# Opposition Brief — General Motors Corp. v. Grear

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## Record

- **Collection:** Supreme Court brief
- **Document type:** Opposition Brief
- **Published:** January 1, 1998
- **Citation:** 523 U.S. 1003

## Text

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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

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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

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Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40386013_1672%3A2. Public record. Not legal advice.