Florer v. Ford Motor Service Company Inc., et al.

Filing 172

MEMORANDUM DECISION & ORDER - Plaintiff's Objections to the Magistrate Judge's Order granting in part and denying his motion to compel responses, as related to Request for Production Nos. 2 and 3 (Dkt. 146 ), are SUSTAINED in part and OVER RULED in part. Plaintiff's Objections to the Magistrate Judge's Order, which granted in part, and denied in part, his motion to compel responses to Interrogatory Nos. 1, 4, and 5 (Dkt. 148 ), are SUSTAINED in part and OVERRULED in part. Pl aintiff's Objections to the Magistrate Judge's Order denying his motion to terminate or limit his deposition (Dkt. 149 ) are OVERRULED. Defendant is therefore ordered to appear for a deposition, which may last up to seven hours, by no late r than December 15, 2023. Plaintiff's Objection related to the vehicle inspection (Dkt. 150 ) is DEEMED MOOT by virtue of this Court's earlier ruling related to that inspection. See Dkt. 169 . Plaintiff's Objection related to Lithia Ford's purported default (Dkt. 161 ) is DEEMED MOOT by virtue of this Court's earlier ruling, which adopted Judge Grasham's Report & Recommendation related to Lithia Ford. See Dkt. 170 . Signed by Judge B Lynn Winmill. (caused to be mailed to non Registered Participants at the addresses listed on the Notice of Electronic Filing (NEF) by (hs)

UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF IDAHO
D. SCOTT FLORER,

Case No. 1:22-cv-00449-BLW-DKG

Plaintiff,

MEMORANDUM DECISION &
ORDER

v.
FORD MOTOR COMPANY, INC.;
LITHIA FORD OF BOISE, INC.;
RHETT SHEEDER; RICH STUART;
ANGELO SANCHEZ; TRAVIS
STEAR; and LISA CRABTREE,
Defendants.

INTRODUCTION
On November 16, 2023, United States Magistrate Judge Debora K. Grasham
heard argument on various pending discovery motions in this matter and then
issued oral rulings resolving them. Plaintiff D. Scott Florer has objected to many of
those rulings. See Dkts. 146, 148, 149, 150, 161. The Court has reviewed the
underlying motions, the transcript of the November 16, 2023 hearing, which
contains the oral rulings, and Mr. Florer’s objections. For the reasons explained
below, the Court will overrule most of Mr. Florer’s objections but will sustain
objections related to Defendant Ford Motor Company, Inc.’s obligation to produce
documents within its “possession.” As explained below, parties responding to
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requests for production of documents are obligated to produce documents in their
“possession, custody, or control.”
STANDARD OF REVIEW
Under 28 U.S.C. § 636(b)(1)(A), a magistrate judge may hear and determine
any pretrial matter before the court, with certain exceptions not relevant here. This
Court may reconsider a magistrate judge’s ruling on such a matter if that ruling is
“clearly erroneous or contrary to law.” 18 U.S.C. § 636(b)(1)(A).
DISCUSSION
The parties are engaged in discovery efforts in this matter, and the deadline
for completing fact discovery is approaching. The disputes currently before the
Court relate to the Magistrate Judge’s oral ruling relating to (1) Mr. Florer’s
motion to compel responses to certain interrogatories and requests for production
of documents, and (2) Mr. Florer’s motion to terminate or limit his deposition. The
Court will resolve each objection in turn.
A. Disputes Related to Plaintiff’s Requests for Production of Documents
1. Request for Production No. 2 – Engine Assembly Specifications
The first dispute relates to Mr. Florer’s Request For Production No. 2, which
asked Defendant Ford Motor Company, Inc. (FMC) to produce the following
documents:
Produce the FMC 2018 to 2020 Gen. III 5.0 4V Coyote Long Block
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engine (FMC Motorcraft Part No. DL3Z 6006) Factory
remanufactured service engine assembly specifications listing the
specs for each internal part of the engine assembly including the long
block itself and the heads with a certification from the custodians of
such records (Pursuant to F.R.C.P. 26-37:F.R.E. Titles 8-9).
See Dkt. 74, at 2. FMC responded to the request with this objection:
Ford objects on the basis that the description of the engine does not
match the part number provided, and as Ford has not been provided with
any receipt or documentation regarding the engine purchased by the
Plaintiff Ford cannot determine the documents that would be relevant to
Plaintiff’s claim. Ford also objects to this request as it is unduly
burdensome and overly broad because this information is equally
available to Plaintiff online at https://performanceparts.ford.com/.
Further, this is a case under Breach of Contract and Breach of Warranty
and the subject matter of this case revolves exclusively around the
subject vehicle and engine. The specifications of the engine are
irrelevant to the claims made in the Complaint.
Id.
During the hearing, the Magistrate Judge ordered FMC to produce
responsive documents, as follows: “The Court will order Defendant FMC to
produce the information related only to the Plaintiff’s engine, and specifically only
that information that they find relevant that is in their possession.” Hearing Tr.,
Dkt. 168, at 21:23 to 22:1.
Plaintiff objects to this ruling for two reasons. First, he objects because FMC
was ordered to produce responsive documents only to the extent such documents
were in FMC’s “possession.” He suggests that “FMC’s Authorized Dealer
who[]remanufactured the engine at issue” should also be ordered to produce
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documents. See Dkt. 146, at 4. The Court will not order a non-party to produce
responsive documents. But the Court will clarify that FMC must produce all
responsive documents, as narrowed in subject matter by the Magistrate Judge, that
are in its possession, custody, or control. FMC should not limit itself only to
documents within its “possession” as the relevant rule calls for the responding
party to produce documents in its “possession, custody, or control.” See Fed. R.
Civ. P. 34. To that limited extent, the Court will sustain Mr. Florer’s objection.
Otherwise, the Court will overrule Mr. Florer’s objections as the Magistrate
Judge’s order was not clearly erroneous or contrary to law. Rather, she
appropriately narrowed and focused the category of responsive documents to be
produced.
2. Request for Production No. 3 – “Noise”
The next dispute relates to Mr. Florer’s Request for Production No. 3, which
asked Defendant FMC to produce the following documents:
Produce the results of e-discovery key word searches for the following
words “Compare to like vehicle same noise” and “no abnormal noise”
See Dkt. 74, at 3. FMC responded with this objection:
Ford objects to this Interrogatory as overly broad, unduly burdensome
and seeking irrelevant documents, particularly because it is not limited
to the allegations of the Complaint, any particular consumer
complaint, or to a reasonable or relevant timeframe, and because
Plaintiff’s request does not describe the information sought with
required specificity. Further, this is a case under Breach of Contract
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and Breach of Warranty and the subject matter of this case revolves
exclusively around the subject vehicle. (Doc. 47.) In addition, this
Request seeks information related to other complaints, the facts and
circumstances of which are substantially dissimilar to those of the
present case, and which are not within the scope of discovery as set
forth in the Discovery Plan (Doc. 47). The facts and circumstances
surrounding claims or incidents vary widely and depend on various
factors that are not included in this Request, including the care and
use of the vehicle, installation of aftermarket parts, and the misuse or
abuse of the vehicle. Ford also objects to this Request because it is
broad enough to seek documents protected by the attorney-client
privilege and/or work product doctrine, as this Request could seek
documents and communications that reflect the legal advice, mental
impressions, and legal strategies prepared for anticipated or pending
litigation by Ford’s attorneys, Ford’s Office of the General Counsel,
or those working under their direction and supervision.
Id. at 3-4.
The Magistrate Judge denied Mr. Florer’s motion to compel, reasoning that
even after the parties attempted to narrow the request, it was overly broad and not
proportional to the claims and defenses in this case. She explained that the
language of the request “is so overbroad, it is not limited to any vehicle, make,
model, model year, a time frame, the location or even database to search.” Nov. 16,
2023 Tr., Dkt. 168, at 22:12-14.
Mr. Florer objects to this ruling. He points out that the terminology used in
his request “are the words used on the invoices . . . to assert that there is not an
engine defect.” See Dkt. 146, at 2. He also points to this verbiage in his complaint:
Only after Pre-sale and Sale of the warranted consumer product have
Defendant Warranters disclosed their Written-Warranty/LimitedMEMORANDUM DECISION & ORDER - 5

Warranty/Express-Warranty terms “compare to like vehicle same noise”
and “no abnormal noise,” thus, a misrepresentation to the Consumer
because the aforesaid terms constitute an actual Warranty and are not part of
the bargain.
Had these terms been disclosed Pre-sale/sale, the Plaintiff would not have
transacted business with the Defendants, nor would the Plaintiff had done so
had the Defendants disclosed that “abnormal noise” is not covered by their
Reman Engine Warranty.
Am. Compl., Dkt. 65, at 17 (emphasis added).
But even with this understanding of plaintiff’s allegations, the request, as
worded, is overly broad. As the Magistrate Judge correctly pointed out, it does not
contain any limits as to time or type of vehicle. Thus, the Magistrate Judge did not
clearly err in denying the motion to compel regarding Request for Production No.
3. Accordingly, the Court will overrule Mr. Florer’s objection.
B. Disputes Related to Plaintiff’s Interrogatories
1. Interrogatory Nos. 1 and 4 – Internal Engine Parts
The next dispute relates to Plaintiff’s Interrogatory Nos. 1 and 4, which
posed the following questions to FMC:
Interrogatory No. 1
What internal parts, including the Long Block itself, of the 2018 to 2020 Gen.
III 5.0 Coyote 4V Long Block Remanufactured Engine Assembly; Motorcraft
part no. DL3Z 6006 are remanufactured?
Interrogatory No. 4
Describe the process used as to who machined the Long Blocks and the internal
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parts for the long blocks of the 2018-2020 Gen. III 5.0 Coyote 4V Long Block
Motorcraft part no. DL3Z 6006?
See Dkt. 81, at 2, 5.
FMC responded to Interrogatory No. 1 with the following objection:
Ford objects because this Interrogatory is overly broad and seeks
irrelevant information, as this was not the engine purchased by
Plaintiff, and because identification of which components of the engine
purchased by Plaintiff were remanufactured has no bearing on the
issues of this case. To prove a claim against Ford, Plaintiff needs to
establish that a warranty existed, what the terms of that warranty were,
and that Ford failed to repair or replace defective components in a
reasonable number of time or attempts. Identification of certain parts
as remanufactured has no tendency to make any relevant fact more or
less likely.
Id. at 2. FMC did not answer Interrogatory No. 4, either. Instead, it objected on the
same grounds as it did to Interrogatory No. 1, though this time FMC said “the
process used to machine long blocks” has no bearing on the issues in this case. Id.
at 5-6.
At the hearing, Judge Grasham partly granted Mr. Florer’s motion to compel
responses to these interrogatories. She ordered FMC to provide responses that
relate specifically to the engine in Plaintiff’s vehicle. Specifically, as to
Interrogatory No. 1, the Magistrate Judge issued the following ruling:
I’m going to order that Ford file a response to the extent it has any
information responsive to Plaintiff’s interrogatory No. 1 that relates
specifically to Mr. Florer’s engine. Not any other engine. Not a Gen
III engine and it only relates to 2020 and not a longer time frame since
that is when his engine was at issue.
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So with that limitation, now, if Ford doesn’t have information, they
just have to say we've searched and we do not have information
specific to plaintiff’s interrogatory 1 related to Mr. Florer's specific
engine in 2020. If they do, then they can respond accordingly.
Dkt. 168, at 45:7-13. And as to Interrogatory No. 4, the Magistrate Judge issued
the following ruling:
So to the extent that Ford Motor Company has any information about
the process used as to who machined the long blocks and internal
parts of the long block of Mr. Florer’s specific engine, then they can
produce that information to Mr. Florer.
Ford Motor Company is not required to search that information
beyond what is in its custody and control. Nor is it required to produce
any information that might be relevant to any other engine other than
Mr. Florer’s.
Id. at 46:16-24.
Mr. Florer objects to these rulings. He states that “the entire assembly line
should be produced for the engine for the production year of 2020.” Dkt. 148, at 4.
He further objects on the grounds that “the magistrate said documents only in
FMC’s possession need be produced when in fact it is FMC’s Ford Authorized
Dealer who[] remanufactured the engine at issue.” Id.
The Court will first address plaintiffs’ objection related to his assertion that
FMC should answer a broader question related to the “entire assembly line . . . for
the production year of 2020.” The Court will overrule that objection as the
Magistrate Judge did not clearly err in narrowing the scope of the requested
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information.
The second objection doesn’t precisely track the Magistrate Judge’s ruling,
because she issued an oral ruling relating only to interrogatories. She did not order
FMC to produce documents identified within the response to Interrogatory Nos. 1
and 4. Nevertheless, the Magistrate Judge’s rulings have a domino effect because
Mr. Florer served two document requests that corresponded with Interrogatory
Nos. 1 and 4. Specifically, Request for Production No. 9 stated: “If documents are
part of the answer to Interrogatory No. 1 above, produce them certified by the
custodian.” See Dkt. 81, at 2. Request No. 13 sought identical documents as related
to Interrogatory No. 4. See id. at 6. Accordingly, given that the Magistrate Judge
has ordered FMC to respond to Interrogatory Nos. 1 and 4, this Court will order
FMC to produce any documents within its possession, custody, or control that are
identified in those answers. As a point of clarification, however, in answering
Interrogatory Nos. 1 and 4, FMC will be responding to those questions as they
were narrowed by the Magistrate Judge. In that respect, then, the Court will sustain
Mr. Florer’s objection to the Magistrate Judge’s ruling, but it will overrule the
objections in all other respects, as Mr. Florer has not shown that the Magistrate
Judge clearly erred or issued an order that is contrary to law.
2. Interrogatory No. 5 – Technical Service Bulletins
The next dispute relates to Interrogatory No. 5, which poses the following
MEMORANDUM DECISION & ORDER - 9

question to FMC: “Have any Ford technical service bulletins been issued as to the
Gen III 5.0 Coyote 4V Long Block Remanufactured Engine Assembly from 20182023?” Dkt. 81, at 6. FMC objected to this interrogatory, as follows: “Ford objects
because this Interrogatory is overly broad and seeks irrelevant information, as this
was not the engine purchased by Plaintiff.” Id. During the hearing, defense counsel
further explained that even if the question was limited to the engine in Plaintiff’s
vehicle, it still is “not limited to any specific type of issue and this case appears to
be limited to some sort of noise and if we’re to produce all sorts of service
bulletins that have nothing to do with this case, that would be unduly burdensome.”
Dkt. 168, at 38:13-16.
The Magistrate Judge denied Mr. Florer’s motion to compel a response,
explaining that the interrogatory, as posed, was overly broad in that it “has no
specification as to Ford Motor Company as to what specifically are related to the
claims in this case.” Dkt. 168, at 47:4-8. The Magistrate Judge further concluded
that the request was not proportional and was overbroad and unduly burdensome.
Id. Mr. Florer objects to the Magistrate Judge’s ruling on the grounds that the
information sought could be relevant to the machining process for the remanufactured parts at issue in this lawsuit. See Dkt. 148, at 4. The Court will
overrule this objection, however, as the Magistrate Judge’s ruling does not reflect
clear error, nor is it contrary to law.
MEMORANDUM DECISION & ORDER - 10

C. Plaintiff’s Motion to Terminate or Limit his Deposition
The final issue relates to defendants’ efforts to depose Mr. Florer. Earlier,
Mr. Florer unilaterally terminated his deposition on grounds that defense counsel
was “embarrassing” and “annoying” “the witness” See Oct. 4. 2023 Depo. Tr., Dkt.
117-1 at 52:5-12.1 Shortly after ending his deposition, Mr. Florer filed a written
motion to terminate or limit the deposition. See Dkt. 111. Judge Grasham denied
that motion during the November 16, 2023 hearing. See Dkt. 168, at 60:21-22. She
further noted that during Mr. Florer had “not responded appropriately in answering
... legitimate questions posed by the defendant” during the deposition. Id. at 60:1521.
Mr. Florer asserts various objections to Judge Grasham’s ruling, as follows:
(1) He objects because Judge Grasham did not explicitly state that
compelling him to sit for a second deposition would lead to the discovery of any
admissible evidence.
(2) He says Judge Grasham didn’t consider the time he has already spent
either being deposed, or showing up at a previously scheduled deposition, which

1

Defendant also asserted that Lithia Ford of Boise, Inc. should not be allowed to
participate in the deposition as that entity was in default, but the Court has since denied Mr.
Florer’s motion for a default judgment against Lithia Ford.

MEMORANDUM DECISION & ORDER - 11

had to be rescheduled after the court reporter didn’t show up.
(3) He says he didn’t have a chance to review the transcript from his first
deposition before “the court reporter certified it and sold it to Lithia Ford of Boise
and FMC.” Dkt. 149, at 4.
(4) He says his deposition should be limited in scope to “to the claims in this
case that are a[n] eighty seven (87) day window from the consumer contact with
the Ford Authorized Dealer Lithia Ford of Boise to the new engine failure at 2,400
miles on the new engine before the first required oil/filter change.” Id.
The Court will overrule all of these objections, as none show Judge Grasham
issued an order that is clearly erroneous or contrary to the law. She acted well
within the law in denying the motion to terminate the deposition and in ordering
Mr. Florer to appear for another deposition, for a period of up to seven hours.
Although Mr. Florer says the Court should deduct the time he has already spent
being deposed, Federal Rule of Civil Procedure 30(d)(1) allows the Court to extend
the 7-hour durational limit. See Fed. R. Civ. P. 30(d)(1) (indicating that depositions
are limited to “1 day of 7 hours” “unless otherwise . . . ordered by the court.). Fed.
R. Civ. P. 30(d)(1). Here, given what has transpired thus far, allowing additional
time was entirely proper. And, otherwise, the Court is not persuaded that Judge
Grasham should have limited the subject-matter of the deposition along the lines
Mr. Florer recommends. Finally, the Court agrees with Judge Grasham’s
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assessment of Mr. Florer’s conduct during the October 4, 2023 deposition. For all
these reasons, the Court will overrule Mr. Florer’s objections to Judge Grasham’s
order denying the motion to terminate or limit his deposition.
ORDER
IT IS ORDERED that:
1. Plaintiff’s Objections to the Magistrate Judge’s Order granting in part
and denying his motion to compel responses, as related to Request for
Production Nos. 2 and 3 (Dkt. 146), are SUSTAINED in part and
OVERRULED in part as described above.
2. Plaintiff’s Objections to the Magistrate Judge’s Order, which granted in
part, and denied in part, his motion to compel responses to Interrogatory
Nos. 1, 4, and 5 (Dkt. 148), are SUSTAINED in part and
OVERRULED in part as described above.
3. Plaintiff’s Objections to the Magistrate Judge’s Order denying his motion
to terminate or limit his deposition (Dkt. 149) are OVERRULED.
Defendant is therefore ordered to appear for a deposition, which may
last up to seven hours, by no later than December 15, 2023.
4. Plaintiff’s Objection related to the vehicle inspection (Dkt. 150) is
DEEMED MOOT by virtue of this Court’s earlier ruling related to that
inspection. See Dkt. 169.
MEMORANDUM DECISION & ORDER - 13

5. Plaintiff’s Objection related to Lithia Ford’s purported default (Dkt. 161)
is DEEMED MOOT by virtue of this Court’s earlier ruling, which
adopted Judge Grasham’s Report & Recommendation related to Lithia
Ford. See Dkt. 170.
DATED: December 7, 2023
_________________________
B. Lynn Winmill
U.S. District Court Judge

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