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Taber v. Ford Motor Co.

United States District Court, W.D. Missouri, Western Division

September 29, 2017

STEVEN TABER, and RENE TABER, Plaintiffs,
v.
FORD MOTOR COMPANY, Defendant.

          ORDER

          SARAH W. HAYS UNITED STATES MAGISTRATE JUDGE

         I. FACTUAL AND PROCEDURAL BACKGROUND

         Plaintiffs Steven and Rene Taber filed suit against Ford Motor Company as the result of an accident occurring on July 8, 2014, when the 1996 Ford Ranger Mr. Taber was driving was involved in a frontal offset collision with another vehicle. Plaintiffs allege that Mr. Taber sustained permanent injuries as the result of the failure of his airbag to deploy and as the result of defects in the Ranger's body shell, driver's restraint system including the seatbelt, airbag and sensing system and associated component parts. The complaint sets forth causes of action for product liability (strict liability), product liability (negligence), breach of warranty, failure to warn, loss of consortium and punitive damages. (Doc. #43)

         Pending before the Court is Plaintiffs' Motion to Compel Ford's Responses to Plaintiffs' Request for Production and Plaintiffs' Rule 30(b)(6) Topics[1], doc #48, and a supplemental motion to compel, doc. #88, arising out of various discovery disputes which have been under discussion with the Court since November 10, 2016. Despite two discovery conferences on November 10, 2016 and January 12, 2017, which were held pursuant to Local Rule 37.1(a)(2), the parties were not able to resolve all discovery issues. Therefore, on January 18, 2017, an initialmotion to compel was filed, doc. #48. However, supplemental briefing[2] and further conferences[3] with the Court have narrowed the dispute to two main issues: whether the attorney-client and/or work product privilege prevents disclosure of 1) certain documents involving other similar incidents (“OSI”) and 2) suspension orders.

         II. OTHER SIMILAR INCIDENTS (OSI)

         A. Background of the OSI Discovery Dispute

         Plaintiffs requested other similar incidents through three document requests pursuant to Federal Rule of Civil Procedure 34:

Request No. 8:
Identify by case name, date and location all field incidents that Ford has become aware of that relate to non-deployment in moderate to severe frontal impact crash events where serious occupant injuries have resulted.
Request No. 10:
Provide all documents which pertain to failure of the driver frontal impact airbag to deploy during frontal crashes where deployment was expected, based on field performance and/or complaints from consumers or government agencies.
Request No. 11:
All documents related to incidents of any Ford Ranger and related vehicles' (as agreed by the parties) airbag system non-deployment, including, but not limited to:
(a) Consumer complaints, letters, memos, and e-mails (including those from fleet operators);
(b.) Field reports, including dealer service reports;
(c.) Third-party arbitration proceedings;
(d.) Complaints filed with a Court of law;
(e.) Reports to or by any governmental agencies;
(f.) Internal memoranda, reports or summaries of any kind involving property damage or injuries; and
(g.) Photographs of injuries or property damage.

(Doc. #49-2)

         The request for production of documents at issue was served by plaintiffs on Ford on September 16, 2016. (Doc. #49-2) Defendant's response dated October 17, 2016, was attached as Exhibit A to defendant's response to the motion to compel. (Doc. #75-1) There was no claim of privilege asserted in Ford's October 17, 2016, response to document requests 8, 10 and 11. (Doc. # 75-1) Plaintiffs' motion to compel seeks all responsive documents to the above-stated requests for production. In opposing plaintiffs' motion to compel OSI material, defendant contends that plaintiffs have provided no support for their claim that defendant has failed to provide OSI material. According to Ford:

Plaintiffs have not identified a single “other incident” document that Ford has failed to produce. To the contrary, pursuant to extensive meet-and-confer efforts, including a conference with the Court, Ford agreed to produce thousands of documents from Ford's lawsuit and claim files, each containing case specific information, to resolve discovery issues regarding Ford's other incident production. Ford produced the documents in those open and closed lawsuit/claim files upon which the parties agreed-so there is nothing more to compel. See Ex. O[4], pp. 11-19. Ford's substantial and voluminous “other incident” document production is complete. Plaintiffs' Motion is based on pure speculation and should be denied.

(Doc. #75 at 8-9; footnotes omitted) Further, in opposing plaintiffs' request that a Rule 30(b)(6) deponent be compelled to testify as to other similar incidents, defendant contended a deposition was unnecessary as the witness would only be able to “parrot the very documents Ford has produced to plaintiffs.” (Doc. #75 at 17)

         In response to Ford's opposition to the motion to compel, plaintiffs filed reply suggestions on March 8, 2017, contending that Ford's production of OSI material had been fragmented, shuffled and incomplete. (Doc. #78 at 6) Further, plaintiffs were concerned by defendant's use of language stating that documents were being produced “if available” and if “non-privileged.” (Doc. #78 at 6) Plaintiffs' reply suggestions attached a privilege log filed by Ford in another case to demonstrate that if Ford was claiming some of its documents were privileged, it was aware of its legal obligations to file a privilege log. (Doc. #78-4) As of March 8, 2017, the Court can find no assertion by defendant that any of the OSI documents responsive to plaintiffs' request were privileged.

         The Court held a further discovery conference with the parties on March 16, 2017, and as of that date Ford had still not made any claim of privilege with respect to the OSI information sought by plaintiffs in the three document requests at issue nor had any privilege log been filed with regard to OSI material. During the March 16, 2017 conference, it became clear that Ford had reviewed only its open and closed files and not those of its outside counsel. (Doc. #83 at 63:21-24) Ford's counsel took the position it was not prepared, at that conference, to address the issue of its obligation to review outside counsel's files for relevant information. (Doc. #83 at 86-87) Ford's counsel indicated that she had not looked into Ford's obligation to review outside counsel's files for information relevant to the document requests because she thought there was an agreement that Ford need only examine its open and closed files.

         Other than a footnote where Ford represented it had reviewed its open and closed files, see doc. #75 at n. 6, there was no evidence presented of any agreement between plaintiffs and defense counsel that limited Ford's obligation to review other files under its “control” within the meaning of Federal Rules of Civil Procedure 26(a)(1)(A)(ii) and 34(a)(1). Plaintiffs took the position at the March 16, 2017 conference that defendant's legal obligations were clear and that Ford was required to review all files in their control for relevant material.[5] (Doc. #83 at 89) In subsequent briefing, Ford did not contend that it was not required to produce relevant documents from outside counsel's files, and in fact, one of the two privilege logs before the Court involves OSI material found in outside counsel's files.

         Following the March 16 hearing, Ford produced two sets of privilege logs pertaining to OSI material. The first set of privilege logs for OSI material was dated March 22, 2017, six days after the conference with the Court. (Doc. #84-7) A modified version entitled Second Supplemental Privilege Log dated March 29, 2017, was submitted on a flash drive, along with the documents to be reviewed in camera. This set of privilege logs will be referred to as the March 29, 2017 privilege log. The second set of OSI privilege logs started with a privilege log which was served on plaintiffs on May 19, 2017, a day after the plaintiffs' revised motion to compel was due. (Doc. #90 at 1) This new privilege log pertained to OSI material in the possession of outside counsel. Due to the untimely service of the privilege log, plaintiffs submitted further suggestions in support of their motion to compel and included the privilege log (Pl. Ex. #49) as an exhibit. (Doc. #90; Doc. #90-1) At the June 15, 2017 hearing, defendant stated that item numbers 1 through 8 of the privilege log had just been produced. (Doc. #96 at 8:22-25 to 9:1-11) Defendant then filed a sur-reply and attached a second amended privilege log dated June 20, 2017, which removed the documents referenced at the June 15, 2017 hearing and also inexplicably removed two other sets of photographs which were listed as item numbers 14 and 15 on Exhibit 49. (Doc. #97-1) This second set of privilege logs will be referred to as the June 20, 2017 privilege log. At plaintiffs' request, the Court agreed to review the documents identified in the two OSI privilege logs in camera.

         The documents on each of the two OSI privilege logs are identified by entry log number with columns of information setting forth the bates number of the documents, the date, the document type, the author, the recipient, a description of the document, the basis for the claim of privilege and the claimant's name. For each entry log number on the March 29, 2017 privilege log, Ford is claiming both the attorney-client and work product privileges. Ford is only claiming work product privilege with regard to the June 20, 2017 privilege log pertaining to OSI material obtained from outside counsel. Thus, the Court must first consider the applicable legal standards that govern consideration of the defendant's privilege claims.

         B. Applicable Legal Standards for the Privilege Claims

         This is a diversity case and, therefore, state law applies to resolve the attorney-client privilege claims and federal law governs the work product privilege issues. See Baker v. Gen. Motors Corp., 209 F.3d 1051, 1053 (8th Cir. 2000). In recognition that it bears the burden of establishing the existence of the privilege claims, Ford has produced the above mentioned privilege log. While the rules do not specify what information must be provided in a privilege log, courts have generally held that the privilege log should set forth specific facts which if taken as true establish the elements of the privilege for each document for which the privilege is claimed. See Fid. Nat'l. Title Ins. Co. v. Captiva Lake Invs., LLC, No. 4:10-CV-1890-CEJ, 2012 WL 3562207, at *3 (E.D. Mo. Aug. 17, 2012). Thus, it is important that the privilege log contain a brief description or summary of the contents of the document, the date the document was prepared, the person or persons who prepared the document, the person to whom the document was directed and for whom the document was prepared, the purpose in preparing the document, what privileges are asserted for each document and how each element of the privilege is met for that document. See Highmark, Inc. v. Nw. Pipe Co., No. CIV 10-5089-JLV, 2012 WL 997007, at *5 (D.S.D. Mar. 23, 2012).

         1. Elements of ...


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