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UNITED STATES DISTRICT COURT

EASTERN DISTRICT OF MICHIGAN

SOUTHERN DIVISION

TIMOTHY HENNIGAN, AARON MCHENRY,

and CHRISTOPHER COCKS,

individually and on behalf of themselves

and all others similarly situated,

Hon. Victoria A. Roberts

Plaintiffs,

Case No. 09-11912

v.

GENERAL ELECTRIC COMPANY,

Defendant.

________________________________/

ORDER ADOPTING MAGISTRATE JUDGE’S ORDER

I. Introduction

This matter is before the Court on Defendant’s Objections to the Magistrate

Judge’s Order Granting in Part and Denying in Part Plaintiff’s Motion to Compel and for

Sanctions (Order). (Doc. 64). The Motion to Compel (Doc. 32) was referred to

Magistrate Judge Michael Hluchaniuk for a hearing pursuant to 28 U.S.C. §

636(b)(1)(A). The Magistrate conducted a hearing on the motion on March 18, 2010,

and directed Plaintiffs to depose GE’s corporate representatives to better understand

the way in which GE stores information. 

After depositions were completed, the parties filed supplemental briefs, and the

Magistrate Judge held a second hearing on June 16, 2010. 

On August 3, 2010, the Magistrate Judge issued an Order (1) granting Plaintiffs’

motion to compel, (2) denying Plaintiffs’ request for sanctions, and (3) ordering
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Defendant to pay the cost of the depositions taken by Plaintiffs, totaling $3,635.61. 

Defendant objects to the Order as clearly erroneous because (1) it requires

discovery beyond the allegations in the Plaintiffs’ Third Amended Complaint; (2) it

improperly places the burden on Defendant to show that the information Plaintiffs seek

is not relevant; (3) it requires Defendant to produce information on incidents without a

showing that those incidents are similar to the alleged incidents in the Third Amended

Complaint; and (4) it requires Defendant to participate in expansive discovery before

Defendant’s motion to dismiss is decided. Defendant also objects to the Magistrate

Judge’s failure to recognize the burden on GE to comply with this discovery. 

For the reasons stated, the Court ADOPTS the Magistrate Judge’s Order. 

II. Background

Plaintiffs, Timothy Hennigan, Aaron McHenry, and Christopher Cocks, brought a

putative class action against GE based on allegations that GE manufactured defective

microwaves which Plaintiffs bought or received. The causes of action include: (1) Strict

Products Liability; (2) Breach of Express Warranty; (3) Breach of Implied Warranty of

Merchantability; (4) violation of The Magnuson-Moss Warranty Act; (5) violation of the

State Consumer Protection Acts; and (6) Unjust Enrichment. 

According to Plaintiffs, GE’s microwaves turn on on their own and generate

excessive amounts of heat, sometimes resulting in smoke or fires. Plaintiffs say that

GE has known, or reasonably should have known, since 2002, that its microwave ovens

are defective, unreasonably dangerous, and unsuitable for their intended use. 

Since November 2, 2009, the parties have been under a Scheduling Order from
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this Court which directs GE “to provide Plaintiffs with any complaints it has received

from consumers with Microwave Models identical to those of the named Plaintiffs, that

their microwaves turn on by themselves. General Electric is also to provide Plaintiffs

with any information it has from consumers who have made this same complaint,

regardless of the type or model of microwave oven.” (Sched. Order ¶ 2). The

Scheduling Order also states that “Plaintiffs and General Electric can engage in a

limited amount of paper discovery, but no depositions . . . .” (Sched. Order ¶ 11). 

Plaintiffs served a request for production of documents on GE on November 24,

2009, asking GE to produce 29 categories of documents, including consumer

complaints. On December 22, 2009, GE responded to Plaintiffs’ request for production

with objections to every request and did not produce any responsive documents. 

On January 22, 2010, after filing their Third Amended Complaint, Plaintiffs filed a

Motion to Compel and for Sanctions against GE. Plaintiffs claim that GE violated the

Court’s Scheduling Order by refusing to produce consumer complaints. According to

the Scheduling Order, GE was to provide this information by November 13, 2009. At

the time they filed their motion, Plaintiffs say that GE had not produced any consumer

complaints. 

On February 26, 2010, GE filed a motion to dismiss Plaintiffs’ claims in their

entirety. On September 29, 2010, the Court granted GE’s motion to dismiss the strict

liability claim, but allowed the remaining causes of action to proceed. 

III. Standard of Review

When reviewing a magistrate judge’s order on a preliminary, non-dispositive

matter, a district court must assess whether the order is “clearly erroneous or contrary
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to law.” 28 U.S.C. § 636(b)(1)(A); Fed. R. Civ. P. 72(a); United States v. Curtis, 237

F.3d 598, 602-03 (6th Cir. 2001). “A finding is ‘clearly erroneous’ when although there

is evidence to support it, the reviewing court on the entire evidence is left with the

definite and firm conviction that a mistake has been committed.” United States v. U.S.

Gypsum Co., 333 U.S. 364, 395 (1948); see Hagaman v. Comm’r of Internal Revenue,

958 F.2d 684, 690 (6th Cir. 1992). If two permissible views of the evidence exist, a

magistrate judge’s decision cannot be “clearly erroneous.” See Anderson v. Bessemer

City, 470 U.S. 564, 573-74 (1985).

IV. Discussion

A. Objection 1

Defendant’s first objection is that the Order is clearly erroneous to require

discovery beyond the allegations in the Third Amended Complaint. In Plaintiffs’ First

Request for Production of Documents, Plaintiffs request documents relating to incidents

of “fire, sparking, smoke, burning, scorching, explosion, control panel malfunctions,

arcing or auto/self-starting in any GE-branded Microwave.” (Req. for Prod., 4).

Defendant says that Plaintiffs are not entitled to discovery on these incidents unless

they involved self-start because, at heart, the defect Plaintiffs allege involves

microwaves that turn on on their own. 

Plaintiffs say the requests are relevant because the Third Amended Complaint

alleges two defects: (1) a defect that causes the microwave to start when not in use and

(2) a defect that causes the microwave to fail to turn off when it overheats or catches

fire. The Plaintiffs say these defects may occur separately; for example, a person may
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turn on her microwave to heat food, and the microwave may generate excessive heat

and fail to turn off, resulting in fire, arcing, or smoking. Therefore, reports of fire, arcing,

or smoking may indicate that the second defect occurred, even if the microwave didn’t

start on its own.

The Magistrate Judge concluded “that plaintiffs’ third amended complaint

provides sufficient notice of the potential defects about which plaintiffs’[sic] complain

such that the broader discovery sought by plaintiffs is appropriate and relevant to the

issues presented in this lawsuit.” (Order, 11). In reviewing the Third Amended

Complaint, this Court finds that the Magistrate’s ruling was not clearly erroneous. 

The scope of discovery is within the broad discretion of the Court. Lavado v.

Keohane, 992 F.2d 601, 604 (6th Cir. 1993); Ventura v. The Cincinnati Enquirer, 396

F.3d 784, 789 (6th Cir. 2005). Discovery is governed by Fed. R. Civ. P. 26(b)(1), which

allows parties to “obtain discovery regarding any nonprivileged matter that is relevant to

any party’s claim or defense . . . .” 

In the Third Amended Complaint, Plaintiffs allege that the GE microwaves

contain defects that cause the microwave ovens to start on their own; sometimes the

result is smoke or fire. (TAC ¶ 22). Plaintiffs also allege that when microwave ovens

generate excessive heat, a heat sensor should shut off the microwave. (TAC ¶ 21). 

Plaintiffs allege that the defects in the microwave ovens are related to defective

magnetrons, which generate the microwaves needed to heat food. (TAC ¶ 20,23). 

Based on these allegations, the Magistrate’s finding that the defects alleged by Plaintiffs

involved more than just self-starting microwave ovens, is not clearly erroneous. 
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B. Objection 2

Defendant’s second objection is that the Order is clearly erroneous because it

relieves the Plaintiffs of their burden to demonstrate the information they seek is

relevant to their claims, and places a burden on GE to show the information is not

relevant. According to Defendant, Plaintiffs have not made any threshold showing of

relevance regarding incidents of fire that do not involve microwaves that turn on on their

own. 

It is clear to this Court that the Magistrate did not place the initial burden on GE.

In the Order, the Magistrate wrote, “If a party objects to the relevancy of information

sought, as defendant has done in this case, the party seeking the information bears the

burden of showing its relevance.” (Order, 7-8). Because GE objected, the Magistrate

held two hearings, directed depositions, and ordered supplemental briefing to determine

whether the Plaintiffs’ requests were relevant. The Magistrate concluded that the

Plaintiffs adequately demonstrated the relevance of the information requested. Indeed,

information indicating smoke or fires in GE microwaves is certainly relevant since the

Plaintiffs allege defects that cause smoke and fires. Therefore, the Magistrate’s Order

was not clearly erroneous. 

C. Objection 3

Defendant’s third objection is that the Order is clearly erroneous because it

requires the production of information regarding “other incidents” without a showing that

they are similar to the incidents in Plaintiffs’ Third Amended Complaint. However, to

reach this conclusion, the Defendant seems to rely on its contention that only
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information regarding self-starting microwaves is discoverable. This is not correct. 

Additionally, Defendant says that “the Order completely disregards authority

requiring Plaintiffs to ‘demonstrate that the circumstances surrounding the other

accidents are similar enough that information concerning those incidents is relevant [for

purposes of discovery] to the circumstances of the instant case.’” (Def.’s Obj. at 13)

(quoting Froelich, et al. v. Aurora Corp. Of Am., et al., 2010 U.S. Dist. Lexis 40139, *8

(M.D. La. 2010)). However, the authorities relied on for this claim are not binding on

this Court, and the Magistrate found that the incidents of smoking and fires are relevant

to Plaintiffs’ claims because the incidents may provide information about the alleged

defect that causes the microwave to fail to shut off if it produces excessive heat or is on

fire. The Court finds that the Magistrate’s Order requiring GE to produce other incidents

of smoke and fires, is not clearly erroneous. 

D. Objection 4

Defendant’s fourth objection is that the Magistrate is requiring GE to participate in

expansive discovery while its Motion to Dismiss is pending. However, the Court

declined to stay discovery until the motion was decided. Additionally, this objection is

moot; the Court decided the Defendant’s Motion to Dismiss on September 29, 2010. 

E. Objection 5

Defendant’s fifth objection is that the Magistrate fails to fully recognize the burden

placed on GE by the Order. Defendant says that it is clear error that the Magistrate did

not find the document requests and scope of discovery unduly burdensome. Defendant

is incorrect.
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 The Federal Rules of Civil Procedure dictate the scope of discovery and allow

the Court to limit discovery. Rule 26 states:

On motion or on its own, the court must limit the frequency or extent of

discovery otherwise allowed by these rules or by local rule if it determines

that: . . . 

(iii) the burden or expense of the proposed discovery outweighs its

likely benefit, considering the needs of the case, the amount in

controversy, the parties' resources, the importance of the issues at

stake in the action, and the importance of the discovery in resolving

the issues.

Fed. R. Civ. P. 26(b)(2)(C). 

In determining whether the burden or expense of the proposed discovery

outweighed its benefit, the Magistrate considered many factors. The Magistrate Judge

held two hearings, ordered depositions to be taken of GE’s employees, and required the

parties to file supplemental briefs. During the first hearing, the Magistrate stated that “it

seems to me that if we’re going to really address the degree of burden that the

defendant faces here in producing these documents, I think we need more information.”

(Mot. Hr’g 1, at 27). The very reason he ordered the depositions, supplemental briefing,

and conducted the second hearing, was to determine the burden that the discovery

request placed on GE. 

The Magistrate determined that many of the documents that are responsive to

the Court’s Scheduling Order are in hard copy or are in a segregated database which is

easily searchable. In the Order, the Magistrate noted: 

Four months after the Court’s deadline expired, GE produced eight

incident reports of microwave ovens that turned on without user direction. 

GE claimed that these were the only responsive documents. However,

plaintiffs submitted evidence (based on public reports of other incidents

reported to GE) that GE has not produced all of the complaints it has

received.

. . . 
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Plaintiffs contend that the testimony of GE witness Patrick Galbreath

(former Safety Manager responsible for GE microwave ovens) reveals that

[GE’s] contentions [that there are no separate databases or files

containing requested information] are false. Mr. Galbreath testified that

GE maintains a discrete microwave oven “Safety Database,” which has a

feature that would allow anyone to simply print out all consumer safety

reports relating to microwave fires. Indeed, Mr. Galbreath testified that

this database has a specific dropdown menu for “auto start” within the

“Fire” sub-database, all of which is easily retrievable. (Dkt. 58, Ex. G, pp.

10-16). Although GE claimed that there was no segregated file of

consumer complaints (either “paper or electronic”), Mr. Galbreath testified

that, in addition to the Safety Database, there is also a paper file of

consumer complaints- a “four foot” “hard copy” file containing all of the

consumer complaints from the CPSC relating to microwave ovens. Id.

(Order, 2-3). 

In response, GE claimed that the Court’s Scheduling Order only required the

Defendant to give Plaintiffs complaints actually received from consumers, not consumer

complaints from the CPSC. Also, GE claimed that the Court limited the discovery to

paper documents because the Scheduling Order referenced “a limited amount of paper

discovery, but no depositions.” Thus, it claimed no searches of electronic databases

were required. 

The Magistrate stated “GE’s interpretation of Judge Roberts’ Order that it was not

required to produce any documents it obtained from CPSC to be an unduly narrow

interpretation of her order that is not well-taken.” (Order at 5). The Magistrate found that

GE “failed to undertake reasonably diligent efforts to determine the availability of

responsive documents.” (Order, 5). The Magistrate carefully considered the burden on

GE, writing, “[w]hile it is true that a complete and comprehensive search would involve

the search of multiple databases, including seven terabytes of information as described

by GE, it would have taken little effort or expense to uncover the readily available and

responsive documents in the CPSC file and the Safety Database.” (Order, 5). This
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Court agrees. The Magistrate considered both the burden and expense of the

discovery sought, and concluded that it did not outweigh the likely benefits. The

Magistrate’s finding that the requested discovery is not unduly burdensome on GE is not

clear error, and this Court upholds his Order. 

V. Conclusion

The Magistrate Judge’s Order is not clearly erroneous or contrary to law. 

The Court ADOPTS the Order of the Magistrate. (Doc. 63). 

IT IS ORDERED.

s/Victoria A. Roberts 

Victoria A. Roberts

United States District Judge

Dated: October 20, 2010

The undersigned certifies that a copy of this

document was served on the attorneys of

record by electronic means or U.S. Mail on

October 20, 2010.

s/Linda Vertriest 

Deputy Clerk