ORDER ON PLAINTIFFS' MOTION TO COMPEL Re: Dkt. Nos. 99, 100, 113, 114

ELIZABETH D. LaPORTE, Magistrate Judge.

On July 28, 2015, Plaintiffs filed a motion to compel production of international warranty claims and soldering instructions. As detailed in this Court's September 2, 2015 Order, the Parties' briefing and argument at the hearing presented an inadequate record, particularly with respect to information relevant to proportionality under Federal Rules of Civil Procedure 26(b)(1) and 26(g)(1)(B)(iii). The Court thus ordered the Parties to file a joint letter addressing the deficiencies identified at the hearing and in the Court's September 2 Order, including a proposal for how the Court should resolve the issue.

In their joint letter, Plaintiffs propose ordering Defendant BP to produce all international warranty claims "in English," although they do not explain whether they mean claims that are entirely or partially in English. In addition, Plaintiffs now seek all warranty claims from Germany, although following the September 1 hearing Plaintiffs initially only requested claims in English. As Germany was by far the largest international market for the solar panels at issue, Plaintiffs in effect seek most of the claims sought in their original motion. Plaintiffs argue that these claims are necessary to prove common defect as almost all the data they have on U.S. sales concerns panels manufactured in Frederick Maryland, rather than any of the other plants. However, Defendant responds that it "do[es] not contend that only panels produced in particular plants are potentially subject to the junction box failure mode alleged in plaintiffs' second amended complaint." Moreover, the data cited by Plaintiff indicates that over 90% of the panels sold in the United States and thus the vast majority of the panels at issue in this litigation were manufactured at the Frederick plant, for which Plaintiffs acknowledge they have sufficient data for statistically significant proof of common defect.

Defendant BP proposes instead that it be ordered to produce all international warranty claims for the period up to 2006, stored in a database called CoMa,1 that can be captured using the existing search protocol of English search terms. These claims are primarily relevant to when Defendant had notice of the alleged defect, which was one of the main reasons Plaintiffs relied upon in seeking international data in their motion. However, BP still fails to provide a reliable basis for the Court to apply the proportionality factors. For example, BP does not state how many international warranty claims are at issue, the approximate number of claims that are in English and the extent to which foreign language is used in foreign claims, nor did BP conduct sampling of the data from which to extrapolate that information.

As previously stated, this lack of specific information makes rendering a decision difficult. Nevertheless, provided that Defendant BP unequivocally agrees that it will not argue that the defect alleged by Plaintiffs is only tied to particular manufacturing plants, or that the effect of the alleged defect varies based on the plant of manufacture, or make similar arguments tied to the plant of manufacture, Plaintiffs do not have a sufficient need for additional evidence relevant to common defect to outweigh the burden of additional production of all German claims, as Plaintiffs now request. The Parties should agree on a stipulation to be filed with the Court to that effect.

Accordingly, BP is ordered to produce: (1) all non-United States warranty claims recorded in its warranty databases for the period up to 2006 that can be captured using the existing search protocol worked out between the Parties without translating that protocol into other languages (whether or not the claims include any information in languages besides English), and (2) all claims from the two foreign English-speaking countries where the panels were sold, the United Kingdom and Australia,2 that can be captured using the existing search protocol for the entire time period relevant to the complaint, which will not likely impose any translation burden3

IT IS SO ORDERED.