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finding the different models than the subject tire had so many design differences and other differences that they were essentially different products
Summary of this case from McKellips v. Kumho Tire Co.Opinion
No. C 03-04644 RMW (EAI).
December 9, 2004
Federico Castelan Sayre, Kent M. Henderson, Hector E. Salitrero, Law Offices of Federico Castelan Sayre, Santa Ana, CA, Attorneys for Plaintiffs.
Robert J. Gibson, Snell Wilmer LLP, Irvine, CA.
Brian W. Franklin, Janice K. O'Grady, Bowman Brooke, LLP, San Jose, CA, Attorneys for Defendant Ford Motor Company.
Patrick J. Becherer, Angus M. MacLeod, Bridget McKinstry, Emily D. Bergstrom, Becherer Kannett Schweitzer, Emeryville, CA, Attorneys for Defendant Bridgestone/Firestone, Inc.
I. INTRODUCTION
Plaintiffs Catalina Rodriguez Barcenas ("Catalina Barcenas"), Ines Barcenas-Silva ("Barcenas-Silva"), Amada G. Barcenas ("Barcenas") and Hipolito Martinez ("Martinez") (collectively "Plaintiffs") move to compel defendant Bridgestone/Firestone, Inc. ("Bridgestone/Firestone") to produce documents responsive to their request for production of documents. Plaintiffs further move to allow their expert witness to gain access to such documents. Additionally, Plaintiffs move for sanctions against Bridgestone/Firestone. Having read the papers submitted and considered the arguments of counsel and for the reasons set forth below, the motion to compel is granted in part and denied in part. Plaintiffs' motion to allow their expert witness to gain access to documents produced is granted and Plaintiffs' motion for sanctions is denied.
II. BACKGROUND
On August 1, 2002, plaintiff Catalina Barcenas was driving her 1992 Ford Explorer on U.S. Highway 101 in an unincorporated area of Monterey County in California. Plaintiffs Barcenas-Silva and Barcenas were passengers in the same motor vehicle. As the 1992 Ford Explorer traveled on the highway, the right rear tire rim underwent significant tread separation which caused the motor vehicle to over steer, roll over and crash. At least two of the occupants of the 1992 Ford Explorer suffered serious, permanent and life-threatening injuries.
The 1992 Ford Explorer had been recently equipped with previously-used Daytona Radial Stag tires ("Daytona Stag tires") as aftermarket replacement tires; the Daytona Stag tires were originally manufactured at Bridgestone/Firestone's Decatur, Illinois manufacturing facility in 1995. Plaintiffs allege that in or around 1995, when the Daytona Stag tires in this case were manufactured, the Decatur plant was experiencing a disruptive and highly contentious labor strike. As a result, replacement workers were forced to work longer hours at lower wages and engaged in sub-standard manufacturing practices and conditions. For example, the Decatur plant was alleged to have been extremely hot and humid and workers performed improper and inadequate inspections of the tires.
On October 5, 2004, Plaintiffs filed a first amended complaint ("FAC") and alleged claims for strict liability (design and manufacturing defects), negligence, breach of warranty, loss of consortium and negligent infliction of emotional distress against all defendants. On October 21, 2004, defendant Ford Motor Company ("Ford Motor") filed its answer to FAC and on October 29, 2004, defendant Bridgestone/Firestone filed its answer to FAC.
On June 21, 2004, Plaintiffs served defendant Bridgestone/Firestone with a first request for production of documents ("Document Request"). On August 2, 2004, defendant Bridgestone/Firestone served its objections and responses. On or about and between August 12, 2004 and October 7, 2004, the parties met and conferred in apparent and repeated efforts to resolve the discovery dispute.
On October 8, 2004, Plaintiffs filed this motion to compel discovery ("Mot."). On November 1, 2004, Bridgestone/Firestone filed its opposition to the motion to compel ("Opp."). On November 16, 2004, Plaintiffs filed a reply in support of their motion to compel discovery.
Plaintiffs have filed their reply papers eight days late. Because the hearing had been originally scheduled for November 22, 2004, any reply in support of the motion to compel was due no later than November 8, 2004. Additionally, the text of Plaintiffs' reply papers is 18 pages in length. "Any reply to an opposition must be served and filed by the moving party not less than 14 days before the hearing date . . . Pursuant to Civ. L.R. 7-4(b), the reply briefor memorandum may not exceed 15 pages of text." Civ.L.R. 7-3(c). Notwithstanding Plaintiffs' inexplicable delay in filing their reply papers and the excess page limit, the reply papers were reviewed and considered by the court.
III. DISCUSSION
Under the Federal Rules of Civil Procedure,
[p]arties may obtain discovery regarding any matter, not privileged, that is relevant to the claim or defense of any party. . . . relevant information need not be admissible at the trial if the discovery appears reasonably calculated to lead to the discovery of admissible evidence.
Fed.R.Civ.P. 26(b)(1). As emphasized in the Advisory Committee Notes, the language of Rule 26(b) "make[s] clear the broad scope of examination and that it may cover not only evidence for use at trial but also inquiry into matters in themselves inadmissible as evidence but which will lead to the discovery of evidence." Fed.R.Civ.P. 26 advisory committee notes on 1946 amendments.
A court, however, has discretion to limit discovery if:
(i) the discovery sought is unreasonably cumulative or duplicative, or is obtainable from some other source that is more convenient, less burdensome, or less expensive;
(ii) the party seeking discovery has had ample opportunity by discovery in the action to obtain the information sought; or
(iii) the burden or expense of the proposed discovery outweighs its likely benefit, taking into account the needs of the case, the amount in controversy, the parties' resources, the importance of the issues at stake in the litigation, and the importance of the proposed discovery in resolving the issues.
Fed.R.Civ.P. 26(b)(2). Additionally, "[s]ome threshold showing of relevance must be made before parties are required to open wide the doors of discovery and to produce a variety of information which does not reasonably bear upon the issues in the case." Hofer v. Mack Trucks, Inc., 981 F.2d 377, 380 (8th Cir. 1992).
A. Plaintiffs' Document Requests
Plaintiffs initially propounded 319 document requests on defendant Bridgestone/Firestone. Plaintiffs' Statement of Requests for Production of Documents in Dispute ("Statement of Requests") at 9. In an apparent effort to meet and confer in good faith, Plaintiffs claim they have narrowed the scope of the discovery now sought to 160 document requests. Id. Defendant Bridgestone/Firestone states it has previously responded to many of Plaintiffs' document requests in prior discovery. Opp. at 1.
Plaintiffs' remaining and disputed document requests are the following: Document Request Nos. 13, 19-26, 77, 79, 85-112, 114-117, 119-121, 123-125, 128, 169-171, 173-178, 192, 194-197, 199-247, 250-253, 267-271, 273-290, 293-299, 303-304, 308-309, 311-319.
Defendant Bridgestone/Firestone contends it has already produced documents responsive to the following document requests: Document Request Nos. 13, 19, 21, 22, 89, 188, 189, 190, 191, 192, 196, 207, 212, 213, 214, 219, 220, 221, 222, 223, 225, 250, 284 and 285.
1. Documents Relating to Other Firestone/Bridgestone Tires
Plaintiffs have sought discovery of a category of documents that relate to the recalled Firestone Radial ATX, ATX II and Wilderness AT tires (collectively the "Firestone Radial and Wilderness tires") that were allegedly manufactured in or around the same time and at the same manufacturing facility as the Daytona Stag tires which are the subject of this products liability action. Mot. at 2. Bridgestone/Firestone implemented a nationwide recall of the Firestone Radial and Wilderness tires on August 9, 2000. Id. Notwithstanding that the Firestone Radial and Wilderness tires and the Daytona Radial Stag tires are obviously different products, Plaintiffs nevertheless argue the tire products are substantially similar to make discovery relating to the other tire products relevant to their prosecution of this action. Mot. at 2.
a. Standard
As the moving party, Plaintiffs bear the burden of establishing that the different products are substantially similar and that the discovery is relevant or reasonably calculated to lead to the discovery of admissible evidence. See, e.g., Piacenti v. General Motors Corp., 173 F.R.D. 221, 226 (N.D. Ill. 1997) (plaintiff failed to establish separate model of vehicle and actual vehicle were substantially similar to persuade court to compel production of requested discovery to prove vehicle defects); In re Aircrash Disaster Near Roselawn Indiana October 31, 1994, 172 F.R.D. 295 (N.D.Ill. 1997) (evidence concerning design, certification, operation and flight experiences of "highly similar" model of aircraft was discoverable). Cf. White v. Ford Motor Company, 312 F.3d 998, 1009 (9th Cir. 2002) (To introduce evidence of other accidents as direct proof of negligence (design defect or notice of defect), plaintiff must make a showing of substantial similarity) and Aetna Casualty Surety Co. v. Farmers Brothers Co., 65 Cal.App.4th 574, 579, 76 Cal.Rptr.2d 587, 589 (1998) (functioning of product defect shown by showing substantial similarity in conditions). "Courts have undertaken a fact specific determination [to evaluate] the similarities or dissimilarities and have inquired about the basis for the discovery request." Hofer v. Mack Trucks, Inc., supra, 981 F.2d at 381. "Generally, different models of a product will be relevant if they share with the accident-causing model those characteristics pertinent to the legal issues raised in the litigation." Fine v. Facet Aerospace Products Co., 133 F.R.D. 439, 441 (S.D.N.Y. 1990); See also, Culligan v. Yamaha Motor Corp., USA, 110 F.R.D. 122, 126 (S.D.N.Y. 1986) ("[D]iscovery of similar, if not identical, models is routinely permitted in product liability cases.");Jensen v. Southern Pacific Co., 129 Cal.App.2d 67, 74 (1954) ("Identical conditions will rarely be found. Substantial similarity is normally sufficient.").
To allow "discovery of models that are not substantially similar is truly the equivalent of comparing apples and oranges where there are differences between the other models and the model at issue. . . ." Piacenti v. General Motors Corp., supra, 173 F.R.D. at 224. See also, Uitts v. General Motor Corp., 62 F.R.D. 560 (E.D. Pa. 1974) (In a vehicle recall, discovery denied where recalled model did not share the same component part as the one at issue in the litigation.);Elsworth, et al. v. Beech Aircraft Corp., 37 Cal. 3d 540, 555, 208 Cal.Rptr. 874 (1984) (Trial court did not err in admitting evidence of stall and spin accidents of other Beech aircraft because plaintiffs' expert witness established that Travel Air and Baron had same design defect in the wings and that there was a similarity of design.); Ault v. International Harvester Co., 13 Cal. 3d 113 (1974) (Trial court did not err in allowing expert witness to testify of prior and subsequent accidents in similar vehicles involving inherently similar and defectively-designed gear boxes made of the same physical and mechanical properties.).
b. Analysis
Plaintiffs argue the Bridgestone/Firestone tire products share a number of features that make discovery relating to the Firestone Radial and Wilderness tires particularly relevant. Mot. at 2. First, Plaintiffs argue that the Firestone Radial and Wilderness tires and the Daytona Stag tires are the same size (P235/75R15). Id. The similarity of the tire size is significant because rubber in the steel belts used for the recalled Firestone Radial and Wilderness tires and the Daytona Stag tires is the same material composition. Mot. at 8. According to the National Highway Traffic Safety Administration, the rubber in steel belts for the recalled Firestone Radial and Wilderness tires apparently exhibited, inter alia, lower initial adhesion which later caused delamination in tires. Mot. at 8. Because delamination of the right rear tire of the 1992 Ford Explorer caused the accident in this case, Plaintiffs argue the discovery is relevant.
Second, Plaintiffs argue that the Decatur plant where the Firestone Radial and Wilderness tires and the Daytona Stag tires were manufactured underwent a widespread and highly contentious labor strike at that time. Mot. at 2. As a result, Plaintiffs argue manufacturing conditions and inspections of all tire products manufactured at that time were sub-standard. See, e.g., Mot. at 4. Indeed, Firestone eventually undertook a voluntary nationwide recall of the Firestone Radial and Wilderness tires due to various and acknowledged manufacturing defects. Mot. at 2. Plaintiffs argue that these same sub-standard conditions and inspection practices at the same manufacturing facility that affected the Firestone Radial and Wilderness tires also affected the manufacture of the Daytona Stag tires in this action. Mot. at 3-4.
Plaintiffs cite to numerous news articles to support these allegations. Mot. at 4. For example, former employees of Firestone alleged that during the course of the labor strike, questionable manufacturing processes and quality control measures included, inter alia, storage of green tires on the floor which collected debris, hot and humid conditions inside the manufacturing facility, manufacture of 100 tires per hour, monetary bonuses for exceeding tire manufacturing quotas, repairs of knots and blisters in tires and lacking or inadequate inspections of tire products. Mot. at 5. Other former Firestone employees have complained that the company used outdated rubber for the tire products and that mandatory 12-hour shifts affected the quality of craftsmanship. Mot. at 6.
All of Plaintiffs' citations to news articles reference defendant Bridgestone/Firestone's recall of the Firestone P235/75R15 Radial ATX, ATX II and/or Wilderness AT tires. The Daytona Stag tires are not mentioned in any of the appended articles.
Finally, Plaintiffs have submitted an expert witness report of Robert C. Ochs ("Mr. Ochs"). Declaration of Kent M. Henderson in Support of Plaintiffs' Request Motion to Compel ("Henderson Decl."), ¶ 34, Exh. 27. Mr. Ochs is a tire failure analyst and has been employed at Michelin Tire Corporation since 1969. Id. As part of his duties there, Mr. Ochs "examined and determined the cause of more than 1000 tire failures." Id. Such tire failure analysis involved "hundreds of incidents that required investigation and reconstruction: tire and vehicle testing to establish failure criteria; patterns of damage/crush of tires and vehicles; comparison of known tire/vehicle failures with tires and vehicles involved in accidents; analysis of failure surfaces through the use of nondestructive test techniques including light optical microscopy, scanning, electron microscopy, radiography and materials property testing." Id. Plaintiffs have also submitted relevant portions of deposition transcripts of Bridgestone/Firestone employees to support their position. Declaration of Kent M. Henderson in Support of Plaintiffs' Reply to the Motion to Compel ("Henderson Reply Decl."), ¶ 7, Exhs. 28 and 29.
Bridgestone/Firestone counters that the Firestone Radial and Wilderness tires were made to "different designs and different specifications" than the Daytona Stag tires and that the acute differences between the tires make such discovery irrelevant for purposes of this action. Opp. at 2-3. Indeed, the Daytona Stag tires have had an "outstanding safety record" and this is the only known motor vehicle accident to involve the Daytona [Stag] tires." Opp. at 2; Declaration of Emily D. Bergstrom in Support of Bridgestone/Firestone's Opposition to Motion to Compel ("Bergstrom Decl.") ¶ 6, Exh. B. Moreover, there can be numerous possible explanations for delamination of tires which do not necessarily involve manufacturing or design defects. Opp. at 6. In support of its Opposition to the Motion to Compel, Bridgestone/Firestone has submitted, inter alia, a deposition transcript and declaration of Brian J. Queiser ("Mr. Queiser") ("Queiser Depo. Tr.") (Queiser Decl."). Bergstrom Decl., ¶¶ 5-6, Exhs. A and B. Mr. Queiser is an expert witness in tire failure analysis, accident reconstruction, tire performance standards and specifications. Bergstrom Decl. ¶ 6, Exh. B. He has been employed in an independent department, the Product Analysis Department, of Bridgestone/Firestone since 1994. Id.
The court has based its review primarily on the expert witnesses' reports, submitted portions of deposition transcripts and a declaration to determine whether the tire products are substantially similar to warrant production of the requested discovery. As an initial matter, Plaintiffs' expert witness Mr. Ochs does not compare either the Firestone Radial ATX tires or the Wilderness AT tires to the Daytona Stag tires. Henderson Decl., ¶ 34, Exh. 27 at p. 14. His analysis instead focuses on comparisons between the Firestone ATX II tires and the Daytona Stag tires. Id. Similarly, Mr. Quesier's expert witness report, deposition transcript and declaration draw no comparisons between the Firestone Radial ATX and Wilderness AT tires and the Daytona Stag tires. Bergstrom Decl., ¶¶ 5-6, Exhs. A and B. Therefore, a comparison between the Firestone ATX II tires and the Daytona Stag tires is the only issue for purposes of the motion to compel substantially similar products. Accordingly, Plaintiffs' motion to compel discovery related to the other Firestone Radial and Wilderness tires is denied.
Mr. Ochs concludes that "[t]he accident tire failed prematurely and catastrophically between the upper and lower belts and the belt wedges" and that "the failure was from a progressive fatiguing of the skim stock between the belts and wedges." Id. Mr. Ochs further concludes that the "45 degree to 90 degree location is the probable site of the origin of the tread/belt detachment" and the "catastrophic failure occurred because, as manufactured, the tire's belt package lacked the necessary durability to resist crack propogation in the belt wedge interface." Id. He states that the Daytona Stag tires were manufactured using "substantially similar specifications and processes as those used for the Radial ATX II tires." Id. Mr. Ochs further states that because the Daytona Stag tires and the Radial ATX II tires were manufactured at the same Decatur plant, the Daytona Stag tires underwent "basic rubber preparation processes [which] were common with the recalled tires" and "includes common compounds, components and their dimensions."Id. Mr. Ochs states that the Daytona Stag tires "lack[ed] adequate resistance to heat and aging" even though "Firestone recognized that the Radial ATX II and similar tires would be operated in states with hot climates and on highways." Henderson Decl., ¶ 34, Exh. 27 at 15. Finally, Mr. Ochs relies on engineering analysis reports issued by the U.S. Department of Transportation to explain that the conclusions drawn on defects in the Firestone Wilderness AT tires can be compared (in his opinion) to defects in the Daytona Stag tires because the "materials and processes used were substantially similar to the recalled tires." Henderson Decl., ¶ 34, Exh. 27 at p. 16. He states "[t]he tire that caused this accident was defective in manufacture and design at the time it left the manufacturing facility of Bridgestone/Firestone in Decatur, Ill." Henderson Decl., ¶ 34, Exh. 27 at p. 17.
On the other hand, Mr. Queiser opines that the Firestone ATX II tires and the Daytona Stag tires are not similar products at all. Bergstrom Decl., ¶ 5, Exh. A. He bases his conclusion on whether similar variables relating to the design and manufacture of the two tires exist, including size, shape, placement, materials and construction of components used to construct the tires. See, Opp. at 3. Though Mr. Queiser states the tires do share some similarities, including two body plies, two steel belts and beads, obvious design differences between the tire products exist. Opp. at 4. Rather, Mr. Queiser states to focus on the similarity of the tires' sizes, the skim stock used and perhaps identical manufacturing equipment, which are only a few of the attributes in the highly engineered and "specialized process" of designing and manufacturing a tire products, would be too narrow of an analysis. Opp. at 3; Bergstrom Decl., ¶ 5, Exh. A and Queiser Depo. Tr. 40:11-17. For example, although the Daytona Stag tires and Firestone Radial ATX II are the same size, the tires are different models of tires and have different construction features. Bergstrom Decl., ¶ 5, Exh. A and Queiser Depo. Tr. 75: 21-25; 76:1. Mr. Quesier specifically testified that there is a difference of an eighth of an inch to a quarter of an inch difference in steel belt width for the two tires. Bergstrom Decl., ¶ 5, Exh. A and Queiser Depo. Tr. 80:20-25; 81:1-9. There are also differences in the steel cords themselves. Bergstrom Decl., ¶ 5, Exh. A and Queiser Depo. Tr. 82:7-15. Additionally, while certain tires may share common skim compounds which may have been the case with the Daytona Stag tires and the Firestone Radial ATX II tires, "over 200 million tires were made using [the skim compound J2757] compound." Opp. at 4; Bergstrom Decl., ¶ 5, Exh. A and Queiser Depo. Tr. 78:4-20. Mr. Queiser also testified that "some of the equipment may have been utilized for both models, but some equipment might not have. There is no guarantee that I can think of that would dictate that as fact from start to finish in the whole process." Bergstrom Decl., ¶ 5, Exh.A and Queiser Depo. Tr. 76:2-12. See also, Henderson Reply Decl., ¶ 7, Exh. 29, Terry Howe Deposition Transcript, ("Howe Depo. Tr.") ("Again, they would come in, change that machine over for a specific tire, take all the materials away for that tire and bring in the materials for the tire that was being changed over for.").
Mr. Queiser further testified that a tire product is comprised of many different components and rubber compounds, "components, materials, and `construction features' will vary among different steel-belted radial tires and `[e]ach tire has its own specification, and there would naturally be differences between tires of different sizes, even within a brand.'" Id. Mr. Quesier also testified that the tire products design can affect the manufacturing methods of the tire products. Bergstrom Decl., ¶ 5, Exh. A and Queiser Depo. Tr. 84:15-25; 85:1.
Mr. Quesier explained the two tire models have differences in tread compound (which apparently varied over time), belt structure, mold shape (including tread depth, radii for the tread, tread arc, shoulder radius, sidewall radius and shoulder pocket design) and the existence of speed ratings. See, e.g., Queiser Depo. Tr. 109: 21-25; 163:2-9. The Daytona Stag tires and the Firestone Radial ATX II tires also have differences in the spacing and angles of their respective steel belt cords, overall tire strength, beads (different compound and perhaps variations in the heights of the bead filler itself), sidewalls of the tires, and body ply fabrics (height differences). Opp. at 5; Bergstrom Decl., ¶ 5, Exh A and Queiser Depo Tr. 107:4-23; 108:1-25; 109:1-25. Finally, Mr. Queiser testified that the design of a particular tire may affect the manufacturing and quality assurance methods of that tire. Bergstrom Decl., ¶ 5, Exh. A and Queiser Depo. Tr. 84:15-25; 85:1-10.
Mr. Ochs's analysis of the alleged similarities between the Daytona Stag tires and the Firestone ATX II tires is generally conclusory. He states that the products share similar material compositions and underwent similar manufacturing processes. However, the analysis lacks specifics. Indeed, Mr. Ochs attributes the catastrophic failure of the Daytona Stag tires to its belts and wedges but draws no comparisons whatsoever to the belts and wedges of the Firestone Radial ATX II tires. Mr. Quesier, on the other hand, provides details in his deposition testimony to illustrate specific design differences between the two products. Additionally, an engineering analysis issued by the U.S. Department of Transportation (and appended to Plaintiffs' own papers) states as its initial findings that belt wedge thickness, inner-belt gauge, shoulder pocket design and certain material properties accounted for the tire failures. Henderson Decl., ¶ 3, Exh. 2. Mr. Quesier's testimony reveals that all of these design features differed for the Daytona Stag tires. Bridgestone/Firestone's certified quality engineer, Mr. Howe, also confirms that there may have been differences between the tire products, which included the steel cords used and the actual curing process. Henderson Reply Decl. ¶ 7, Exh. 29. He was not able to confirm that the tire products used the same skim stock.Id. These design differences as well as others have persuaded the court that the Firestone ATX II tires and the Daytona Stag tires are essentially different products and that such discovery is not relevant to this action. Accordingly, Plaintiffs' request for documents relating to Firestone ATX II tires is denied.
The document requests relating to the production of documents involving other Firestone tires include the following: Document Request Nos. 23, 24, 25, 26, 60, 77, 79, 94, 95, 96, 112, 114, 116, 117, 120, 121, 123, 124, 125, 128, 169, 170, 171, 173, 175, 176, 177, 178, 199, 200, 201, 202, 203, 206, 207, 208, 210, 213, 214, 217, 218, 219, 220, 221, 222, 224, 225, 226, 228, 229, 230, 232, 233, 234, 236, 237, 238, 240, 241, 242, 243, 244, 245, 246, 247, 251, 252, 253, 273, 274, 278, 279, 288, 289, 290, 293, 294, 295, 296, 297, 298, 299, 308, 314, 316, 317 and 318.
Plaintiffs have also sought to compel production of discovery-related documents, including deposition transcripts, and motion papers from Bridgestone/Firestone's other cases. Plaintiffs, however, have made no showing whatsoever that any of these other cases are substantially similar to this case at all. See, e.g., White v. Ford Motor Company, 312 F.3d 998, 1009 (9th Cir. 2002); Cooper v. Firestone Tire and Rubber Company, 945 F.2d 1103, 1105 (9th Cir. 1991) and Benson v. Honda Motor Company, Ltd., 26 Cal.App.4th 1337, 1345, 32 Cal.Rptr.2d 322, 326 (1994). Accordingly, Plaintiffs' motion to compel production to Document Request Nos. 99, 100, 119 and 319 is also denied.
2. Documents Relating to Conditions at the Bridgestone/Firestone Manufacturing Facility in Decatur, Illinois
Plaintiffs have also sought discovery of documents relating to quality control and plant operation at the Bridgestone/Firestone's manufacturing facility in Decatur, Illinois. Mot. at 3. As discussed above, Plaintiffs argue such discovery is relevant to their claim that there were manufacturing defects in the Daytona Stag tires. Id. For example, Plaintiffs note that former Decatur, Illinois manufacturing plant workers have publicly stated that "the same stock of green tires [was] used for all tire lines and that tire builders and others did not change their manufacturing practices among different tire lines." Henderson Decl., ¶ 4, Exh. 3. As discovery relating to quality control and plant operation at the Decatur plant in the manufacture of the Daytona Stag tires may be relevant to the manufacturing defect claim, Plaintiffs' motion to compel production of non-privileged documents responsive to Document Request Nos. 103 (limited to Daytona Stag tires only), 195, 204, 205, 212, 215 and 216 is granted.
3. Other Documents
Plaintiffs' motion to compel production of non-privileged documents responsive to Document Request Nos. 13, 19, 20, 21, 22, 85, 86, 87, 88, 89, 90, 92, 93, 97 (limited to Daytona Stag tires only), 98 (limited to Daytona Stag tires only), 101 (limited to Daytona Stag tires only), 102 (limited to Daytona Stag tires only), 103 (limited to Daytona Stag tires only), 105 (limited to Daytona Stag tires only), 106, 107 (limited to Daytona Stag tires only), 108 (limited to Daytona Stag tires only), 109 (limited to Daytona Stag tires only), 110, 111 (limited to Daytona Stag tires only), 192, 194, 195, 196, 197, 204, 205, 209 (limited to Daytona Stag tires only), 211, 212, 215, 216, 223, 227, 231, 235, 239, 250, 267, 268, 269, 270, 271, 275, 276 (limited to Daytona Stag tires only), 277 (limited to Daytona Stag tires only), 284, 303, 304 and 315 is granted.
Plaintiffs' motion to compel production of documents responsive to Document Request Nos. 91, 104, 115, 280, 281, 282, 283, 285, 286, 287, 309, 311, 312 and 313 are not limited by any time frame, product or circumstances and are vague, overbroad, not relevant and/or burdensome. Accordingly, Plaintiffs' motion to compel further responses to the above-specified document requests is denied.
B. Plaintiffs' Motion to Allow Their Expert Witness Access to Bridgestone/Firestone Documents
Plaintiffs further move to allow their expert witness to gain access to any and all documents which the court may compel defendant Bridgestone/Firestone to produce. Defendant Bridgestone/Firestone has not raised any objections or stated any reasons why Plaintiffs' expert witness should be denied access to such documents. Additionally, the parties stipulated and the court signed a protective order on August 27, 2004 ("Stipulation and Protective Order"). It reads in pertinent part as follows:
Plaintiffs' moving papers do not state that the parties have previously met and conferred on this issue. Please note that "[t]he Court will not [generally] entertain a request or motion to resolve a disclosure or discovery dispute unless, pursuant to Fed.R.Civ.P. 37, counsel have previously conferred for the purpose of attempting to resolve all disputed issues." Civ. L.R. 37-1(a). "`Meet and confer' or `confer' means to communicate directly and discuss in good faith the issue(s) required under the particular Rule or order." Civ L.R. 1-5(n). Further, this requirement is satisfied only through direct dialogue and discussion, either in a face-to-face meeting or in a telephone conversation. Id.
The parties recognize that discovery in this matter may call for the production of materials containing confidential and proprietary business information and other commercially sensitive information of Bridgestone/Firestone, and that Bridgestone/Firestone has a protected proprietary and property interest in those materials.
. . . . [D]ocuments marked as "CONFIDENTIAL MATERIAL," as described . . . shall not be used for any purpose other than the prosecution or defense of this captioned action or other litigation . . . and shall not be shown, disseminated or disclosed to anyone other than COVERED PERSONS without the prior written agreement of Bridgestone/Firestone or order of the Court after due notice to Bridgestone/Firestone.
The Stipulation and Protective Order applies to a defined group of "Covered Persons" which include "experts retained or consulted by counsel for any party other than Bridgestone/Firestone to assist in the preparation, prosecution, or evaluation of this litigation." Any concerns by Bridgestone/Firestone regarding disclosure of its proprietary and trade secret information to Plaintiffs' expert witness would be addressed by an assent to adhere to the terms of the Stipulation and Protective Order. Accordingly, Plaintiffs' motion to allow their expert witness access to produced documents is granted.
C. Plaintiffs' Motion for Sanctions
Plaintiffs seek $3,000 in attorneys' fees in connection with bringing this motion to compel. Plaintiffs make this request as part of their motion to compel. A motion for sanctions will not be granted if the court finds that "the opposing party's nondisclosure, response, or objection was substantially justified, or that other circumstances make an award of expenses unjust." Fed.R.Civ.P. 37(a)(4). Having considered Plaintiffs' motion and all matters, the motion for sanctions is denied on the merits.
This is generally not permitted under the Civil Local Rules, which require that a motion for sanctions under Fed.R.Civ.P. 37 be made separately from a motion to compel. N.D. Cal. Civil Local Rules 37-2 7-8.
IV. ORDER
For the foregoing reasons, Plaintiffs' motion to compel discovery is granted in part and denied in part as follows:
(1) Plaintiffs' motion to compel production of non-privileged documents responsive to Document Request Nos. 23, 24, 25, 26, 60, 77, 79, 94, 95, 96, 99, 100, 112, 114, 116, 117, 119, 120, 121, 123, 124, 125, 128, 169, 170, 171, 173, 175, 176, 177, 178, 199, 200, 201, 202, 203, 206, 207, 208, 210, 213, 214, 217, 218, 219, 220, 221, 222, 224, 225, 226, 228, 229, 230, 232, 233, 234, 236, 237, 238, 240, 241, 242, 243, 244, 245, 246, 247, 251, 252, 253, 273, 274, 278, 279, 288, 289, 290, 293, 294, 295, 296, 297, 298, 299, 308, 314, 316, 317, 318 and 319 is denied;
(2) Plaintiffs' motion to compel production of non-privileged documents responsive to Document Request Nos. 13, 19, 20, 21, 22, 85, 86, 87, 88, 89, 90, 92, 93, 97 (limited to Daytons Stag tires only), 98 (limited to Daytona Stag tires only), 101 (limited to Daytona Stag tires only), 102 (limited to Daytona Stag tires only), 103 (limited to Daytona Stag tires only), 105 (limited to Daytona Stag tires only), 106, 107 (limited to Daytona Stag tires only), 108 (limited to Daytona Stag tires only), 109 (limited to Daytona Stag tires only), 110, 111 (limited to Daytona Stag tires only), 192, 194, 195, 196, 197, 204, 205, 209 (limited to Daytona Stag tires only), 211, 212, 215, 216, 223, 227, 231, 235, 239, 250, 267, 268, 269, 270, 271, 275, 276 (limited to Daytona Stag tires only), 277 (limited to Daytona Stag tires only), 284, 303, 304 and 315 is granted;
(3) Plaintiffs' motion to compel production of documents responsive to Document Request Nos. 91, 104, 115, 280, 281, 282, 283, 285, 286, 287, 309, 311, 312 and 313 is denied.
(4) Bridgestone/Firestone shall undertake a search and produce responsive documents within 30 days of the date of this order.
(5) Pursuant to Fed.R.Civ.P. 26(e)(2), Bridgestone/Firestone shall supplement and amend its responses to Plaintiffs' Request for Production of Documents (Set One) within 30 days of the date of this order;
(6) Plaintiffs' motion to allow their expert witness to gain access to documents which the court may have compelled Bridgestone/Firestone to produce is granted.
(7) Plaintiffs' motion for sanctions is denied.
IT IS SO ORDERED.