Hiser et al v. Seay et al

Filing 100

MEMORANDUM OPINION and ORDER by Senior Judge Thomas B. Russell on 1/30/17: Defendants' objections DN 90 to Magistrate Judge King's 8/1/2016 Order are OVERRULED. Defendants shall have thirty (30) days from the entry of this Order to comply with the Magistrate Judges ruling. cc: Counsel (DJT)

UNITED STATES DISTRICT COURT
WESTERN DISTRICT OF KENTUCKY
PADUCAH DIVISION
CIVIL ACTION NO. 5:14-CV-00170-TBR
SHELBY HISER

PLAINTIFF

v.
VOLKSWAGEN GROUP OF AMERICA, INC., et al.

DEFENDANTS

Memorandum Opinion and Order
This matter is before the Court upon Defendants’ objections to Magistrate
Judge King’s August 1, 2016 Order.

[DN 90.]

Plaintiff Shelby Hiser has

responded, [DN 94], and Defendants have replied, [DN 98].
matter is ripe for adjudication.

Fully briefed, this

For the following reasons, Defendants’ objections

[DN 90] are OVERRULED.
I. Facts and Procedural History
The Magistrate Judge aptly summarized the relevant facts of this case in his
August 1, 2016 Order:
On December 21, 2011, Shelby Hiser sustained serious injuries in a
single-car rollover accident and was paralyzed. At the time of the
accident, Hiser was 16 years old and a rear seat passenger in a 2000
model year WV New Beetle Sedan (the “subject vehicle). Plaintiffs
filed suit on December 19, 2012 against two individuals and an
insurance company, all since dismissed from the case, and multiple
companies in the Volkswagen corporate family (“VW”). The
remaining defendants are Volkswagen A.G., Volkswagen Group of
America, Inc., and Volkswagen De Mexico, S.A. de C.V. (collectively
“Defendants”). Volkswagen, A.G. (“VWAG”) is the Wolfsburg,
Germany based parent company of Volkswagen Group of America, Inc.,
(“VWGoA”) its U.S. based subsidiary, and Volkswagen de Mexico, S.A.
de C.V., (“VW Mexico”) its Mexico based subsidiary.

This is an automobile product liability suit. Plaintiffs claim
Defendants used a seatbelt model in the 2000 VW New Beetle with a
design defect which allowed the seatbelt to unintentionally unlatch.
Further, they say that Hiser was wearing his seatbelt, that the buckle
unintentionally unlatched during the accident, and that this
contributed to Hiser’s injuries. Plaintiffs believe Defendants used the
same seatbelt model in multiple brands and later stopped using that
seatbelt model in all of their brands.
Defendants say the crash and injuries were caused by a teenage
driver’s negligent and reckless driving, which caused the car to run off
the road, overturn, hit an embankment and then a culvert, and land on
its side in a creek. Hiser was found partially ejected from the rear of
the car. Defendants deny Hiser’s injuries were caused by product
defects and deny that his seatbelt unlatched. They add that,
notwithstanding Hiser’s claim that he was wearing a seatbelt, no one,
including Plaintiff, testified that he was wearing his seatbelt.
In discovery, Plaintiffs sought information about the seatbelt
model, including its development, use in VW company brands, and
discontinuation. Defendants provided information about the
development and use of the seatbelt model and buckle that were
similar to those in the crash in the same brand of car, VW New Beetle
Sedans. Plaintiffs move to compel Defendants to provide the
information for other model years and other VW brands.
Plaintiffs also seek information about the structure and
management of VW, particularly VWAG. Defendants argue that
some information requested, including personal identifiable details
such as employee’s name in an organization chart, is protected under
German privacy laws which forbid Defendants from disclosing that
information. Further, some of the documents which Defendants have
provided are in German and Plaintiffs ask that Defendants be required
to translate and produce English language versions of the documents.
Defendants state that the documents were created and maintained in
the German language during the normal course of business and they
should not have to provide translations. Finally, Plaintiffs say that
Defendants did not adequately specify the location and identity of
some responsive documents and information in those documents and
ask that Defendants be compelled to provide specifics.
[DN 88 at 1-3 (record citations omitted).]

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Following extensive briefing, the Magistrate Judge issued a 22-page Order
granting in part and denying in part Plaintiffs’ motion to compel.

[Id.]

He

ordered Defendants to “produce any information known to any VW company about
the subject seatbelt in any vehicle, not just the VW New Beetle Sedan,” [id. at 8],
including information in the possession of Audi A.G., a non-party subsidiary of VW,
[id. at 13]. Magistrate Judge King also ordered Defendants to provide complete
responses to Plaintiff’s Third Request for Production No. 17, which in turn
requested “[a]ll documents produced in the Abigail M. Cameron v. Volkswagen
litigation, case no. 08-CV-005649, Milwaukee County, Wisconsin.” [Id. at 13.]
Further, the Magistrate Judge held that Defendants may produce documents that
redact the names of certain German VW employees, in accordance with German
privacy laws. [Id. at 18.]

Finally, he ruled that Defendants must provide English

translations of German documents that they produced in response to Plaintiff’s Rule
33(d) interrogatories, but need not translate German documents produced in
response to a Rule 34 request for production unless Defendants already possess an
English-language translation. [Id. at 21.]
Defendants objected to certain portions of the Magistrate Judge’s Order.
[DN 90.] Plaintiff responded, [DN 94], and Defendants replied, [DN 98].
briefed, this matter is ripe for adjudication.

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Fully

II. Standard of Review
Pursuant to 28 U.S.C. § 636(b)(1)(A), the Court referred all discovery-related
disputes in this case to Magistrate Judge King.

When a party timely assigns error

to a magistrate judge’s nondispositive order, this Court “has authority to
‘reconsider’ the determination, but under a limited standard of review.” Massey v.
City of Ferndale, 7 F.3d 506, 509 (6th Cir. 1993) (citing 28 U.S.C. § 636(b)(1)(A)).
Under that standard, a magistrate judge’s determination must be affirmed unless
the objecting party demonstrates that the order is “clearly erroneous or contrary to
law.”

28 U.S.C. § 636(b)(1)(A); see also Fed. R. Civ. P. 72(a) (implementing

statutory directive).

“The ‘clearly erroneous’ standard applies only to factual

findings made by the Magistrate Judge, while [his] legal conclusions will be
reviewed under the more lenient ‘contrary to law’ standard.” EEOC v. Burlington N.
& Santa Fe Ry. Co., 621 F. Supp. 2d 603, 605 (W.D. Tenn. 2009) (alteration in
original) (quoting Gandee v. Glaser, 785 F. Supp. 684, 686 (S.D. Ohio 1992), aff'd
per curiam, 19 F.3d 1432 (6th Cir. 1994) (unpublished table disposition)) (internal
quotation marks omitted).

A factual finding is clearly erroneous where the Court

is left “with the definite and firm conviction that a mistake has been committed.”
Max Trucking, LLC v. Liberty Mut. Ins. Corp., 802 F.3d 793, 808 (6th Cir. 2015)
(citing Anderson v. City of Bessemer City, 470 U.S. 564, 573 (1985)).

A legal

conclusion is contrary to law if it contradicts or ignores applicable precepts of law.
Sedgwick Ins. v. F.A.B.E. Custom Downstream Sys., Inc., 47 F. Supp. 3d 536, 538
(E.D. Mich. 2014).

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III. Discussion
Defendants raise five separate objections to Magistrate Judge King’s Order.
They claim that the Order is unclear or ambiguous in several respects and provides
them with insufficient time to comply with its terms.

Defendants further claim

that the Magistrate Judge erred by requiring them to provide certain documents
already in Plaintiff’s possession, as well as their own English translations of certain
categories of documents.

Finally, Defendants argue that Magistrate Judge King

erred in allowing Plaintiffs to cure several overbroad discovery requests.

The

Court will address each objection in turn.
A. Clarity of Magistrate Judge King’s Order
First, Defendants state that the Magistrate Judge’s Order “fails to provide
clear guidance to VWAG with respect to the additional documents it must now
search for and produce.”

[DN 90 at 2.] They claim that the Order is “ambiguous,

confusing[,] or open to varying interpretations” in the four specific ways explained
below.

[DN 90 at 3-4.]

Plaintiff agrees with Defendants’ interpretation of the

Magistrate Judge’s Order in several respects, and generally believes that the Order
is unambiguous. See [DN 94 at 1-3.]
(1) Specific Requests for Production
Defendants first contend that “some of the specifically enumerated requests
appear to have been included in the Order by mistake.”

[DN 90 at 4.]

Specifically, they state that Plaintiff’s “Third Request for Production (“RFP”) No. 4
is included among a number of other RFPs which the Order requires VWAG to

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answer on the topic of VWAG’s ‘use of the subject seatbelt in other vehicles.’” [DN
90 at 4 (quoting DN 88 at 5).] However, as Defendants correctly point out, Request
for Production No. 4 pertains only to “crash test data and video regarding or related
to testing for unintended buckle release on any and all 2000 Volkswagen Beetles,”
the type of vehicle at issue in this case.

[DN 69-7 at 8.] Defendants argue that

the Magistrate Judge’s inclusion of Request No. 4 in a section purporting to apply
only to requests regarding other vehicles is “clearly erroneous.”
This is not the case.

[DN 90 at 4.]

While the Magistrate Judge’s subheading might refer

to the “use of the subject seatbelt in other vehicles,” [DN 88 at 5 (capitalization
altered)], a cursory reading of the section in question reveals that Magistrate Judge
King’s analysis pertains to all the requests for production at issue in Plaintiff’s
motion to compel, see, e.g., [id. at 8 (“Plaintiffs have stated that they expect to
discover information and test results showing the alleged design defect in the
subject vehicle or other vehicles . . . .”) (emphasis added)].

Moreover, Plaintiff

agrees with Defendants that Request No. 4 pertains only to the 2000 VW Beetle.
[DN 94 at 2 n.1.]

The Magistrate Judge was unambiguous in ruling that

“Defendants shall produce any information known to any VW company about the
subject seatbelt in any vehicle, not just the VW New Beetle Sedan.

Defendants

shall produce any document responsive to Plaintiffs’ Third Request for Production
Nos. 2, 4, 5, 6, 11, 12, 13, 14, 15, 16, 19, 26, and 27.”
Defendants must now do.

[DN 88 at 8.]

That is what

Their objection in this regard to the Magistrate Judge’s

Order is OVERRULED.

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(2) Definition of “Subject Seatbelt”
In his Order, the Magistrate Judge stated in a heading that Defendants
“must provide information regarding the use of the subject seatbelt in other
vehicles.”

[DN 88 at 5.]

Defendants point out that the Magistrate Judge’s Order

does not “specify what constitutes ‘the subject seatbelt.’”

[DN 90 at 5.]

They

interpret “subject seatbelt” to include only “the ‘unenclosed’ buckle with a cutout as
used in the subject 2000 New Beetle Sedan.”

[Id. at 6.] Plaintiff agrees that

“subject seatbelt” pertains only to the buckle component, but disagrees that only the
unenclosed buckle design is at issue. [DN 94 at 2.]

Rather, Plaintiff contends

that information regarding the “enclosed buckle” design should also be subject to
discovery under the Magistrate Judge’s Order.

[Id.]

Plaintiff has the better of this argument.

Although the Magistrate Judge

did not explicitly state that two types of seatbelt buckle are at issue in this case, he
noted that “Plaintiff[] believe[s] Defendants used the same seatbelt model in
multiple brands and later stopped using that seatbelt model in all of their brands,”
and that “information about the subject seatbelt’s use in other brands may be
admissible to . . . demonstrate the existence of [a] reasonable, safer alternative
design.”

[DN 88 at 2, 6.]

Defendants themselves recognize that “[t]he focus of

[P]laintiff’s motion was clearly on the buckle, with specific reference to two different
buckle designs, i.e., the ‘unenclosed’ buckle with a cutout utilized in the subject
vehicle, and the ‘enclosed’ buckle without a cutout used in subsequent model years
of the new Beetle.”

[DN 90 at 5-6.]

Federal Rule of Civil Procedure 26(b)(1)

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provides that “[p]arties 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.”

Magistrate Judge King correctly recognized that “[r]elevance is to be

‘construed broadly to encompass any matter that bears on, or that reasonably could
lead to other matter that could bear on’ any party’s claim or defense.” Hadfield v.
Newpage Corp., No. 5:14-CV-00027-TBR-LLK, 2016 WL 427924, at *3 (W.D. Ky.
Feb. 3, 2016) (quoting Oppenheimer Fund, Inc. v. Sanders, 437 U.S. 340, 351
(1978)).
The Magistrate Judge suggested, and this Court now holds, that both the
enclosed and unenclosed seatbelt buckle designs are relevant to Plaintiff’s claims in
this case.

See Gray v. General Motors Corp., 133 F. Supp. 2d 530, 535-36 (E.D. Ky.

2001) (plaintiff in a seatbelt product liability case required to put forth evidence of a
safer, alternative design).

Accordingly, when Defendants comply with Magistrate

Judge King’s Order, they shall provide information regarding both the enclosed and
unenclosed seatbelt buckle designs whenever such information is responsive to one
of Plaintiff’s requests.

Defendants’ objection seeking to limit the definition of

“subject seatbelt” to the unenclosed buckle design is therefore OVERRULED.
(3) Expansion of Defendants’ Discovery Obligations
Next, Defendants contend that Magistrate Judge King’s Order “contains
broadly sweeping language which appears to impose document production
obligations on VWAG far in excess of any requests actually served by [P]laintiff.”
[DN 90 at 6.]

They point to a sentence appearing on page eight of the Magistrate

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Judge’s Order, which reads, “Defendants shall produce any information known to
any VW company about the subject seatbelt in any vehicle, not just the VW New
Beetle Sedan.”

[DN 88 at 8.]

Defendants interpret this sentence as requiring

them to disclose this information whether or not it has been requested by Plaintiff.
See [DN 90 at 6.] But again, a common-sense reading of Magistrate Judge King’s
Order belies Defendants’ argument.

Quoted in full, the applicable passage says:

Defendants shall produce any information known to any VW company
about the subject seatbelt in any vehicle, not just the VW New Beetle
Sedan. Defendants shall produce any document responsive to
Plaintiffs’ Third Request for Production Nos. 2, 4, 5, 6, 11, 12, 13, 14,
15, 16, 19, 26, and 27.
[DN 88 at 8.]

Read together, and in the context of the entire Order, the Magistrate

Judge’s meaning is clear.

Defendants shall fully respond to the enumerated

requests for production, and their responses shall not be limited to information
regarding the use of the subject seatbelt in the VW New Beetle Sedan.

Rather,

when information “about the subject seatbelt in any vehicle, not just the VW New
Beetle Sedan” is responsive to one of Plaintiff’s discovery requests, Defendants shall
provide that information as well.

[Id.] In so holding, Magistrate Judge King did

not expand the scope of Plaintiff’s discovery requests. He simply ruled that
Defendants must fully respond to the enumerated requests for production.
Defendants have presented this Court with no reason to depart from that wellreasoned conclusion. Defendants’ objection here is also OVERRULED.

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(4) Translation of Documents
Finally, Defendants claim that one sentence in the Magistrate Judge’s Order
regarding translated documents is ambiguous.

As more fully explained in section

III.D. below, Magistrate Judge King ordered that Defendants must produce
English-language versions of any documents produced or pointed to in response to a
Rule 33(d) interrogatory, but need not produce English translations of documents
produced in response to a Rule 34 request for production unless Defendants already
possess such a translation.

Defendants object to the following sentence on page 21

of the Magistrate Judge’s Order: “Defendants need not translate documents into
English where Defendants have only used those documents to respond to Rule 34
requests for production and not pointed to those documents in response to Rule 33
interrogatories.” [DN 88 at 21.]

They argue that “it is unclear from the context

whether [that sentence] is to be read in the conjunctive where translation is only
required if both conditions apply, or the disjunctive where translation is required if
either condition applies.”

[DN 90 at 8 (emphasis removed).]

When read in conjunction with the sentence that follows, though, the
Magistrate Judge’s meaning is quite clear. He goes on to say, “For documents that
Defendants produced in-language in German pursuant to Rule 34, and which
Defendants also have in English language versions . . . Defendant shall produce to
Plaintiffs the English language translations.”

[DN 88 at 21.]

implications of these sentences for Defendants are simple.

Taken together, the

If Defendants produced

or pointed to German documents in response to a Rule 33(d) interrogatory, they

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must provide English translations of those documents.

If Defendants produced

German documents in response to a Rule 34 request for production, they need only
provide English translations of those documents if such a translation already exists.
The sentence to which Defendants object merely clarifies that if Defendants
produced a German document in response to a Rule 33(d) interrogatory and also
produced that same document in response to a Rule 34 request for production, they
must provide an English translation of that document.

This interpretation is plain

from the face of the Magistrate Judge’s Order. Defendants’ objection to the abovequoted sentence is therefore OVERRULED.
B. Defendants’ Time to Comply
Second, Defendants contend that the Magistrate Judge’s Order “provides
VWAG with insufficient time to search for and produce a potentially enormous
volume of additional documents.”

[DN 90 at 2.]

The Order, entered on August 1,

2016, provided Defendants with thirty days to comply with its terms.

But due to

the complex nature of this case, several months have passed since the Magistrate
Judge’s decision.

Defendants represent to the Court that during the pendency of

their objections, they have located and produced responsive documents on a rolling
basis.

[DN 90 at 9 n.6.]

Accordingly, thirty days from the entry of the instant

Order should provide Defendants with ample time to complete the required
discovery supplementations.

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C. Cameron Litigation Documents
Third, Defendants believe the Order “fails to properly consider that [P]laintiff
already has documents from a previous lawsuit known as the Cameron case.”
90 at 2.]

[DN

Plaintiff’s Third Request for Production No. 17 asks for “[a]ll documents

produced in the Abigail M. Cameron v. Volkswagen litigation, case no. 08-CV005649, Milwaukee County, Wisconsin.”

[DN 69-7 at 14.]

Defendants responded

to Request No. 17 by stating their objections and referring Plaintiff to “VWAG
Production Exhibit ‘D’,” engineering drawings of the seat belt system and buckle
produced in Cameron.

[Id.]

But Plaintiff, in his motion to compel, provided

examples of other documents besides “VWAG Production Exhibit ‘D’” that were
produced by Defendants in the Cameron litigation.

Accordingly, the Magistrate

Judge recognized that “the documents Defendants provided in response to Request
No. 17 were not all the responsive documents,” and ordered Defendants to fully
answer Request No. 17.

[DN 88 at 14.]

Defendants now object, claiming that “[t]he Order fails to properly consider
the fact that [P]laintiff’s counsel already have documents from Cameron [as] is
apparent from their use of Cameron documents in the reply brief.”
(emphasis removed).]

[DN 90 at 10

In their view, the Magistrate Judge’s Order is contrary to

Rule 26(b)(1), because requiring Defendants to produce the Cameron documents
Plaintiff already possesses would impose a disproportionate burden upon
Defendants. See [id.]

They propose a solution, which would require Plaintiff to

inform Defendants of the Cameron documents that Plaintiff currently possesses.

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[Id. at 11.]

Defendants would then provide Plaintiff with any additional Cameron

documents they have.

Plaintiff is agreeable to this proposal.

[DN 94 at 4.]

Therefore, within thirty days of the entry of this Order, Plaintiff shall provide
Defendants with a list of the documents it possesses from the Cameron litigation.
Within thirty days of Defendants’ receipt of that list, Defendants shall provide all
other documents from the Cameron litigation.

Accordingly, Defendants’ third

objection to the Magistrate Judge’s Order is moot, and is therefore OVERRULED.
D. Translated Documents
Fourth, Defendants argue that “any document which VWAG’s counsel may
have translated into English solely for the purpose of litigation . . . is protected as
work product.”

[DN 90 at 2.]

The Magistrate Judge ordered that “Defendants

need not translate documents into English where Defendants have only used those
documents to respond to Rule 34 requests for production and not pointed to those
documents in response to Rule 33 interrogatories.”

[DN 88 at 21.]

However, the

Magistrate Judge ordered production of any “documents that Defendants produced
in-language in German pursuant to Rule 34, and which Defendants also have in
English language versions.”

Stated otherwise, the Magistrate Judge’s Order

requires Defendants to produce two categories of documents in English: any
documents produced or pointed to in response to a Rule 33(d) interrogatory, and any
documents produced in response to a Rule 34 request for production for which
Defendants already possess an English language translation.

Defendants argue

that the Magistrate Judge erred to the extent that he ordered production of English

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translations “made for use of [Defendants’] counsel solely for purposes of litigation,”
because those translations are protected work product. [DN 90 at 11.]

In

Defendants’ estimation, the “informal, uncertified . . . translations” defense counsel
have obtained “are, in effect, attorney notes and impressions and their production
would reveal defense counsel’s analysis and thought processes.” [DN 98 at 4.]
Citing case law, Plaintiff responds, contending that translations are either not work
product, or are merely ordinary work product that Plaintiff can discover upon a
showing of substantial need and undue hardship. [DN 94 at 5.]
Defendants’ arguments are not novel.

Indeed, “[a] recurring argument . . . is

that an attorney’s selection of which documents to translate is protected opinion
work product under Rule 26(b)(3) as it reflects the mental opinions and impressions
of the attorney.”

Nature’s Plus Nordic A/S v. Natural Organic, Inc., 274 F.R.D.

437, 439 n.1 (E.D.N.Y. 2011).
English-language

Courts passing upon the issue consistently hold that

translations

must

be

produced.

Some

courts

hold

that

translations prepared during litigation constitute ordinary work product. See, e.g.,
id. at 439-40 (citing In re Air Crash Disaster Near Warsaw, Poland on May 9, 1987,
No. MDL 787, 1996 WL 684434 (E.D.N.Y. Nov. 19, 1996)). In such cases, courts
typically find (as did the Magistrate Judge) that forcing the receiving party to
translate foreign documents would impose an undue hardship, especially when
English translations already exist.

See In re Air Crash, 1996 WL 684434, at *2

(holding that selection of translated documents was ordinary work product and that
plaintiff had shown sufficient need and hardship); contra Shionogi & Co., Ltd. v.

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Intermune Inc., No. C-12-034952, 2012 U.S. Dist. LEXIS 173452 (N.D. Cal. Dec. 6,
2012) (holding that requesting party had not sufficiently shown substantial need or
undue hardship to discover translated documents).

Yet other courts decline to

treat an attorney’s selection of translated documents as work product. See, e.g.,
Contretas v. Isuzu Motors, Ltd. of Japan, No. Civ. SA-98-CA-442-JWP, 1999 WL
33290667, at *3 (W.D. Tex. Apr. 2, 1999) (“[T]he work product of defense counsel
would not be revealed by the disclosure of all English translations.”)
Either way, the end result is the same.

The Magistrate Judge correctly

identified that when in response to a Rule 33(d) interrogatory, the responding party
provides or points to foreign language documents, “the burden of identifying the
relevant information . . . will be substantially greater for the requesting party . . .
than for the responding party.”

[DN 88 at 20 (citing Sungjin Fo-Ma, Inc. v.

Chainworks, Inc., Civil Action No. 08-CV-12393, 2009 WL 2022308, at *5 (E.D.
Mich. Jul. 8, 2009)).]

Nor did the Magistrate Judge err in holding that Defendants

must respond to Plaintiff’s requests for production with English documents if those
documents already exist.

See Superior Prod. P’ship v. Gordon Auto Body Parts Co.,

No. 2:06-cv-0916, 2008 WL 5111184, at *2 (S.D. Ohio Dec. 2, 2008) (responding
party required to produce only the document that had previously been translated
from Chinese to English). Defendants have not met their burden to show that the
Magistrate Judge’s factual findings regarding substantial need and undue hardship
with respect to the translated documents were clearly erroneous, nor have
Defendants shown that the Magistrate Judge’s holding was contrary to law.

15

As

such, their objections to this portion of the Magistrate Judge’s Order are
OVERRULED.
E. Timeliness of Plaintiff’s Revised Requests for Production
Finally, Defendants aver that the Magistrate Judge’s Order “improperly
allows [P]laintiff to ‘cure’ defective requests and resubmit them more than a year
after the deadline for serving written discovery requests.”

[DN 90 at 2.]

The

Magistrate Judge held in his Order that Plaintiff’s Third Request for Production
Nos. 3, 7, 21, 34, and 35 are “too broad because they request all information, not
just information related to the subject seatbelt, subject vehicle, time period, or
limited in any other way.”

[DN 88 at 9.]

He ruled that “Defendants need not

supplement their answers to these requests.” [Id.]

Rather, the Magistrate Judge

allowed Plaintiff to “reform” those requests for production and “resubmit” them to
Defendants.

[Id.] Defendants now object to this portion of the Magistrate Judge’s

Order, arguing that these revised requests for production will fall well outside the
May 1, 2015 deadline previously established for serving written discovery requests
in this case.

[DN 90 at 12; see DN 26.]

Plaintiff responds, stating that the

Magistrate Judge’s Order “merely allows Plaintiff to cure its existing requests.”
[DN 94 at 7.]

Plaintiff further requests that this Court enter an Order “specifically

approv[ing] of the narrowed discovery requests” tendered by Plaintiff as Exhibit A
to his response.

[DN 94 at 7; see DN 94-1.]

For several reasons, Plaintiff has the better of this argument.

As

Defendants correctly point out, the May 1, 2015 deadline for written discovery

16

requests has not been altered by this Court.

But these are not new requests –

rather, they are narrowed versions of requests originally propounded by Plaintiff in
2015, before the deadline passed.

Further, these specific requests for production

have been contested since April 2016, when Plaintiff filed his motion to compel.
See [DN 69.]

What’s more, Defendants’ arguments regarding timeliness in this

regard are belied by their own statements.
urgency.

[DN 98 at 7 (“In truth, there is no

This case is not set for trial. There is no current pretrial schedule.”).]

Ultimately, the Magistrate Judge, well aware of the Court’s previous timelines,
acted within his discretion to afford Plaintiff with an opportunity to reformat and
resubmit his overly broad requests for production.

Defendants fail to cite a single

statute, rule, or case demonstrating that the Magistrate Judge erred in this regard.
Accordingly, their objections to the portion of the Magistrate Judge’s Order allowing
Plaintiff to reformat and resubmit Requests Nos. 3, 7, 21, 34, and 35 are
OVERRULED.
However, the Court will not go so far as to issue an order approving of
Plaintiff’s proffered requests.

The Court previously referred discovery in this

matter to Magistrate Judge King.

Entering the order that Plaintiff desires would

prevent Defendants from making any objections to the reformatted requests, as is
their right, and would usurp the Magistrate Judge’s authority to hear those
objections in the first instance.

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IV. Conclusion
For the foregoing reasons, IT IS HEREBY ORDERED that Defendants’
objections [DN 90] to Magistrate Judge King’s August 1, 2016 Order are
OVERRULED.

Defendants shall have thirty (30) days from the entry of this Order

to comply with the Magistrate Judge’s ruling.

January 30, 2017

CC: Counsel of Record

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