Opinion
Case No. 02-CV-73747-DT.
February 18, 2005
I. OPINION
A. Background
In this case, plaintiff seeks damages for injuries resulting from an alleged July 2001 radiator explosion in plaintiff's 1992 BMW 325. On September 16, 2003, plaintiff filed a motion to compel production of documents with respect to its First Set of Request for Production to defendants (served on or about November 15, 2002). On October 16, 2003, I entered an order resolving plaintiff's motion to compel production of documents. The order required defendants to "provide copies of documents to plaintiff's counsel . . . within 30 days." It further provided that "[i]f plaintiff's counsel concludes that defendants have not fully complied with the requests previously served, counsel may request a telephone conference with opposing counsel and me to discuss and resolve any disputes."
Plaintiff's counsel requested a telephone conference with opposing counsel and me to discuss and resolve disputes pertaining to BMW NA's responses and documents produced in response to plaintiff's First Set of Requests for Production to BMW NA. On December 10, 2003, I entered an order resolving plaintiff's motion to compel. In relevant part, I ordered that the requests were limited to any and all BMW E30, E31, E32, E34, and E36 vehicles which have a radiator identical, or substantially similar, to the one in Mr. Croskey's vehicle at the time of the incident. I also ordered that the time period covered by the requests for such items as owner/customer/dealer complaints, field reports, studies, surveys, and investigation, testing, etc., was limited to January 1, 1995 to the present. I further ordered that requests which seek documents pertaining to the radiator, and/or radiator problems, defects, alleged defects, failures, etc., would be limited to those involving the radiator neck and/or plastic end tanks (caps).
On December 23, 2003, I entered an order amending my December 10, 2003, order to change a date in the second line of the second paragraph.
Several scheduling orders have been entered in this case. On May 12, 2004, Judge Woods entered a stipulated order providing that witness lists would be due on June 22, 2004, and setting the close of discovery for July 26, 2004. On October 13, 2004, Judge Edmunds entered a scheduling order providing that the final pretrial order was due on January 11, 2005; the final pretrial conference would be held on January 11, 2005; and the jury trial would begin on January 18, 2004. On December 8, 2004, Judge Edmunds entered an order providing that motions in limine and the final pretrial order are due on February 11, 2005; the final pretrial conference is set for February 22, 2005; and the trial shall begin on March 1, 2005. However, on January 6, 2005, Judge Edmunds entered an order setting the discovery deadline for May 1, 2005; the final pretrial order deadline for August 11, 2005; the final pretrial conference for August 18, 2005; and the trial date for September 6, 2005.
B. The Instant Motion to Compel Discovery
On January 20, 2005, plaintiff filed a motion to compel production of documents by BMW NA and BMW AG and compel BMW AG to provide responses to plaintiff's second set of interrogatories (warranty information and failure statistics). (Doc. Ent. 104 [Mtn.]). Plaintiff requests an order (1) requiring defendants to produce documents responsive to plaintiff's June 24, 2004, requests for production of documents (warranty information) and (2) requiring BMW AG to completely respond to Interrogatory Nos. 3-8 of plaintiff's June 24, 2004, interrogatories (failure rate). Mtn. at 2.
On the same day, Judge Edmunds referred this motion to me for hearing and determination pursuant to 28 U.S.C. § 636(b)(1)(A).
On February 8, 2005, defendants filed a response. (Doc. Ent. 122 [Rsp.]). To date, plaintiff has not filed a reply. On February 10, 2005, I held a hearing regarding plaintiff's motion. Following oral argument, I took the motion under advisement.
Plaintiff was represented by attorney Marc Lipton. Defendants were represented by attorney Thomas Branigan.
C. Analysis
1. The discovery requests at issue Request for production No. 3 seeks [a]ny and [all] documents which refer to, reflect or relate to warranty claims (worldwide) concerning radiators and/or radiator end tanks from BMW E30, E31, E32, E34 and E36 vehicles manufactured from 1987 to the present." BMW responded:
BMW AG has attempted to conduct a search for documents regarding warranty work or repair related to radiator end tanks in E30, E31, E32, E34, and E36 vehicles that are substantially similar to the subject radiator. However, because of the way warranty data is coded, BMW AG is unable to determine whether warranty work or warranty repair for a radiator is related to the radiator end tank or some other claimed radiator failure. BMW AG objects to this request because it is overly broad, unduly burdensome, and expensive. In addition, BMW AG objects to this request to the extent that it is outside the scope of the Court's December 10, 2003 order.
Mtn. Ex. 1 at 2-3. Plaintiff contends that "BMW AG refused to produce responsive documents by unilaterally narrowing the scope of the request and then claiming that it did not `code' its warranty data by the specific type of failure that resulted in warranty repair work or replacement of the radiator." Mtn. at 2 ¶ 3. Plaintiff argues that "[t]he requested discovery is relevant and easily retrievable by BMW[,]" and "[t]he requested documents are material to plaintiff's case to: (1) establish the defect in the design of the radiator; (2) establish BMW used inappropriate materials in the subject radiator; and (3) undercut defendants' contention that the radiator failures have been statistically insignificant." Mtn. at 2 ¶ 4.
Interrogatory Nos. 3-7 seek "the failure rate (per 100,000) of the plastic end tanks in radiators on [E30, E31, E32, E34, and E36] vehicles manufactured from 1987 to the present." To each of these five interrogatories, BMW AG responded: "BMW AG further objects to this interrogatory because it is outside the scope of the Federal Rules of Civil Procedure. BMW AG further objects to this interrogatory because it is vague in that it does not define the term `failure.' If Plaintiff defines the term `failure,' BMW AG will endeavor to respond, if possible." Mtn. Ex. 2 at 3. Interrogatory No. 8 seeks "the failure rate (per 100,000) of radiators with end tanks not made of plastic, including but not limited to the E60 and E65." BMW AG objected on the bases that the interrogatory sought information that was (a) not within the scope of the Federal Rules of Civil Procedure, (b) outside the scope of my December 10, 2003, order, and (c) "irrelevant, not reasonably calculated to lead to the discovery of admissible evidence, is vague and overly broad." BMW Mtn. Ex. 2 at 3-4. Plaintiff argues that "BMW's objection is baseless, and in fact, BMW has produced documents in which BMW has specifically used the German word for the same concept." Mtn. at 2 ¶ 5.
2. The parties' arguments
Plaintiff argues that "[t]he requested documents are relevant[.]" Plaintiff contends that, in response to my December 10, 2003, order, BMW produced 100 QCI sheets and Hotline information documents regarding radiator end tank failures and 100 QCI sheets and Hotline information documents regarding "radiator leaks and radiator issues not specifically related to end tank ruptures." This production purportedly represents "all the failures of radiators in [BMW's] possession in the E30, E31, E32, E34, and E36 vehicles, and thus, those failures were very small in number." Mtn. at 4. Plaintiff argues that "[t]he requested documents are likely to undermine BMW's position." Plaintiff claims he "has personal knowledge of ruptured radiators and ruptured end tanks that are not reflected in the QCI sheets or Hotline information sheets." Mtn. at 4. Plaintiff believes that the requested warranty information "will reveal the scope and extent of the actual radiator failures and therefore is directly relevant to plaintiff's case and will directly undermine BMW's defense that the number of failures of the radiators is small." Mtn. at 4.
Plaintiff refers to defense expert Axel Temmesfeld's deposition testimony. At his deposition, Temmesfeld was asked if he knew "how may reports to BMW have been made concerning ruptures in the radiator neck?" He responded that Mr. Tengler informed him that "in total, all complete, all comprising approximate a hundred necks were broken, but only a few certainly have led to injuries." Mtn. Ex. 3 (12/17/04 Temmesfeld deposition at 135). Also, Temmesfeld agreed that there were "seven-million cars worldwide with a radiator similar to Mr. Croskey's with the same end tank[.]" Mtn. Ex. 3 (12/17/04 Temmesfeld deposition at 157).
Plaintiff refers to Exhibit 5 to his response to defendants' motion for protective order. Within this exhibit are (a) eleven (11) radiator/coolant related invoices from Sansing BMW in Pensacola, Florida and (b) two (2) radiator/coolant related invoices and two (2) radiator bills of sale from Husker Auto Group in Lincoln, Nebraska. (Doc. Ent. 95 Ex. 5).
Plaintiff also argues that "[t]he requested documents are easily retrievable by BMW[.]" Mtn. Br. at 5-6. Plaintiff claims he can easily review all radiator warranty documents "to determine which involve end tank issues or radiator `neck' issues and which ones do not." He claims he will "bear the burden and expense to segregate any documents not substantially similar to this case, as long as BMW provides enough information to make segregation possible[.]" Mtn. Br. at 5. Plaintiff contends that "the documents generated from the search are simply a `computer dump' after BMW inputs into its system the specific code for radiators replaced under warranty." Mtn. Br. at 5-6.
Plaintiff further argues that "BMW has failed to respond to interrogatories under the feigned excuse that it does not understand the term `failure'[.]" Mtn. Br. at 6-7. Plaintiff claims that BMW's documents use the German word "ausfallstatistik", which apparently means "loss statistics". See Mtn. Ex. 5 ("Babel Fish Trnaslation"). He claims that "BMW's engineers know what `loss statistics' or `failure statistics' are[,]" and contends that "[t]he requested information is readily available to BMW and is relevant to the case to enable plaintiff to compare the rate of failure of the radiator involved in Mr. Croskey's vehicle to those radiators which do not use plastic end tanks, and to disprove BMW's primarily liability defense, . . . that the necks simply do not fail often enough to be of concern to BMW." Mtn. Br. at 6-7.
Exhibit 4 includes a document (Bates Number 000419) which uses the word "Austallstatistik". Mtn. Ex. 4.
Finally, plaintiff argues that "BMW's refusal to produce any documents and respond to interrogatories is in bad faith[.]" Mtn. Br. at 7-9. According to plaintiff, "BMW unilaterally decided to focus on only a portion of the request for documents, and then claimed that it could not produce documents based on the self-imposed narrowed scope of the request[,]" and "BMW's contention that it needs plaintiff to define `failure' is disingenuous, at best." Mtn. Br. at 7. Plaintiff relies upon Traxler v. Ford Motor Company, 227 Mich. App. 276, 283-284, 576 N.W.2d 398, 402 (1998), arguing that "BMW craftily reformulated the request for production to ask only what it wanted it to say. Then, BMW claimed that it could not produce responsive documents because it did not `code' them that way." Mtn. Br. at 8-9. Plaintiff contends that "BMW's answer was dishonest and carefully crafted to mislead the reader[,]" and that "[t]his Court should not countenance BMW's continued obstruction of [p]laintiff's legitimate discovery requests." Mtn. Br. at 9.
Traxler, 227 Mich. App. at 283-284, 576 N.W.2d at 402 ("What [Ford] did was craftily reformulate the question to ask only what it wanted to say, namely: that the seat track assemblies, not the seats themselves, were unique, thereby creating the misleading impression that the seats had not been used in any other vehicles. With that impression, plaintiffs would not expect to be told about tests and lawsuits involving the seats and other models, even though the seats were, it now turns out, the same. That was as dishonest as saying in so many words that the seats, not just the seat track assemblies, were unique to the vehicle. . . . Ford's answer was not simply a precise answer to a poor question; it was a dishonest answer, carefully crafted to mislead the reader. An impression can be so strong and so obviously what someone wanted to impart that it is a statement to that effect, in this case, a false statement.").
BMW responds on four bases. First, defendants request that plaintiff's motion be denied due to "[t]his Court's prior limits on the scope of discovery." Rsp. at 4-6. Second, BMW argues that "the documents relating to the warranty repairs or replacements of radiators and radiator end tanks are not relevant." Rsp. at 6. Relatedly, BMW alleges that it "cannot tell from its records which warranty claims were made because of a ruptured end tank neck, and which was caused by road debris, by a fan malfunction or by any other factor." Rsp. at 7. BMW contends that the documents responsive to request for production No. 3 "do not constitute admissible evidence and are not reasonably calculated to lead to admissible evidence[,]" because the request does not conform to the three limitations imposed by my December 10, 2003, order. Rsp. at 9. BMW relies upon Piacenti v. General Motors Corporation, 173 F.R.D. 221, 225 (N.D. Ill. 1997), in support of its argument that request for production No. 3 is not limited to substantially similar material. Rsp. at 10-11. BMW claims that it "does not possess `documents' regarding warranty claims beyond electronic record of how many warranty claims were processed for radiator `leaks[;]'" and "[t]his information will not assist [p]laintiff [in determining] how many end tank necks ruptured." Rsp. at 11-12. BMW references BMW AG's April 1, 2004, supplemental response to plaintiff's first demand for production of documents; notes that "[p]laintiff has taken and continues to take depositions of other persons who allegedly were injured by a similar incident[;]" and contends that "[t]he production of all warranty-related documents is not reasonably calculated to lead to admissible evidence." Rsp. at 12.
Within "the warranty documents" portion of its response, BMW contends that "contrary to [p]laintiff's unsupported assertions in his Brief in Support (p. 5), BMW does not receive warranty documents or parts themselves when a warranty claim is paid. Instead a dealer makes an electronic entry in an electronic claim system requesting reimbursement for a warranty repair." BMW claims that "[t]he choices for a claim regarding a radiator replacement are `leaking, loose, and poorly bled[,]'" and that "[t]here is nothing in this electronic submission that would specify the reason for the warranty claim beyond these choices." Rsp. at 7. BMW states that Gunter Tengler's May 5, 2004, deposition confirms that "the information BMW does store is the electronic warranty claim that may be sorted by radiators `leaking.'" Rsp. at 8.
On February 15, 2005, BMW filed a supplemental response to plaintiff's motion to compel warranty information. (Doc. Ent. 124). The supplement explains that "there are occasions when parts replaced under warranty may be in the possession of BMW NA for a brief period of time." Supp. Rsp. at 2. BMW argues that "[t]he fact that BMW possessed for a brief period of time the radiators does not affect BMW's objections to plaintiff's requests to the extent they ask for information about those parts or the parts themselves[.]" Supp. Rsp. at 3.
Piacenti v. General Motors Corporation, 173 F.R.D. 221, 225 (N.D. Ill. 1997) ("allowing discovery of models that are not substantially similar to the model at issue is truly the equivalent of comparing apples and oranges where there are differences between the other models and the model at issue in terms of wheelbase, width, and center of gravity.").
Third, defendants argue that "[t]he failure rate could be defined to mean the breaking from any cause, or just from overheating, or from overheating as a result of misuse or from a water pump failure." Rsp. at 12. BMW claims it "has complied with all of [p]laintiff's deposition questions and reasonable discovery requests concerning statistics and laboratory reports and testing concerning the end tanks, as limited by this Court's December 10, 2003, order." Rsp. at 13.
Finally, defendants argue that "BMW's responses to plaintiff's request for production and interrogatories were made in good faith." According to BMW, it "has formulated its responses, including its objections, to correspond to this Court's orders and to the very specific defect claim [p]laintiff has made throughout this litigation: radiator end tank neck rupture, NOT radiator end tank defect generally or radiator defect generally." Rsp. at 13-14.
3. Conclusion
Plaintiff's request for a Court order compelling BMW AG and BMW NA "to produce warranty documents pertaining to the radiator along with documentation that will enable counsel to separate out radiator neck failures substantially similar to that which injured [p]laintiff, and compel BMW AG to respond to Special Interrogatory Nos. 3 through 8, Set No. 2[,]" Mtn. Br. at 9, is denied for several reasons.
First, Judge Edmunds' January 6, 2005, extension of discovery until May 1, 2005, does not erase the prior orders of this Court. Second, my December 10, 2003, order provided that requests which seek documents pertaining to the radiator, and/or radiator problems, defects, alleged defects, failures, etc., will be limited to those involving the radiator neck and/or plastic end tanks (caps). This order is still in effect, as plaintiff did not seek reconsideration of the order or pursue an appeal of the order to the district judge. Third, notwithstanding my December 10, 2003, order, I would reach the same conclusion, because plaintiff already has an expert opinion and plaintiff has not provided a submission (for example, by way of affidavit or unsworn statement) that information responsive to the requests at issue would affect his opinion. This is further substantiated by plaintiff's counsel's statement at the February 10, 2005, hearing that, if this motion was granted, he did not think that redeposition of his expert would be necessary.
Anand D. Kasbekar, Ph.D, described by BMW as plaintiff's liability expert, was deposed on December 7, 2004. Rsp. at 2; Rsp. Ex. A.
The Court is aware that plaintiff is pursing discovery from BMW dealerships and recognizes the possibility that information in response to these dealer requests may reveal codes that BMW should use to search its records. Therefore, the denial of this motion is without prejudice to plaintiff renewing his request for the information at issue; however, this renewed request would have to include specific codes with which BMW should search its records.
II. ORDER
In accordance with the foregoing, plaintiff's January 20, 2005, motion to compel production of documents by BMW NA and BMW AG and compel BMW AG to provide responses to plaintiff's second set of interrogatories (warranty information and failure statistics) (Doc. Ent. 104) is DENIED.
IT IS SO ORDERED.
The attention of the parties is drawn to Fed.R.Civ.P. 72(a), which provides a period of ten days from the date of receipt of a copy of this order within which to file objections for consideration by the district judge under 28 U.S.C. § 636(b)(1).