is no absolute privilege with respect to the disclosure of trade secrets, if GM is able to
prove harm associated with disclosure, then the burden shifts back to Plaintiffs to establish that
the FEA Models are not only relevant, but necessary, to prove their case. In re Cooper Tire &
Rubber Co., 568 F.3d at 1184; Centurion Indus., Inc. v. Stuerer, 665 F.2d 323, 325-26 (10th Cir.
The court first turns to whether GM has established any risk of potential harm by
disclosing its FEA Models, because the outcome of that question will guide the court’s
assignment of burdens in this case. As noted above, if GM can prove harm associated with
disclosure of the FEA Models, then the burden shifts to Plaintiffs to establish relevance and
necessity. See Centurion Indus., 665 F.2d at 325-26; Digital Equip. Corp. v. Micro Tech., Inc.,
142 F.R.D. 488, 491 (D. Colo. 1992). Courts have traditionally presumed that disclosure to a
competitor is more harmful than to a non-competitor. See R & D Bus. Corp. v. Xerox Corp., 152
F.R.D. 195, 197 (D. Colo. 1993). If however, GM does not prove potential harm, the burden
rests with GM to demonstrate why relevant discovery should not be had.
See Fed. R. Civ. P.
26(b)(1) Advisory Committee Notes to 2015 Amendment (observing that “the change [in the
Rule] does not place on the party seeking discovery the burden of addressing all proportionality
considerations”); Rezaq v. Nalley, 264 F.R.D. 653, 656 (D. Colo. 2010) (citing Simpson v. Univ.
of Colorado, 220 F.R.D. 354, 356 (D. Colo. 2004)) (“When the discovery sought appears to be
relevant, the party resisting the discovery has the burden to establish the lack of relevancy by
demonstrating that the requested discovery (1) does not come within the scope of relevant as
defined under Rule 26(b)(1) or (2) is of such marginal relevant that the potential harm
occasioned by the discovery would outweigh the ordinary presumption in favor of broad
In this case, GM argues (albeit out of order) that it may suffer harm if its trade secrets are
disclosed. [#96 at 14-19]. GM spends considerable time in its briefing, and offers supporting
evidence in the form of Ms. Lu’s Declaration and other court orders that reflect breaches of
confidentiality in other, unrelated cases, that it carefully limits access to its technical trade secrets
(including FEA Models, according to Ms. Lu) both internally and externally; that no satisfactory
solution exists when a protective order is violated; that there is no way to monitor compliance;
and although not characterized as such, that Dr. Vlahinos will inevitably disclose GM’s trade
secrets he derives from the FEA Models because he will be unable to compartmentalize his
knowledge. [Id.]. Plaintiffs contend that there is no risk because the entered Protective Order
has strict provisions, Plaintiffs and their expert are not competitors, Dr. Vlahinos has consulted
for national security interests without issue, and the FEA Models at issue are at least ten years
old, and accordingly, are outdated. [#87 at 11-12].
On balance, this court finds that GM has met its threshold burden of establishing that
disclosure of the FEA Models “might” be harmful. See Master Palletizer Sys., Inc. v. T.S.
Ragsdale Co. Inc., 123 F.R.D. 351, 353 (D. Colo. 1988). It is undisputed that GM has dedicated
considerable resources to developing its FEA Models, and that the FEA Models themselves (as
opposed to certain outputs from such models) are considered trade secrets. Plaintiffs have
pointed to no instance where GM has publicly disclosed or otherwise provided without
restriction, what Plaintiffs seek – unmonitored access and a copy of the electronic FEA Model
upon which to run simulations. Plaintiffs appear to concede that public disclosure of the FEA
Models would be unacceptable, but argue that there is no “risk of leak” of disclosure under the
Protective Order. While it is true that GM and Plaintiffs are not competitors, Dr. Vlahinos
indicates that he “is a principal at Advanced Engineering Services,” which provides engineering
services to clients in the “automotive, aerospace, energy, VC and medical industries.” [#107-1 at
¶ 3]. The court also takes judicial notice of Advanced Engineering Services’ website, which
indicates “[w]e use the state-of-the-art Explicit Dynamics finite element codes to evaluate the
crashworthiness of road vehicles, aircraft, ships, and trains. Sophisticated crash simulation with
airbags, seatbelts, and dummies improves automobile design and safety.” http://www.aes.nu/13engrsvc.htm. It is reasonable to conclude that while Dr. Vlahinos is not employed by a GM
competitor, he may, in fact, currently or in the future, provide consulting services to GM’s
And without finding or even suggesting that Dr. Vlahinos would violate the
provisions of the Protective Order either intentionally or inevitably, nothing in the Protective
Order prohibits any Plaintiffs’ expert from being or becoming engaged by an GM competitor,
either currently or in the future. [#80].
For the purposes of this Motion, this court concludes
that disclosure of GM’s FEA Models, even under the Protective Order, “might” be harmful – a
finding that shifts the burden to Plaintiffs to establish that the disclosure of the Models is relevant
and necessary. See Digital Equip., 142 F.R.D. at 492 (holding that an expert cannot reasonably
be expected to compartmentalize his knowledge even with the best intentions).
determination as to whether Plaintiffs’ articulated need for the trade secret FEA Models
outweighs GM’s claim of injury resulting from disclosure is within the court’s sound discretion.
See Sears v. Nissan Motor Co. Ltd, 932 F.2d 975, 1991 WL 80741, at *1 (10th Cir. May 16,
Proportionality and Need
The court next turns to the overlapping issues of proportionality under Fed. R. Civ. P.
26(b)(1) and the need for the discovery pursuant to Centurion. Plaintiffs urge this court to
compel discovery, on the theory that the FEA Models are important to understanding what the
GM engineers knew when they were running computer simulations. [#107 at 2]. Indeed, as the
court previously noted on the record, such knowledge would inform Plaintiffs’ products liability
and negligence claims presented in this action.
All Parties and this court acknowledge that the FEA Models could yield information that
is relevant to this action. But the FEA Models themselves do not necessarily tell Plaintiffs what
GM actually knew about the design of the roof structure. Instead, the input data reflects a body
of information that GM engineers chose from to run computer simulations that do not reflect the
final design of the vehicle at issue, or perhaps, even an interim design. Put another way, the
input data is a menu of options from which engineers selected, but the data in and of itself does
not reflect how GM combined the options for any given test; what simulations were ultimately
run; what outputs were generated from the data selected; and what GM engineers, in fact,
affirmatively considered at the time they were designing the Chevrolet Silverado 2500 HD crew
cab at issue. And any output data generated now would only reflect what GM knew at the time
of designing the vehicle at issue if Plaintiffs use the precise inputs that GM engineers selected, in
the same combination. Ms. Lu testified, and Plaintiffs do not dispute, that the FEA Models at
issue do not store or capture design changes or design considerations. Compare [#96-1 at ¶ 9]
with [#107-1]. An individual cannot determine from looking at the FEA Model what design
stage the model represents; or what an unidentified engineer was considering in looking at any
given output; or why a prior or subsequent simulation was run; or why or what adjustments were
made from the output generated. Instead, concrete evidence of the outputs from the FEA Models
– what GM, in fact, knew or should have known from the FEA Models – is captured in the form
of engineering and other reports. [#96-1 at ¶ 10]. Those reports have been produced (and should
be produced, if they have not), and other than argument, Plaintiffs have provided no specific
factual basis to conclude that the reports which have already been produced in this case, along
with the three-dimensional CAD drawing and other design documents that have also been
produced by GM, are insufficient, even if “they only contain a small amount of information in a
summary form.” [#107-1 at ¶ 13]. Without a factual basis to establish that the production to date
is inadequate, Plaintiffs’ attempt to compel production of the FEA Models themselves is not
Even accepting that the FEA Models are relevant, this court concludes that Plaintiffs have
not established that they are necessary in this action. As discussed above, GM has produced
electronic CAD drawings of the final design of the truck from which Plaintiffs or their experts
can determine the final structural characteristics of the vehicle at issue. Plaintiffs also have
access to the exact vehicle at issue to use to depict any actual structural failure. In addition,
while potentially subject to cross-examination, Plaintiffs’ expert can generate finite element
analysis from the information already produced by Defendant and the type of alternate design
information that Plaintiffs seek to introduce. 6 See [#96-1 at ¶ 26; #107-1 at ¶¶ 16-17]. Plaintiffs
argue and Dr. Vlahinos testified that it would be slower and more expensive to build a finite
element model than to use one already designed by GM. [#107 at 4; #107-1 at ¶ 16]. While the
court is mindful that Fed. R. Civ. P. 1 requires the Parties and the court to proceed through this
action in a just, speedy and inexpensive manner, this court cannot conclude that Plaintiffs’
articulated desire to gain access to the FEA Model amounts to “need.”
Based on the record before it, and in light of the production of documents and ESI
already made by GM, this court cannot conclude, at this juncture, that access to the FEA Models
themselves are so central to the claims in dispute that their discovery must be compelled.
Accordingly, IT IS ORDERED that:
Plaintiffs’ Motion to Compel Production of General Motors, LLC’s Finite
Element Models for the GMT 900 Series [#87] is DENIED.
DATED: March 17, 2016
BY THE COURT:
s/ Nina Y. Wang
United States Magistrate Judge
While Plaintiffs and their expert do not dispute that the reports resulting from the FEA Models
reflect outputs actually generated by GM, they nevertheless insist the engineering reports are
insufficient, because Dr. Vlahinos testified that “with a finite element model, the simulation can
be re-run to generate output data.” [Id.]. But Plaintiffs and their expert have made no showing
that this re-generation of output data would accurately reflect what GM engineers did (and then
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