Taber et al v. Ford Motor Company of Delaware
ORDER granting in part and denying in part #48 motion to compel Signed on September 29, 2017 by Magistrate Judge Sarah W. Hays. (Clinton, Erica)
IN THE UNITED STATES DISTRICT COURT FOR THE
WESTERN DISTRICT OF MISSOURI
STEVEN TABER, and
FORD MOTOR COMPANY,
Case No. 16-00162-CV-W-SWH
FACTUAL AND PROCEDURAL BACKGROUND
Plaintiffs Steven and Rene Taber filed suit against Ford Motor Company as the result of
an accident occurring on July 8, 2014, when the 1996 Ford Ranger Mr. Taber was driving was
involved in a frontal offset collision with another vehicle. Plaintiffs allege that Mr. Taber
sustained permanent injuries as the result of the failure of his airbag to deploy and as the result of
defects in the Ranger’s body shell, driver’s restraint system including the seatbelt, airbag and
sensing system and associated component parts. The complaint sets forth causes of action for
product liability (strict liability), product liability (negligence), breach of warranty, failure to
warn, loss of consortium and punitive damages. (Doc. #43)
Pending before the Court is Plaintiffs’ Motion to Compel Ford’s Responses to Plaintiffs’
Request for Production and Plaintiffs’ Rule 30(b)(6) Topics1, doc #48, and a supplemental
Plaintiffs’ motion requested an order requiring Ford to produce a Rule 30(b)(6) witness to
testify with regard to Topic 11 as stated in Plaintiffs’ Third Amended Videotaped Deposition
motion to compel, doc. #88, arising out of various discovery disputes which have been under
discussion with the Court since November 10, 2016. Despite two discovery conferences on
November 10, 2016 and January 12, 2017, which were held pursuant to Local Rule 37.1(a)(2),
the parties were not able to resolve all discovery issues. Therefore, on January 18, 2017, an
However, supplemental briefing2 and further
initialmotion to compel was filed, doc. #48.
conferences3 with the Court have narrowed the dispute to two main issues: whether the attorneyclient and/or work product privilege prevents disclosure of 1) certain documents involving other
similar incidents (“OSI”) and 2) suspension orders.
II. OTHER SIMILAR INCIDENTS (OSI)
Background of the OSI Discovery Dispute
Plaintiffs requested other similar incidents through three document requests pursuant to
Federal Rule of Civil Procedure 34:
Request No. 8:
Identify by case name, date and location all field incidents that Ford has become
aware of that relate to non-deployment in moderate to severe frontal impact crash
events where serious occupant injuries have resulted.
Request No. 10:
Provide all documents which pertain to failure of the driver frontal impact airbag
to deploy during frontal crashes where deployment was expected, based on field
performance and/or complaints from consumers or government agencies.
Request No. 11:
Notice. At the April 12, 2017 hearing, the Court found that the notice was overly broad and
would need to be rewritten. (Doc. #85 at 33:23-25, 34:1-4)
A supplemental motion to compel (doc. #88) was filed on May 18, 2017, which was to set forth
the issues as narrowed.
In addition to the conferences on November 10, 2016, and January 12, 2017, the Court
conferred with the parties concerning discovery issues again on March 16, April 12, and June 15,
All documents related to incidents of any Ford Ranger and related vehicles’ (as
agreed by the parties) airbag system non-deployment, including, but not limited
(a) Consumer complaints, letters, memos, and e-mails (including
those from fleet operators);
(b.) Field reports, including dealer service reports;
(c.) Third-party arbitration proceedings;
(d.) Complaints filed with a Court of law;
(e.) Reports to or by any governmental agencies;
(f.) Internal memoranda, reports or summaries of any kind
involving property damage or injuries; and
(g.) Photographs of injuries or property damage.
The request for production of documents at issue was served by plaintiffs on Ford on
September 16, 2016. (Doc. #49-2) Defendant’s response dated October 17, 2016, was attached
as Exhibit A to defendant’s response to the motion to compel. (Doc. #75-1) There was no claim
of privilege asserted in Ford’s October 17, 2016, response to document requests 8, 10 and 11.
(Doc. # 75-1) Plaintiffs’ motion to compel seeks all responsive documents to the above-stated
requests for production.
In opposing plaintiffs’ motion to compel OSI material, defendant
contends that plaintiffs have provided no support for their claim that defendant has failed to
provide OSI material. According to Ford:
Plaintiffs have not identified a single “other incident” document that Ford has
failed to produce. To the contrary, pursuant to extensive meet-and-confer efforts,
including a conference with the Court, Ford agreed to produce thousands of
documents from Ford’s lawsuit and claim files, each containing case specific
information, to resolve discovery issues regarding Ford’s other incident
production. Ford produced the documents in those open and closed lawsuit/claim
files upon which the parties agreed—so there is nothing more to compel. See Ex.
O4, pp. 11-19. Ford’s substantial and voluminous “other incident” document
production is complete. Plaintiffs’ Motion is based on pure speculation and should
Ex. O referenced in Ford’s suggestions was the transcript of a conference with the Court on
January 12, 2017.
(Doc. #75 at 8-9; footnotes omitted) Further, in opposing plaintiffs’ request that a Rule 30(b)(6)
deponent be compelled to testify as to other similar incidents, defendant contended a deposition
was unnecessary as the witness would only be able to “parrot the very documents Ford has
produced to plaintiffs.” (Doc. #75 at 17)
In response to Ford’s opposition to the motion to compel, plaintiffs filed reply
suggestions on March 8, 2017, contending that Ford’s production of OSI material had been
fragmented, shuffled and incomplete. (Doc. #78 at 6) Further, plaintiffs were concerned by
defendant’s use of language stating that documents were being produced “if available” and if
“non-privileged.” (Doc. #78 at 6) Plaintiffs’ reply suggestions attached a privilege log filed by
Ford in another case to demonstrate that if Ford was claiming some of its documents were
privileged, it was aware of its legal obligations to file a privilege log. (Doc. #78-4) As of March
8, 2017, the Court can find no assertion by defendant that any of the OSI documents responsive
to plaintiffs’ request were privileged.
The Court held a further discovery conference with the parties on March 16, 2017, and as
of that date Ford had still not made any claim of privilege with respect to the OSI information
sought by plaintiffs in the three document requests at issue nor had any privilege log been filed
with regard to OSI material. During the March 16, 2017 conference, it became clear that Ford
had reviewed only its open and closed files and not those of its outside counsel. (Doc. #83 at
63:21-24) Ford’s counsel took the position it was not prepared, at that conference, to address the
issue of its obligation to review outside counsel’s files for relevant information. (Doc. #83 at 8687) Ford’s counsel indicated that she had not looked into Ford’s obligation to review outside
counsel’s files for information relevant to the document requests because she thought there was
an agreement that Ford need only examine its open and closed files.
Other than a footnote where Ford represented it had reviewed its open and closed files,
see doc. #75 at n. 6, there was no evidence presented of any agreement between plaintiffs and
defense counsel that limited Ford's obligation to review other files under its “control” within the
meaning of Federal Rules of Civil Procedure 26(a)(1)(A)(ii) and 34(a)(1). Plaintiffs took the
position at the March 16, 2017 conference that defendant’s legal obligations were clear and that
Ford was required to review all files in their control for relevant material.5 (Doc. #83 at 89) In
subsequent briefing, Ford did not contend that it was not required to produce relevant documents
from outside counsel’s files, and in fact, one of the two privilege logs before the Court involves
OSI material found in outside counsel’s files.
Following the March 16 hearing, Ford produced two sets of privilege logs pertaining to
The first set of privilege logs for OSI material was dated March 22, 2017, six
days after the conference with the Court. (Doc. #84-7) A modified version entitled Second
Supplemental Privilege Log dated March 29, 2017, was submitted on a flash drive, along with
the documents to be reviewed in camera. This set of privilege logs will be referred to as the
March 29, 2017 privilege log. The second set of OSI privilege logs started with a privilege log
which was served on plaintiffs on May 19, 2017, a day after the plaintiffs’ revised motion to
compel was due. (Doc. #90 at 1) This new privilege log pertained to OSI material in the
Federal Rule of Civil Procedure 34 provides:
(a) In General. A party may serve on any other party a request within the scope
of Rule 26(b):
(1) to produce and permit the requesting party or its representative to
inspect, copy, test, or sample the following items in the responding party’s
possession, custody, or control . . . .
Fed R. Civ. P. 34(a)(1) (emphasis added). In the context Rule 34, control has been defined as the
legal right to obtain required documents on demand. See Gerling Int’l Ins. Co. v. Comm’r, 839
F.2d 131, 140 (3rd Cir. 1988); 8A Charles Alan Wright & Arthur R. Miller, Federal Practice and
Procedure § 2210 (2d ed. 1994).
possession of outside counsel. Due to the untimely service of the privilege log, plaintiffs
submitted further suggestions in support of their motion to compel and included the privilege log
(Pl. Ex. #49) as an exhibit. (Doc. #90; Doc. #90-1) At the June 15, 2017 hearing, defendant
stated that item numbers 1 through 8 of the privilege log had just been produced. (Doc. #96 at
8:22-25 to 9:1-11) Defendant then filed a sur-reply and attached a second amended privilege log
dated June 20, 2017, which removed the documents referenced at the June 15, 2017 hearing and
also inexplicably removed two other sets of photographs which were listed as item numbers 14
and 15 on Exhibit 49. (Doc. #97-1) This second set of privilege logs will be referred to as the
June 20, 2017 privilege log. At plaintiffs’ request, the Court agreed to review the documents
identified in the two OSI privilege logs in camera.
The documents on each of the two OSI privilege logs are identified by entry log number
with columns of information setting forth the bates number of the documents, the date, the
document type, the author, the recipient, a description of the document, the basis for the claim of
privilege and the claimant’s name. For each entry log number on the March 29, 2017 privilege
log, Ford is claiming both the attorney-client and work product privileges. Ford is only claiming
work product privilege with regard to the June 20, 2017 privilege log pertaining to OSI material
obtained from outside counsel. Thus, the Court must first consider the applicable legal standards
that govern consideration of the defendant’s privilege claims.
Applicable Legal Standards for the Privilege Claims
This is a diversity case and, therefore, state law applies to resolve the attorney-client
privilege claims and federal law governs the work product privilege issues. See Baker v. Gen.
Motors Corp., 209 F.3d 1051, 1053 (8th Cir. 2000). In recognition that it bears the burden of
establishing the existence of the privilege claims, Ford has produced the above mentioned
privilege log. While the rules do not specify what information must be provided in a privilege
log, courts have generally held that the privilege log should set forth specific facts which if taken
as true establish the elements of the privilege for each document for which the privilege is
claimed. See Fid. Nat’l. Title Ins. Co. v. Captiva Lake Invs., LLC, No. 4:10-CV-1890-CEJ, 2012
WL 3562207, at *3 (E.D. Mo. Aug. 17, 2012). Thus, it is important that the privilege log contain
a brief description or summary of the contents of the document, the date the document was
prepared, the person or persons who prepared the document, the person to whom the document
was directed and for whom the document was prepared, the purpose in preparing the document,
what privileges are asserted for each document and how each element of the privilege is met for
that document. See Highmark, Inc. v. Nw. Pipe Co., No. CIV 10-5089-JLV, 2012 WL 997007, at
*5 (D.S.D. Mar. 23, 2012).
Elements of Attorney-Client Privilege
A communication is subject to the attorney-client privilege when it is:
1) Information transmitted by voluntary act of disclosure; 2) between a client and
his lawyer; 3) in confidence; and 4) by a means which, so far as a client is aware,
discloses the information to no third parties other than those reasonably necessary
for the transmission of the information or for the accomplishment of the purpose
for which it is to be transmitted.
State v. Longo, 789 S.W.2d 812, 815 (Mo. Ct. App. 1990). Moreover, the communication must
have been made for the purposes of obtaining legal advice in order for the communication to be
privileged. See Pipes v. Sevier, 694 S.W.2d 918, 926 (Mo. Ct. App. 1985); Bussen v. Del
Commune, 199 S.W.2d 13, 20–21 (St. Louis Ct. App. 1947). Lastly, the attorney-client privilege
will only attach to communications between the attorney and the client when the client
reasonably expects their communication to remain confidential. See Longo, 789 S.W.2d at 815.
Elements of Work Product Privilege
The work product doctrine, as recognized under federal law, protects materials prepared
by an attorney in anticipation of litigation from discovery. See Hickman v. Taylor, 329 U.S. 495,
511, 67 S.Ct. 385, 91 L.Ed. 451 (1947). In order to protect work product, the party seeking
protection must show the materials were prepared in anticipation of litigation, i.e., because of the
prospect of litigation. See Binks Mfg. Co. v. Nat’l Presto Indus., Inc., 709 F.2d 1109, 1118–19
(7th Cir.1983). Once a work product privilege has been established, it is important to distinguish
between the two kinds of work product —“ordinary work product and opinion work product.”
Baker, 209 F.3d at 1054 (citing Gundacker v. Unisys Corp., 151 F.3d 842, 848 n. 4 (8th Cir.
1998)). Ordinary work product includes raw factual information and is not discoverable unless
the party seeking discovery has a substantial need for those materials and cannot obtain the
materials by other means. Id. Opinion work product consists of counsel’s mental impressions,
conclusions, opinions or legal theories and enjoys almost absolute immunity, making opinion
work product discoverable in only rare and extraordinary circumstances. Id.; see also In re
Murphy, 560 F.2d 326, 336 (8th Cir. 1977).
Document Review of the OSI Material
Just prior to the June 15, 2017 hearing, Ford produced all of the OSI material for the
Forsythe case for which it had been asserting privilege claims on the May privilege log. (Doc.
#96 at 8) Plaintiffs further withdrew their request for records from the March 29, 2017 privilege
log concerning the McIntosh, Charles, Beachy, Robinson, Kotansky and Volrath claims. (Doc.
#88 at 8-10; doc. #96 at 13:1-17) Thus, plaintiffs’ motion to compel OSI material referenced on
the March 29, 2017 privilege log is now limited to the following individuals: Dunwoody,
Becking, Pezak, McKenzie, Nelson, Osborne and Amory. (Doc. #96 at 12-13; doc. #88 at 8-10)
March 29, 2017 Privilege Log
The following are the pertinent log entries before the Court in connection with the March
29, 2017 privilege log:
Log Entry No. 6
Log Entry No. 7
Log Entry No. 11
Log Entry No. 16
Log Entry No. 17
Log Entry No. 18
Log Entry No. 19
Log Entry No. 20
Log Entry No. 21
OSI Documents Reviewed for Attorney-Client Privilege
In its briefing, Ford claims that the attorney-client privilege is proper for these documents
for the reasons that:
Ford has properly claimed that handwritten inspection notes and memoranda from
its Design Analysis Engineers are privileged attorney-client communications and
attorney-work product. The handwritten notes and memoranda are governed by
the attorney client privilege because they are communications between Ford and
Ford’s counsel, made during the course of an attorney-client relationship related
to then-active litigation. As such, these documents are immune from discovery.
(Doc. #92 at 10) (citations omitted)
Moreover, all of the logged documents are privileged and should not be ordered
produced to Plaintiffs. Ford has established that all of the remaining entries on
Ford’s March 22, 2017, Privilege Log (Dkt. 84, Exhibit 34), Entries Nos. 6
through 21, constitute attorney-client communications and opinion work product
and are thus are immune from discovery. See Dkt. 92, pp 4-7. Baker, supra.
(Doc. #97 at 4)
Particularly in the context of documents created by a corporation for which a claim of
attorney-client privilege is raised, it is important to know who prepared and who received or had
access to the documents since the information must have been transmitted between the lawyer
and his client for the purpose of obtaining legal service or advice and involves the lawyer in his
capacity as a lawyer. See Electric Power Syst. Int’l, Inc., v. Zurich Amer. Ins. Co., 15-CV-1171
CDP, 2016 WL 3997069, at *2 (E.D. Mo., July 26, 2016). A communication by a lower level
employee is covered by the attorney-client privilege when:
(1) the communication was made for the purpose of securing legal advice; (2) the
employee making the communication did so at the direction of his corporate
superior; (3) the superior made the request so that the corporation could secure
legal advice; (4) the subject matter of the communication is within the scope of
the employee's corporate duties; and (5) the communication is not disseminated
beyond those persons who, because of the corporate structure, need to know its
DeLaporte v. Robey Bldg. Supply, Inc., 812 S.W.2d 526, 531 (Mo. Ct. App. 1991) (quoting
Diversified Indus., Inc. v. Meredith, 572 F.2d 596, 609 (8th Cir. 1978)). The recipient column on
the March 29, 2017 privilege log is blank except for two Log Entry numbers 11 (Pezak) and 18
(Osborne), meaning that for all other entries there is no indication of who received the
documents. All entries on the privilege log, except for Log Entry numbers 6 (Dunwoody) and 7
(Becking), contain the following statement: “Because this matter was a non-litigated claim and
not a lawsuit, Ford can confirm this memorandum was not disseminated outside of Ford.”
However, whether a document is disseminated outside of the corporation is not the test of
whether a document created by Ford’s attorneys or at their request has been treated as
confidential and not disclosed to individuals other than the client.
Responding to various
criticisms of its privilege logs by plaintiffs, Ford contends that:
And even if this Court determines that Ford’s Privilege Logs are deficient in some
manner, a finding of waiver is not the appropriate remedy. Progressive Cas. Ins.
Co. v. F.D.I.C., 298 F.R.D. 417, 421 (N.D. Iowa 2014) (“even if a privilege log
provides insufficient information,” waiver as a sanction is “disfavored absent bad
faith, willfulness, or fault.”). Such factors are not present here, so no waiver
should be found.
(Doc. #97 at 4)
Because the Court did not believe it could fairly rule on the motion to compel by simply
reviewing the March 29, 2017 privilege log, it has now reviewed the documents in camera. On
the basis of that review, the Court concludes that the following documents are not subject to the
attorney-client privilege: Log Entries 6, 7, 16, 17, 19, 20, and 21.
The Court has concluded that the attorney-client privilege does not protect these
documents from discovery as they contain factual information. Other courts have not hesitated
to reject attorney-client privilege claims where the information is primarily factual:
This does not mean that discoverable factual information can be made privileged
by being recited by the attorney or the client in their confidential communications.
Only the actual attorney-client communications are privileged. For example, in
this case the relators had an investigation of the fire made by GAB which made
various reports to relators. In addition, the FBI conducted surveillance of persons
preceding the fire at Cannova’s restaurant on December 24, 1973, made further
investigation after the fire, and submitted a written report covering that
surveillance and investigation to Dr. McNamara, then Kansas City Chief of
Police, on January 18, 1974. A copy of that report was obtained by Risjord [the
attorney]. It and the GAB reports were furnished to Cannova pursuant to its
discovery efforts. If these had been attached to or discussed in the letters from
Risjord [the attorney] to relators, the fact that the attorney’s letters would be
privileged would not cause the GAB reports or the FBI letter to become protected
by the attorney-client privilege. They still would be discoverable under Rule
State ex rel. Great Amer. Ins. Co. v. Smith, 574 S.W.2d 379, 385 (Mo. en banc 1978). See Bd.
of Registration for the Healing Arts v. Spinden, 798 S.W.2d 472, 476 (Mo. Ct. App. 1990)
(rejecting a claim of attorney-client privilege for investigative reports, prepared at the direction
of the Board of Healing Arts as part of a disciplinary action against a doctor in which counsel for
the Board participated, for the reason that the reports contained factual information). While the
issue of attorney-client privilege is governed by state law, courts have almost universally
accepted the premise that factual information is not protected by this privilege. As the court
noted in Oasis International Waters, Inc. v. United States, 110 Fed.Cl. 87 (2013):
In addition, although the privilege protects the substance of attorney-client
communications, “it does not protect disclosure of the underlying facts by those
who communicated with the attorney.” Upjohn Co. v. United States, 449 U.S. at
395, 101 S.Ct. 677. Underlying facts, therefore, are independently discoverable,
but the facts that a client included in a request for legal advice to assist the
attorney in providing legal services are privileged in the context of an attorneyclient communication. See Muro v. Target Corp., 250 F.R.D. 350, 363
(N.D.Ill.2007), aff'd, 580 F.3d 485 (7th Cir. 2009); Kintera, Inc. v. Convio, Inc.,
219 F.R.D. 503, 508–09 (S.D.Cal. 2003); see also Upjohn Co. v. United States,
449 U.S. at 395–96, 101 S.Ct. 677 (“‘A fact is one thing and a communication
concerning that fact is an entirely different thing.’” (quoting City of Philadelphia
v. Westinghouse Elec. Corp., 205 F.Supp. 830, 831 (E.D.Pa. 1962))). A client
cannot shield a document from discovery by including it in a request for legal
advice. Fisher v. United States, 425 U.S. at 403–04, 96 S.Ct. 1569; see also
Evergreen Trading, LLC ex rel. Nussdorf, 80 Fed.Cl. 122, 138 (2007).
Oasis International Waters, Inc. v. United States, 110 Fed.Cl. 87, 99-100 (2013). As support for
this claim of privilege, Ford also relies on PepsiCo, Inc. v. Baird, Kurtz & Dobson, LLP, 305
F.3d 813 (8th Cir. 2002). (Doc. #92 at 10) It should be noted that in PepsiCo, the Eighth Circuit
was interpreting an Illinois statute which established an accountant-client privilege; and thus, the
Missouri attorney-client privilege doctrine was not at issue. In concluding that the accountantclient privilege did not apply to non-financial consulting services rendered by an accounting
firm, the Eighth Circuit cited several cases involving attorney-client privilege issues including
Simon v. G. Searle & Co., 816 F.2d 397, 403 (8th Cir. 1987), for the proposition that “legal
departments are not citadels where information may be placed to defeat discovery; business
documents sent to corporate officers are not automatically privileged.” PepsiCo, Inc., 305 F.3d at
816. Thus, PepsiCo provides little support for Ford’s claim of attorney-client privilege in this
Parts of Log Entry 11, which similarly contain purely factual information, are not subject
to the attorney-client privilege including the finding section at page AB075491 (this section
reports what was observed during testing), the diagram showing damage at page AB075493, and
pages AB075494 and AB075495.6 With the exception of this information, production of Log
Entry 11 will be denied. Log Entry 18 contains the opinions of the Ford employee as to what he
was observing during an inspection of the vehicle and directed to a claims analyst apparently in
the Office of General Counsel (OGC). While the privileged nature of the document could be
better explained, the Court will deny production of that document.
b. OSI Documents Reviewed for Work Product Privileges
The determination that documents reflected in particular log entries are not protected by
the attorney-client privilege does not end this Court’s inquiry since Ford has also claimed the
work product privilege for the documents in question.
With respect to the work product
privilege as to ordinary work product, Ford maintains that plaintiffs cannot show that it has a
substantial need for the material and that it cannot obtain the materials by other means — the
two requirements for overcoming a claim of privilege for ordinary work product.
Citing Gundacker v Unisys Corp., 151 F. 3d 842, 847 (8th Cir. 1998), Ford argues that
where material is not relevant, plaintiffs cannot demonstrate a substantial need for the material.
(Doc. #97 at 5) In this case, Ford claims that plaintiffs:
have not provided the Court with one scintilla of evidence establishing that the
three cases at issue, Bryant, Dunwoody, and Hood, are sufficiently similar in
terms of vehicle, accident, or alleged cause of non-deployment that those cases
would ever be admissible as other incidents against Ford.
(Doc. #97 at 5) However, the document requests dealt with other accidents involving nondeployment in moderate to severe frontal impact crash events where serious occupant injuries
Log Entry 11 is described in the privilege log as the LaPointe memo. However, only one page
appears to have Mr. LaPointe’s name on it. By attaching a number of pages of documents to this
one entry log without further description it is difficult to determine who authored pages
AB075494 and AB075495. However, they appear to record factual information concerning the
condition of the vehicle, and in any event it is up to defendant to demonstrate the existence of the
resulted (Doc. #49-2 at RFP No. 8) or cases where the driver’sairbag did not deploy during
frontal crashes where deployment was expected (doc. #49-2 at RFP No. 10).
negotiations, the parties narrowed down the scope of the requests, but it is clear from the requests
and discussions during the various status conferences that plaintiffs are not seeking accidents that
were not frontal impact collisions or that were not similar to the accident in this case.
More importantly, the scope of discovery in connection with other potentially similar
accidents is much broader than the question of whether the other accident information is
sufficiently similar to be admissible at trial.
In a case involving what constituted similar
accidents, Continental Tire objected to producing other accident information on the basis that the
information was not relevant because the plaintiffs had not demonstrated the other accidents
were sufficiently similar to be used at trial. See Albee v. Cont’l Tire N. Amer. Inc. et al., No.
Civ. S-09-1145-LKK/EFB, 2010 WL 1729092 (E.D. Cal. April 27, 2010).
As the court
explained in Albee:
The distinction between admissibility at trial and discoverability is especially
significant where, as here, a threshold question is factually intensive. Information
necessary to determine whether products are similar will ordinarily be within the
control of the manufacturer and/or designer. The rules cannot be read as imposing
a “Catch-22” that would require proof of similarity before a party may discover
evidence of similarity.
Albee, 2010 WL 1729092, at *7.
Ford also argues that plaintiffs have not demonstrated they cannot obtain the information
by other means because:
Ford has provided Plaintiffs with the names and addresses of the other parties,
their counsel, and in some cases, their experts. Plaintiffs can contact the attorneys
in those cases for further information; they can obtain case materials,
photographs, and documents that might have been maintained by those lawyers to
provide the additional information Plaintiffs seek; and, if the plaintiffs in those
cases identified experts, they can take those experts’ depositions, as well as the
plaintiffs’ depositions themselves.
Absent a showing that they cannot obtain materials from these other sources,
Plaintiffs cannot overcome Ford’s claim of privilege. See Bradley v. Wal-Mart
Stores, Inc., 196 F.R.D. 557, 558 (2000) (no substantial need shown for
production of surveillance videotape where other evidence regarding plaintiff’s
injuries was available).
(Doc. #92 at 13) In Bradley v. Wal-Mart Stores, Inc., 196 F.R.D. 557 (E.D. Mo. 2000) the issue
was whether a surveillance tape, which the defendant did not intend to use at trial, was subject to
production as evidence of the plaintiff's injuries. The court upheld the claim of work product
privilege and citing cases from other jurisdictions, held that where a plaintiff had her own
testimony, the testimony of other witnesses, medical records, and testimony and reports of
treating physicians and retained experts, the plaintiff has no need of the work product video tape.
Bradley, 196 F.R.D. at 558.
Here the information sought is not within plaintiffs’ control.
Further counsel has
submitted information concerning why the information is relevant and affidavits concerning his
efforts to obtain other information. (See doc. #88 at 8-10; doc. #94-1 (Pl. Ex. 50); doc. #94-2 (Pl.
Ex. 51)) Accordingly, the Court finds that the factual information contained in the documents
listed on the March 29, 2017 privilege log, which are not subject to the attorney-client privilege,
as described above, must be produced as plaintiffs have satisfied the requirements for
overcoming the claim of work product privilege.
2. June 20, 2017 Privilege Log
This privilege log claims the work product privilege for photographs taken of vehicles following
accidents. (See Doc. #97-1 Log Entries 1, 2, 3, 5, and 6) Plaintiffs contend these cases involve
similar accidents in that the airbags are alleged not to have deployed after moderate to severe
frontal impacts and that photographic evidence of the condition of the fuse and other parts of the
vehicles are essential to their claim. Ford asserts the work product privilege for photographs
taken in the Bryant, Dunwoody and Hood cases as well as for the initial draft of an expert report
(doc. #97-1 Log Entry 4). As discussed above, plaintiffs have established a substantial need for
OSI material and have offered evidence that counsel for plaintiffs has attempted to obtain the
photographs from other sources and was not able to do so because of the age of the cases. (Doc.
#94; doc. #94-1) Accordingly, consistent with the above discussion, the Court finds that the
photographs in the Bryant, Dunwoody, and Hood cases, Log Entries 1, 2, 3, 5, and 6, should be
The initial draft of the expert report in the Bryant case, log entry 4, is not discoverable.
The initial draft of the expert report contains conclusions by the expert which were provided to
Ford’s counsel for purposes of litigation but were never subsequently used in the course of the
litigation. Plaintiffs have not shown a need for such information and, therefore, the privilege
III. SUSPENSION ORDERS
Plaintiffs’ initial motion to compel and suggestions in support, doc. ##48 and 49, sought
to compel Ford to produce suspension order 859981 or any other suspension orders referencing
the frontal air bag system of any Ranger and Mazda B-Series trucks for the model years 1996
through 2003 as well as the GIS1 or any other documents concerning Ford's document retention
policy. (Doc. #49 at 7-11; See doc. #49-2, RFP ## 5, 6) Plaintiffs claim to be entitled to the
suspension orders along with the document retention policy so that they can ascertain what
categories of relevant information are available. (Doc. #49 at 7) Ford responded to the request
for suspension orders by claiming that the documents requested were irrelevant and subject to the
attorney-client and work product privileges and provided a privilege log. (Doc. #75 at 9-14; doc.
#75-1 Response to RFP #5; doc. #49-8) Ford objected to the production of the document
retention policy, GIS1, on the basis of relevancy, but no privilege claims were raised. (See doc.
#75-1 Response to RFP #6)
Since the filing of the motion to compel, it is the Court’s
understanding that Ford has produced its document retention policy. (Doc. #85, at 63:15-16)
Thus, only the suspension orders are at issue. And at least as to one suspension order, plaintiffs'
counsel has copies based upon the unrestricted production of the document in earlier litigation.
Ford produced a privilege log (doc. #49-8) for the suspension orders and submitted the
documents for in camera review. In the Court’s view, the privilege log is wholly inadequate. It
has one entry listed for which information is provided. That entry is described as "859981
(various versions and including 95P000002, 96P00002)." However, pursuant to that one entry,
the following documents were submitted for in camera review. Exhibits K, L, M and N which
appear to be documents ##75-11, 75-12, 75-13 and 75-14, which had already been filed as
attachments to Ford’s suggestions in opposition to the motion to compel. Thus, these documents
are not properly part of the in camera submission. The actual documents which the Court has
reviewed in camera are all titled SO 859981 v and then a number from 23 to 35. Each is the
suspension order for a particular date from December 19, 2007 to December 16, 2014.
The Court has reviewed each of the documents, along with the argument and cases
submitted or referenced by the parties. It should be noted that many of the cases cited by both
parties simply denied or granted the request for suspension orders without explanation. In the
Court’s view, the most cogent discussion of the attorney-client privilege as it pertains to these
types of suspension orders is found in the Order of the Discovery Commissioner No. 1 in Sonny
J. Symes v. Ford Motor Company. (Doc. #49-13) The evidence offered to support or oppose the
attorney-client privilege issues in Symes was very similar to the information provided to this
Court. Attached to the briefing in this case is an affidavit of an attorney in the Office of General
Counsel stating in part that:
12. The legal advice that I provide, and the mental impressions, conclusions,
opinions, and legal theories set out in Suspension Orders are distributed to
employees within the company so that the legal advice contained therein may be
implemented. Ford employees receiving notification about Suspension Orders
are informed that these communications are protected by the attorney-client
(Pride Affidavit, Doc. #75-11 at ¶12) In Symes, similar information was provided by the
affidavit of an attorney in the OGC stating that the suspension order consisted of legal advice
from the OGC to their “client.” (Doc. #49-13 at 20-21) And, as in Symes, plaintiffs in this case
submitted portions of the June 21, 2005 deposition of Elizabeth Adkins, Director of Ford’s
Global Information Management Program. (Doc. #78-12) Ms. Adkins testified that anyone at
Ford had access to the OGC database to see suspension orders. (Doc. #78-12 at 14) She further
indicated that approximately 170,000 people worldwide would have to comply with the
suspension order program. (Doc. #78-12 at 15)
In evaluating the claim of attorney-client privilege based upon this type of evidence, the
Commissioner in Symes found that the claim that suspension orders reflect counsel's mental
impressions and legal theories “vastly overstates what can reasonably be gleaned” from the
documents. (Doc. #49-13 at 30) The Commissioner further concluded:
It bears repeating that Suspension Orders appear to do nothing more that
[sic] direct that all documents which may relate to a product claim should be
preserved rather than destroyed. There is no evident “selection process” by which
documents might be identified as either helpful or potentially detrimental to
Ford's prospective presentation of its defenses. There is nothing reflecting how
Ford counsel might evaluate the company's responses to discovery.
Advice on the law seems associated with something inherently strategic
rather than something that is purely procedural (such as keeping records rather
than tossing them out). A directive to an employee to “keep this” seems far more
a matter of routine business practice associated with normal document retention.
Any underlying discussions lawyers may have with any other company personnel
leading up to the creation of the directive are not included. It is accordingly
determined that the Suspension Orders do not rise to the level of “legal advice”
necessary as part of the attorney-client privilege.
(Doc. #49-13 at 30)
A suspension order is a modification of the normal document retention policy, for which
Ford did not assert a claim of privilege. The Court agrees with the reasoning of Symes that there
is no evident selection process by which documents may be identified as helpful or detrimental
to Ford’s presentation of its defense. And there is nothing in the documents reflecting how
Ford’s counsel might evaluate the company’s response to discovery. (Doc. #49-13 at 30) Thus,
the Court rejects defendant’s attorney-client privilege claim for the suspension orders.
However, defendant has also challenged the relevancy of the suspension orders as well as
asserting a work product privilege for the documents. Not only must the party seeking discovery
demonstrate the relevancy of any information sought through the discovery process, but before
the work product privilege may be overcome, plaintiffs must show a need for the information. In
Symes, the Commissioner concluded that the plaintiff had demonstrated a need for the
suspension orders, thereby overcoming the work product doctrine because the plaintiff intended
to offer an instruction at trial on spoliation based upon the alleged destruction of certain test data.
(Doc. #49-13 at 33) The Court recognizes that the issue of spoliation has been present when the
production of suspension orders has been ordered in some of the other relevant caselaw.
Plaintiffs have raised the issue of spoliation in briefing. (See doc. #94, referring to exhibit
numbers 44 (doc. #88-5) and 45 (doc. #88-6), which were attached to an earlier brief (doc. #88)).
In the Court’s view, documents 44 and 45 have not been properly authenticated or even
explained by plaintiffs’ counsel. Thus, the Court will not infer that spoliation is an issue in this
case based upon the current status of the briefing. However, the parties in this case have had
ongoing and contentious discovery disputes for the last year. These disputes range from the
format of the document production which necessitated plaintiffs hiring a third party vendor to try
and make the electronic production usable and has extended to what was relevant OSI material.
The initial discovery requests were submitted over one year ago. According to plaintiffs, over
3,700 documents have been produced by Ford since the filing of the motion to compel. (Doc.
#88 at 2) The Court notes that Ford did not produce privilege logs as to OSI material until after
several court conferences and a motion to compel had been filed. Furthermore, defendant admits
that outside counsel has destroyed some files. (Doc. #85 at 29:9-10) Given the many discovery
issues which have unnecessarily extended the time for resolving this case, the Court believes that
plaintiffs have demonstrated the relevancy and their substantial need for the suspension orders in
order to try and determine as quickly as possible if all relevant documents have been produced 7.
Accordingly the Court finds that the suspension orders, referred to as SO 859981 v and
then a number from 23 to 35, should be produced.
Based on the foregoing, it is
ORDERED that Plaintiffs’ Motion to Compel Ford’s Responses to Plaintiffs’ Request for
Production and Plaintiffs’ Rule 30(b)(6) Topics (doc. #48) is GRANTED IN PART and
DENIED IN PART consistent with the above analysis.
/s/ Sarah W. Hays
SARAH W. HAYS
UNITED STATES MAGISTRATE JUDGE
The suspension orders each have a paragraph of information describing generally the types of
litigation that have led to the suspension order. To the extent that defendant believes this
information somehow reflects confidential information, that paragraph may be redacted.
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