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Unlocking the door to automaker databases: using the discovery rules and helpful case law, you can gain valuable electronic information that defendants would prefer you never see.

Anyone who visits Dearborn, Michigan, will find the blue Ford Motor Co. logo prominently displayed on the company's world headquarters, the Henry Ford Museum, and many other buildings and landmarks in the area. But the most complete record of Ford-related documents is hidden--in an unmarked building behind a barbed-wired security gate with a numerical access code that changes daily.

Inside that nondescript building is the world's most powerful nongovernment computer server, which supports Ford's global intranet. This system connects the computers of more than 200,000 of Ford's 300,000 employees worldwide. The intranet gives them high-speed access to engineering and other data; before this information was available online, researchers would have had to pore over reams of documents at the company's storage facility in Highland Park, Michigan.

In the business world, Ford boasts about its intranet and employees' ease of access to company information. However, when Ford's data are requested by plaintiffs in litigation, access to the server is hindered by the barbed wire, security codes, and false claims of privilege crafted by the company's office of general counsel.

According to WebMaster magazine, the database developers at Ford
 took care to design the intranet so that it
 would integrate easily with existing applications
 available on most desktops.... Users can
 pull employee contact information from the
 company phone book and meeting calendars
 and other information from multiple company
 databases, and they can access online libraries
 and a Web Center of Excellence, which contains
 information on best practices, standards,
 recommendations, and lessons learned....
 But the intranet's real strength is its ability to
 help users gather a wealth of information that
 would previously require several phone calls
 or a library visit. (1)


Most automakers' documents are stored as electronic files in a computerized database, or are identified in computerized indexes that can be accessed with search engines typically used on the public Internet. Although the federal discovery and evidence rules, as well as case law, have extended discovery to computer databases kept in the ordinary course of business, Ford and other automakers continue to unlawfully deny litigants access to these systems.

The courts have condemned Ford's discovery abuse tactics for at least 30 years. The story is told in part in Parrett v. Ford Motor Co., in which a federal district court held that Ford's responses to discovery were false and evasive. (2)

General Motors Corp. has a similar track record of discovery abuse. For example, in a 1993 case, the plaintiff was granted a new trial after GM failed to produce 135 customer complaints that had been sent to the National Highway Traffic Safety Administration (NHTSA). GM was found to have committed intentional discovery violations. (3)

You can fight these defense tactics. By having a good idea of what you are looking for before you set out on your quest, and by understanding how your opponents' information systems are organized, you can find the information your client is entitled to have.

Where the facts are

Sophisticated manufacturers strive to make information easily accessible to their employees. They often use intranets to let teams of employees work around the clock to develop and test new products or analyze problems with existing ones. Databases are useful tools for quickly identifying a product defect, the affected products' location, and the owners who may need to be contacted as part of a recall. (4) Ford has learned to "slice and dice" databases more finely, so action is taken earlier to cure latent defects.

Automakers' databases are also used extensively in product engineering. Many manufacturers have computer programs for three-dimensional modeling and drafting of a vehicle's surface, interior and structural components, and mechanical components. Intranets allow this software to be used by the manufacturer's engineers worldwide. Engineering documents are archived and can be searched in these databases. (5)

Manufacturers also use databases maintained by NHTSA and other government agencies to analyze problems with their products that customers report to those agencies. Likewise, manufacturers often use internal databases to track safety problems reported by customers to government agencies and to assist in compliance with federal regulations. (6) Marketing departments sometimes maintain databases that are useful in benchmarking--the study of competitors' products--and production. (7)

Auto manufacturers first began using electronic files in the early 1970s, but some data sources can be traced even further back. Ford and General Motors have never provided a complete list of their electronic files, although several courts have ordered them to do so. However, Ford has acknowledged that it has organized its databases into four categories: automotive, science/technology, business and economics, and reference and research tools. This categorization can make it easier to find critical data such as patent information and "product cycle plans," which detail the history of a product from design through production to termination. Also, you should check the databases for meeting minutes, organizational charts, status reports, engineering reports, and dissections of competitors' products.

Always keep in mind that while your opponent may voluntarily disclose some databases and files, hundreds more may remain hidden; critical historical data are often available only in hard-copy form and must be retrieved manually.

Applying the discovery rules

Manufacturers often describe plaintiffs' requests for access to their computer databases as "fishing expeditions," which they try to defeat with claims of "work product" and "proprietary modes of housing information." In such situations, make clear to the court that you do not seek access to any data that constitute real work product; you merely seek information that is clearly discoverable under long-established rules, case law, and other recognized legal authorities.

The right of access to manufacturers' computer systems is the same as that for all types of discovery: A party is entitled to collect relevant data in the same form as the opposing party maintains it in the ordinary course of its business. The courts have extended the discovery rules to include access to computer systems since the 1970s. (8)

More recently, the Missouri Court of Appeals acknowledged the value of computer databases in discovery in State ex rel. Stolfa v. Ely, in which databases containing incidents of pharmacy liability were deemed discoverable. (9)

The U.S. Supreme Court has indicated its agreement that the law on this point is settled: It denied a petition for certiorari by R.J. Reynolds Tobacco Co., which sought to block plaintiffs' access to a computerized database of the tobacco company's "litigation-related records" compiled by its defense attorneys. (10)

Product manufacturers have also been ordered to open their computerized databases to plaintiffs in unreported cases. (11)

Although manufacturers still consistently argue that databases are immune from discovery in litigation, the Federal Rules of Civil Procedure clearly state otherwise. Rule 26 defines the scope of discoverable materials to include "any matter ... relevant to the claim or defense of any party including the existence, description, nature, custody, condition, and location of any books, documents, or other tangible things and the identity and location of persons having knowledge of any discoverable matter." (12)

Rule 34 specifies that a party may request the production of documents or "other data compilations from which information can be obtained [and] translated, if necessary, by the respondent through detection devices into reasonably usable form...." (13)

The advisory committee that added this passage in 1970 noted that the language "makes clear that Rule 34 applies to electronic data compilations from which information can be obtained only with the use of detection devices." (14)

Since the 1970 amendments, the courts have uniformly held that the discovery rules apply with equal force to electronic records. (15)

Arguments for access

The information is not available anywhere else. In many cases, most of the manufacturer's corporate records either were generated by a computer or have been converted to electronic form in the ordinary course of business. Often, defendants do not dispute that it would be extremely difficult, if not impossible, to physically locate hard copies of all relevant information, which is typically voluminous and complex. The organizational structure of the defendant's various divisions and affiliates is often quite complicated and may have changed over time, and the people responsible for crucial decisions may have changed jobs or left the company.

Also, computerized databases may contain important information--such as design, simulation, and modeling programs that demonstrate how a vehicle or its components perform in crash situations--that appears neither on hard copies nor on computer printouts.

The manufacturer routinely uses the databases. Show that the defendant's employees frequently use the relevant databases for the same reason that the plaintiffs seek access to them: to acquire information about product safety. This supports your contention that most of the documents in the databases were created in the ordinary course of business and are not privileged.

The manufacturer's witnesses rely on information in the databases. In some cases, the manufacturer will hire an expert to create a database to be used at trial, either as an exhibit or as the foundation for opinion testimony. If the expert is also an employee of the manufacturer, the witness will conduct the very type of search of the company's databases that the plaintiff seeks. The plaintiff is entitled to full access to all information available to the manufacturer's fact and expert witnesses, both to prepare the case-in-chief and to prepare for cross-examination of the manufacturer's witnesses.

Courts have consistently allowed plaintiffs broad discovery into computer-related materials that defendants will rely on at trial. For example, in City of Cleveland v. Cleveland Electric Illuminating Co., a federal district court concluded that whenever expert reports are based on complex data, such as calculations and simulations not disclosed by the reports themselves, discovery of the underlying data is essential to effective cross-examination of the experts at trial. (16)

Similarly, in Fauteck v. Montgomery Ward & Co., the court required the defendant to produce a database storing its personnel records. It had been created to serve as the foundation for the defense expert's trial testimony. (17) Although the defendant argued that the database reflected legal judgments made in the course of its compilation, placing it within the protection of work product immunity, the court found that the materials should be disclosed under Rule 26 "to assure competent cross-examination of trial experts." (18) The court said that if the database compilation process included legal judgments, those judgments could be attacked by an expert witness who relied on them to form his or her opinion.

The discovery rules require a manufacturer to search its databases. Any responding party in a lawsuit has a duty to identify, preserve, and ultimately produce all relevant information. The 1993 amendments to the federal discovery rules established a duty to disclose "a copy of, or a description by category and location of, all documents, data compilations, and tangible things that are in the possession, custody, or control of the party and [that] the disclosing party may use to support its claims or defenses, unless solely for impeachment," (19) including those held in computerized databases.

The manufacturer will almost certainly conduct an exhaustive search to prepare for the litigation. If the manufacturer has established a central document repository, the plaintiffs are entitled to learn through discovery the basis for the selection of the documents that are contained in it.

Allowing the plaintiff access to the databases will not result in prejudice to the manufacturer. As in any other discovery proceeding, the manufacturer can limit the scope of the search to relevant information and assert privilege claims. Privilege logs, in camera rulings, and protective orders can all be used to protect legitimate trade secrets.

The plaintiff's role

A plaintiff's search of a manufacturer's databases can help prevent discovery abuse, a common problem in products liability cases. A search of electronic files can succeed only if it is conducted with the equal participation of the plaintiffs.

Remember that many private-database search engines operate in Web-based formats that most people who use the Internet can operate. Moreover, manuals of the "computer search for dummies" variety can help conduct a step-by-step search of most databases and their operating software. When preparing the search, look for keywords on defendants' documents that you already have. You might also consider hiring an expert to conduct the search.

Failure to obtain all relevant information can be fatal to a products liability suit. If crucial data are not revealed, defense witnesses will hide behind "no recollection" responses or make assertions of fact that cannot be tested. Sometimes, no remedy other than sanctions under Rule 37 will serve the ends of justice. Do not hesitate to demand such a remedy if you believe that important information has been concealed from you.

Although automakers' electronic databases are discoverable, you will have to work hard to ensure that your opponent complies with the rules and the law. These companies embrace technology when it serves their own purposes, but in litigation they prefer to relegate plaintiffs to another chapter in the paper chase. By knowing what you are looking for and where it might be stored in the defendant's electronic files, you can find the crucial piece of information that will turn possible defeat into sweet victory.

RELATED ARTICLE: Making your request.

How you ask for access to an opponent's database is critical. Your request must be specific and relevant to your client's claims, but broad enough to encompass all the electronic data that might help you make your case.

These two examples will probably produce good results:

* "Please provide a true and complete copy of your corporate-records management manual(s)--including indexes and corporate-records schedules--applicable to the development, engineering, design, testing, evaluation, production, assembly, maintenance, repair, replacement, and warranty of the product and/or derivative products."

* "Please provide all documents, including the results of your internal database searches, that identify and describe rollover occurrences involving light trucks and/or derivative vehicles, but not limited to those accessible through any safety-related organization or activity within the company."

--Daniel T. DeFeo

Notes

(1.) Anne Stuart, Under the Hood at Ford, WEBMASTER, June 1997, available at www.cio.com/ archive/webbusiness/060197_ford_content.html (last visited Dec. 30, 2002).

(2.) 52 F.R.D. 120 (W.D. Mo. 1969); see also Rock Island Bank & Trust Co. v. Ford Motor Co., 220 N.W.2d 799 (Mich. Ct. App. 1974); Haumersen v. Ford Motor Co., 257 N.W.2d 7 (Iowa 1977); Rozier v. Ford Motor Co., 573 F.2d 1332 (5th Cir. 1978); Buehler v. Whalen, 374 N.E.2d 460 (Ill. 1978).

(3.) Delvecchio v. Gen. Motors Corp., 625 N.E.2d 1022 (Ill. App. Ct. 1993); see also Carlson v. Gen. Motors Corp., 289 N.E. 2d 439 (Ill. App. Ct. 1972).

(4.) Ford's databases include MORS (Master Owner Relation System) and VOQ (Vehicle Owner Questionnaires, which contain consumer complaints and queries from owners through NHTSA). Ford uses these databases to track consumer complaints and warranty claims related to its vehicles.

(5.) Stuart, supra note 1.

(6.) Supra note 4.

(7.) E.g., CATS (Competition Analysis Teardown System), a Ford Web-based system that supports teardown of competitive vehicles and compares them to current Ford models.

(8.) FED. R. CIV. P. 26, 43; FED R. EVID., cmts.; see also Adams v. Dan River Mills, Inc., 54 F.R.D. 220, 222 (W.D. Va. 1972) (computerized W-2 forms are discoverable even though hard copies have already been produced); Bills v. Kennecott Corp., 108 F.R.D. 459, 461 (D. Utah 1985).

(9.) 875 S.W.2d 579 (Mo. Ct. App. 1994).

(10.) R.J. Reynolds Tobacco Co. v. Minn., 517 U.S. 1222 (1996); State v. Phillip Morris, Inc., No. C-1-94-8565, 1998 WL 257214 (D. Minn. Mar. 7, 1998).

(11.) See, e.g., Skebo v. Ford Motor Co., No. 92VS67183E (Ga., Fulton County Super. Ct. 1992); Assel v. Ford Motor Co., No. CV398-309CC (Mo., Buchanan County Cir. Ct. 1998); Ballard v. Gen. Motors Corp., No. 91-1148-CV-W-8 (W.D. Mo. 1991).

(12.) FED. R. CIV. P. 26(b)(1).

(13.) FED. R. CIV. P. 34(a).

(14.) FED. R. CIV. P. 34(b)(1), advisory committee note.

(15.) See, e.g., Crown Life Ins. Co. v. Craig, 995 F.2d 1376, 1382-83 (7th Cir. 1993); Emerick v. Fenick Indus., 539 F.2d 1379, 1380-81 (5th Cir. 1976); Adams, 54 F.R.D. 220, 222; Williams v. E.I. duPont de Nemours & Co., 119 F.R.D. 648, 650 (W.D. Ky. 1987); Daewoo Elec. Co. v. United States, 650 F. Supp. 1003, 1006 (Ct. Int'l Trade 1986).

(16.) 538 F. Supp. 1257 (N.D. Ohio 1980).

(17.) 91 F.R.D. 393 (N.D. Ill. 1980).

(18.) Id. at 398.

(19.) FED. R. CIV. P. 26(a)(1)(B).

Daniel T. DeFeo practices law in Kansas City, Missouri.
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Date:Feb 1, 2003
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