Thomas v. Mitsubishi Motors

Filing 61

MEMORANDUM DECISION granting 38 Motion for Extension of Time to Complete Discovery; granting in part and denying in part 42 Motion to Compel; granting in part and denying in part 26 Motion to Compel. Signed by Magistrate Judge Paul M. Warner on 1/24/14. (jlw)

IN THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF UTAH
CENTRAL DIVISION
THOMAS J. THOMAS,
Plaintiff,
v.
MITSUBISHI MOTORS
CORPORATION; MITSUBISHI
MOTORS NORTH AMERICA, INC.; and
MITSUBISHI MOTOR SALES OF
AMERICA, INC.,
Defendants.

MEMORANDUM DECISION
AND ORDER

Case No. 2:12-cv-1215-DB-PMW

District Judge Dee Benson
Magistrate Judge Paul M. Warner

District Judge Dee Benson referred this case to Magistrate Judge Paul M. Warner
pursuant to 28 U.S.C. § 636(b)(1)(A). 1 Before the court are (1) Thomas J. Thomas’s (“Plaintiff”)
motion to compel; 2 (2) Plaintiff’s motion to extend deadlines for taking fact depositions and
supplementing liability expert reports; 3 and (3) Mitsubishi Motors Corporation (“MMC”) and
Mitsubishi Motors North America, Inc.’s (collectively, “Defendants”) motion to compel thirdparty compliance with a subpoena duces tecum. 4 The court has carefully reviewed the written
memoranda submitted by the parties. Pursuant to civil rule 7-1(f) of the Rules of Practice for the

1

See docket no. 33.

2

See docket no. 26.

3

See docket no. 38.

4

See docket no. 42.

United States District Court for the District of Utah, the court has concluded that oral argument is
not necessary and will determine the motions on the basis of the written memoranda. See
DUCivR 7-1(f). The court will address the motions in turn.
I. Plaintiff’s Motion to Compel
A. Legal Standards
“The district court has broad discretion over the control of discovery, and [the Tenth
Circuit] will not set aside discovery rulings absent an abuse of that discretion.” Sec. & Exch.
Comm’n v. Merrill Scott & Assocs., Ltd., 600 F.3d 1262, 1271 (10th Cir. 2010) (quotations and
citations omitted). The general scope of discovery is governed by rule 26(b)(1) of the Federal
Rules of Civil Procedure, which provides that “[p]arties may obtain discovery regarding any
nonprivileged matter that is relevant to any party’s claim or defense. . . . For good cause, the
court may order discovery of any matter relevant to the subject matter involved in the action.
Relevant information need not be admissible at the trial if the discovery appears reasonably
calculated to lead to the discovery of admissible evidence.” Fed. R. Civ. P. 26(b)(1). The
Advisory Committee Notes for the 2000 Amendments to rule 26 direct parties and courts to
“focus on the actual claims and defenses involved in the action” in determining relevance for
purposes of discovery. Fed. R. Civ. P. 26 Advisory Committee Notes, 2000 Amendments,
Subdivision (b)(1). With respect to limiting discovery, rule 26(b)(2)(C)(iii) provides that
[o]n motion or on its own, the court must limit the frequency or
extent of discovery otherwise allowed by these rules or by local
rule if it determines that . . . the burden or expense of the proposed
discovery outweighs its likely benefit, considering the needs of the
case, the amount in controversy, the parties’ resources, the

2

importance of the issues at stake in the action, and the importance
of the discovery in resolving the issues.
Fed. R. Civ. P. 26(b)(2)(C)(iii).
In In re Cooper Tire & Rubber Company, 568 F.3d 1180 (10th Cir. 2009), the Tenth
Circuit clarified that the 2000 Amendments to rule 26 “implemented a two-tiered discovery
process; the first tier being attorney-managed discovery of information relevant to any claim or
defense of a party, and the second being court-managed discovery that can include information
relevant to the subject matter of the action.” Id. at 1188. The Tenth Circuit further stated that
when a party objects that discovery goes beyond that relevant to
the claims or defenses, “the court would become involved to
determine whether the discovery is relevant to the claims or
defenses and, if not, whether good cause exists for authorizing it so
long as it is relevant to the subject matter of the action.” This
good-cause standard is intended to be flexible. When the district
court does intervene in discovery, it has discretion in determining
what the scope of discovery should be. “[T]he actual scope of
discovery should be determined according to the reasonable needs
of the action. The court may permit broader discovery in a
particular case depending on the circumstances of the case, the
nature of the claims and defenses, and the scope of the discovery
requested.”
Id. at 1188-89 (quoting Fed. R. Civ. P. 26 Advisory Committee Notes, 2000 Amendments,
Subdivision (b)(1)) (citations and footnote omitted) (alteration in original).
B. Nature of Plaintiff’s Claims
In many of the discovery requests that are at issue in Plaintiff’s motion, he requests
information about not just the vehicle involved in the incident underlying this case, the
Mitsubishi Lancer (“Lancer”), but about all vehicles produced by MMC. Many of the discovery
requests at issue also seek information not just about the front passenger seat (where Plaintiff
was seated at the time of the incident underlying this case), but about all other seats in MMC’s
3

vehicles. Finally, many of the discovery requests at issue seek information not just about the
front passenger seat restraint system, but about other restraint systems.
In order to determine whether the discovery requests at issue seek relevant information,
the court first looks to Plaintiff’s amended complaint 5 to determine the nature of his claims. See,
e.g., Fed. R. Civ. P. 26 Advisory Committee Notes, 2000 Amendment, Subdivision (b)(1)
(directing the parties and the court “focus on the actual claims and defenses involved in the
action” in determining relevance for purposes of discovery). After reviewing Plaintiff’s
amended complaint, the court has determined that its allegations focus almost exclusively on the
Lancer, not on other vehicles produced by MMC. The court has also determined that those
allegations focus almost exclusively on the front passenger seat and restraint system, not on other
seats or restraint systems. As such, the court concludes that any information or documents
sought by Plaintiff with respect to vehicles other than the Lancer, seats other than the Lancer
front passenger seat, or restraint systems other that the Lancer front passenger seat restraint
system are not relevant to his claims in this case. At the same time, the court concludes that any
information or documents sought by Plaintiff with respect to the Lancer, the Lancer front
passenger seat, and the Lancer front passenger restraint system are relevant to his claims and,
therefore, are discoverable.
The court next turns to whether Plaintiff has demonstrated good cause to support
expanding the scope of discovery to include not just information that is relevant to his claims,
but also information that is relevant to the subject matter of this case. Plaintiff presents no

5

See docket no. 19.
4

arguments on this point. As such, the court concludes that Plaintiff has not demonstrated such
good cause.
With those conclusions in mind, the court now turns to addressing the discovery requests
at issue in Plaintiff’s motion.
C. Discovery Requests at Issue
In his motion, Plaintiff seeks compelled responses from MMC to the following portions
of his First Set of Written Discovery: Interrogatories No. 1-8, 11, and 14; and Requests for
Production No. 3-13, 15, and 18-21. However, Plaintiff’s motion fails to provide any argument
for Interrogatories No. 3 and 8, or for Requests for Production No. 19 and 20. Without
argument, the court will not reach those discovery requests and they will not be discussed here.
Accordingly, the court will address Interrogatories No. 1-2, 4-7, 11, and 14; and Requests for
Production No. 3-13, 15, 18, and 21.
1. Interrogatories No. 1-2, 4, and 7
and
Requests for Production No. 3-6, 8-11, 13, 18, and 21
Consistent with the court’s conclusions above, any information or documents sought by
these discovery requests concerning vehicles other than the Lancer, seats other than the Lancer
front passenger seat, or restraint systems other than the Lancer front passenger seat restraint
system are not discoverable. However, any information or documents sought by Plaintiff with
respect to the Lancer, the Lancer front passenger seat, and the Lancer front passenger restraint
system are relevant to his claims and, therefore, are discoverable.
With respect to the time frame of these discovery requests, the court notes that some of
them have time restrictions, while others do not. The court is unwilling to require MMC to
5

respond to discovery requests that are unlimited in time frame. Further, the court concludes that
the time frames, where identified, are too large. The court has determined that, given Plaintiff’s
claims and the circumstances of this case, the burden imposed upon MMC by requiring them to
provide discovery for such large or unlimited time frames outweighs its likely benefit in this
case. See Fed. R. Civ. P. 26(b)(2)(C)(iii). Instead, the court will limit these discovery requests to
a time frame of 5 years preceding the date of the incident underlying this case.
This portion of Plaintiff’s motion is granted in part and denied in part. Within 30 days of
the date of this order, MMC shall provide full responses to these discovery requests, but shall
limit said responses to the Lancer, the Lancer front passenger seat, the Lancer front passenger
seat restraint system, and a time frame of 5 years preceding the incident underlying this case.
For any information that MMC claims is privileged, it shall provide a sufficient privilege log to
Plaintiff for such information. If MMC does not have responsive information, it shall provide an
affidavit to Plaintiff to that effect.
2. Interrogatory No. 5
Interrogatory No. 5 provides: “Identify each interlock system on the subject vehicle.” 6
MMC objected to this request, arguing that the phrase “interlock system” is vague, ambiguous,
overly broad, and seeks information that is neither relevant nor reasonably calculated to lead to
the discovery of admissible evidence. MMC also argues that this request is not limited to the
components or issues in this case. Subject to those objections, MMC referred Plaintiff to the
owner’s manual for the Lancer.

6

Docket no. 26, Exhibit B at 6.
6

The court disagrees with MMC’s objections concerning the phrase “interlock system.”
The court is not persuaded that said phrase is sufficiently vague, ambiguous, or overly broad as
to prevent MMC from providing a meaningful response to this request.
This portion of Plaintiff’s motion is granted in part and denied in part. Within 30 days of
the date of this order, MMC shall provide a full response to Interrogatory No. 5, but shall limit
said response to the Lancer. For any information that MMC claims is privileged, it shall provide
a sufficient privilege log to Plaintiff for such information. If MMC does not have responsive
information other than the Lancer owner’s manual, it shall provide an affidavit to Plaintiff to that
effect.
3. Interrogatory No. 6 and Requests for Production No. 7, 12, and 15
Interrogatory No. 6 provides:
Has [MMC] ever had a claim or lawsuit filed against it in the last
20 years where the following was alleged:
a. a restrained occupant was ejected from the vehicle
during a rollover event because the person had their
seat reclined;
b. a restrained occupant was ejected from their seat but
not the vehicle because the person had their seat
reclined; and/or
c. a restrained occupant submarined down into the
floorboard area because the person had their seat
reclined. 7
Request for Production No. 15 seeks documents for all claims and lawsuits identified in
Interrogatory No. 6. 8

7

Id. at 7.

8

See id. at 12.
7

Request for Production No. 7 provides:
Produce all claims or lawsuits against [MMC] where the following
allegations were made:
a. a seat was defective, unsafe, or unreasonably dangerous
because it could be reclined while the vehicle was
moving;
b. [MMC] was negligent for using a seat that could recline
while the vehicle was moving; and/or
c. [MMC] was negligent for not conducting adequate
testing to evaluate seats that could recline. 9
Request for Production No. 12 provides: “Furnish all depositions of any past or present
employee who have been deposed in the last 20 years in cases where the seat was reclined
rearward while the vehicle was moving.” 10
Because these discovery requests seek information about any legal claims and lawsuits
involving MMC and the allegations identified in the requests, the court must determine whether
the incidents involved in those other legal claims and lawsuits could be or are substantially
similar to the incident involved in this case. See, e.g., Four Corners Helicopters, Inc. v.
Turbomeca, S.A., 979 F.2d 1434, 1440 (10th Cir. 1992); Wheeler v. John Deere Co., 862 F.2d
1404, 1407 (10th Cir. 1988).
Substantial similarity depends upon the underlying theory of the
case. Evidence proffered to illustrate the existence of a dangerous
condition necessitates a high degree of similarity because it weighs
directly on the ultimate issue to be decided by the jury. The
requirement of substantial similarity is relaxed, however, when the
evidence of other incidents is used to demonstrate notice or
awareness of a potential defect. Any differences in the accidents

9

Id. at 10-11.

10

Id. at 11.
8

not affecting a finding of substantial similarity go to the weight of
the evidence.
Four Corners Helicopters, Inc., 979 F.2d at 1440 (quotations and citations omitted); see also In
re Cooper Tire & Rubber Company, 568 F.3d at 1191.
The court has already determined that Plaintiff’s amended complaint focuses almost
exclusively on the Lancer, not on other vehicles produced by MMC. The court has also already
determined that the amended complaint focuses almost exclusively on the front passenger seat
and restraint system, not on other seats or restraint systems. Consistent with those
determinations, the court concludes that Plaintiff’s underlying theory of the case is narrowly
focused on the Lancer, the Lancer the front passenger seat, and the Lancer front passenger seat
restraint system. Accordingly, the court concludes that only other incidents involving that focus
could be or are substantially similar to the incident underlying this case. Given that conclusion,
it follows that the court will allow Plaintiff to obtain discovery related only to other legal claims
and lawsuits against MMC involving the Lancer, the Lancer the front passenger seat, and the
Lancer front passenger seat restraint system.
This portion of Plaintiff’s motion is granted in part and denied in part. Within 30 days of
the date of this order, MMC shall provide full responses to Interrogatory No. 6 and Requests for
Production No. 7, 12, and 15, but shall limit said responses to the Lancer, the Lancer front
passenger seat, and the Lancer front passenger seat restraint system. For any information that
MMC claims is privileged, it shall provide a sufficient privilege log to Plaintiff for such
information. If MMC does not have responsive information, it shall provide an affidavit to
Plaintiff to that effect.

9

4. Interrogatories No. 11 and 14
Interrogatory No. 11 provides: “Identify all persons, including address and job title, who
participated in responding to these interrogatories and/or requests for production of
documents.” 11 In response, and subject to general objections, MMC stated that its responses
were prepared under the direction of its Quality Affairs Office based on information gathered
from various sources and were verified by a representative of MMC. MMC further indicated
that its responses are corporate responses and, therefore, are not based upon the personal
knowledge of a particular person. Finally, MMC noted that its counsel assisted with the
preparation of its responses.
Interrogatory No. 14 provides: “Identify your employee(s) and/or officer(s) who is the
most knowledgeable about the design, development, and/or testing of the front passenger seat
and its restrain system in the subject vehicle.” 12 In response, and subject to general objections,
MMC stated that, in response to an appropriate and properly served deposition notice, it would
produce persons knowledgeable about the design, development, and testing of the front
passenger seat and front passenger restraint system in the Lancer.
In its response to Plaintiff’s motion, MMC argues that Plaintiff is attempting to learn
individual’s identities through these discovery requests so that he can depose them by name,
thereby circumventing MMC’s right to designate witnesses to respond to specific topics. The
court agrees and concludes that MMC’s response to these requests are adequate. Accordingly,
this portion of Plaintiff’s motion is denied.
11

Id. at 8.

12

Id.
10

II. Plaintiff’s Motion to Extend Deadlines
In this motion, Plaintiff seeks to extend the deadlines for taking fact depositions and
supplementing his liability expert reports. Plaintiff argues that he needed a ruling on his motion
to compel before he could take fact depositions and adequately prepare his liability expert
reports.
The court may extend deadlines in a case for good cause. See Fed. R. Civ. P. 6(b),
16(b)(4). In this case, the court concludes that Plaintiff has established good cause for his
requested extension. Most notably and correctly, Plaintiff points to the court’s delay in rendering
a ruling on his motion to compel. The court agrees that receiving that ruling is a prerequisite to
him conducting meaningful depositions and adequately preparing liability expert reports. For
that reason, Plaintiff’s motion is granted. After MMC provides all discovery to Plaintiff required
by this order, Plaintiff shall have 30 days to conduct fact depositions and supplement his liability
expert reports.
III. Defendants’ Motion to Compel
In this motion, Defendants seek to compel Utah Valley University Student Health
Services; John Catlett, LPC; and Kersten Haugse White, PhD (collectively, “Health Care
Providers”) to comply with and respond to a properly served subpoena duces tecum
(“Subpoena”).
On March 5, 2013, Defendants served notice of the Subpoena to Plaintiff’s counsel,
thereby notifying him that Defendants intended to serve the Health Care Providers with the
Subpoena. Plaintiff’s counsel did not object to the Subpoena and, therefore, Defendants served
the Subpoena along with a HIPAA-compliant Authorization for Release of Protected Health
11

Information for the disclosure of Plaintiff’s medical and psychotherapy notes,
neuropsychological testing, and supporting test data. According to Defendants, the Health Care
Providers have refused to produce all their records. Instead, the Health Care Providers simply
provided a summary of Plaintiff’s visits. 13
Defendants argue that the Health Care Providers should be compelled to comply with and
respond to the Subpoena. The court agrees.
Pursuant to rule 45(d)(2)(B) of the Federal Rules of Civil Procedure,
[a] person commanded to produce documents or tangible things or
to permit inspection may serve on the party or attorney designated
in the subpoena a written objection to inspecting, copying, testing,
or sampling any or all of the materials or to inspecting the
premises--or to producing electronically stored information in the
form or forms requested. The objection must be served before the
earlier of the time specified for compliance or 14 days after the
subpoena is served.
Fed. R. Civ. P. 45(d)(2)(B). In addition, rule 45(d)(3) allows a party upon whom or which a
subpoena has been served to file a motion to quash or modify the subpoena. See Fed. R. Civ. P.
45(d)(3). Finally, rule 45(g) allows the court to “hold in contempt a person who, having been
served, fails without adequate excuse to obey the subpoena or an order related to it.” Fed. R.
Civ. P. 45(g).
In this case, there is no indication in Defendants’ motion that the Health Care Providers
lodged any formal objections to the Subpoena. Further, the Health Care Providers have not filed
any motion to quash the Subpoena. Accordingly, the Health Care Providers are hereby ordered
to comply with the Subpoena or file a motion to quash the Subpoena within 30 days of the date

13

See docket no. 42, Exhibit C.
12

of this order. Failure to do so may result in the court holding the Health Care Providers in
contempt under rule 45(g). Defendants shall be responsible for providing notice of this order to
the Health Care Providers.
In addition to requesting an order requiring the Health Care Providers to comply with the
Subpoena, Defendants move the court to immediately hold the Health Care Providers in
contempt under rule 45(g). The court is unwilling to do so. The court will address the issue of
contempt if and when the Health Care Providers fail to abide by this order.
Defendants also move the court for an award of the reasonable expenses, including
attorney fees, incurred in bringing their motion to compel. See Fed. R. Civ. P. 37(a)(5)(A). The
court is not persuaded that such an award is appropriate or justified under the circumstances. See
Fed. R. Civ. P. 37(a)(5)(A)(iii). Accordingly, that portion of Defendants’ motion is denied.
Based the foregoing, Defendants’ motion to compel is granted in part and denied in part.
*****
In summary, IT IS HEREBY ORDERED:
1.

Plaintiff’s motion to compel 14 is GRANTED IN PART AND DENIED IN
PART, as indicated above.

2.

Plaintiff’s motion to extend deadlines for taking fact depositions and
supplementing liability expert reports 15 is GRANTED, as indicated above.

14

See docket no. 26.

15

See docket no. 38.
13

3.

Defendants’ motion to compel third-party compliance with a subpoena duces
tecum 16 is GRANTED IN PART AND DENIED IN PART, as indicated above.

IT IS SO ORDERED.
DATED this 24th day of January, 2014.
BY THE COURT:

PAUL M. WARNER
United States Magistrate Judge

16

See docket no. 42.
14