Timm et al v. Goodyear Tire and Rubber Company et al

Filing 199

OPINION AND ORDER: The Court hereby GRANTS the Motion to Strike Plaintiffs Reply to Defendant Goodyear Dunlop Tires North America, Ltd.s and Harley-Davidson Motor Company Group, LLCs Responses to Plaintiffs Motion to Compel 180 and DENIES as moot Plaintiffs Motion Requesting Leave of Court to Seal Reply 175 . The Court will accept the redacted copy of the reply brief, on the docket as an exhibit to 175 . The Court STRIKES the reply 176 and its exhibits and will not consider any of the i nformation or arguments includedfor the first time in this reply. The Court DENIES the Motion to Compel 144 and 145 . The Court hereby ORDERS Harley-Davidson and GDTNA to FILE, on or before January 8, 2016, an itemization of its costs and fees, including attorneys fees, incurred in opposing the Motion to Compel along with argument as to why those expenses are reasonable in this situation, with Plaintiffs to FILE responses to the requests for expenses on or before January 25, 2016.The Court hereby DENIES as moot the Motion for Hearing on Plaintiffs Motion toCompel 178 and Plaintiffs Uncontested Motion for Hearing/Ruling on Motion to Compel Additional Discovery for Defendant Goodyear Dunlop Tires North America, LTD and Defendant Harley-Davidson Motor Company Group, LLC 187 . The Court WARNS Plaintiffs that future extraneous filings may be stricken from the record. Signed by Magistrate Judge John E Martin on 12/17/2015.(rmn)

UNITED STATES DISTRICT COURT
NORTHERN DISTRICT OF INDIANA
HAMMOND DIVISION
DONALD N. TIMM and
MARY K. TIMM,
Plaintiff,

)
)
)
)
v.
) CAUSE NO.: 2:14-CV-232-PPS-JEM
)
GOODYEAR DUNLOP TIRES
)
NORTH AMERICAN, LTD., et al.,
)
Defendants,
)
___________________________________ )
)
TEGOL, INC.,
)
Crossclaimant,
)
)
v.
)
)
BEIJING RIDER FASHION SPORT,
)
LTD., et al.,
)
Crossclaim Defendants.
)
OPINION AND ORDER
This matter is before the Court on:
(1) Motion to Compel, filed twice [DE 144 and 145], by Plaintiffs on July 10, 2015;
(2) Plaintiffs’ Motion Requesting Leave of Court to Seal Reply [DE 175], filed by Plaintiffs
on August 7, 2015;
(3) Motion for Hearing on Plaintiffs’ Motion to Compel [DE 178], filed by Defendants
Goodyear Dunlop Tires North America (“GDTNA”) and Harley-Davidson on August 10, 2015;
(4) Motion to Strike Plaintiffs’ Reply to Defendant Goodyear Dunlop Tires North America,
Ltd.’s and Harley-Davidson Motor Company Group, LLC’s Responses to Plaintiffs’ Motion to
Compel [DE 180], filed by GDTNA and Harley-Davidson on August 10, 2015; and

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(5) Plaintiffs’ Uncontested Motion for Hearing/Ruling on Motion to Compel Additional
Discovery for Defendant Goodyear Dunlop Tires North America, Ltd. and Defendant HarleyDavidson Motor Company Group, LLC [DE 187], filed by Plaintiffs on September 22, 2015.
I.

Background
On July 8, 2014, Plaintiffs filed a Complaint bringing claims of personal injury and products

liability against multiple defendants for injuries arising out of a motorcycle accident. Plaintiffs’
Amended Complaint was filed on May 22, 2015. Discovery in the case is ongoing.
II.

Analysis
Plaintiffs move to compel documents responsive to one of their requests for production.

Plaintiffs request that their reply brief and attached exhibits be maintained under seal and that the
Court accept a redacted version of the reply on the public docket. Harley-Davidson and GDTNA
request that the Court strike a large portion of the reply and its exhibits.
A.

Motions to Strike and Seal

In the Motion to Compel, Plaintiffs request that the Court compel Harley-Davidson and
GDTNA to produce (a) discovery on Dunlop tires mounted on the rear of a Harley-Davison
motorcycle that suddenly deflated, experienced bead unseating and the sudden loss of control by the
motorcyclist during the last ten years and (b) a privilege log for documents being withheld from
production pursuant to attorney-client privilege, work-product doctrine, or the deliberate process.
In their reply, Plaintiffs request that the Court compel Defendants to produce (a) communications
discussing any alleged or suspected failure or defect in a Dunlop D402 tire mounted on the rear of
a Harley-Davidson Touring or Cruising motorcycle involved in a crash accident; (b) documentary
and photographic results of two specific tests for the D402 tires mounted on a Harley-Davidson

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Touring or Crusing motorcycle; and (c) a privilege log describing documents being withheld from
production and identification of the privilege under which they are being withheld.
GDTNA and Harley-Davidson move to strike Plaintiffs’ reply. They argue that the reply
raises issues that were not the subject of the original Motion to Compel on which there has been no
meet and confer conference and to which GDTNA and Harley-Davidson have not had the chance
to respond. They also request that the Court strike the confidential documents and information
included by Plaintiffs that is subject to the parties’ agreed protective order. Plaintiffs also move to
seal information in the reply that is subject to the protective order and have provided a redacted
version of the reply they assert omits that information. Plaintiffs assert that Defendants have
identified the information as Confidential and have requested that Plaintiffs file the information
under seal.
As has been explained to these parties before, the existence of a protective order does not
mean that the documents protected by it are automatically sealed by the Court. Notwithstanding the
parties’ agreement, the decision of whether good cause exists to file a document under seal rests
solely with the Court, and a motion to file documents under seal must justify the claim of secrecy
pursuant to the applicable legal criteria. Citizens First Nat’l Bank of Princeton v. Cincinnati Ins.
Co., 178 F.3d 943, 9445 (7th Cir. 1999); see also, e.g., Cnty Materials Corp. v. Allan Block Corp.,
502 F.3d 730, 740 (7th Cir. 2007); Baxter Int’l v. Abbott Lab., 297 F.3d 544, 547 (7th Cir. 2002);
Union Oil Co. v. Leavell, 220 F.3d 562, 568 (7th Cir. 2000). However, the information Plaintiffs
seek to seal at the behest of Defendants is also information that Harley-Davidson and GDTNA seek
to have stricken.

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Federal Rule of Civil Procedure 12(f) provides that a “court may strike from a pleading an
insufficient defense or any redundant, immaterial, impertinent, or scandalous matter.” Fed. R. Civ.
P. 12(f). Motions to strike are generally disfavored, but when striking portions of a pleading
“remove[s] unnecessary clutter from the case,” the motion may “serve to expedite, not delay.”
Heller v. Midwhey Powder Co., Inc., 883 F.2d 1286, 1294 (7th Cir. 1989). “[A] court ordinarily will
not strike a matter unless the court can confidently conclude that the portion of the pleading to which
the motion is addressed is redundant or is both irrelevant to the subject matter of the litigation and
prejudicial to the objecting party.” Fed. Nat'l Mortgage Ass’n v. Cobb, 738 F. Supp. 1220, 1224
(N.D. Ind. 1990).
Generally, arguments raised for the first time in a reply brief are deemed waived. Carter v.
Tennant Co., 383 F.3d 673, 679 (7th Cir. 2004). Plaintiffs’ reply brief seeks relief other than that
requested in the initial Motion to Compel and includes new arguments, information that must be
disregarded by the Court. Harley-Davidson and GDTNA have requested that the new information
in the reply, including many of the attached exhibits, much of which they argue is also confidential
information, be stricken. Although the information that Plaintiffs seek to have sealed and GDTNA
and Harley-Davidson seek to have stricken is covered by the parties’ protective order, that does not
mean that it will be automatically sealed by the Court. In this case, however, it appears that all of
the exhibits, in addition to being documents covered by the protective order, relate to arguments
raised for the first time in the reply brief or are communications about discovery that post-date the
initial Motion to Compel. These documents should not be on the docket and are stricken, as are the
portions of the reply that include these new arguments. Because the information that Plaintiffs seek
to have placed under seal is encompassed in the information stricken by the Court at GDTNA and

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Harley-Davidson’s request, the Motion to Seal is made moot. To avoid docket confusion or
unnecessary duplication of filings, the Court will allow the redacted version of the reply brief, on
the docket as an exhibit to the Motion to Seal at [DE 175-1], to remain on the docket and will accept
it as Plaintiffs’ reply brief. To the extent that any information in the redacted version of the reply
brief includes arguments raised for the first time therein, it will be disregarded by the Court.
B.

Motion to Compel

Plaintiffs move to compel discovery responsive to their Request for Production 3: “Any and
all communications, whether by mail, email, or otherwise advising or discussing and [sic] alleged
or suspected failure or defect in a Dunlop D402 tire mounted on the rear of a Harley-Davidson
motorcycle involved in a crash accident.”
Federal Rule of Civil Procedure 26(b)(1) permits discovery “regarding any nonprivileged
matter that is relevant to any party’s claim or defense.” Fed. R. Civ. P. 26(b)(1). Furthermore, as
in effect at the time the Motion to Compel was filed, it provided that “[r]elevant 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). Relevancy has been “construed broadly to
encompass any matter that bears on, or that reasonably could lead to other matter that could bear on,
any issue that is or may be in the case.” Oppenheimer Fund, Inc. v. Sanders, 437 U.S. 340, 351
(1978) (citing Hickman v. Taylor, 329 U.S. 495, 501 (1947)). A party may seek an order to compel
discovery when an opposing party fails to respond to discovery requests or provides evasive or
incomplete responses. See Fed. R. Civ. P. 37(a). A party objecting to the discovery request bears
the burden of showing why the request is improper. See McGrath v. Everest Nat. Ins. Co., 625 F.
Supp. 2d 660, 670 (N.D. Ind. 2008). The Court has broad discretion when deciding whether to

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compel discovery. See Patterson v. Avery Dennison Corp., 281 F.3d 676, 681 (7th Cir. 2002) (citing
Packman v. Chi. Tribune Co., 267 F.3d 628, 646-47 (7th Cir. 2001); Rennie v. Dalton, 3 F.3d 1100,
1110 (7th Cir. 1993)).
Harley-Davidson argues that the Motion to Compel is directed only at GDTNA’s discovery
responses, and that Harley-Davidson and GDTNA are separate defendants with different discovery
responses such that the Motion does not apply to it. Harley-Davidson states that it responded to
Request No. 3, that counsel for Plaintiffs never raised any dispute with Harley-Davidson’s response
prior to filing the Motion to Compel, and that the Motion does not address Harley-Davidson’s
responses. In their reply, Plaintiffs argue that the Motion to Compel is directed at both HarleyDavidson and GDTNA because they made the same requests for production to both parties and sent
correspondence to “the same attorneys because they represent both Defendants.” Although the
docket does reflect that two attorneys are counsel of record for both GDTNA and Harley-Davidson,
GDTNA and Harley-Davidson are separate parties and do not have identical interests in this suit.
The Court will not construe GDTNA’s discovery responses as binding Harley-Davidson, and will
not compel one Defendant to provide discovery responses for another. Accordingly, the Motion to
Compel is denied as to Harley-Davidson.
GDTNA explains that it initially objected to Request No. 3 as unduly burdensome, overly
broad, and seeking information that is irrelevant and privileged, but agreed to search for
communications with a more limited time frame and scope, and that it in fact served a supplemental
response on Plaintiffs reporting that it “ha[d] not located any [communications] between GDTNA
and Harley-Davidson regarding any alleged defects of Dunlop D402 tires built at the same plant
during the time frame from the 23rd week of 2011 through the 23rd week of 2013 that were alleged

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to have been involved in a crash accident while mounted on the rear of a Harley-Davidson
motorcycle.”

GDTNA also reports that it did not receive any communication from Plaintiffs

directed at its supplemental response to Request No. 3 before the Motion to Compel was filed.
Federal Rule of Civil Procedure 37 provides that a motion “for an order compelling
disclosure or discovery . . . must include a certification that the movant has in good faith conferred
or attempted to confer with the person or party failing to make a disclosure or discover in an effort
to obtain it without court action.” Fed. R. Civ. P. 37(a)(1). Northern District of Indiana Local Rule
37-1 provides that a “party filing any discovery motion must file a separate certification that the
party has conferred in good faith or attempted to confer with other affected parties in an effort to
resolve the matter raised in the motion without court action.” N.D. Ind. L.R. 37-1. The Court may
deny a motion to compel if it is not accompanied by a proper certification. Id.
Plaintiffs did not file a certification regarding the parties’ conference pursuant to Local Rule
37-1. They did attach correspondence referring generally to discovery disputes and specifically to
other requests and interrogatories, including some concerns that appear to overlap with the
contentions about Request No. 3, but did not refer to Request No. 3. The Court will not deny the
Motion to Compel solely on the ground that Plaintiffs failed to comply with Local Rule 37-1 and
Federal Rule of Civil Procedure 37, but reminds Plaintiffs of the need to comply with the letter and
spirit of the Rules requiring good faith conferences on discovery issues, including discussion that
specifically addresses the dispute at issue.
In addition to Plaintiffs’ failure to comply with Federal Rule of Civil Procedure 37 and Local
Rule 37-1, the Motion to Compel is also denied on other grounds. GDTNA explains that the model
D402 has been manufactured since approximately 1990, and has been made in a number of

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differenct sizes, with different loadcarrying capacities, and that the many different tires are
dissimilar in design or construction. A request for all communications for all varieties of D402 tires
installed on all Harley-Davidson motorcycles that had crash accidents for more than twenty-five
years, with no limitations or relationship to the design of the tire or motorcycle involved in this
litigation is over-broad and burdensome. Plaintiffs do not explain what is wrong with the search
restrictions imposed by GDTNA in attempts to make the search more feasible or suggest alternative
restrictions to limit its initial request (for example, requesting information regarding substantially
similar tires on similar-model motorcycles for a particular time limit), and do not appear to have
contacted GDTNA to propose or discuss alternative restrictions before filing the instant Motion to
Compel.
In addition, the information requested by Plaintiffs in the Motion to Compel, even before the
additional arguments included in the reply, differs from the inital request made to GDTNA. As
described above, Request No. 3 seeks information about communications discussing the failure of
Dunlop D402 tires on the rear of Harley-Davidson motorcycles involved in crash accidents, but in
the Motion to Compel Plaintiffs request discovery on ALL Dunlop tires, further broadening an
already over-broad request. The Court notes that the request in the reply does include some helpful
modifications, limiting the scope to only ten years and specifying the type of failure about which
they seek information, and suggests that Plaintiffs continue this attempt to narrow their requests to
target them more specifically. See, e.g., Miller UK Ltd. v. Caterpillar, Inc., 17 F. Supp. 3d 711,
721-22 (N.D. Ill. 2014) (“Discovery of matter not ‘”reasonably calculated to lead to the discovery
of admissible evidence” is not within the scope of Rule 26(b)(1).’ The Supreme Court has cautioned
that the requirement of Rule 26(b)(1) that the material sought in discovery be ‘relevant’ should be

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firmly applied, and the district courts should not neglect their power to restrict discovery where
necessary. Failure to exercise control results in enormous costs to the litigants and to the due
administration of justice.”) (quoting Oppenheimer Fund, Inc. v. Sanders, 437 U.S. 340, 352 (1978))
(other citations omitted).
Request No. 3 is over-broad and not reasonably calculated to lead to the discovery of
admissible evidence, and Plaintiffs failed to comply with the spirit or letter of Rule 37 that parties
moving to compel make a good faith attempt to confer on the discovery dispute that is the subject
of the motion.
III.

Conclusion
For the foregoing reasons, the Court hereby GRANTS the Motion to Strike Plaintiffs’ Reply

to Defendant Goodyear Dunlop Tires North America, Ltd.’s and Harley-Davidson Motor Company
Group, LLC’s Responses to Plaintiffs’ Motion to Compel [DE 180] and DENIES as moot
Plaintiffs’ Motion Requesting Leave of Court to Seal Reply [DE 175]. The Court will accept the
redacted copy of the reply brief, on the docket as an exhibit to [DE 175]. The Court STRIKES the
reply [DE 176] and its exhibits and will not consider any of the information or arguments included
for the first time in this reply.
The Court DENIES the Motion to Compel [DE 144 and 145]. Because the motion to compel
was denied, the Court “must, after giving the opportunity to be heard, require the movant, the
attorney filing the motion, or both to pay the party or deponent who opposed the motion its
reasonable expenses incurred in opposing the motion, including attorney’s fees” unless “the motion
was substantially justified or other circumstances make an award of expenses unjust.” Fed. R. Civ.
P. 37(a)(5)(B). Accordingly, the Court hereby ORDERS Harley-Davidson and GDTNA to FILE,

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on or before January 8, 2016, an itemization of its costs and fees, including attorney’s fees, incurred
in opposing the Motion to Compel along with argument as to why those expenses are reasonable in
this situation, with Plaintiffs to FILE responses to the requests for expenses on or before January
25, 2016.
Because the briefing included enough information for the Court to rule on the instant Motion
to Compel, the Court hereby DENIES as moot the Motion for Hearing on Plaintiffs’ Motion to
Compel [DE 178] and Plaintiffs’ Uncontested Motion for Hearing/Ruling on Motion to Compel
Additional Discovery for Defendant Goodyear Dunlop Tires North America, LTD and Defendant
Harley-Davidson Motor Company Group, LLC [DE 187].
The Court also notes that counsel for Plaintiffs regularly files a notice along with each
motion, adding significant length and confusion to the docket. The Court directs Plaintiffs to the
Local Rules for the Northern District of Indiana, which do not contemplate the filing of a notice of
motion. The Court WARNS Plaintiffs that future extraneous filings may be stricken from the
record.
SO ORDERED this 17th day of December, 2015.
s/ John E. Martin
MAGISTRATE JUDGE JOHN E. MARTIN
UNITED STATES DISTRICT COURT
cc:

All counsel of record
Defendant Paul Comeau, pro se

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