Matthews et al v. Ford Motor Company

Filing 530

MEMORANDUM OPINION AND ORDER granting in part and denying in part Plaintiffs' #452 MOTION to Sanction Ford Motor Company Regarding Engle Documents as more fully set forth herein; directing Defendant to supply the privilege log within twenty (20) days of the date of this Order; directing that Plaintiffs shall have through and including 9/25/2015 in which to file an affidavit of reasonable fees and costs incurred in making and arguing their motion; Defendant shall file a response within 14 days. Signed by Magistrate Judge Cheryl A. Eifert on 9/11/2015. (cc: counsel of record; any unrepresented party) (jsa) (Modified on 9/16/2015 to add in text that the order was signed by Magistrate Judge Cheryl A. Eifert on 9/11/2015) (mkw).

IN THE UNITED STATES DISTRICT COURT
FOR THE SOUTHERN DISTRICT OF WEST VIRGINIA
HUNTINGTON DIVISION
CHARLES JOHNSON, et al.,
TONY BURNETT, et al.,
and

Case No.: 3:13-cv-06529
Case No.: 3:13-cv-14207
Case No.: 3:13-cv-20976

CHARLES T. BURD, et al.,
Plaintiffs,
v.
FORD MOTOR COMPANY,
Defendant.

MEMORANDUM OPINION and ORDER
Pending before the Court is Plaintiffs’ Motion to Sanction Ford Motor Company
Regarding Engle Documents. (ECF No. 537).1 Defendant Ford Motor Company
(“Ford”) has filed a memorandum in opposition to the motion, (ECF No. 555), and
Plaintiffs have replied. (ECF No. 568). On August 18, 2015, the Court heard oral
argument on the motion. (ECF No. at 591 at 56-105).
For the reasons that follow, the Court GRANTS, in part, and DENIES, in part,

The docket numbers referenced in this Order are taken from the lead case, Johnson v. Ford Motor
Company, Case No.: 3:13-cv-06529. Corresponding motions to sanction Ford over the Engle documents
are found at ECF No. 452 in Burnett v. Ford Motor Company, Case No.: 3:13-cv-14207, and ECF No. 411
in Burd v. Ford Motor Company, Case No.: 3:13-cv-20976.
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Plaintiffs’ Motion to Sanction Ford Regarding Engle documents. (ECF No. 537).2
I.

Relevant Facts
This putative class action involves alleged events of sudden unintended

acceleration in certain Ford vehicles manufactured between 2002 and 2010. In
particular, Plaintiffs claim that their vehicles were equipped with defective electronic
throttle control (“ETC”) systems, which were not fault tolerant, resulting in open
throttle events during which the drivers of the vehicles lacked the ability to control the
throttles. Plaintiffs assert that the mechanisms causing the throttles to open
unexpectedly were numerous; they included electromagnetic interference, resistive
shorts, and other voltage and resistance fluctuations; and these issues were known to
Ford. Despite having knowledge of the potential for sudden unexpected acceleration,
Ford allegedly failed to properly design the ETC system to correct the events when they
occurred, and further neglected to install fail-safes, such as a Brake Over Accelerator
system, which would allow the drivers to physically prevent or mitigate sudden
acceleration.
During discovery, Ford identified Mr. James Engle as a key employee with
relevant information regarding the ETC system and allegations of sudden unexpected
acceleration in Ford vehicles. Ford described Mr. Engle as being familiar with the
general design of the ETC system and as one of only two individuals tasked with
investigating claims of sudden unintended acceleration. In addition, Ford designated
Mr. Engle as a corporate representative to address multiple topics for purposes of a
Rule 30(b)(6) deposition. At the deposition, Mr. Engle testified that he had conducted
2 This Order likewise GRANTS, in part, and DENIES, in part, ECF No. 452 in Burnett v. Ford Motor
Company, Case No.: 3:13-cv-14207, and ECF No. 411 in Burd v. Ford Motor Company, Case No.: 3:13cv-20976.

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approximately thirty investigations into claims that Ford vehicles equipped with an
ETC system suddenly and unexpectedly accelerated. He also confirmed that he was the
primary investigator of unintended acceleration events in ETC-equipped vehicles.
This motion arises from Plaintiffs’ belief that Ford has failed to conduct a
proper search of Mr. Engle’s custodial file and has improperly withheld materials
reflecting Mr. Engle’s investigations. Secondary to those assertions, Plaintiffs complain
that Ford has failed to provide a privilege log properly identifying relevant documents
that have been withheld under the guise of a “presumptive” attorney-client privilege, or
a work product protection. In addition, Plaintiffs indicate that Ford has not been
timely in its productions, has provided inconsistent information regarding the
existence of documents, and has not insisted that Mr. Engle conduct an adequate
search of his files.
II.

Discussion
A.

Adequacy of Production

Plaintiffs argue that the production of documents pertaining to Mr. Engle has
been insufficient. In support, they note the following deficiencies in productions
allegedly containing Engle documents:
1.

The first two productions included only deposition transcripts;

2.
A purported “Engle” production on October 31, 2014 contained no
metadata including Mr. Engle’s name; the cover letter did not mention
Mr. Engle; and Mr. Engle was not listed as a custodian of any of the
documents;
3.
A production on November 26, 2014, related to internal
investigations by Mr. Engle, contained only four documents consisting of
228 pages and relating to only three of his thirty investigations.
4.
Four supplemental productions in 2015 were sparse and primarily
included public records, like deposition transcripts and expert reports.
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5.
The metadata of only one produced document shows Mr. Engle as
its custodian.
6.
From the meet and confer sessions between the parties, Plaintiffs
believe that Ford is withholding the vast majority of Mr. Engle’s
documents under a claim of a privilege; however, Ford has refused to
supply a privilege log.
Given the integral role played by Mr. Engle in investigating events of unintended
acceleration, Plaintiffs contend that the meager quantity of documents attributed to
Mr. Engle is, by itself, evidence of bad faith discovery tactics on the part of Ford.
Ford responds that its production of Mr. Engle’s documents is complete. Ford
has supplied Plaintiffs with all “relevant, non-privileged documents” from the open
and closed litigation files maintained by Ford’s Office of the General Counsel reflecting
Mr. Engle’s investigations, as well as the entirety of the non-litigation files involving
Mr. Engle’s investigations of sudden unintended acceleration. Ford concedes that it
has not logged the remaining portions of Mr. Engle’s files on a privilege log, but
maintains that the documents are either irrelevant, or are “presumptively privileged”
as attorney-client communications. (ECF No. 555 at 2). Ford further asserts that
“documents and communications generated or received by Mr. Engle in connection
with prior or pending litigation involving allegations of SUA [sudden unintended
acceleration] in class vehicles is beyond the scope of discovery as defined by Rule
26(b)(1)’’ and, thus, need not be described on a privilege log. (Id.). With respect to
Plaintiffs’ accusation that Mr. Engle has not conducted a thorough search of his files
(particularly, his e-mail communications) and Ford has not undertaken its own search,
Ford argues that Mr. Engle knows what documents are in his possession and
confirmed at deposition that he does not have any other relevant materials to provide
to Plaintiffs. Mr. Engle corroborates Ford’s position in a subsequently-filed
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declaration, (ECF No. 589), stating that he has checked his files for non-litigation
matters involving sudden unintended acceleration in putative class vehicles and could
only find a few reports that he understood had been supplied to Plaintiffs. Mr. Engle
adds that, to his knowledge, all of the documents he located pertaining to litigation
files, both open and closed, were given to counsel and subsequently provided to
Plaintiffs. (Id.).
In their reply, Plaintiffs take issue with Ford’s “self-proclaimed ‘presumptive
privilege,’” stating that such a privilege does not apply to the type of documents being
withheld by Ford. (ECF No. 568 at 5-12). Plaintiffs insist that Ford is required to
identify these documents on a privilege log, and its failure to do so has resulted in a
waiver of the privilege or protection asserted. Once again, Plaintiffs argue that the
scant production of documents attributable to Mr. Engle attests to Ford’s substandard
collection process.
Addressing first Plaintiffs’ contention that the small quantity of produced
documents directly attributable to Mr. Engle is evidence of Ford’s non-compliance
with discovery mandates, the undersigned recognizes “that even an informed suspicion
that additional non-privileged documents exist ... cannot alone support an order
compelling production of documents.” Kinetic Concepts, Inc. v. ConvaTec Inc., 268
F.R.D. 226, 252 (M.D.N.C. 2010) (collecting cases). It follows, then, that a suspicion
cannot justify the award of sanctions. Here, Plaintiffs claim that Ford has made an
incomplete production of documents related to Mr. Engle. Ford disputes Plaintiffs’
claim, indicating that it has produced all non-privileged and relevant documents. The
Kinetic Court described the dilemma faced by judicial officers in this type of situation,
stating:
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[T]o the extent Plaintiffs allege that [Defendant] has not produced all
documents, the Court notes the difficulty of the decision it faces. On one
hand, Plaintiffs maintain that [Defendant's] document production
remains incomplete, yet on the other [Defendant] contends that it has
produced all that it can produce. Admittedly, there is no way for the
Court to independently verify whether [Defendant] possesses the
documents Plaintiffs allege exist and whether [Defendant] has in fact
produced all relevant documents....
Id. at 251-52 (quoting Ropak Corp. v. Plastican, Inc., No. 04C5422, 2006 WL
2385297, at *5 (N.D.Ill. Aug.15, 2006)). Thus, the best the court can do is bear in mind
the parties’ inconsistent positions and any troubling discrepancies, and require the
producing party to provide information on the steps it took to locate, identify, collect,
and produce responsive documents. Id. at 252. Plaintiffs have already acquired some
knowledge of Ford’s efforts in responding to discovery and will have the opportunity to
depose a corporate designee on Ford’s document retention, search, and production as
those processes pertain to this litigation. Consequently, at present, there is little more
the Court can do to address the matter.
As to the parties’ disagreement regarding a “presumptive privilege,” the
undersigned is not persuaded that such a privilege applies to documents collected in
prior litigation. See, e.g., Beyer v. Medico Ins. Group, 266 F.R.D. 333, 338 (D.S.D.
2009) (holding that non-privileged documents relating to prior litigation be produced,
along with a privilege log for materials that are withheld). Indeed, none of the cases
cited by Ford addresses the circumstances before this Court. Although Ford makes a
logical point that creating a privilege log for attorney-client communications in
unrelated cases is burdensome, Ford again fails to provide any of the factual support
necessary to succeed on a burdensomeness argument. See Convertino v. United States
Department of Justice, 565 F. Supp.2d 10, 14 (D.D.C. 2008) (the court will only
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consider an unduly burdensome objection when the objecting party 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”). Moreover, with
only twenty seven files at issue, the burden associated with creating a log is unlikely to
be heavy; particularly, when Plaintiffs have agreed to an abbreviated log. (See ECF No.
591 at 64). Therefore, the Court GRANTS Plaintiffs’ motion for sanctions to the extent
that Ford is hereby compelled to produce a log of the Engle documents that have been
withheld based upon a privilege or protection. Ford is ORDERED to supply the
privilege log within twenty (20) days of the date of this Order.
B.

Additional Sanctions

In addition to reasonable expenses, Plaintiffs seek sanctions against Ford,
including a stay of the litigation until Ford runs specific word searches on Mr. Engle’s
documents, an order finding Ford in contempt of court, and a monetary award against
Ford in favor of Plaintiffs. Plaintiffs argue that awarding these sanctions is the only
way to force Ford to approach discovery in a good faith manner. In response, Ford
asserts that none of these sanctions is appropriate when applying the four-factor
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analysis outlined by the United States Court of Appeals for the Fourth Circuit in
Anderson v. Found. for Advancement, Educ., & Employment of Am. Indians, 155 F.3d
500, 504 (4th Cir. 1998).
Other than compelling the production of a privilege log, the undersigned
DENIES the motion for sanctions, declining to award the requested relief for several
reasons.3 First, Plaintiffs were not entirely successful in demonstrating a basis for the
relief requested in their motion for sanctions. Ford claims that it has produced all
relevant, non-privileged documents relating to Mr. Engle’s investigations, and there is
no compelling evidence before the Court to contradict that representation. Second,
much of Plaintiffs’ dissatisfaction with discovery arises from Ford’s failure to run
adequate word searches on its employees’ (including Mr. Engle’s) electronic files. For
months, the undersigned has encouraged, prodded, and pressured the parties to agree
on search terms; even threatening to hire a third-party expert to develop the terms if
the parties could not resolve their issues expeditiously. Despite the Court’s repeated
urging, the parties only recently agreed to terms. Consequently, the delay in discovery
occasioned by the lack of search terms can be attributed to both parties. Finally,
although the cases have been pending for over two years, the issues are complex and
discovery is still ongoing. Accordingly, Plaintiffs cannot demonstrate prejudice to a
level that would justify the sanctions requested.

Arguably, Plaintiffs’ motion for sanctions is premature as Ford has not failed to comply with a written
court order; failed to disclose or supplement answers; failed to attend a deposition, provide answers to
discovery, or allow an inspection; or failed to participate in a discovery plan. Plaintiffs frame their
motion as a motion for sanctions arising from Ford’s failure to follow the Court’s oral order to produce
documents or provide a privilege log regarding Mr. Engle’s inspections. However, as the undersigned
explained at the hearing, that order pertained specifically to investigative documents and did not
explicitly take into account alleged attorney-client communications prepared in prior litigation. (ECF
No. 591 at 63).

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On the other hand, Plaintiffs are entitled to an award of reasonable expenses.
While Plaintiffs were not successful on their request for a stay, for a finding of
contempt, for a monetary award, and for word-specific searches, they did succeed on
their request for a privilege log. Ford’s explanations for failing to provide a log are
unavailing, and its failure to move for a protective order, or properly support an
argument of burdensomeness, caused Plaintiffs to file and prosecute the motion to
sanction. Therefore, it is hereby ORDERED that Plaintiffs shall have through and
including September 25, 2015 in which to file an affidavit of reasonable fees and
costs incurred in making and arguing their motion related to Ford’s failure to provide a
privilege log, as well as any supportive documentation or argument to justify the
amount of fees and expenses requested. See Robinson v. Equifax Information
Services, LLC, 560 F.3d 235, 243-44 (4th Cir. 2009). Within fourteen (14) days
after Plaintiffs have filed the aforementioned documents, Ford shall file a response
either agreeing to the amount requested, or objecting to specific fees or costs. Ford is
hereby notified that the failure to file a response shall be deemed an agreement with
the representations and arguments of Plaintiffs.
The Clerk is directed to file a copy of this Order in all three actions and provide
a copy of this Order to counsel of record and any unrepresented party.
ENTERED: September 11, 2015

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