Stop automaker discovery abuse: from disorganized 'reading rooms' to massive electronic databases, auto manufacturers have devised creative ways to avoid document production. Don't let them overwhelm you. You can defeat their tactics.

Auto products cases are among the most complex and difficult to litigate. They are made even more challenging by the myriad abuses that manufacturers commit during discovery. By anticipating their transgressions, you can reduce the number of battles you must fight and greatly improve the likelihood of a successful outcome for your client.

Although most examples discussed here arose in automotive defect cases, defendants use abusive discovery tactics in a wide range of cases, including those involving tobacco, pharmaceuticals, medical devices, industrial equipment, and other products.

There are two primary ways to counter discovery abuse before it happens. First, you need to know specifically what to ask for and what documents or information should be disclosed in response. Networking with other attorneys who handle auto products cases is critical.

Second, once you know what you are looking for, you should request both general categories of documents and specific documents identified by subject, date, author, recipients, and/or verbatim content. The general requests are intended to secure full disclosure on the topic at issue, including documents that may not have been disclosed or produced in other cases. The specific requests signal to the manufacturer that you know what has been produced in previous litigation, which may encourage the defense to be more forthcoming in your case.

Of course, no matter how well you craft your requests, automakers are likely to commit discovery abuses. The following are some of the more common offenses.

Reading rooms

For years, manufacturers have attempted to meet their discovery obligations on particular topics by creating "reading rooms" in which they deposit hundreds of boxes containing hundreds of thousands--sometimes millions--of pages of material. The overwhelming majority of the documents are, not surprisingly, completely irrelevant in any particular case.

Defendants frequently justify the use of reading rooms on the basis of Federal Rule of Civil Procedure 33(d), which provides that "where the answer to an interrogatory may be derived or ascertained from the [responding party's] business records," that party can answer by making those records available for inspection.

Defendants also assert that reading rooms are appropriate under Rule 34, arguing that the rooms not only meet, but exceed, the manufacturer's duty to produce responsive documents. Defendants contend that the plaintiff benefits from this method of production because the rooms provide access to all requested documents and to every other document that might somehow be considered relevant.

However, both rules contain limitations that can be used to combat this "dump truck" response to discovery. Rule 33 (d) imposes two prerequisites for producing records in response to an interrogatory.

First, the responding party must specify the documents from which the information can be obtained with sufficient detail that the requesting party can locate and identify them. Second, even after being given the identity and location of responsive records, the discovering party's burden in finding the answers from those records should be no greater than it would be for the responding party. Rule 34(b) requires that the documents be "label[ed] ... to correspond with the categories in the request" and produced as they are "kept in the usual course of business."

The reading rooms rarely, if ever, conform to these rules. The racks and boxes of documents are never labeled to correspond with the categories identified in the plaintiff's discovery requests but rather have vague titles like "General Engineering."

And while some reading rooms have usable indexes, many do not. For example, Ford asserts that there are no indexes for the documents in its unintended-acceleration and passive-restraints reading rooms. Rather, the company claims that it has document "control files" that contain only the document date, Bates number(s), date added to the reading room, collection in the room, and source person and department in the company.

Notably missing are the documents' authors, recipients, and titles or descriptions. The company has never adequately explained why it would compile a document listing that leaves out the most important information. As one Ford attorney stated under questioning, "I wish I had a good answer for that." (1)

In addition, automakers do not use reading rooms in the usual course of their business of manufacturing cars. When deposing the defendant's engineers regarding their work designing and testing vehicles, ask them how they retrieve the documents they need to do their jobs. Ask them whether they have ever had to retrieve information from a reading room--you'll find that the answer is always "no." (2)

Invariably, company engineers have much easier ways to access the information you want in engineering files or computerized databases. Clearly, the burden on plaintiff counsel in retrieving documents from the reading rooms is significantly greater than the burden on the company's engineers when they access the same information in the usual course of business. Accordingly, the disclosure of reading rooms in response to discovery requests has been criticized. (3)

Further, in most reading rooms the plaintiff attorney is required to fill out a request form to obtain copies of documents. This allows the manufacturer to monitor which documents counsel believes are important. The best way to counter this tactic is to avoid the reading room in the first place. For a fallback strategy, plaintiff counsel should consider either bringing his or her own copier to the reading room or including unnecessary documents on the request forms.

Digital dumping

More recently, manufacturers have moved away from hard-copy reading rooms to online document depositories (virtual reading rooms) and CD-ROM or hard-drive libraries. Perhaps the most well-known online database is the one Ford created in connection with litigation over Ford Explorers and Firestone tires (www.forddocs.com). Housed by a vendor paid by Ford, this 12-million-page database is disclosed in response to virtually any written discovery request in a handling and stability case. However, as Firestone's counsel remarked, it is nothing more than a "disorganized digital warehouse." (4)

When an Indiana court reviewed the propriety of the database, it specifically held that "while the magistrate judge commends Ford for [the "ford-docs"] effort, the fact remains that the creation of the electronic depository does not satisfy Ford's obligations under the Federal Rules of Civil Procedure to respond to the plaintiffs' document requests." (5)

The court found that virtual reading rooms not only inflict the same abuses on plaintiffs as ordinary reading rooms, but they also create new evils. For example, the court was concerned that there was no way for plaintiffs to be sure that they had retrieved all relevant documents because:

* The word search function would not locate all handwritten documents.

* The use of ordinary terms, corporate code words, and abbreviations made it impossible to develop a complete list of interchangeable terms (for example, tread separation, blowout, b/o, b-o, flat, tire incident, and tire accident).

* Once a search had retrieved responsive documents, the plaintiffs would have to review them outside any organizational or analytical framework that could demonstrate how the documents and their authors were related to each other. (6)

As a result, the court held that Ford must either respond to discovery requests with a list of documents from the database identified by Bates number or create a searchable index providing, for each document, the name(s) of author(s) and recipient(s), document date, the department and file in which the document was kept in the ordinary course of business, a general description, and the category to which the document belonged. (7)

The court noted that "the impact of this order is to impose upon Ford the burden of finding responsive documents rather than to impose that burden upon the plaintiffs, a burden which the magistrate judge firmly believes is required by the Federal Rules of Civil Procedure and the interests of justice." (8)

Early in the Ford-Firestone litigation, plaintiff counsel raised the issue of manufacturers invading their work product, given that the "forddocs" depository was housed by a Ford vendor. The court found that "Ford's assurance that it will not have access to any information regarding searches performed on the electronic document depository is sufficient to eliminate this concern." (9) Nevertheless, the plaintiffs were forced to re-raise this concern just three months later. (10) Aside from asking the court to penalize or sanction a manufacturer who engages in this malfeasance, the only way to avoid this problem is for the plaintiff to make a digital copy of the entire database. (11)

Automakers also frequently provide libraries of documents on CD-ROMs or stand-alone hard-drives. For example, in litigation over its Expedition, Ford produces handling and stability documents on dozens of CDs and electronic stability control documents on a 100-gigabyte hard drive. The same problems that plaintiffs face in sorting through huge online databases also apply to these media.

Quantity, not quality

In asserting that they have complied with their discovery obligations, automakers often cite the volume of materials they have produced. However, the discovery rules speak only about responsive information, not the number of documents that are produced. As the magistrate judge stated in the Firestone litigation:

   Unfortunately for Ford, the Federal Rules
   of Civil Procedure ... require more. Regardless
   of the volume of responsive documents
   Ford has produced, if it has not produced
   all of the responsive documents in its
   possession or control, and identified each
   document as responsive to a particular request
   or requests, then it has not satisfied its
   obligation to the plaintiffs. (12)

Do not accept a manufacturer's argument that it has complied with its discovery obligations because it has produced large volumes of materials. A million irrelevant documents do not constitute compliance. Insist on disclosure of all responsive documents.

Claims of privilege

Automakers often use invalid assertions of privilege to avoid disclosing relevant materials. For example, in seat back cases against General Motors (GM), two critical documents are the "litigation study" and the "Toth memo." In the litigation study, made at the request of GM's engineers, the company's attorneys reviewed its litigation files to evaluate and improve the safety of vehicle seat backs. (13) Similarly, the Toth memo, created by GM attorney Gary Toth, details problems with the positions GM asserted in defending seat back cases, recommends ways to improve seat back design and performance, and suggests how GM should protect itself against lawsuits. (14)

In response to discovery requests for these two documents, the company usually asserts that they are protected by the attorney-client privilege and the work-product doctrine, even though several courts have held that they are not privileged. (15) GM has been successful in resisting disclosure of these documents, in large part because most of the orders finding the privileges to be nonexistent or to have been waived are unpublished. Here again, information-sharing among plaintiff attorneys is invaluable.

Document retention policies

A common discovery response from automakers, particularly with older vehicles, is that responsive documents have been destroyed in accordance with the company's document retention policy. Insist that the manufacturer produce its document retention policy, as well as any suspension orders, to evaluate the propriety of this claim.

For example, many document retention policies state that the retention period is extended indefinitely when the records might be needed for litigation, whereas suspension orders require the preservation of documents notwithstanding the usual policy. When records are destroyed in violation of the document retention policy or suspension order, or when a clearly inadequate retention policy is used to justify the destruction of records, the plaintiff should make a claim for spoliation of evidence. (16)

Diligent searches

Another discovery response frequently encountered in automotive litigation is the automaker's claim that despite a diligent search, it could not locate any responsive records. However, this response does not deny that responsive records exist and gives the manufacturer wiggle room to use to its advantage during both discovery and trial. Automakers also seldom identify the nature or extent of their searches.

Plaintiff counsel should demand that the automaker specifically identify searches that were performed and commit to the nonexistence of responsive records. (17)

A similar concern arises when the plaintiff seeks information contained on the manufacturer's in-house databases. An automaker can easily manipulate the results of a computer search because computers return responsive information only when inquiries are properly formatted. While courts are reluctant to give plaintiff counsel free access to a company's computer system, they have been willing to let counsel be present and supervise the searches when they are performed. (18)

In the same vein as the vague claim of diligent searching is the use of boilerplate objections, including relevance, vagueness, overbreadth, undue burden, and others. A party asserting an objection to discovery is required to specifically state why the request is objectionable. (19) Insist that the manufacturer specifically state whether any materials have been withheld based on the objection (s) and what the basis is for each objection.

Withholding documents

Defendants make a special effort to hold back certain kinds of documents, or to respond to discovery with documents that don't quite match the request. Watch out for these traps.

Compliance documents. Beware the manufacturer whose response to a request for testing materials indicates that the company will produce all "compliance" tests. This response will produce only the tests that demonstrate that the vehicle complies with federal motor vehicle safety standards. However, a manufacturer usually conducts a number of developmental tests on both prototype and production-level vehicles before the compliance tests. Request both prototype and production-level vehicle developmental tests, as they can reveal product failures and design issues that the company was working to address.

In addition, the compliance/developmental distinction is sometimes used to conceal testing failures. For example, a 1972 Ford memo states that when a test intended for compliance purposes fails in any respect, the test report is "to be issued as a development report." The memo also indicates that Ford's body-testing department went one step further: When a product fails in a compliance test, the results are communicated verbally to the responsible design department and the test is "cancelled officially ... but no reason [is] given." (20)

And testing failures do not always result in design changes. Because of testing variability, one product sample may fail a test while an identical sample passes. The 1972 Ford memo recognizes this fact, stating that additional samples "with no corrective action" are usually run "to see if a 'pass' can be achieved," although the memo concedes that "this is a somewhat questionable procedure." (21)

Although an automaker is required to certify that every vehicle meets federal standards, there is no requirement that, after a testing failure, the manufacturer must alter a design before repeating the test. Therefore, a manufacturer with a successful test in hand can assert that the model complies with the standard, despite prior testing failures. Always demand that the manufacturer produce not only the compliance documentation, but also all developmental work.

Third-party documents. Manufacturers have also withheld materials generated by third parties. For example, Ford's counsel has been chastised for failing to disclose rollover testing of its vehicles conducted by third-party contractor Autoliv. (22)

The third-party documents most commonly withheld are those produced by component suppliers. The manufacturer usually argues either that the documents are subject to a confidentiality agreement between it and the supplier or that the documents were created by, belong to, and are in the possession of the supplier rather than the manufacturer. This claim is invalid for a couple of reasons.

First, the discovery rules do not exempt materials from disclosure merely because they are subject to a confidentiality agreement. In fact, the availability of a protective order under Rule 26(c)(7) specifically addresses any concern about turning over trade secret or proprietary information.

Second, Rule 34(a) allows a party to discover any materials that are in the "possession, custody, or control" of the responding party. The contract between the component supplier and the manufacturer will usually state that the manufacturer shall have access to any documents related to the component. When deposing the automaker's engineers, ask them whether they ever refer to the supplier's documents and how they obtain them. The usual answer is "We just ask for them."

Documents on similar vehicles. Evidence related to events that occurred in substantially similar vehicles under substantially similar circumstances is among the most powerful proof of a defect that you can present to the jury. (23) To minimize such evidence, manufacturers often seek to limit their discovery responses to the specific model and year of the vehicle involved in the case.

This limitation has been held to be improper. (24) Insist on disclosure of all materials related to similar model-year vehicles and vehicles produced on the same platform but sold as other makes and models.

Stonewalling and other discovery abuses are common during litigation against automakers and other product manufacturers. However, by anticipating such tactics, plaintiff lawyers can neutralize and defeat them. (25)

Notes

(1.) Hrg. Transc. Pl.'s Mot. for Sanctions, Selman v. Ford Motor Co., No. PB-C-94-474 (E.D. Ark. Apr. 26, 1996).

(2.) However, in-house "expert" engineers who work with the company's legal department will frequently state that they have, in fact, attempted to retrieve documents from the reading rooms. When pressed, they will usually admit that they could have, or did, readily access relevant information from the sources where it is stored in the usual course of business.

(3.) Fed. R. Civ. P. 33(c) advisory comm. n. to 1980 amend. (a response that directs the party propounding the discovery request to a mass of business records is an "abuse" unless that party has "the same direct and economical access that is available to the [responding] party"); see also Am. Rockwool, Inc. v. Owens-Corning Fiberglas Corp., 109 F.R.D. 263, 266 (E.D.N.C. 1985) ("directing the opposing party to an undifferentiated mass of records is not a suitable response to a legitimate request for discovery"); Sabel v. Mead Johnson & Co., 110 F.R.D. 553, 555-57 (D. Mass. 1986); Bishop v. Gen. Motors Corp., 1995 WL 886841, at *2 n. 2 (E.D. Okla. Sept. 6, 1995); but see Steenbergen v. Ford Motor Co., 814 S.W.2d 755, 758-59 (Tex. App. 1991).

(4.) Memo. in Support of Bridgestone/Firestone, Inc.'s Mot. to Compel Prod. Docs. by Ford Motor Co. in Response to First Set of Reqs. 22, In re Bridgestone/Firestone, Inc., ATX, ATXII & Wilderness Tires Prods. Liab. Litig., No. IP 00-9373-C-B/S, MDL No. 1373 (S.D. Ind. Sept. 28, 2001), http://207.41.16.152/FIRESTONE/BF_DOCS/ 93731668.PDF (last accessed Sept. 22, 2006).

(5.) Or. Regarding Doc. Prod. 3, In re Bridgestone/Firestone, Inc., No. IP 00-9373-C-B/S (Mar. 15, 2001), www.insd.uscourts.gov/Firestone/ default.htm (last accessed Sept. 22, 2006).

(6.) Id. at 3-4.

(7.) Id. at 1-2, 4-5. The court rejected Ford's proposal that the plaintiffs use the database search function to identify responsive documents. Id. at 3-4.

(8.) Id. at 4; see also Hrg. Mot. to Compel 81-83, Piles v. Ford Motor Co., No. 2:00-CN-204 (E.D. Tex. June 14, 2001).

(9.) Or. Regarding Doc. Prod., supra n. 5, at 5.

(10.) Brief in Support of Pls.' Mot. to Compel Prod. Doc. by Ford Motor Co. 6, In re Bridgestone/Firestone, Inc., No. IP 00-9373-C-B/S (June 13, 2001).

(11.) Or. Regarding Doc. Prod., supra n. 5, at 5.

(12.) Entry on Pls.' Mot. to Compel 1, In re Bridgestone/Firestone, Inc., No. IP 00-9373-C-B/S (Dec. 3, 2001), www.insd.uscourts.gov/Firestone/ default.htm (last accessed Sept. 22, 2006).

(13.) See Buongiovanni v. Gen. Motors Corp., 31 Pa. D. & C.4th 475 (Pa. Com. Pleas 1996).

(14.) Leibd v. Gen. Motors Corp., 646N.W.2d 179, 181-82, 184-85 (Mich. App. 2002).

(15.) See e.g. Buongiovanni, 31 Pa. D. & C.4th at 480 (no privilege because litigation study was not created in anticipation of litigation, but to improve safety); Leibel v. G.M.C., 2002 WL 31953810 (Mich. App. Dec. 13, 2002) (per curiam) (privilege attached to Toth memo was waived by GM's counsel).

(16.) See e.g. DaimlerChrysler Motors v. Bill Davis Racing, Inc., 2005 WL 3502172, at *2-3 (E.D. Mich. Dec. 22, 2005).

(17.) For a way to achieve this goal, see Mark Kosieradzki, It's All in the Documents, TRIAL 36 (July 2005).

(18.) Or. Regarding Discovery Through Access to Computer Databases, Svoboda v. Mosey Oldsmobile, Inc., No. 90-053353 (Tex. Harris Co. Dist. Oct. 9, 1992); but see In re Ford Motor Co., 124 S.W.3d 147 (Tex. 2003) (per curiam).

(19.) Roesbergv. Johns-Manville Corp., 85 F.R.D. 292, 296-97 (E.D. Pa. 1980).

(20.) Memo. from F.J. Finkenauer Jr., Manager, Ford Body Testing Dept., to G.J. Lawton, Documentation of Test Results Relating to FMVSS Requirements 2 (Nov. 29, 1972) (copy on file with author).

(21.) Id.

(22.) Hrg. Mot. to Compel 49-52, 83-84, Pyles, No. 2:00-CV-204 (June 14, 2001).

(23.) See Tab Turner, Proving Design Defects with Other Similar Incidents Evidence, TRIAL 42 (Mar. 1999).

(24.) See e.g. Malautea v. Suzuki Motor Corp., 148 F.R.D. 362, 366-67 (S.D. Ga. 1991), aff'd, 987 F.2d 1536 (11th Cir. 1993).

(25.) Attorneys engaged in discovery with an automotive manufacturer should arm themselves with a copy of Full Disclosure (Francis H. Hare Jr. et al., Full Disclosure: Combating Stonewalling and Other Discovery Abuses (ATLA Press 1994)). This book is an invaluable resource providing both litigation strategies and legal authority for fighting discovery abuse.