Johnson et al v. Ford Motor Company

Filing 209

MEMORANDUM OPINION AND ORDER granting in part and denying in part #161 MOTION by Ford Motor Company to Compel Written Discovery Responses from Plaintiffs Roofwerks, Inc., David Patton, and Inez Patton, as set forth herein; the plaintiffs shall serve their supplemental responses on Ford within 7 days of the date of this Order. Signed by Magistrate Judge Cheryl A. Eifert on 11/18/2014. (cc: attys; any unrepresented party) (mkw)

IN THE UNITED STATES DISTRICT COURT
FOR THE SOUTHERN DISTRICT OF WEST VIRGINIA
HUNTINGTON DIVISION
DEAN RICHARDSON, et al.,
Plaintiffs,
v.

Case No.: 3:13-cv-06529

FORD MOTOR COMPANY,
Defendant.

MEMORANDUM OPINION AND ORDER
Pending before the Court is Ford Motor Company’s (“Ford”) Motion to Compel
Discovery. (ECF No. 161). Plaintiffs have filed a response and an amended response in
opposition to the motion, (ECF Nos. 178, 179), and Ford has replied. (ECF No. 183).
Having considered the arguments of the parties, the Court GRANTS, in part, and
DENIES, in part, the motion to compel.
I.

Relevant Background
Plaintiffs in this action are purchasers of one or more vehicles manufactured by

Ford between 2002 and 2010 that were equipped with an electronic throttle control
system. Plaintiffs claim that although this particular type of throttle control system is
prone to episodes of sudden unintended acceleration, Ford failed to equip the affected
vehicles with an adequate fail-safe mechanism to mitigate the unwanted acceleration.
Plaintiffs have sued individually and on behalf of others similarly situated.
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In late July, Ford served discovery requests on seven plaintiffs, including
Roofwerks, Inc., David Patton, and Inez Patton. Responses were supplied by Roofwerks
and the Pattons in September, which Ford found to be deficient. Thereafter, the parties
met and conferred, but were unable to resolve all of their differences. Accordingly, Ford
filed the instant motion seeking an order compelling Roofwerks and the Pattons
(hereinafter “the plaintiffs”) to serve full and complete responses to the discovery
requests.
II.

Controlling Legal Principles
Federal Rule of Civil Procedure 26(b)(1) permits a party to obtain discovery

regarding any nonprivileged matter that is relevant to any party’s claims or defenses.
“While the Federal Rules of Civil Procedure do not define ‘relevant information,’ the
Federal Rules of Evidence define it as ‘evidence having any tendency to make the
existence of any fact that is of consequence to the determination of the action more
probable or less probable than it would be without the evidence.’” Boykin Anchor Co.,
Inc. v. Wong, No. 5:10–CV–591–FL, 2011 WL 5599283, *2 (E.D.N.C. November 17,
2011), citing United Oil Co., v. Parts Assocs., Inc, 227 F.R.D. 404, 409 (D.Md. 2005).
However, admissibility under the Federal Rules of Evidence is not the guideline for
relevancy in the context of discovery. Relevancy in discovery is broader in scope,
because “[d]iscovery is of broader scope than admissibility, and discovery may be had of
inadmissible matters.” King v. Conde, 121 F.R.D. 180, 194 (E.D.N.Y. 1988); See also
Carr v. Double T Diner, 272 F.R.D.431, 433 (D.Md.) (“The scope of relevancy under
discovery rules is broad, such that relevancy encompasses any matter that bears or may
bear on any issue that is or may be in the case. For purposes of discovery, information
is relevant, and thus discoverable, if it ‘“bears on, or ... reasonably could lead to other
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matter[s] that could bear on, any issue that is or may be in the case. Although ‘the
pleadings are the starting point from which relevancy and discovery are determined ...
[r]elevancy is not limited by the exact issues identified in the pleadings, the merits of the
case, or the admissibility of discovered information.’” Kidwiler v. Progressive Paloverde
Ins. Co., 192 F.R.D. 193, 199 (N.D.W.Va. 2000) (internal citations omitted). Depending
upon the needs of the particular case, “the general subject matter of the litigation
governs the scope of relevant information for discovery purposes.” Id. The party
resisting discovery, not the party seeking discovery, bears the burden of persuasion. See
Kinetic Concepts, Inc. v. ConvaTec Inc., 268 F.R.D. 226, 243–44 (M.D.N.C.
2010)(citing Wagner v. St. Paul Fire & Marine Ins. Co., 238 F.R.D. 418, 424–25
(N.D.W.Va. 2006).
Simply because information is discoverable under Rule 26, however, “does not
mean that discovery must be had.” Schaaf v. SmithKline Beecham Corp., 233 F.R.D.
451, 453 (E.D.N.C. 2005) (citing Nicholas v. Wyndham Int'l, Inc., 373 F.3d 537, 543
(4th Cir. 2004)). For good cause shown under Rule 26(c), the court may restrict or
prohibit discovery that seeks relevant information when necessary to protect a person or
party from annoyance, embarrassment, oppression, or undue burden or expense. Fed.
R. Civ. P. 26(c). To succeed under the “good cause” standard of Rule 26(c), the party
resisting discovery must make a particularized showing as to why a protective order
should issue. Baron Fin. Corp. v. Natanzon, 240 F.R.D. 200, 202 (D.Md. 2006).
Conclusory and unsubstantiated allegations are simply insufficient to support an
objection based on the grounds of annoyance, burdensomeness, oppression, or expense.
Convertino v. United States Department of Justice, 565 F. Supp.2d 10, 14 (D.D.C. 2008)
(the court will only consider an unduly burdensome objection when the objecting party
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demonstrates how discovery is overly broad, burdensome, and oppressive by submitting
affidavits or other evidence revealing the nature of the burden); Cory v. Aztec Steel
Building, Inc., 225 F.R.D. 667, 672 (D.Kan. 2005) (the party opposing discovery on the
ground of burdensomeness must submit detailed facts regarding the anticipated time
and expense involved in responding to the discovery which justifies the objection); Bank
of Mongolia v. M & P Global Financial Services, Inc., 258 F.R.D. 514, 519 (S.D.Fla.
2009) (“A party objecting must explain the specific and particular way in which a
request is vague, overly broad, or unduly burdensome. In addition, claims of undue
burden should be supported by a statement (generally an affidavit) with specific
information demonstrating how the request is overly burdensome”).
Furthermore, Rule 26(b)(2)(C) requires the court, on motion or on its own, to
limit the frequency and extent of discovery, when (1) “the discovery sought is
unreasonably cumulative or duplicative;” (2) the discovery “can be obtained from some
other source that is more convenient, less burdensome, or less expensive;” (3) “the party
seeking the discovery has already had ample opportunity to collect the requested
information by discovery in the action;” or (4) “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 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)(i)-(iii). This rule “cautions that all permissible discovery must be measured
against the yardstick of proportionality.” Lynn v. Monarch Recovery Management, Inc.,
285 F.R.D. 350, 355 (D. Md. 2012) (quoting Victor Stanley, Inc. v. Creative Pipe, Inc.,
269 F.R.D. 497, 523 (D. Md. 2010)). To insure that discovery is sufficient, yet
reasonable, district courts have “substantial latitude to fashion protective orders.”
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Seattle Times Co. v. Rhinehart, 467 U.S. 20, 36, 104 S.Ct. 2199, 81 L.Ed.2d 17 (1984).
III.

Discussion
At the time the motion to compel was filed, the plaintiffs had unresolved

objections to twelve interrogatories and twenty-six requests for production of
documents. However, according to the response and reply memoranda filed by the
parties, only five interrogatories and nine production requests remain in dispute.
Interrogatory Nos. 1 and 18; Request No. 15
In Interrogatory No. 1, Ford asks for the names and addresses of all persons with
knowledge of any relevant facts concerning the plaintiffs’ claims, including anyone who
has operated or ridden in the subject vehicles, anyone who has inspected, serviced, or
repaired the vehicles, and anyone with knowledge of the plaintiffs’ decisions to purchase
or lease the vehicles. In Interrogatory No. 18, Ford requests more detailed information
about the work done by persons that have inspected, serviced, or repaired the subject
vehicles, including descriptions of the work, dates of service or inspection, and any
supporting paperwork. Finally, in Request No. 15, Ford asked the plaintiffs to produce
copies of the documents reflecting repairs, service, and inspections. In response to all
three discovery requests, the plaintiffs argue that the inquiries are so broad, they would
be forced to collect and produce a voluminous amount of information, much of which
would have little or no value in developing the claims and defenses in this litigation.
When evaluating whether an interrogatory is overly broad, the court must
consider various factors, including the burden on the responding party to gather the
information and the anticipated benefit of the information to the party propounding the
request. See Maren’s v. Carrabba’s Italian Grill, Inc., 196 F.R.D. 35, 37 (D.Md. 2000).
Logically, the burden placed on the responding party should decrease in direct
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proportion to the decrease in likelihood that the discovery request will yield useful
information to the propounding party. Part of the court’s task is to determine the level of
discovery that is reasonable considering the needs of the particular case. In regard to
Interrogatory No. 1, Ford clearly is entitled to know the identities and addresses of all
persons with knowledge of the plaintiffs’ claims, including any person present in the
subject vehicles at the time of an alleged sudden unintended acceleration. In addition,
Ford is entitled to know the names and addresses of individuals that regularly drive or
ride in the vehicles. Accordingly, the plaintiffs are ORDERED to provide this
information. However, the plaintiffs are not required to provide the name of every
individual that has ever driven or ridden in the subject vehicles. As the plaintiffs point
out, over the years, hundreds of people may have ridden in the subject vehicles
depending upon how the plaintiffs use them. The likelihood is slight that individuals will
have useful information if they have had only minimal contact with the vehicles and no
exposure to a sudden acceleration event; therefore, the potential burden on the plaintiffs
in compiling that information outweighs any anticipated benefit to Ford.
On the other hand, production of the names and addresses of persons repairing,
servicing, or inspecting the vehicles is more likely to lead to useful information given
that this lawsuit involves an alleged defect in the subject vehicles. Ford contends that
episodes of sudden unexpected acceleration may occur from different causes. Ford also
argues that the plaintiffs have not identified a single, definite defect in the subject
vehicles upon which they base their claims. For these reasons, the overall condition of
the vehicles, the scope and regularity of their maintenance, and the training and
experience of the service providers may provide information highly relevant to Ford’s
defenses. The plaintiffs contend that the task of gathering the names of service providers
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and inspectors is overly burdensome, yet they have provided no specific or
particularized showing to support their objection. Accordingly, the undersigned finds
the objection to be without merit and further finds that the plaintiffs have improperly
limited their responses to service and repairs related to sudden acceleration, the
electronic throttle control system, or for any purpose related to the allegations in the
complaint. Accordingly, the plaintiffs are ORDERED to provide Ford with the names
and addresses of all individuals, or entities (such as the names of garages, dealerships,
outlets, stores) that have serviced or inspected the subject vehicles, as requested in
Interrogatory No. 1. Considering that most consumers take their vehicles to the same
local mechanics or entities for servicing and repairs, it is likely that collecting this
information will not be unduly burdensome. In response to Interrogatory No. 18 and
Request No. 15, the plaintiffs are required to make a good faith effort to answer the
questions posed and conduct a reasonable and conscientious search to provide the
documents requested. See Frontier-Kemper Constructors, Inc. v. Elk Run Coal Co., Inc.
246 F.R.D. 522, 529 (S.D.W.Va. 2007); Jackson v. Kroblin Refrigerated Xpress, Inc., 49
F.R.D. 134, 137 (N.D.W.Va. 1970) (“A party to civil litigation in the federal system is
under a severe duty to make every effort to obtain the requested information and, if,
after an adequate effort, he is unsuccessful, his answer should recite in detail the
attempts which he made to acquire the information.”) Most mechanics keep records of
their work. Garages, dealerships, and national chains generally maintain computerized
records, which can be easily obtained and could be supplied under Fed. R. Civ. P. 33(d)
in lieu of detailed answers. Therefore, the plaintiffs are further ORDERED to fully
respond to Interrogatory No. 18 and Request No. 15.

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Interrogatory No. 8; Request No. 21
In Interrogatory No. 8 and Request No. 21, Ford seeks information regarding
every written and oral communication the plaintiffs have had with any person regarding
the subject vehicles, an alleged episode of unintended acceleration,1 or alleged defect in
the subject vehicles. Plaintiffs object on the ground of breadth, arguing that Ford should
limit its query to “substantive” communications because the interrogatory and request,
as written, require the plaintiffs to identify, detail, and provide documentation on even
non-substantive, “passing” comments. The undersigned agrees that an interrogatory
that asks for “any” communication regarding the subject vehicles is, on its face, overly
broad; thus, a response to that particular query will not be compelled.
In its reply, Ford states that it is primarily interested in communications
pertaining to alleged unintended acceleration events and purported defects related to
the operation of the subject vehicles. Certainly, written communications pertaining to
those topics are relevant and should not be especially burdensome to compile.
Therefore, the plaintiffs are ORDERED to provide Ford with full responses to the
requests

regarding

any

such

written

communications.

In

regard

to

oral

communications, the likelihood that the search will yield useful information decreases
as the nature of the communication becomes less informal. For instance, a passing
complaint about the vehicle made to a social friend has less evidentiary value than an
oral report made to a law enforcement officer after a traffic accident attributed to an
event of sudden and unexpected acceleration. Therefore, the plaintiffs shall not be
required to go to the trouble of recollecting and recounting every passing comment
Actually, the discovery requests repeatedly refer to “Occurrences.” Unfortunately, neither party provided
the Court with the definition of “Occurrences.” However, the undersigned presumes the term
“Occurrences” refers to episodes of unintended sudden acceleration.

1

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made regarding events of unintended acceleration or purported defects in the subject
vehicle. However, the plaintiffs are ORDERED to provide Ford with the requested
information regarding any relevant oral communications made to a current or former
Ford employee or Ford dealership or service shop; any government agency, employee or
representative-including law enforcement agencies; any consumer group; and any news
agency concerning events of unexpected acceleration or defects in the subject vehicles
related to their operation.
Interrogatory No. 19
Ford asks for information about additions, alterations, or modifications made to
the subject vehicles since their purchase or lease. Plaintiffs object on the basis of breadth
and burdensome, contending that they should only have to provide responses that are
specific to sudden acceleration and the electronic throttle control system. Plaintiffs
complain that the interrogatory forces them to collect information about matters as
trivial as windshield wipers and gas caps; however, they provide no factual support for
their burdensomeness argument. Moreover, the plaintiffs’ argument on breadth is
simply not persuasive. As Ford emphasizes, questions about additions, modifications,
and alterations do not require the production of materials about simple repairs. In
addition, the cause or causes of the alleged sudden acceleration episodes and the alleged
defects in the subject vehicles are not, as yet, established. Therefore, information
regarding changes made to the subject vehicles is highly relevant, and the plaintiffs are
ORDERED to fully respond to the interrogatory.
Interrogatory No. 20
In Interrogatory No. 20, Ford requests the current location of the subject vehicles
and all parts thereof, as well as other information designed to establish the chain of
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custody. The plaintiffs object on the grounds of breadth and burdensomeness, primarily
due to Ford’s use of the phrase “all parts thereof.” They argue that this language requires
them to track parts that were discarded as part of routine oil changes. Therefore, the
plaintiffs seek some limitation on the interrogatory. Having reviewed Ford’s reply, the
Court ORDERS the plaintiffs to provide Ford with the chain of custody information
related to the subject vehicles and their central component parts (which would exclude
parts commonly removed and discarded as part of routine maintenance).
Request Nos. 8 and 9
Ford seeks documents in production requests nos. 8 and 9 detailing inspections,
testing, or examinations of the subject vehicles. The plaintiffs object on the grounds of
burdensomeness, although they provide no factual showing to support that objection.
They also contend that the requests are overly broad, as they encompass such events as
annual state inspections, which plainly would not yield relevant information. The
plaintiffs propose that the requests be limited to inspections involving sudden
unexpected accelerations and the electronic throttle control system. Once again,
discovery is broad and allows investigation into matters that ‘“bear on, or ... reasonably
could lead to other matter[s] that could bear on, any issue that is or may be in the case.”
Kidwiler, 192 F.R.D. at 199. Here, Ford alleges that a vehicle’s sudden unintended
acceleration may have many different causes. Although the plaintiffs allege that the
acceleration is due to the electronic throttle control system, Ford apparently has not
conceded that point. Furthermore, Ford argues that the plaintiffs have not agreed on the
nature of the alleged defect in the subject vehicles. For that reason, Ford necessarily
must conduct broad discovery on the vehicles, collecting both documents establishing
the historical maintenance, repairs, modifications, and alterations of the vehicles, but
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also any testing, examinations, and inspections performed. The undersigned agrees that
under the current circumstances, Ford is entitled to some latitude in discovery of these
issues. Accordingly, the plaintiffs are ORDERED to fully respond to the requests.
Request No. 3
In Request No. 3, Ford seeks all photographs, diagrams, videotapes, films, slides,
drawings, and similar materials relating to the claims. The plaintiffs object on the
ground of breadth and burdensomeness, indicating that there could be thousands of
photographs responsive to the request. Ford nonetheless insists that it is entitled to all
of the photographs and films. Under Fed. R. Civ. P. 26(b)(2)(C)(i), the court may, on its
own, limit the frequency or extent of discovery when the discovery sought is
unreasonably cumulative or duplicative. Contrary to Ford’s contention, it is not entitled
to every film, photograph, videotape, or audiotape ever taken of the subject vehicles and
the plaintiffs at the time of or after an event of unintended acceleration. Therefore, the
plaintiffs are ORDERED to provide Ford with a representative sampling of the
requested materials, if any such materials exist.
Request Nos. 11 and 12
In these Requests for Production of Documents, Ford seeks warranty documents,
owner’s manuals, and extended service plans in the possession of the plaintiffs, as well
as any written warranties, representations, promises, and agreements upon which the
plaintiffs base their claims. The plaintiffs object on the ground of burdensomeness.
Additionally, they argue that Ford already has access to these documents either because
the documents are in Ford’s custody and control, or because they are readily available in
the public domain. Once again, the plaintiffs fail to make a particularized showing to
support their burdensomeness objection. Furthermore, an objection based upon the
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availability of the documents to Ford is not meritorious. See Jackson v. West Virginia
University Hospitals, Inc., Case No. 1:10-cv-107, 2011 WL 1831591, at *2 (N.D.W.Va.
May 12, 2011) (citing cases) (holding that “courts have unambiguously stated that this
exact objection is insufficient to resist a discovery request”). As the court points out in
Jackson, even though information may be available in the public domain or in the
possession of the propounding party, the benefits of requiring formal production of the
documents through discovery requests are that:
1) both parties to the litigation will be working from the same documents
at depositions or trial; 2) there is a certification by counsel that the
document produced is the document on which he will rely whereas there is
no such certification when the document is procured outside of discovery
...; and 3) experts will be able to rely on a common set of documents in
researching and formulating any opinion relevant to the litigation. In
short, production through discovery ... promotes clarity in the litigation
context. These protections do not exist with respect to documents not
produced in discovery.
Id. at *3. Ford is entitled to know what documents form the basis of the plaintiffs’
claims. Accordingly, the plaintiffs are ORDERED to fully respond to these two
requests.
Request No. 36
Ford asks the plaintiffs to produce copies of their fee agreements with counsel in
order to determine whether there are any conflicts of interest in this potential class
action lawsuit. The plaintiffs refuse to produce the agreements on the ground of
attorney/client privilege.
Ford explains that production of the fee agreements has become necessary due to
two concrete concerns that have developed over the adequacy of the named plaintiffs in
this action. First, Ford expresses concern that deposition testimony has revealed that
some of the plaintiffs have “personal or familial relationships” with counsel of record.
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Therefore, “for the purposes of assessing the adequacy of class representatives at the
certification stage,” the agreements are relevant to insure that no plaintiff has been
offered preferential treatment. Second, Ford contends that there are 30 distinct
subclasses of plaintiffs, all with conflicting interests. Without reviewing the retainer
agreements, it will be difficult for Ford and the Court to “sort out which counsel are
actually representing which Plaintiffs.” However, Ford does not indicate any specific
concerns or questions related to Roofwerks or the Pattons, the plaintiffs whose
responses are the subject of the instant motion to compel.
The information that Ford seeks can be obtained at the depositions of the
plaintiffs without need for the production of the fee agreements. Indeed, Ford should be
able to explore all of its concerns with plaintiffs without invading the attorney/client
privilege. If after exhausting this less invasive method of discovery, Ford is unable to
collect the necessary information, then it may repetition the Court for production of the
fee agreements. Nevertheless, at this time, the plaintiffs are not required to produce
their agreements with counsel.
Request Nos. 37 and 39
Ford requests copies of any social media posting and text messages sent or
received by the plaintiffs relating to the subject vehicles and/or incidents of sudden
acceleration. The plaintiffs object to the breadth of the requests, arguing that they
require production of even the most trivial and irrelevant comments. The plaintiffs also
indicate that they have searched for all responsive documents relating to occurrences of
sudden acceleration in the subject vehicles, the allegations in the complaint, and the
electronic throttle control system, but have not located any such documents. The
undersigned agrees that the requests are phrased much too broadly; however, the
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plaintiffs’ search has been too circumscribed. Accordingly, the plaintiffs are ORDERED
to also produce all text messages or social media postings that in any way concern an
alleged defect affecting the operation of said vehicles.
IV.

Conclusion
Having fully considered the arguments, the Court GRANTS, in part, and

DENIES, in part, Ford’s motion to compel more complete discovery responses from
Plaintiff Roofwerks, Inc., Plaintiff David Patton, and Plaintiff Inez Patton as set forth
herein. The plaintiffs shall serve their supplemental responses on Ford within seven
(7) days of the date of this Order.
The Clerk is instructed to provide a copy of this Order to counsel of record and
any unrepresented party.
ENTERED: November 18, 2014

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