Opposition Brief — General Motors Corp. v. Grear

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No. 97-746 jj; & 2 1%

IN THE a

SUPREME COURT OF THE UNITED STATES

OCTOBER TERM, 1997

GENERAL MOTORS CORPORATION,

Petitioner,

v.

VALORIE LYNN GREAR AND PAUL C. NORDBERG,

Respondents.

On Petition for a Wnit of Certiorari to the

United States Court of Appeals for the Sixth Circuit

BRIEF IN OPPOSITION TO

PETITION FOR A WRIT OF CERTIORARI

W.J. Michael Cody

Dennis R. Baer Counsel of Record

BAER, BAER & BAER Joel Porter

100 N. Main Bldg. Les Jones

Ste. 2510 Susan M. Clark

Memphis, TN 38103 BURCH, PORTER & JOHNSON

901/525-7316 A Professional Limited Liability Company

130 N. Court Ave.

- Memphis, TN 38103

901/524-5000

Attorneys for Respondents

No. 97-746

IN THE

SUPREME COURT OF THE UNITED STATES

OCTOBER TERM, 1997

GENERAL MOTORS CORPORATION,

Petitioner,

V.

VALORIE LYNN GREAR AND PAUL C. NORDBERG,

Respondents.

On Petition for a Writ of Certiorari to the

United States Court of Appeals for the Sixth Circuit

BRIEF IN OPPOSITION TO

PETITION FOR A WRIT OF CERTIORARI

W.J. Michael Cody

Dennis R. Baer Counsel of Record

BAER, BAER & BAER Joel Porter

100 N. Main Bldg. Les Jones

Ste. 2510 Susan M. Clark

Memphis, TN 38103 BURCH, PORTER & JOHNSON

901/525-7316 A Professional Limited Liability Company

130 N. Court Ave.

Memphis, TN 38103

901/524-5000

Attorneys for Respondents

TABLE OF CONTENTS

TABLE OF AUTHORITIES .....

0: 6 8 | fe | 6 Ea

PROVISIONS INVOLVED .....

STATEMENT OF THE CASE ...

SUMMARY OF ARGUMENT ...

8.)

CONCLUSION

11

i

TABLE OF AUTHORITIES

Cases Page

Admiral Ins. Co. v. U.S. Dist. Ct.,

881 F.2d 1486 (9th Cir. 1989) .............000.. 9

Baranowski v. General Motors,

No. LR-C-96-222 (E.D. Ark.

ee os ona vets eh 8 ats 11, 17a-25a

Boughton v. Cotter Corp.,

TU. Fee Cree Ge Be) soc i ei ee esas 9

Chase Manhattan Bank, N.A. v. Turner & Newall, PLC,

O64 F.20 159 (2G Gu. W992)... ww ec ec ccn. 9

Cohen v. Beneficial Indus. Loan Corp.,

Se et ac awh 6 ic wee Glew ence eens 7

Dow Chem. Co. v. Taylor,

519 F.2d 352 (6th Cir.), cert. denied,

ri gb Mp sie) 2) a a ere 7,8

EEOC v. K-Mart Corp.,

694 F.2d 1055 (6th Cir. 1982) .................. &

Federal Deposit Ins. Corp. v. Ernst & Whinney,

25g wm Ee) Te ae) | 7

In re Bendectin Products Liability Litigation,

Fe ae Pr a Ge BD og bes ce oe ees v)

In re Bieter Co.,

Re ee Ss REE on oak eka sa Sevvenuse 9

In re Burlington Northern, Inc.,

822 F.2d 518 (Sth Cir. 1987) — ert. denied,

pe ee Ne EE ona oso ce ean iwc weed en uun 9

In re Chimenti,

7 Oe oon tee Cm. 996) 5. cs 5 co ce cs 8,9

In re Ford Motor Co.,

110 F.3d 954 (3d Cir. 1997).........0.0. 000. 7,9

ill

In re Perrigo Co.,

128 F.3d 430 (6th Cir. 1997) .........00.0... 6, 8,9

In re Regents of Univ. of Cal.,

101 F.3d 1386 (Fed. Cir. 1996), cert. denied,

SF ae NPE sow koe acs ca ecdveeeves na 9

Kerr v. United States District Court,

PR Rs | a es 11

Maxey v. General Motors,

No. 3:95cv6-D-A, 1996 WL 69222

(N.D. Miss. Nov. 18, 1996) ............ 10, la-12a

Maxey v. General Motors,

No. 3:95cv6-D-A, 1997 WL 88214

(N.D. Miss Jan. 10, 1997) ............ 11, 13a-l6a

Statutes and Rules

I Oe eect ee ed eee 5

Pee es 8 ee ee ak 5, 10, 11

Pod. R Cw. PWG)... 2, 4, 10

Pol 8. Cie Fe 3 2-3, 4, 11

ae . . See

ati ete we wane dhe mash iN aie at mi Maite we am a nas A ~ ates ee es

No. 97-746

IN THE

SUPREME COURT OF THE UNITED STATES

OCTOBER TERM, 1997

GENERAL MOTORS CORPORATION,

Petitioner,

V.

VALORIE LYNN GREAR AND PAUL C. NORDBERG,

Respondents.

On Petition for a Writ of Certiorari to the

United States Court of Appeals for the Sixth Circuit

BRIEF IN OPPOSITION TO

PETITION FOR A WRIT OF CERTIORARI

INTRODUCTION

Respondents respectfully submit this response in

opposition to the Petition for a Writ of Certiorari and the

Supplemental Bnef for Petitioner filed by General Motors

Corporation (“General Motors”). Contrary to the assertions in

General Motors’ petition, the rulings of the Sixth Circuit Court

of Appeals at issue in this matter do not foreclose all avenues of

review of a district court’s order compelling disclosure of

allegedly privileged documents. The Sixth Circuit, in line with

the majority of other circuit courts of appeal, allows mandamus

review of discovery orders involving a claim of privilege in

2

appropriate cases that meet the high standard for granting such

extraordinary relief. The Sixth Circuit denied General Motors’

petition for writ of mandamus not on jurisdictional grounds but

rather because it did not meet the well-established standard for

review of such petitions. Under these circumstances, as

discussed more fully below, General Motors’ Petition for Wnt of

Certiorari fails to present issues appropriate for review by this

Court and should be denied.

PROVISIONS INVOLVED

Federal Rule of Civil Procedure 26(a)(1) provides in relevant

part:

(1) Initial Disclosures. ...[A] party shall,

without awaiting a discovery request, provide to

other parties:

(B) a copy of, or a description by

category and location of, all

documents, data compilations,

and tangible things in_ the

possession, custody, or control of

the party that are relevant to

disputed facts alleged with

particularity in the pleadings.

Federal Rule of Civil Procedure 26(b)(5) provides:

(5) Claims of Privilege or Protection of Trial

Preparation Materials. When a party withholds

information otherwise discoverable under these

Sicha inal eiii|

3

rules by claiming that it is privileged or subject to

protection as trial preparation material, the party

shall make the claim expressly and shall describe

the nature of the documents, communications, or

things not produced or disclosed in a manner that,

without revealing information itself privileged or

protected, will enable other parties to assess the

applicability of the privilege or protection.

STATEMENT OF THE CASE

Respondents present this brief factual statement in order

to clarify the circumstances leading to the decisions of the

magistrate and district judges and the Sixth Circuit that are at

issue in the petition filed by General Motors.

Respondents Valorie Grear and her husband filed this

lawsuit in 1996, alleging that the serious injuries that Ms. Grear

suffered as a result of a 1995 accident in a General Motors

vehicle resulted from the defective design of the car’s door-

mounted passive restraint and door lock systems. At the time

that Respondents filed their lawsuit, an internal General Motors

Automatic Restraint Task Force (“Task Force”) had studied

General Motors’ door-mounted restraint systems. Respondents

were not aware of the Task Force or of the documents related to

its work, including a 1990 “Task Force Memorandum” prepared

by members of the Task Force. According to General Motors,

the memorandum, which is at the core of this petition, was

prepared for the purpose of “analyzing available technical

information related to the use of automatic belt systems.” (Pet.

at 3).

+

Despite the undisputed relevance to Respondents’ claims

of the Task Force Memorandum and other Task Force

documents, General Motors failed to disclose them in its initial

disclosures as mandated by Federal Rule of Civil Procedure

26(a)(1) or to claim them as privileged and describe them as

required by Rule 26(b)(S). When Respondents later learned of

the existence of the Task Force from another source,

Respondents submitted document requests to General Motors

that specifically requested all Task Force documents.

Respondents also propounded an interrogatory requesting a

privilege log for all documents that General Motors had withheld

on a claim of privilege.

In response to Respondent’s discovery requests, General

Motors objected to the production of the Task Force documents

as privileged but did not produce the privilege log as requested

or identify the withheld documents in any manner. When

respondents filed a motion to compel production of the Task

Force documents, General Motors still did not produce the

documents, including the Task Force Memorandum, or comply

with Rule 26(b)(5), which requires that documents withheld on

a claim of privilege be identified “in a manner that ... will enable

other parties to assess the applicability of the privilege or

protection.” At most, General Motors filed an affidavit

describing the Task Force but not the hundreds of documents it

claimed were privileged. (Pet. App. 22a). Only after the

magistrate judge instructed General Motors to produce a

privilege log did General Motors provide any information to

Respondents that identified the documents that it was

withholding as privileged. Although General Motors submitted

the Task Force Memorandum to the magistrate judge to review

in camera, the magistrate judge found that the ex parte

submission of the withheld documents to the court did not satisfy

the Rule 26(b)(5) requirement that General Motors describe the

5

documents so that the other party could assess the applicability

of the privilege. (Pet. App. 6a).

In light of this conduct on the part of General Motors, the

magistrate judge held that General Motors had waived its right

to claim that the Task Force Memorandum was privileged. (Pet.

App. 6a). In so holding, the magistrate judge followed the

Advisory Committee Notes to the 1993 Amendments to Rule 26,

which state that the withholding of otherwise discoverable

materials without proper notification and identification “may be

viewed as a waiver of the privilege.” (Pet. App. 4a-5a). The

district court affirmed the magistrate’s order following an

independent review of the record and the magistrate’s findings.

(Pet. App. 10a).

General Motors immediately appealed the district court’s

ruling to the Sixth Circuit Court of Appeals and also petitioned

the Sixth Circuit for a writ of mandamus. Respondents moved

to dismiss the appeal on jurisdictional grounds and filed a

response in opposition to the mandamus petition. In separate

orders dated September 17, 1997, the Sixth Circuit dismissed the

appeal and denied the mandamus petition. (Pet. App. 14a-15a,

16a-17a). The Sixth Circuit ruled that it did not have jurisdiction

of the appeal as either a final order under 28 U.S.C. § 1291 or as

a “collateral order.” (Pet. App. 15a). The court also ruled that

General Motors’ petition did not meet the standard for

mandamus in that other means of obtaining relief existed,

namely that General Motors could “obtain appellate review by

submitting to contempt and appealing the contempt ruling.”

(Pet. App. 16a-17a).

General Motors then filed its petition for certiorari and

application for stay with this Court. When this Court denied the

stay application, General Motors finally produced the Task Force

Memorandum to Respondents. Respondents waived the filing of

6

a response to the petition for certiorari and now submit this

response as requested by the Court.

SUMMARY OF ARGUMENT

General Motors’ petition asks the Court to grant certiorari

in order to consider the proper mechanism for a party to assert an

immediate challenge in the courts of appeal of a district court

order compelling the disclosure of allegedly privileged

documents. General Motors bases its petition on two rulings by

the Sixth Circuit that, General Motors claims, dismissed both its

appeal and its writ of mandamus on jurisdictional grounds.

Respondents respectfully disagree with the fundamental

premise asserted by General Motors that the Sixth Circuit has

imposed a ngid, jurisdictional bar to the interlocutory review of

any discovery ruling involving a claim of attorney-client

privilege. The Sixth Circuit, like all other courts of appeal

except the Third Circuit, holds that discovery orders are not

appealable as of right but may be considered on a petition for

writ of mandamus under appropriate circumstances. The alleged

jurisdictional bar to mandamus review in the Sixth Circuit

simply does not exist, as specifically demonstrated by the recent

Sixth Circuit opinion in In re Perrigo Co., 128 F.3d 430 (6th Cir.

1997), in which the court granted mandamus review of a district

court order compelling production of a corporate report withheld

on a claim of privilege.

Unlike the important question of law presented by the

Perrigo petition, the issue underlying General Motors’ petition

for writ of mandamus is the decision by the district court, acting

within its broad discretion to control discovery, that General

Motors waived its claim of privilege as a result of its discovery

7

abuses. Based upon these circumstances, the Sixth Circuit ruled

that General Motors’ petition did not merit mandamus review.

Likewise, General Motors’ petition for writ of certiorari

does not present special and important questions of federal law

that warrant review by this Court. A means of reviewing district

court decisions regarding the production of documents purported

to be privileged is available in every circuit. That the Sixth

Circuit did not deem General Motors’ mandamus petition

adequate for review does not create an issue of significance to

the administration of justice in the federal courts.

ARGUMENT

General Motors contends that its petition for writ of

certiorari “cleanly presents a basic procedural issue ... on which

there is a clear and irreconcilable three-way split among the

circuit courts of appeals.” (Pet. 6-7). This assertion is incorrect

as to both issues presented for review by General Motors.

First, there is not a three-way split as to the issue of

whether a discovery order, even one involving a claim of

attorney-client privilege, is immediately appealable under the

collateral order doctrine. In fact, every circuit identified by

General Motors except one agrees that discovery orders are not

appealable as collateral orders. See cases cited at Pet. 10-11.

Only the Third Circuit in In re Ford Motor Co., 110 F.3d 954 (3d

Cir. 1997), holds otherwise. The Sixth Circuit joins with the

majority in concluding that this Court’s decision in Cohen v.

Beneficial Industrial Loan Corp., 337 U.S. 541 (1949), does not

compel appellate review of discovery orders. See Federal

Deposit Ins. Corp. v. Emst & Whinney, 921 F.2d 83, 85 (6th Cir.

1990); Dow Chem. Co. v. Taylor, 519-F.2d 352, 354-55 (6th

Cir.), cert. denied, 423 U.S. 1033 (1975). The reason for this

8

conclusion is well founded. As the Sixth Circuit has explained,

to allow appellate review of discovery orders “would ‘... invite

the inundation of appellate dockets with what have heretofore

been regarded as nonappealable matters.’” Dow, 519 F.2d at 354

(citations omitted).

Second, the Sixth Circuit has not held that it is without

jurisdiction to review on mandamus a discovery order involving

a claim of attorney-client privilege. Indeed, in a published

opinion decided after the denial of General Motor’s petition, In

re Perrigo Co., 128 F.3d 430 (6th Cir. 1997), the Sixth Circuit

specifically addressed this issue and held that the petition in that

case met the standard for mandamus review of an order

compelling the production of a corporate report withheld on a

claim of privilege. (Id. at 437). As noted by the Perrigo court,

the Sixth Circuit has traditionally held that mandamus is

available to review “questions of unusual importance necessary

to the economical and efficient administration of justice,’” or

“important questions of first impression.” Id. at 435 (quoting

EEOC v. K-Mart Corp., 694 F.2d 1055, 1061 (6th Cir. 1982)).

The court reiterated its preference for “a ‘flexible’ rather than a

‘rigid’ approach” in deciding which cases merit mandamus

review in order to preserve the availability of the writ in

extraordinary situations. Id. (quoting In re Chimenti, 79 F.3d

534, 539 (6th Cir. 1996)).

In order to determine which cases warrant mandamus

review, the Sixth Circuit balances the following five factors:

1. The party seeking the writ has no other

adequate means, such as direct appeal, to

attain the relief desired.

9

2. The petitioner will be damaged or

prejudiced in a way not correctable on

appeal. . ..

3. The district court’s order is clearly

erroneous as a matter of law.

4. The district court’s order is an oft-

repeated error, or manifests a persistent

disregard of the federal rules.

5. The district court’s order raises new and

important problems, or issues of law of

first impression.

Id. (quoting Chimenti, 79 F.3d at 540 and In re Bendectin

Products Liability Litigation, 749 F.2d 300, 304 (6th Cir. 1984)).

These factors are the same as or similar to those considered by

all other circuits in the more recent decisions cited by General

Motors, with the exception only of the Third Circuit in its In re

Ford decision. See In re Regents of Univ. of Cal., 101 F.3d

1386, 1388 (Fed. Cir. 1996), cert. denied, 117 S. Ct. 1484

(1997); In re Bieter Co., 16 F.3d 929, 932 (8th Cir. 1994); Chase

Manhattan Bank, N.A. v. Tumer & Newall, PLC, 964 F.2d 159,

163 (2d Cir. 1992); Admiral Ins. Co. v. U.S. Dist. Ct., 881 F.2d

1486, 1490-92 (9th Cir. 1989); In re Burlington Northern, Inc.,

882 F.2d 518, 523 (Sth Cir. 1987), cert. denied, 484 U.S. 1007

1988). None of these courts grants automatic mandamus review

of discovery orders requiring disclosure of allegedly privileged

documents; rather, each requires that the issue presented turn on

an important question of law, not a mere discretionary decision

of the lower court. See also Boughton v. Cotter Corp., 10 F.3d

746, 751 (10th Cir. 1993) (denying mandamus petition because

rulings on privilege, even if wrong, were not clear abuse of

discretion).

10

General Motor’s petition for writ of mandamus simply

did not meet this standard. The district court in this case

exercised its discretion under Rule 26 to control discovery and

to ensure compliance by the parties with the procedures

established by the federal rules. The district court’s

determination that General Motors waived its right to claim

privilege as to the Task Force Memorandum did not turn on the

court’s importing a “rigid,” “extratextual requirement to create

a privilege log into Rule 26,” as General Motors erroneously

contends (Pet. 13), but rather on the facts of General Motors’

own conduct in willfully disregarding the requirements of Rule

26. As the magistrate judge stated:

Therefore, under these circumstances, this court

finds that defendant GM’s failure to list the Task

Force documents or otherwise make a timely or

reasonable effort to identify those documents in

its Rule 26(a)(1) disclosures and in response to

specific discovery requests resulted in a waiver of

the claimed privileges.

(Pet. App. at 6a). General Motors’ representation to this Court

that “it is plain that General Motors complied with the absolute

letter and spint of this Rule [26]” is directly contradicted by the

magistrate judge’s finding that General Motors exhibited

“persistent delay” in identifying privileged documents and

“willful disregard for the notification requirements of Rule 26.”

(Pet. App. 6a).

Notably, this is not the first time that a district court has

sanctioned General Motors for refusing to identify the Task

Force documents in compliance with Rule 26. In Maxey v.

General Motors, No. 3:95cv6-D-A, 1996 WL 692222 (N.D.

Miss. Nov. 18, 1996), the district court affirmed the ruling of the

magistrate judge that General Motors waived its right to assert its

11

claim of privilege as to the Task Force Memorandum by failing

to identify the document as required by Rule 26(b)(5). (Brief

App. 8a-10a). As in the present case, General Motors sought

mandamus review of the district court order, and the Eighth

Circuit, like the Sixth Circuit, denied the mandamus petition.

See Maxey v. General Motors, No. 3:95cv6-D-A, 1997 WL

88214 (N.D. Miss. Jan. 10, 1997) (Brief App. 13a).

Likewise, the district court in Baranowski v. General

Motors, No. LR-C-96-222 (E.D. Ark. May 15, 1997), held that

General Motors waived its claim of privilege as to the Task

Force Memorandum by failing to comply with the requirements

of Rule 26. (Brief App. 21a). The Baranowski case settled prior

to a ruling by the Eighth Circuit on General Motor’s petition for

writ of Mandamus.

As these cases show, General Motors was clearly on

notice by the time of the magistrate’s ruling in this case that its

refusal to identify the Task Force documents would result in the

waiver of its claim of privilege. Given all of the circumstances

in this matter, the district court’s finding of waiver was not a

clear abuse of discretion.

As a result, the Sixth Circuit recognized that General

Motors’ mandamus petition did not meet the standard that “[a]

party seeking mandamus must have no other means of obtaining

the relief he desires and must demonstrate a ‘clear and

indisputable’ right to that relief.” (Pet. App. 16a (citing Kerr v.

United States District Court, 426 U.S. 394, 402 (1976)). The

court denied the mandamus petition in this case because it found

that General Motors had an adequate remedy other than

mandamus; it could refuse to comply with the district court’s

order, submit to contempt and then appeal the contempt ruling.

This was not a dismissal on jurisdictional grounds, as General

12

Motors now asserts, but a denial of the petition because General

Motors failed to present an issue that warranted mandamus relief.

General Motors’ petition for writ of certiorari thus fails

to raise an issue of importance to the administration of justice in

the federal courts and should therefore be denied.

CONCLUSION

Respondents respectfully request that the Court deny the

Petition for Writ of Certiorari.

13

Respectfully submitted,

1.

casey ichael Cod

Dennis R. Baer ounsel of Record

BAER, BAER & BAER Joel Porter

100 N. Main Bldg. Les Jones

Ste. 2510 Susan M. Clark

Memphis, TN 38103 BURCH, PORTER & JOHNSON

901/525-7316 A Professional Limited Liability Company

130 N. Court Ave.

Memphis, TN 38103

901/524-5000

Attorneys for Respondent

February 5, 1998

APPENDIX

la

IN THE UNITED STATES DISTRICT COURT

FOR THE NORTHERN DISTRICT OF MISSISSIPPI

WESTERN DIVISION

ARCHIE MAXEY, PLAINTIFF

V. Civil Action No. 3:95cv6-D-A

GENERAL MOTORS CORPORATION DEFENDANT

MEMORANDUM OPINION

By order dated September 19, 1996, United States

Magistrate Judge S. Allan Alexander denied as untimely the

defendant’s motion for a protective order so that it would be

relieved of the obligation to produce certain documents to the

plaintiff in discovery. Maxey v. General Motors Corp., Civil

Action No. 3:95cv6-D-A (N.D. Miss. Sep. 19, 1996) (Alexander,

M.J.) (Order Denying Motion for Protective Order). On

September 27, 1996, the defendant filed an appeal of this order

of the Magistrate Judge. The plaintiff responded to this filing on

October 17, 1996, and also moved to strike the appeal or, in the

alternative, to dismiss the appeal. After having considered the

order of the Magistrate Judge and the submissions of the parties,

the undersigned is of the opinion that the order is neither clearly

erroneous nor contrary to law. The undersigned shall not modify

or set aside Judge Alexander’s order of September 19, 1996.

The crux of the defendant’s original motion before the

Magistrate Judge was that the documents which the plaintiff

sought produced and the defendant sought protected were

protected by the attorney-client and “self-critical analysis”

privileges. The Magistrate Judge never reached the actual

question of whether or not the documents were in fact protected

by these privileges, however, but rather denied the motion for

two particular reasons: 1) the motion itself was untimely; and 2)

the claims of privilege asserted for these documents were

untimely.

L* DISCUSSION

A. Appeal or Objection?

The plaintiff's first ground in opposition to this court’s

consideration of the matter at hand is the argument that there is

no mechanism within the Federal Rules of Civil Procedure for

the defendant to “appeal” the order of the Magistrate Judge to the

undersigned. Rather, the only proper revicw of the Magistrate

Judge’s order by this court would be pursuant to Fed.R.Civ.P.

72(a) by the filing of “objections” to the order within ten days of

its entry. Fed.R.Civ.P. 72(a). The plaintiff is correct that this

court’s review of the Magistrate Judge’s order is pursuant to that

rule, and this court will only modify or set aside that order if it

is “clearly erroneous or contrary to law.” Fed.R.Civ.P. 72(a).

That the defendant styled its pleading in this matter as an

“appeal” is a mere semantical distinction, for it did otherwise

properly and timely file its objections. This fact alone does not

present sufficient reason for this court to strike the defendant’s

pleading or refuse consideration of it.

B. TIMELINESS OF THE MOTION

> Generally

While the express language of Fed.R.Civ.P. 26 does not set

limits within which a motion for protective order must be made,

there is an implicit requirement that the motion be timely, or

seasonable. See, e.g., Brittain v. Stroh Brewery Co., 136 F.R.D.

408, 413 (M.D.N.C.1991); Nestle Foods Corp. v. Actna Cas. &

Sur, Co., 129 F.R.D. 483, 487 (D.N.J.1990);. See also, Wright &

Miller, 8 Federal Practice and Procedure, § 2035 (2nd Ed. 1994).

A motion for protective order is timely if made prior to the date

set for the discovery. See, c.y., Wang v. Hsu, 919 F.2d 130, 131

(lOth Cir.1990); Brittain, 136 F.R.D. at 413; United States v.

International _ Business Machines, 70 F.R.D. 700, 701

(S.D.N.Y.1976) ("Such motions under Rule 26(c) must be served

before the date set for production."); Hon. David Hittner, Federal

Civil Procedure Before Trial, p. 11-35 ("A motion for protective

order should be noticed at the earliest possible time and certainly

before the discovery procedure is to occur."). In this case, the

defendant's motion for a protective order was filed after its

deadline to respond to the plaintiff's request for production of

documents, and was therefore untimely as it was not made prior

to the deadline for the discovery in question.

Further, the defendant can find no solace in pointing the

finger back at the plaintiff for his failure to present the issue to

the court via a Motion to Compel or for some type of conference

with the court. A timely motion for a protective order by the

party seeking relief from the obligation to comply with a

discovery request is the best manner in which to have privileged

documents shielded from the discovery process.

Defendant argues, that for written discovery, it is

sufficient that it note its objections within the time permitted,

and that it should not have to move for a protective order until

after the plaintiffs move to compel the discovery. Nothing in

Rule 26 suggests that there should be such a dichotomy between

oral depositions and written discovery. The procedure turns the

4a

normal state of obligations on its head. The party seeking the

protective order, who has the burden of requesting and

supporting it, should also be responsible for initiating the

process. Permitting that party to merely note its objections and

then sit back and wait for a motion to compel can only serve to

prolong and exacerbate discovery disputes. Brittain, 136 F.R.D.

at 413 (emphasis added); but see Wright & Miller, 8 Federal

Practice and Procedure § 2035, p. 481 ("A party may not remain

completely silent when it regards discovery as improper. If it

desires not to ... respond, 1t must object properly or seek a

protective order ...""). This court agrees with the court in Brittain,

and the defendant should have brought this matter to the

attention of the court before the time expired for his response to

the plaintiff's request for production. As the defendant is the

party seeking to protect the documents from disclosure in this

case, it should not be allowed to sit back and force the plaintiff

to take the initiative to file a Motion to Compel with this court.

The Magistrate Judge was not required to deny outright

the defendant's motion as untimely, however. If the defendant

can demonstrate good cause for its failure to timely file, a

meritorious motion for protective order may nevertheless be

granted. Bnittain, 136 F.R.D. at 414; Wnght & Miller, 8 Federal

Practice and Procedure § 2035, p. 478 ("[T]he courts still

consider the timeliness of a motion and look to all of the

circumstances in determining whether the motion is untimely.").

While the Magistrate Judge had the discretion to deny the

defendant's motion as untimely in this case, the defendant was

entitled to the opportunity to demonstrate good cause in

explanation of its failure to timely file. It is not clear from the

Magistrate Judge's order that she employed this standard or

considered in this particular context any proffered explanation of

the defendant for its failure to timely file a motion for protective

order. Were this the only justification for denying the defendant's

motion as untimely, the undersigned would return this matter to

the Magistrate Judge for a determination of the defendant's

proffered "good cause" for its failure to timely file. As noted

below, however, the Magistrate Judge had more than one

sufficient reason to deny the motion.

2. Timeliness of the motion in light of the Uniform Plan

The Magistrate Judge did not, however, address the

"timeliness" issue as it has thus far been discussed by this court.

Rather, she determined that the motion was : ~‘imely with

respect to a provision of this court's Uniform Plan for the

implementation of the Civil Justice Reform Act of 1990. 28

U.S.C. § 471 et seq. Magistrate Judge Alexander noted that the

defendant filed its motion for protective order with the court on

August 26, 1996, two days before the expiration of the discovery

deadline. When considering the time allowed for briefing under

Local Rule 8(d), the Magistrate Judge reasoned, there was no

practical way for the matter to be resolved prior to the expiration

of the discovery deadline. See Uniform Civil Justice Expense

and Delay Reduction Plan (hereinafter "Uniform Plan"), Section

Four (II)(A) ("All discovery motions must be filed so that they

do not affect the discovery deadline."). The Magistrate Judge

further stated in her order:

To exacerbate matters, defendant stated in its

motion that it "desires to supplement this motion

with the deposition testimony of Robert Sinke

after that transcript is received ... in order that

this Court can fully understand the issues raised

in this motion." Defendant then waited until

September 6, 1996-nine days after expiration of

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the discovery deadline--to serve its proposed

"supplement." Aside from the fact that

supplementation of this sort is not contemplated

anywhere in the local rules that govern this court,

defendant used its supplementation not only to

produce the deposition of Mr. Sinke, but also to

cite new cases and make new legal arguments not

expressly included in its August 26, 1996 motion.

Defendant will not be allowed to circumvent the

discovery deadline in this fashion.

Maxey, (Order Denying Motion for Protective Order, p. 2).

The undersigned notes that the defendant itself

acknowledges that the documents it seeks to protect would

otherwise be responsive to a request for production of documents

propounded by the plaintiff on July 24, 1996. Understandably,

some time would have been required to make a good faith

attempt at resolution of this matter prior to seeking a protective

order from the court. Fed.R.Civ.P. 26(c). Nevertheless, the

purpose of Section Four (II)(A) is to facilitate the expedient

resolution of litigation by preventing unnecessary extensions of

the discovery period. Having all discovery disputes before the

court prior to the expiration of the discovery period enables this

court to resolve those disputes quickly and hopefully permit the

parties to conduct any "follow up" discovery which results from

the disputed discovery within the pre-established discovery

period.

7a

From the facts that have been presented to this court, the

defendant should have been aware of the need for a protective

order in sufficient time for it to file its motion in compliance

with both Fed.R.Civ.P. 26(c) as well as Section Four (II)(A) of

the Uniform Plan. Therefore, the Magistrate Judge was well

within her discretion to deny the defendant's motion as untimely

on this basis. Here again, denial of an untimely motion is not an

absolute rule. It has been this court's practice to allow the late

movant to demonstrate "good cause" for its failure to timely file

and to permit late filings when they are supported with such

“good cause." As previously noted, the Magistrate Judge's order

does not contain anything which indicates to this court that the

Magistrate Judge sought explanation for the untimely filing or

considered such a "good cause" exception.

a9 TIMELINESS OF THE CLAIMS OF PRIVILEGE

Finally, the Magistrate Judge determined that the

defendant had waived its assertion of privilege which served as

the basis for its motion for a protective order:

Moreover, defendant did not make a claim of

privilege in a timely manner. Defendant produced

the documents in question for in camera review

by the court. The documents appear to have been

generated during late 1989 and early 1990, and

there does not seem to be any dispute between

the parties regarding the documents' relevancy to

this lawsuit. Because the documents were in

existence well in advance of the filing of this

lawsuit, and the defendant does not claim that the

documents came to light only recently, they

should have been disclosed, or a claim of

privilege made, as part of the defendant's pre-

discovery disclosure of core information or a

supplement thereto. At the absolute latest,

defendant should have made an effective claim of

privilege in response to plaintiff's request for

production of documents.

Maxey, Civil Action No. 3:95cv6-D-A (N.D.Miss. Sep.

19, 1996) (Order Denying Motion for Protective Order, p. 3).

The Magistrate Judge went on to explain that the defendant

failed to comply with the requirements of Fed.R.Civ.P. 26(b)(5)

when it responded to the plaintiff's request for production of the

documents in question by merely stating "the information is

protected from disclosure by the work product doctrine and the

attorney-client and self-critical analysis privileges. When GM

investigates the kind of allegations plaintiff describes in this

request, it is either in response to, or in anticipation of,

litigation.”

The undersigned agrees with the Magistrate Judge that

the defendant failed to adequately assert its claim of privilege in

a timely manner. The Uniform Plan requires that such assertions

of privilege must be made at the time of their initial disclosures

to the opposing party, and the defendant should have at least

9a

supplemented its initial disclosures' as the Uniform Plan

‘Pursuant to amendments to the Uniform Plan

made effective July 1, 1996, Section Four (1)(A)(1)(b)

requires that:

When a party withholds information

by claiming that it is privileged or

subject to protection as __ trial

preparation material, the party shall

make the claim expressly and shall

describe the nature of the documents,

communications, or things _ that

produced or disclosed in a manner

that, without revealing information

itself privileged or protected, will

enable other parties to assess the

applicability of the privilege or

protection. The privilege log should

contain at least the following

information: name of the document;

description of the document; date;

author(s); recipient(s); and nature of

the privilege. To withhold materials

without such notice subjects the

withholding party to sanctions under

Rule 37, FRCP, and may be viewed as

a waiver of the privilege or protection.

While the defendant's initial disclosures in this case

10a

requires. Uniform Plan, Section Four (1)(A)(7). As well, the

defendant's response to the plaintiff's request for production for

these documents was insufficient to meet its obligation under the

Federal Rules of Civil Procedure. Fed.R.Civ.P. 26(b)(5) (stating

party seeking protection of privilege "shall make the claim

expressly and shall describe the nature of the documents,

communications or things not produced or disclosed in a manner

that, without revealing the information itself privileged or

protected, will enable other parties to assess the applicability of

the privilege or protection."). The generalized response of the

defendant to the Plaintiff's request for production was merely an

assertion of the privilege itself, and does not explain the nature

of the documents such that anyone could assess the applicability

of the privilege claimed. The defendant argues that if this

conclusion is correct, then the plaintiff's discovery responses

were also deficient. That matter is not before the court, and is

irrelevant in any event. The Magistrate Judge was well within

her discretion in deeming the privilege waived in this case,

particularly in light of the inadequate response provided to the

request and to provide a description of the document in a

supplementation to its initial disclosures. Fed.R.Civ.P. 26(b)(5).

This court cannot say that the Magistrate Judge's decision in this

matter is either clearly erroneous or contrary to law.

Ill. CONCLUSION

were served before this amendment became effective,

this enactment governed the defendant's obligation to

make supplemental disclosures after July 1, 1996.

lla

The Magistrate Judge had a sufficient reason to deny the

defendant's motion for a protective order, in that the defendant

had waived the asserted privilege by failing to adequately present

its claim of privilege. The Magistrate Judge also possessed the

discretion to deny the defendant's motion as untimely for two

different reasons, but there is nothing before the court that

indicates that she entertained the defendant's proffer of "good

cause" reason for the untimely filing. In any event, as the

Magistrate Judge had a valid ground for the denial of the motion,

this court shall not disturb the order. This court cannot say that

the Magistrate Judge's order in this matter was either clearly

erroneous or contrary to law.

A separate order in accordance with this opinion shall

issue this day

rhis the 18th day of November 1990.

s/ Glen H. Davidson

United States District Judge

IN THE UNITED STATES DISTRICT COURT

FOR THE NORTHERN DISTRICT OF MISSISSIPPI

WESTERN DIVISION

ARCHIE MAXEY, PLAINTIFF

V. Civil Action No. 3:95cev6-D-A

GENERAL MOTORS CORPORATION DEFENDANT

MEMORANDUM OPINION

By order dated September 19, 1996, United States

Magistrate Judge S. Allan Alexander denied the defendant’s

motion for a protective order to prevent the disclosure in

discovery of internal documents related to an entity known as the

“Ad Hoc Passive Restraint Committee.” Maxey v. General

Motors Corp., Civil Action No. 3:95cv006-D-A (N.D. Miss. Sep.

19, 1996) (Alexander, M.J.) (Order Denying Motion for

Protective Order). In denying the motion, Magistrate Judge

Alexander ordered that the defendant General Motors “shall

produce forthwith to plaintiff the documents at issue.”

Aggrieved with the decision of the Magistrate Judge, General

Motors presented to this court objections to the Magistrate

Judge’s order. This court, upon consideration of the objections,

declined to disturb the Magistrate Judge’s decision. Maxey v.

General Motors Corp., 1996 WL 692222, *1 (N.D.Miss. Nov.15,

1996) (Civil Action No. 3:95cv006-D-A) (Davidson, J.)

(Memorandum Opinion and Order). General Motors then

requested that this court reconsider its ruling of November 15, or

l4a

in the alternative, grant the certification of an interlocutory

appeal of that decision pursuant to 28 U.S.C. § 1292(b). This

court denied reconsideration and also denied the request for

alternative relief. Maxey v. Genera tor .. 1996 WL

737537, *1 (N.D.Miss. Dec.16, 1996) (Civil Action No.

3:95cv006-D-A) (Davidson, J.) (Memorandum Opinion and

Order).

As this court noted in its December 12 Memorandum

Opinion, this court’s denial of certification pursuant to 28 U.S.C.

§ 1292 (b) was unappealable. See, e.g., In re Air Crash Disaster,

821 F.2d 1147, 1167 (Sth Cir.1987) (“The decision to certify an

interlocutory appeal pursuant to section 1292(b) 1s within the

discretion of the trial court and unappealable.”) (citing In_re

McClelland Engineers, Inc., 742 F.2d 837, 839 (Sth Cir.1984),

cert. denied, 469 U.S. 1228, 105 S.Ct. 1228, 84 L.Ed.2d 366

(1985)). Therefore, General Motors instead sought other relief .

which was available to it. On December 19, 1996, GM

petitioned the Fifth Circuit Court of Appeals for a Writ of |

Mandamus to be issued to this court:

vacating the trial court’s order requiring

production of documents over GM’s claims of

privilege and directing it to rule on the

substantive merits of GM’s privilege claims.

General Motors additionally petitions . .

. for a limited writ of mandamus directing the

District Court to stay its November 18 order

pending resolution of this mandamus petition.

a

lSa

Petition for Writ of Mandamus, p. 24. The Fifth Circuit denied

the petition on January 6, 1996. Maxey v. General Motors, No.

96-60861 (Sth Cir. Jan. 6, 1997) (Order Denying Petition for

Writ of Mandamus). To the present extent of the court’s

knowledge, General Motors has not yet complied with

Magistrate Judge Alexander’s order of September 15.

I. The present state of affairs

Even in light of all of the above, Magistrate Judge

Alexander’s September 19 order remains in force and the

defendant General Motors must still “produce forthwith to

plaintiff the documents at issue.” Neither this court nor the Fifth

Circuit Court of Appeals has stayed that ruling. In light of the

facts of this case and of the Fifth Circuit’s recent denial of

General Motors’ petition for a writ of mandamus, the court shall

provide GM with another opportunity to produce these

documents. The defendant shall comply with the September 19

order on or before 12:00 p.m. on Friday, January 17, 1997.

In the event that General Motors fails to comply with

today’s directive from the court, the undersigned shall fashion an

appropriate remedy. This court has already beer required to

repeatedly sanction General Motors throughout this litigation for

its conduct. E.g., Maxey, Civil Action No. 3:95cv006-D-A

(N.D.Miss. Apr. 16, 1996) (Order imposing sanctions against

GM); (N.D.Miss. Jul. 18, 1996) (Order imposing sanctions

against GM); (N.D.Miss. Nov. 11, 1996) (Order imposing

sanctions against GM). Thus far, the imposition of lesser

monetary sanctions appears to be ineffective. In light of General

loa

Motors’ net worth, a more proportionate monetary sanction may

be required. Of course, the simple imposition of monetary

sanctions is not this court’s only option. This court may

incarcerate the defendant’s corporate representatives or its

counsel for civil contempt, strike parts of the defendant’s

pleadings in this cause or even enter judgment against it on the

plaintiff's clams. Should GM fail to comply with this court’s

orders and the undersigned determine that the imposition of

sanctions are appropriate, the undersigned will have no

reservations in imposing whatever sanction or combination of

sanctions that are required. Likewise, this court will have little

patience for incomplete compliance with the court’s orders. Any

failure on the part of General Motors to fully comply with this

production requirement will also subject it and its counsel to

scrutiny for sanctions.

A separate order in accordance with this opinion shall

issue this day.

This the 10th day of January 1997.

/s/ Glen H. Davidson

United States District Judge

17a

IN THE UNITED STATES DISTRICT COURT

EASTERN DISTRICT OF ARKANSAS

WESTERN DIVISION

KENNETH M. AND SARAH M.

BARANOWSKI,

Plaintiffs

Vs. No. LR-C-96-222

GENERAL MOTORS

CORPORATION, ET AL.,

Defendants.

EMORA AND ORDE

This suit involves an automobile accident in which

Kenneth Baranowski was driving a 1989 Oldsmobile Cutlass

Supreme coupe, and his wife, Sara Baranowski, was seated in the

front passenger seat. The plaintiffs’ car collided with another

vehicle and at some point during the accident, Sara Baranowski

was ejected from the car. The plaintiffs have brought claims

against the defendants, alleging that the door latch and seat belt

system of the Cutlass are defective and are the cause of Sara

Baranowski’s injuries.

18a

Now before the Court is the motion of the defendant

General Motors Corporation (““GM’,) for a protective order, to

which the plaintiffs have responded, GM has filed a reply, and

the plaintiffs have responded to the reply. Upon careful review

of the pleadings, the Court finds that the motion should be

denied.

Defendant GM _ states in its motion that certain

interrogatories and requests for production of documents

propounded by the plaintiffs require the disclosure of documents

and information pertaining to a GM committee known as the

Automatic Restraint Task Force (“Task Force’). The Task

Force, GM states, was made up of GM engineers and was created

in 1989 at the request of GM legal staff “who sought to

formulate legal advice and litigation strategies in connection

with claims made against GM alleging defects in the passive

restraint systems installed in a variety of GM _ vehicles.”

Defendant GM asserts the documents are protected from

disclosure by the attorney-client privilege and the work-product

doctrine.

Plaintiffs contend that the motion was untimely filed and

therefore GM has waived the privilege. In addition, they argue

that the documents are not privileged and are not work product.

On April 18, 1996, the plaintiffs served their First

Requests for Production of Documents, which included the

following challenged request:

19a

Request for Production No. 19: Produce a copy of any

reports generated by GM’s “Motors Insurance Corp.” or

any other statistical or accident data collected by Leonard

Evans or any GM employee(s) or contractor that

addressed ejection of belted occupants in motor vehicle

accidents. ‘

On June 4, 1996, the plaintiffs served their Second

Interrogatories and Requests for Production of Documents,

which included the following challenged interrogatories:

Interrogatory No. 55: Please list any and all information

which Defendant has regarding any known accidents or

failures involving the 1989 Oldsmobile Cutlass Supreme

and other GM vehicles that have the same or similar

passenger restraint system and/or the same door latch

mechanism.

| Interrogatory No. 56: Please list any accidents which

Defendant may have heard about with regard to the 1989

Oldsmobile Cutlass Supreme and other GM vehicles that

have the same or similar passenger restraint system

and/or the same door latch mechanism but were not

verified.

Interrogatory No. 57: Please list any investigations by

Defendant of reported failures or accidents relating to the

1989 Oldsmobile Cutlass Supreme and other GM

vehicles that have the same or similar passenger restraint

system and/or the same door latch mechanism.

Interrogatory No. 58: Please list any claims or lawsuits

filed against Defendant or its subsidiaries or affiliates

(including dealerships) relating to such accidents or

failures.

Defendant GM responded to the discovery requests on

May 31, 1996 and August 16, 1996 respectively, objecting to

these and other requests for production on the grounds that they

“may ask for information protected from disclosure by the work-

product doctrine and the attorney-client or investigative (or

consulting expert) privilege.” On March 5, 1997, in response to

plaintiffs’ motion to compel, GM filed this motion for protective

order.

A.

The plaintiffs urge that GM waived its privilege claims

because it failed to comply with Fed.R.Civ.P. 26(b)(5) which

provides: “When any party withholds information otherwise

discoverable under these rules by claiming that it is privileged or

subject to protection as trial preparation material, the party shall

make the claim expressly and shall describe the nature of the

documents, communications, or things not produced or disclosed

in a manner that, without revealing information itself privileged

or protected, will enable other parties to assess the applicability

of the privilege or protection.”

The plaintiffs assert that GM did not describe the nature

of the documents it claimed to be privileged, and cite the

Comment to Rule 26 which states: “A party must notify other

2la

parties if it is withholding materials otherwise subject to

disclosure under the rule or pursuant to a discovery request

because it is asserting a claim of privilege or work product

protection. To withhold materials without such notice 1s

contrary to the rule, subjects the party to sanctions under Rule

37(b)(2), and may be viewed as a waiver of the privilege or

protection.” The plaintiffs urge that because of other litigation’,

GM was fully aware of the existence of the Task Force

documents when it set forth blanket privilege objections without

any reference to any particular documents or categories of

documents. The plaintiffs further complain that GM filed its

motion for protective order months after the responses were

served and did not supplement its responses in order to inform

the plaintiffs of the existence of the Task Force documents.

Defendant GM contends that no specific discovery

request required production of the Task Force documents. It also

argues that because the requests that arguable call for production

of Task Force documents also ask for a large number of

documents unrelated to the subject matter of the lawsuit, the

Task Force documents are not “otherwise discoverable” and are

not responsive to any appropriate request for production.

“Whether a responding party states a general objection to

an entire discovery document on the basis of privilege, or

generally asserts a privilege objection within an individual

'See Pls.” Am. and Sub. Resp. to Defs.’ M.

Protective Order, Ex. D.

22a

discovery response, the resulting “blanket objection” is decidedly

improper. This fact should no longer be “news” to a responding

party.” Eureka Financial Corp. v. Hartford Accident & Indem.

Co., 136 F.R.D. 179, 182 (E.D. Cal. 1991) (citations omitted).’

Concerning GM’s argument that the discovery requests ask for

large numbers of documents that are unrelated to the subject

matter of the lawsuit, the Advisory Committee’s Notes to Rule

26(b)(5) state the procedure that should be followed:

If a broad discovery request is made - for example, for all

documents of a particular type during a twenty year

period - and the responding party believes in good faith

that production of documents for more than the past three

years would be unduly burdensome, it should make its

objection to the breadth of the request and, with respect

to the documents generated in that three year period,

produce the unprivileged documents and describe those

withheld under the claim of privilege. If the court later

rules that documents for a seven year period are properly

discoverable, the documents for the additional four year

should then be either produced (if not privileged) or

described (if claimed to be privileged).

The Court finds that GM waived any privilege claim on

the Task Force documents by failing to object and list the

documents in compliance with Rule 26(b)(5). Defendant GM

failed to fulfill its responsibility of supplying relevant

This opinion was written in anticipation of

the codification of paragraph 5 of Rule 26(b).

23a

information underlying its claim of privilege in compliance with

Rule 26(b)(5). It seems to the Court that GM could have at least

mentioned “Task Force Documents” in response to one if not

more of the challenged interrogatories and requests for

production. However, GM made no effort to comply with a

reasonable identification effort. This fact as well as GM’s

knowledge of the existence of the Task Force documents

mitigates in favor of denying the motion for protective order and

compelling disclosure.

B.

In addition, the Court finds that the Task Force

documents lost any privilege status when the findings and

conclusions of the Task Force were communicated to door

design engineers who incorporated those findings into

automobiles. Mr. Robert Sinke, who was the director of GM

Engineering Analysis Group, a group of engineers who

functioned as technical consultants to the GM legal staff, stated

that the findings of the Task Force were first communicated to

GM’s General Technical Committee and then, at that

Committee’s request, they were communicated to the appropriate

door and door latch type engineers. See Pls.’ Am. and Sub.

Resp. to Defs.’ M. Protective Order, Ex. G.

As the court stated in Courteau v. St. Paul Fire & Marine

Ins. Co., 821 S.W.2d 45, 47-48 (Ark. 1991): “‘The protection of

the privilege extends only to communications and not to facts.

A fact is one thing and a communication concerning that fact 1s

an entirely different thing. . .”” (quoting Philadelphia v.

24a

Westinghouse Elec. Corp., 205 F. Supp. 830, 831 (E.D. Pa.

1962). Based upon the testimony of Sinke, the Court finds that

the documents produced by the Task Force are not protected by

the attorney-client privilege.

The Court further finds that the Task Force documents

are not protected by the work-product doctrine. The work-

product doctrine is governed by Fed.R.Civ.P. 26(b)(3), and it

applies only to documents “prepared in anticipation of

litigation.” Peterson v. Douglas County Bank & Trust Co., 967

F.2d 1186, 1189 (8th Cir. 1992). The p tection applied to the

mental processes of attorneys and allows lawyers to work with

a certain degree of privacy. Upjohn Co. v. United States, 449

U.S. 397-399 (1981). Even documents prepared in anticipation

of litigation, however, may be discoverable upon a showing of

(1) substantial need and (2) an inability to obtain the documents

by other means without undue hardship. Fed.R.Civ.P. 26(b)(3).

The Court finds that many of the documents were

prepared predominantly by a team of engineers as opposed to

attorneys, while others include charts and statistics that do not

constitute legal analyses. In addition, the Court finds that the

plaintiffs are unable to obtain the documents by other means

without undue hardship.

II.

IT IS THEREFORE ORDERED that the motion for

protective order filed by defendant General Motors Corporation

(doc. 25) is denied.

nee

DATED this 15th day of May, 1997.

/s/ Susan Webber Wright

United States District Judge