Rasnic et al v. FCA US LLC
Filing
86
MEMORANDUM AND ORDER granting in part 72 Defendant's Motion to Compel Production of Plaintiffs' Vehicle for a Private, Non-Destructive Inspection. See order for details. Signed by Magistrate Judge Gwynne E. Birzer on 8/14/18. (adc)
IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF KANSAS
LAWRENCE RASNIC, et al.,
Plaintiffs,
v.
FCA US LLC,
Defendant.
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Case No. 17-2064-KHV-GEB
MEMORANDUM AND ORDER
This matter is before the Court on defendant FCA US LLC’s Motion to Compel
Production of Plaintiffs’ Vehicle for a Private, Non-Destructive Inspection (ECF No. 72).
Having reviewed the briefs of the parties (ECF Nos. 72, 73, 74, 76, 77), the Court is
prepared to rule. For the reasons set forth below, Defendant’s motion is GRANTED in
part.
I.
Background1
Plaintiffs Lawrence Rasnic and Rebeca Lopez-Rasnic purchased a new 2013
Dodge Dart automobile in June 2013, which was manufactured by defendant FCA US
LLC, formerly known as Chrysler Group LLC. (First Amended Complaint, ECF No. 23
¶¶ 16, 88.) Less than three years later, Plaintiffs noticed issues with the car’s uConnect
The information recited in this section is taken from the pleadings (see Pls.’ Class Action
Petition, ECF No. 1-1; First Amended Class Action Complaint, ECF No. 23; Answer, ECF No.
42); from District Judge Kathryn H. Vratil’s Memorandum and Order ruling on the motion to
dismiss (ECF No. 39), and from the briefs regarding the Motion to Compel (ECF Nos. 72-74, 76,
77). This background information should not be construed as judicial findings or factual
determinations unless specifically stated.
1
touchscreen “infotainment” system, including the touchscreen freezing and randomly
blacking out. (Id. ¶ 95-99.) Plaintiffs sought service at the local dealership, and the
touchscreen was eventually replaced. However, the replacement touchscreen developed
the same problem. (Id. ¶¶ 103-104.) After the vehicle’s touchscreen was replaced a
second time, Plaintiffs claim the problems magnified and began impacting other
mechanisms in the car, including the heating and air conditioning and the navigation
systems.
(Id. ¶ 121.)
After multiple attempted repairs, at least four replacement
touchscreens, and numerous service visits, Plaintiffs continue to experience problems
with the uConnect touchscreen in their Dodge Dart. (See generally id., and ¶ 153.)
Plaintiffs contend other owners of Darts, and other Dodge vehicles of model years
2013 and newer, have experienced strikingly similar problems. (Id. at 24-28.) They
propose to represent statewide and/or national classes of individuals who purchased or
leased cars with an 8.4-inch uConnect infotainment system on or after January 12, 2013.
(Id. ¶ 181.)
According to Plaintiffs, by providing vehicles with the defective
infotainment systems, Defendant violated the Magnuson-Moss Warranty Act
(“MMWA”)2 (Claim 1); breached the implied warranty of merchantability (Claim 2); and
violated the Kansas Consumer Protection Act3 (Claim 3). (Id. ¶1; id. at 32-38; see also
Mem. and Order, ECF No. 39.)
Along with multiple affirmative defenses claimed, Defendant denies any uConnect
system is defective and contends the alleged defect does not “substantially impair the use,
2
3
15 U.S.C. § 2301 et seq.
K.S.A. § 50-623 et seq.
2
value, or safety of the vehicles.” (ECF No. 42 at 22.) Defendant further argues, in the
event it is found to owe Plaintiffs or any putative class member damages for any defect, it
is entitled to a setoff for the plaintiffs’ use of their vehicles.
Plaintiffs initially filed their case in the Wyandotte County District Court of
Kansas. (Petition, ECF No. 1-1.) Defendant timely removed the case to this federal
court, citing diversity jurisdiction (Notice of Removal, ECF No. 1), and Plaintiffs filed a
First Amended Complaint. (ECF No. 23.) Defendant then filed a motion to dismiss
Plaintiffs’ complaint on multiple grounds (ECF No. 30). The district court dismissed
Plaintiffs’ KCPA claims based on Defendant’s nationwide advertising, namely Claims
3(a)-(d) and (f). (Mem. and Order, ECF No. 39, at 14.) The district court also dismissed
Plaintiffs’ “unconscionable acts” KCPA Claims 3(g) through 3(i), because Plaintiffs
failed to allege unconscionability (Id. at 16), and struck Plaintiffs’ nationwide allegations
(Id. at 18). The following claims remain: the MMWA claim (Claim 1), breach of the
implied warranty of merchantability (Claim 2), and the KCPA express warranty claim
(Claim 3(e)). (Id. at 19.)
II.
Motion to Compel Production (ECF No. 72)
Arguing Plaintiffs’ vehicle is the “most crucial piece of evidence in this case,”
Defendant sent its Request for Production No. 62 on February 16, 2018, asking Plaintiffs
to produce their vehicle “for a private inspection by FCA US at an FCA US authorized
dealership chosen by” Plaintiffs, within 90 days of Plaintiffs’ response to interrogatories
seeking information about the nature of the defect. (ECF No. 74-2 at 2.) In Plaintiffs’
3
response to the RFP, dated March 19, 2018, Plaintiffs answered without objection,
stating, “We will make our vehicle available for same.” (ECF No. 74-2 at 2.)
On April 2, 2018, Defendants sent a letter to Plaintiffs which proposed specific
arrangements for the inspection, including:
(1) Plaintiffs will select the FCA US authorized dealership where the
inspection will take place. On a mutually agreeable date, Plaintiffs will
drop off the vehicle at the designated dealership by 9:00 a.m. and the
vehicle will be available for pick up by the close of business.
(2) FCA US will provide Plaintiffs with a rental vehicle for the day of the
inspection.
(3) FCA US will also take a short test drive of each vehicle. The test drive
will take place under normal driving conditions and Plaintiffs will be
reimbursed for mileage using standard reimbursement rates or, at their
election, have $10 worth of gas put in the vehicle.
(4) Since the inspection will be non-destructive, FCA US will conduct the
inspection outside the presence of Plaintiffs and their representatives.
(ECF No. 74 ¶ 6; ECF No. 74-3 at 4-5.) In an email exchange dated April 6, 21018,
Plaintiffs responded they were unwilling to permit a private inspection, and they
“intend[ed] on having a representative present the entire day and a second person
videotaping the entire inspection.” (ECF No. 74-4 at 2.) The parties then conferred by
telephone on April 10, and apparently discussed the equipment and general process to be
used by Defendant during the inspection (see ECF No. 74 ¶¶ 9-11), but were unable to
agree upon the terms of the inspection. Defendant filed the instant motion. (ECF No. 72.)
4
A.
Duty to Confer
Throughout the briefing, the parties demonstrated their attempts to resolve their
differences through both written correspondence and telephonic discussion. Therefore,
the Court is satisfied they have sufficiently conferred as required by D. Kan. Rule 37.2
and Fed. R. Civ. P. 37(a)(1).
B.
Discussion
Defendant contends the privacy of its inspection is warranted under both work
product and consulting expert protections. Additionally, it argues fairness requires that it
be given the opportunity to “examine, without intrusion, critical evidence in the case.”
(ECF No. 73 at 2.) Defendant maintains it discussed by telephone with Plaintiffs its plan
to connect a wiTECH4 device to the vehicle to download its diagnostic history, and test
drive the vehicle to test the functionality of the uConnect system. (ECF No. 77 at 2.)
Defendant argues “every FCA US-authorized dealership has [a wiTECH] and Plaintiffs
can obtain” the same equipment for their own testing. (Id.)
Plaintiffs do not agree the inspection of their vehicle invokes either the work
product or consulting expert protections. Additionally, they contend because Defendant
has a proprietary relationship with the uConnect system, it is conceivable Defendant has
special access or tools at its disposal to make changes to the system, unbeknownst to
Plaintiffs. Although they complain Defendant refused to disclose their testing methods in
4
Plaintiffs do not mention the wiTECH device in their briefing, and Defendant only describes it
in general terms as a device “pod” which apparently connects to the vehicle in some fashion and
is used to “download the diagnostics data” from the auto. (See ECF No. 74 ¶ 11.)
5
advance, Plaintiffs did not respond to Defendant’s claims of discussing the same during
their April 10th telephone call. Essentially, Plaintiffs argue there is no way for them to
be sure the testing is truly non-destructive, or to ensure any loss of data as a result of
Defendant’s inspection.
Plaintiffs contend the case law on which Defendant relies
involves simpler, tangible items, and not complex consumer electronic devices. In their
Response to Defendant’s motion, Plaintiffs propose either their representative attend and
document Defendants’ inspection, or—for the first time—suggest a joint inspection by a
neutral expert, performed pursuant to a jointly-submitted protocol. (ECF No. 76 at 5-6.)
1.
Legal Standards
Trial “[c]ourts are given broad discretion to control and place appropriate limits on
discovery.”5 And “a magistrate [judge] is afforded broad discretion in the resolution of
non-dispositive discovery disputes.” 6 In exercising this discretion, the Court reviews the
discovery standards outlined in Fed. R. Civ. P. 34 and 26, which the parties agree provide
the primary backdrop for review of Defendant’s request.
a.
Overview of Applicable Rules
At the outset, implicated in a request for inspection is Federal Rule of Civil
Procedure 34. Rule 34 permits a party to request another party “to produce and permit
the requesting party or its representative to inspect, copy, test, or sample” “any
5
Semsroth v. City of Wichita, No. 06-2376-KHV-DJW, 2007 WL 2287814, at *1 (D. Kan. Aug.
7, 2007) (citing Kutilek v. Gannon, 132 F.R.D. 296, 297 (D. Kan.1990) (discussing whether to
stay discovery).
6
In re Urethane Antitrust Litig., No. 04-1616-JWL, 2014 WL 61799, at *1 (D. Kan. Jan. 8,
2014) (citing A/R Roofing, L.L. C. v. Certainteed Corp., 2006 WL 3479015, at *3 (D. Kan. Nov.
30, 2006) (other internal citations omitted).
6
designated tangible thing” in the responding party’s possession, custody or control.”7 A
request must describe with particularity the item to be inspected, and specify a reasonable
time, place, and manner for the inspection.8 The responding party must respond in
writing within thirty days of being served with the request, by either stating the
inspection will be permitted, or by stating its objections with specificity.9
The party
seeking an inspection under Rule 34 may move to compel an inspection when the other
party “fails to respond that inspection will be permitted—or fails to permit inspection—as
requested.”10 “Objections that a responding party fails to initially raise in the answer or
response to the discovery request are deemed waived.”11
Although the parties do not question the relevancy of Defendant’s request, any
request served pursuant to Rule 34 is explicitly governed by the scope of discovery
outlined in Rule 26(b). This rule permits discovery of “any non-privileged matter that is
relevant to any party’s claim or defense and proportional to the needs of the case” and
“need not be admissible in evidence in order to be discoverable.”12
b.
Work Product and Consulting Expert Protections
As a part of its limits on discovery, Rule 26(b) outlines protections for both
attorney work product and specific protections surrounding experts. Analysis of the work
7
Fed. R. Civ. P. 34(a).
Fed. R. Civ. P. 34(b)(1).
9
Fed. R. Civ. P. 34(b)(2).
10
Fed. R. Civ. P. 37(a)(3)(B)(iv).
11
Hopkins v. Wilson County Bd. of Comm’rs, No. 15-2072-CM-TJJ, 2018 WL 3536247, at *3
(D. Kan. July 23, 2018).
12
Fed. R. Civ. P. 26(b)(1); see Violetta v. Steven Bros. Sports Mgmt., LLC, No. 16-1193-JTMGEB, 2017 WL 3675090, at *7 (D. Kan. Aug. 24, 2017).
8
7
product doctrine is governed by the federal standard outlined in Rule 26(b)(3).13
Pursuant to the work product doctrine, “a party may not discover documents and tangible
things that are prepared in anticipation of litigation or for trial by or for another party or
its representative.”14 And, even if the court orders such materials to be produced, “it
must protect against disclosure of the mental impressions, conclusions, opinions, or legal
theories of a party’s attorney or other representative concerning the litigation.”15
Similarly, Rule 26(b)(4) provides protection for communications between a
party’s attorney and its expert witnesses,16 as well as protection for “facts known or
opinions held” by a non-testifying, consulting expert.17
c.
Appropriateness of Testing
The parties do not dispute the general propriety of Defendant’s request to inspect
Plaintiffs’ vehicle, and the Court finds such a “hands-on inspection and testing is critical
to a fair trial and due process” for Defendant.”18 But because the appropriateness of the
13
Kannaday v. Ball, 292 F.R.D. 640, 648 (D. Kan. 2013) (citing Frontier Refining, Inc. v.
Gorman–Rupp Co., 136 F.3d 695, 702 n. 10 (10th Cir. 1998) (stating that “the work product
privilege is governed, even in diversity cases, by a uniform federal standard embodied in Fed. R.
Civ. P. 26(b)(3)”) (internal citation omitted)); see also Herrmann v. Rain Link, Inc., No. 111123-RDR, 2012 WL 1207232, at *8 (D. Kan. Apr. 11, 2012) (“federal law governs workproduct issues”).
14
Fed. R. Civ. P. 26(b)(3)(A).
15
Fed. R. Civ. P. 26(b)(3)(B).
16
Fed. R. Civ. P. 26(b)(4)(C).
17
Fed. R. Civ. P. 26(b)(4)(D). See Hale v. Emporia State Univ., No. 16-4182-DDC-TJJ, 2018
WL 953110, *11 (D. Kan. Feb. 20, 2018) (finding a non-testifying expert’s report not
discoverable under Fed. R. Civ. P. 26(b)(4)(D)).
18
Jordan F. Miller Corp. v. Mid-Continent Aircraft Serv., Inc., 139 F.3d 912, 1998 WL 68879
(10th Cir. 1998) (unpublished table decision) (upholding dismissal of plaintiffs’ case as
spoliation sanction; quoting the district court’s conclusion that “hands-on inspection and testing
is critical to a fair trial and due process for the Defendants”).
8
testing is a starting point, a brief discussion is prudent. Although neither this District nor
the Tenth Circuit Court of Appeals has directly addressed the issue, other districts have
analyzed whether to permit testing or inspection differently depending upon whether the
testing is considered to be destructive or non-destructive.19
Several federal district courts have applied a four-factor test to determine whether
to permit destructive testing.20 Here, however, Defendant argues it wishes to utilize only
non-destructive testing. In such instances, courts appear more likely to use a balancing
analysis: that is, the courts “balance the respective interests [of the parties] by weighing
the degree to which the proposed inspection will aid in the search for truth against the
burdens and dangers created by the inspection.”21
19
Ramos v. Carter Exp. Inc., 292 F.R.D. 406, 408-409 (S.D. Tex. 2013) (collecting cases
involving destructive testing and those involving non-destructive testing).
20
Id. at 408 (collecting cases involving destructive testing, including Bostic v. Ammar's, Inc.,
No. 03–146–ART, 2011 WL 251009, at *3 (E.D. Ky. Jan. 26, 2011); Conway v. Kaz Inc., No.
09–CV–10065–DT, 2009 WL 3698561, at *2 (E.D. Mich. Nov. 4, 2009); Guerrero v. Gen.
Motors Corp., No. 1:06–cv–01539–LJO–SMS, 2007 WL 3203014, at *2 (E.D. Cal. Oct. 29,
2007); and Mirchandani v. Home Depot, U.S.A., Inc., 235 F.R.D. 611, 613-14 (D. Md. 2006)).
In Ramos, 292 F.R.D. at 408, the court outlined the four factors as follows: “1) [w]hether the
proposed testing is reasonable, necessary, and relevant to proving the movant's case; 2) [w]hether
the non-movant's ability to present evidence at trial will be hindered, or whether the non-movant
will be prejudiced in some other way; 3) [w]hether there are any less prejudicial alternative
methods of obtaining the evidence sought; and 4) [w]hether there are adequate safeguards to
minimize the prejudice to the non-movant, particularly the movant's ability to present evidence at
trial. The analysis of the third factor—whether there are any less prejudicial alternative methods
of obtaining the evidence sought—necessarily involves inquiring into ‘whether there are any
non-destructive alternative methods of testing.’” (quoting Mirchandani, 235 F.R.D. at 616 (other
internal citations omitted).
21
Ramos, 292 F.R.D. at 409 (citing Hunley v. Glencore Ltd., Inc., No. 3:10–CV–455, 2013 WL
1681836, at *3 (E.D. Tenn. April 17, 2013) (quoting Scruggs v. Int'l Paper Co., 278 F.R.D. 698,
700 (S.D. Ga.2012)).
9
d.
Privacy
After a decision is made that testing may occur, the distinction between
destructive and non-destructive testing becomes even more meaningful when determining
whether an opposing party, or its representative, is permitted to be present during the
testing. Despite a lack of binding case law in this District or Circuit, a 2013 decision
from the Southern District of Texas provides a persuasive collection of federal district
court decisions from across the country, and outlines a “clear distinction” developing
between cases involving destructive testing and those involving nondestructive testing. Where courts have ordered materials to be subject to
destructive testing, they almost unanimously allow the opposing party to
bear witness to the inspection and testing, either in person or via another
avenue, such as videotaping. In contrast, when courts compel production of
materials for non-destructive testing, they habitually refuse to allow the
presence of an opposing party.22
Courts determining whether to permit an opposing party to observe an inspection tend to
balance one party’s desire for privacy versus the potential harm it could cause—much
like the balancing test used to determine whether to allow the testing at the outset. As a
part of this examination, courts have scrutinized the description of the planned tests,23
22
Ramos, 292 F.R.D. at 409 (internal cites omitted; collecting cases from the S. D. Florida, N. D.
Indiana, E.D. Louisiana, E.D. Texas, and others).
23
See, e.g., Davidson v. Apple, No. 5:16-cv-0492-LHK, ECF No. 162 (N. D. Cal., San Jose
Division, Dec. 14, 2017) (unpublished) (focusing on Apple’s failure to describe its planned tests
on subject iPhones); Galitski v. Samsung Telecommunications Am., LLC, No. 3:12-CV-4782-D,
2014 WL 3610789, at *7 (N.D. Tex. July 22, 2014) (discussing safeguards built into the testing
protocol for Galaxy S mobile phones and requiring specific physical testing protocol be utilized);
Blundon v. Goodyear Dunlop Tires N. Am. Ltd., No. 11CV990S, 2012 WL 5473069, at *4
(W.D.N.Y. Nov. 9, 2012), objections overruled, No. 11-CV-990S, 2013 WL 104932 (W.D.N.Y.
Jan. 8, 2013) (discussing the specialized tools and equipment used for testing tires and rims);
Hajek v. Kumho Tire Co., No. 4:08CV3157, 2009 WL 2229902, at *3 (D. Neb. July 23, 2009)
(discussing the special equipment and laboratory facility to be used for testing).
10
any proprietary tests belonging solely to the testing party,24 and assurances by the testing
party that its inspection will truly be non-destructive, ensuring integrity of the evidence
for trial.25 And, although not all courts believe Rule 26(b) is implicated,26 many courts
consider how the inspection—and its potential observation—implicate the work product
or consulting expert protections of the testing party.27 Prejudice to each party arising
from observed testing is compared with prejudice resulting from a private inspection.
2.
Analysis
As referenced above, this issue is a novel one in this District and apparently the
Tenth Circuit. The sole Kansas federal case cited by the parties is largely distinguishable
and provides little direction. In G.D. v. Monarch Plastic Surgery, P.A.,28 the defendant
physician disposed of a computer by leaving it on the curb at his home. When a non24
See Davidson v. Apple, No. 5:16-cv-0492-LHK, ECF No. 162, at 4 (N. D. Cal., San Jose
Division, Dec. 14, 2017) (unpublished) (acknowledging plaintiffs’ concerns that Apple may take
unfair advantage of its opportunity to test the iPhones).
25
See id. (the court was not satisfied “that allowing secret testing will assure no data is destroyed
or altered or deleted”); Ramos, 292 F.R.D. at 411 (reviewing cases; offering procedures the court
may impose to prevent any loss or damage to the evidence while in the custody of defendant or
another third party); Galitski, 2014 WL 3610789, at *8 (ensuring the testing is “calculated to
ensure the integrity of the testing process”).
26
See Davidson, No. 5:16-cv-0492-LHK, ECF No. 162, at 4 (“The court is not convinced that
the work product doctrine is implicated in the testing of plaintiff’s iPhones. What the parties do
with the results is probably work product, but what comes “out” of those instruments is just data
or information.”)
27
See, e.g., Cottrell v. Dewalt Indus. Tool Co., No. 09-cv-5306, 2009 WL 5213876, *2 (N.D. Ill.
Dec. 29, 2009) (analyzing the work product and consulting expert protections and permitting
defendant to conduct private, non-destructive testing); Hajek, 2009 WL 2229902, at *5
(permitting non-destructive testing, and finding that the presence of opposing counsel would
violate work product doctrine); Shoemaker v. Gen. Motors Corp., 154 F.R.D. 235, 236 (W.D.
Mo. 1994) (allowing opposing counsel to attend defendant’s inspection would “reveal protected
attorney work product and consulting expert information” and “intrude impermissibly on the
development of defendant’s case”).
28
G.D. v. Monarch Plastic Surgery, P.A., 239 F.R.D. 641 (D. Kan. 2007).
11
party retrieved and repaired the computer, it discovered the discarded computer contained
confidential patient records, as well as clinic employee data. Plaintiffs filed suit against
the physician and his medical group, contending wrongful disclosure of confidential
medical information.29 Plaintiffs sought to compel production of the computer itself, in
order to “inspect, test and evaluate” its operation. Plaintiffs also sought access to the
non-party patient records to demonstrate defendant’s recklessness with the confidential
information.30 The court analyzed the defendants’ objections on relevancy, overbreadth
and undue burden, and granted plaintiffs’ motion, but excluded the production of files or
records related to non-party patients and defendants’ employees.31 As suggested by
plaintiffs in their motion, the court appointed a neutral computer expert to inspect the
computer, outside the presence of plaintiffs, and to provide a “mirror image” of the hard
drive to the defendants and the court.32 The neutral expert was also ordered to provide a
summary of the computer’s operating system and software applications to both parties.33
Unlike the primary issue in the present case, neither party in G.D. presented arguments
regarding the presence of the opposing party during the inspection, or any work product
protections. Rather, the court’s primary focus was the confidential information contained
on the computer related to non-party patients and defendants’ non-party employees.
29
Id. at 642.
Id. at 643.
31
Id. at 648.
32
Id. at 648-49.
33
Id. at 649.
30
12
Given the lack of binding case law from either this district or the Tenth Circuit
Court of Appeals, the Court looks to other districts for guidance. In addition to G.D.,
Plaintiffs rely upon a decision from the Northern District of California, Davidson v.
Apple,34 and a Northern District of Texas case, Galitski v. Samsung Telecommunications
Am., LLC35, both of which are distinguishable.
In Davidson, the plaintiffs alleged their iPhone touchscreens were defective, and
Apple sought to test the plaintiffs’ phones.36
Although the parties agreed on the
appropriateness of an inspection, and the appointment of a neutral expert to perform the
testing, the parties could not agree on a protocol for doing so.37 Although Apple insisted
its testing would be non-destructive, it refused to disclose the tests it planned to run,
relying on work product protection.
The court found the plaintiffs’ “fears of data
destructions and concerns about Apple taking unfair advantage of its opportunity to test
their iPhones are not to be dismissed lightly,” and distinguished the sophisticated iPhones
from other inspection cases involving items such as tires, hair dryers, and power tools.38
The Davidson court was “not convinced that the work product doctrine [was]
34
Davidson v. Apple, No. 5:16-cv-0492-LHK, ECF No. 162 (N. D. Cal., San Jose Division, Dec.
14, 2017) (unpublished).
35
Galitski v. Samsung Telecommunications Am., LLC, No. 3:12-CV-4782-D, 2014 WL 3610789,
at *7 (N.D. Tex. July 22, 2014)
36
Davidson, No. 5:16-cv-0492-LHK, ECF No. 162, at 1 (N. D. Cal., San Jose Division, Dec. 14,
2017).
37
Id. at 2.
38
Although the Davidson court did not cite case law for each of these items mentioned, this
Court has reviewed various decisions involving these or similar items. See, e.g., Hajek, 2009 WL
2229902, at *1 (testing automobile tires and rims); Cottrell, 2009 WL 5213876, *2 (testing a
power drill); Nationwide Mut. Fire Ins. Co. v. Hamilton Beach/Proctor-Silex, Inc., No. 3-06-CV2109-G, 2007 WL 1058219, at *2 (N.D. Tex. Apr. 9, 2007) (testing of a coffee maker and
microwave oven).
13
implicated in the testing” and, even if it were, the protection “should give way to the
exception in Fed. R. Civ. P. 26(b)(3)(A)(ii), because the court believe[d] plaintiffs have a
substantial need for the information . . . and likely cannot get it by other means.”39 The
court ordered the testing to be completed by a neutral experts, but required both sides to
identify each test in advance, so that the parties had the opportunity to object, and ordered
that test results be given to both sides.40 However, the Davidson court did not address the
distinction between destructive and non-destructive testing, but focused on its distrust of
Apple’s refusal to disclose any information regarding its planned testing methods. And,
although the court did not find the work product doctrine implicated, this court disagrees,
as discussed in more detail below.
In Galitski v. Samsung Telecommunications Am., LLC,41 defendant Samsung
sought to compel plaintiffs to provide their mobile phones for non-destructive testing in a
case arising from allegedly defective Galaxy S mobile phones. Plaintiffs did not oppose
testing but asked that it be performed by a neutral expert to preserve evidence and ensure
the phones were not altered. Samsung did not oppose videotaping or allowing plaintiffs’
representative to attend.42 The court found the non-destructive testing would “aid in the
search for truth about” relevant matters, and granted Samsung’s request for testing,
including the transportation of the phones from California to Texas, videotaping of the
testing, and attendance by plaintiffs’ representative, but imposed specific protocols for
39
Id. at 4-5.
Id. at 5.
41
Galitski, 2014 WL 3610789, at *7.
42
Id.
40
14
the testing.43
The court also ordered Samsung to “provide plaintiffs’ counsel a
reasonably specific description of the tests to be performed and the procedures to be
followed” prior to the testing, to give plaintiffs a chance to object.44 Despite some
similarities, the Galitski decision is distinguishable from the facts before this court,
because neither the parties nor the court addressed the work product or consulting expert
protections, and there was no dispute regarding attendance of the opposing party’s
representative.
Not only are these cases relied upon by Plaintiffs distinguishable, but this Court
prefers to follow the number of districts allowing the parties to conduct non-destructive
testing outside the presence of the opposing party. The Court recognizes many of the
courts permitting private, non-destructive testing were dealing with less sophisticated
equipment,45 and acknowledges the increased concerns regarding the preservation of
evidence in a complex computerized device, particularly when one party may have
43
Id. at *8.
Id.
45
See, e.g., Blundon v. Goodyear Dunlop Tires N. Am. Ltd., No. 11CV990S, 2012 WL 5473069,
at *1 (W.D.N.Y. Nov. 9, 2012), objections overruled, No. 11-CV-990S, 2013 WL 104932
(W.D.N.Y. Jan. 8, 2013) (inspection of tires in a products liability action; court permitted nondestructive private inspection by defendant, and warned defendant that failure to return the tires
and rims in the same condition would result in an adverse instruction); Lopez v. Cooper Tire &
Rubber Co., No. 3:11-CV-375-J-25JBT, 2011 WL 3035086, at *1 (M.D. Fla. July 25, 2011)
(allowed private, non-destructive inspection of tires and rims); Cottrell, 2009 WL 5213876, at *2
(granting defendant’s motion to produce an electric hammer drill for private, non-destructive
testing); Diepenhorst v. City of Battle Creek, No. 1:05CV00734, 2006 WL 1851243, at *1 (W.D.
Mich. June 30, 2006) (permitting private, non-destructive testing of original journals, notes,
calendars, and other documents). But see Shoemaker, 154 F.R.D. at 235 (denying plaintiffs'
motion to attend defendant's non-destructive testing of unspecified vehicles).
44
15
proprietary knowledge of the device. But the sophistication of the device at issue does
not lessen the work product or consulting expert protections afforded the testing party.
Although neither the District of Kansas nor the Tenth Circuit Court of Appeals
appears to have reached the issue of whether the work product doctrine or consulting
expert protections apply to a Rule 34 inspection, other jurisdictions have analyzed the
topic.46 In one such case, Shoemaker v. Gen. Motors Corp., our neighbors in the Western
District of Missouri were faced with whether to permit the plaintiffs to attend testing
performed by defendant on unspecified vehicles.47 The Shoemaker plaintiffs were
concerned regarding the integrity of any tests performed by General Motors. In its
discussion of work product concerns, the court found:
The decision of what to test and how is essentially a working-out of the
defendant’s interpretation of facts and testing of its defenses. Those
processes involve either the attorney’s mental processes or the opinions of
consulting experts. Both are protected. . . .
[T]he decision about what to test and how is the embodiment of the
attorney’s legal theories. Allowing plaintiffs’ lawyers to be present at these
tests would intrude impermissibly on the development of defendant’s case.
See, e.g., Cottrell, 2009 WL 5213876, at *2 (granting defendant’s motion to compel plaintiff
to produce the subject hammer drill for private, non-destructive testing; finding “Rule
26(b)(4)(B) applies in this case. Rule 26(b)(4)(B) protects against the disclosure of an attorney's
mental impressions, conclusions, opinions or legal theories, including the decisions about what
to test and how[,]” and “[t]he purpose of Rule 26(b)(4)(B) is “to promote fairness by precluding
unreasonable access to an opposing party's diligent trial preparation.”) (internal citations
omitted) (Note that in the 2010 Amendments to Rule 26, former Rules 26(b)(4)(B) and (C) were
renumbered (D) and (E)). See also Hajek, 2009 WL 2229902, at *7 (granting in part defendants’
motion to compel tires and rims for private, non-destructive testing); and Shoemaker, 154 F.R.D.
235 (discussed in detail herein).
47
Shoemaker, 154 F.R.D. at 236. Plaintiffs contend the dispute involved exemplar vehicles, not
the Shoemaker plaintiffs’ own vehicles (Resp., ECF No. 76 at 2, note 1). However, this is
entirely unclear on the face of the written opinion. Regardless, the Court does not find this fact
to be material to its decision.
46
16
General Motor’s lawyers do not design or conduct these tests by
themselves; they need the assistance of experts. These experts may be
expected to testify or they may be retained for consultation only. Insofar as
those experts are expected to testify at trial, their opinions and the facts on
which those opinions are based are certainly discoverable . . . However,
information about the facts known and opinions held by consulting experts
is protected by Fed. R. Civ. P. 26(b)(4)[D] and should be disclosed only on
a showing of “exceptional circumstances.” Plaintiffs’ fears do not constitute
exceptional circumstances.48
This Court agrees with much of the Shoemaker analysis. As a rather simplistic
example, perhaps some combination of behaviors (starting the car, turning on the radio,
then using the uConnect to connect a cell phone by Bluetooth; versus starting the car,
connecting a phone, then switching to the radio) causes the uConnect to behave
differently. Defendant’s attorney, and its consulting expert, are entitled to determine
“what to test and how”—to prepare their own theories and defenses—outside the
watchful eye of Plaintiffs. Plaintiffs have provided no evidence “to justify requiring
[Defendant]’s experts to . . . perform such testing under [P]laintiffs’ direct supervision
and recording, while [P]laintiffs’ experts were not subject to such scrutiny.”49 Although
Plaintiffs are understandably concerned regarding their personal vehicle, the vehicle
became “pivotal evidence upon which all parties are equally entitled to perform testing
and inspection” upon the filing of this case.50
And, although the work product protection may yield to the exception in Fed. R.
Civ. P. 26(b)(3)(A)(ii), if Plaintiffs demonstrate a substantial need for the information and
48
Shoemaker, 154 F.R.D. at 236.
Hajek, 2009 WL 2229902, at *4.
50
Id.
49
17
likely cannot get it by other means, the Court finds Plaintiffs failed to establish an
inability to access similar testing from its own experts, both to prepare their own theories
and to provide a “check” on the integrity of Defendant’s tests. Likewise, Plaintiffs’ fears
alone—absent any supporting evidence—do not constitute “exceptional circumstances”
to obtain the facts and opinions held by Defendant’s consulting experts under Rule
26(b)(4)(D)(ii). If Defendant later chooses to designate any consulting expert present
during the inspection as a testifying expert, information about the inspection will then be
subject to discovery pursuant to Rule 26(b)(4)(A).51
The Court is troubled by Plaintiffs’ failure to respond to defense counsel’s
affidavit explaining the parties’ discussion of the wiTECH device and other inspection
methods.52 Instead, Plaintiffs assert ignorance of Defendant’s planned testing, branding it
“secret and undisclosed.” After reading defense counsel’s affidavit, though, to which
Plaintiffs failed to respond, the Court finds Plaintiffs’ allegations of secrecy
disingenuous, at best.
Although this Court finds the work product and consulting expert protections
implicated, Plaintiffs’ concerns regarding Defendant’s proprietary knowledge of the
uConnect system cannot be taken lightly, much like the Davidson court’s concerns
regarding Apple’s proprietary knowledge of the iPhones.53 But unlike Davidson, where
Apple completely refused to disclose any of its testing methods, leading the court to be
51
See Cottrell, 2009 WL 5213876, at *2 (quoting Shoemaker, 154 F.R.D. at 236).
Rosenberg Decl., ECF No. 74 ¶¶ 9-11 (describing counsel’s telephone call on April 10, 2018).
53
See Davidson, No. 5:16-cv-0492-LHK, ECF No. 162, at 1 (N. D. Cal., San Jose Division, Dec.
14, 2017).
52
18
distrustful of its planned testing, here Defendant has been forthcoming about at least two
of its inspection methods (wiTECH and a test drive). Because Defendant has already
disclosed some of the technology it plans to use, it appears a minimal burden for
Defendant to—prior to its inspection—generally disclose those testing methods which
require it to physically attach Plaintiffs’ vehicle to any computerized/electronic
apparatus, to assuage Plaintiffs’ concerns about the potential use of solely proprietary
equipment and its potential to affect the integrity of the data in the vehicle. This does not
mean Defendant must disclose the order of its tests, or the nature of all inspections, but
simply identify the device itself (i.e., the wiTECH device).
In addition to the work product and consulting expert protections implicated by the
testing, when balancing interests of the parties, the Court finds the “degree to which the
proposed inspection” will aid in the search for truth is greater than “the burdens and
dangers created by the inspection.”54 Permitting Defendant to conduct private testing
protects its attorneys’ mental impressions and theories and its consulting expert’s
opinions and encourages an “even playing field.” Prior disclosure of specific testing
apparatuses should put Plaintiffs at ease and give them the opportunity to object to
specific method, as well as provide Plaintiffs the chance to use the same equipment to test
the vehicle in order to ensure the integrity of Defendant’s testing. Without a concrete
reason to believe data will be destroyed, Plaintiffs’ fear that data might be destroyed is
simply too speculative to be prejudicial. And, Defendant’s duty of candor to the court
54
Ramos, 292 F.R.D. at 408 (citing Hunley, 2013 WL 1681836, at *3 (quoting Scruggs, 278
F.R.D. at 700)).
19
and the potential of spoliation sanctions outweigh Plaintiffs’ assumption that damage
might occur. Any risk of loss occurring during Defendant’s testing will be borne by
Defendant.55
The Court also finds the financial and scheduling burden to Plaintiffs to be
minimal.
Plaintiffs will choose the location of the testing, Defendant promises to
complete its testing during one business day, and Defendant will bear all costs of the
inspection—including a rental car for Plaintiffs and Plaintiffs’ choice of either mileage
reimbursement for Defendant’s planned test drive, or $10 in gasoline.
Although Plaintiffs requested the appointment of a neutral expert in their briefing,
this subject clearly was not previously discussed between the parties and the Court finds
it unnecessary on the facts of this dispute. Frankly, Plaintiffs’ objections, on the whole,
could be disregarded as waived,56 given that Plaintiffs failed to object in their initial
discovery response.
However, given the novelty of the issue in this district, and
Defendant’s failure to address waiver in its briefing, the Court chose to address the merits
of the parties’ arguments.
C.
Conclusion
Defendant’s planned inspection implicates the work product and consulting expert
protections, and Plaintiffs demonstrated no true prejudice resulting from Defendant’s
55
See Lopez, 2011 WL 3035086, at *2-3 (permitting the private, non-destructive testing of
evidence by defendant with certain conditions, and noting any risk of loss remains with
defendant until the evidence is received back by plaintiff's counsel).
56
Cardenas v. Dorel Juvenile Grp., Inc., 230 F.R.D. 611, 615 (D. Kan. 2005) (“Objections
initially raised but not relied upon in response to the motion to compel will be deemed
abandoned.”)
20
non-destructive inspection and testing outside the presence of Plaintiffs’ counsel.
Plaintiffs can conduct their own testing to ensure the integrity of Defendant’s inspection,
and they will be compensated for their inconvenience. For these reasons, the Court finds
Defendant is permitted to inspect Plaintiffs’ vehicle privately, subject to the following
conditions.
One week prior to its planned inspection, although Defendant is not required to
outline its entire inspection process to Plaintiffs, Defendant’s counsel must identify to
Plaintiffs any outside device(s) it intends to connect to Plaintiffs’ vehicle which could
result in the download or alteration of data. This will permit Plaintiffs the opportunity to
object to the use57 and allow Plaintiffs to perform their own testing. Plaintiffs will select
the location of the dealership at which the inspection will occur, as outlined by
Defendant’s request.
Defendant must bear all reasonable costs arising from the
inspection. During its inspection, Defendant will be fully responsible for the vehicle
while in its temporary custody. Plaintiffs are encouraged to adequately document and/or
test the condition of the vehicle (such as conducting their own wiTECH testing) before
delivering it to Defendant for inspection. Should the vehicle be damaged or materially
altered while in Defendant’s custody, Plaintiffs may request sanctions for the destruction
57
The Court expects any objection to be well-founded and supported by empirical evidence.
Furthermore, the parties must confer as required by D. Kan. Rule 37.2, and are strongly
encouraged to consider arranging a telephone conference with the undersigned magistrate judge
before filing a motion related to such objection.
21
or spoliation of evidence.58 Finally, Defendant must provide to Plaintiffs a printout of
any diagnostic codes revealed during its inspection.59
Despite the partial granting of Defendant’s motion, at this juncture, the Court finds
an award of sanctions inappropriate under Fed. R. Civ. P. 37(a)(5).
Neither party
requested an award of sanctions, and the circumstances of this dispute, including the
well-reasoned positions of both parties, in light of a lack of binding case law, make an
award of expenses unjust. Each party will bear its own expenses related to the motion.
IT IS THEREFORE ORDERED that Defendant’s Motion to Compel Production
of Plaintiffs’ Vehicle for a Private, Non-Destructive Inspection (ECF No. 72) is
GRANTED in part as set forth above.
IT IS SO ORDERED.
Dated at Wichita, Kansas this 14th day of August 2018.
s/ Gwynne E. Birzer
GWYNNE E. BIRZER
United States Magistrate Judge
See Hatfield v. Wal-Mart Stores, Inc., 335 F. App'x 796, 804 (10th Cir. 2009) (“An instruction
on adverse inference may be an appropriate sanction for spoliation of evidence.”); see Ramos,
292 F.R.D. at 411 (quoting Adams v. Thyssenkrupp Safway, Inc., No. 2:09-CV-01342 JAM KJ,
2010 WL 2850769, at *4 (E.D. Cal. July 20, 2010) (noting “plaintiff has a recourse should
defendant lose, destroy, damage, or otherwise materially alter the pieces of scaffolding plank,”
mainly that he “may request that the court impose evidentiary sanctions for the destruction or
spoliation of evidence.”).
59
In Defendant’s Reply, it offers to provide “a printout of any DTCs [assumed to be “Diagnostic
Trouble Codes”] revealed during the inspection.” (ECF No. 77 at 4, note 4.)
58
22
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