Opinion
Civil Action 2:02-CV-1092
January 28, 2004
OPINION AND ORDER
Plaintiff, Earl Higgs, brings this action on behalf of himself and a class of plaintiffs described as current or future consumers who have been solicited to purchase or who have actually purchased extended warranties on their motor vehicles through defendant, The Warranty Group, d.b.a. The Automotive Corporation of America (hereinafter "The Warranty Group"). Plaintiff asserts claims under Ohio's Consumer Sales Practices Act, O.R.C. § 1345 et seq., Ohio's Corrupt Practices Act, O.R.C. § 2923.34 and Ohio's insurance laws. Plaintiff also alleges fraud and asserts an individual claim under the Magnuson-Moss Warranty Act, 15 U.S.C. § 2310. This matter is before the Court on plaintiff's motion to preserve evidence (Doc. # 42) and on defendants' motion for leave to file a surreply in opposition to plaintiff's motion to preserve evidence (Doc. #50).
I. Background
Plaintiff, Earl Higgs, is a resident of Belmont County, Ohio. Amended Complaint, at ¶ 1. Plaintiff has named as defendants The Warranty Group and The Automotive Warranty Corporation of America (hereinafter "AWCA"), associations regularly engaged in the business of soliciting and selling auto repair warranty coverage for newly purchased used automobiles. Id., at ¶ 2. Plaintiff has also named as defendants Larry Meyers, president and chief executive officer of The Warranty Group and AWCA; Gena May, director of customer relations for The Warranty Group and AWCA; and Claude Thompson, executive vice president and chief operating officer of The Warranty Group and AWCA. Id., at ¶¶ 3-5.
On November 15, 1999, plaintiff purchased a used 1995 Mercury Grand Marquis automobile. Id., at ¶ 33. Several days later, plaintiff received an advertisement by mail from defendant AWCA soliciting the purchase of an extended warranty on the Grand Marquis. Id., at ¶ 37. On November 30, 1999, plaintiff completed a "Warranty Group Registration Form" containing the solicitation and returned it to AWCA along with a personal check for $148.50. Id., at ¶ 46.
In December 1999, defendants issued plaintiff a "Limited Warranty Service Contract" (hereinafter "Service Contract"). Id., at ¶ 49. Plaintiff alleges that this Service Contract failed to: (1) include duplicate forms notifying plaintiff of his right to cancel; (2) include a warning/ notice described in O.R.C. § 1345.23(B)(1); and (3) failed to clearly and conspicuously notify plaintiff that the terms of the Service Contract were substantially different from the information contained in the original solicitation. Id., at ¶¶ 51-53.
The Service Contract provided warranty coverage from December 10, 1999 through December 10, 2000 on the 1995 Mercury Grand Marquis. In 2000, plaintiff's Grand Marquis required replacement of three ball joints, a control arm and related alignment services. Id., at ¶¶ 61, 80. Defendants denied coverage for these items. Id., at ¶¶ 67, 80. Plaintiff thereby claims a loss of approximately $338.99. Id.
II. Discussion
On November 20, 2003, plaintiff filed a motion to preserve "all records, documents, and other evidence [in defendants' possession] relating to the factual and legal issues in this case." Plaintiff argues that "Defendants might follow a records retention/destruction schedule, under which records that might be related to this case are automatically destroyed." Memorandum in Support of Motion to Preserve Evidence (emphasis added). Additionally, plaintiff argues that "[d]ocument preservation orders are common in complex litigation and readily fall within the trial court's very broad discretion regarding discovery matters." Plaintiff's Reply to Defendants' Memorandum in Opposition to Plaintiff's Motion to Preserve Evidence, at p. 1 (quoting Hester v. Bayer Corp. 206 F.R.D. 683, 685 (M.D. Ala. 2001).
A motion to preserve evidence is, in essence, an injunctive remedy and should issue only upon an adequate showing that equitable relief is warranted. Madden v. Wyeth, (unreported) 2003 WL 21443404, *1 (N.D. Tex. 2003) (citing Pepsi-Cola Bottling Co. of Olean v. Cargill, Inc., (unreported) 1995 WL 783610, *3 (D. Minn. 1995). See also Humble Oil Refining Co. v. Harang, 262 F. Supp. 39, 42 (E.D. La. 1966) (concluding that a preservation order is, in reality, a form of restraining order). The United States Court of Appeals for the Sixth Circuit has held that a federal court cannot grant injunctive relief based solely upon speculation that the plaintiff will suffer harm in the future. Smith v. S.E.C., 129 F.3d 356, 363 (6th Cir. 1997) (citing City of Los Angeles v. Lyons, 461 U.S. 95, 105 (1983)). See also Bradley v. Detroit Bd. of Ed., 577 F.2d 1032, 1036 (6th Cir. 1978); Boyce v. Attorney's Dispatch Service, (unreported) 1999 WL 33495606, * 1, n. 4 (S.D. Ohio 1999). Instead, a plaintiff must establish a likelihood of substantial and immediate irreparable injury. City of Los Angeles, 461 U.S at 363 (citation omitted). Defendants argue that plaintiff has failed to make such a showing.
Even if this Court were to characterize a preservation order as a discretionary order inherent in the Court's general case-management authority, the same factors, i.e., fairness, equity and efficiency, would be taken into consideration. See Hester, 206 F.R.D. at 685.
Even assuming that the destruction of relevant information and/or documents would be irreparable, plaintiff has done nothing to establish the likelihood that defendants will actually destroy any relevant information and/or documents. Plaintiff merely argues that it is possible that defendants may intentionally or unintentionally destroy relevant documents. Without proof that relevant evidence may in fact be lost or destroyed, the Court is not inclined to enter a preservation order. See Madden, 2003 WL 21443404, *1.
In any event, the Federal Rules of Civil Procedure obligate all litigants to take appropriate measures to preserve documents and information that might be relevant to the litigation. Hester v. Bayer Corp., 206 F.R.D. 683, 685 (M.D. Ala. 2001); Winters v. Textron, Inc., 187 F.R.D. 518, 520 (M.D. Pa. 1999) (citations omitted). See also Madden, 21443404, *1; Zubulake v. UBS Warburg LLC, (unreported) 2003 WL 22410619, *3 (S.D. N.Y. 2003) (citations omitted). Moreover, lawyers have an affirmative duty to advise their clients of pending litigation and of the requirement to preserve potentially relevant evidence. Madden, 2003 WL 21443404, * 1 (citing Turner v. Hudson Transit Lines, Inc., 142 F.R.D. 68, 73 (S.D. N.Y. 1991)). It appears that defendants are well aware of their obligation to preserve relevant evidence. See Defendants' Memorandum in Opposition to Plaintiff's Motion to Preserve Evidence, at p. 4 (acknowledging the requirements of the Federal Rules of Civil Procedure and reaffirming defendants' "intention and willingness to comply with [those Rules]").
In any event, this Court is satisfied that defense counsel will advise his clients, if he has not already done so, of the requirement to preserve relevant evidence. See Wm. T. Thompson Co. v. General Nutrition Corp., 593 F. Supp. 1443, 1455 (C.D. Cal. 1984); Madden, 2003 WL21443404, *1; Pepsi-Cola Bottling Co. of Olean, 1995 WL 783610, *3 (citation omitted).
This Court also notes that, on January 19, 2004, defendants filed a motion for leave to file a surreply in opposition to plaintiff's motion to preserve evidence. In light of this Court's conclusion that plaintiff's motion to preserve evidence is without merit, defendants' motion is rendered moot.
WHEREUPON, this Court concludes that plaintiff's motion to preserve evidence (Doc. # 42) is without merit and it is therefore DENIED. Defendants' motion for leave to file a surreply in opposition to plaintiff's motion to preserve evidence (Doc. # 50) is DENIED as moot.