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UNITED STATES DISTRICT COURT

EASTERN DISTRICT OF MICHIGAN

SOUTHERN DIVISION

NISSAN NORTH AMERICA, INC.,

Plaintiff, CIVIL ACTION NO. 09-CV-11783

vs.

DISTRICT JUDGE ANNA DIGGS TAYLOR

JOHNSON ELECTRIC NORTH MAGISTRATE JUDGE MONA K. MAJZOUB

AMERICA, INC.,

Defendant.

_____________________________/

ORDER GRANTING IN PART AND DENYING IN PART DEFENDANT’S MOTION TO

COMPEL AND FOR SANCTIONS (DOCKET NO. 18)

This matter comes before the Court on Defendant’s Motion to Compel and for Sanctions,

filed on December 10, 2009. (Docket no. 18). Plaintiff has filed a response. (Docket no. 21).

Defendant filed a Reply Brief. (Docket no. 23). The parties filed a Joint Statement of Resolved and

Unresolved Issues. (Docket no. 29). The motion has been referred to the undersigned for decision

pursuant to 28 U.S.C. § 636(b)(1)(A). (Docket no. 19). The Court dispenses with oral argument on

the motion pursuant to E.D. Mich. LR 7.1(e). This matter is now ready for ruling.

Plaintiff brought this action on April 10, 2009, claiming that Defendant’s design,

manufacture and supply of allegedly defective air conditioner condenser fan motors and fan

assemblies led to a safety recall of model year 2004-2006 Nissan Titan, Nissan Armada and Infinti

QX56 vehicles. On August 7, 2009 Defendant served its First Request for Production of Documents

to Plaintiff. Plaintiff served its responses and objections on September 8, 2009. In its responses,

Plaintiff asserted boilerplate objections to virtually every document request but stated that it would
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produce documents subject to an appropriate protective order. (Docket no. 18, Ex. 5).

The Court entered a Stipulated Protective Order on September 24, 2009 and Plaintiff began

a rolling production. On December 1, 2009 the Court entered a stipulated order modifying the

Scheduling Order and extending the cutoff date for discovery until June 25, 2010. (Docket no. 16).

The order provides that Plaintiff is experiencing difficulties collecting documents and expects to

produce large volumes of responsive documents. Nine days after the Stipulated Order was entered,

Defendant filed the instant motion to compel. In its motion, Defendant seeks an order compelling

Plaintiff in part to (1) produce documents in response to Defendant’s First Request for Production

of Documents by a date certain, or be precluded from presenting evidence on any topic for which

its production is incomplete; and (2) provide complete and accurate responses to Defendant’s First

Set of Interrogatories by a date certain, or be precluded from presenting evidence of damages.

(Docket no. 18).

On February 19, 2010, the parties filed a Joint Statement of Resolved and Unresolved Issues.

(Docket no. 29). The Joint Statement raises multiple issues and essentially asserts an entirely new

motion to compel, claiming that the following issues remain unresolved between the parties: (1)

whether Plaintiff has failed to produce all documents in its possession regarding the electrical system

design relating to the condenser fan motor of the subject vehicles; (2) whether Plaintiff has failed

to produce all documents in its possession regarding the basis and propriety of the subject recall; (3)

whether Plaintiff has failed to produce all documents in its possession regarding the propriety of the

recall service procedure; (4) whether Plaintiff has failed to answer Defendant’s interrogatories and

produce documents regarding damages; (5) whether Plaintiff has failed to search for and produce

all relevant ESI from its electronic data systems and produce all documents as they are kept in the
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ordinary course of business or correlate documents to Defendant’s requests; (6) whether Plaintiff

should be precluded from introducing evidence relating to the recall, the risk of fire, and the

damages allegedly stemming from the recall and the subsequent inspection and remedial actions

taken by Plaintiff’s dealers; and (7) whether Plaintiff should be sanctioned for providing a false

verification of its interrogatory responses in violation of Fed.R.Civ.P. 33(b)(3). (Docket no. 29).

Motion to Compel the Production of Documents

Plaintiff contends that it has produced documents on a rolling basis, consisting of twelve

waves of documents amounting to approximately 268,364 pages of which over 260,119 pages are

ESI. (Docket no. 21). Defendant contends that Plaintiff has delayed its production of documents,

has failed to make a significant production of ESI with metadata, and has failed to produce

documents prior to 2007 despite requests for documents as early as 2000. The Court will address

the categories of documents discussed in the parties’ Joint Statement. (Docket no. 29). Because

Plaintiff’s document production was not complete as of the date it filed its response to this motion,

Plaintiff will be ordered to supplement its responses to Defendant’s discovery requests.

1. Production of Documents Regarding the Electrical System Design Relating to the Condenser Fan

Motor of the Subject Vehicles

Defendant argues that Plaintiff has not produced (1) schematics of the original electrical

system for the recalled vehicles, including the initial design of the fuse protection relating to the

condenser fan motors; and (2) documents showing the decisions behind Plaintiff’s electrical design

of the subject vehicles, including choices Plaintiff made to bundle or not bundle the fuses applicable

to the condenser fan motors with other systems. (Docket no. 29 at 1-2). Plaintiff contends that it

has produced electrical system design documents for the fan and fan motor assembly at issue, but
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argues that Defendant has not served a document request seeking vehicle-wide electrical system

design documents. (Docket no. 29 at 2).

The parties identify Defendant’s arguments as falling under the ambit of Document Requests

nos. 1 and 2. (Docket no. 29). Document Requests nos. 1 and 2 ask Plaintiff for documents

concerning the electrical system as it relates to the 90 Watt Fan Motors and Cooling Fan Assemblies

in issue, including documents related to protections that exist to prevent overheating, fire, and other

malfunctions, and the fuse design and configuration. (Docket no. 18, Ex. 2). “90 Watt Fan Motors”

is defined as meaning the 90 watt air conditioner condenser fan motors and assemblies. (Docket no.

18, Ex. 2 at 3).

The Court does not interpret Document Requests nos. 1 and 2 to require production of

vehicle-wide electrical system design documents. The requests relate to the 90 Watt Fan Motors and

Cooling Fan Assemblies of the recalled vehicles, as those terms are defined in the Defendant’s

Request for Production of Documents.

Plaintiff is ordered to supplement its responses to Document Requests nos. 1 and 2 to

produce responsive documents it has in its possession, custody, or control dating back to 2000 which

it has not already produced. Plaintiff’s production should include documents showing the

schematics of the original electrical system for the recalled vehicles as they relate to the 90 Watt Fan

Motors and Cooling Fan Assemblies, including the fuse protection relating to the condenser fan

motors. Plaintiff should also produce documents showing the decisions behind Plaintiff’s electrical

design of the subject vehicles as they relate to the 90 Watt Fan Motors and Cooling Fan Assemblies,

including choices Plaintiff made to bundle or not bundle the fuses applicable to the condenser fan
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motors with other systems.

2. Production of Documents Regarding the Basis and Propriety of the Subject Recall

Defendant contends that Plaintiff has not produced (1) documents relating to the decision

making process or analysis underlying the recall, including documents showing a cost/benefit

analysis or other economic analysis of the recall; and (2) documents comparing the failure rates for

the various motors at issue. Plaintiff asserts that it has produced all non-privileged recall basis

documents in its possession and has identified by bates numbers “some specific examples in

Nissan’s production of where the actual recall decision was documented.” (Docket no. 29 at 4).

Plaintiff also asserts that it is presently seeking the requested documents from its parent company.

Defendant does not identify which document requests ask for the documents it claims it is

entitled to. A review of the document requests shows that Document Request no. 15 asks Plaintiff

for all documents related to the recall of the subject vehicles. Document Requests nos. 10 and 19

ask Plaintiff for all documents related in part to the testing of the 90 Watt Fan Motors and Cooling

Fan Assemblies of the subject vehicles.

Plaintiff is ordered to supplement its document production to provide documents it has in its

possession, custody, or control regarding the basis and propriety of the subject recall. Additionally,

because Defendant cannot locate documents Plaintiff claims to have produced with regard to the

basis and propriety of the subject recall, Plaintiff will be ordered to identify by bates number

documents it has produced related to this issue or otherwise identify the documents in a way in

which Defendant can easily locate them. Plaintiff should include in its production documents

relating to the decision making process or analysis underlying the recall, including documents

showing a cost/benefit analysis or other economic analysis of the recall. Plaintiff should also
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produce documents in its possession, custody, or control which compare the failure rates for the

various motors at issue.

Documents to which Plaintiff asserts a privilege must be listed and described in a detailed

privilege log pursuant to Fed.R.Civ.P. 26(b)(5)(A) which is to be provided to the Defendant. The

privilege log must contain sufficient information to permit a determination as to whether the

withheld documents are subject to a privilege or protection.

3. Production of Documents Regarding the Propriety of the Recall Procedure

Defendant contends that Plaintiff has not produced documents relating to the basis for the

development or implementation of the recall service procedure. Specifically, Defendant contends

that Plaintiff has not produced documents showing how the recall protocol was developed, including

its choices to: (a) recall all Nissan Titan, Nissan Armada and Infiniti QX56 vehicles manufactured

from March 17, 2005 to August 21, 2006, as well as model year 2004 and 2005 vehicles where the

air conditioning condenser fan was replaced; (b) merely inspect one group of motors; (c) apply a

protector kit to a second group of motors; and (d) completely replace and install a maxi fuse to a

third group of motors. (Docket no. 29 at 5). Plaintiff contends that it has produced the nonprivileged documents it has in its possession that relate to the propriety of the recall service

procedure, and has identified by bates numbers “some specific examples in Nissan’s production of

where the company’s decision regarding a recall fix was documented.” (Docket no. 29 at 6).

Plaintiff also asserts that it is seeking the requested documents from its parent company.

Defendant has failed to identify which document request asks for the documents it seeks.

The Court will construe this as a request made under Document Request no. 15, which asks Plaintiff

for all documents related to the recall of the subject vehicles, and Document Request no. 18 which
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relates to the Maxi fuse.

Plaintiff is ordered to supplement its document production to provide documents it has in its

possession, custody, or control regarding the propriety of the recall procedure. Because Defendant

cannot locate documents Plaintiff claims to have produced, Plaintiff will be ordered to identify by

bates number documents it has produced related to the propriety of the recall procedure, or otherwise

identify the documents in a way in which Defendant can easily locate them. Plaintiff should include

in its production documents showing how the recall protocol was developed, including its choices

to: (a) recall all Nissan Titan, Nissan Armada and Infiniti QX56 vehicles manufactured from March

17, 2005 to August 21, 2006, as well as model year 2004 and 2005 vehicles where the air

conditioning condenser fan was replaced; (b) merely inspect one group of motors; (c) apply a

protector kit to a second group of motors; and (d) completely replace and install a maxi fuse to a

third group of motors.

Documents to which Plaintiff asserts a privilege must be listed and described in a detailed

privilege log pursuant to Fed.R.Civ.P. 26(b)(5)(A) which is to be provided to the Defendant. The

privilege log must contain sufficient information to permit a determination to be made as to whether

the withheld documents are properly subject to a privilege or protection.

4. Production of Documents Regarding Damages

Defendant contends that Plaintiff produced spreadsheets in response to Interrogatories Nos.

1 and 2 of its First Set of Interrogatories identifying among other information the recalled vehicles,

the remedial action taken, the date and location where remedial action took place, and the dollar

amount of claimed damages, but failed to produce the documents underlying the spreadsheets.

(Docket no. 29 at 7). Plaintiff asserts that the raw data contained in the spreadsheets resides in its
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databases in the usual course of business and must be compiled and produced in a useable format

such as the spreadsheets. (Docket no. 29).

Once again Defendant does not identify which document requests seek documents related

to the information it seeks. The Court will construe its request as being brought under Document

Requests nos. 15, 16, 20, 31, and 32.

Federal Rule of Civil Procedure 34(b)(2)(E)(i) provides that a “party must produce

documents as they are kept in the ususal course of business or must organize and label them to

correspond to the categories in the request.” To the extent the request does not identify a form for

production of ESI, “a party must produce it in a form or forms in which it is ordinarily maintained

or in a reasonably usable form or forms.” Fed.R.Civ.P. 34(b)(2)(E)(ii). The parties agreed in their

Rule 26(f) Report to produce ESI in the form of single page TIFFS with associated metadata fields

of author, date, recipient, cc, bcc, subject/title, and doctype. (Docket no. 14).

Plaintiff will be ordered to produce the documents underlying the six categories of

information sought in Interrogatories nos. 1 and 2 in accordance with Rule 34(b)(2)(E)(i) and the

Rule 26(f) plan.

5. Production of ESI

Defendant contends that Plaintiff has not identified which readily accessible data systems

it searched, how it searched them, or what non-readily accessible systems have not been searched.

(Docket no. 29 at 9). Plaintiff asserts that it has diligently searched for and produced relevant, nonprivileged ESI from its readily accessible data systems, including email, group directories, user

shares, personal computers and other systems, but has not processed non-readily accessible sources

such as disaster recovery sources which are not restorable without excessive cost and effort.
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(Docket no. 29 at 10).

Federal Rule of Civil Procedure 26 provides that a party “need not provide discovery of

electronically stored information from sources that the party identifies as not reasonably accessible

because of undue burden or cost.” Fed.R.Civ.P. 26(b)(2)(B). On a motion to compel, “the party

from whom discovery is sought must show that the information is not reasonably accessible because

of undue burden or cost.” Id.

Plaintiff is ordered to supplement its discovery responses to specifically identify sources of

ESI which are not reasonably accessible, the reasons for its contention that the ESI is not reasonably

accessible without undue cost and effort, and the anticipated costs and efforts involved in retrieving

that ESI. Documents to which Plaintiff asserts a privilege must be listed and described in a detailed

privilege log pursuant to Fed.R.Civ.P. 26(b)(5)(A) which is to be provided to the Defendant. The

Plaintiff’s privilege log must contain sufficient information to enable a determination to be made

as to whether the withheld documents are properly subject to a privilege or protection.

6. Production of Documents As They Are Kept in the Ordinary Course of Business or to Correlate

to Defendant’s Requests

Defendant contends that Plaintiff’s documents do not “appear to have been produced in the

manner in which they are ordinarily kept, nor are they correlated to [Defendant’s] requests.”

(Docket no. 29). Plaintiff contends that it has produced its documents in the ordinary course of

business pursuant to Fed.R.Civ.P. 34. The Court has no basis at this time for finding that Plaintiff

has not complied with Rule 34 with regard to the documents it has produced. Defendant’s motion

is denied as to this request.
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Motion to Compel Responses to Defendant’s First Set of Interrogatories

Defendant served its First Set of Interrogatories on Plaintiff on October 19, 2009, consisting

of two requests seeking information as to the identity of recalled vehicles, actions taken in response

to the recall, and the amount claimed in damages. Defendant avers that Plaintiff provided much of

the requested information in the form of spreadsheets but has failed to provide the key to interpreting

codes used in the Dealer Operation Code column of the spreadsheets. Dealer Operation Codes

identify what actions were taken by service personnel. (Docket no. 29 at 7). Plaintiff claims that

it has provided Defendant with the Dealer Operation Codes in question.

Plaintiff is ordered to supplement its response to Interrogatories Nos. 1 and 2 to either

provide Defendant with the Dealer Operation Codes or identify by bates number the document

which does.

Sanctions

Defendant contends that Plaintiff should be precluded from introducing evidence relating

to the recall, the risk of fire, and the damages allegedly stemming from the recall and the subsequent

inspection and remedial actions taken by Plaintiff’s dealers. Defendant further contends that

Plaintiff should be sanctioned for providing a false verification of its interrogatory responses in

violation of Fed.R.Civ.P. 33(b)(3). The Court finds that sanctions are not appropriate at this time.

Defendant’s request for sanctions is denied.

IT IS THEREFORE ORDERED that Defendant’s Motion to Compel is GRANTED IN

PART AND DENIED IN PART. Plaintiff is ordered to complete its document production and

provide supplemental responses in accordance with this order on or before May 19, 2010. Where

applicable, Plaintiff is ordered to produce documents dating back to 2000. Documents held by
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Plaintiff’s parent company must be produced to the extent they are within Plaintiff’s possession,

custody, or control. If Plaintiff does not have responsive documents in its possession, custody, or

control it must state as much in its responses.

IT IS FURTHER ORDERED that Plaintiff must supplement its responses to Document

Requests nos. 1 and 2 as provided in this order. Plaintiff’s production must include documents it

has within its possession, custody, or control showing the schematics of the original electrical

system for the recalled vehicles as they relate to the 90 Watt Fan Motors and Cooling Fan

Assemblies, including the fuse protection relating to the condenser fan motors. Plaintiff must also

produce documents showing the decisions behind Plaintiff’s electrical design of the subject vehicles

as they relate to the 90 Watt Fan Motors and Cooling Fan Assemblies, including choices Plaintiff

made to bundle or not bundle the fuses applicable to the condenser fan motors with other systems.

IT IS FURTHER ORDERED that Plaintiff must supplement its document production to

provide documents it has in its possession, custody, or control regarding the basis and propriety of

the subject recall. Plaintiff is ordered to identify by bates number documents it has produced related

to this issue or otherwise identify the documents in a way in which Defendant can easily locate

them. Plaintiff should include in its production documents relating to the decision making process

or analysis underlying the recall, including documents showing a cost/benefit analysis or other

economic analysis of the recall. Plaintiff should also produce documents in its possession, custody,

or control which compare the failure rates for the various motors at issue.

IT IS FURTHER ORDERED that Plaintiff must supplement its document production to

provide documents it has in its possession, custody, or control regarding the propriety of the recall

procedure. Plaintiff is ordered to identify by bates number documents it has produced related to the
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propriety of the recall procedure, or otherwise identify the documents in a way in which Defendant

can easily locate them. Plaintiff should include in its production documents showing how the recall

protocol was developed, including its choices to: (a) recall all Nissan Titan, Nissan Armada and

Infiniti QX56 vehicles manufactured from March 17, 2005 to August 21, 2006, as well as model

year 2004 and 2005 vehicles where the air conditioning condenser fan was replaced; (b) merely

inspect one group of motors; (c) apply a protector kit to a second group of motors; and (d)

completely replace and install a maxi fuse to a third group of motors.

IT IS FURTHER ORDERED that the Plaintiff must produce the underlying documents

related to the six categories of information sought in Interrogatories nos. 1 and 2 in accordance with

Rule 34(b)(2)(E)(i) and the Rule 26(f) plan.

IT IS FURTHER ORDERED that Plaintiff must identify sources of ESI it did not search

because they are not reasonably accessible, the reasons for its contention that the ESI is not

reasonably accessible without undue cost and effort, and the anticipated costs and efforts involved

in retrieving that ESI.

IT IS FURTHER ORDERED that Plaintiff must supplement its response to Interrogatories

Nos. 1 and 2 to either provide Defendant with the Dealer Operation Codes or identify by bates

number the document which does.

IT IS FURTHER ORDERED that documents to which Plaintiff asserts a privilege must

be listed and described in a detailed privilege log pursuant to Fed.R.Civ.P. 26(b)(5)(A) which is to

be provided to the Defendant. The Plaintiff’s privilege log must contain sufficient information to

permit a determination to be made as to whether the withheld documents are properly subject to a

privilege or protection.
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IT IS FURTHER ORDERED that Defendant’s request for sanctions is denied.

NOTICE TO THE PARTIES

Pursuant to Federal Rule of Civil Procedure 72(a), the parties have a period of fourteen days

from the date of this Order within which to file any written appeal to the District Judge as may be

permissible under 28 U.S.C. § 636(b)(1).

Dated: May 5, 2010 s/ Mona K. Majzoub 

MONA K. MAJZOUB

UNITED STATES MAGISTRATE JUDGE

PROOF OF SERVICE

I hereby certify that a copy of this Order was served upon Counsel of Record on this date.

Dated: May 5, 2010 s/ Lisa C. Bartlett 

Case Manager