Zoch v. Daimler, AG et al

Filing 186

MEMORANDUM OPINION AND ORDER re #171 Emergency SEALED MOTION Plaintiff's Expedited First Motion to Compel filed by Henry Zoch, II, #182 MOTION for Hearing on Plaintiff's Expedited First Motion to Compel filed by Daimler, AG. Plaintiffs Expedited First Motion to Compel (Dkt. #171) is hereby GRANTED. Defendants Motion to Set Hearing on Plaintiffs Expedited First Motion to Compel (Dkt. #182) is hereby DENIED. Signed by District Judge Amos L. Mazzant, III on 11/8/2017. (cm, )

United States District Court
EASTERN DISTRICT OF TEXAS
SHERMAN DIVISION

HENRY ZOCH II, Individually and on
behalf of The Estate of Henry Zoch III,
Deceased
v.
DAIMLER, A.G., et al.

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Civil Action No. 4:17-CV-578
Judge Mazzant

MEMORANDUM OPINION AND ORDER
Pending before the Court is Plaintiff Henry Zoch II’s Expedited First Motion to Compel
(Dkt. #171) and Defendant Daimler, A.G.’s Motion to Set Hearing on Plaintiff’s Expedited First
Motion to Compel (Dkt. #182). After reviewing the relevant pleadings and motion, the Court finds
it should grant Plaintiff’s Motion and deny Defendant’s Motion.
BACKGROUND
This is a products liability case arising from the alleged failure of the driver’s seat in Henry
Zoch III’s vehicle during a rear-end collision. As a result of the collision, Zoch III suffered a
severe head injury and later died.
Subsequently, Plaintiff, individually and on behalf of Zoch III, filed suit on February 16,
2016 (Dkt. #1). On March 30, 2017, Plaintiff deposed Defendant’s Rule 30(b)(6) corporate
representative, Manfred Deubert. As a result, on May 10, 2017, Plaintiff sent an e-mail to
Defendant requesting the disclosure of various items referenced by Mr. Deubert in his deposition
or related to past documents disclosed by Defendant (Dkt. #171, Exhibit E) (“Plaintiff’s First
Requests for Production” or “Plaintiff’s First RFP”). On August 1, 2017, in response to Plaintiff’s
First RFP, Defendant sent Plaintiff its Objections and Responses (Dkt. #171, Exhibit F). In

Defendant’s response, it included general objections and objections based on German privacy law
(Dkt. #171, Exhibit F at pp. 5–8).
As a result, on October 10, 2017, Plaintiff filed his Expedited First Motion to Compel (Dkt.
#171). On October 17, 2017, the Court entered an Order (Dkt. #175) expediting briefing.
Subsequently, Defendant filed its response (Dkt. #177) on October 23, 2017,1 and Plaintiff filed
his reply (Dkt. #181) on October 25, 2017.
Further, on October 30, 2017, Defendant filed a Motion to Set Hearing on Plaintiff’s
Expedited First Motion to Compel (Dkt. #182). On October 31, 2017, Plaintiff filed his response
(Dkt. #184).
The Court addresses each motion in turn.
ANALYSIS
I.

Motion to Compel
In response to Plaintiff’s Motion to Compel, Defendant argues Plaintiff’s requests are moot

and that German privacy law prohibits disclosure of the requested information. Conversely,
Plaintiff claims his motion is not moot, that Defendant waived its argument that foreign law
applies, and that foreign law does not control in this case. The Court addresses each argument in
turn.
a. Mootness
Defendant claims Plaintiff’s requests are moot as a result of Defendant’s “document
production since the time Plaintiff filed his motion to compel” and its “soon” supplemental written
responses and privilege log. Plaintiff argues its requests are not moot because Defendant’s

Pursuant to the Court’s Order expediting briefing (Dkt. #175), Defendant had until October 23, 2017, at 12:00 p.m.
to file a response. Defendant failed to comply with this Order when it filed its response (Dkt. #177) on October 23,
2017 at 3:12 p.m. Although the Court finds Defendant’s filing untimely, the Court nevertheless entertains Defendant’s
arguments.
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disclosure did not address all of Plaintiff’s requests, Defendant failed to provide a privilege log,
and Defendant’s liberally redacted documents it produced.
Pursuant to Federal Rule of Civil Procedure 26(b)(5)(A), a party must comply with certain
requirements when it withholds discoverable information while claiming a privilege applies. FED.
R. CIV. P. 26(b)(5)(A). Specifically, the withholding party must “(i) expressly make the claim;
and (ii) describe the nature of the documents, communications, or tangible things not produced or
disclosed—and do so in a manner that, without revealing information itself privileged or protected,
will enable other parties to assess the claim.” FED. R. CIV. P. 26(b)(5)(A)(i)–(ii).
Here, Defendant has yet to produce a privilege log complying with Rule 26(b)(5)(A).
Instead, Defendant asserts various privileges while redacting large portions, if not entire pages, of
documents. (See Dkt. #181, Exhibits A–C). Further, although Defendant claims its past and future
disclosures meet Plaintiff’s request, the Court is unpersuaded given Defendant’s failure to obey
the Federal Rules and its copious redaction of documents it produced. As such, the Court finds
Plaintiff’s Motion to Compel is not moot.
b. Waiver
Plaintiff argues Defendant waived any application of foreign law because it did not comply
with Federal Rule of Civil Procedure 44.1. The Court disagrees.
Rule 44.1, in pertinent part, states, “[a] party who intends to raise an issue about a foreign
country’s law must give notice by a pleading or other writing.” FED. R. CIV. P. 44.1. “This rule is
intended to avoid unfair surprise, not to set any definite limit on the party’s time for giving the
notice of an issue of foreign law . . . .” Northrop Grumman Ship Sys., Inc. v. Ministry of Defense
of the Republic of Venez., 575 F.3d 491, 496–97 (5th Cir. 2009) (internal quotations omitted)
(citations omitted). “When the applicability of foreign law is not obvious, notice is sufficient if it

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allows the opposing party time to research the foreign rules.” Id. at 497 (citing Thyssen Steel Co.
v. M/V Kavo Yerakas, 911 F. Supp. 263, 266 (S.D. Tex. 1996)). In determining whether notice is
reasonable, the Court considers (1) “[t]he stage which the case had reached at the time of the
notice,” (2) “the reason proffered by the party for his failure to give earlier notice, and” (3) “the
importance to the case as a whole of the issue of foreign law sought to be raised . . . .” Id. (citing
FED. R. CIV. P. 44.1. advisory committee notes).
Here, factors (1) and (3) weigh in favor of Defendant. Defendant’s notice of its intent to
rely on foreign law took place at an early stage of the litigation, on October 23, 2017. See The
Court’s Scheduling Order, Dkt. #176 (setting the discovery deadline as June 1, 2018, the final
pretrial conference for August 31, 2018, and trial between October 1, 2018 and October 26, 2018).
Additionally, the foreign law issue, whether German privacy law precludes production of specific
documents, is important to the case as a whole. Specifically, the information sought in Plaintiff’s
First RFP (Dkt. #171, Exhibit E) seeks documents related to the development, design, and
engineering of Plaintiff’s vehicle, which are essential in a products liability case. Regarding the
second factor, Defendant failed to provide the Court with reasons for its failure to give earlier
notice. However, despite Defendant’s failure to provide the Court with such reasons, Plaintiff
failed to “allege that it was prevented from responding or otherwise prejudiced by the delayed
notice.” Northrop, 575 F.3d at 497. Further, Plaintiff had the ability to fully address and respond
to Defendant’s arguments that foreign law applies in this case. As such, the Court finds Defendant
did not waive its ability to apply foreign law. See id. (holding that an eighteen month delay in
providing notice did not create unfair surprise or prejudice since the objecting party had time to
respond such an argument); Thyssen, 911 F. Supp. at 266–67 (finding an objecting party who did
not allege unfair surprise but instead only claimed waiver as a procedural matter was not harmed

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by the application of foreign law despite the opposing party’s late notice and suspect reasoning for
such late notice).
c. Application of Foreign Law
Defendant claims German privacy law, the German Federal Data Protection Act
(“BDSG”),2 prohibits the disclosure of information sought by Plaintiff. Conversely, Plaintiff
argues the BDSG does not apply in this case, but in the event that the Court applies such law,
exceptions within the BDSG apply. Furthermore, Plaintiff contends that if the BDSG applies,
without exceptions, foreign law must yield to American discovery procedures. As such, the Court
addresses (i) whether the BDSG applies; (ii) if the BDSG does apply, whether there are applicable
exceptions; and (iii) if the BDSG applies, without exceptions, whether it must yield to American
discovery procedures.
i. Whether the BDSG Applies
Unless otherwise limited by court order, Federal of Civil Procedure 26(b)(1) defines the
scope of discovery as “any non[-]privileged matter that is relevant to any party’s claim or defense
and proportional to the needs of the case . . . .” FED. R. CIV. P. 26(b)(1). However, through “the
use of so-called ‘blocking statutes,’ foreign states may ‘prohibit[ ] the disclosure, copying,
inspection, or removal of documents located in the territory of the enacting state in compliance
with the orders of foreign authorities.’” In re: Xarelto (Rivaroxaban) Products Liab. Litig., MDL
No. 2592, 2016 WL 3923873, at *6 (E.D. La. July 21, 2016) (quoting Restatement (Third) of
Foreign Relations Law § 442 (Am. Law Inst. 1987) (alterations in original)).
The “blocking statute” at issue in this case is the BDSG. Section 1 of the BDSG provides
that “[t]he purpose of this Act is to protect the individual against his/her right to privacy being

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The direct translation of “Bundesdatenschutzgesetz” is “Federal Data Protection Act.”

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impaired through the handling of his/her personal data.” Bundesdatenschutzgesetz [BDSG] [Civil
Code], § 1(1), translation at https://www.gesetze-im-internet.de/englisch_bdsg/. The Act defines
“personal data” as “any information concerning the personal or material circumstances of an
identified or identifiable individual (the data subject).” Id. at § 3(1). In providing further guidance
on what constitutes “personal data,” The Data Protection Working Party, an independent agency
tasked with advisory authority concerning EC Directive 95,3 provides more expansive definitions
and examples. Specifically, in Opinion 4/2007, The Data Protection Working Party stated, “the
concept of personal data includes any sort of statements about a person. It covers ‘objective’
information, such as the presence of a certain substance in one’s blood. It also includes ‘subjective’
information, opinion or assessments.”4 Article 29 Data Protection Working Party, Opinion 4/2007
on the Concept of Personal Data, at 6, 01248/07/EN/Final WP 136 (June 20, 2007). Further,
personal data “includes information touching the individual’s private and family life . . . [and] also
information regarding whatever types of activity is undertaken by the individual . . . .” Id.
Here, in Plaintiff’s First RFP, Plaintiff lists forty-nine different requests (Dkt. #171,
Exhibit E).

After reviewing the requests in conjunction with the expansive and in depth

descriptions of “personal data” in Opinion 4/2007, the Court finds the following requests in
Plaintiff’s First RFP do not fall within the realm of personal data: Nos. 1, 2, 4, 8–10, 15–17, 19,
21, 24, 25, 27, 28, 30–37, 39, 41, 42, 44–47, and 49.5 When information does not fall within the
concept of “personal data,” “the consequence is that the Directive does not apply.” Opinion 4/2007
on the Concept of Personal Data, at 24. As such, the Court finds the BDSG does not apply to the

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The EC Directive 95 protects the privacy of personal data within the European Union.
The Opinion further provided several examples of “subjective” personal data, including “Titius is a reliable
borrower,” “Titius is not expected to die soon,”, and “Titius is a good worker and merits promotion.”
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Because Defendant has not produced or provided the Court with a privilege log, the Court bases its decision on
Plaintiff’s requests and the documents the Court anticipates Defendant will produce in response to such requests.
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above requests, and therefore orders Defendant to produce any and all relevant documents, in
unredacted format, to Plaintiff related to such requests by 11:59 p.m. on November 10, 2017.
However, as to the remaining requests in Plaintiff’s First RFP, the Court finds Plaintiff seeks
information falling within the definition of “personal data.”

Additionally, the Court finds

Plaintiff’s requests for Defendant’s Rule 26 Disclosures of “all persons with knowledge of relevant
facts along with a brief description of their areas of knowledge” falls within the meaning of
“personal data.” As such, the BDSG precludes disclosure of such information unless an exception
applies.
ii. Applicable Exceptions Within the BDSG
Plaintiff argues that even if the BDSG applies, the exception in Section 28(2)1–2(a)
applies. Section 28(2)1–2(a) authorizes disclosure of otherwise protected data “in so far as this is
necessary to safeguard justified interests of a third party or public interests . . . if there is no reason
to assume that the data subject has a legitimate interest in his data being excluded from
communication.” In re Vitamins Antitrust Litig., No. 99–197TFH, 2001 WL 1049433, at *7
(D.D.C. June 20, 2001) (quoting BDSG § 28(1)2, (2)2(a)). Stated differently, even if requested
information is protected under the BDSG, “disclosure may still be warranted if plaintiffs can show
(1) that the information at issue is ‘necessary’ to protect public interest and/or the interests of
plaintiffs and (2) the data subjects have no ‘legitimate interest’ in preventing disclosure of the
information.” Id. at *8.
In arguing that the requested information is “necessary,” Plaintiff claims the information
he seeks relates “to the development, design, and engineering of the subject vehicle,” which lies
at the heart of his case. Defendant contends such information is unnecessary since it already
provided Plaintiff with names of several individuals with relevant knowledge regarding key issues

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in this case. The Court finds the information sought by Plaintiff is necessary to the present
litigation. See In re Vitamins Antitrust Litig., 217 F.R.D. 229, 232 (D.D.C. 2002) (stating
defendants do not possess the authority to determine what Plaintiffs need to pursue their claims);
see also In re Advanced Interventional Sys. Sec. Litig., No. SACV92–723–AHS(RWRX), 1993
WL 331006, at *2 (C.D. Cal. May 17, 1993).
Although information is necessary, the Court must also consider “whether the individuals
have a legitimate interest in preventing the disclosure of this information.” In re Vitamins, 2001
WL 1049433, at *9. Here, the information Plaintiff seeks includes names, comments, part change
requests, defect notifications, letters, writings, e-mails, meeting minutes, analyses, internal
remarks, and performance agreements.6
Individuals possess a legitimate interest in the non-disclosure of personal data to residents
of countries with non-equivalent personal data protection standards. See id.; In re: Xarelto, 2016
WL 3923873, at *12. Although a court may enter a protective order, courts have held that such
orders are not “equivalent” to the protections provided by the BDGS. See id. As such, a
presumption exists in favor of finding a legitimate interest prevents disclosure of the requested
information. Accordingly, despite the existence of a protective order (Dkt. #137) in this case and
the Court’s finding that such information is necessary, Defendant has “a legitimate interest in
preventing the disclosure this information.” In re Vitamins, 2001 WL 1049433, at *9.
Because the Court finds the exception under Section 28 of the BDSG does not apply, the
Court proceeds to an analysis on whether the BDSG should nevertheless yield to American
discovery procedures.

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See Plaintiff’s First RFP (Dkt. #171, Exhibit E at Nos. 3, 5–7, 11–14, 18, 20, 22, 23, 26, 29, 38, 40, 43, and 48).

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iii. Comity Analysis
In the United States Supreme Court case Société Nationale Industrielle Aerospatiale v. U.S.
Dist. Court for S. Dist. of Iowa, 482 U.S. 522 (1987), the Supreme Court addressed the relationship
between “blocking statutes” and American discovery procedures. In its analysis, the Supreme
Court adopted a balancing “comity analysis” stating that “foreign tribunals will recognize that the
final decision on the evidence to be used in litigation conducted in American courts must be made
by those courts.” Id. at 542, 544 n.28. Although the Supreme Court declined to articulate the
analysis, it did reference the five-factor test used in the Restatement (Third) of the Law of Foreign
Relations § 442 (Am. Law Inst. 1987) (the “Third Restatement”). Id. at 544 n.28. In In re
Anschuetz & Co., GmbH, the Fifth Circuit adopted a three-factor comity analysis.7 838 F.2d 1362,
1364 (5th Cir. 1988). However, despite the Fifth Circuit’s adoption of the three-factor comity
analysis, various district courts in the Fifth Circuit routinely use the five-factor test of the Third
Restatement referenced by the Supreme Court in Société. See In re: Xarelto, 2016 WL 3923873,
at *14; S.E.C. v. Stanford Int’l Bank, Ltd., 776 F. Supp. 2d 323, 330 (N.D. Tex. 2011); Seoul
Semiconductor Co. v. Nichia Corp., 590 F. Supp. 2d 832, 834 (E.D. Tex. 2008). Here, the Court
joins fellow district courts and applies the five-factor analysis in the Third Restatement.
Under the Third Restatement, the relevant factors in a comity analysis include: (1) the
importance of the required discovery to the litigation; (2) the degree of specificity of the request;
(3) whether the information originated in the United States; (4) the availability of alternative means
of securing the information; and (5) the extent to which non-compliance with the request would
undermine important interests of the United States, or compliance with the request would

“The district court is only directed to determine whether [foreign discovery procedures] are appropriate after
‘scrutiny in each case of the particular facts, sovereign interests, and likelihood that resort to these procedures would
prove effective.” In re Anschuetz, 838 F.2d at 1364 (citing Société Nationale, 482 U.S. at 544–45).
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undermine important interests of the state where the information is located. Seoul, 590 F. Supp.
2d at 834 (citing Société, 482 U.S. at 544 n.28).
1. The Importance of the Requested Discovery to the Litigation
Although the Fifth Circuit did not provide guidance on the degree of “importance”
necessary under this factor, another court within this district provided language suggesting the
standard is “critical or compelling.” Seoul, F. Supp. 2d at 835. As such, the Court determines the
“importance” of Plaintiff’s requested discovery on whether such information is “critical or
compelling.”
Defendant argues Plaintiff’s requested information is unimportant because Plaintiff failed
to justify its need for such information and Defendant provided a corporate witness with
knowledge of relevant information. Conversely, Plaintiff claims the information sought is relevant
“to the development, design, and engineering of the subject vehicle,” which goes to the heart of
his case. Further, Plaintiff avers that if Defendant “had its way, [Defendant] will get to hand-select
the persons Plaintiff gets to depose by only disclosing certain people.”
Here, Plaintiff’s remaining requests seek names, comments, part change requests, defect
notifications, letters, writings, e-mails, meeting minutes, analyses, internal remarks, and
performance agreements.8

The Court finds such information is “critical or compelling” in

providing Plaintiff an opportunity to prove his case at trial. See Hernandez v. Tokal Corp., 2
S.W.3d 251, 258 (Tex. 1999); Tex. Civ. Prac. & Rem. Code § 82.005(b)(1)–(2). As such, the
Court finds this factor favors Plaintiff.

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See Plaintiff’s First RFP (Dkt. #171, Exhibit E at Nos. 3, 5–7, 11–14, 18, 20, 22, 23, 26, 29, 38, 40, 43, and 48).

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2. Degree of Specificity of the Requests
The Court finds Plaintiff submitted highly specific requests. See Plaintiff’s First RFP
(Dkt. #171, Exhibit E). Further, Defendant concedes Plaintiff submitted “specifically targeted
requests.” As such, this factor favors Plaintiff.
3. Where Information Originated
The Court finds, and Plaintiff concedes, that the information Plaintiff seeks originated
outside of the United States. Accordingly, this factor favors Defendant.
4. Availability of Alternative Means of Securing Information
Plaintiff argues it “has no other means of obtaining information that [Defendant] has
redacted throughout its documents or to identify persons involved.” Defendant claims such
information is available in the substance of materials already produced and in the testimony of
company witnesses already identified. The Court finds Defendant’s argument sophistic. On one
hand, Defendant contends the requested information is protected by the BDSG; however, on the
other hand, Defendant avers such information is available via alternative means, i.e., past
disclosures and their corporate witnesses.
Further, the basis of Plaintiff’s Motion to Compel seeks information stemming from
Defendant’s corporate witness’s deposition and redacted materials Defendant already produced.
As such, while Defendant claims alternative means exist, Plaintiff attempted to proceed via those
routes and was met with resistance by Defendant. As a result, the Court finds no alternative means
exists, thus making this factor favor Plaintiff.
5. Balancing of National Interests
Plaintiff argues the United States has a substantial interest in fully and fairly adjudicating
matters before its courts, and that such interest is embodied within the rules of civil procedure. As

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such, Plaintiff claims non-compliance with its requests undermines important interests of the
United States. Conversely, Defendant contends “Germany has expressed its important interest in
protecting the personal data and privacy of individuals through the BDSG provisions, its
constitutional fundamental right to informational self-determination, and numerous other
expressions of German interest in protecting the privacy of personal information.”

Thus,

Defendant argues compliance with Plaintiff’s requests undermines important German interests.
American courts must be cognizant that “many foreign countries, particularly civil law
countries, do not subscribe to our open-ended views regarding pretrial discovery, and in some
cases may even be offended by our pretrial procedures.” In re Anschuetz, 838 F.2d at 1364. Given
Germany’s expressed interest in protecting personal data through the BDSG, its constitution, its
filing of an amicus brief in In re Vitamins, and various other expressions, the Court finds “Germany
has a weighty national interest in protecting the personal data of German citizens.” In re: Xarelto,
2016 WL 3923873, at *17. However, despite Germany’s interest in protecting such personal data,
the quantity and context of the personal data at issue in this case mitigates these concerns. Here,
Plaintiff’s requests seek part change requests, defect notifications, meeting minutes, performance
agreements, e-mails and writings regarding comments and remarks concerning the seat in question,
and names of persons with knowledge of relevant facts. The Court finds it imposed meaningful
protective measures to ensure the confidentiality of such produced data. See Protective Order,
Dkt. #137. Further, once such evidence is produced, “evidentiary hurdles such as Rules 401 and
403 of the Federal Rules of Evidence will prevent the admissibility of irrelevant or unduly
prejudicial information at trial.” In re: Xarelto, 2016 WL 3923873, at *17. Given these conditions,
the Court finds Germany’s interests in non-production are inherently curtailed.

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Concerning the United States’s interests, the Court finds it has a substantial interest in
“vindicating the rights of American plaintiffs” and “adjudicating matters before its courts.” In re:
Xarelto, 2016 WL 392383, at *18 (quoting Pershing Pac. W., LLC v. MarineMax Inc., No. 10-cv1345-L (DHB), 2013 WL 941617, at *8 (S.D. Cal. Mar. 11, 2013)); Minpeco, S.A. v.
Conticommodity Servs., Inc., 116 F.R.D. 517, 523–24 (S.D.N.Y. 1987).
After balancing the national interests of both Germany and the United States, the Court
finds Germany’s mitigated interests do not override the United States’s interests in obtaining
discovery of evidence relevant to Plaintiff’s case. As such, the Court finds this factor favors
Plaintiff.
Seeing that four factors favor Plaintiff and one factor favors Defendant, the Court finds the
balance leans towards the production of evidence related to Plaintiff’s requests.

As such,

Defendant is ordered to produce any and all relevant documents, in unredacted format, to Plaintiff
related to all requests in Plaintiff’s First RFP and disclose persons with knowledge of relevant facts
along with a brief description of their areas of knowledge pursuant to Rule 26 by 11:59 p.m. on
November 10, 2017.
II.

Motion to Set Hearing
Because of the Court’s aforementioned analysis addressing Plaintiff’s Motion to Compel,

the Court finds it unnecessary to host a hearing regarding said motion.
CONCLUSION
It is therefore ORDERED that Plaintiff’s Expedited First Motion to Compel (Dkt. #171)
is hereby GRANTED.
If is further ORDERED that Defendant’s Motion to Set Hearing on Plaintiff’s Expedited
First Motion to Compel (Dkt. #182) is hereby DENIED.

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Accordingly, the Court overrules Defendant’s objections related to Plaintiff’s First Request

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for Production (Dkt. #171, Exhibit E) and orders Defendant to produce any and all relevant
documents, in unredacted format, related to such requests, along with the names of its employees
with knowledge of relevant facts with a brief description of their areas of knowledge by 11:59 p.m.
on November 10, 2017.

SIGNED this 8th day of November, 2017.

___________________________________
AMOS L. MAZZANT
UNITED STATES DISTRICT JUDGE

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