The Church of Christ at Azalea Drive v. Forest River Inc et al

Filing 44

ORDER granting 40 Motion to Compel; granting in part and denying in part 37 Motion to Compel Signed by Honorable Patrick Michael Duffy on May 23, 2013.(kspa, )

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF SOUTH CAROLINA
CHARLESTON DIVISION

THE CHURCH OF CHRIST
AT AZALEA DRIVE,
on behalf of itself and
all others similarly situated,

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Plaintiff,
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v.
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FOREST RIVER, INC., and
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STARCRAFT BUS, a Division of
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Forest River, Inc.,
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Defendant.
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____________________________________)

C.A. No.: 2:11-cv-3371-PMD

ORDER

This matter is before the Court upon two motions to compel filed by Plaintiff Church of
Christ at Azalea Drive (“Plaintiff”). In both motions to compel, Plaintiff asks the Court to
compel Defendants Forest River, Inc., and Starcraft Bus (collectively “Defendants”) to produce
certain documents in response to Plaintiff’s First Requests for Production. For the reasons set
forth below, the Court grants in part and denies in part Plaintiff’s motions.
BACKGROUND
Plaintiff filed this action as a putative class action against Defendants on behalf of all
South Carolina residents who purchased a Starcraft bus. Plaintiff claims that its 2005 Starcraft
XLT bus (a 34-passenger bus) with a Gross Vehicle Weight Rating of 19,500 pounds violates
Federal Motor Vehicle Safety Standards (“FMVSS”) and 49 C.F.R. § 567.5 because the bus
weight exceeds the certification when passenger and cargo weight is taken into account. Plaintiff
has alleged a single cause of action for breach of express warranty under S.C. Code Ann. § 36-2213. Defendants deny all allegations of wrongdoing.
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The parties jointly sought a stay of these proceedings in order to facilitate potential
settlement talks, which might also encompass a potential nationwide settlement. The parties
entered into a Memorandum of Understanding on July 24, 2012, that set out the agreed terms
under which the parties could explore a possible settlement. When settlement efforts failed, the
Court issued a second amended scheduling order that bifurcated class certification discovery and
merits discovery. The current motion falls during the discovery phase for class certification.
STANDARD OF REVIEW
The Federal Rules of Civil Procedure provide that a party “may obtain discovery
regarding any nonprivileged matter that is relevant to any party’s claim or defense—including
the existence, description, nature, custody, condition, and location of any documents or other
tangible things and the identity and location of persons who know of any discoverable matter.”
Fed. R. Civ. P. 26(b)(1). “Relevant information need not be admissible at the trial if the
discovery appears reasonably calculated to lead to the discovery of admissible evidence.” Id. If
a party fails to produce a requested document, the requesting party may move for an order
compelling production. Id. 37(a)(3)(B). “For good cause, the court may order discovery of any
matter relevant to the subject matter involved in the action.” Id. 26(b)(1). “The party opposing a
motion to compel bears the burden of showing why it should not be granted.” Beazer Homes
Corp. v. Hartford Fire Ins. Co., C.A. No. 4:10-cv-2419-RBH-TER, 2012 WL 6210323, at *4
(D.S.C. Dec. 13, 2012).
ANALYSIS
I.

Plaintiff’s Request for Production No. 15
In both its first and second motions, Plaintiff moves to compel Defendants to respond

fully to Request No. 15, which asks for:

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All owner reports, complaints, communications, consumer letters, customer
complaints, fleet complaints, electronic dealer service reports, and service
investigation reports, insurance reports and claims, engineering reports, vehicle
owner questionnaires, surveys, memoranda, and emails or other communications
concerning the subject vehicles.
The term “subject vehicles” is defined in Plaintiff’s Request for Production as “all of your buses
sold to South Carolina purchasers.” In response, Defendants produced four pages of documents
relating to only the Starcraft XLT bus purchased by Plaintiff. In its first motion to compel,
Plaintiff argues that Defendants’ narrowing of their responses to only the XLT model was
improper because the case involves Defendants’ certification protocol across its entire Starcraft
bus inventory. Following receipt of Plaintiff’s first motion to compel, Defendants supplemented
their responses to Request No. 15 by turning over correspondence with two other owners of
Starcraft buses. Plaintiff then filed its second motion to compel, requesting that Defendants
provide complete bus files for XLT buses sold to South Carolina residents. Plaintiff complains
that despite a letter from Defendants’ counsel dated March 22, 2013, in which counsel explained
that “[f]or class certification discovery purposes, Forest River considers XLT model buses (like
Plaintiff’s bus) sold in South Carolina to South Carolina residents to be the ‘subject vehicles,’”
Defendants refuse to provide bus files for all XLTs sold to South Carolina residents.
In response to Plaintiff’s first motion, Defendants argue that Plaintiff’s request is wholly
overbroad and unduly burdensome, without limitation to time, geography, or similarity to
Plaintiff’s Starcraft XLT bus. Defendants maintain that XLT model buses sold in South Carolina
to South Carolina residents are the only potentially relevant buses to Plaintiff’s bus, and thus any
broader interpretation is unduly burdensome and an erroneous use of discovery at the class
certification stage. However, in response to Plaintiff’s second motion, Defendants argue that
discovery on buses other than Plaintiff’s own XLT bus should not be permitted because those
files are not needed to address class certification Rule 23 requirements.
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According to

Defendants, numerous discovery tools exist to conduct discovery on the issue of their
certification protocol without delving into files of other buses that were purchased by absent
class members. Finally, Defendants argue that Plaintiff’s request is not reasonably limited in
time or date of manufacture and that any document dating back to 2002 is beyond the scope of
permissible discovery because the statute of limitations is six years.
During this pre-certification stage of discovery, the question before the Court is “whether
the information and documents sought by the plaintiff can be rightly characterized as necessary
to assist the Court in its decision whether or not to certify the class”—that is, whether they shed
light on the class certification Rule 23 requirements of numerosity, commonality, typicality, and
adequacy of representation. Griffin v. Harley Davidson Credit Corp., C.A. No. 8:08-cv-466HFF-BHH, 2010 WL 233764, at *2 (D.S.C. Jan. 24, 2010). In its second motion, Plaintiff
contends that the requested documents relating to XLT buses sold to South Carolina residents
may reveal problems inherent in Defendants’ certification protocols, which would be highly
relevant to the issue of commonality under Rule 23. The Court agrees and also finds that such
documents may aid the Court in making its determination regarding numerosity and typicality.
In making class action findings, this Court cannot simply accept at face value the Complaint’s
allegation that the same certification techniques were uniformly applied to all buses. See Gariety
v. Grant Thornton, LLP, 368 F.3d 356, 365 (4th Cir. 2004) (overruling district court for simply
accepting allegations of complaint at face value in making class action findings). Thus, the
Court concludes that information regarding the certification process for other buses sold to South
Carolina residents is discoverable.
In its first motion, Plaintiff maintains that it is entitled to discovery related to the
improper certification protocol for all Starcraft buses, regardless of whether the particular model
was sold in South Carolina. The Court disagrees. The Complaint describes the proposed class as
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“all South Carolina residents who purchased a Starcraft bus.” Therefore, the Court fails to see
how discovery related to bus models that were never sold to South Carolina residents could aid
the Court in determining whether or not to certify the class. The Court agrees with Defendants
that Request No. 15 should be limited in geographical scope, at least at this stage of discovery,
and thus will limit production to buses that were sold to current South Carolina residents.
However, the Court does not agree with Defendants’ position that only the XLT model is
relevant at this stage in discovery. At the status conference held on March 11, 2013, the parties
disagreed about whether or not the scope of this putative class action should include both large
and small models of Starcraft buses. It is clear from the memoranda currently before the Court
that this dispute remains unresolved. Thus, at the certification stage, the Court most likely will
have to determine whether or not to include South Carolina purchasers of non-XLT model buses
within the class or a subclass.

Accordingly, the Court concludes that Plaintiff should be

permitted to conduct discovery on all models of Starcraft buses that were purchased by current
South Carolina residents. See Artis v. Deere & Co., 276 F.R.D. 348, 351 (N.D. Cal. 2011)
(observing that “discovery is likely warranted where it will resolve factual issues necessary for
the determination of whether the action may be maintained as a class action, such as whether a
class or set of subclasses exist[s]”). Accordingly, the Court grants Plaintiff’s motion to compel
Defendants to produce “[a]ll owner reports, complaints, communications, consumer letters,
customer complaints, fleet complaints, electronic dealer service reports, and service investigation
reports, insurance reports and claims, engineering reports, vehicle owner questionnaires, surveys,
memoranda, and emails or other communications” from 20021 to the present relating to all
Starcraft buses purchased by current South Carolina residents.

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The Court is not persuaded by Defendants’ argument that 2002 is beyond the scope of this case because the
relevant statute of limitations is six years. Under S.C. Code. Ann. § 36-2-725(2), a “cause of action accrues for

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II.

Plaintiff’s Request for Production No. 19
In its first motion, Plaintiff moves to compel Defendants to respond fully to Request No.

19, which asks for “All documents relating to FMVSS compliance for the subject vehicles.”
According to Plaintiff, Defendants failed to produce spreadsheets detailing their FMVSS
certification protocol. Plaintiff contends that these spreadsheets are not work product because
Defendants collected and compiled the data to comply with their regulatory obligations to the
federal government and not solely in anticipation of litigation. Plaintiff further argues that even
if the spreadsheets are work product, Plaintiff possesses substantial need for the purely factual
information contained in the spreadsheets in order to prepare its case and is unable, without
undue hardship, to obtain equivalent materials by other means.
Defendants respond that the spreadsheets are protected by both the attorney-client
privilege and the work product doctrine because they were prepared upon defense counsel’s
request after litigation had begun. According to Defendants, the spreadsheets were not created in
the ordinary course of business, but rather were created after Defendants initially received and
responded to Request Nos. 15 and 19 in 2012.

Because Defendants’ counsel specifically

requested that certain data be compiled in spreadsheet form to help counsel discuss defenses and
litigation strategy with Defendants, they contend that the spreadsheets are protected attorneyclient communication.
The attorney-client privilege protects “[c]onfidential disclosures by a client to an attorney
made in order to obtain legal assistance.” Fisher v. United States, 425 U.S. 391, 403 (1976). The
privilege is meant to “encourage full and frank communication between attorneys and their
clients and thereby promote broader public interests in the observance of law and administration

breach of warranty when the breach is or should have been discovered.” Thus, information dating back to 2002 may
be relevant where the alleged breach of warranty was not discovered until years after the sale.

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of justice.” Upjohn Co. v. United States, 449 U.S. 383, 389 (1981). The attorney-client privilege
“protects not only the giving of professional advice to those who can act on it but also the giving
of information to the lawyer and the gathering of information by the attorney to enable him to
give informed advice.” AVX Corp. v. Horry Land Co., Inc., C.A. No. 4:07-cv-3299-TLW-TER,
2010 WL 4884903, at * 4 (D.S.C. Nov. 24, 2010) (quotations and citations omitted). “What is
vital to the privilege is that the communication be made in confidence for the purpose of
obtaining legal advice from the lawyer.” United States v. Kovel, 296 F.2d 918, 922 (2d Cir.
1961).
Defendants contend that the spreadsheets were created to enable defense counsel to
advise Defendants on litigation strategy and the possibility of settlement. In a declaration, the
general manager of Starcraft Bus asserted that after the filing of this lawsuit, Defendants’
attorney requested that particular information be pulled from the files of Starcraft Bus, that
certain calculations be made using variables he requested, and that the data be compiled in a
certain way to aid his analysis. Accordingly, Starcraft Bus employees compiled the requested
information in the spreadsheets now requested by Plaintiff. The general manager further averred
that the spreadsheets have never been shared with any third party or government agency, were
not used in the normal course of business, and were not required by any regulatory agency.
There is no evidence contradicting the general manager’s assertions.
The Court concludes that the spreadsheets are protected by the attorney-client privilege.
The specific data was compiled and calculations were made at the request of counsel following
the commencement of litigation and for the purpose of rendering legal advice regarding this case.
Furthermore, there is no evidence that the spreadsheets have ever been disclosed to a third party.
Under these facts, the Court concludes that the spreadsheets are protected from disclosure and
thus denies Plaintiff’s motion to compel production of these spreadsheets. See In re Air Crash at
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Charlotte, N.C. on July 2, 1994, 982 F. Supp. 1052, 1054 (D.S.C. 1995) (denying motion to
compel data compilations that were calculations made at the request of counsel in preparation for
litigation where movants had been provided with the raw data upon which the calculations were
made). However, the Court finds that the raw data relating to FMVSS certification of South
Carolina buses upon which Defendants drew to create the spreadsheets is not protected by the
privilege and is responsive to Request No. 19. See id. Thus, to the extent that Defendants have
not produced non-privileged documents containing raw data relating to FMVSS compliance for
Starcraft buses sold to South Carolina residents, Defendants must produce those documents to
Plaintiff.2
CONCLUSION
Based on the foregoing, it is ORDERED that Plaintiff’s Second Motion to Compel
Defendants’ Production of Documents be GRANTED, and that Plaintiff’s First Motion to
Compel Production of Defendants’ Documents be DENIED as to Defendants’ spreadsheets but
be GRANTED as to the documents requested in Request No. 15 dating from 2002 to the present
and relating to all Starcraft buses purchased by current South Carolina residents. Defendants
will have fifteen (15) days from the date of this order to produce the documents.
AND IT IS SO ORDERED.

May 23, 2013
Charleston, SC

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In light of the Court’s conclusion that the spreadsheets are protected by the attorney-client privilege, the Court does
not reach the issue of whether the spreadsheets also are protected by the work product doctrine.

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