4:16-cv-00162
W.D. Mo.Sep 29, 2017Background
- Plaintiffs (Steven and Rene Taber) sued Ford after a 1996 Ranger airbag allegedly failed to deploy in a July 8, 2014 frontal offset collision, asserting product-liability, negligence, failure-to-warn, breach of warranty, loss of consortium, and punitive-damage claims.
- Plaintiffs served discovery requests seeking "other similar incidents" (OSI) involving Ranger/B‑series airbag non‑deployment and sought production of Ford "suspension orders" (document preservation directives) and Ford's document retention policy.
- Ford initially produced thousands of documents from internal claim/lawsuit files, later served privilege logs (including materials from outside counsel), and invoked attorney‑client and work product privileges for certain OSI documents and suspension orders.
- The magistrate judge conducted in camera review of contested OSI files and suspension orders after extensive meet-and-confer conferences and supplemental briefing. Plaintiffs narrowed many OSI disputes; some logged items were produced by Ford before hearings.
- Court carefully applied Missouri law for attorney‑client privilege and federal law for work‑product protection, distinguishing factual materials from protected communications/opinion work product.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether Ford must produce OSI documents claimed as attorney‑client privileged | OSI factual materials and inspection notes are discoverable; Ford has not shown privilege applies | Ford: logs show communications between engineers and counsel during litigation; documents are privileged | Court: attorney‑client privilege rejected for several log entries because they contain factual info; those factual portions must be produced |
| Whether work product shields OSI factual materials (ordinary and opinion) | Plaintiffs show substantial need and inability to obtain some materials elsewhere | Ford: plaintiffs can obtain info from other parties, counsel, experts; no substantial need | Court: plaintiffs satisfied requirements for ordinary work product as to many OSI factual items; such factual materials must be produced; opinion work product (mental impressions) remains protected |
| Whether photographs and similar materials in older OSI files are protected work product | Photographs of crash vehicles and fuse/part condition are necessary and not available elsewhere | Ford: photographs and an initial expert draft are work product | Court: photographs from Bryant, Dunwoody, Hood must be produced (substantial need shown); initial draft expert report remains protected |
| Whether suspension orders are privileged or irrelevant | Plaintiffs: suspension orders and retention policy are relevant to scope of preservation and possible spoliation; seek production | Ford: suspension orders reflect legal advice/mental impressions and are protected; some relevancy objections | Court: attorney‑client privilege rejected for the suspension orders (they are routine preservation directives); work product and relevancy overcome by plaintiffs' need and discovery history; suspension orders (SO 859981 v23–v35) must be produced (limited redaction of descriptive paragraph allowed) |
Key Cases Cited
- Baker v. Gen. Motors Corp., 209 F.3d 1051 (8th Cir.) (distinguishes attorney‑client and work product issues in product cases)
- Hickman v. Taylor, 329 U.S. 495 (work‑product doctrine protects materials prepared in anticipation of litigation)
- Upjohn Co. v. United States, 449 U.S. 383 (attorney‑client privilege does not shield underlying facts)
- PepsiCo, Inc. v. Baird, Kurtz & Dobson, LLP, 305 F.3d 813 (8th Cir.) (limits to privileged treatment for business materials routed through counsel)
- Gundacker v. Unisys Corp., 151 F.3d 842 (8th Cir.) (work product overcome only with substantial need for ordinary work product)
- Fisher v. United States, 425 U.S. 391 (attorney‑client privilege scope and limits)
- Bradley v. Wal‑Mart Stores, Inc., 196 F.R.D. 557 (E.D. Mo.) (examples of denying production where alternative sources exist; burden to show substantial need)