TERESA J. JAMES, Magistrate Judge.
This product liability case is before the Court on Plaintiffs' Motion to Compel Discovery (ECF No. 65). Plaintiffs request an order, pursuant to Fed. R. Civ. P. 37(a)(1), overruling Defendant Kumho's objections and compelling Kumho to answer Plaintiffs' First Interrogatories and produce documents responsive to Plaintiffs' First Request for Production. As explained below, the motion is granted in part and denied in part.
Plaintiffs allege that on September 12, 2011, in Miami County, Kansas, Plaintiff Megan McKellips, who was 32 weeks pregnant, was riding in a 2001 Ford F-250 pickup truck driven by Jennifer Heisman. Plaintiffs allege that Heisman lost control of the truck when its right front tire suffered a sudden, unexpected, and catastrophic tread and belt separation. The truck left the roadway and rolled over, ejecting Ms. McKellips. She sustained life-threatening injuries and underwent an emergency Caesarean section delivery of her son, who died three hours later. The tire that allegedly separated and caused the accident was a Kumho Road Venture All Terrain ("AT") tire KL78, size LT235/85R16, DOT K2ORYD4A3508, manufactured by Kumho Tire (Vietnam) Co., Ltd. at its Binh Duong plant in Vietnam, during the 35th week of 2008 (hereinafter referred to as the "Subject Tire").
Plaintiffs commenced this action on August 7, 2013, claiming that Defendants defectively designed and manufactured the Subject Tire. In their First Amended Complaint, Plaintiffs allege that the Subject Tire was defective in that it "lack[ed] proper adhesion between the steel belts, and/or between the steel belts and the surrounding materials."
Before the parties began serving their discovery requests, they proposed an agreed upon protective order limiting the disclosure and use of confidential information, but they disagreed on the inclusion of a sharing provision. After a hearing, the Court denied Plaintiffs' request for a sharing provision, finding it a preemptive sharing provision that would essentially allow discovery of Defendants' designated confidential information by as-yet unnamed plaintiffs or potential plaintiffs in other litigation without any court supervision, and without any opportunity for Defendants to object to the disclosure.
On June 26, 2014, Plaintiffs served their First Request for Production and First Interrogatories upon Defendant Kumho Tire Co., Inc. ("Kumho"), consisting of 120 requests for production of documents and 16 interrogatories. On September 5, 2014, Kumho served its Responses and Objections to Plaintiff's First Request for Production (111 pages), and its Answers and Objections to Plaintiffs' First Interrogatories (13 pages). Kumho also produced nearly 500 documents responsive to these discovery requests (149 of which are English translations), but objected to nearly every request. Kumho unilaterally limited the scope of its discovery responses and limited its production to responsive information that it identified as pertaining to "the Subject Tire and the subject model and size tire."
On September 23, 2014, Plaintiffs' counsel sent a five-page "Golden Rule" email to Kumho's counsel pursuant to D. Kan. Rule 37.2, identifying and attempting to resolve what Plaintiffs believed to be deficiencies in Kumho's responses to Plaintiffs' discovery requests. Kumho responded to that email on October 6, 2014. Plaintiffs thereafter made further attempts to confer as required by Fed. R. Civ. P. 37(a) and D. Kan. Rule 37.2, and ultimately filed their Motion to Compel Discovery on November 14, 2014. Kumho filed its Response (ECF No. 68) on December 12, 2014, and Plaintiffs filed their Reply (ECF No. 71) on January 9, 2015.
The Court held a non-evidentiary motion hearing on February 17, 2015 to address issues related to Plaintiffs' Motion to Compel Discovery. Among the issues discussed at length during the hearing were Kumho's trade secret objections to Plaintiffs' discovery requests. Because Kumho asserted one or more trade secret objections of varying degrees to nearly every one of Plaintiffs' Requests for Production, the Court inquired during the hearing whether and to what extent Kumho claimed Plaintiffs' discovery requests sought documents or information warranting such a high level of protection that such documents or information could not safely be disclosed even under the terms of a protective order. Kumho's counsel indicated there are certain "crown jewels" trade secrets that fall into this category.
At the conclusion of the hearing, the Court took Plaintiffs' Motion to Compel Discovery under advisement and ordered Kumho to: (a) serve amended responses to Plaintiffs' discovery requests, identifying those responses/answers for which responsive documents or information may have existed at one time, but which were no longer available at the time of its response/answer due to Kumho's document retention or destruction policy; (b) serve amended responses to Plaintiffs' discovery requests specifically identifying those requests which Kumho contends seek to discover its "crown jewels" trade secrets that could not safely be produced, even under the terms of a protective order; and (c) provide information on the number of subject model tires (Kumho Road Venture AT, APT, and MT)
On February 24, 2015, Kumho served its First Supplemental Responses and Answers, in which it claims that 50 of Plaintiffs' Requests for Production and three Interrogatories seek documents and information that could not safely be produced even under the terms of a protective order.
In its original discovery responses, Kumho asserted three different categories of confidentiality or trade secret objections: (a) objections to discovery requests allegedly seeking production of "highly confidential and proprietary information"; (b) objections to discovery requests allegedly seeking either Kumho's "most secret manufacturing information" or "most secret production information"; and (c) objections to discovery requests seeking Kumho's allegedly "most secret research, development, information, formula, method, technique, or process" that constitute its trade secrets. For the last two categories, Kumho contends this information has a significant economic value and cannot be safely produced even with a protective order in place. Kumho also contends that Plaintiffs have made no showing the requested information is relevant to prove that a defect existed in the Subject Tire
In the First Supplemental Responses and Answers that it served pursuant to the Court's direction, Kumho supplemented its trade secret objections to 50 of Plaintiffs' Requests for Production and three Interrogatories. Kumho stated that information and documents sought by these discovery requests are entitled to "heightened protection because they pertain to skim stock compounds and formulas that constitute [Kumho's] highest level of trade secrets" (the "Heightened Protection Objections"). Although the specific language of these Heightened Protection Objections varies slightly, the following is representative:
Kumho asserted this supplemental Heightened Protection Objection to 34 Requests and three Interrogatories to which it previously objected as seeking its "most secret research and development" trade secrets and to 15 Requests to which it had previously objected only as seeking its most secret production and manufacturing information. Kumho asserted this Heightened Protection Objection to one Request, RFP 84, to which it previously only objected as seeking "highly confidential and proprietary information."
Kumho objects to RFP 2-20, 25, 28, 36, 70-71, 76, 78-79, 82, and Interrogatories 5-6, and 14 on the basis that they seek "highly confidential and proprietary information," without any showing by Plaintiffs of the relevance of this information. Kumho argues the damage caused by producing this information would outweigh any evidentiary value. It claims that this secret information is very valuable not just to it, but also to its competitors, and is not relevant.
"A concern for protecting confidentiality does not equate to privilege."
The Protective Order (ECF No. 43) entered in this case limits the disclosure, dissemination, and use of any confidential research, development, or proprietary business information produced during discovery. The Court further notes that the Protective Order specifically excludes the sharing provision proposed by Plaintiffs, which would have allowed Plaintiffs to share designated confidential information with attorneys representing plaintiffs in other Kumho Road Venture tire tread or defect cases against Defendants.
The Court also notes that Kumho did not include these discovery requests among those identified in its supplemental responses as requiring heightened protection. In light of the protections of the Protective Order, Kumho's objections based on the highly confidential and proprietary nature of the information sought by RFP 2-20, 25, 28, 36, 70-71, 76, 78-79, 82, and Interrogatories 5-6, and 14 are therefore overruled. The Protective Order (ECF No. 43) entered in this case has adequate provisions for the protection of any confidential research, development or proprietary business information produced during discovery.
Kumho objects to RFP 30, 32, 39-47, 51, 55-57, 59-62, and 90 to the extent they seek Kumho's "most secret manufacturing information" or "most secret production information" that:
Kumho did not supplement its responses to RFP 30, 32, 51 and 55-56 to seek heightened trade secret protection. The Court thus considers these objections based solely on Kumho's original objections that the Requests seek Kumho's most secret manufacturing or production information. The Court finds that Kumho has not demonstrated that the information and documents sought by RFP 30 and 32 (number of tires produced), 51 (Subject Tire specifications and blueprints) and 55-56 (Ford evaluations and correspondence) would require the disclosure of secret manufacturing or production information that constitutes a trade secret and that disclosing such information, especially given the protections of the non-sharing Protective Order already entered in the case, would be harmful to Kumho. The specifications and blueprints for the Subject Tire are clearly relevant and materially significant to the claims in this case. Kumho states in its response to RFP 51 that it produced the design drawings and manufacturing specifications for the Subject Tire, and the Cut Measure Drawing and Cut Measure Sheet. Further, with regard to RFP 55-56, as it is likely that any evaluations and correspondence would have been communicated to Ford, this undercuts Kumho's claim that the information is its "most secret" information. Kumho's objections that RFP 30, 32, 51, and 55-56 seek its "most secret manufacturing or production information" are therefore overruled.
Kumho supplemented its original responses and objections to RFP 39-47, 57, 59-62, and 90, asserting its Heightened Protection Objection for Kumho's highest level of trade secrets. For each of these Requests, Kumho supplemented its Response and Objection as follows:
Under Fed. R. Civ. P. 26(b)(1), privileged matter is exempt from discovery.
Kansas recognizes a trade secret privilege, which is embodied in K.S.A. 60-432:
K.S.A. 60-3220(4) defines a "trade secret" as:
Based on its review of Kumho's objections to Plaintiffs' discovery requests, the Court finds that Kumho has not expressly made a claim that the information sought is subject to a trade secret privilege pursuant to Kansas state law. The Court thus finds that Kumho is not asserting a trade secret privilege as recognized under Kansas law, but rather is seeking an order under Fed. R. Civ. P. 26(c)(1)(G).
Under Rule 26(c)(1)(G), the court may, for good cause, issue an order "requiring that a trade secret or other confidential research, development, or commercial information not be revealed or be revealed only in a specified way." When a party seeks such a protective order under Rule 26(c)(1)(G), it "must first establish that the information sought is a trade secret and then demonstrate that its disclosure might be harmful."
Kumho asserts Heightened Protection Objections to RFP 39-47, 57, 59-62, and 90 to the extent that they call for the production of information or documents pertaining to Kumho's "skim stock compounds and formulas"
Upon Kumho's showing that its skim stock compounds and skim stock formulas meet the definition of trade secret, the burden then shifts to Plaintiffs to establish that the disclosure of these trade secrets is relevant and necessary to the action. Plaintiffs state in their Reply (ECF No. 71) that they have not requested discovery of Kumho's skim stock formula, but that their discovery requests are directed only to tires with the same skim stock formula as the Subject Tire. Kumho's supplemented trade secret objections to RFP 39-47, 57, 59-62, and 90 are therefore sustained only to the extent that these requests encompass Kumho's skim stock compounds and/or formulas. Kumho must provide responsive information and produce responsive documents, but may redact from any responsive documents prior to production information that would disclose its skim stock compounds or skim stock formulas.
Kumho's Heightened Protection Objection only identifies Kumho's skim stock compounds and formulas and does not specifically identify any other formula, compound, technique, or process as constituting its trade secrets, which would be entitled to protection beyond the Protective Order. Even after Kumho supplemented its objections and lodged its Heightened Protection Objections, it did not identify any specific trade secrets worthy of non-disclosure, other than its skim stock formula and compounds. To the extent Kumho objects generally to producing trade secrets other than its skim stock formulas and compounds, the Court finds that Kumho has not met its burden to establish that any other particular formula, compound, technique, or process is a trade secret. This includes Kumho's vague references to its "manufacturing processes." Kumho has failed to identify any particular aspect(s) of its manufacturing processes that are unique to it, closely guarded, and, if disclosed, would be valuable to competitors and thus would constitute trade secrets. Kumho fails to convince the Court that its entire tire manufacturing process meets the definition of a trade secret under K.S.A. 60-3220(4). Further, as Plaintiffs are not competitors of Kumho, the Court finds that this other "manufacturing process" information can be adequately protected under the provisions of the non-sharing Protective Order.
Kumho objects to RFP 21-24, 26, 29, 37, 48, 54, 58, 63, 66-69, 72, 74, 83, 85-91, 93, 95-107, 109-120 to the extent they seek Kumho's:
It asserted similar objections to Interrogatories 10-12, objecting that they seek disclosure of information that relates to Kumho's "most secret research and development and to its techniques and processes of tire development and manufacturing formulas and methods," which are not publicly or generally known and constitute trade secrets.
Kumho did not supplement its original responses and objections to RFP 29, 54, 68, 72, and 86-89, and therefore has not sought heightened protection to these Requests. The Court thus rules on the original objections. Upon review of the Requests, the Court finds that Kumho has not demonstrated that the information and documents sought by RFP 29 (tire production numbers), 54 (manufacturing or design defects found) and 68 (tread separation studies and testing), 72 (speed rating), and 86-89 (driver response, effects, risk, and causes of tread separation) require the disclosure of trade secrets or that disclosing such information would be harmful to Kumho, given the protections of the non-sharing Protective Order already entered in the case. Kumho's trade secret objections to RFP 29, 54, 68, 72, and 86-89 are therefore overruled.
Kumho did supplement its original responses and objections to RFP 21-24, 26, 37, 48, 54, 58, 63, 66-67, 69, 74, 83, 85, 90-91, 93, 95-107, 109-120, and Interrogatories 10-12, claiming that these Requests are entitled to heightened protection for Kumho's highest level of trade secrets. Again, the Court finds that Kumho has not identified any particular formula, compound, technique, or process—other than its skim stock formulas and compounds—such that the Court can conclude they are trade secrets requiring protection beyond the Protective Order. Thus, the Court construes Kumho's supplemental responses as objections to the Requests only to the extent that they seek production of information or documents pertaining to Kumho's skim stock compounds and formulas, which Plaintiffs have indicated they are not seeking. Therefore, Kumho's trade secret objections to RFP 21-24, 26, 37, 48, 54, 58, 63, 66-67, 69, 74, 83, 85, 90-91, 93, 95-107, 109-120, and Interrogatories 10-12 are sustained to the extent that any of these Requests seek Kumho's skim stock compounds and formulas. The Court further sustains Kumho's Heightened Protection Objection to RFP 84 (meeting minutes discussing tread separation), to which it previously had only asserted a confidentiality objection, to the extent that it may encompass Kumho's skim stock compounds and formulas. Once again, Kumho must provide information and produce responsive documents, but may redact from them its skim stock compounds and/or skim stock formulas prior to production.
After the February 17, 2015 hearing, Plaintiffs contacted the Court regarding their request that Kumho produce a log of all the responsive documents it is withholding from production on the basis that the documents are protected from discovery as trade secrets. The Court took up the matter at a telephone status conference on March 10, 2015. After a brief discussion, during which the Court indicated it was not aware of any cases from this jurisdiction requiring a trade secrets privilege log, the Court instructed the parties to file statements, citing any authorities supporting their respective positions on the trade secret privilege log issue. Having reviewed those statements (ECF Nos. 85 and 86), the Court denies Plaintiffs' request that Kumho be required to provide a log of all the responsive documents it has withheld from production as containing trade secrets.
Plaintiffs do not cite a single authority from the Tenth Circuit in which a party responding to discovery requests was ordered to provide a trade secrets privilege log. Nor do Plaintiffs cite any statutory basis for their request. And, to the extent Plaintiffs cite cases from this Circuit requiring parties seeking to withhold documents based upon other types of privileges, those cases are inapposite. Moreover, the cases cited provide no guidance regarding the practical and unwieldy issues as to just what information would be required on a trade secrets privilege log.
Plaintiffs cite two cases from other jurisdictions, Chicago Tribune Co. v. Bridgestone/Firestone, Inc.
In Chicago Tribune, Firestone voluntarily created a privilege log of its previously sealed documents in a settled Firestone court case after members of the media moved to intervene for the purpose of unsealing Firestone's documents.
In Third Party Verification, the party asserting a trade secret privilege was required to serve a log establishing the essential elements of the privileged relationship or matter.
Like Florida, Kansas has a statute, K.S.A. 60-432, which allows the owner of a trade secret "to refuse to disclose the secret and to prevent other persons from disclosing it if the [court] finds that the allowance of the privilege will not tend to conceal fraud or otherwise work injustice." The Florida trade secret privilege statute referenced in the Third Party Verification case includes the following additional sentence, which is not present in K.S.A. 60-432: "When the court directs disclosure, it shall take the protective measures that the interests of the holder of the privilege, the interests of the parties, and the furtherance of justice require."
In federal court, a party asserting a privilege in response to discovery requests is subject to the requirements of Fed. R. Civ. P. 26(b)(5)(A), which requires a party withholding information otherwise discoverable by claiming that the information is privileged to:
As the Court finds Kumho is not asserting a trade secret privilege, the requirements of Rule 26(b)(5)(A) are not applicable. The Court further agrees with Kumho that there is no controlling legal authority for production of a trade secret log under the facts and circumstances here. Additionally, by limiting the trade secret protection to Kumho's skim stock formula and compounds and requiring Kumho to produce redacted responsive documents, the Court has addressed the concerns expressed by Plaintiffs on this issue. Moreover, unlike an attorney-client privilege objection, information that ordinarily would be required for a privilege log, such as the document's date, author, recipient, and purpose of preparation, would likely not be helpful information in assessing any trade secret privilege. Plaintiffs' request that Kumho be compelled to produce a log of all responsive documents being withheld as trade secrets is therefore denied.
Kumho asserts overly broad, unduly burdensome, and relevance objections to many of Plaintiffs' discovery requests to the extent that they are "not limited in time or scope to the subject tire, tires of the same model and size for the same time period, tires that share a common green specification, tires in the U.S. market, the subject plant, or the accident that is the basis of this lawsuit." Kumho contends that the scope of these discovery requests should be limited to tires that are "substantially similar" to the Subject Tire and that "substantially similar" should be defined as the same subject model and size tire that was manufactured in Vietnam, like the Subject Tire. To the extent it responded to Plaintiffs' discovery requests, Kumho unilaterally limited its production to responsive information that it has located pertaining to "the Subject Tire and the subject model and size tire."
Kumho argues the only tires that should be considered "substantially similar" to the Subject Tire for purposes of discovery are tires with the same Green Tire Specifications ("GTS") as the Subject Tire. Its expert, Joseph Grant, explains that "green tires" are the "assembled components for a tire prior to being vulcanized (exposed to high heat and pressure within a mold)," and that "green tire specifications" are the "specifications for such tires."
Plaintiffs agree that the scope of discovery should be limited to tires that are "substantially similar" to the Subject Tire, but they define the term to include tires "that may have the same components, designers, and/or plant of manufacture as the Subject Tire."
Kumho argues that Plaintiffs' expansive definition of what should be considered a "substantially similar" tire is not a tailored definition and would encompass approximately 482 different sizes and applications of Road Venture tires manufactured at its three plants since 2007-08, many very dissimilar to the Subject Tire
Fed. R. Civ. P. 26(b) provides the general scope and limits of discovery. "Parties may obtain discovery regarding any nonprivileged matter that is relevant to any party's claim or defense . . . . Relevant information need not be admissible at the trial if the discovery appears reasonably calculated to lead to the discovery of admissible evidence. All discovery is subject to the limitations imposed by Rule 26(b)(2)(C)."
In tire defect products liability cases, courts have limited the scope of discovery under Rule 26(b)— finding that the burden or expense of responding to discovery requests outweighed the likely benefit—where the requests required the responding party to collect volumes of information on tires other than the subject tire, "without any threshold evidentiary showing of how those tires [were] similar to the accident tire for the purposes of [the] litigation, or that the information requested [had] any relationship to the underlying cause of the alleged tread separation at issue."
In Petersen v. DaimlerChrysler Corp.,
The Petersen court found that Cooper's focus on the relationship of the requested information to the subject tire was overly narrow at the discovery stage of the case and contrary to the intended purpose and scope of discovery.
After the district judge affirmed the magistrate judge's ruling, Cooper filed a petition for writ of mandamus requesting that the Tenth Circuit Court of Appeals vacate the district court's discovery order.
In direct contrast to the Petersen court, the District of New Mexico court in Gonzales v. Goodyear Tire & Rubber Co.
In tire defect cases from other circuits, courts have also reached differing conclusions on what constitute "substantially similar" tires for purposes of discovery. Some courts have found substantially similar tires to be limited to the green tire specifications that correspond to the subject tire.
In Hajek v. Kumho Tire Co., the plaintiffs served requests for production of documents pertaining to tires other than the subject tire.
Other courts have found "substantially similar" tires should not be limited to tires with the same green tire specifications or another similar limitation and have instead permitted discovery regarding certain tires other than the subject tire.
In other types of product defect cases, usually where the product had more discrete and identifiable components or parts, the cases have also used the substantial similarity test to determine whether to allow discovery of other product models.
In some of the tire cases, the courts place the burden on the party seeking discovery of other tires to demonstrate the tires are substantially similar to the subject tire.
While a plaintiff would have the burden of showing substantial similarity when attempting to introduce evidence at trial about other products, the plaintiff should not be required to show substantial similarity to merely obtain discovery pertaining to other substantially similar products.
In this case, Kumho urges the Court to adopt its definition of "substantially similar" tires, that is tires with the same green tire specifications as the Subject Tire. But Kumho admits in its briefing that there are no common greens to the Subject Tire.
Kumho's argument is simple. "[U]nless two tires are made from the same common green tire specification, there will be differences in the tire[s] that make them mechanically different."
In its Response and at oral argument, Kumho relied heavily upon the Hajek case.
The court in Hajek denied the plaintiff's motion to compel.
Kumho's proposed discovery limitation that defines "substantially similar" tires as the Subject Tire and subject model and size tires is too narrow. The often utilized limitation on the scope of discovery in products liability cases is not, as Kumho suggests, to "identical" tires but rather to "substantially similar" tires. This case is distinct from the cases cited by Kumho in that Kumho admits there are no other tires with the same green tire specification as the Subject Tire. Moreover, unlike Hajek, where the court found the plaintiff's broad discovery requests to be a "fishing expedition," Plaintiffs have identified through their expert's affidavit at least six alleged manufacturing or design defects in the Subject Tire that they allege caused the tire tread separation. Discovery of some tires other than the Subject Tire and their alterative design is warranted especially given Plaintiffs' design defect allegations. Finally, the Court is cognizant of the distinction between admissibility of evidence at trial and the discoverability of that evidence, which is especially significant where a threshold question is factually intensive.
On the other hand, the scope of discovery pertaining to "substantially similar" tires as sought by Plaintiffs' discovery requests is too broad. Although they claim to have tailored their discovery requests to the tires they consider substantially similar to the Subject Tire, Plaintiffs paint with a very broad brush. They claim that discovery regarding all Kumho Road Venture AT tires of all sizes (as requested in their "SUBJECT LINE TIRES" discovery requests) and all Kumho Road Venture AT, APT, and MT tires of all sizes (as requested in their "SUBJECT MODEL TIRES" requests) is warranted because the subject matter of this action is a defective Kumho Road Venture AT tire and there is a "strong possibility" that tires with the same name also have the same or similar characteristics. In addition, Plaintiffs take the position that information regarding Kumho passenger and light truck tires with either the same amount of halobutyl in the inner liner or the same skim stock formula as the defective Kumho Road Venture AT tire (as requested in their "SIMILAR TIRES" discovery requests) is also discoverable because it is possible that tires with the same ingredients also have the same or similar characteristics.
Plaintiffs offer the affidavit of their expert, Troy Cottles, in support of their definition of what should constitute a "substantially similar" tire. Mr. Cottles concludes that information regarding the tires that share certain similarities with the Subject Tire will greatly assist his expert analysis of the tire failure at issue in this case. These tires would include:
However, Kumho points out that there have been approximately 482 different sizes and applications of Road Venture (AT, APT, and MT) tires manufactured, collectively, at Kumho's plants in Korea, Vietnam, and China since 2007.
At the February 17, 2015 hearing in response to the Court's questioning, Kumho's counsel indicated that most of Kumho's tires use the same belt skim stock, stating "[i]t would not be unusual" for Kumho's AT, APT, and MT tires to have the same skim stock formulation and halobutyl content as the Subject Tire.
Kumho has shown that Plaintiffs' discovery requests that seek discovery pertaining to "SIMILAR TIRES," "SUBJECT MODEL TIRES," "SUBJECT LINE TIRES," as well as requests that are not limited at all, are overly broad and that responding to them would be unduly burdensome. The Court further finds that the burden and expense to Kumho in producing the discovery sought by these requests outweighs the likely benefit to Plaintiffs. Thus, the Court is required under Fed. R. Civ. P. 26(b)(2)(C)(iii) to limit the extent of the discovery.
As it has rejected the extreme positions taken by Plaintiffs and Kumho regarding the overall scope of discovery in this case, the Court fashions in the following pages reasonable and practical limits on the scope of discovery in between the two extremes.
Over 30 of Plaintiffs' discovery requests seek information and documents for "SIMILAR TIRES," defined as "all Kumho passenger and light truck tires: (a) utilizing the same amount of halobutyl (by percentage or content) in the innerliner as the Subject Tire; or (b) utilizing the same skim stock formulation as the Subject Tire." Kumho objects that Plaintiffs' self-serving, expansive definition of "SIMILAR TIRES" would require them to produce documents for hundreds of different passenger and light truck tires. It asserts that the burden and expense of producing this discovery outweighs the likely benefit under Fed. R. Civ. P. 26(b)(2)(C)(iii). Plaintiffs attempt to justify the broad scope of their "SIMILAR TIRES" discovery requests based on statements by their expert, Troy Cottles, who opines that in his experience, "no tire manufacturer of aftermarket tires studies tire problems with reference to green tire specifications. Instead, the focus is on tires that share common materials and design features."
The Court, however finds Mr. Cottles's statement that "the fact that Kumho uses the same belt skim stock in most of its passenger and light truck tires would dictate that tires within this group are similar"
The Court sustains all of Kumho's overly broad and unduly burdensome objections to Plaintiffs' First Request for Production and Interrogatories that include the term "SIMILAR TIRES." The Court finds that the burden and expense to Kumho of producing discovery relating to "SIMILAR TIRES" as so defined would outweigh the likely benefit under Rule 26(b)(2)(C)(iii). Kumho has not indicated specifically how many sizes and applications of its passenger and light truck tires would be encompassed within the "SIMILAR TIRES" category. However, based upon the representations of Kumho's counsel that it would not be unusual for many of Kumho's tires to have the same skim stock formulation and inner liner halobutyl content, as well as Mr. Cottles's statement that "most of" Kumho's passenger and light truck tires have the same belt skim stock, the Court can reasonably infer that "SIMILAR TIRES" would be an excessively broad category and likely include a very large number of tires. Kumho has also sufficiently demonstrated through the affidavit of Mr. Kim that these requests "if complied with, would require the disclosure of information on virtually all of [Kumho's] tires, and would seek information on tires that are completely different from the Subject Tire."
Plaintiffs also served a number of discovery requests asking for documents and information pertaining to the "SUBJECT MODEL TIRES" category, which Plaintiffs define as "all Kumho Road Venture tires." From the briefing and the hearing, the Court finds that this would include the Kumho Road Venture all terrain (AT), all season (APT), and mud (MT) tires, in all sizes.
Kumho objects to producing discovery for the "SUBJECT MODEL TIRES" category of tires, arguing that many of these tires are not substantially similar to the Subject Tire. Additionally, Kumho claims that it would be required to produce documents for 482 different sizes and applications of Road Venture tires manufactured at the three plants, and the burden and expense of producing this discovery would outweigh the likely benefit under Rule 26(b)(2)(C)(iii).
Plaintiffs maintain that they are entitled to discover information regarding Kumho's Road Venture AT, APT, and MT tires of all sizes because these tires have the same defective top belt, innerliner, and/or nylon cap ply configuration as the Subject Tire. They argue that a Kumho Road Venture AT tire, regardless of size, contains the same general components (albeit at different ratios or sizes due to size change), is almost certainly designed by the same group of engineers, and is likely manufactured at the same plants using the same equipment. Plaintiffs suggest that, in addition to sharing the "Road Venture" name, APT and MT tires also have the same components and designers as the Subject AT Tire. They argue that information regarding the design and manufacture of these tires would therefore be relevant to their tire defect theories. Plaintiffs contend that even if such tires do not share the same defective design features, information regarding these tires is still discoverable because it might provide evidence of an alternative design. They point to their expert's affidavit in which he states that the cause of a tread separation, like the one that occurred in the Subject Tire, "can usually be traced to manufacturing and/or design defects relating to the steel belt package, regardless of the model or size of the tire."
As the Tenth Circuit has indicated in ruling on whether evidence pertaining to other products is admissible, "[t]he substantial similarity rule does not require identical products; nor does it require us to compare the products in their entireties. The rule requires substantial similarity among the variables relevant to the plaintiff's theory of defect."
Because the Court does not find Plaintiffs' "SUBJECT MODEL TIRES" discovery requests to be overly broad, irrelevant, or unduly burdensome on their face, Kumho, as the party objecting to the discovery, has the burden to support its overly broad and unduly burdensome objections.
After extensively reviewing the briefing and affidavits filed in this case, the Court concludes that Kumho has not met its burden to convince the Court that none of its Road Venture AT, APT, or MT tires are "substantially similar" to the Subject Tire, based upon the particular alleged design and manufacturing defects in the Subject Tire. The Court does not accept Kumho's argument that the only "substantially similar" tires are those identical to the Subject Tire's model and size.
Kumho, however, has persuaded the Court with its arguments that tires manufactured at its two other plants, other than the Vietnam plant, would not be "substantially similar" to the Subject Tire, and Plaintiffs have not provided any persuasive reason justifying discovery of Kumho Road Venture tires manufactured at those plants. Plaintiffs argue that discovery pertaining to tire design should not be limited to the plant of manufacture because the same tire design could be used across multiple plants. Plaintiffs fail to convince the Court that this is sufficient reason to allow discovery of Kumho's Road Venture tires manufactured in plants other than the Vietnam plant. Plaintiffs may pursue their design defect theory based upon other discovery permitted under this order. Kumho also refutes the underlying assumption of Plaintiffs' expert that many of Kumho's tires are "made on the same machines by the same employees, and . . . subject to the same quality control, testing, and surveillance,"
At the hearing, the Court asked Kumho if it could propose an intermediate position that would not be as limiting as its initial position on substantially similar tires. Kumho indicated that something it would "consider" producing would be "information and documents pertaining to the MT tires and the APT tires for the subject size and model."
Limiting "substantially similar" tires to the same size as the Subject Tire appears to be a reasonable limitation. The Court notes that the Code of Federal Regulations considers a tire sold or in use outside the United States to be "substantially similar" to a tire sold or offered for sale in the United States if it has the "same size, speed rating, load index, load range, number of plies and belts, and similar ply and belt construction and materials, placement of components, and component materials, irrespective of plant of manufacture or tire line."
The Court therefore limits all Plaintiffs' discovery requests that seek documents or information for Kumho Road Venture tires, i.e., "SUBJECT MODEL TIRES," to Kumho Road Venture tires (AT, APT, and MT) that are (1) manufactured at the same Vietnam plant as the Subject Tire, and (2) the same size as the Subject Tire.
As to the third category of tires, which Plaintiffs designate as "SUBJECT LINE TIRES," Plaintiffs ask Kumho to produce discovery pertaining to "all Kumho Road Venture AT tires." Plaintiffs clarified at the February 17, 2015 hearing that their definition of SUBJECT LINE TIRES would include all sizes of Kumho Road Venture AT tires. Kumho indicated at the hearing that of the 106 different sizes and applications of Road Venture tires manufactured in the Vietnam plant since 2008, about 70 would be Road Venture AT tires.
For the reasons discussed in the previous section, the Court limits all Plaintiffs' discovery requests that seek documents or information for all Kumho Road Venture tires, i.e., "SUBJECT LINE TIRES," to Kumho Road Venture AT tires (1) manufactured at the same Vietnam plant as the Subject Tire, and (2) the same size as the Subject Tire.
Kumho also objected to many of Plaintiffs' discovery requests that do not contain the defined terms "SIMILAR TIRES," "SUBJECT MODEL TIRES," or "SUBJECT LINE TIRES," but that are not otherwise limited to the Subject Tire. The Court rules on these tire-scope objections in summary fashion below:
The Court overrules Kumho's overly broad tire-scope objections to RFP 21-22, 32, 93, 98, 109-115, and Interrogatories 11-12, finding that these requests are already limited to the Subject Tire.
The Court sustains Kumho's overly broad tire-scope objections to RFP 67 (internal testing manuals) and 68 (causes of tread separation) to the extent these requests seek production of documents related to "tires in general." These discovery requests are limited to the Subject Tire.
The Court sustains Kumho's overly broad tire-scope objections to RFP 37, 47-48, 53, 55-56, 62-66, 70-71, 75, 79, 81, 83-84, and 86-89. The scope of these discovery requests is limited to all Kumho Road Venture AT tires (in all sizes) manufactured at Kumho's Vietnam plant.
The Court sustains Kumho's overly broad objections to RFP 47-48, 62, 86-89 to the extent the requests seek documents generally and not specifically related to Kumho's tires, and refers the parties to the Court's rulings with respect to Kumho's other objections (i.e., lack of temporal time limitation and documents exist in the public domain).
The Court sustains in full Kumho's overly broad and relevancy objections to RFP 80.
The Court sustains Kumho's overly broad tire-scope objections to RFP 99-108, and limits these requests to documents and correspondence concerning Kumho Road Venture AT tires (in all sizes) manufactured at Kumho's Vietnam plant. The Court further refers the parties to the Court's rulings with respect to Kumho's other objections (i.e., lack of temporal time limitation and documents exist in the public domain).
In addition to its tire-scope objections, Kumho objected that many of Plaintiffs' discovery requests are not limited in time or to a relevant time period. At the hearing, the Court commented on the lack of any temporal limitation on many of the discovery requests and indicated that it was inclined to impose a five-year time period. When the Court asked Plaintiffs what five-year period they would suggest for warranty adjustment information as sought by RFP 18-19, Plaintiffs indicated that they would pick the 2008 manufacture date going forward (2008-13).
Kumho also asserts overly broad objections to RFP 36-38, which request that Kumho produce depositions and initial pleadings in Kumho tire tread separation cases. The Court finds these requests are overly broad because they are not limited to similar cases involving substantially similar tires over a defined time period or involving tread separation issues. Kumho's objections will be sustained in part and RFP 36-38 will be limited to tire tread separation cases from September 12, 2005 through September 12, 2011. The Court further limits RFP 36 and 37 to depositions wherein the deponent actually testified regarding the occurrence or cause of tire tread separation incidents (as opposed to other issues). As previously discussed in Section III.D, RFP 37 is further limited in scope to all Kumho Road Venture AT tires (in all sizes) manufactured at Kumho's Vietnam plant. RFP 36 and 38 are subject to the same "SUBJECT MODEL TIRES" and "SUBJECT LINE TIRES" limitations discussed in Section III.B and C above.
For all other discovery requests where Kumho has objected that they are not limited in time or to a relevant time period, the Court sustains Kumho's overly broad objections and limits them to the five-year time period beginning one year before (or the date the Vietnam plant began manufacturing) and four years after the Subject Tire's September 2008 manufacture date. For discovery requests seeking tire design changes, the five-year time period will commence on the date the Subject Tire was first manufactured.
Kumho asserted vague and ambiguous objections to RFP 2-5 and 6-17. Kumho argues that Plaintiffs' failure to clarify their terminology in many of their Requests, often relying on the same vague and ambiguous language, makes it impossible for Kumho to determine what documents are responsive. It claims that Plaintiffs continual use of the indeterminate phrase "component parts," which they later define with a non-exhaustive list of parts, fails to provide any limits to Kumho's potentially burdensome search, and thus does not provide adequate guidance for Kumho to narrow such Requests.
Plaintiffs argue that Kumho has failed to meet its burden to show that the use of the term "component" is vague or ambiguous. They argue that Kumho should exercise reason and common sense to attribute ordinary definitions to terms and phrases utilized. Considering its business is tire manufacturing, Plaintiffs question Kumho's claim that it does not know what Plaintiffs mean by the term "component." Plaintiffs point out that they clarified in their Golden Rule email that the term "component" includes, but is not limited to, tread, steel belt, inner liner, belt wedge, nylon cap ply, body ply, and bead. The Court also notes that Kumho's own expert, Joseph L. Grant, identifies the six major "component" categories of a radial tire in his Affidavit.
The party objecting to discovery as vague or ambiguous has the burden to show such vagueness or ambiguity.
Based upon the clarification provided in Plaintiffs' September 23, 2014 Golden Rule email, the Court finds that Plaintiffs have adequately clarified what they intend by the term "component." Kumho's vague and ambiguous objections to RFP 2-5 and 6-17 are overruled.
Kumho asserts vague and ambiguous objections to RFP 39 with respect to the intended scope and meaning of the phrase "reflect, evidence or describe the manufacturing process." Kumho also objects to RFP 40-45 with respect to the terms that ask it to produce documents and correspondence which reflect, discuss, or mention "any changes" to the "manufacturing process" or "design" over time. Kumho argues that such a broad and ambiguous discovery request does not put it on reasonable notice as to what information and documents it should be searching for, and it should not be forced to guess at Plaintiffs' meaning. Here, the Court finds that Kumho has not carried its burden to show RFP 39's language asking for "documents which reflect, evidence, or describe the manufacturing process the SUBJECT TIRE went through" is vague or ambiguous. Nor does the Court find the terms "any changes" to the "manufacturing process" or "design" as used in RFP 40-45 to be vague and ambiguous. If Kumho uses reason and common sense along with its own knowledge of its tire manufacturing business, it should be able to determine which documents reflect, evidence, or describe the Subject Tire's manufacturing process, as sought by RFP 39. It should likewise be able to determine what documents reflect, discuss, or mention "any changes" to the "manufacturing process" or in the "design" of the requested tires. Kumho's vague and ambiguous objections to RFP 39-45 are therefore overruled.
Kumho also objected to the phrase "cost cutting or cost reducing measures" in RFP 117 as vague and ambiguous. Plaintiffs argue that Kumho has not met its burden to show that Plaintiffs' use of the term "cost cutting or cost reducing measures" is vague and ambiguous. If it exercises reason and common sense to attribute ordinary definitions to the terms used, Kumho cannot claim that it is unaware of the meaning of the term "cost" in the tire manufacturing context. Plaintiffs point out that they even clarified in their Golden Rule Email that the term includes, but is not limited to, labor and materials.
The Court agrees with Plaintiffs that Kumho, using its knowledge of the tire manufacturing industry and with the clarification provided by Plaintiffs in their Golden Rule Email, should be able to decipher the meaning of RFP 117's phrase "cost cutting or cost reducing measures." Kumho's objection to RFP 117 is overruled.
Kumho asserts specific objections to RFP 47-48, 53, 62-63, 68, 89-90, and 99-107 that these requests seek information and documents that exist in ample quantities in the public domain. Kumho argues that Plaintiffs could just as easily procure such evidence. For instance, in RFP 62, Plaintiffs seek evidence regarding oxidation of tire rubber but documents about such science can be found by Plaintiffs on their own, including publicly available NHTSA and tire industry technical papers.
According to Plaintiffs, Kumho's objections and argument that the requested documents exist in the public domain and are equally available to Plaintiffs misses the mark. With respect to the discovery requests seeking documents and correspondence reflecting or discussing inner liner and skim stock issues (RFP 47-48, 62, 90, and 99), Plaintiffs point out that their discovery requests seek Kumho's knowledge of inner liner and skim stock issues, not the knowledge of the world at large. Kumho's notice of issues that may have led to the defect in the Subject Tire is clearly relevant to this litigation. Plaintiffs also argue that an equal accessibility objection by itself is insufficient to resist a discovery request.
"It is well established that discovery need not be required of documents of public record which are equally accessible to all parties."
Kumho objects to RFP 49-50, 53, 62-64, 68-69, 85-88, 93, 95, 98-108; and Interrogatories 13 and 15 to the extent they seek premature disclosure of Kumho's experts and information they may rely on to reach their opinions. It argues that these are objectionable because Plaintiffs are prematurely requesting information that should more appropriately be provided during expert discovery. According to Kumho, technical information, including explanations about tread separation and permeability, should be properly provided through its expert reports and opinions and not through fact discovery. Kumho also points out that Plaintiffs made similar objections in response to its own discovery requests.
Plaintiffs argue that they seek to discover Kumho's knowledge of a topic relevant to their defect theories and therefore production of the requested materials does not require input from Kumho's experts. Plaintiffs contend that Kumho has a duty to respond to the request with the information it possesses and may later supplement its responses under Fed. R. Civ. P. 26(e).
The Court sustains Kumho's premature expert discovery objections. Kumho may delay answering Interrogatories 13 and 15 and producing documents responsive to RFP 49-50, 53, 62-64, 68-69, 85-88, 93, 95, 98-108 until after it has served its expert disclosures, which are due May 6, 2015. Kumho shall produce this responsive expert discovery information or documents by the June 18, 2015 discovery deadline.
Kumho also objects to many of the discovery requests because they ask for "all" documents, which makes them overly broad and unduly burdensome. It argues that Plaintiffs' use of omnibus words and phrases, including "any," "all," "concerning," "regarding," and "reflecting" with respect to a general category or group of documents make Plaintiffs' discovery requests unduly burdensome on their face.
Plaintiffs argue that Kumho's argument regarding Plaintiffs' use of the word "all" in its discovery requests is misplaced. Plaintiffs assert that they have met their duty to state their discovery requests with reasonable particularity. Rather than asking Kumho for "all documents" relating or referring to the allegations in this case, Plaintiffs have requested "all documents" relating to certain specific categories of information, which is not objectionable.
The Court agrees that Plaintiffs' use of the word "all" in their document requests, in which they ask for "all documents," is not objectionable as the particular requests are otherwise appropriately tailored to request specific categories of information. As Kumho appears to have lodged this objection to every discovery request containing the words "all documents," the Court considers them to be disfavored boilerplate objections. Kumho's objections that the requests asking for "all" documents or using other omnibus words are overly broad and unduly burdensome are overruled.
Kumho objects to RFP 53, 62, 66, 78, 78-81, 85-88, 95, 99-108, 110-15, and 117-20 because they require it to "marshal the evidence." It argues that Plaintiffs are improperly asking it to marshal and provide evidence for their case where Plaintiffs could just as easily procure such evidence themselves. Kumho asserts that it should not be required to conduct a survey of the literature on tread separation and present that to Plaintiffs.
Plaintiffs argue that Kumho's objection that the Requests require it to marshal the evidence is rare and misplaced. They argue that the duty to marshal evidence is present during substantive proceedings, like trials or summary judgment hearings, and requires a party to direct the court to the places in the record where evidence exists to support their positions. Plaintiffs agree that a parallel can be drawn between a party's duty to direct the court to evidence and a discovery proponent's duty to state requests with reasonable particularity so as to direct the receiving party to the information sought. Plaintiffs cite Grynberg v. Total S.A.
The Court overrules Kumho's objections that Plaintiffs' discovery requests require it to marshal the evidence. Kumho cites no controlling legal authority to support its many marshal-the-evidence discovery objections. Nor do Plaintiffs' discovery requests require Kumho to survey the literature on tire tread separation and present the information it finds to Plaintiffs. Under Fed. R. Civ. P. 34(a)(1), Kumho is only required to produce responsive documents in its "possession, custody, or control." Kumho has failed to substantiate its marshal the evidence objections and they are therefore overruled.
Kumho objects to RFP 33-35, which seek customer tire tread separation "claims, complaints, notices, and lawsuits," on the grounds that these requests invade the reasonable privacy expectations of its consumers that their correspondence was between them and Kumho, and not for general public consumption. Kumho objects to producing documents generated by third-party consumers, which would place them into the public domain. Plaintiffs contend that concerns about the disclosure of private or sensitive information alone is not a sufficient basis to withhold discovery and can be addressed by entry of a protective order limiting the disclosure of such information. Plaintiffs argue that their interest in discovering information about defects in the tire that caused their injuries outweighs the privacy interests of Kumho's customers, who arguably waived those privacy rights when they filed their lawsuits against Kumho.
The Court agrees with Plaintiffs that Kumho's concerns with producing documents that may disclose information of its customers related to other tire claims, complaints and lawsuits can be adequately addressed by producing the information subject to the Protective Order. Kumho's customer privacy objections to RFP 33-35 are therefore overruled.
Kumho originally objected to RFP 1 and 25 to the extent that they seek information protected by the attorney-client privilege and/or the work product doctrine. At a telephone status conference on March 10, 2015, the Court asked Kumho's counsel whether Kumho withheld any documents on the basis of the attorney-client privilege or as work product. The Court thereafter ordered Kumho to serve supplemental discovery responses to Plaintiffs' discovery requests that either (1) state that no responsive documents are being withheld on the basis of attorney-client privilege or as work product, or (2) identify the discovery responses for which responsive documents are being withheld on the basis of attorney-client privilege or as work product and provide a privilege log for all documents being withheld. The Court further notes that Kumho did not reassert its objections based upon the attorney-client privilege and work product doctrine in response to Plaintiffs' motion to compel discovery. The Court therefore finds that Kumho has abandoned its attorney-client privilege and work product objections to RFP 1 and 25, and the Court need not make any further ruling with respect to them.
Kumho objects that the Smithers Scientific Services reports sought are protected by intellectual property laws. It asserts that even if it had a report prepared by Smithers in its possession, it would be illegal for it to produce it to Plaintiffs and it could be prosecuted for doing so. It claims that it therefore does not have the required "possession, custody, or control"
Plaintiffs note in their Reply that Kumho took issue with RFP 94 in its Reply, but Plaintiffs' arguments regarding those requests were not reasserted in their Motion to Compel. Accordingly, RFP 94 is not before the Court for consideration and the Court declines to compel Kumho to respond to it.
The Court sustains Kumho's relevance objections to this Request. Plaintiffs have failed entirely to demonstrate the relevance of this request—which seeks discovery into Kumho's reverse engineering of "competitor tires"—to Plaintiffs' claims related to the Subject Tire in this case. The Court denies Plaintiffs' motion to compel as to RFP 95 and Kumho need not respond to it.
RFP 119-120 ask Kumho to produce documents and correspondence regarding profitability for Kumho Road Venture AT tires:
As to RFP 119 and 120, the Court sustains Kumho's relevance and unduly burdensome objections in full. The Court fails to see the relevance of the discovery sought by these requests, and Plaintiffs have not otherwise shown them to seek relevant information. Furthermore, the Court finds that responding to RFP 120 would be unduly burdensome because it requires Kumho to make comparisons to the unlimited category of "any other tire." The Court denies Plaintiffs' motion to compel as to RFP 119-20 and Kumho need not respond to them.
Fed. R. Civ. P. 37(a)(5)(C) provides that when a motion is granted in part and denied in part, "the court may . . . after giving an opportunity to be heard, apportion the reasonable expenses for the motion." Neither Plaintiffs nor Kumho specifically requested an award of reasonable expenses, including attorney's fees, incurred in filing or responding to this motion. Under the circumstances of this motion, the Court finds that each party shall bear its own expenses related to this motion.
IT IS SO ORDERED.