Lindholm et al v. BMW of North America, LLC
OPINION AND ORDER granting in part 38 Motion to Compel; denying 38 Motion for Attorney Fees; denying 38 Motion for Bill of Costs. Signed by U.S. District Judge Roberto A. Lange on 04/25/2016. (LH)
UNITED STATES DISTRICT COURT
DISTRICT OF SOUTH DAKOTA
BRUCE LINDHOLM, individually and as
personal representative of the ESTATE OF
ALEXANDER NELS LINDHOLM, and
VANOOSHEH LINDHOLM, individually,
OPINION AND ORDER
GRANTING IN PART PLAINTIFFS'
SECOND MOTION TO COMPEL
BMW OF NORTH AMERICA, LLC,
Plaintiffs Bruce Lindholm, individually and as personal representative of the Estate of
Alexander Nels Lindholm, and Vanoosheh Lindholm filed a Notice of Motion and Motion to
Compel Discovery and for an Award of Attorney's Fees and Costs, Doc. 38, along with
certification affidavits of good faith from counsel, Docs. 40, 41, in compliance with Local Rule
37.1 of the Civil Local Rules of Practice for the United States District Court of the District of
South Dakota. Plaintiffs seek an order compelling BMW of North America, LLC ("BMW NA")
to respond to certain requests made by Plaintiffs for production of documents. Plaintiffs also
move for an order under Rule 37(a)(5) awarding attorney's fees.
For the reasons explained
below, Plaintiffs' motion is granted only in part and attorney's fees are not awarded to either
FACTS PERTINENT TO MOTION
This products liability and wrongful death action centers on a tragic incident that
occurred on July 5, 2013. Docs. 1, 1-1, 1-2. On July 5, 2013, Alexander N. Lindholm ("Alex")
was performing maintenance work on his 1997 BMW 540i in Pierre, South Dakota, and was
utilizing the car's jack to elevate the vehicle. Doc. 1-1 at 2. Plaintiffs allege that, while Alex
was under the vehicle, the jack "functionally failed and a plastic piece of the jack fractured,
causing the vehicle to fall and crush Alex." Doc. 1-1 at 2. Alex died from asphyxia due to the
weight of the vehicle crushing his chest. Doc. 1-1 at 2.
On March 25, 2015, this Court entered its Rule 16 Scheduling Order. Doc. 7. Under that
order, all discovery was to be completed by November 16, 2015, and all motions, other than
motions in limine, were to be filed and served by December 31, 2015.
Doc. 7 at
In early September of 2015, BMW NA's counsel informed Plaintiffs' counsel that the
BMW NA corporate representative for the case would be Peter Baur ("Baur").
Counsel for both parties exchanged dates for Baur's deposition, but because of scheduling
conflicts, Baur's deposition ultimately was set for December 4, 2015. Docs. 43-2, 43-3, 36-2.
No party moved to enlarge the discovery deadline, but both parties agreed to take the deposition
outside of the discovery deadline.
Docs. 43-3, 36-2.
Two days before Baur's deposition,
Plaintiffs' counsel emailed BMW NA's counsel and requested that Baur review court records
"prior to and/or bring" documents from two cases which Plaintiffs' counsel believed to involve
E39 model jacks. Doc. 39-2. Specifically, Plaintiffs' counsel requested that Baur search his
records for documents from a case titled "Gallimore v. BMW of NA, Case No. 05-10652," and
for an inspection report that was done for a case titled "Beaver v. BMW NA." Doc. 39-2.
Plaintiffs' counsel explained that he learned of the Beaver inspection report through Baur's
testimony in a New York case titled "Benton v. BMW NA, Index No. 110022/2011." Doc. 39-2.
BMW NA's counsel replied via email that same day and stated that although production on such
short notice was unlikely, the request would be forwarded to BMW NA and Baur. Doc. 39-3.
BMW NA's counsel concluded the email by stating, "As you know, under [Rule] 34 BMW [NA]
is entitled to 30 days to respond to a request for documents which is what you are making here."
At Baur's deposition, Baur did not produce documents concerning the cases referenced in
the December 2, 2015 email and testified that he had no specific recollection of either case. Doc.
39-5 at 2-3. BMW NA objected to Plaintiffs' line of questioning regarding documents from
other cases as untimely and stated that BMW NA would "need the time that is ordinarily allowed
under Rule 34 to respond" to Plaintiffs' requests. Doc. 39-5 at 1.
After the deposition, on December 29, 2015, Plaintiffs' counsel sent a letter to BMW
NA's counsel requesting the following:
Any and all records in BMW NA's in [sic] possession pertaining
to the cases involving car jacks, including, but not limited to,
Beaver v. BMW NA; Benton v. BMW NA and Gallimore v BMW NA
including any portions of the files that are not privileged.
privilege is claimed for any documents, identify such and set forth
what privilege BMW NA intends to rely on.
A true and correct copy of the "inspection" and related report that
Mr. Baur performed on the car jack in Beaver v. BMW NA and/or
Benton v. BMW NA.
Any and all complaints, either where a car jack provided with any
E39 model BMW "broke" or "failed" as defined by Mr. Baur, which
are kept in the "database" as stated by Mr. Baur.
Doc. 39-4 at 1. These requests were similar to, but broader than, the email request for
documents sent two days before Baur's deposition. Cf. Doc. 39-2. Plaintiffs' counsel asked
that he be notified if BMW NA required a formal request for production of documents. Doc.
39-4 at 2.
On February 6, 2016, Plaintiffs' counsel again emailed BMW NA's counsel
because BMW NA had neither responded to nor produced the requested documents. Doc.
39-6. Plaintiffs' counsel sent a letter to the same effect to BMW NA's counsel on February
8, 2016. Doc. 39-7. BMW NA's counsel acknowledged receipt of the email and letter,
pointed out that both requests were made after the discovery deadline, and stated that
"[b]ecause these requests were made informally, please consider this BMW NA's informal
response objecting to them." Doc. 39-8. Plaintiffs made further attempts to resolve this
discovery issue, but BMW NA maintained its objections. Doc. 40 at
ii 3; Doc. 41 at ii 3;
A. Motion to Compel Production
Rule 16 of the Federal Rules of Civil Procedure governs scheduling and management of
federal cases. A scheduling order "must limit the time ... to complete discovery." Fed. R. Civ.
"A schedule may be modified only for good cause and with the judge's
consent." Fed. R. Civ. P. 16(b)(4). In this case, both parties chose to complete discovery after
the discovery deadline set by this Court and without seeking a court order enlarging that
discovery deadline. This Court would have granted a joint motion to enlarge the discovery
deadline with the explanation of the defay caused by the timing of the disclosure of Baur as
BMW NA's corporate representative and by the delay in agreeing upon a date for his deposition.
This case presents the unusual issue of discovery requests which were made and a discovery
dispute which arose after the discovery deadline in a Rule 16 Scheduling Order, but where the
parties agreed to conduct discovery after the deadline. How to rule on such a post-discovery
deadline discovery dispute is within the discretion of the Court and ought to be guided by the
principle embedded in Rule 1 to construe, administer, and employ the federal rules "to secure the
just, speedy, and inexpensive determination of every action and proceeding." Fed. R. Civ. P. 1;
see also Jaakola v. U.S. Bank Nat. Tr. Ass'n, 609 F. App'x 877, 879 (8th Cir. 2015) (per curiam)
(stating that district courts have "very wide discretion in handling pretrial discovery" (quotation
The Federal Rules of Civil Procedure concerning discovery are liberally construed and
extremely broad in scope because "[m]utual knowledge of all the relevant facts gathered by both
parties is essential to proper litigation." Hickman v. Taylor, 329 U.S. 495, 507 (1947); see also
Black Hills Molding, Inc. v. Brandom Holdings, LLC, 295 F.R.D. 403, 410 (D.S.D. 2013); 8
Charles A. Wright et al., Federal Practice & Procedure§ 2007 (3d ed. 2010). Under Rule 34 of
the Federal Rules of Civil Procedure, a party may serve a request that another party produce
documents for inspection and copying. Fed. R. Civ. P. 34(a). The responding party must reply
in writing to the discovery requests within thirty days after being served.
Fed. R. Civ. P.
34(b )(2)(A). "[I]f not timely asserted, objections to discovery requests are waived, unless the
court finds good cause to excuse the failure to object," Heil v. Belle Starr Saloon & Casino, No.
CIV. 09-5074-JLV, 2011 WL 1256859, at *3 (D.S.D. Mar. 30, 2011), and "an evasive or
incomplete disclosure, answer, or response must be treated as a failure to disclose, answer, or
respond," Fed. R. Civ. P. 37(a)(4).
If the responding party "fails to produce documents or fails to respond that inspection
will be permitted--0r fails to permit inspection-as requested" the requesting party may move a
court for an "order compelling an answer, designation, production, or inspection." Fed. R. Civ.
P. 37(a)(3)(B)(iv). There is no time limit for filing a motion to compel under Rule 37. See Fed.
R. Civ. P. 37. Nonetheless, absent a directive from the court's scheduling order, motions to
compel discovery filed prior to the discovery deadline are generally found to be timely, whereas
motions "filed after the discovery deadline have routinely been found to be untimely." Voter v.
Avera Brookings Med. Clinic, No. Civ. 06-4129-KES, 2008 WL 4372707, at *2 (D.S.D. Sept.
22, 2008) (citing cases and finding plaintiffs motion to compel untimely because motion was
filed four months after completion of discovery and three weeks before trial, no justification was
given for tardiness of motion, and plaintiff knew of discovery request "long before the discovery
deadline"). The Rule 16 Schedule Order in this case stated that "[m]otions to compel discovery
should be filed within 14 days after the subject matter of the motion arises," and only after the
parties have complied with Civil Local Rule 37.1. Doc. 7 at~ 5.
Plaintiffs argue that their motion to compel discovery should be granted because BMW
NA untimely objected to their relevant requests-which BMW NA's counsel characterized as a
request for documents under Rule 34--and thus waived its right to object and must respond or
face further sanctions. Doc. 39 at 4-5; Doc. 45 at 1. Plaintiffs rely on Heil v. Belle Starr Saloon
& Casino, 2011 WL 1256859, at *3, in which Magistrate Judge Veronica Duffy granted a
plaintiffs motion to compel and awarded attorney's fees after finding that the defendant did not
timely object to relevant requests.
Plaintiffs seek to justify the discovery taken after the
November 16, 2015 deadline because the only two defense witnesses identified were deposed
after the deadline. Doc. 39 at 5. Plaintiffs argue that if the Court's discovery deadline were
strictly enforced, BMW NA's "fact and expert witness would be precluded from testifying, and
this would essentially be a trial on damages." Doc. 45 at 2.
BMW NA counters that Plaintiffs' motion should be denied because, despite knowing
approximately two months before the discovery deadline that Baur would be deposed, Plaintiffs
did not serve proper discovery requests before the discovery deadline, did not move for a
continuance or extension of the Court's scheduling order, and now rely on the fact that Baur's
deposition occurred after the discovery deadline to justify their requests. Doc. 43 at 5. BMW
NA maintains that Plaintiffs' December 2, 2015 email and December 29, 2015 letter do not
constitute properly served discovery under Local Rule 5.l(B)(3) 1 of this Court's Civil Local
Rules because neither attached a certificate of service. 2 Doc. 43 at 6. According to BMW NA,
the objections it made were proper and not waived because Plaintiffs' "informal and improper
documents requests made after the close of discovery do not require objections." Doc. 43 at 6.
Thus, BMW NA asserts that the requests were made informally, untimely, and in bad faith. Doc.
43 at 5. BMW NA also urge this Court to distinguish Heil because in Heil the discovery requests
were proper, timely, and complied with the scheduling order. Doc. 43 at 6.
Neither party disputes that the requests for documents at issue are relevant. The requests
involve documents from cases where BMW NA was a party in a lawsuit which, according to
Plaintiffs, involved an identical or similar jack to the one at issue in this case.
A significant threshold issue is whether Plaintiffs' informal document requests are
requests for production under Rule 34 sufficient to support a motion to compel under Rule
Usually, informal discovery requests are not recognized as appropriate discovery
requests under the Federal Rules of Civil Procedure sufficient to justify granting a motion to
BMW NA incorrectly cited to Local Rule 3, which does not exist, instead of subsection three to
Local Rule 5.1 (B) which addresses certificate of service for filing pleadings and other papers.
Local Rule 5.l(B)(3) provides that if the Court's CM/ECF system is not used for filing, that "a
certificate of service must be attached to the document identifying the persons served and the
manner in which service was accomplished." D.S.D. Civ. LR 5. l(B)
compel. See, e.g., Simon v. Taylor, No. CIV 12-0096 JB/WPL, 2014 WL 6633917, at *24-29
(D.N.M. Nov. 18, 2014) (surveying cases, interpreting purpose of Federal Rules of Civil
Procedure, and finding that informal request for documents would not serve as a basis for a
motion to compel discovery); Studio & Partners v. KI, No. 06-CV-0628, 2007 WL 896065, *1
(E.D. Wis. Mar. 22, 2007) (finding that an informal discovery request "does not constitute a
formal discovery demand that can properly serve as the basis for a motion to compel"); James v.
Wash Depot Holdings, Inc., 240 F.R.D. 693, 694-95 (S.D. Fla. 2006) (holding that a motion for
production would not be compelled where defendant requested records by an informal letter);
Sithon Mar. Co. v. Mansion, No. CIV. A. 96-2262-EEO, 1998 WL 182785, *2 (D. Kan. Apr. 10,
1998) (recognizing that unlike formal discovery, an informal request for production of
documents by letter does not require certification of conferring, service, representation of
counsel, and does not implicate the duties of opposing counsel to respond); Roberts v.
Americable Int'l Inc., 883 F. Supp. 499, 501 n.2 (E.D. Cal. 1995) (noting that although informal
requests are frequently utilized by counsel, only formal discovery requests are recognized under
the Federal Rules of Civil Procedure). However, some courts have found that informal requests
can satisfy Rule 34-a prerequisite for a motion to compel under Rule 37(a)(3).
Emp'rs Ins. Co. of Wausau v. Nationwide Mut. Fire Ins. Co., No. CV 2005-0620(JFB)(MDD),
2006 WL 1120632, *2-3 (E.D.N.Y. 2006) (rejecting "form over substance" argument and
finding that disclosure was warranted because informal discovery sufficiently described the
documents sought); Dixon v. Cappellini, 88 F.R.D. 1 (M.D. Pa. 1980) (finding oral request for
documents at deposition, followed by an exchange of letters regarding the request between
counsel satisfied Rule 34 in "spirit," although the procedure did not, because the request
described the documents "with reasonable particularity, and ... both parties were aware which
documents were involved").
Plaintiffs' informal discovery requests and BMW NA's response thereto make for a
difficult decision on whether a motion to compel is an appropriate request. Rule 34 contemplates
formal service of request for production of documents. Treating informal requests in emails or
letters as if they are formal Rule 34 requests for production of documents introduces uncertainty
between the parties and ultimately with a court on responsibility to respond. The email from
Plaintiffs' counsel on December 2, 2015, (two days before Baur's deposition and two weeks after
the discovery deadline) was not a formal request for production of documents served under and
satisfying Rule 34. However, the response of BMW NA's counsel, both by email and during the
Baur deposition, invoking Rule 34 to entitle BMW NA to have thirty days to respond clouds the
analysis. Plaintiffs reasonably could have believed based on those responses that the documents
would be forthcoming in thirty days and that BMW NA was accepting the email as if a formal
request for production of documents, despite it having been made after the discovery deadline.
That is, the manner in which BMW NA responded to the December 2 email waived the argument
asserted now about the lack of formality and tardiness of the request. See Fin. Timing Puhl 'ns,
Inc. v. Compugraphic Corp., 893 F.2d 936, 940 (8th Cir. 1990) (finding that objection was
waived by opposing party's own actions where opposing party, among other things, initially
agreed to comply with opposing counsel's request and participated for some time without
However, BMW NA made no similar response to the broader, slightly more formal, yet
still informal request in the December 29, 2015 letter (made more than three weeks after the
Baur deposition and six weeks after the discovery deadline).
BMW NA ignored that letter
request altogether and responded in February of 2016 noting that the requests were made beyond
the deadline and that BMW NA objected. Concerning the December 29, 2015 letter, BMW NA
made no statement, oral or written, on which Plaintiffs could rely for not seeking extension of the
discovery deadline, reopening of discovery, and formal service of Rule 34 requests for
production of documents.
This Court is puzzled why the parties did not jointly move to enlarge the discovery
deadline when they plainly were cooperating and agreed to conduct discovery after the discovery
deadline. Certainly no party should take from this Opinion and Order the conclusion that parties
can willy-nilly conduct discovery in a federal case after the discovery deadline. See Johnson v.
Mammoth Recreations, Inc., 975 F.2d 604, 610 (9th Cir. 1992) ("A scheduling order is not a
frivolous piece of paper, idly entered, which can be cavalierly disregarded by counsel without
peril" because such a disregard "would undermine the court's ability to control its docket, disrupt
the agreed-upon course of the litigation, and reward the indolent and the cavalier." (internal
quotation marks and quotation omitted)).
Rather, the ruling here is unique to the peculiar
circumstances of this case. This Court will grant Plaintiffs' motion to compel only to the extent
that BMW NA is required to produce non-privileged records that were in Baur's control in
December of 2015 from a case titled "Gallimore v. BMW of NA, Case No. 05-10652," and the
inspection report that Baur did for "Beaver v. BMW NA." Otherwise, the motion to compel is
B. Attorney's Fees and Costs
Plaintiffs move for an order under Rule 37(a)(5) awarding Plaintiffs' attorney's fees and
costs for BMW NA's failure to properly and timely respond to discovery and necessitating the
filling of this motion. BMW NA argues that attorney's fees and costs must not be awarded under
Rule 37(a)(5)(A)(i)-(iii) because Plaintiffs ignored this Court's scheduling order and filed this
motion "in an effort to sidestep discovery procedures and deadlines of which they were wellaware." Doc. 43 at 7. BMW NA asserts that it should be awarded reimbursement of their
expenses related to this motion under Rule 37(5)(B) because it believes Plaintiffs' motion was
not justified. Doc. 43 at 7.
A district court has broad discretion in imposing discovery sanctions. Good Stewardship
Christian Ctr. v. Empire Bank, 341 F.3d 794, 798 (8th Cir. 2003); see also Nat'l Hockey League
v. Metro. Hockey Club, Inc., 427 U.S. 639, 642 (1976) (noting abuse of discretion standard). In
this case, both parties bear responsibility for conducting discovery beyond the discovery deadline
without seeking an order enlarging the discovery deadline. Neither party has prevailed on their
arguments in full. Therefore, neither party is awarded fees or costs under Rule 37(a)(5)(B).
Therefore, it is hereby
ORDERED that Plaintiffs' Motion to Compel Discovery and for an Award of Attorney's
Fees and Costs, Doc. 38, is granted in part and denied in part as set forth in this Opinion and
Order. It is hereby
ORDERED that BMW NA respond within twenty-one (21) days of this Court's order to
the production requests contained in the December 2, 2015 email.
DATED this 25th day of April, 2016.
BY THE COURT:
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