Brandon et al v. Ford Motor Company
MEMORANDUM OPINION AND ORDER denying 318 MOTION to Quash; granting in part and denying in part 318 MOTION for Protective Order; granting in part and denying in part 354 MOTION for Reconsideration as outlined within this Memorandum Opinion and Order. Signed by Magistrate Judge Cheryl A. Eifert on 7/8/2015. (cc: attys; any unrepresented party) (skm)
IN THE UNITED STATES DISTRICT COURT
FOR THE SOUTHERN DISTRICT OF WEST VIRGINIA
CHARLES T. BURD, et al.,
Case No.: 3:13-cv-20976
FORD MOTOR COMPANY,
MEMORANDUM OPINION and ORDER
Pending before the Court are two related motions: Ford Motor Company’s
(“Ford”) Motion to Quash Notice of Deposition and for Protective Order, (ECF No.
318), and Plaintiffs’ Motion for Reconsideration, (ECF No. 354). Both motions have
been thoroughly briefed by the parties.1 Moreover, issues underlying the motions
have been discussed at several discovery status conferences. Consequently, the
undersigned finds the motions to be fully developed and ready for resolution, without
the need for oral argument.
Having carefully considered the arguments of the parties, the Court DENIES
Ford’s Motion to Quash the Notice of Deposition; GRANTS, in part, and DENIES,
in part, Ford’s Motion for a Protective Order; and GRANTS, in part, and DENIES,
in part, Plaintiffs’ Motion for Reconsideration, as more fully discussed below.
Plaintiffs also filed a motion to seal three confidential documents attached as exhibits to their Motion
for Reconsideration, (ECF No. 363). The Court GRANTS Plaintiffs’ motion for good cause shown.
Considering that these exhibits were attached to a discovery motion, rather than a dispositive motion,
the undersigned finds that sealing the exhibits does not improperly interfere with the public’s right to
access court documents.
Relevant Facts and Procedural History
These cases involve 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 a defective Electronic Throttle Control
(“ETC”) system that was not fault tolerant, resulting in open throttle events that could
not be prevented or corrected by the drivers. Plaintiffs assert that the mechanisms
causing the throttles to open unexpectedly were numerous; included electromagnetic
interference, resistive shorts, and other voltage and resistance fluctuations; and these
issues were known to Ford. However, despite having knowledge of the potential for
sudden unexpected acceleration, Ford 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 (“BOA”) function, that would allow drivers to physically
prevent or mitigate sudden acceleration by applying the brakes.
Discovery in the present cases began in late July 2014, with the first formal
dispute occurring in mid-September 2014. By December, Plaintiffs requested
regularly scheduled discovery conferences in an effort to expedite what they
anticipated would be voluminous discovery. A discovery status conference was held
on December 17, 2014, during which the undersigned set a schedule for bi-weekly
discovery conferences to be held, for the most part, telephonically. The first discovery
conference took place on January 7, 2015 and primarily addressed the status of
unanswered and allegedly inadequately answered discovery requests. In addition, the
parties reported on their progress in establishing agreed protocols for depositions,
discovery of electronically stored information (“e-discovery”), and clawback requests.
At the February 10, 2015 conference, Plaintiffs raised concerns regarding the
reasonableness of the searches being performed by Ford in its effort to respond to
Plaintiffs’ requests for documents. In particular, Plaintiffs were disturbed by the lack
of electronic mail (“e-mail”) in the document productions. Indeed, Ford conceded
that it had not produced e-mail in certain instances, because it did not understand
that the request sought e-mail communications. Nonetheless, Ford represented to the
Court that for ten to twenty specific individuals identified by Ford as having the most
involvement in the design, development, and failure modes and effects analysis of
Ford’s ETC systems, Ford had already commenced a “sweep” of their e-mails,
searching for terms either identified by Plaintiffs, or otherwise designed to uncover
relevant documents. (ECF No. 327 at 27-28). 2 Ford described the sweep as a “selfselection” process being conducted by the individual employees, who had each been
given information about Plaintiffs’ claims, as well as suggested search terms. Ford
explained that its employees were allotted limited space on company servers for the
collection and storage of e-mail. Accordingly, the employees kept a Personal Filing
Cabinet (“PFC”) folder on their hard drives in which they stored e-mails. For that
reason, the employees were personally conducting the required searches of their PFC
files. After further discussion, it became clear that the parties had never agreed on a
set of keywords and phrases for the employees to use when searching their electronic
files, and an e-discovery protocol had not yet been implemented. Accordingly, the
Court ordered the parties to meet, confer, and agree on search terms, so that Ford
could provide those terms to the employee custodian (ten identified for design and
development of the ETC system and ten identified for the failure modes and effects
Citations to hearing transcripts refer to the docket numbers of transcripts filed in the lead case,
Johnson v. Ford Motor Company, No.: 3:13-cv-06529.
analysis). (Id. at 32-35).
As the conference continued, Plaintiffs reiterated and supplemented their
concerns regarding Ford’s document production up to that date. Plaintiffs advised the
Court that they had deposed several Ford employees and had received troubling
responses when asking the employees about their search for relevant documents. For
instance, one employee testified that he made no effort to search for documents
concerning the ETC system. Rather, he had been asked to limit his search to
information about a BOA function implemented by Ford in 2011. A similarly
restricted search had been made by one of Ford’s senior engineers, Ms. Kelly
Arbanas, notwithstanding her extensive involvement in the development of the ETC
system. Ms. Arbanas reportedly testified that she was never asked to collect
documents, including e-mails, regarding the ETC system. Another employee, Mr. Eric
Luehrsen, was identified by Ford as an individual that had no responsive documents
in his custodial file, yet Plaintiffs located hundreds of relevant documents in other
productions that were either authored or received by Mr. Luehrsen. Plaintiffs likewise
uncovered over 200 documents that were authored or received by Mr. Baum, an
employee also identified by Ford as having no responsive documents in his custodial
file. (ECF No. 327 at 44-48). Plaintiffs expressed grave doubts that the self-selection
process used by Ford to collect relevant documents was reasonable. In response, Ford
disputed Plaintiffs’ factual representations and further pointed out that while the
document searches were underway, they were not completed. (Id. at 49-52). Ford
represented that it had produced thousands of pages of relevant information,
including documents from all of the witnesses mentioned by Plaintiffs. Moreover,
Ford reassured the Court and Plaintiffs that searches were being done as promptly as
possible, expressing its frustration with the breadth of Plaintiffs’ discovery requests.
After listening to the parties, the undersigned expressed misgivings regarding
the timeliness and effectiveness of Ford’s search and its subsequent productions. (Id.
at 52-60). However, as the parties regularly supplied contradictory reports to the
Court about the status of discovery, and generally failed to supply evidence
supporting their reports, the undersigned was not in a position to determine which
party’s representations were accurate. (Id. at 62). Consequently, Plaintiffs were
advised to take some depositions and investigate through the testimony whether
Ford’s searches were reasonable. If Plaintiffs concluded that Ford had not met its
discovery obligations, they were encouraged to bring a motion to compel and for
sanctions. In the meantime, the parties were again ordered to meet, confer, and agree
on keywords and phrases to search the electronically stored information (“ESI”), and
were strongly urged to include their IT experts in the discussions. (ECF No. 327 at
By February 18, 2015, the parties had met and conferred on several occasions
and had included their IT experts. (ECF No. 345 at 5-10). They had not yet agreed on
search terms, but were making progress. Ford had decided to involve a third-party
vendor in the document collection process, which was expected to hasten Ford’s
productions. During the March 4 conference, Ford represented that it had provided
Plaintiffs with the names of custodians for whom keyword searches would be
appropriate, and had continued to search its records by having employees self-select
documents responsive to discreet discovery requests. (ECF No. 400 at 31). However,
the parties disagreed as to whether Ford should be expected to search the hard drive
of every employee identified by Plaintiffs, although the parties were still discussing
this option. With respect to agreed-upon search terms, the parties continued to
struggle. For the first time, Plaintiffs raised the issue of whether Ford should be
compelled to share with Plaintiffs the search terms that were currently being used by
Ford in its document identification and retrieval process. (Id. at 46-49). Ford
objected to sharing its search terms on two grounds. First, Ford contended that the
search terms used were protected attorney work product. Second, Ford indicated that
a “list” of search terms did not exist, because Ford had allowed each individual
employee to develop his or her own terms and phrases to search his or her
documents, after having met with counsel and discussed the nature of the litigation.
The next time Plaintiffs raised issues touching on the adequacy of Ford’s
search for documents was April 15, 2015. (ECF No. 448 at 12-16). At this discovery
conference, Plaintiffs reported that the parties had negotiated a list of search terms,
and Ford had swept the records of two test custodians to determine the efficacy of the
terms. Unfortunately, although not entirely unexpectedly, the parties now disagreed
as to whether the terms had returned more relevant than non-relevant documents.
Plaintiffs complained that Ford refused to share a search report with them that would
reflect which terms returned the most, or the least documents, while Ford insisted
that the search report would not assist in resolving problems with the search terms.
Consequently, the parties were at another stalemate, unable to agree on if, and how,
the list of search terms and phrases should be revised. (Id. at 15-20). To move the
matter forward, the Court ordered Ford to share the search report with Plaintiffs.
Plaintiffs also requested that Ford be compelled to share with them the names of all
records custodians whose personal files had been searched for responsive documents.
Ford objected and indicated that it intended to formally argue this issue in a motion
for protective order.
At the May 13, 2015 discovery conference, Plaintiffs again expressed
misgivings with Ford’s document production. (ECF No. 499 at 13-15). Plaintiffs
explained that Ford had produced the names of the ten people most important to the
design and development of the ETC system, and the ten people most important to the
failure mode and effects analysis (“FMEA”) of the ETC system. After accounting for
overlap, twelve individuals had been identified, and those twelve individuals
supposedly had their custodial files searched using the agreed-upon terms. Plaintiffs
asserted that the productions had been unnecessarily delayed, pointing out that the
exercise started in mid-February and still was not completed. Moreover, out of the
twelve individual searches, Ford had advised that five of the individuals had no
relevant documents in their files, and the remaining custodians had less than 150
documents. (Id.). According to Plaintiffs, the purported lack of documents found in
the employees’ custodial files demonstrated a problem with the search terms, and
further raised a question as to how thoroughly Ford was looking for relevant
documents. In response, Ford blamed Plaintiffs for the delay, arguing that Plaintiffs’
search terms and phrases were too imprecise to maximize the responsive hits,
causing the searches to return thousands of irrelevant documents that had to be
reviewed by Ford before productions could occur. In addition, Ford contended that
Plaintiffs were intransigent about changing the search terms, even though they
yielded a vast number of unresponsive documents. (ECF No. 499 at 21-23). Two
issues quickly became obvious to the Court. First, Ford was not forthcoming in
sharing specifics about the results of the searches with Plaintiffs; thereby, hindering
modifications to the search terms and phrases. Second, the parties simply were not
communicating well with each other. Accordingly, the Court suggested some different
strategies to move the e-discovery forward, including face-to-face discussions
between the parties’ IT experts about how to refine the search terms and phrases.
On June 10, 2015, Plaintiffs advised the Court that another group of
custodians had searched personal files for documents pertaining to unintended
acceleration and ETC system faults, with very few responsive documents having been
produced by Ford. (ECF No. 545 at 6-7). Ford responded by explaining that the
custodians, all members of a critical concerns committee, simply did not
communicate by e-mail regarding matters discussed in committee meetings. Ford
confirmed that the custodians searched their e-mails for any documents pertaining to
ETC and sudden unintended acceleration, and produced everything that was relevant.
(Id. at 8-9).
By this time, both of the instant motions had been filed and briefed, with only
one reply memorandum left to be submitted.
The Parties’ Positions
A. Motion to Quash and for Protective Order
In the motion to quash and for protective order, Ford asks the Court to
prohibit Plaintiffs from seeking testimony from a corporate designee on four topics,
identified as topics 15, 18, 78, and 79. (ECF No. 318 at 1-2). Topic 15 involves the
identification and explanation of how Ford handled complaints of unintended
acceleration. Topics 18 and 78 deal with Ford’s document retention policies and
practices, and its knowledge of the destruction or loss of any documents relating to
unintended acceleration or stuck throttle incidents. Finally, topic 79 requests
testimony regarding the identity of Ford custodians whose files have been searched
for relevant documents, and the process by which the custodians searched for
Ford argues that topic 15 is overly broad and burdensome, requiring the
corporate designee to learn details about numerous lawsuits and claims asserted
against Ford over the years. Ford also states that it has provided Plaintiffs with all of
the significant paperwork regarding prior claims and lawsuits; consequently, the
information sought has already been supplied in a more convenient manner. With
respect to topic 79, Ford contends that it seeks improper “discovery on discovery,”
and is overly burdensome given that each individual custodian performed his or her
own unique search. Furthermore, Ford contends that the identities of the custodians
and the manner in which they searched their files are protected from disclosure as
attorney work product. Finally, Ford claims that topics 18 and 78 do not relate to a
claim or defense in the cases and, therefore, are outside the scope of discovery
permitted by Fed. R. Civ. P. 26. Ford stresses that no claim has been made that Ford
has committed discovery abuses, or that there has been spoliation of evidence. For
that reason, discovery of Ford’s records retention policies and its knowledge of lost or
destroyed records is irrelevant non-merits based discovery.
In their memorandum opposing Ford’s motion, Plaintiffs allege that topic 79 is
clearly a proper avenue of discovery in these cases given Ford’s secretive approach to
discovery. (ECF No. 353 at 5-12). Instead of cooperating with them, Plaintiffs claim
that Ford has refused to provide any details about the efforts it has taken to respond
to discovery. According to Plaintiffs, the lack of materials produced by Ford’s critical
witnesses is suspect, as are the delays in the productions. In support of their position,
Plaintiffs attach portions of deposition transcripts in which several of Ford’s
witnesses testified to having conducted limited or partial searches of their records,
despite their roles as key players in the development, design, or analysis of Ford’s
ETC system. Plaintiffs disagree that the names of the custodians and their method of
searching files are protected as work product, arguing that the underpinnings of how
Ford reviewed its files for relevant documents constitute facts, not mental
impressions or strategies of counsel. Moreover, if Plaintiffs are prohibited from
discovering this information, they will likewise be precluded from evaluating the
reasonableness of Ford’s search.
Similarly, Plaintiffs contend that topics 18 and 78 are proper areas of inquiry
under Rule 26(b)(1), which explicitly permits parties to discover facts about “the
existence, description, nature, custody, condition and location of any ... documents.”
(ECF No. 353 at 14). Lastly, in regard to topic 15, Plaintiffs posit that Ford has failed
to show that the topic is overly broad or burdensome. Plaintiffs emphasize that Ford
has identified only two individuals who conducted investigations into claims of
unintended acceleration and has produced only fifteen relevant documents.
According to Plaintiffs, they are entitled to know how Ford investigated and handled
complaints, claims, and litigation concerning unintended acceleration, as this area of
inquiry will inform Plaintiffs of the measures taken by Ford to determine the cause of
unintended acceleration and its conclusions, which are key to Plaintiffs’ claims, and
may also shed light on Ford’s defenses.
B. Motion for Reconsideration
In their motion for reconsideration, Plaintiffs ask the Court to change a
“decision” made during the February 10, 2015 discovery conference, allowing Ford’s
employees to conduct self-selected searches of their files. (ECF No. 354 at 1).
Plaintiffs request a “transparent discovery process in which Ford discloses its
collection methods and runs Plaintiffs’ search terms across appropriate custodians
and sources of documents.” (Id.). Plaintiffs further seek a reversal of the Court’s
ruling that Ford need not produce documents relating to a BOA function
implemented by Ford of Europe. Plaintiffs also ask that Ford be required to provide
information about Ford’s SlowE BOA installed in American-sold vehicles beginning
with model year 2008, Ford of Europe’s ETC system, and Ford’s switch from a threesensor accelerator pedal to a two-sensor pedal. In support of the motion, Plaintiffs
argue the relevance of the information, as well as witness testimony that allegedly
establishes the haphazard and unreliable search and collection procedures followed
by Ford to date. (Id. at 2-4).
Ford opposes the motion by contending that Plaintiffs fail to provide
justification for reconsideration. (ECF No. 403). Ford claims that the Ford of Europe
information remains irrelevant to the Plaintiffs’ claims, reiterating that the ETC
system used in European model vehicles is entirely different from the ETC system at
issue in the pending cases. In addition, Ford notes that the European BOA was
triggered only in cases of a stuck accelerator pedal. Since Plaintiffs’ allegations do not
involve stuck accelerator pedals, the European BOA has no bearing on the instant
actions. Finally, Ford contends that the Court should not reconsider its approval of a
self-selection search method for several reasons. First, the searches conducted to date
have been reasonable, and Ford can explain the cause underlying every perceived
deficit in its document productions. Second, Ford stresses that the party best
positioned to determine an efficient method of document location and retrieval is the
producing party. (ECF No. 403 at 15). Ford argues that it knows its employees and its
document storage locations; as such, it should be permitted to conduct the searches
as it sees fit, so long as the searches are reasonable.3 Third, Ford contends that
Plaintiffs only speculate as to the insufficiency of Ford’s document collection and
production. Ford points out that most of the Ford employees that have been deposed
testified to conducting robust searches of their personal files. In Ford’s view,
Plaintiffs have failed to demonstrate any deficiencies that justify a plaintiff-driven
collection process, or require close judicial supervision.
Federal Rule of Civil Procedure 26(b)(1) provides that “[p]arties may obtain
discovery regarding any matter, not privileged, that is relevant to the claim or defense
of any party, including the existence, description, nature, custody, condition, and
location of any books, documents, or other tangible things and the identity and
location of persons having knowledge of any discoverable matter ... Relevant
information need not be admissible at the trial if the discovery appears reasonably
calculated to lead to the discovery of admissible evidence.” Although the Rules do not
define what is “relevant,” Rule 26(b)(1) makes clear that relevancy in discovery is
broader than relevancy for purposes of admissibility at trial. Caton v. Green Tree
Services, LLC, Case No. 3:06-cv-75, 2007 WL 2220281, at *2 (N.D.W.Va. Aug. 2,
2007) (the “test for relevancy under the discovery rules is necessarily broader than
Ford relies on statements by the Sedona Conference for this argument. “The Sedona Conference, a
non-profit legal policy research and education organization, has a working group comprised of judges,
attorneys, and electronic discovery experts dedicated to resolving electronic document production
issues. With regard to electronic discovery many courts have looked to the Sedona Principles and
Sedona Commentaries thereto, which are ‘the leading authorities on electronic document retrieval and
production.’” DeGeer v. Gillis, 755 F.Supp.2d 909, 918 (N.D. Ill. 2010) (quoting Romero v. Allstate
Ins. Co., 271 F.R.D. 96, 106 (E.D.Pa.2010)).
the test for relevancy under Rule 402 of the Federal Rules of Evidence”4); Carr v.
Double T Diner, 272 F.R.D. 431, 433 (D.Md. 2010) (“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 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.
Nevertheless, simply because information is discoverable under Rule 26 “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), a party moving to resist discovery on the grounds of burdensomeness
Under the Federal Rules of Evidence, relevant evidence is ‘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, Case No. 5:10-cv591-FL, 2011 WL 5599283 at * 2 (E.D.N.C. Nov. 17, 2011) (citing United Oil Co., v. Parts Assocs., Inc,
227 F.R.D. 404. 409 (D.Md. 2005)).
and oppression must do more to carry its burden than make conclusory and
unsubstantiated allegations. Convertino v. United States Department of Justice, 565
F. Supp.2d 10, 14 (D.D.C. 2008). 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).
In addition, 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.” Seattle Times Co. v. Rhinehart, 467 U.S. 20, 36, 104 S.Ct. 2199, 81
L.Ed.2d 17 (1984).
Motions to reconsider interlocutory orders are governed by Fed. R. Civ. P.
54(b), which provides that “any order or other decision, however designated, that
adjudicates fewer than all the claims or the rights and liabilities of fewer than all the
parties does not end the action as to any of the claims or parties and may be revised at
any time before the entry of a judgment adjudicating all the claims and all the parties'
rights and liabilities.” Fed. R. Civ. P. 54(b) “Notwithstanding that precept, it is
improper to file a motion for reconsideration simply to ask the Court to rethink what
the Court had already thought through—rightly or wrongly.” W.W. McDonald Land
Co. v. EQT Prod. Co.,983 F.Supp.2d 790, 819 (S.D.W.Va. 2014) (quoting In re: C.R.
Bard, Inc., 948 F.Supp.2d 589, 649 (S.D.W.Va.2013)). Guided by the principles set
forth in Rule 59(e) and Rule 60, courts in this circuit generally have granted a motion
for reconsideration only to satisfy one of the following conditions: “(1) to
accommodate an intervening change in controlling law; (2) to account for new
evidence not available at trial; or (3) to correct a clear error of law or prevent
manifest injustice.” Id. (citing Pac. Ins. Co. v. Am. Nat'l Fire Ins. Co., 148 F.3d 396,
403 (4th Cir. 1998)).
A. Motion to Quash and for Protective Order
Ford first asks for an order prohibiting Plaintiffs from inquiring into “the
identification and explanation of how Ford handled complaints received relating to a
possible SUA event during the Relevant Time Period, including what investigations,
evaluation analysis, inspection Ford undertook or performed regarding these
reported events, and what corrective action Ford took in response to any such
reported SUA event” (topic 15). Ford’s primary objection is the burden imposed upon
it to educate a corporate designee about the details of each and every complaint,
claim, and lawsuit lodged against Ford over a ten-year period. Plaintiffs respond that
the requested information is relevant and is not overly burdensome given that Ford
has identified only 15 documents pertaining to its investigation of UA events.
Regardless of how many documents exist, preparing a corporate designee to
answer detailed questions regarding specific claims, lawsuits, and investigations that
have been lodged during a ten-year period would be difficult and, to a degree, would
likely require preparation that is out of proportion to the benefits of the testimony.
Plaintiffs do not contend that every incident of UA is related to the ETC system.
Accordingly, requiring the designee to be fully familiar with the details of
investigations in which another cause for the UA has been determined is a waste of
time and resources. Therefore, the Court GRANTS Ford’s motion for protective
order to limit the inquiry under topic 15. Ford shall prepare its corporate designee to
provide an overview of Ford’s complaints, claims, and lawsuits involving UA events in
the vehicle models at issue in the litigation, explaining the methods and processes
used by Ford to investigate the allegations. The overview shall include details such as
the number of complaints, claims, or lawsuits, the dates of assertion, the names of
persons supervising any investigations, the general steps taken, any conclusions
reached, and the outcome of the process. However, the corporate designee need not
be prepared to discuss every minute detail of the individual investigations. To the
extent that Plaintiffs wish to inquire regarding specific claims, lawsuits, or
documents, Plaintiffs shall identify, at least ten (10) days prior to the deposition, the
documents, claims, or lawsuits which will be the subject of inquiry.
Ford moves to quash topics 18 and 78, arguing that questions regarding Ford’s
document retention policies and potential loss or disposal of relevant documents
constitute irrelevant “non-merits” discovery and are improper in the absence of a
threshold showing that spoliation or discovery abuse has occurred. Along the same
line, Ford contends that topic 79, seeking information regarding Ford’s document
collection and production in this case, should be quashed because it is irrelevant
“discovery on discovery” and invades attorney work product. The Court DENIES
Ford’s motion to quash these topics.
In its Cooperation Proclamation, the Sedona Conference notes that the “costs
associated with adversarial conduct in pre-trial discovery have become a serious
burden to the American judicial system;” particularly, in light of e-discovery. See The
Sedona Conference, The Sedona Conference Cooperation Proclamation (Nov. 2012).
Cooperation in a transparent discovery process is the path to efficient, cost-effective
litigation and achieves the purpose of the federal discovery rules; that being, to
reduce “gamesmanship” and to insure “forthright sharing of all parties to a case with
the aim of expediting case progress, minimizing burden and expense, and removing
contentiousness as much as practicable.” Id. (citing Board of Regents of the
University of Nebraska v. BASF Corp., No. 4:04-cv-3356, 2007 WL 3342423, at *5
(D. Neb. Nov. 5, 2007). The 2006 amendments to Fed. R. Civ. P. 26(f) encourage
cooperation and transparency early in the discovery process by requiring the parties
to discuss at their initial conference “any issues about preserving discoverable
information” and “any issues about disclosure or discovery of electronically stored
information.“ Fed. R. Civ. P. 26(f)(1) and 26(f)(3). The Rule anticipates a sharing of
facts and, if necessary, discovery about the sources to be searched for ESI. Fed. R.
Civ. P. 26(f) advisory committee notes (2006) (stating that the “identification of, and
early discovery from, individuals with knowledge of a party’s computer systems may
be helpful.”). For some time now, federal courts have insisted on a collaborative
approach to discovery, recognizing that this attitude best achieves the “spirit and
purposes” of the federal discovery rules. Mancia v. Mayflower Textile Servs. Co., 253
F.R.D. 354, 357-58 (D. Md. 2008) (“It cannot seriously be disputed that compliance
with the ‘spirit and purposes’ of these discovery rules requires cooperation by counsel
to identify and fulfill legitimate discovery needs, yet avoid seeking discovery the cost
and burden of which is disproportionally large to what is at stake in the litigation.
Counsel cannot “behave responsively” during discovery unless they do both, which
confrontation.”). Parties and attorneys that refuse to work collaboratively with their
adversaries are at odds with the federal system and have been routinely sanctioned.
Id. at 361 n.3. The obligation on the parties to meet and confer early in the case
includes a “discussion that can and should include cooperative planning, rather than
unilateral decision-making, about matters such as ‘the sources of information to be
preserved and searched; number and identities of custodians whose data will be
preserved or collected ...; topics for discovery; [and] search terms and methodologies
to be employed to identify responsive data ...’” Ruiz-Bueno v. Scott, 2013 WL
6055402, at *3 (S.D. Ohio Nov. 15, 2013) (quoting Millberg LLP and Hausfeld LLP,
“E-Discovery Today: The Fault Lies not in Our Rules ...,” 4 Fed. Cts. L. Rev. 131, 163
(2011). When two-way planning does not occur upfront, and questions about the
adequacy of the document production subsequently arise, common sense dictates
that the party conducting the search must share information regarding the universe
of potentially relevant documents being preserved, and those that no longer exist, as
well as the search terms used in collecting relevant documents and the identities of
the custodians from whom the documents were retrieved. After all, the party
responsible for the search and production has the duty to demonstrate its
reasonableness. See Smith v. Life Investors Ins. Co. of America, No. 2:07–cv–681,
2009 WL 2045197, at *7 (W.D. Pa. July 9, 2009) (citing Victor Stanley, Inc. v.
Creative Pipe, Inc., 250 F.R.D. 251, 262 (D.Md.2008)). Consequently, Ford’s generic
objections to “discovery on discovery” and “non-merits” discovery are outmoded and
Here, there have been repeated concerns voiced by Plaintiffs regarding the
thoroughness of Ford’s document search, retrieval, and production. Although Ford
deflects these concerns with frequent complaints of overly broad and burdensome
requests, it has failed to supply any detailed information to support its position.
Indeed, Ford has resisted sharing any specific facts regarding its collection of relevant
and responsive materials. At the same time that Ford acknowledges the existence of
variations in the search terms and processes used by its custodians, along with
limitations in some of the searches, it refuses to expressly state the nature of the
variations and limitations, instead asserting work product protection. Ford has
cloaked the circumstances surrounding its document search and retrieval in secrecy,
leading to skepticism about the thoroughness and accuracy of that process. This
practice violates “the principles of an open, transparent discovery process.” DeGeer,
755 F.Supp.2d at 929.
Contrary to Ford’s contentions, discovery of document retention and
disposition policies is not contingent upon a claim of spoliation or proof of discovery
abuses, and may be accomplished through a Rule 30(b)(6) witness. See Doe v.
District of Columbia, 230 F.R.D. 47, 55-56 (D.D.C., 2005) (finding that Rule 26(b)(1)
may be construed to allow discovery into document retention and destruction policies
by permitting “[p]arties [to] obtain discovery regarding any matter, ... including the
existence, description, nature, custody, condition, and location of any ...
documents.”); Newman v. Borders, 257 F.R.D. 1, 3 (D.D.C. 2009) (“That a party's
document retention policies, including its policies as to electronically stored
information, may be a fit subject of discovery cannot be gainsaid ... It is equally clear
that a party must produce as its 30(b)(6) designee a person who can speak knowingly
as to the topic and, if necessary, educate that designee so that she can do so.”); and
Heartland Surgical Specialty Hosp., LLC v. Midwest Div., Inc., 2007 WL 1054279, at
*4 (D. Kan. Apr. 9, 2007) (stating that the topics of document retention policies and
destruction, alteration, or loss of records are relevant and discoverable). Moreover,
broader “discovery on discovery” may be appropriate and relevant under Rule 26(b)
when it aids a party in the presentation of its case. Ruiz-Bueno, 2013 WL 6055402, at
*1-2 (collecting cases). Plaintiffs have identified several instances in which document
productions have been slow-to-come, incomplete, or inconsistent. Furthermore, they
have supplied excerpts of deposition transcripts in which key employees testified to
performing either limited searches for relevant documents, or no searches at all. The
reservations expressed by Plaintiffs regarding the thoroughness of Ford’s document
production and the method by which its employees have conducted the review of
their records are sufficiently corroborated to justify investigation into the
reasonableness of Ford’s search.
Ford’s assertion that sharing facts about its search terms and the identities of
custodians who searched their records will require disclosure of attorney work
product is equally unavailing. See FormFactor, Inc. v. Micro-Probe, Inc., 2012 WL
1575093, at *7, n. 4 (N.D. Cal. May 3, 2012) (finding that search terms and custodian
names are not work product and collecting cases). Ford argues that its counsel met
with each custodian and discussed the case, and that based upon these
communications, each custodian selected search terms and reviewed his or her
personal files for documents. For that reason, Ford claims work product protection,
citing cases that ostensibly support that position. However, as the court explains in
FormFactor, “[s]uch information is not subject to any work product protection
because it goes to the underlying facts of what documents are responsive to
Defendants' document request, rather than the thought processes of Plaintiff's
counsel.” Id. Undoubtedly, the search terms used by the custodians and the names of
the custodians that ran searches can be disclosed without revealing the substance of
discussions with counsel. See, also, Nissan North America, Inc. v. Johnson Electric
North America, Inc., No. 09-CV-11783, 2011 WL 1002835, at *4 (E.D. Mich. Feb. 17,
2011) (stating that the party issuing document request “is of course entitled to know
what search criteria was used in retrieving relevant ESI”); Apple Inc. v. Samsung
Electronics Co. LTD, No. 12-CV-0630-LHK (PSG), 2013 WL 1942163, at *2 (N.D. Cal.
May 9, 2013) (noting that case law suggests that search terms and choice of
custodians used in the document collection and production process are not protected
as attorney work product). Ford argues that its 30(b)(6) witness on this topic would
likely be an attorney; however, that argument contradicts Ford’s prior description of
its document retrieval process as a “self-select” method by which the individual
employees conducted searches of their own documents using terms of their own
choosing. Thus, while Ford correctly notes that the deposition of a party’s attorney is
generally not permitted, Ford should also understand that it cannot avoid a legitimate
area of inquiry simply by selecting an attorney as its corporate designee.
Ford’s final objections are based upon the burdensomeness of preparing a
corporate designee to testify regarding the actions of each custodian, and the
cumulative nature of requiring a corporate designee to testify regarding document
retention and destruction policies that have already been produced to Plaintiffs. With
respect to the latter objection, having a written policy in hand does not obviate the
need to have a corporate representative testify about the policy. Not only is a 30(b)(6)
deposition of value to authenticate the policy and verify its relevance to the time
frame in question, but the testimony of a corporate designee is useful to explain and
clarify the policy and procedures, to provide the corporation’s interpretation of the
document, and to confirm how the policy was applied within the corporation. In
regard to the burdensomeness argument, Ford again fails to supply any factual basis
to support its claim. Certainly, if Ford had twenty people search for documents,
preparing a witness to identify those individuals and report on the search terms used
by them would not be extraordinarily burdensome. On the other hand, the task grows
in difficulty as the number of custodians and search terms increase. Ford does not
share this information; consequently, there is no good cause basis upon which the
Court can find the required preparation to be burdensome.
Accordingly, Ford is ORDERED to produce a Rule 30(b)(6) witness to
provide an overview of its claims investigation process, to testify regarding its
document retention and destruction policies, and to supply details regarding the
document search performed by Ford to date.
B. Motion for Reconsideration
Plaintiffs first ask the Court to reconsider its ruling regarding the efficacy of
the self-selection searches by Ford’s custodians. Because the undersigned made no
specific ruling related to the reasonableness of the searches, Plaintiffs’ motion for
reconsideration on this point is DENIED as moot. At the February 10, 2015 hearing,
the undersigned made it clear that while self-selection searches were not per se
impermissible, Plaintiffs were not precluded from bringing a motion to compel and
for sanctions if they believed that Ford’s method of document search, retrieval, and
production violated its obligations under the federal discovery rules; thereby,
resulting in insufficient responses. Given that Plaintiffs are now challenging the
reasonableness and adequacy of Ford’s document search, the undersigned will
construe their motion for reconsideration as a motion to compel. Plaintiffs ask the
Court to order Ford to participate in a transparent discovery process in which “Ford
discloses its collection methods and runs Plaintiffs’ search terms across appropriate
custodians and sources of document.” (ECF No. 354 at 1). Plaintiffs also request that
the Court “oversee” the process.
In light of the Court’s ruling allowing Plaintiffs to proceed with a Rule 30(b)(6)
deposition related to Ford’s search and collection of documents responsive to
discovery requests, Plaintiffs’ demand for a more transparent process is GRANTED.
Nevertheless, until Plaintiffs have deposed the designee and confirmed the nature of
the document search performed by Ford, the Court is not in a position to rule on
whether Ford has acted reasonably, or whether its production to date has been
sufficient. Accordingly, to the extent Plaintiffs seek a ruling that Ford’s prior search,
retrieval, and production have been inadequate, the Court DENIES the motion as
premature. After gathering the relevant details, Plaintiffs are given leave to file
another motion if the facts so merit. Plaintiffs are reminded of their obligation to
meet and confer in an effort to resolve any disagreements about the sufficiency of the
productions prior to filing the motion. Going forward, the Court GRANTS Plaintiffs’
motion compelling Ford to disclose its collection methods, including the names of
custodians whose records will be searched, and further ORDERS the parties to
continue streamlining the process with agreed-upon search terms and phrases as
previously instructed. In this regard, the parties are ORDERED to involve their IT
experts and to consider other methods of searching such as predictive coding;
perhaps, making use of the publications of the Sedona Conference. See, e.g., Sedona’s
Commentary on Achieving Quality in the E-Discovery Process (2013), Best Practices
Commentary on the Use of Search & Information Retrieval Methods in E-Discovery
(2013), and Commentary on Proportionality in Electronic Discovery (2013). As the
Court is already overseeing the process with bi-weekly discovery conferences and
motion practice, the undersigned declines to take additional steps at this time to
further supervise the process.
Plaintiffs next ask for an order compelling Ford to disclose information related
to its SlowE/BOA, its conversion from a “2 track to 3 track system” in Class vehicles,
and Ford of Europe’s ETC system and BOA function. Once again, the undersigned has
not made any rulings with respect to the SlowE/BOA and the conversion from a two
sensor pedal to a three sensor pedal. As such, there is nothing for the Court to
reconsider. If Plaintiffs have made discovery requests that cover these topics, and
Ford has failed to properly respond, Plaintiffs should move to compel answers to the
discreet requests, after having engaged in the necessary meet and confer sessions.
These matters may also be addressed at the regular discovery conferences.
The undersigned did rule on Ford’s obligation to produce documents from
Ford of Europe regarding the European ETC system and BOA function, concluding
that the European ETC system was dissimilar to the system used in the Class
Vehicles, and thus, the European documents were not relevant or likely to lead to
admissible evidence. Furthermore, the undersigned found that more focused
discovery needed to be completed in North America before a final determination
could be made about the need for the parties to collect documents housed overseas.
Applying the framework for evaluating motions to reconsider, the Court sees no basis
upon which to reconsider its prior ruling related to Ford of Europe’s documents.
Until Plaintiffs can demonstrate through evidence rather than argument, that the
ETC system in Ford of Europe’s vehicles was sufficiently similar to the system used in
the Class Vehicles, and the European BOA function dealt with something other than a
stuck accelerator pedal, the undersigned continues to find that the burdens
associated with conducting discovery overseas are disproportionate to the anticipated
benefits of that proposed discovery. Therefore, Plaintiffs’ motion to reconsider the
Ford of Europe discovery is, at this time, DENIED.
The Clerk is instructed to provide a copy of this Order to counsel of record and
any unrepresented party.
ENTERED: July 8 2015
Disclaimer: Justia Dockets & Filings provides public litigation records from the federal appellate and district courts. These filings and docket sheets should not be considered findings of fact or liability, nor do they necessarily reflect the view of Justia.
Why Is My Information Online?