Opinion
Case No. 02-CV-73747-DT.
March 1, 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 Requests for Production to defendants (served on or about November 15, 2002). On December 10, 2003, I entered an order resolving plaintiff's motion to compel. My order contained the following three limitations:
1. The requests are limited to any and all BMW E30, E36, E34, E32 and E31 vehicles which have a radiator identical, or substantially similar, to the one in Mr. Croskey's vehicle at the time of the incident. "Substantially similar" will hereinafter include the subject radiator in the 1992 E36 vehicle and/or radiators with the same necks and/or plastic end tanks (caps).
2. The time period covered by the requests for such items as owner/customer/dealer complaints, field reports, studies, surveys, and investigation, testing, etc., is limited to January 1, 1995 to the present.
3. 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). Defendants need not produce documents reflecting damage caused by forces outside the vehicle such as road debris which impacted the radiator.
According to plaintiff, defendants produced quality control information sheets from June 2, 1995 to present, as well as "evidence of burn injuries sustained by consumers as a result of the exploding radiator neck." Mtn. at 2 ¶ 6. According to defendants, BMW supplemented its responses on December 23, 2003; January 12, 2004; March 2, 2004; April 1, 2004; and April 30, 2004. Rsp. at 2.
On May 12, 2004, Judge Woods entered a stipulated order which in part set the close of discovery for July 26, 2004. On October 13, 2004, Judge Edmunds entered a scheduling order providing in part that the jury trial would begin on January 18, 2004.
B. The Instant (Plaintiff's November 23, 2004) Motion to Compel Discovery and Plaintiff's December 22, 2004, Supplemental Request
On November 23, 2004, plaintiff filed a motion to compel discovery. (Doc. Ent. 71 [Mtn.]). Plaintiff seeks a court order requiring defendants:
On November 23, 2004, Judge Edmunds referred this motion to me for hearing and determination pursuant to 28 U.S.C. § 636(b)(1)(A).
. . . to produce all records responsive to [p]laintiff's [November 15, 2002] request from 1987 through 1995 and from the last date produced to the present time. Specifically, [d]efendants should produce all documents during that time frame which contain the information similar to that contained in [d]efendants' QCI's (containing dealer reports of broken radiator necks), RCIS (reported customer information sheets, which document injury sustained by customers as a result of the defect), HSS (Hotline information sheets containing additional information regarding dealer reports), and any reports, documents and photographs which would contain this information, by whatever title [d]efendants used to categorize the information, and further which would already be encompassed in the order, if not for the date restriction.
Mtn. at 3 ¶ 7. Plaintiff maintains that "[t]he information requested is reasonably likely to lead to the discovery [of admissible] evidence. Further, under Michigan law, the information is necessary for [p]laintiff to prove certain elements of his case." Mtn. at 3 ¶ 8. Plaintiff contends that he "requires this information in order to establish that [d]efendants are not entitled to certain reforms of the Michigan products liability statute, including the cap on damages, but in addition, the rebuttal of presumption that [d]efendants are not liable as well as specific immunities granted by Section MCL 600.2947(1) through (4)." Mtn. at 4 ¶ 8. Additionally, in light of the January 18, 2005, trial date and the fact that facilitation was unsuccessful in resolving this case, plaintiff requests that the Court order immediate production of the requested documents. Mtn. at 4 ¶ 9.
Attached to plaintiff's motion are copies of (1) his first demand for production of documents; (2) my December 10, 2003, order; (3) BMW quality control information; and (4) plaintiff's September 16, 2003, brief in support of his motion to compel production of documents.
On December 6, 2004, defendants filed a response. (Doc. Ent. 76 [Rsp.]). They argue that "[p]laintiff's discovery motion is untimely and requiring BMW to undertake new document production six months after discovery closed, on the eve of trial, will be unduly prejudicial[;]" "[p]laintiff failed to appeal this Court's December 10, 2003 [o]rder resolving this very same discovery issue, therefore his right to object and/or appeal has been waived[;]" and "BMW has already produced all documents regarding injury claims." Rsp. at 3, 6, and 7.
Attached to BMW's response are copies of (1) my December 10, 2003, order, and (2) the September 19, 2002, complaint and jury demand.
On December 9, 2004, Judge Edmunds entered an order providing in part that the trial would begin on March 1, 2005. On the same day, plaintiff filed a reply. (Doc. Ent. 78 [Rpl.]). He argues that "[t]here is ample time for [d]efendants to compile and produce the requested documents[;]" "[p]laintiff was not required to object to the previous order in order to obtain the requested discovery[;]" and "[d]efendants' claim that they have produced all 'injury' claims is both disingenuous and mysterious." Rpl. at 2, 3, 5.
Although the instant motion was originally set for oral argument, I decided to render a decision on the papers. Accordingly, I invited the parties to submit supplemental briefs to the Court. On December 22, 2004, plaintiff filed a supplement to his motion to compel discovery in which he requests that the Court compel BMW to produce "its pre-manufacture test data" and "its warranty information concerning the subject radiator". (Doc. Ent. 79 [Pl. Supp. Br.]). On December 28, 2004, defendant BMW filed a supplemental brief in opposition to plaintiff's motion to compel production of documents. (Doc. Ent. 82 [Df. Supp. Br.]). Defendant argues that "[p]laintiff's request to re-open discovery is without good cause, untimely, and prejudicial at this late date[,]" and "[p]laintiff waived his right to object to this Court's December 10, 2003 discovery scope order when he failed to appeal to the district court judge pursuant to Fed.R.Civ.P. 72(a)."
On November 29, 2004, my clerk entered a notice of hearing for December 8, 2004.
Attached to plaintiff's supplement are (1) the December 21, 2004, declaration of plaintiff's counsel, David K. Schneider and (2) the December 6, 2004, notice of taking deposition duces tecum of Mr. Temmesfeld.
On January 6, 2005, Judge Edmunds entered an order setting the discovery deadline for May 1, 2005, and the trial date for September 6, 2005.
C. Plaintiff's January 20, 2005, Motion to Compel Warranty Information and Failure Statistics
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 requested 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 February 18, 2005, I denied the motion for the following reasons:
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).
First, Judge Edmunds' January 6, 2005, extension of discovery until May 1, 2005, does not crase 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.
However, I also stated: "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."
On February 28, 2005, plaintiff filed objections to my February 18, 2005, order.
D. Analysis
a. Plaintiff's motion might be denied as untimely, because Judge Edmunds' post-motion extension of discovery does not excuse the late nature of the motion.
1. Plaintiff's November 23, 2004, motion to compel is granted to the extent it is a renewed motion to compel. I. Parties' arguments
Pursuant to Judge Woods' May 12, 2004, order, the close of discovery was July 26, 2004. Defendants claim that the instant motion should be denied, because "[p]laintiff filed his [m]otion to [c]ompel [on November 23, 2004] long after the close of discovery and BMW will be substantially prejudiced if ordered to undertake this extensive new discovery on the eve of trial[.]" Rsp. at 2. Defendant argues that the motion "is untimely and requiring BMW to undertake new document production six months after discovery closed, on the eve of trial, will be unduly prejudicial." Rsp. at 3. Defendants maintain that the requested information "is not newly discovered information or law, for either [p]laintiff or his counsel." According to defendants, "[p]laintiff had all the information he needed to file this motion long ago, but failed to do so." Rsp. at 4. Additionally, defendants contend that they will suffer prejudice if this Court orders an extensive document search and production at this time. Rsp. at 5. They estimate that a search for requested documents more than ten years old would take at least three weeks and the production of resulting documents would take place after plaintiff's liability expert's deposition. Defendants maintain that "[f]orcing BMW to divert attention to [p]laintiff's untimely renewed discovery requests at this late date without the opportunity to take discovery of [p]laintiff's expert prior to trial is unfair and substantially prejudicial." Rsp. at 6.
Plaintiff contends that "[t]here is ample time for [d]efendants to compile and produce the requested documents[,]" because trial has been adjourned until March 1, 2005; plaintiff's request to have defendants review files and photocopy documents is not as oncrous as plaintiff having to conduct discovery, including expert deposition; and the request in not onerous in light of already produced materials. Rpl. at 2.
Judge Edmunds' order setting adjourning trial until March 1, 2005, was entered on the same day that plaintiff filed his reply. However, as previously discussed, trial has since been adjourned to September 2005.
In its supplemental brief, BMW argues that "[p]laintiff's request to re-open discovery is without good cause, untimely, and prejudicial at this late date." Df. Supp. Br. at 2-4. According to BMW, plaintiff's claim that at the time of his previous motion, he "did not know what the [d]efendants manifestly did[,]" Rpl. at 3, is disingenuous and belied by previous filings and representations. Df. Supp. Br. at 3. BMW contends it would be prejudiced by this delayed request for new discovery because "complying with the tardy discovery will take valuable time away from preparing for trial[,]" and producing new documents at this point may necessitate redeposition of plaintiff's expert. Df. Supp. Br. at 4.
ii. Conclusion
In its response and supplemental brief, BMW relies upon Suntrust Bank v. Blue Water Fiber, L.P., 210 F.R.D. 196 (E.D. Mich. 2002) (Pepe, M.J.). The Suntrust Bank decision involved the denial as untimely of a motion to compel filed approximately 18 months after discovery had closed; after the dispositive motion cut-off, and after the filing of dispositive motions. Suntrust Bank, 210 F.R.D. at 199. Magistrate Judge Pepe noted that "[a] district court may properly deny a motion to compel discovery where the motion to compel was filed after the close of discovery." Suntrust Bank, 210 F.R.D. at 199. He also observed that "[i]n numerous cases, courts have denied tardy discovery motions that were filed after the close of discovery, especially where the moving party had all the information it needed to timely file the discovery motion, and its late filing would prejudice the non-moving party." Id. at 200.
Among other cases, Magistrate Judge Pepe cited Ginett v. Federal Express Corp., 166 F.3d 1213 (6th Cir. 1998) (unpublished); Willis v. New World Van Lines, Inc., 123 F.Supp.2d 380, 401 (E.D. Mich. 2000) (Steeh, J.); and Choate v. National R.R. Passenger Corp., 132 F.Supp.2d 569, 573-574 (E.D. Mich. 2001) (Gadola, J.) in support of his statement.
I am persuaded by Suntrust Bank. First, at the time it was filed, plaintiff's motion was filed well after the close of discovery and the dispositive motion deadline. Plaintiff's motion was filed on November 23, 2004. At that time, the close of discovery and the dispositive motion cut-off off were set for July 26, 2004. (Doc. Ent. 35 [05/12/04 stipulated order to extend discovery dates and adjourn trial]). Therefore, his motion was filed nearly four months after these dates.
Second, although Judge Edmunds has extended the discovery date, plaintiff has not shown why this motion could not have been filed before July 26, 2004 — the discovery cut-off date at the time the instant motion was filed. Plaintiff served BMW with a first demand for production of documents on November 15, 2002. Mtn. ¶ 2; Mtn. Ex. 1. On September 16, 2003, plaintiff filed the related motion to compel. In my December 10, 2003, order resolving the motion, I ordered supplemental responsive documents to be provided by December 21, 2003. Plaintiff admits that defendants produced responsive documents and does not complain that the ordered production was untimely. Mtn. ¶ 6. Plaintiff describes the timing of this production as "when BMW finally produced documents in response to [my] order[,]" Rpl. at 4, but does not state when the documents were produced. However, defendants claim that BMW supplemented its responses on December 23, 2003; January 12, 2004; March 2, 2004; April 1, 2004; and April 30, 2004, and that they have responded six times to the discovery request. Rsp. at 2-3. Assuming plaintiff received the ordered production on April 30, 2004, it is unclear why plaintiff did not file the instant motion in the nearly three months before the close of discovery. Likewise, even though plaintiff claims he needs this information to prove elements of his case as set forth in Mich. Comp. Laws §§ 600.2949a and 600.2946a(3) and other sections, Mtn. ¶ 8, I agree with defendants that plaintiff's counsel was charged with knowledge of Michigan product liability law at the time he filed the complaint, Rsp. at 5.
Mich. Comp. Laws § 600.2949a ("Defendant's actual knowledge, willful disregard of defect") provides:
In a product liability action, if the court determines that at the time of manufacture or distribution the defendant had actual knowledge that the product was defective and that there was a substantial likelihood that the defect would cause the injury that is the basis of the action, and the defendant willfully disregarded that knowledge in the manufacture or distribution of the product, then sections 2946(4), 2946a, 2947(1) to (4), and 2948(2) do not apply.
Mich. Comp. Laws § 600.2949a (internal footnote omitted). Mich. Comp. Laws § 600.2946a ("Product liability actions; non-economic damages, limitations; application of limitations; itemization and calculation of damages"), provides in part that:
The limitation on damages under subsection (1) for death or permanent loss of a vital bodily function does not apply to a defendant if the trier of fact determines by a p[re]ponderance of the evidence that the death or loss was the result of the defendant's gross negligence, or if the court finds that the matters stated in section 2949a are true.
Mich. Comp. Laws § 600.2946a(3) (internal footnotes omitted).
Third, my conclusion with regard to the timeliness of plaintiff's motion is unaltered by Judge Edmunds' January 6, 2005, order setting the discovery deadline for May 1, 2005, and the trial date for September 6, 2005. Judge Edmunds' extension of the discovery deadline and trial date occurred after plaintiff filed the instant motion. Therefore, while the extension of these dates might be germane to the issue of prejudice to defendant, the extensions are not germane to whether plaintiff was diligent in filing the instant motion.
b. Plaintiff's motion is denied to the extent it is an appeal from or a motion for reconsideration of my December 10, 2003, order, as it is untimely and does not convince me that there was a palpable error in my prior order.
i. The parties' arguments
Defendants also claim that the instant motion should be denied, because "[p]laintiff failed to timely object to the [o]rder [r]esolving [p]laintiff's [m]otion to [c]ompel [p]roduction of [d]ocuments and [s]cheduling [i]ssues dated December 10, 2003, addressing these very same discovery requests, therefore [p]laintiff waived his right to appeal the Court's order setting the scope of discovery in this action[.]" Rsp. at 2-3. Specifically, defendants argue that "[p]laintiff failed to appeal this Court's December 10, 2003 [o]rder resolving this very same discovery issue, therefore his right to object and/or appeal has been waived." Rsp. at 6. Defendants argue that plaintiff waived his right to further review of my December 10, 2003, order by failing to appeal within the time period set forth in Fed.R.Civ.P. 72(a). Rsp. at 7. Defendants contend that "[p]laintiff cannot now seek to end-run his waiver of the right to appeal by filing a new motion[,]" and "[p]laintiff cannot escape the ten-day requirement by creatively couching an appeal as a subsequent motion to compel." Rsp. at 7.
Plaintiff contends that he "was not required to object to the previous order in order to obtain the requested discovery" for two reasons. Rpl. at 3-5. First, plaintiff contends, "[t]he previous order was not entered 'with prejudice'." According to plaintiff, at the time of his previous motion, he "did not know what the [d]efendants manifestly did: that this product was one that had failed repeatedly prior to [p]laintiff's injury, and injured numerous individuals both before and after Mr. Croskey." Plaintiff contends that, "[i]n light of the discovery produced to date, as well as [p]laintiff's legal obligation under the applicable Michigan statutes, [p]laintiff is entitled to all information relating to the subject radiator." Rpl. at 3. Second, plaintiff contends, "[d]iscovery has shown that the radiator at issue had a lengthy history of product failure and resulting injuries." Rpl. at 3-5.
In its supplemental brief, BMW argues that "[p]laintiff waived his right to object to this Court's December 10, 2003 discovery scope order when he failed to appeal to the district court judge pursuant to Fed.R.Civ.P. 72(a)." BMW asserts that "[c]ase law contradicts [p]laintiff's claim that he was not required to object or appeal [my] order regarding the scope of discovery in this action[,]" and states that "[t]he waiver rule applies equally to nondispositive and dispositive matters." Df. Supp. Br. at 5.
ii. Conclusion
Fed.R.Civ.P. 72(a) provides, in part: "Within 10 days after being served with a copy of the magistrate judge's order, a party may serve and file objections to the order; a party may not thereafter assign as error a defect in the magistrate judge's order to which objection was not timely made." The United States Supreme Court has held that "a court of appeals may exercise its supervisory powers to establish a rule that the failure to file objections to the magistrate's report waives the right to appeal the district court's judgment." Thomas v. Arn, 474 U.S. 140, 142 (1985). See also Stemler v. City of Florence, 126 F.3d 856, 866 n. 9 (6th Cir. 1997) (affirming the district court's award of summary judgment to municipal defendants, Court noted that plaintiff waived her claim that magistrate judge erred "by failing to appeal the magistrate judge's ruling to district court."). Plaintiff's November 23, 2004, motion was clearly filed more than ten (10) days after the entry of my December 10, 2003, order.
In Thomas, the Court noted that "[s]uch a rule, at least when it incorporates clear notice to the litigants and an opportunity to seek an extension of time for filing objections, is a valid exercise of the supervisory power that does not violate either the Federal Magistrates Act or the Constitution." Thomas, 474 U.S. at 155. My December 10, 2003, order provided that "[t]he 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 any written appeal to the District Judge as may be permissible under 28 U.S.C. § 636(b)(1)."
Likewise, E.D. Mich. LR 7.1(g) requires that "[a] motion for rehearing or reconsideration must be filed within 10 days after entry of the judgment or order." E.D. Mich. LR 7.1(g)(1). This local rule further provides that the movant on a motion for rehearing or reconsideration "must not only demonstrate a palpable defect by which the court and the parties have been misled by also show that correcting the defect will result in a different disposition of the case." E.D. Mich. LR 7.1(g)(3). I am not convinced that there was a palpable defect in my December 10, 2003, order.
c. Plaintiff's motion is granted to the extent it is a renewed motion to compel.
i. Parties' arguments
Plaintiff summarizes the claims produced by defendants (10 victims between May 29, 1995 and July 3, 2002) and requests responsive documents from 1987-1995 and from the last date produced through present "which would already be encompassed in the [December 10, 2003] order, if not for the date restriction." Mtn. ¶¶ 6-7. He also directs the Court's attention to his September 16, 2003, memorandum of points and authorities in support of motion to compel production of documents. Mtn. at 7.
Defendants characterize the instant motion as a "renewed" motion. Rsp. at 1, 2, 3. Defendants also claim that the instant motion should be denied, because "[p]laintiff has already received all documents BMW has been able to locate regarding injury claims, the first of which was made in 1985." Rsp. at 3. Defendants maintain that, during the telephone conference regarding plaintiff's September 16, 2003, motion, I "specifically addressed [p]laintiff's request for documents back to 1984 and declined to allow it despite [p]laintiff's counsel's repeated arguments." Rsp. at 6-7. See also Rsp. at 8.
Specifically, defendants maintain that "BMW has already produced all documents regarding injury claims." According to defendants, "BMW has produced all documents that it has been able to locate regarding injuries claims involving the subject radiator . . . and substantially similar radiators pursuant to [my] December 10, 2003, order." Rsp. at 7. Defendants maintain that "[t]he first report of any injury related to the subject radiator was in 1995[,]" and reports of all injuries from that instance forward have been disclosed to plaintiff. Rsp. at 7-8. So, defendants argue, with respect to injuries the motion is moot. To the extent plaintiff seeks information regarding radiator breaks where no injury occurred, defendants claim that responding to this request would be substantially unfair and prejudicial and the responsive documents are irrelevant and inadmissible at trial. Rsp. at 8.
Plaintiff argues that the documents produced in accordance with my December 10, 2003, order justify production of documents within a wider time frame, Rpl. at 3-5. According to plaintiff:
. . . when BMW finally produced documents in response to this Court's order, it revealed that this product had a history of malfunction covering the entire period covered by this Court's order. There is no reason to believe that the product suddenly started falling apart in April of 1995, but was not subject to the same defect between 1989 and 1995 when [p]laintiff believes the radiator was placed into production.
Rpl. at 4 (footnote omitted). Plaintiff seeks immediate production of "all documents relating to the radiator, and not limited to 1989, as [p]laintiff is unsure at the present time [of] the precise date that the radiator was put into production." Plaintiff claims the requested material is relevant and required by state law. Rpl. at 4. As plaintiff contends, "[t]he requested material is directly relevant to [p]laintiff's claim that [d]efendants had actual knowledge of the defect and willfully disregarded that knowledge at the time of manufacture." Rpl. at 5.
Plaintiff also argues that "[d]efendants' claim that they have produced all 'injury' claims is both disingenuous and mysterious." According to plaintiff, he is requesting production of "all documents relating to the failure of the part." Plaintiff claims that the exhibits attached to his reply evidence that "the number of reported product failures exceed by at least 10 times the number of related injuries." Furthermore, plaintiff claims that defendants have not produced injury information as far back as 1985. Rather, plaintiff claims, the earliest injury information produced is dated 1995. Plaintiff maintains that any evidence of a 1985 injury should be produced; if defendants deny prior injury claims regarding the radiator at issue, "they should indicate so in response to [p]laintiff's document request[;]" and if defendants' denial is false, they should be severely sanctioned. Plaintiff seeks production of the requested material within 14 days. Rpl. at 5.
Attached to plaintiff's December 9, 2004, reply are four exhibits: (1) Exhibit 1 contains several Quality Control Information sheets. According to plaintiff, these sheets show "that between April 2, 1995 and July 23, 2001, at least 75 separate reports, documenting nearly 100 separate incidents of product failure, were completed by BMW's service technicians. These reports describe the broken radiator neck as a result of embrittled plastic — precisely the defect that [p]laintiff asserts resulted in his injury." Rpl. at 3.
(2) Exhibit 2 contains HSS Hotline Information regarding "Radiator 'leaking'", "Radiator Ruptures During overheating[,]" "Radiator top hose connector breaking off', and "Radiator leaks After 17 01 98 performed". Plaintiff contends that "[t]hese reports reference another 38 vehicles whose upper radiator neck fractured. Two of these reports were generated from American vehicles, one details the defect in a series of Canadian vehicles, and one details the defect in vehicles shipped to Hong Kong. Suspiciously, other than these two 'Hotline' reports, BMW AG has produced nothing from outside the United States, despite the fact that the United States comprises a minority of BMW AG's total sales." Rpl. at 3-4.
(3) Exhibit 3 contains BMW lab reports. Plaintiff contends that these reports show "that in 1997 BMW tested the product and found that the radiator neck was cracking as a result of the 'brittleness of the material'." Rpl. at 4.
(4) Exhibit 4 is a copy of November 1997 test results regarding "Breaking of the radiator connection pipe". According to plaintiff, this attachment establishes "that BMW knew, and continues to know, of individuals who have been injured as a result of the breaking radiator neck. Four of these injuries occurred before Mr. Croskey; five occurred after." Rpl. at 4.
ii. Conclusion
According to plaintiff, "[a]t the January 5, 2005 status conference with Judge Edmunds, [he] requested that this Court re-open discovery and adjourn the trial date to enable [him] to obtain additional documents regarding the radiator neck at issue." Pl. Suppl Br. 2. On January 10, 2004, in response to Judge Edmunds' extension of the discovery deadline and trial date, I entered an order requesting that the parties file supplemental briefs regarding the impact of Judge Edmunds' order, if any, on the instant motion to compel. Specifically, I asked plaintiff to expand on his argument that the documents produced in accordance with my December 10, 2003, order justify production of documents within a wider time frame.
On January 17, 2005, plaintiff filed a supplemental brief. (Doc. Ent. 98 [Pl. Supp. Br. 2]). He argues that "[w]ith discovery now continuing, this Court has discretion to expand the scope of its previously entered discovery order[,]" and "[t]he discovery obtained to date justifies the production of pre-1995 documents." On January 24, 2005, defendant filed a supplemental brief. (Doc. Ent. 112 [Df. Supp. Br. 2]).
Attached to plaintiff's supplemental brief are Exhibit 5 (portions of the Dec. 17, 2004, deposition of Axel Temmesfeld); Exhibit 6 (BMW lab reports); and Exhibit 7 (portions of the Feb. 24, 2004, deposition of Peter Baur). On January 18, 2005, plaintiff filed a supplemental exhibit 5. (Doc. Ent. 101).
I agree with plaintiff that I have discretion to expand the scope of my December 10, 2003, order. Pl. Supp. Br. 2; Apostolic Pentecostal Church v. Colbert, 169 F.3d 409, 416 (6th Cir. 1999) ("Because the scope of discovery is a matter usually committed to the district court's sound discretion, see Theunissen v. Matthews, 935 F.2d 1454, 1465 (6th Cir. 1991), we hold that the trial court's decision to extend discovery was not erroneous."). However, I conclude that this is not the central issue before the Court. It may well be that "Judge Edmunds re-opened discovery in part to enable [p]laintiff to obtain additional documents necessary to ensure that all relevant material was before the trier of fact." Pl. Supp. Br. 2. However, as plaintiff himself argues, Judge Edmunds' extension of discovery "removed any procedural barriers to the production of documents that would otherwise be discoverable in this litigation." Pl. Supp. Br. 2 (emphasis added). As I stated in my February 18, 2005, order, Judge Edmunds' January 6, 2005, extension of discovery until May 1, 2005, does not erase the prior orders of this Court. Therefore, the time limitation of my December 10, 2003, order is still in effect.
I am inclined to construe the instant motion as a renewed motion to compel. Such treatment is supported by plaintiff's characterization of the instant motion as "moving for additional discovery." Pl. Supp. Br. 2. Therefore, the central issue before the Court is whether I should expand the limitation(s) imposed by my December 10, 2003, order.
Therefore, I need not address BMW's reliance on Venture Funding Ltd. v. United States, 190 F.R.D. 209, 212-213 (E.D. Mich. 1999) (Duggan, J.) ("[p]laintiff cannot escape the ten day requirement simply by phrasing its objection in terms of a motion for reconsideration. To hold otherwise would allow parties to escape the mandates of § 636 and Local Rule 72.1 simply by creatively renaming their objections as motions for reconsideration."). Rsp. at 7.
I agree with plaintiff that "[t]he discovery obtained to date justifies the production of pre-1995 documents." Plaintiff claims that the QCI's already produced "show that as early as 1995, service tech[nician]s from across the country were writing to BMW NA and reporting that they were constantly seeing radiator necks failing." Pl. Supp. Br. 2 at 3. Apparently the radiator at issue was installed as early as 1986. Pl. Supp. Br. 2 at 3-4, Ex. 5 (Temmesfeld Dec. 17, 2004, deposition at 171-172). I am particularly persuaded by plaintiff's statements that "[l]ogically, older BMW's would have failed before 1995," and "[t]he most obvious explanation for why post-1995 QCI's do not reference older BMW's is that older vehicles were out of warranty and were much less likely to be repaired at BMW authorized dealers, who would then be in a position to report the problems to BMW." Pl. Supp. Br. 2 at 4. Apparently, BMW NA is provided with information about repair work by a dealer if the work is done under warranty. Pl. Supp. Br. 2 Ex. 7. As plaintiff argues, he "requires pre-1995 QCI's to prove both that BMW had earlier notice of the problem and that the problem is larger than BMW currently admits." Pl. Supp. Br. 2 at 4.
My conclusion is unchanged by plaintiff's admission that some of the QCI's produced related to pre-1995 vehicles. Pl. Supp. Br. 2 at 4.
Also, plaintiff contends that "the QCI's produced show that by July 5, 1995, BMW NA already had the 'subject under observation[.]" As plaintiff states, "[i]t is reasonable to conclude that BMW had more than two complaints in hand before putting this problem 'under observation'." Additionally, plaintiff contends that Temmesfeld "testified that he based his opinions on documents which were created prior to 1995[,]" and that plaintiff "is entitled to review these earlier documents, which are directly relevant to BMW's knowledge at the time of manufacture of the vehicle at issue in this case." Pl. Supp. Br. 2 at 4-5. Plaintiff also contends that "[a]long with referencing documents he did not produce, Temmesfeld also discussed post-1995 1995 documents that reference pre-1995 lab data[,]" and that "[u]ntil [p]laintiff received the post-1995 documents, he had not way to know that pre-1995 documents were both in existence and relevant to his claims." Pl. Supp. Br. 2 at 5. Plaintiff contends that "[t]he post-1995 documents show that BMW had actual notice of the defect[;]" that "BMW now minimizes the defect's prevalence, arguing that [p]laintiff can only show approximately 100 failures in the U.S., out of 7 million vehicles sold worldwide with this radiator between 1986-2000[;]" and that he "is entitled to broader information to prove that BMW had knowledge of more failures than it currently admits to." Pl. Supp. Br. 2 at 6.
In support of this argument, plaintiff cites specific portions of Temmesfeld's deposition. Pl. Supp. Br. 2 at 4-5. Importantly, Temmesfeld mentioned tests performed "three to four years prior to the launch of this product, before it is actually put on the market." (Doc. Ent. 101 p. 10). Also, when asked "[d]id BMW conduct an aging test of the plastic materials used on the end tank of the radiator prior to putting it in to manufacture in 1992[,]" Temmesfeld responded, "[y]es, certainly." (Doc. Ent. 101 p. 53).
In support of this argument, plaintiff cites eight (8) documents dated December 2003, which purportedly discuss testing performed in the early nineties. Pl. Supp. Br. 2 at 5, Ex. 6 (Bates numbered 794-801).
Therefore, plaintiff's renewed motion to compel discovery is granted to the extent it seeks an increase in the time period set forth in the second limitation of my December 10, 2003, order. In the instant motion, plaintiff seeks an order requiring BMW to produce all records responsive to [p]laintiff's [November 15, 2002] request from 1987 through 1995 and from the last date produced to the present time. Mtn. at 3 ¶ 7. In light of plaintiff's explanation that the documents already produced justify production of pre-1995 documents, I conclude that expansion of the time frame set forth in my December 10, 2003, order is appropriate. I further conclude that plaintiff's arguments support an expansion of the time frame as set forth in the instant motion. Therefore, the time period covered by the requests for such items as owner/customer/dealer complaints, field reports, studies, surveys, and investigation, testing, etc., is now limited to January 1, 1987, to the present. BMW has requested that, if I extend the time period set forth in the second limitation of my December 10, 2003, order, I retain the limitations set forth in the first and third limitations. Df. Supp. Br. 2 at 4. This request is granted.
Plaintiff's November 15, 2002, requests for production defined the term "radiator" as "the radiator and/or cooling system in BMW E30 series (models) vehicles manufactured from 1984 to the present." Mtn. Ex. 1 at 3 ¶ C.
d. Plaintiff shall pay the costs associated with the late nature of this discovery request.
Notwithstanding this ruling, I recognize BMW's cost and prejudice concerns. BMW points out that plaintiff has produced his expert witness for deposition (Kasbekar on Dec. 7, 2004) and has taken the deposition of BMW's expert witness (Temmesfeld on Dec. 17, 2004), "who traveled to Michigan from Germany for his testimony." Df. Supp. Br. 2 at 2. Defendant argues that "[b]y waiting until after trial preparations were almost complete to request an adjournment of trial and a reopening of discovery, [p]laintiff unfairly prejudiced BMW by causing a tremendous waste of resources." Df. Supp. Br. 2 at 2-3. BMW argues that "[i]f [p]laintiff's motion is granted, the factual record on which the parties' experts have based their opinions will not be the same as the factual record after discovery is complete[,]" and "[a]s a result of [p]laintiff's delay, [p]laintiff's expert witness must be redeposed, and [p]laintiff will likely request that BMW's expert from Germany also be redeposed." Df. Supp. Br. 2 at 3.
BMW argues that it "is entitled to know how the new documents impact [p]laintiff's expert opinions." Df. Supp. Br. 2 at 3.
BMW requests that Plaintiff "pay all of BMW's costs, including attorneys' fees, in having to repeat discovery procedures that are the result of [p]laintiff's delay in bringing his motion to compel and his motion to adjourn trial. These costs include the preparation for and the redeposition of [p]laintiff's and BMW's experts." Df. Supp. Br. 2 at 4. This request is denied to the extent it relates to plaintiff's motion to adjourn trial, as that motion was not before me.
However, I agree with BMW that "[t]hese expensive proceedings could have been avoided had [p]laintiff utilized the information known to him as of (at the latest) April 30, 2004, to either request the instant discovery or request an adjournment of trial." Df. Supp. Br. 2 at 4. In light of my foregoing conclusion that the instant discovery motion might be denied as untimely (because Judge Edmunds' post-motion extension of discovery does not excuse the late nature of the motion), see Section I.D.1.a, this requested is granted to the extent it relates to the tardiness of the instant motion to compel.
2. Plaintiff's December 22, 2004, request for pre-manufacture test data and subject radiator warranty information is denied without prejudice.
In his December 22, 2004, supplement to his November 23, 2004, motion to compel, plaintiff makes two requests. First, plaintiff requests that the Court "compel BMW to produce its pre-manufacture test data." According to plaintiff, he served defendants with requests for production of documents seeking "all test data concerning the 'end tanks' on radiators similar to the one in the subject vehicle[,]" and BMW "produced some post-manufacture test data[.]" Pl. Supp. Br. at 2.
Plaintiff alleges that at his December 17, 2004, deposition, BMW expert Axel Temmesfeld "testified that BMW conductedextensive pre-manufacturing tests, including 'aging' tests to determine the suitability of the materials used in the end tanks." Plaintiff further alleges that Temmesfeld testified that pre-manufacture tests were conducted in 1983 and that the materials sere periodically retested throughout the 1980s. According to plaintiff, "Mr. Temmesfeld admitted that he relied on those tests to opine that the 'materials used in the end tanks were suitable for the application' and 'studious care' was used to develop the end tanks, including such tests." Pl. Supp. Br. at 2.
Second, plaintiff requests that the Court "compel BMW to produce its warranty information concerning the subject radiator[.]" According to plaintiff, in April 2004 he served plaintiff with requests for production of warranty records regarding end tanks and/or radiators used in certain BMW vehicles and no responsive documents were produced. Pl. Supp. Br. at 2-3. According to plaintiff, aside from registering objections (that the request was overly broad, unduly burdensome, and expensive, and outside of the scope of my December 10, 2003, order), BMW responded; it had attempted a search for responsive documents, "[h]owever, because of the way warranty data is coded, BMW AG [wa]s 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." Pl. Supp. Br. at 3.
According to plaintiff, Temmesfeld testified that "the subject radiator and all 'substantially similar' radiators are not defective[,]" and that "there are millions of BMW vehicles on the road with the same radiator which have performed without incident." Plaintiff claims that "BMW refuses to produce any responsive warranty documents which could determine the veracity of Mr. Temmesfeld's opinion[,]" and "[o]nly BMW has the requested information." Pl. Supp. Br. at 3. Furthermore, plaintiff maintains that this request for discovery is not barred by my December 10, 2003, order and that the manner by which warranty data is coded "does not alleviate BMW's obligations to produce responsive records." Pl. Supp. Br. at 3-4.
Apparently, plaintiff is willing to sift through responsive radiator warranty records, because he states: "If BMW does not want to review such records to determine whether any are specifically identical to the radiator end tank rupture which occurred in Mr. Croskey's incident, then Plaintiff's review can make that determination." In that vein, plaintiff contends that he "has already discovered over 100 virtually identical end tank ruptures and a dozen or so burn injuries resulting from the defective end tanks." Pl. Supp. Br. at 4.
At the conclusion of his December 22, 2004, supplement, plaintiff requests an order compelling production of "these two additional categories of the requested materials." Pl. Supp. Br. at 4 (emphasis added). Although I acknowledge that the impetus for plaintiff's supplement was the December 17, 2004, deposition of Temmesfeld, the intent of my invitation for supplemental briefs was to replace oral argument and not to add to the existing motion. Furthermore, even though plaintiff alleges these "previous discovery requests" may be "related to the instant motion[,]" Pl. Supp. Br. at 1, BMW should be permitted to respond to plaintiff's justification for production of these additional categories of material. Therefore, plaintiff's request for pre-manufacture test data and subject radiator warranty information is denied without prejudice. If plaintiff files a separate motion regarding these requests, the parties should engage in the briefing schedule provided by E.D. Mich. LR 7.1.
My conclusion is unchanged by BMW's argument that "[p]laintiff's claim that he first requested warranty records in April 2004 is contradicted by his first document request made in the fall of 2002, which included a demand for warranty documents." Df. Supp. Br. at 2. Although this statement appears to have been made in response to the second of plaintiff's supplemental arguments, the most appropriate way for me to address plaintiff's additional requests for material is through the standard briefing schedule.
II. ORDER
In accordance with the foregoing, plaintiff's November 23, 2004, motion to compel discovery (Doc. Ent. 71) is GRANTED to the extent it is a renewed motion to compel seeking expansion of the second limitation in my December 10, 2003, order. Furthermore, plaintiff's supplement to his motion (Doc. Ent. 79) is DENIED WITHOUT PREJUDICE.
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).