### *T he HONORABLE DONALD D. ALSOP, United States Distric t

Ju dge for the District of Minnesota, sitting b y designation. ___________ No. 95-1604

___________ Kenneth Lee Baker; Steven * Robert Baker, by next friend, * Melissa Thomas, * * Appellees, * Appeal from the United States * District Court for the Western v. * District of Missouri. * General Motors Corporation, * * Appellant. * *

___________________ * * The Product Liability * Advisory Council, Inc., * * Amicus Curiae. *

___________ Submitted: January 8, 1996 Filed: June 14, 1996

___________ Before BEAM, MORRIS SHEPPARD ARNOLD, Circuit Judges, and ALSOP, District * Judge.

___________ BEAM, Circuit Judge.

In this products liability action, General Motors Corporation (GM ) appeals a jury verdict in favor of plaintiffs for 11.3 million dollars

. GM a rgues that the district court erred in: (1) entering a discover y sanction against it; (2) instructing the jury onpunitive damages; and (3) all owing a former GM employee to testify at deposition and trial. W e
reverse.

### -2-

I. BACKGROUND

Thi s case arose out of an automobile accident in which Geral d Shoemaker and Beverly Garner were killed. Shoemaker and Garner collided head-on w ith another car after which a fire broke out in the engin e
com partment of their vehicle. Garner's sons, Kenneth and Steven Baker , brought this products liability action alleging that the engine fire was caused by a faulty fuel pump in the Chevrolet S-10 Blazer in which their mother was riding and that this defect caused he r death. GM asserted that the fuel pu mp was neither faulty nor the cause of the fire and tha t instead, Garner died as a result of collision impact injuries.

As in any products liability case, the cornerstone of the plain tiffs'
case is the product's defect. To help prove that defect, the plaintiffs asked GM to produce its 1241 reports (1241 reports are essentiall y complaints from customers regarding GM products) involving simila r accidents. GM represented that all 1241 reports were indexed in summary form in its central c omputer file. GM stated that its customary response to discovery requests was to produce these 1241 summaries instead of the actual 1241 reports. From these summaries, plaintiffs could request the specific 1241 reports in which they were interested. Both the 124 1 summaries and the rep orts proved difficult to obtain from GM and were the source of several discovery disputes during the months before trial.

On July 9, 1993, after several discovery stalemates, the distric t court issued an order which directed GM to produce "summaries of 1241 form s on non-collision under-hood electrical fires wit hin 10 days" of the order. On July 20, GM produced a group of computer summaries, none predating 1988

. GM stated that pre-1988 reports were no longer available due to a five-yea r retent ion policy and that its production, therefore, amounted to ful l compliance with the July 9th order.

### -3- After le arning from other plaintiffs' attorneys in other GM case s that they had received 1241 reports which were allegedly over five years old, the plaintiffs a sked the district court to sanction GM for what they believed to be abuses in the discovery process. On August 2, GM explained that a lthough there were several exceptions to its five-year retentio n policy, none of these exceptions had resulted inthe retention of any 1241 repor ts (or summaries) over five years old which were relevant to thi s
case.

A few d ays later, the plaintiffs found more 1241 reports over fiv e ye ars old in a National Highway Transportation Safety Administratio n (NHTSA) file. The file had been compiled by the NHTSA during one of its investi gations into possible automobile defects. The plaintiffs the n supplemented their request for sanctions against GM. This time, GM stated that it had never occurred to anyone to search the NHTSA files for older 1241 reports and cited the public availability of the reports to justify its lack of production. GM did, however, expand its records search at thi s time. Tw o days before trial, GM produced another five hundred 124 1 report s, some of which duplicated those found in the NHTSA file. G M claimed, however, that few of these reports were responsive to the July 9t h order. Following this production, the district court granted th e plaintiffs' request for sanctions against GM.

Noting GM 's continuing delay in the discovery process, the district court ordered GM's affirmative defenses strickenand further ordered that:

the follo wing matters, which relate to the substance of the July 9, 1993 order, shall be established for the purposes of this action:
The 1985 Chevrolet S-10 Blazer at issue in this case wa s defective in that General Motors placed an electric fuel pump in the fuel tank without an adequate mechanism to shut off the pump in the event of a malfunction or

### For 15 of his 30 years of credited service with GM, Elwel l 1 

### was a member of GM's Engineering Analysis staff which studied the performance of GM vehicles, especially those involved in products liab ilitylitigation. Based on this experience, Elwell ha d assisted GM lawyers in defending products liability actions. Although the settlement agreement was sealed by the cour t 2 

### below, we make use of the agreement to the extent necessary for our preparation of this opinion.
-4- collision and that General Motors has been aware of this defect and hazard for many years. The fuel pump in the 19 85 Chevrolet S-10 Blazer in this case continued to operate after the engine stopped upon impact.

Baker v. General Moto rs Corp. , 159 F.R.D. 519, 528 (W.D. Mo. 1994) ( Baker I ). The case proceeded to trial on the sole issue of whether the defect in the 1985 Chevy Blazer "directly caused or directly contributed to cause " the death of Beverly Garner. Trial Trans. at 1725.

At trial, the plaintiffs called former GM employee, Ronald Elwell , to te stify. Prior to trial, Elwell's testimony had been the subject o f 1 muchdebate. Elwell and GM had been involved in an earlier employmen t dispute which had led Elwell to sue GM for wrongful discharge. G M counterclaimed, alleging that in testifying for various plaintiffs (an d agains t GM) in other products liability actions, Elwell was divulgin g privileged informatio n. In settling the wrongful discharge claim, Elwell consented to a Michigan injunction which barred him from testifying agains t GMin products liability cases. GM and Elwell also entered into a
se ttlement agreement memorializing, among other things, their monetar y 2 settlement and GM's desire to prevent future dam aging testimony by Elwell. The settlement agreement provided, in part, that if Elwell were ordered to testify by a court or other tribunal, he could d o so without violating the settlement agreement.

### The only explanatory damages instruction given, as to either 3 

### type of damages, read in relevant part:

In d etermining what amount would be fair and jus t compensation in this case you may consider the pecuniary losses suffered by reason of the death and the loss o f companionship, comfort, instruction, guidance, counsel, training and support which decedent provided to Kenneth Baker and Steven Baker if any such loss or losses ar e foundby you. In addition, you may award such damages a s Beverly Sue Garner may have suffered between the time of inj ury and the ti me of death and for the recovery of which the deceased ma y have maintained an action had death not ensued. You may consider any mi tigating or aggravating circumstances attendant upon th e -5- In this case, GM strenuously objected to both Elwell's depositi on and trial testimony contending that Elwell's testimony was barred by th e Michigan injunction. The plaintiffs countered that the Michigan injunctio n
wa s not entitled to full faith and credit by the district court

. Alt ernatively, they argued that even if the injunction were entitled t o such credit, the settlement agreement allowed El well to testify. After in camera review of the Michigan injunction and the settlement agreement, the district court allowe d the plaintiffs to depose Elwell and to call him as a witness at trial.

El well's trial testimony concerned his research on fuel-fed engin e fires and the existence and contents of the "Ivey" document. The Ive y document is a value a nalysis document prepared by Edward Ivey, an Advance Design employee, and allegedly circulated among selected top GM an d Olds mobile officials. The Oldsmobile officials, according to Elwell' s testimony, were at that time responsible for the overall fuel system desig n of GM vehicles. The document analyzed the potential expense of the loss of human life per vehicle due to fuel-fed engine fires. According t o Elwell, the analysis implied that it would be wo rth only $2.40 per vehicle in operation for GM to prevent such fuel-fed fires.

At the end of trial, the district court incorporated its Rule 3 7 sanction language into the jury instructions. The district court als o instructed the jury as to both compensatory and aggravating circumstance damages. GM objected to the jury

3

### death if you find any such circumstances. You may not conside r

grief and bereavement by reason of the death.
Trial Trans. at 1727. GM's object ions included the following claims: (1) there was 4 

### inad equate evidence to support the submission of an aggravatin g cir cumstance damages instruction to the jury; (2) the lack o f evidence of aggravating circumstance damages denied GM th e opportunity to defend against such damages; (3) the jury was given insufficient standards for imposing aggravating circumstanc e da mages through vague and unconstitutional instructions; and (4 ) the failure to apportion between compensatory and aggravatin g circumstance damages was error.
-6- instru ctions, arguing, inter alia , that the instructions gave the jur y insufficient guidance in awarding wha t were essentially punitive damages. 4 GMalso objected to the lack of differentiation between compensatory and punitive damages in the verdict form. Following trial, the jury awarded th e plaintiffs 11.3 million dollars in damages, without apportionin g between compensatory and aggravating circumstance damages.

II. DISCUSSION

A. The Discovery Sanction

GM argues that the district court abused its discretion in entering the discovery sanction. The district court has broad discretion in issuin g sanctions for discovery abuse and its decision will be upheld absent a n abuse of discretion. Anderson v. Home Ins. Co. , 724 F.2d 82, 84 (8th Cir. 1983) (citing Fox v. Studebaker-Worthington, Inc. , 516 F.2d 989 (8th Cir. 1975)). Our scope of review of the district court's actions is, therefore , very narrow. Prow v. Medtronic, Inc. , 770 F.2d 117, 122 (8th Cir. 1985).

### Severe sanctions, such as that entered here, are ofte n 5 

### reserv ed for wilful or bad faith violations of court orders

. Societe Int'l v. Rogers , 357 U .S. 197, 212 (1958). This court has determ ined, however, that a "deliberate default" will suffice

. Anderson , 724 F.2d at 84 (citing Lorin Corp. v. Goto & Co. , 70 0 F.2d 1202, 1208 (8th Cir. 1983) (deliberateness includes fai lure to respond to discovery requests and failure to provide ful l information following a court order)). In any event, we agr ee with the di strict court's conclusion that GM's noncompliance was bot h deliberate and wilful. Baker I , 159 F.R.D. at 524.
-7- We mu st first determine whether the district court was correct i n fin ding a discovery violation to support its imposition of the sanctio n under Fe deral Rule of Civil Procedure 37 (Rule 37). To impose Rule 3 7 sanctions, there must be: (1) a court order compelling discovery; (2) a viola tion of that order which is wilful; and (3) prejudice to the othe r 5 party from the violation. Shelton v. American Motors Corp. , 805 F.2d 1323 , 133 0 (8th Cir. 1986); Edgar v. Slaughter , 548 F.2d 770, 772 (8th Cir

. 1977). In this case, all of these elements were present.

The July 9th order satisfies the first requirement, that there be a discovery order in place. GM failed to fully co mply with the order within the ten-day required period, as evidenced by its further production of 124 1

### GM argues that the July 9th order only re quired production of 6 

### computer summaries of 1241 reports. The district court seemed to share that belief. Baker I , 159 F.R.D. at 524. However, th e expre ss words of the order made no such limitation. GM furthe r argues t hat it only needed to produce the summaries found on it s central computer file, because the district court and th e plaintiffs understood that to be GM's customary discovery response technique. Again, the discovery order contains no such limi tation. Furthermore, as the district court explained, the order "referred only to computer summaries bec ause defendant's counsel represented to the Court that all 1241's that General Motors could produce in hard co py were indexed on the computer database." Id. Thi s ass urance was, at best, inaccurate. Consequently, GM cannot no w rel yon its own interpretation of the discovery order's limitin g la nguage which was employed largely because of its ow n misrepresentations. Similarly, GM cannot feign compliance w ith the discovery order by producing the actual 1241 reports, instead of the summaries as directed by the order.
GM app arently wants this court to overturn the distric t court's factual findings leading up to the imposition of san ctions. This, we refuse to do. See generally Dillon v. Nissan Motor Co. , 986 F.2d 263, 267 (8th Cir. 1993) (both sanction imposed unde r court's inherent authority and factual basis for sanction ar e rev iewed under abuse of discretion standard); Laclede Gas Co. v

. G.W. Warnecke Corp. , 604 F.2d 561, 565 (8th Cir. 1979) (part y sub ject to sanction for violating letter and spirit of discover y rules a s well as court's pretrial orders). GM cannot take a limited view of its duty to comply with discovery requests simply because it is customary for it to do so. GM was ordered to produce the summaries because they wer e supposed to lead to the production of all available 1241 reports. Because GM's assurance failed, so does its interpretation of the discovery order.
-8- repo rts in early August, just prior to trial. The district court' s 6 finding of prejudice is supported by

### -9-

the produced documents themselves. GM's late production of the 124 1 reports prevented the plaintiffs from researching them completely , essentiallydepriving them of the information which they were due. GM's conduct, therefore, clearly justified the imposi tion of Rule 37 sanctions. However, t his conclusion does not end our inquiry. We must determin e whether the sanction imposed was just and specifically related to the clai m at issue in the disco very order. See Fed. R. Civ. P. 37(b)(2); Insurance Corp. of Ireland v. Compagnie des Bauxites de Guinee , 456 U.S. 694, 70 7 (1982). In this case, we do not believe the sanction met that standard.

As this court has stated previously, "[t]here is a strong polic y favoring a trial on the merits and against depri ving a party of his day in court." Fox , 516 F.2d at 996. The sanction in this case failed to achiev e a balance between the policies of preventing dis covery delays and deciding cases on the merits. Such a balance recognizes that the opportunity to be heard is a litigant's "most precious right and should be sparingly denied. " Edgar , 548 F.2d at 773. GM was not given the ri ght to be heard. Instead, the jury was asked, e ssentially, to place a monetary value on the loss of human life. Before issuing such a sanction, fairness required the court to consider whether a more "just and effective" sanction was

### In so doing, we acknowledge the United St ates Supreme Court's 7 

### re cent decision in BMW of North America, Inc. v. Gore , 1996 W L 262429 (U.S. May 20, 1996) (re versing "grossly excessive" punitive damage s award as violative of Fourteenth Amendment's Due Proces s Clause). Although that decision does not affect this analys is, the district court may wish to consider its teachings on remand.
-10- available. Id. In this situation, other, less severe sanctions (includin g monetaryfines against GM and continuances for the plaintiffs) were both available and appropriate.

Whil e we do not condone GM's failure to meet its discover y obligations, we find that the sanction chosen by the district court wa s simply too severe for the facts presented and should have been drawn more narrowly. See English v. 21st Phoenix Corp. , 590 F.2d 723, 728 (8th Cir.) , cert. d enied , 444 U.S. 832 (1979). By providing that the fuel pump wa s defective and continued to operate here, the sanction forced the jury to find for the plaintif fs. Although the case ostensibly proceeded to trial

on the issue whether the defect "directly caused or directly contributed to cause" Garner's death, in effect, the jury instructions had alread y decided t he matter for the jury. Because the district court abused it s discretion in entering such a broad sanction, we reverse for imposition of a lesser sanction and for a new trial.

B. The Aggravating Circumstance Instruction

GM also a rgues that aggravating circumstance damages under Missouri law are in fact punitive damages and that it was subjected to such damages without the procedural safeguards required by Pacific Mut. Life Ins. Co.

v. Haslip , 499 U.S. 1 (1991). Because we reverse on the issue o f liability, we must va cate the award of damages. However, we address this issue to avoid error on retrial. 7

### Consequently, we find the appellees' argument that Bennet t 8 

### should only be given prospective application unavailing. Even if we found that Bennett announced a new principle of law, whic h we do not, w e would apply the Bennett decision retroactively. Se e Chevr on Oil Co. v. Huson , 404 U.S. 97, 106-07 (1971); Elliot v

. Kesler , 799 S.W.2d 97, 102 (Mo. Ct. App. 1990). Under Chevron , a decision is to be given prospective application only if: (1) i t established a new principle of law; (2) its retroactive appl ication woul d retard its operation; and (3) its retroactive applicatio n wou ld produce inequitable results. Chevron , 404 U.S. at 106-07

. In this case, we find that prospective application of Bennet t would prod uce inequitable results. The United States Supreme Court' s decision in Haslip , with which the instructions in this case failed to comply, preceded, by two years, the trial of this case. Haslip , 499 U.S. at 1. To approve of, in hindsight, proceedings whi ch were clearlyin violation of Supreme Court precedent at the time o f their occurrence, would be inequitable. Furthermore, we find, a s wo uld Missouri courts, that because Bennett clarified applicabl e substantive law, not merely procedural law, it should be give n retroactive effect. See Dietz v. Humphreys , 507 S.W.2d 389, 39 2 (Mo. 197 4); Prayson v. Kansas City Power & Light Co. , 847 S.W.2 d 852, 854 (Mo Ct. App. 1992), cert. denied , 114 S. Ct. 95 (1993).
-11- Pursuant to the Missouri Supreme Court's recent decision in Bennett

v. Owens-Corning Fiberglas Corp. , 896 S.W.2d 464 (Mo. 1995), there is no question that Missouri's aggravating circumstance damages are to be treate d

as pu nitive damages. The Missouri Supreme Court not only equate d aggravating circumstance and punitive damages, but further stated, "[a]t least since 1979, the damages attributed to `aggravating circumstances ' necessarily refers only to punitive damages." Id. at 466. In other words , Bennett did not signal a change in the law, but merely clarified the law as it had existed for quite some time in Missouri. As the Bennett court 8 stated, "[b]ecause aggravating circumstance damages are punitive in nature , theymay only be awarded if accompanied by the due process safeguards as articulated in Haslip ." Bennett , 896 S.W.2d at 466. Consequently, we mus t examine whether the Haslip safeguards were met in this instance.

### "Under the traditional common-law approac h, the amount of the 9 

### punitive award is initially determined by a jury instructed t o consi der the gravity of the wrong and the need to deter simila r wrongf ul conduct. The jury's determination is then reviewed b y trial and appellate courts to ensure that it is reasonable. " Haslip , 499 U.S. at 15.
-12- In Haslip , the United States Supreme Court held that the traditional

means of awarding punitive damages did not per se violate the Due Process

9 Clause of the United States Constitution. 499 U.S. at 15. However, the Cour t cautioned that "unlimited jury discretion--or unlimited judicia l discretion for that matter--in the fixing of punitive damages may invite extreme results that jar one's constitutional sensibilities." Id. at 18. The Court further stated that factfinders "must be guided by more than the defendant's net worth" in making such awards. I d. at 22. In Haslip , such guidance included: (1) jury instructions which adequately informed the jur y
as to the purpose of punitive damages--to punish the wrongdoer and t o protect the public from similar future harms; (2 ) post-trial procedures in whichthe trial court scrutinized punitive damages awards; and (3) state supreme court review, including a comparative analysis, to ensure awards were "reasonable in their amount and rational inlight of their purpose to punish what has occur red and to deter its repetition." Haslip , 499 U.S. at 19, 20, 21.

In this c ase, there was neither any guidance for the jury nor an y
res traint on its discretion in awarding punitive damages. Instead, th e jurywas allowed to award aggravating circumstance damages without being given a definition of what those damages entailed. This lack of guidance rendered the jury ins tructions unconstitutionally vague and violated GM's right to due process. See Bennett , 896 S.W.2d at 466.

The jury also did not apportion its damages award betwee n compensatory and punitive damages, as required by Bennett . Trial

### -13-

Trans. at 1706. This resulted in a lump sum award of 11.3 million dollars

. As GM stated in its objection to the lack of division, "the defendant unde r these circumstances can be punished without know ing what the punishment is since the damages are one figure." Trial Trans. at 1705-06. Because ther e is no way to compare the punitive and compensatory damages awards, GM has effectively been denied its right to trial court and appellate court revie w of the punitive damages award. Therefore, the damages award was defective

.

C. The Michigan Injunction

The constitutional full faith and credit principle requires tha t federal courts give the same faith and credit to a state court judgment as would the state court in which it was rendered. U.S. Const. Art. IV § 1; 28 U.S.C. § 1738. See also Matsushita Elec. Ind us. Co. v. Epstein , 116 S. Ct. 873, 877 (1996). GM asserts that the district court violated thi s principle in allowing the plaintiffs to take Ronald Elwell's deposition an d in allo wing him to testify at trial. GM argues that the district cour t should instead have given full faith and credit to the Michigan injunction barring Elwell's test imony. Because the district court's decision to not extend the injunction full faith and credit invo lves a question of law, we

rev iewit de novo. See In re Garner , 56 F.3d 677, 679 (5th Cir. 1995) ; Southe ast Resource Recovery Facility Auth. v. Montenay Int'l Corp. , 97 3 F.2d 711, 712 (9th Cir. 1992). The district court refused to give the Michigan injunction full faith and credit because it believed: (1) a "public policy" exception to full faith and credit allowed Elwell's testimony, and(2) full faith and credit impl ies the same faith and credit; therefore, an injunction which i s modifiable in Michigan is modifiable in Missouri. We first address th e district court's reliance on a "public policy" e xception to full faith and credit.

### In so doing, we acknowledge the contrary authority cited by 1 0 

### the appellant on this issue. See , e.g. , Howlett v. Rose , 496 U.S. 356, 382 n.26 (1990); Restatement (Second) of Conflict of Laws § 117 (1971) (sister state judgment recognized in other stat e regardless of the fact that bringing the original action in th e recognizing state would offend that state's public policy).
-14- The di strict court found that the Michigan injunction violate d Missou ri's public policy, as evidenced by Missouri's Rules of Civi l Proc edure, which favors full disclosure of all nonprivileged, relevan t inf ormation. See , e.g. , Mo. R. Civ. P. 56. Because the Michiga n injunction bars Elwell from testifying even as to nonprivilege d information, the district court refused to exten d full faith and credit to the injunction. Assuming, arguendo , that a publ ic policy exception to the full faith and credit command exists, we conclude that the district court 10 improperly relied on such an exception in this case because of Missouri's equally strong public policy in favor of full faith and credit.

Missouri public policy embraces the theory of full faith and credit, as evidenced by the r eferences to it in the state's statutes. See , e.g. , Mo. Rev. Stat. §§ 511.760; 511.778. Missouri case law also contain s
numerous discussions of the importance of the full faith and credi t requiremen t. See , e.g. , Roseberry v. Crump , 345 S.W.2d 117, 119 (Mo

. 1961); In re Veach , 287 S.W.2d 753, 759 (Mo. 195 6); Bastian v. Tuttle , 606 S.W.2d 808, 809 (Mo. Ct. App. 1980); Corning Truck & Radiator Serv. v

. J.W.M., Inc. , 542 S.W.2d 520, 524 (Mo. Ct. App. 1976). Under thi s doctrine, Missouri co urts must give full faith and credit to judgments of sister state courts "unless it can be shown that there was lack o f jurisdiction over the subject matter, failure to give due notice, or fraud in concoc tion of the judgment." Bastian , 606 S.W.2d at 809. No suc h allegations have been made in this case. It is therefore difficult to see how Missou ri's public policy is any less supportive of full faith an d credit than it is of full and fair discovery. Consequently, the district court incorrectly used Missouri's

### -15-

interest in full and fair discovery to override its interest in giving ful l faith and credit to a sister state's judgment.

The district court's reliance on the modification argument is als o problematic. The dis trict court found that the injunction was subject to modification in Michigan. It then held that because the injunction wa s modifi able in Michigan it need not be given full faith and credit i n Missou ri, but only the same faith and credit as given by the issuin g state's c ourt. U.S. Const. Art. IV § 1; 28 U.S.C. § 1738. See als o Matsushita , 116 S. Ct . at 877. However, the mere fact that an injunction remains subject to modification in one state does not render it unworthy of full faith and credit in another. See Restat ement (Second) of Conflict of Laws § 109 (1988 revisions) (judgment entitle d to full faith and credit despite fact that it remains modifiable in rendering state).

The full faith and credit clause "is not so weak that it can b e evaded by mere mentio n" of the word "modification." Howlett v. Rose , 496 U.S. 356, 383 (1990). This is especially true on facts such as thos e pres ented here. First of all, although the appellees claim that th e injunction may be modified by the Michigan court, they presented n o evi dence that they requested a modification from that court. Secondly , although it has been asked on several occasions to modify the injunction, the Mic higan court has yet to do so. Thirdly, the district court foun d that M ichigan law required a change in circumstances to warran t modification of the injunction, see , e.g. , First Protestant Reformed Churc h v. De Wolf , 100 N.W.2d 254, 257 (Mich. 1960), bu t further found that there had been no "classical" change in circumstances between GM and Elwell in this c ase. Therefore, appellees have simply not presented sufficien t evidence to show that the Michigan court would modify this injunction.

To avoid its finding of unchanged circumstances, the district court emphasized the importance of other interests, such as the

### The district court also attached some significance to th e 11 

### fa ct that the GM/Elwell settlement agreement allowed Elwell t o testify, without violating its terms, when ordered to do so by a court of competent jurisdiction. The settlement agreemen t provides, in relevant part:

It is agreed that [Elwell's] appearance and testimony, i f any , at hearings on Motions to quash subpoena or a t deposition or trial or other o fficial proceeding, if the Court or other tribunal so ord ers, will in no way form a basi s for an action in violation of the Permanen t Injunction or this Agreement.
Settle ment Agreement at 10. This language merely shows GM' s concession that some courts might fail to extend full faith an d credit to the injunction.
-16- discovery rights of litigants, of which it belie ved the Michigan court was

unaware when it entered the injunction. Baker ex rel. Cress v. General 11 Motors Corp. , No. 91-0991 (W.D. Mo. June 18, 199 3) (reproduced in Addendum to Appellant's Brief at 11). We find no evidenc e in the record to support such a statement. A stipulation in which GM expressly approved of Elwell' s testimony in another case then pending was executed concurrently with the injunction. The Mich igan court was, therefore, aware of the existence of at least some other parties' interests. The district court also would hav e assumed, as did the parties, that other similar litigation would follow; the in junction would otherwise have been unnecessary. Consequently, w e find that the appellees failed to establish that the Michigan injunction was not entitled to full faith and credit. III. CONCLUSION

Because the district court erred in entering a Rule 37 sanction that was too severe and in allowing Elwell to testify , we reverse and remand to the district court for further proceedings consistent with this opinion.

### -17- A true copy.

Attest:

CLERK, U. S. COURT OF APPEALS, EIGHTH CIRCUIT.