United States District Court, D. Arizona
[Copyrighted Material Omitted]
Blanca Quintero, Cozen O'Connor, San Diego, CA, David L. Kurtz, Kurtz Law Firm, Scottsdale, AZ, John James Egbert, Michael J. O'Connor, Jennings Strouss & Salmon PLC, James Michael Abernethy, Abernethy & Green PLC, Phoenix, AZ, for Plaintiffs.
George Ian Brandon, Sr., Kendall Kyle Wilson, Brian Michael McQuaid, Squire Sanders (US) LLP, Graeme Em Hancock, Fennemore Craig PC, Phoenix, AZ, George W. Rooney, Jr., Roetzel & Andress LPA, Jill G. Okun, Squire Sanders &
Dempsey LLP, Cleveland, OH, Walter M. Yoka, Yoka & Smith LLP, Los Angeles, CA, for Defendants.
ROSLYN O. SILVER, Chief Judge.
Litigation is not a game. It is the time-honored method of seeking the truth, finding the truth, and doing justice. When a corporation and its counsel refuse to produce directly relevant information an opposing party is entitled to receive, they have abandoned these basic principles in favor of their own interests. The little voice in every attorney's conscience that murmurs turn over all material information was ignored.
Based on a review of the entire record, the Court concludes there is clear and convincing evidence that sanctions are required to be imposed against Mr. Hancock, Mr. Musnuff, and Goodyear. The Court is aware of the unfortunate professional consequences that may flow from this Order. Those consequences, however, are a direct result of repeated, deliberate decisions by Mr. Hancock, Mr. Musnuff, and Goodyear to delay the production of relevant information, make misleading and false in-court statements, and conceal relevant documents. Mr. Hancock, Mr. Musnuff, and Goodyear will surely be disappointed, but they cannot be surprised.
FINDINGS OF FACT
I. The Accident
In June 2003, Leroy and Donna Haeger, along with Barry and Suzanne Haeger (collectively " the Haegers" ), were traveling in a motor home owned by Leroy and Donna. It was manufactured by Gulf Stream Coach (" Gulf Stream" ) on a chassis manufactured by Spartan Motors, Inc. (" Spartan" ). The motor home had " G159" tires manufactured by Goodyear Tire and Rubber Company (" Goodyear" ). While traveling on the highway, one of the motor home's front tires failed, followed immediately by the motor home leaving the road and tipping over. The Haegers suffered serious injuries as a result. The motor home was insured by Farmers Insurance Company (" Farmers" ).
II. Initial Proceedings
In 2005, the Haegers and Farmers sued Gulf Stream, Spartan, and Goodyear. The Haegers and Farmers alleged various product liability and negligence claims, including a claim that G159 tires were defective if used on motor homes. (Doc. 13). The Haegers were represented by David Kurtz. Goodyear was represented by Graeme Hancock of Fennemore Craig PC and Basil Musnuff of Roetzel & Andress in Akron, Ohio. Because Goodyear was being sued throughout the country based on alleged defects in the same G159 tire, it had appointed Mr. Musnuff as " national coordinating counsel" on all G159 cases. (Doc. 1014 at 93). In that role, Mr. Musnuff was responsible for reviewing discovery requests, coordinating the search for documents, and drafting responses. (Doc. 1014 at 124-25). Mr. Musnuff worked directly with Goodyear's in-house counsel Deborah Okey.
On December 15, 2005, Goodyear served its Initial Disclosure Statement. (Doc. 992-1 at 20). According to that statement, " Plaintiffs' allegations with regard to the subject tire [were] unclear." (Doc. 992-1 at 23). Based on the alleged uncertainty, Goodyear's disclosure statement contained no meaningful information. In fact, it appears Goodyear's disclosure statement largely referenced witnesses and documents previously provided to Goodyear by Plaintiffs. Mr. Kurtz was not satisfied with Goodyear's initial disclosure and he wrote to Mr. Hancock and asked that Goodyear " take a more reflective look at your disclosure statement and comply with both the spirit and intent of the rule." (Doc. 992-1 at 27). In particular, Mr. Kurtz asked Goodyear to provide more meaningful disclosures regarding individuals who might have relevant information regarding the tire. Mr. Kurtz also asked Goodyear to produce " [t]esting documentation regarding the G 159 tires." (Doc. 992-1 at 29). Goodyear did not supplement its initial disclosure in any relevant way.
III. Plaintiffs' Responses to Interrogatories
On August 18, 2006, Plaintiffs responded to a set of interrogatories from Goodyear. Goodyear's interrogatory number 5 asked for " each legal theory under which you believe Goodyear is liable." (Doc. 963-1 at 19). In response, Plaintiffs stated it had been inappropriate to market the G159 tire for use on motor homes. According to Plaintiffs: " Prolonged heat causes degradation of the tire which, under appropriate circumstances, can lead to tire failure and tread separation even when the tire is properly inflated." (Doc. 963-1 at 20). Because the G159 was originally designed " for pick-up and delivery trucks," Plaintiffs claimed using the tire on motor homes meant it was " operating at maximum loads and at maximum speeds, producing heat and degradation to which the tire was not designed to endure, leading to its premature failure." (Doc. 963-1 at 20) (emphasis added). Accordingly, as of approximately August 18, 2006, Goodyear and its counsel knew Plaintiffs' liability theory and that heat would be a central issue in this case.
IV. First Discovery Dispute and Protective Order
In August 2006, the parties filed their first notice of a discovery dispute. (Doc. 49). That disagreement centered on the terms of a protective order. The parties could not agree on how material designated " confidential" should be handled and on whether the protective order should include a provision allowing Mr. Kurtz to " share" information with other counsel litigating G159 claims against Goodyear elsewhere in the country. (Doc. 49). On August 22, 2006, the Court held a scheduling conference and also addressed the pending disagreements.
At the conference, Plaintiffs were represented by David Kurtz and Goodyear was represented by Mr. Hancock. When
asked to explain the parties' disputes, Mr. Kurtz began by stating he was concerned Goodyear would abuse the provision allowing for documents to be designated " confidential." In effect, Mr. Kurtz wanted the protective order to contain a provision that would allow Goodyear's counsel located elsewhere to designate documents as " confidential." Local counsel, however, would be required to make " a reasonable inquiry to verify that in fact those confidentiality designations have been thoughtfully made by appropriate people." (Doc. 53 at 8). The Court rejected Mr. Kurtz's request and stated local counsel would not have to personally verify all " confidential" designations. But the Court also observed that local counsel remained " responsible for anything that's filed in this court ... [and] they have a good-faith obligation to the Court and they are officers of the Court." (Doc. 53 at 8).
As for the sharing provision, Plaintiffs argued it was necessary to ensure that all parties litigating cases against Goodyear would receive " the appropriate and complete data in similarly situated cases." (Doc. 53 at 10). The Court rejected this request, emphasizing that " every officer before this Court has an obligation to provide all relevant discovery." (Doc. 53 at 10). The Court observed that the Federal Rules already provide " that anything that is relevant must be turned over to counsel and to all the parties," so there was no need for the sharing provision. Therefore, as of August 2006 all counsel were expressly aware of the Court's expectations regarding discovery. The Court signed the scheduling order and the parties began discovery in earnest.
V. Plaintiffs' First Request for Production of Documents
In September 2006, Plaintiffs served Goodyear with their First Request for Production of Documents (" First Request" ). (Doc. 59). Approximately thirty days later, Goodyear provided its responses. As later explained by Mr. Musnuff, in preparing discovery responses Mr. Musnuff would draft the responses, send them to Ms. Okey for approval, and after Ms. Okey approved them, they would be sent to local counsel for filing and service. (Doc. 1014 at 65-66). While Mr. Musnuff was tasked with drafting responses, Ms. Okey was always the final decision maker regarding discovery responses. (Doc. 1014 at 67).
The initial responses drafted by Mr. Musnuff, approved by Ms. Okey, and signed by local counsel consisted of sixteen " general objections" and then specific objections to each request which largely referenced the general objections. (Doc. 938-1 at 19). For example, Plaintiffs' Request for Production No. 14 sought: " All test records for the G159 tires, including, but no[t] limited to, road tests, wheel tests, high speed testing, and durability testing." (Doc. 938-1 at 24). Goodyear's response was:
RESPONSE: See General Objections. Goodyear objects to this Request for the reasons and on the grounds that it is Overly Broad, Unduly Burdensome and seeks Irrelevant and Confidential Information, seeks information about tires Not Substantially Similar, and Plaintiffs have identified No Defect Theory.
The record does not reflect any communications between Plaintiffs and Goodyear until Goodyear provided supplemental responses on November 1, 2006. (Doc. 62, 63). Most relevant here is Goodyear's supplemental response to the same " Request for Production No. 14." The supplemental response was:
RESPONSE: See General Objections. Goodyear objects to this Request for the reasons and on the grounds that it is Overly Broad, Unduly Burdensome and seeks Irrelevant and Confidential Information,
seeks information about tires Not Substantially Similar, and Plaintiffs have identified No Defect Theory.
SUPPLEMENTAL RESPONSE: Subject to and without waiving the foregoing objections, and in a good faith spirit of cooperation, Goodyear will produce, subject to the Protective Order entered in this case, the DOT test data for the Subject Tire for the Subject Time Frame.
(Doc. 948-1 at 54).
The sequence of events following Goodyear's supplemental responses is intensely disputed. On December 5, 2006, Mr. Kurtz and Mr. Hancock spoke on the phone. That conversation was about the difficulties the parties were having regarding discovery. According to a memorandum to the file Mr. Hancock prepared, during the call:
I explained to [Mr. Kurtz] that the ‘ testing’ universe he had asked for was overly broad and included all kinds of tests done on component parts or on design criteria that had nothing to do with anything we had seen involving this case. I anticipate [Mr. Kurtz] will send us a revision that asks for testing that has to do with high speed.
(Doc. 1032-2 at 51). On the particular issue of Request for Production No. 14, the memorandum stated Mr. Kurtz " agreed to be more specific about what kinds of tests he was looking for." (Doc. 1032-2 at 53). Mr. Kurtz has submitted an affidavit disputing Mr. Hancock's interpretation of that phone call. According to Mr. Kurtz, he " never withdrew or otherwise narrowed the scope of [the] original discovery requests." (Doc. 992-1 at 40). Mr. Kurtz states he " had no phone conversation with Mr. Hancock in December" where he made such an agreement. In short, according to Mr. Kurtz: " Nothing like [the events described by Mr. Hancock] ever occurred." (Doc. 992-1 at 40). The Court need not decide whose recollection of the December 5, 2006 phone call is accurate. Any question of whether there was an understanding evaporated after a letter from Mr. Kurtz to Mr. Hancock.
On December 20, 2006, Mr. Kurtz sent Mr. Hancock a letter. That letter was meant as " a follow up of our recent discussions regarding discovery disputes." (Doc. 1044-2 at 17). The letter is lengthy and goes through numerous discovery disputes the parties were having. Most relevant here is the portion of the letter devoted to Request for Production No. 14. The letter states:
Request for Production No. 14. We asked for test records for the G159 275/70R 22.5, including road tests, wheel tests, high speed testing, and durability testing. You objected, suggesting the test records were overly broad and unduly burdensome. You have only produced the DOT test data showing the tires were tested at 30 mph. My interest is in finding the rest of the test data. If there is any, it is your obligation to disclose it.
(Doc. 1044-2 at 25).
After receiving this letter, Mr. Hancock wrote an email to Mr. Musnuff. That email opened by stating: " We should either respond to any portions of Kurtz' 12.20 letter or figure out that we have a fight on our hands on these points and prepare a counter argument." (PSOF Ex. 7). The email goes through the entirety of Mr. Kurtz' letter but contains a specific reference to the Request for Production No. 14 and asks for guidance from Mr. Musnuff:
RTP 14. Test records for all testing on this size G159 tire. Again, was the only testing at 30 mph or less? What speed testing/fleet testing did Goodyear rely on? Can/should we supplement since his theory is that this tire can't operate
at 75 mph in the southwest for long periods?
(PSOF Ex. 7). The record does not contain Mr. Musnuff's response to this email.
Based on this evidence, the December 5, 2006 phone call may have led to confusion on Mr. Hancock's part whether the Request for Production No. 14 remained in place. But Mr. Kurtz's December 20, 2006 letter cleared up any possible confusion. Upon receiving that letter, Mr. Hancock undoubtedly knew Plaintiffs' Request for Production No. 14 had not been withdrawn or narrowed. In particular, this is evidenced by Mr. Hancock's email to Mr. Musnuff stating Goodyear needed to " figure out if we have a fight on our hands." Mr. Hancock could not have simultaneously believed that Mr. Kurtz withdrew the request but also that Goodyear might have " a fight on [its] hands." Moreover, Mr. Hancock explicitly acknowledged that Mr. Kurtz continued to request " [t]est records for all testing." (Emphasis added). Mr. Hancock's email establishes Mr. Musnuff knew about Mr. Kurtz's letter and that Mr. Musnuff knew Plaintiffs' Request for Production No. 14 was still active.
For simplicity and clarity, as of December 20, 2006 Mr. Hancock and Mr. Musnuff knew there was an outstanding request for: " All test records for the G159 tires, including, but no (sic) limited to, road tests, wheel tests, high speed testing, and durability testing." Any suggestion by Mr. Hancock and Mr. Musnuff that Mr. Kurtz had withdrawn his First Request is belied by the evidence of what they knew in December 2006. In addition, the position later advanced by Goodyear that it was relieved of any further obligation to respond to the First Request because it had lodged objections cannot be taken seriously. Mr. Hancock's email establishes Goodyear's counsel did not believe Mr. Kurtz needed to seek relief from the Court to obtain any further information from Goodyear. And finally, as of January 2, 2007, the date of Mr. Hancock's email, Mr. Musnuff knew the theory of Plaintiffs' case, and knew the request for additional test data was outstanding, but he neglected to even begin a search for responsive documents.
VI. Goodyear Discovers High Speed Testing
On January 5, 2007, Plaintiffs disclosed their expert witnesses. (Doc. 103). One of Plaintiffs' experts was David Osborne. Mr. Osborne's expert report identified the speed at which the tire was operated as a contributing factor to its failure. Mr. Hancock and Mr. Musnuff exchanged emails after reviewing Mr. Osborne's report. Mr. Musnuff wrote to Mr. Hancock:
Osborne appears to draw the conclusion that the subject tire was only tested at speeds up to 30 mph from the fact that the only test data we produced is the DOT test data. Of course, our discovery response was limited to DOT test data because plaintiff had not yet identified their defect theory at that time. Now that plaintiffs are pinpointing speed as an issue, perhaps we need to supplement our discovery responses to show the testing of this tire at various speeds. Thoughts?
(PSOF Ex. 8). Mr. Hancock responded: " Yes, we should produce the testing that shows this tire was capable of prolonged speed use and was built for the rated load and had a wide safety margin." (PSOF Ex. 8).
On January 11, 2007, Mr. Musnuff emailed Ms. Okey to give her a copy of Mr. Osborne's report. That email contained the same paragraph Mr. Musnuff sent to Mr. Hancock and concluded that " we should consider supplementing our discovery responses to show the testing of this tire at various higher speeds." (PSOF
Ex. 9). Therefore, as of January 11, 2007, Mr. Hancock, Mr. Musnuff, and Ms. Okey were aware Plaintiffs had " pinpoint[ed] speed as an issue" and that Goodyear needed to " consider supplementing" its prior discovery responses. The record does not contain any indication whether Mr. Hancock, Mr. Musnuff, or Ms. Okey had further conversations on this point. The record is clear, however, that no supplementation ever occurred.
Around this same time, Mr. Musnuff was working with Sherman Taylor, a Goodyear tire engineer, " to locate documents and test data regarding the G159 Tire."  (Doc. 984-1 at 9). Based on receipt of Mr. Osborne's opinion, Mr. Musnuff asked Mr. Taylor " to locate the test data that the Radial/Medium Truck Tire Development Group used to release the G159 Tire for use at highway speeds." (Doc. 984-1 at 10). Mr. Taylor was not able to find " electronic or paper copies of the actual W84 high speed test data Goodyear used to release the G159 Tire for production." (Doc. 984-1 at 10). But on January 24, 2007, Mr. Taylor located " electronic post-production W84 high speed test data (" High Speed Tests" ) on the G159 Tire." (Doc. 984-1 at 11). When he discovered that data, Mr. Taylor also " discovered L04 heat rise test results (" Heat Rise tests" ) for the G159 Tire in the same electronic database." (Doc. 984-1 at 11). Mr. Taylor had another " employee pull the test results data into text files, which [he] then printed." (Doc. 984-1 at 11). According to Mr. Taylor, " [w]ithin a day or two of printing the test data, I delivered a copy to Mr. Musnuff." (Doc. 984-1 at 11). Mr. Taylor's statement refers to both the High Speed tests and the Heat Rise tests. Thus, according to Mr. Taylor, no later than early February 2007, Mr. Musnuff had actual copies of the High Speed and Heat Rise tests, not merely some knowledge that the tests had been conducted.
On February 12, 2007, Mr. Musnuff emailed Mr. Hancock a memo with a summary of the High Speed tests attached. (PSOF Ex 12). According to the memo, " Goodyear did test the [G159] at speeds greater than the 30 mph standard" as reflected in the High Speed tests. (PSOF Ex. 12). Based on that testing, the " tire was capable of being rated as a 75 mph tire."  (PSOF Ex 12). That same day, Mr. Musnuff emailed Mr. Taylor and asked about the " list of High Speed Test Results" Mr. Taylor had given to him. Mr. Musnuff asked whether the ten " High Speed Test Results" Mr. Taylor had provided represented " ALL occasions on which the subject tire was subjected to [the] High Speed Test." (PSOF Ex. 15). Mr. Taylor responded there were " 66 [High Speed] test[s] performed between 1996 & 2002." Mr. Musnuff then asked Mr. Taylor to gather that additional data because " if we disclose any of the [High Speed] testing— which is in our best interest— then we need to produce all of it." (PSOF Ex. 15).
On February 19, 2007, Mr. Hancock emailed Mr. Musnuff to discuss the " Schedule for Haeger." (PSOF Ex. 16). That email stated:
We need to gather and produce documents re high speed testing as soon as reasonably practicable. No deadline, but we want to produce them promptly, given the accusation of no high speed testing in the January report that put that at issue in the case.
(PSOF Ex. 16). Therefore, no later than February 19, 2007, Mr. Hancock, Mr. Musnuff, and numerous Goodyear employees knew the High Speed tests needed to be produced. Even assuming Mr. Musnuff decided to wait for Mr. Taylor to search for and locate additional test results, there is no acceptable explanation, or one even offered, why Mr. Musnuff did not produce the results he had at that time. While the record establishes Mr. Musnuff and Mr. Hancock both believed the High Speed tests needed to be produced, there is no indication which discovery request Mr. Musnuff and Mr. Hancock believed the tests were responsive to. But given that Plaintiffs had not yet propounded their Third Request for Production of Documents, Mr. Musnuff and Mr. Hancock could not have believed the High Speed tests were responsive only to that later request. Finally, as of February 19, 2007, Mr. Hancock knew that Plaintiffs' expert was relying on the alleged lack of high speed testing.
VII. Statements Made After Learning High Speed Tests Existed
On April 6, 2007, approximately two months after Mr. Hancock knew the High Speed tests existed, the Court held a status conference. (Doc. 146). During that conference, the Court inquired whether the parties were on schedule to complete discovery by the applicable deadline. Plaintiffs' counsel stated he was on schedule. The Court then asked Mr. Hancock for his opinion on whether all discovery could be completed on time.
The Court: Let me ask defense counsel, is there any internal documentation that is available that has been requested that your client has— clients have not provided?
Mr. Hancock: Your Honor, speaking on behalf of Goodyear, we have responded to all outstanding discovery and those responses have been outstanding for some time and, you know, if a document shows up, we'll of course produce it and supplement our answers but I think we're done or nearly done.
The Court: And your client has provided certification as is required by the rule?
Mr. Hancock: Correct.
(Doc. 146 at 12-13). These statements were false.
Mr. Hancock received notice of the existence of the High Speed tests on February 12, 2007 and sent an email on February 19, 2007 stating Goodyear " need[ed] to gather and produce" them " as soon as reasonably practicable." As of the April 6, 2007 status conference, the High Speed tests had not been disclosed, Mr. Hancock knew this, and his in-court statements at the April 6, 2007 were untruthful.
VIII. Third Request for Production of Documents
On May 8, 2007, Plaintiffs served their Third Request for Production of Documents (" Third Request" ). Three of Plaintiffs' requests are relevant here: numbers 3, 4, and 10. Requests 3 and 4 sought: " All documents which relate to any speed or endurance testing to determine that the subject tire was suitable for [65 or 75] mph highway purposes." And Request 10 sought: " All documents which relate to the approval by Goodyear of the [G159] for 75 mph, including, but not limited to, all testing
records relating to suitability of the subject tire for that speed." (Doc. 938-1 at 36). In an affidavit, Mr. Kurtz explained why he propounded the Third Request:
My Third Request for Production utilized alternative language in a request for test records, which followed the language utilized in Goodyear's expert disclosures, which were received in my office in mid-April 2007. Mr. Olsen, Goodyear's in-house expert, specifically expressed his opinion that the G159 tire was designed for general highway use and designed to be operated at continuous highway speeds of 75 mph.
(Doc. 992-1 at 40-41). The Third Request for Production was not intended " to relieve Goodyear of any obligation to properly respond to Plaintiffs' First Request for Production of Documents and Interrogatories" nor was it intended to release Goodyear from " its obligations to timely supplement discovery responses." (Doc. 992-1 at 41). Before Goodyear responded to the Third Request, the Court held a hearing on a separate discovery dispute.
At the discovery dispute hearing on May 17, 2007, the Court addressed a dispute involving Plaintiffs' attempts to obtain information from Gulf Stream and Spartan regarding other motor home accidents. During discussion of the dispute, Plaintiffs' counsel expressed his belief that this " tire was never tested above 30 miles an hour." (Doc. 201 at 48). Because of this statement, the Court asked a specific question of Goodyear's counsel and received an unequivocal response.
The Court: Mr. Hancock, are there any tests that are available to show when this tire was tested for speeds above 30 miles an hour?
Mr. Hancock: Yes, Your Honor.
The Court: And they have been produced?
Mr. Hancock: No, Your Honor. They have been requested from the plaintiffs in a Request for Production that arrived in my office I believe last week where the discovery response is due in mid-June. And they will be— I have requested them from my client and they will be produced at that time.
The Court: All right. So Mr. Kurtz—
Mr. Kurtz: Your Honor, if I may, we have, as have lawyers across the country, they have asked for these tests. My requests for these speed tests have been outstanding for well over a year and Mr. Hancock himself told me the reason they haven't been produced is because nobody can find them anywhere.
The Court: Well, he's found them. He apparently has found them so you're going to have what you want.
Mr. Kurtz: Well, I'll be looking forward to reading them but that won't change the issue, Your Honor. You know, I think— you know, this is discovery, Judge. We ought to be able to ask some questions and I'm pleased to provide the court with a detailed factual record about these. These are not things that I'm making up. They are not things that experts divined. They are tied to hard documents prepared by Goodyear.
The Court: It seems to me that the issue has been narrowed after our lengthy conversation to the tests that have been used or were engaged in by Goodyear for the purpose of establishing for their purposes and for consumers that these tires could be used for— based upon the weight and pressure that they have indicated that they were or that they could hold for traveling above 75 or at 75 miles an hour.
Mr. Hancock: At and below Your Honor, thank you.
The Court: At and below. At no more than 75 miles an hour.
(Doc. 201 at 48-49). After further discussion with counsel regarding the appropriate scope of discovery and depositions, the Court made sure Mr. Hancock understood his obligations.
The Court: Is there any question in your mind, Mr. Hancock, what I am going to allow in terms of discovery? And that is the deposition questions that I will allow?
Mr. Hancock: Your Honor, I believe the court is saying ... my witnesses should be deposed about the [testing] done on this [specific] tire with respect to the speed in which it can be operated and what records they have, what records they don't have and what those records show?
The Court: That's exactly right.
Mr. Hancock: Thank you, Your Honor.
(Doc. 201 at 51). Mr. Hancock's statements were misleading.
As evidenced by the early February 2007 email traffic, Mr. Hancock knew about the High Speed tests and knew the tests needed to be produced. This was three months prior to Plaintiffs' Third Request. Thus, Mr. Hancock's in-court statement that the High Speed tests had only recently been requested in May 2007 was misleading and an apparent attempt to obscure the fact that Goodyear had been withholding the tests for approximately four months.
On May 21, 2007, Goodyear deposed Plaintiff's expert, Mr. Osborne. As Mr. Hancock and Mr. Musnuff knew, Mr. Osborne had opined that " no high speed testing of the tire was done." (Doc. 983-1 at 5). As evidenced by their email traffic in early February 2007, Mr. Hancock and Mr. Musnuff both knew high speed testing existed, Plaintiffs' expert's report directly implicated that testing, and the testing needed to be produced. Mr. Hancock and Mr. Musnuff decided to withhold the High Speed tests for at least three months, and proceed with Mr. Osborne's deposition, knowing that Mr. Osborne was operating under incorrect assumptions and an incomplete record. The only plausible interpretation of this behavior is that Mr. Hancock and Mr. Musnuff decided to delay production of the tests in hopes of gaining a tactical advantage.
Still prior to production of the High Speed tests, the parties filed a notice of yet another discovery dispute. (Doc. 225). That notice recounted a variety of disputes, including a dispute involving Plaintiffs' request that Goodyear provide a 30(b)(6) witness. At the discovery dispute hearing, Plaintiffs began by explaining the main theory of their case:
Mr. Kurtz: And the tire can't carry the weight of the motor home at [freeway] speed. And it causes the tire to degrade and fail. And we believe— and we're in the middle of this in this case— that that is part of the reason that we saw all these motor home failures with the G159 tire, is that when they get up to freeway speed, they're just not put together to operate in that environment.
The parties then discussed with the Court the 30(b)(6) issue. Plaintiffs' counsel described the proposed deposition topics as including " the design history of this tire" and " testing for speed and weight." (Doc. 243 at 21). The Court ruled that the 30(b)(6) deposition could occur. (Doc. 243 at 27). The Court also clarified with Goodyear's counsel that the witness would be speaking on behalf of Goodyear. (Doc. 243 at 29).
On June 21, 2007, Goodyear responded to Plaintiffs' Third Request. The responses were provided to Ms. Okey for her explicit approval. (PSOF Ex. 19, 20). Goodyear's responses opened with the same or substantially similar boilerplate objections as those made in response to Plaintiffs' First Request. Goodyear then provided three identical responses to Plaintiffs' three requests for the " speed or endurance testing" Goodyear used to determine the G159 was suitable for use at 65 and 75 mph. That response was:
Subject to and without waiving the following objections, and in a good faith spirit of cooperation, Goodyear states that it is producing, subject to the Protective Order entered into this case, copies of electronically-maintained high speed durability test results conducted on [G159] production tires since August 1996. After diligent search, to date Goodyear has not been able to locate additional paper records for the tests that are recorded electronically, and it is believed that those paper records have been discarded pursuant to the Company's document retention practices. Also, after diligent search, to date Goodyear has not been able to locate the paper records for the high-speed durability tests which it conducted on the [G159] tire prior to August 1996, which were not recorded electronically, and it is believed that those paper records have been discarded pursuant to the Company's document retention practices. Goodyear will supplement this Response to produce these paper records if they are subsequently located.
Goodyear objects to this Request for the reasons and on the grounds that it is Overly Broad, Unduly Burdensome, seeks Irrelevant and Confidential Information.
(Doc. 938-1 at 36).
IX. Repeated Statements that Goodyear Withheld High Speed Tests
Around the same time Goodyear responded to Plaintiffs' Third Request, the Court ordered the parties to " confer and set dates for all remaining depositions and discovery." (Doc. 251). On June 26, 2007, Plaintiffs filed a document stating the parties had complied with the Court's Order by establishing dates to complete discovery. Because a status hearing was scheduled for the near future, Plaintiffs' filing also addressed various discovery problems they were still having with Goodyear. According to Plaintiffs, Goodyear's June 21, 2007 disclosures were the " first time" it had disclosed " evidence which relates to the inability of the subject tire to operate at freeway speeds." Plaintiffs stated they were still waiting for Goodyear to produce additional testing information and they requested the Court " inquire and determine whether additional testing data is in Goodyear's possession to assure that Goodyear's disclosures are complete." (Doc. 256 at 3).
On June 28, 2007, Plaintiffs submitted a status report. In that report, Plaintiffs stated:
[T]he speed tests ... were finally produced last week by Goodyear. They were originally requested in September of 200. The documents had been in Goodyear's possession since January 2007 but not disclosed until after Plaintiffs had disclosed their experts' opinions, including rebuttal opinions, and Plaintiffs' expert's deposition was taken.
On August 9, 2007, the parties filed a joint statement regarding a request to modify the scheduling order. In that document, Plaintiffs stated they were still attempting " to gather information from Goodyear on the design and testing of this tire." (Doc. 301 at 5). In addition, Plaintiffs claimed " Goodyear did not produce any testing on the speed of the tire until June , 2007,  despite the fact such testing was requested in Plaintiffs' First Request to Produce on September 20, 2006." (Doc. 301 at 6). In response, Goodyear argued Plaintiffs were attempting to " distract[ ] the Court with a series of red herrings regarding as yet unpresented and inchoate discovery disputes." (Doc. 301 at 7). Goodyear did not provide any substantive response regarding its late disclosure of testing data nor did Goodyear explain that its disclosure of the test data was timely based on Mr. Kurtz withdrawing his First Request in a phone conversation with Mr. Hancock in December 2006. Instead, Goodyear argued the discovery deadline had passed and requested the Court limit the amount of remaining discovery. Without addressing the testing data issue, the Court imposed new discovery deadlines. (Doc. 311).
On September 10, 2007, the parties submitted another joint statement of discovery dispute. (Doc. 319). Plaintiffs were seeking to brief the issue regarding the " proper scope of discovery." Plaintiffs also wished to present " information that Goodyear improperly withheld high-speed test data from the court." (Doc. 319 at 2). On the issue of test data, Goodyear responded: " Nothing suggests this Court has ever ordered production of any test data to it." (Doc. 319 at 5). Goodyear also claimed it had " produced all the high speed test data on this tire in its possession in a timely response to Plaintiff's Third Request for Production." This latter statement was misleading.
As of February 2007, Mr. Hancock and Mr. Musnuff knew the High Speed tests were responsive to Plaintiffs' First Request. The statement in the status report that the High Speed tests had been produced in a " timely response to Plaintiff's Third Request" was intended to mislead the Court into believing those tests had been requested only in the Third Request. That was plainly not true and contrary to Mr. Hancock and Mr. Musnuff's own knowledge as shown in their emails. Based in part on Goodyear's deception, the Court denied Plaintiffs' request to brief these issues and ordered the parties to comply with prior rulings regarding the appropriate scope of discovery. (Doc. 320).
X. Deposition of Goodyear's 30(b)(6) Witness
On September 12, 2007, Plaintiffs deposed Richard Olsen. Mr. Olsen had been designated as Goodyear's 30(b)(6) witness. Mr. Olsen was asked about the " high speed" tests Goodyear performed on the tire prior to Goodyear determining it could be released as a tire able to perform at speeds up to 75 miles per hour. In particular, Mr. Olsen was given the four High
Speed tests which had been turned over to Plaintiffs in June 2007 and was asked whether they constituted the entire universe of such tests.
Mr. O'Connor (Plaintiffs' Counsel): To the best of your knowledge, [were] only these four high-speed tests available to Goodyear prior to rating this tire as a 75 mile an hour tire[?]
* * *
Mr. Olsen: ...