Traxler v. Ford Motor Co.

App 276 TRAXLERv FORD MOTORCOMPANY 9, 1997, September Grand Submitted at Docket Nos. 200856. January 13, 1998, Rapids. at 9:05 A.M. Decided Traxler; Traxler; Traxler, Deanna as next friend of Sarah A. Steven liability products brought a action in the Kent and Scott Traxler Company, Company against Ford Motor Ford Motor Circuit Court injury Canada, Traxler sustained as a and others after Sarah Tempo passenger a 1986 Ford whose driver’s seat back-seat was involved in a rear-end moved rearward when the automobile Kolenda, J., court, entered a default Dennis C. collision. Company Company against Motor of Canada Ford Motor and Ford collectively Ford), ruling (hereafter to as that Ford had referred plaintiffs’ responding and committed fraud when to the discov- lied ery requests design. appealed to seat leave relative granted. held,-. Appeals The Court of power pursuant a default to MCR 1. The trial court had order party 2.302(E)(l)(i) provides 2.302(E)(2). MCR that a is under a duty seasonably prior discovery response party if the to amend a party that the obtains information on the basis of which knows made, 2.302(E)(2) provides when and MCR was incorrect including default, may pursuant 2.313(B), be that sanctions to MCR discovery response. supplement for the failure to a In this ordered any response case, deemed to have been a lie or the trial court responses purposes 2.302(E). were incorrect for of MCR fraudulent clearly finding err in that Ford had lied 2. The trial court did not responding to some of the dis- or committed fraud when covery requests. court, imposing for failure 3. A trial before default as sanction discovery respond request, fail- to a should consider whether the period, existing ure over a substantial whether an discov- extended ery elapsed violated, time that between order was the amount of default, prejudice party motion for to the the violation and the requesting default, shown. The and whether wilfulness has been options should evaluate other besides default and should trial court flagrant employ has and wanton default when there been Co Ford Motor comply discovery, refusal not when failure to with a to facilitate involuntary. case, request In this was accidental evidentiary hearing must be remanded for an to establish matter flagrant whether Ford’s conduct constituted a and wanton refusal prejudiced to facilitate and whether the by noncompliance. The trial court also should consider appropriate light again in of other alternatives. whether default is part, part, Affirmed in reversed in and remanded. J., dissenting part, although in stated that the trial court Gribbs, pursuant power 2.302(E)(2) and

had the to order default to MCR clearly finding did in not err that Ford had lied or committed fraud responding plaintiffs’ discovery requests, when to the a remand for necessary evidentiary hearing amply an is not because the record engaged flagrant demonstrates that Ford in and wanton refusal to discovery prejudice facilitate and that the suffered as a result. The order of default should be affirmed. — — Discovery Supplement Responses

1. Pretrial Procedure Failure — Discovery Requests Default. may A trial court enter a default as a sanction for a defendant’s failure prior discovery response defendant, upon to amend a obtaining subsequent information, (MCR knows to be incorrect 2.302[E][2],2.313[B]). Judgments — — 2. Comply Discovery Requests. Default Failure with court, entering A trial before a default as a sanction for a defendant’s respond discovery request, failure to ato should consider whether period, existing the failure extended over a substantial whether an violated, elapsed order was the amount of time that default, between the violation and the motion for and whether shown; wilfulness has been the trial court should evaluate other options employ besides default and should default when there flagrant discovery, has been a and wanton refusal to facilitate comply request when failure to with a was accidental or involuntary.

Rhoades, McKee, Boer, (by Goodrich & Titta Bruce Neckers, W. Paul A. M. McCarthy, Molly McNa- mara), plaintiffs. for the

Dawson & P.C. A. Clark, (by Kathleen Clark and John R. Prew), Dickinson, Wright, Moon, Van Dusen Thomas, & Freeman Richard A. John M. (by Glaser), OReilly, and Michael J. for the defendants.

Opinion Court JJ. Griffin, P.J., Before: and Wahls Gribbs, Company Motor J. Defendants Ford Wahls, Company (hereinafter Ford) Ford Motor of Canada

by appeal granted from an order of default. We leave

part, part, in affirm reverse and remand.

case stems an

This from automobile accident

accident, 1990. At the time of the two-month-old

strapped safety Sarah Traxler was into a child seat in

parents’ Tempo. the back of her 1986 Ford Her

driving, mother was and her father was seated next to

waiting her in the back seat. theAs Traxlers were

they turn, make a left were rear-ended another

traveling approximately fifty vehicle at miles an hour. The force of the collision caused the driver’s seat of Traxler’s car to seat, move rearward into the back striking Sarah in the head. Sarah was left with severe permanent injuries. Apparently, no one else was injured in the crash. against

Plaintiffs filed suit the driver of the other safety vehicle, the maker of seat, the child and Ford. appeal only theory This regarding involves Ford.1 Plaintiffs’ liability design revolved around the

Tempo. of the driver’s seat in the Ford ery requests Their discov- design process, thus focused on Ford’s tendency knowledge regarding on Ford’s of its way give seats to in rear-end collisions, and on other against alleging design lawsuits filed front-seat

Discovery place defects. took over more than two years objections and was marked Ford’s numerous

by plaintiffs’ repeated compel. motions to ofMost apparently plaintiffs. The driver of the other vehicle settled with safety plaintiffs’ of the child manufacturer seat was dismissed below on motion. v Ford Motor Co

Opinion of the Court compel

plaintiffs’ before motions to were withdrawn

apparently them, could hear because the trial court

parties agreed to work out their differences

Eventually, however, the trial themselves. between

plaintiffs’ granted motions to heard and one of court compel.

granting court warned motion, In the trial

discovery comply failure to with the Ford that its

response in a In to the would result default. order

provided plaintiffs sixty- with order, trial court’s

reviewing this new two boxes of documents. After

plaintiffs information, asked the trial court to order

They argued against the documents default Ford.

produced a result of the trial court’s order should as

delay produced far earlier and that the had have been prejudiced

only point to the that default was the them

remedy. agreed appropriate The trial court

against Ford. In its writ- entered an order of default

opinion, trial court lambasted Ford for its ten

discovery: during conduct discovered when read those What counsel disgusting; be accu- documents was no other word would very years, signifi- rate. For over two Ford had concealed information, and, worse, blatantly had cant documents and lied about those documents and about the information them; any than “lied” would understate what word other carefully reviewing plaintiffs’ Ford did. . . . After responses requests (hundreds pages), and some of Ford’s studying briefs, listening several rounds of to counsels’ very helpful argument, agree oral this Court had to that an perpetrated by outrageous Ford ... and that fraud has been appropriate response. of a default... is the the sanction appeal.

argues It Ford raises several issues on

power impose (1) not have the a the trial court did

finding (2) Ford committed default, erred in

request denying (3) for an fraud, and erred in Opinion of the Court evidentiary hearing. argues addition, In Ford that the

trial court failed to sanctions, consider alternative

failed to consider how Ford’s errors were made

findings who made them, made of fact that were

supported by begin by addressing the record. We

power the extent of a trial court’s to sanction discov- ery abuses. scope powers question

The aof trial court’s is a

questions law. We review of law de novo. Smith v

Henry Hosp, App 555, 557; 557 NW2d

(1996). Michigan specifically Court Rules

judgment authorize default aas sanction for certain discovery abuses. Such abuses include a failure to comply discovery 2.313(B)(2)(c), with a order, MCR

interrogatories, failure to serve answers to MCR

2.313(D)(1)(b), and, circumstances, under certain

supplement responses failure to

requests, 2.302(E)(2). argues MCR that, even

assuming findings the trial court’s factual were cor- apply rect, none of these rules in this case. We

disagree.

First, it is clear that the trial court did not find a violation of a order, and thus, MCR 2.313(B)(2)(c) apply directly. does not Second, there allegation is no that Ford failed to serve answers to interrogatories, various and thus MCR 2.313(D)(1)(b) appear apply.2 does not However, assuming findings the trial court’s factual were cor- argue incomplete Plaintiffs that Ford’s answers were and that By express terms, therefore constituted a failure to answer. MCR applies only 2.313(D)(1)(b) objections to a failure to serve answers or interrogatories. Thus, appears 2.313(D)(1)(b) applies only that MCR party completely answer, party’s where fails to rather than where a answers are somehow deficient. v Ford Motor Co Opinion of the Court apply.3 That 2.302(E) MCR does we believe that

rect, states, part: in subrule Duty Supplement. . . .

(1) seasonably prior duty (a) party to amend a A is under party basis of response obtains information on the if the party knows that which the made; response (1) was incorrect when the made, response, though longer (ii) correct when is no the amend are such that a failure to true and the circumstances knowing in substance a concealment. is * * * Supplement. (2) Failure to by way otherwise, finds, that a If the court of motion or seasonably responses party supplemented has not as may required by this the court enter an order as is subrule just, including providing in an order the sanctions stated and, particular, 2.313(B)(2)(b). 2.313(B), MCR MCR 2.302(E). [MCR ] concluded that Ford “lied” and

Here, the trial court Any response outrageous of “an fraud.” guilty fraudulent or as a lie was that can be characterized as obviously Thus, when made. to the extent incorrect responses consti- that the trial court found that seasonably duty had a fraud, tuted lies or trial responses. On the basis of the supplement those clearly duty. fulfill this failed to findings, court’s power trial court had the to order Therefore, pursuant 2.302(E)(2). default to MCR rely 2.302(E) recognize on MCR when We that the trial court did not However, against we need not reverse where a default Ford. it ordered result, wrong reason. Cox albeit for the trial court reached the correct Thus, Heights, App 389, 391; (1995). Dearborn 534 NW2d 135 v 210 Mich may applicability 2.302(E). properly of MCR we consider App

Opinion of the Court argues Ford next that the evidence the record

support does not the trial court’s conclusion that

disagree. Ford lied or fraud. We committed We review

findings Triple a trial court’s of fact for clear error. E

Corp Produce Produce, Ltd, Mastronardi

App finding 171; 530 NW2d 772 A of fact

clearly although erroneous when, there is evidence

support reviewing it, the court is left with a defi-

nite and firm that a conviction mistake has been

case, made. Id. In this we are not left with a definite and firm conviction that a mistake has been made. On contrary, the record makes it clear that Ford

non-privileged relevant, failed to disclose information

responses plaintiffs’ early discovery requests. in its

objected plaintiffs’ discovery requests, While Ford

objections we do not believe that those were suffi- cient to excuse Ford’s conduct. parties

The and the trial court address numerous

examples discovery. during of Ford’s conduct Here, simply interrogatories we address two that are illus- begin interrogatory We trative. with an and a response highlight position during Ford’s

early stages discovery: of many Tempos by

35. How 4-door Ford were in sold in dealers the United States Canada? objects Interrogatory ground 35. Ford to this on the overly broad, vague, irrelevant, oppressive it is and not cal- culated to lead to the of admissible evidence. waiving objections spirit discovery, Without its and in the of 176,976 Tempo Ford states Four-Door vehicles were sold in the United States and Canada. exchange

significant

This is for two First, reasons.

objected interrogato- illustrates the fact that Ford

objections groundless ries even where its were on v Ford Co Motor Opinion of the Court interrogatory that asks for face; how can an their

overly vague? simple be broad or numerical answer

objecting ground purpose that a of on the What is the

objection request oppressive is followed when the

request? argue by How could Ford the answer to the

products regarding the number of that information

lead to the dis- or not calculated to sold is irrelevant

liability products covery evidence in a of admissible

objections boilerplate, Clearly, were Ford’s suit?

they justified ignoring them when

responsive an answer that was were followed

response request. highlights also the fact their

provided appar- spirit discovery,” Ford that, “in the

plaintiffs’ ently complete answers to at least some

objections. requests, despite significance

becomes clear when we review these observations

par- important interrogatories. The of the more one

interpreta- contrasting and the trial court offer ties

following interrogatory answer: tions of the left driver’s seat and 10. State whether the same front backs, right passenger seat tracks and seat as identi- front previously interrogatories having set of as been fied this any subject vehicle, were ever installed on installed on the Company vehicle, including lim- but not other Ford Motor Lynx Mustang, [Capri], Escort, wagon, station Thun- ited any derbird, Taurus, Sable, Topaz, Tempo, Cougar, year. yes, vehicles, model If the answer state which years (driver passenger). and which seat which model ANSWER: objects Interrogatory ground on the

10. Ford to this irrelevant, oppressive overly broad, vague, not cal- it is discovery of admissible evidence. lead to the culated to spirit discovery, objections waiving and in the Without used in the Ford states that the seat track assemblies only. unique Tempo/Topaz Tempo car lines are to the Opinion of the Court The trial court and characterized Ford’s response similarly. to the trial According court:

That answer was not true. Plaintiffs have learned that the Tempo/Topaz Escort/Lynx seat was derived from the seat that seat had been used in numerous other models. now, only having caught Ford admits that but after been a he. plaintiffs’ interrogatories

How Ford answered about seats handling reveals much about its in this case. Ford insists that it is true that “the seat track assemblies Tempo unique Tempo/Topaz used in the are to the car lines only.” may be, question That but the asked of not so limited. Ford was asked whether the front “seat tracks Tempos and seat backs” installed in 1986 “were ever any Company installed on other Ford Motor vehicle.” If they were, particulars requested. objected were to the interrogatory responded . . . and then that “the seat track Tempo unique assemblies used in the are to the Tempo/Topaz only.” craftily car lines What it did was question say, reformulate the to ask what it wanted to namely: assemblies, that the seat track not the seats them- selves, unique, thereby creating impres- misleading were any sion that the seats had not been used other vehicles. impression, plaintiffs expect With that would not to be told involving about tests and lawsuits the seats and other mod- els, though were, out, even the seats it now turns the same. saying many That was as dishonest as in so words that the seats, just assemblies, unique the seat track to the simply precise vehicle. . . . Ford’s answer was not answer poor question; answer, carefully it was a dishonest impression crafted to mislead the reader. An can be so strong obviously impart and so what someone wanted to effect, that it case, is a statement to that in this a false statement.

As will be below, discussed we are concerned with evidentiary basis for some of the trial court’s con- However, clusions. none clearly of its are findings v Ford Motor Co Opinion of the Court contrary to the are not arguments erroneous. Ford’s to Ford: According well taken. leapt that Ford’s court to his conclusion trial [T]he only by focusing on one was “dishonest” and a “lie”

answer response interrogatory. Ford’s one to one sentence of objected response Interrogatory that the interro- 10 also overly answering be gatory and that it would broad unduly burden There is no almost no burdensome. [sic] unique simply saying that the entire seat is associated with Therefore, Tempo/Topaz. meant if that is what Ford to the objectionable say, have been no burden and there would only interpretation point objection. no to the objection response gives and the that effect to the entire unique partial only answer is that the seat track was components as that the other numerous of the seat—such mechanisms, seatbacks, cushions, frames, recliner seat widely bolts, springs, fabric, attachment etc.— were so try unduly for Ford to used that it would be burdensome years identify all and model in which all of of the models original; components [Emphasis in were used. those parentheticals omitted.] by its answers to other position is belied above, Ford made some

interrogatories. As noted Thus, on their face. objections groundless that were there was no respect interrogatories, with to some give that could interpretation of the entire objection and its answer. Under effect to both Ford’s circumstances, pre- Ford is not entitled to a these objections any had sumption significance position any logical also lacks whatsoever. Ford’s say the seat tracks appeal. If Ford meant components were so unique, and that the other would be answering interrogatory common that only say Instead, so. unduly burdensome, it needed answer, “partial” what it now claims was a gave By doing relevant information. clearly which omitted Opinion of the Court appearance lying so, Ford created the that it was intentionally concealing relevant information. We can- findings not conclude that the trial court’s in this

clearly regard were erroneous.

arguments regarding

Next, Ford raises a number of the trial court’s decision to order a default, rather than some less serious sanction. Default is a drastic measure and should be used with caution. Mink v Masters, 242, 244; 204 Mich 514 NW2d 235

(1994). panel Another of this Court articulated the factors that a trial court should consider before ordering a default: imposing judgment,

Before the sanction of a default respond trial court should consider whether the failure to discovery requests period extends over a substantial time, existing discovery violated, whether an order was the elapsed amount of time that has between the violation and prejudice judgment, the motion for a default the to [the party requesting default], and whether wilfulness has been options shown. The court should evaluate other before con cluding Bell, that a drastic sanction is warranted. [Thorne App 625, 632-633; (1994) (citations 522 NW2d 711 omitted).] judgment

In addition, “[t]he sanction of default

employed only should be when there has been a fla grant discovery and wanton refusal to facilitate comply discovery request not when failure to with a involuntary.” supra is accidental or Mink, at 244. We review sanctions for an abuse of discretion. supra Thorne, at 633.

argues

First, Ford that the trial court ordered a

considering default without alternative sanctions.

argument support This finds no in the record. The

clearly recognized duty trial court to consider v Ford Motor Co

Opinion the Court any simply concluded that sanctions; alternative remedy damage was insufficient to lesser sanction that Next, argues caused Ford’s misconduct. prejudice conclusions regarding the trial court’s supported by are by Ford’s conduct caused discussed, con- will be we are disagree. record. We As evidentiary for its the trial court’s basis cerned about However, do not this issue. we regarding conclusions findings regarding the trial court’s believe clearly erroneous. prejudice are it erred that, to the extent that Finally, argues court failed to the trial responses, in its disa- Again, we how those errors occurred. consider trial considered the clear that court gree. It is and concluded nature of Ford’s errors Instead, the trial oversights. simple not mistakes perpetrated and Ford had lied court concluded that in the We no evidence “an fraud.” find outrageous findings, the trial court’s record to contradict clearly argu- Ford’s related are not erroneous. a failed consider whether ment, the trial court to that for con- against be Ford default should ordered The trial court attorneys, is without merit. duct of its even authority a against had to order default attorneys responsible for the misconduct. if its were 522; Mich 87 NW2d 192 Sadler, v See White attorney is an generally (1957) (“the neglect client”). also to his See as attributable regarded Ins, 113 Corp Comm’r Way Service v American 423, 434-435; (1982). 317 NW2d 870 App Mich prejudice caused We discussed the have that conduct culpability and Ford’s for conduct remand this case briefly compelled we are to because issues. evidentiary these hearing regarding an for

Opinion of the Court argues, agree, and we it is to an that entitled evi-

dentiary may hearing (1) where it introduce evidence

comply plaintiffs’ discovery that its failure to with

requests involuntary (2) was accidental or

plaintiffs prejudiced by Ford’s mistakes. We

process requires hearing: believe that due such a process generally requires Due in civil cases notice of the proceedings, opportunity nature of the an to be heard in a meaningful manner, impartial time and and an deci- opportunity sionmaker. The to be heard does not mean a proceeding, require full hearing trial-like but it does party allow a respond the chance to know the evi- [Cummings Wayne Co, App 249, dence. 253; NW2d 13 ] parties

permitted

Here, the should be to introduce

regarding during evidence Ford’s conduct

any prejudice plaintiffs. and the extent of After the evidentiary hearing, the trial court must determine flagrant whether Ford’s misconduct constituted a discovery.4 supra wanton refusal to Mink, facilitate at again 244. In addition, the trial court should consider appropriate light whether a default is an sanction supra of the available Thorne, alternatives. at 633. Finally, in order to remand, avoid confusion on we parties’ dispute regarding address the the standard of proof required support finding of fraud. Ford argues improperly applied trial court “preponderance finding of the evidence” standard in that Ford committed Indeed, fraud. it is unclear apply preponderance whether a court should the of 4 original findings clearly Our conclusion that the trial court’s not preclude erroneous making findings does not the trial court from different on remand. 289 Co v Motor Opinion by Gribbs, J. convincing or the “clear

the evidence standard an of considering allegation in standard evidence” A essentially this irrelevant: However, issue fraud.5 of justify find to an order not fraud trial court need is whether Rather, the relevant consideration default. and wanton “flagrant constituted a Ford’s conduct Mink, supra at 244. discovery.” refusal to facilitate evi require convincing clear and see reason We no the Thus, remand, on finding. such support dence set out consider whether the factors trial court must and Mink by preponderance are Thorne in met the evidence. affirm trial reasons, we the foregoing

For power order a it had the court’s conclusion fraud. How- Ford lied or committed default where order of default ever, reverse trial court’s we in evidentiary hearing remand for an against Ford and juris- not opinion. with this We do retain accordance taxable, party having are neither diction. No costs prevailed in full.

Griffin, P.J., concurred. part dissenting in (concurring

Gribbs, part). opinion I in most majority with the agree power that the court had respects: I trial agree that its pursuant 2.302(E)(2), order default to MCR lies dishonest findings regarding of fact clearly con- that its answers were erroneous proved by convincing” Generally, evidence must be “clear and fraud preponderance evidence. Foodland Distributors rather than of the Al-Naimi, see Mina App 453, 459; NW2d 379 But Co, Indemnity App 678, 684-685; 555 NW2d v General Star grounds (1997) (“we (1996), part Mich 865 are una on other rev’d exactly proof say any degree certainty what standard ble to with apply cases.”). courts in fraud should App Mich 290 276 Opinion by Gribbs, J.

elusions an perpetrated fraud outrageous and in a “engaged campaign calculated of conceal- clearly ment and deceit” erroneous. How- ever, I respectfully majority’s dissent from the deci- for evidentiary hearing. remand an Accord- sion ingly, I affirm would the trial court’s order of default against plain- Ford and remand for determination tiffs’ damages.

As majority notes, the relevant consideration on remand is “whether Ford’s conduct constituted a ‘fla- grant and discovery.’” wanton refusal to facilitate Masters, Mink v 204 Mich 514 242, 244; NW2d 235(1994). However, inacomprehensive, spaced single- eleven-page opinion1 already the trial court found 1 thorough, opinion, January The text of the trial court’s revised issued 27, 1997, repeated is here in full: question posed by every “What is truth?” is the core lawsuit. Peo-

ple Barbara, 352, v (1997). 400 Mich 357 NW2d Lawsuits [255 171] generate fees, games won, are not activities to to be or theater to entertain. are Lawsuits searches for the truth of who did what and consequences. complex- who is to be accountable for the Given the affairs, always found, ities of human the truth cannot be but the why courts, lawyers fair search for isit When lawsuits exist. it found, is revered, ques- the truth must be and one answer to the tion, always be, expected,” “What is truth?” must “What is which known, always spoken. means that it is when the truth must be It why Company wasn’t in this That is case. defendant Ford Motor is being defaulted. deliberately distorted, When the is truth concealed or the reac outrage. dishonesty Anything accepts by tion must be less accepting encourages why it. That is have never been “[c]ourts perjure inclined to condone or reward who those choose to them they, pernicious perjury selves. Nor should since the effects of are Upon disclosure, perjury by evident to all. should be condemned guilty party accordingly,” Lamky courts and the dealt with v Lamky, App 17, 29 Mich 22 NW2d Unless the [185 203] price dishonesty unbearable, temptation for “would to it be Nagi 452, Ry, not a little increased.” v United Detroit 231 Mich (1925); People 679, Adams, NW [204 v 695 fn 11 126] (1988). Perjury utterly reprehensible.” NW2d [425 “is In the 437] Motor Co v Ford 1998] Opinion Gribbs, (1982); Grimes, [326 Matter of very supra, Adams, fabric of the People 695. It tears at the at law, objective is to system which legal of the rule and at the disputes community by fairly resolving keep peace in the an essential the truth is Reverence for to communal endemic component life.. public that the to believe If the ever comes of fairness. accept dishonesty, will not the courts’ do not abhor courts disputes willing to submit their will not be to as fair and decisions them. sig concealing great caught a deal of has been is because Ford It entering blatantly lying is a that this Court and nificant information proportional penalty offense. against to the No lesser is default it. being judgment, Ford default, entered because default is A not a claims, damage plaintiffs’ jury to a assessment remains entitled (1982), DAIIE, but a default 413 Mich 573 Woodv [321 hiding information and appropriate. It should be axiomatic is with sanctions lying and must be answered be tolerated cannot unmistakably say Regrettably, more. needs to hear so. which powerless misconduct. to deal with its Court is It insists that this propriety ample precedent recognizing the There is That is not so. doing is in this case.1 what this Court PROCEEDINGS STATEMENTOF severely old, Traxler was Sarah she was two months When passenger injured was a in which she when the automobile securely Although in a by fastened another automobile. rear-ended injuries seat, when the suffered severe brain Sarah child restraint likelihood, collapsed In all onto her. mother’s seat back of her beyond develop capabilities physical will never and mental Sarah’s parents 3-year manufacturer of sued the She and her of a old. those parent’s Ford, her manufacturer of seat2 and the the child restraint Tempo. against it was car, Ford are that Their claims a 1986 Ford imposed designing forces on negligent seats to withstand the in not in routine collisions. them very mediated favora- trial. It was is now weeks from This case looming. failed, What bly plaintiffs, and trial is efforts settlement to being discovery why during entered. Dis- happened a default is is apparent only extensive, from covery arduous. It is it was was not interrogatory, an seldom answered file that Ford the motions on deposition document, without burden- produced or scheduled every- fight delays for ing plaintiffs’ and the need counsel with interrogatories plaintiffs’ very thing owed. A common then, spirit and, object “in of dis- them as overbroad was to effectively reformulating narrowly, very covery,” to answer them (A nothing pertinent. questions revealed the answers so that Opinion by Gribbs, particularly pertinent example below.) is discussed Ford also played games. example, plaintiffs word For when asked for infor- “collapsing rearward,” responded mation about seats that it question “collapse” could not answer the because the word ambiguous argumentative. documents, and Ford could not locate deposi- and witnesses and/or counsel were seldom available for Only dogged persistence by plaintiffs’ got anything. tions. counsel Every discovery request had to be followed with motions to com- pel and, then, prolonged wearing negotiations. with In the best plaintiffs’ profession, tradition of a civil counsel “worked with” Unfortunately, willingness Ford. Ford used that to evade. summer, July, Last Ford’s tactics resulted in this issuing following: Court an order which said and did the them, “After a (i) careful review of this Court finds discovery requests appropriate, 2.302(B)(1), at issue are MCR that, (ii) especially placed when in the context of the difficult time throughout obtaining have had this case information from defendants, responses requests to those are obstructionist. responses appear Those plain- to be a calculated effort to burden narrowly tiffs’ counsel and to so redefine the standard of “relevant subject 2.302(B)(1) disingenuously matter” in MCR invoke, given capabilities, the standard of “undue burden or expense” 2.302(C), potential sig- MCR that much of considerable by nificance to this case can be withheld defendants. That Ford has produced already product plaintiffs’ persistence much is a patience, cooperation by Accordingly, Ford. as authorized 2.313(A)(2)(c): MCR adjudged plaintiffs’ hereby that Fourth Motion It ordered and Compel against Company Company Ford Motor and Ford Motor Canada, May 26, 1996, of which motion is dated and was filed on May 31,1996, be, granted. hereby is, and the same Defendants Ford Company Company Motor pro and Ford Motor of Canada are to days complete vide within responses hereof full and to the dis puted particulars plaintiffs’ Request Admissions, Second for Interrogatories, Fourth Request Set of and Fifth for Production of If, judgment Court, appropriate responses Documents. in the of this provided time, are not within against that a default will be entered and, them, proceed said solely defendants as to trial will on the damages. 2.313(B)(2)(c) issue of See MCR and MCR 2.313(D)(1)(b). Entry only response of a default is the credible persistent by litigant obstructionism with Ford’s economic strength. See, DAIIE, [infra]; Bell, [infra]; Woodv Thorne v and ACO, Inc, App 389, Frankenmuth Ins Co v 396-397 [484 (1992). Any NW2d penalty 718] lesser sanction is no will invite, not deter continued misconduct.” v Ford Motor Co 1998] Opinion by Gribbs, J. appeal fight nor did it seek that order. It did not Ford did not 120,000pages Instead, promptly Ford turned over

reconsideration. when read counsel discovered What of documents. disgusting; would be accurate. no other word those documents was very years, significant documents had concealed For over two blatantly and, worse, information, docu had lied about those any them; than in word other and about the information ments what Ford did.3 Those revelations would understate “lied” judgment prompted plaintiffs to enter a default to ask this Court carefully patience. against run out of After Ford. Their counsel had discovery requests reviewing plaintiffs’ and some of Ford’s briefs, studying responses pages), (hundreds several rounds of very helpful argument, listening oral this Court to counsels’ by perpetrated outrageous agree has been that an fraud had to telling examples below—and that the are discussed Ford—a few judgment, appropriate default, is the but not a default sanction of response.4 argu- illuminating their counsel’s oral Plaintiffs’ recent briefs and deception perpe- job identifying outstanding ment do an reviewing by higher which will be this trated Ford. The courts study transcript invited to those briefs and the Court’s decision are Nothing prolixity argument. will be achieved but needless of that everything persuasively restating there. Those here said so say transcript part are all of the record. Suffice to briefs and the 207, here, Upjohn Hampshire Co, Mich fn 7 Co v New Ins examples amply (1991), a few demonstrate that [476 consistently legitimately requested concealed information that Ford by plaintiffs consistently appropriate lied in its dis- covery deny shortcomings requests. does not of its discov- only ery responses. or not It tries to excuse them as unintentional authority argues strenuously prejudicial, that this Court lacks and it otherwise, Obviously, punish, by it for what it did. default differently. things much Court sees discovery process, August, 1994, Early in the back asking interrogatories whether it had used to Ford had submitted parents’ car, Tempo, a 1986 Ford in other vehi- the seats in Sarah’s seeking cles, had, include If it would have to as well. been vehicle models. If the seat had information about those other only Tempos, be limited to that model. could used Tempo unique “are to the the seats used in the Ford answered that only.” TempoTopaz Plaintiffs That answer was not true. car lines Tempo/Topaz was derived from the that the seat have learned Escort/Lynx in numerous seat had been used seat and now, having been admits that but after other models. Ford caught in a lie. Opinion by Gribbs, plaintiffs’ interrogatories How Ford answered about seats reveals handling discovery much about its in this case. Ford insists that Tempo it is true that “the seat track assemblies used in the are unique Tempo/Topaz only.” may be, to the car lines That but the question asked of Ford was not so limited. Ford was asked whether the front “seat trades and seat backs” installed in 1986 Tempos any Company ever “were installed on other Ford Motor they were, particulars requested. objected vehicle.” If were to interrogatory “overly-broad, vague, irrelevant, oppressive as evidence,” and not calculated to the of admissible responded then Tempo that “the seat track assembles used unique Tempo/Topaz only.” are to the car lines What it did was craftily question say, reformulate the to ask what it wanted to namely: assemblies, themselves, that the seat track not the seats unique, thereby creating misleading impression were that the any seats had impres- not been used in other vehicles. With that sion, plaintiffs expect would not to be told about tests and lawsuits involving models, though were, the seats and other even the seats out, it now turns saying the same. That was as dishonest as in so many seats, just assemblies, words that the the seat track unique generally recognized may to the vehicle. “It is that ‘fraud’ be by suppression truth, consummated of facts and of the as well as by open Black, false assertions.” USF&G v 125 [313 simply precise Ford’s answer was not answer poor question; answer, carefully to a it was a dishonest crafted to impression strong mislead the reader. An can be so and so obvi- ously impart what someone wanted to that it is a statement to that effect, case, in this a false statement. impact deception abundantly The of Ford’s was made clear latest identify disclosures. Plaintiffs had asked Ford to produce integrity all tests done to establish the of the seats Tempos, used in 1986 Ford as well as the same or similar seats responded performed used in other vehicles. Ford that it had impact Tempo/Topaz rear tests on the seat between 1984 and 1994. discovery disgorged July to this Court’s order performed revealed that there have been hundreds of such tests on the same highly seats in numerous other models. Those tests are all requested by plaintiffs. relevant By way to this case and were responded plaintiffs’ interrogatories Tempo/Topaz that the seat unique, Ford hid all those other tests. Concealing something highly significant those tests concealed tests, routinely this In collapsed case. those the front seats into the slightest impact. Throughout back case, seat on the this Ford has seats, including Tempos, insisted that its designed those in 1986 are “yield.” persistently great exception any Ford has taken char- 295 v Ford Motor Co Opinion by Gribbs, “collapsed,” having “failed,” “broke,” or but acterizations of seats very just repeatedly reports use those terms to the test disclosed just happened like to Ford seats in collisions describe what in What Ford disclosed also revealed which occurred this case. used, capable developed, that, years ago, but never a seat it had impacts withstanding greater rear-end than that which much injured August, Ford had disclosed none of that. Sarah. Until last disclose that it had convened a Task Force to Ford also failed to study performance, that the Task Force had had numer- seat back report performed and that a ous tests on Ford seat backs attempts justify drafted, apparently but never issued. Ford by contending that, years, withholding for of that information thought privi- and its work were to be existence of the Task Force finally leged. Task Force was disclosed because Ford and its “probably privileged.” counsel now conclude that the same are disingenuous. Absolutely nothing privilege is disclosed The claim of supports any appearance and its activities about the Task Force privilege. Furthermore, highly revealing privilege a of the claim of response proper is how Ford handled that claim. The would have existence, particulars, of the been to note the but not disclose the information, and, then, produce privilege. decline to it because of a Martin, al., Michigan (3d ed), 2.314,p Court Rule et Rules Practice 383. The Court could then have ruled on the claim. Ford’s counsel right way. privi- knew the Ford’s silence was not the assertion of a lege, concealing but known to be dis- the deliberate of information unper- privilege coverable. The claim of a mistaken belief a is an suasive rationalization. example mendacity more of Ford’s will suffice. Another of One interrogatories identify 1994 asked Ford to all lawsuits against complained it which about defects in the seat backs and/or Tempos seat tracks of the 1986 Ford and other Ford vehicles utiliz- first, only ing the same or similar seats. At Ford identified 2 such Later, reported lawsuits, had been 48 but lawsuits. there particulars recently-produced no were ever disclosed. The docu- Tempo/Topaz ments reveal that Ford has defended the seat brought those lawsuits were on behalf of lawsuits. Some 19 of failures, injured who were due to seat several of minor children just having passengers injured been back seat like Sarah them Traxler, by startling collapsing Even more is the reve- a front seat. July response lation in the documents disclosed in to this Court’s involving of lawsuits order that Ford has defended hundreds Nothing in other models. was disclosed about those same seat August, explanation for its ini- numerous lawsuits until 1996. supposed belief that tial inaccurate is its Tempos, only involving asking a about lawsuits model and Opinion by Gribbs, J. year generated pair nonsense, which a of lawsuits. That is put bluntly. interrogatory Plaintiffs’ asked for all lawsuits com- plaining design manufacturing about defects in the front seats Tempo automobile, any “of the 1986 Ford as well as other auto- for employing [emphasis added], mobile the same or similar seat[s]”

APPLICABLELAW authority perverting The Court has to default Ford for its of the discovery process. says Michigan Common sense so. So do the Rules, law, Michigan Court the case and the Revised Judicature According 2.313(D)(1), “may Act. to MCR a trial court order such just,” including “rendering judgment sanctions as are [of] default,” 2.313(B)(2)(c), against party MCR fails which to answer interrogatories. compelling prerequisite. An order is not a Gupta, App 293, (1989), LaCourse v 181 Mich 296 NW2d [448 827] app (1990). blatantly deceptive lv den 434 Mich 921 Since a answer is worse than no answer —the lack of an answer is not mislead ing anomaly” authority punish would be an absurd if the —“it failing interrogatories apply equally giving to answer did not deliberately Cummings Wayne Co, false answers. v 210 Mich 249, (1995); judge 251 NW2d and MCR 1.105. A trial [533 13] “must doing something inadequately have the discretion” to treat or improperly as a failure Colman, to do it at all. Cf. Banaszewski v App 92, (1983). addition, 131 Mich 95 NW2d In [345 647] the courts have, independent rules, authority of court “inherent to sanction authority misconduct.” That “is rooted in a court’s fundamental protecting integrity judicial interest in pro its own and that of the Cummings Wayne Co, supra, cess.” v at 252. See also Bellok v Koths, App 780, (1987), app 163 Mich 783 NW2d lv den 430 [415 18] (1988). Assigning Mich 854 to the trial courts “the front-line responsibility justice” requires authorizing for the administration of back, speak, them to shoot so to with the sanctions of dismissal or Department Health, 659, default. North v Mental 427 Mich 661- of (1986). Legislature agrees. 662 NW2d [397 793] It has con “jurisdiction power any proper fully ferred and to make order jurisdiction judgments.” effectuate the circuit court’s MCL 600.611; sum, authority MSA 27A.611. In this Court has to default Ford. Admittedly, having authority something to do does not necessa rily proper every authority. mean that it is in instance to utilize that Specifically regard hand, with to the issue at the sanction of a default a“is drastic measure and should be used with caution.” Masters, App 242, (1994). Mink v 204 Mich 244 NW2d [514 235] things. “flagrant The court is to consider various Was there a 297 Co 1998] v Ford Motor Opinion by Gribbs, J. discovery!?],” Bell, 206 Mich Thorne v to facilitate wanton refusal supra, Masters, (1994); App 626, and Mink v NW2d 633 [522 711] Equico Lessors, Origi Inc v “inexcusable” conduct? other or some (1985). App 532, Buscemi’s, Inc, NW2d Mich 373] [364 nal appropriate attempts discover infor conduct frustrate Did that development presentation proper of the mation vital to prejudice Koths, supra, case, or did it otherwise at Bellok v presentation? e.g., impairing Barlow party, a mediation the other App 244, Crane-Houdaille, Inc, NW2d 133] [477 v alternatives, Finally, considering “[i]s after available “just proper within the context of default drastic sanction Hospital, 166 particular v Southwest Detroit Houston case[?]” app (1987), App 623, lv den 431 Mich 629-630 [420 supra. Koths, (1988); The trial court need not and Bellok ordering necessarily impose or a dismissal lesser sanctions before imposi do is consider “whether the What the court must default. jus not better serve the interests sanctions would tion of lesser supra, not, Health, Department at 662. If Mental North v tice.” defaulting misbehaving plaintiff’s dismissing a misbe case proper. having is defendant LAWAPPLIED APPLICABLE for the case satisfies all of the criteria conduct this are, Concealing lying information and of a default. drastic sanction dispute, Such conduct is inexcusable behavior. can be no there discovery, which is intentional refusal to facilitate more than an entry Concealing information and warrant of a default. sufficient to discovery; flagrant lying facilitate noth is a and wanton refusal to probably ing a default. That alone warrants could be more obvious. it, reprehensible, engaging especially, engag perjury Because it, prolonged ing to the maintenance in a course of is so offensive punishment may judicial process be that the severest of a sound Cf., perjury’s required regardless on the case. MCR of the effect (Aft Rem), People 6.508(D)(3)(b)(iii), 446 Mich v Anderson (1994). 392, 405, that is so need also NW2d Whether 406 [521 538] case, however, for because all of the criteria decided in this be entry have been met.5 of a default badly prejudiced plaintiffs and this Court. conduct has Ford’s spend considerable effort and incur has had to Plaintiffs’ counsel expense acquiring which great from sources information other significantly, misconduct More should have disclosed. development plaintiffs vital to a of information in the has frustrated belatedly presentation has persuasive claims. What Ford of their case, testing in this what the car seat at issue about its of revealed Opinion by Gribbs, appears tests, availability to have learned from those the of a seat, used, go safer and the fact that a safer seat was never all directly plaintiff prove to what a must in a case like this one and Supreme expects discovery. during what the Court to be disclosed Mfg Co, 670, See Prentice v Yale 421 Mich 688-689 [365 176] (1984). readily apparent It is from Ford’s recent briefs that it has a “spin” favorable on that information. To enable respond, discovery experts needs to start anew. Plaintiffs’ need to over, follow-up inquiries start all and a tremendous amount of must pertinent personnel. put be made of Ford and its That would off year, very plaintiffs. trial until next which would be unfair to public Ford’s misconduct has also harmed this Court and the advantage party discovering interest. “Aside from its to a opponent’s claim,.. [discovery] public purpose . . . . has a . .. aris- ing reducing by narrowing issues, from the time of the trial obtaining fact, fixing parties admissions of the claims of the when minds, fostering the incident is fresh in their and otherwise accu- racy celerity trial, inducing settlements, and also from which easy respective are made more when the claims are known.” Ewer Dietrich, 535, (1956). v 346 Mich 542-543 NW2d [78 Because of 97] did, unavailable, what Ford those benefits are unless reopened. significantly, More Ford’s misconduct “constitutes an judicial process just inequity abuse of the itself and not a matter of parties[.] ‘[TJampering between the . . . with the administration of justice wrong against up protect ... is a the institutions set safeguard public, compla- institutions which fraud cannot ” cently consistently good society.’ be tolerated with the order of Cummings Wayne County, supra, [quoting at 252 Hazel-Atlas Hartford-Empire Co, 238, 246; Glass Co v 997; 322 US 64 S Ct 88 L (1944)]. Ed 1250 dishonesty No lesser sanction is sufficient. To the extent Ford’s plaintiffs’ having resulted in counsel to look elsewhere for the requested information, assessing against Ford the actual costs of prejudice, those assuming searches will offset that that what just perjury. amounts to a fine is ever a sufficient prejudice readily other rectified, case cannot be so entered, plaintiffs however. If a default is not must be allowed to follow-up just disclosed, fully e.g., explore all of the data Seatback Performance Task Force and the numerous tests con- previously noted, re-starting ducted on seats. As that means discov- ery putting However, off next month’s trial. the courts of Mich- igan injustice delayed justice” are under orders to eliminate “the greater wrong judicial wrought because hath man “[n]o than that of overlooking, delays encouraging delays justice.” if not and more Schendel, Hearn v 653 NW2d [95 299 v Ford Motor Co 1998] Opinion by Gribbs, J. years old, price already the of additional three and This case is by passage delay paid plaintiffs, With the of more not Ford. will be plaintiffs prove time, to their case. Witnesses will be harder for more, dimmer. will become even even and memories will scatter depositions delays scheduling in excuses for the One of Ford’s happen many employees. will That and move of the retirement passes. will remem- who remain available Witnesses more as time subject challenge they less, will be to and what remember ber delay, experi- jury age. is about the Whatever the told because of jurors. delay in the minds of that itself creates doubts ence teaches persuasive. ages, Since the burden of it becomes less As a case consequences age. proof plaintiffs, For will feel the is on ordering pay reason, costs of Ford to all the that even punish prejudice plaintiffs, henceforward, to but will not offset plain- having impaired them, perversion. a real Ford’s misconduct expenses, ability prove liability, if reimbursed all their even tiffs’ disadvantaged significantly with Ford still will remain say least, dealing ineffectual, benefitting. in with That is very appropriate Furthermore, because a what Ford did. ]is default! damaged: plaintiffs directly abil- on that which Ford has it focuses liability. ity prove of a default is a in which the drastic sanction In sum this is case fact, anything just proper. is, a in which less than This case improper. times, Numerous our Court of sanction would be defaulting Appeals trial a defendant or dis has sustained a court’s equivalent default, plaintiffs case, missing a which is the a party’s flagrant violation of its discov because wanton ery Masters, supra; Chrysler Corp obligations. v In Mink v App 610, (1995), Co, NW2d Home Ins 213 Mich 612 [540 485] Appeals sanction. Dismis affirmed defaults as a Court of Crane-Houdaille, Inc, affirmed in Barlow v sals as a sanction were App Thompson, USA, Inc, supra; 187 Mich 49 Welch v J Walter app (1991); (1991), NW2d lv den 439 Mich 852 LaCourse 319] [466 App Gupta, supra; Jackson, NW2d Enci v 173 Mich [433 313] Ramos, App (1988); Koths, supra; Edge v 160 Mich Bellok v (1987), app Mich 907 lv den 428 [407 comparable penalty being worse, far in this case misconduct certainly Court. within the discretion of this right jury deprive Defaulting to a assess does not it of its right liability. Cf., Jackson, supra, at 35. The Enci v ment of its by jury right absolute. That can be lost to a trial is not civil cases by timely required by enough paying asking fee. or not not soon by waiting long jury 2.508(D)(1). too can also be lost MCR A trial appli by complying 2.603(A)(1), answer, with some MCR 2.504(B)(1). pertinent court order. MCR rule or a cable court Opinion Gribbs, Finally, litigant legally inadequate with a case is not entitled to a jury determination, judge’s ruling. but must be satisfied with a MCR 2.116(I)(1). Square Co, See also Skinner v D 174-175 (1994); Laboratories, NW2d and Moll v Abbott 444 Mich [516 475] 1, (1993). words, only 26-28 NW2d In other can the [506 816] right by jury by litigants, right to a trial be waived can be lost by inappropriate during awaiting conduct the course of a case trial. happened taking That is what has in this case. This Court is not jury from trial to which it is entitled. Ford forfeited that trial by its conduct. point contends, quite vig- One final needs to be addressed. Ford orously, effectively estopped defaulting that this Court is from now July it because the Court ruled back in that it would default Ford if belatedly it did not disclose the information which it had disclosed. disagrees just vigorously. being' This Court as Ford is not defaulted obey July. being because it did not this Court’s order in Ford is recently that, defaulted because the information disclosed reveals prior being entered, engaged to that order ever Ford had in a calcu- campaign pos- lated of concealment and deceit. This Court cannot sibly appropriately reacting be barred from to that shameful cam- paign because it was discovered when this Court insisted that obey the rules.

CONCLUSION primary purpose discovery reliability “A of is to enhance the of fact-finding process by eliminating distortions attributable to gamesmanship.” People Burwick, 281, v 450 Mich 298 NW2d [537 (1995). Necessarily, therefore, the courts 813] covery must insist that dis- way “promote[s] be in a conducted which controversy, the true facts and circumstances of a rather than aid Michigan in their Co, concealment.” Hallett v Consolidated Gas (1941); 298 Mich 592 Dietrich, NW2d [299 and Ewer v 723] supra, condoning at 542. Because the deliberate frustration of dis- covery promote gamesmanship, will conceal information and such penalized swiftly sternly. misconduct must be Justice is not by anything Gupta, supra. served less. LaCourse v opinion:] to trial [Footnotes court’s 1 many published It is unfortunate that there are so cases which during discovery. prevalence have dealt with obstructionism The why sternly punished. Otherwise, it reinforces it must be the incli nation to it will not be deterred. 2 simplify upcoming case, plaintiffs To trial of this have agreed babyseat’s to dismiss the manufacturer. 1998] v Ford Motor Co Opinion Gribbs, that Ford commit- its conclusion ably explained its violation of flagrant “wanton and ted the trial majority concedes, court’s As the obligation.” The sole supported by the record. conclusion trial court abused issue is whether the remaining Ford Motor against the default by entering discretion trial court’s be clearer from the Company. It could not conduct found that Ford’s already that it has opinion by careful The conscious, design. deliberate, was opinions to the merits of matters Courts must often form as parties.’’ People them, “often, of the before as to the bona fides App 753, (1989), app Houston, lv 759-760 [446 judgments (1990). judge “If the did not form den 434 Mich 855 trials, he could never courthouse dramas called the actors those [540, 551]; Liteky States, US 114 S decisions.” v United render 1147; Ct 127 L Ed 2d 474 1996, by October, parties letter of the informed in opinion going Drafting re-drafting an Court’s decision. parties know its decision as The Court wanted the take time. mediation, meaningfully prepare possible for as so could soon settlement parties’ negotiations, were told at and trial. The counsel they promptly argument be informed of the Court’s oral decision, that would delayed. apolo opinion The Court but that an would be opinion. long gizes It has been in it has taken to issue this for how consistently trial since mid-October. 5 Unnecessary inappropriate risk of decisions are because the Unnecessary great. incorrect is decisions are often error too provided by they without crucial focus because knowing are made the. actually in a Cohen will make a difference case. quoted 299; 257, (1821), 264, Virginia, in, L 290 6 Wheat 5 Ed v Co, 251, 383 Mich 267 [174 Breckon v Franklin Fuel 518, Hospital, App Mercy (1970); 208 Mich Memorial and Alar many things, is, paraphrase (1995). judging, it In as 532 Samuel quately hanging Johnson, a which can ade the imminence of Boswell, [September Johnson the mind. concentrate Life example why striking 1,1777], should not make unnec A courts (6th Cir, essary Williams, F2d States v 872 773 decisions United published opinions case, 1989). had volun Prior to that dozens of scenario, not involved in factual a scenario teered that certain Williams, any cases, In outcome. would call for certain of those actually with that other scenario. Sixth Circuit was confronted previously espoused was, was revealed to often When it be the law so 600; 1793, Staples States, wrong. 114 S Ct v United 511 US See 22; (1994). fn 128 L Ed 2d 608 App

302 227 Mich

Opinion by Gribbs, prejudice carefully to the also has been

spelled opinion. Accordingly, out in the trial court’s cannot be said that the trial court’s conclusion was an 2.313(B)(2). abuse of discretion. MCR Thorne v Bell,

App (1994); 625, 633; 522 NW2d 711 Dean v

App (1990); Tucker, 182 Mich 27, 32; 451 NW2d 571

Corp, Omlie Industries, Inc v Industro Motive

App 48; 257 NW2d677

reading A careful of the record and of the trial

opinion court’s reveals more than sufficient evidence

comply to warrant its conclusion that Ford’s failure to

discovery requests with was not accidental or invol-

untary. compel Plaintiffs filed four motions to

interrogatories. promised respond answers to Ford

respond adequately to the motions. Ford’s failure to

fully brought was not July to the court’s attention until

plaintiffs’ compel. 3, 1996, with motion to fifth

responses, After review all of motions and the court

supplement pro- ordered Ford to its answers and to responsive days twenty-eight vide documents within (entered days hearing of the order thirteen after the motion). response pro- on the In order, to the Ford sixty-two containing pages duced boxes 120,000 August new documents on 12, 1996.For the first time years, provided regarding in two information testing historical documents.

Contrary July to the trial court’s order, continued to conceal and withhold documents relat- ing appears to its Seat Back Task Force and it plaintiffs became aware of the existence of such task

activity through independent investigation. force an In

response plaintiffs’ September 30, 1996,motion for

provided default, Ford for the first time some of its

plaintiffs Seat Back Task Force documents to Ford Motor Co Opinion by Gribbs, two-year claimed its concealment due to an “alleged privilege.” claim of In detailed, its written opinion, the trial court found that Ford does “not deny shortcomings discovery its of its responses. It only tries to excuse them as prej- unintentional or not udicial, strenuously and it that the argues Court lacks authority punish, by to otherwise, or it for default what it opinion did.” The (Emphasis added.) specified in detail deceptions, including various the failure to reveal study, pursuant Seat Back Task Force to July, the court response order of but in to plaintiffs’ Motion for Default: impact deception abundantly of Ford’s was made

clear its latest Plaintiffs disclosures. had asked produce identify Ford to all tests done to establish the integrity Tempos, of the seats used in 1986 Ford as well as the same or similar seats used in other vehicles. Ford responded performed impact that it had 48 rear tests on the Tempo/Topaz between seat 1984 and 1994. The disgorged July to this Court’s order revealed performed that there have been hundreds of such tests on the same seats in numerous other Those models. tests are highly requested all by plain- relevant to this case and were By way responded tiffs. interrogatories it Tempo/Topaz unique, seat was Ford hid all those other tests.

Concealing something highly tests signif- those concealed tests, icant to In routinely this case. those the front seats collapsed slightest into back impact. seat on the Throughout case, this seats, has insisted that including Tempos, designed “yield.” those in are persistently great exception any Ford has taken charac- having “failed,” “broke,” “collapsed,” terizations of seats just reports repeatedly very but the test disclosed use those happened terms to describe what seats in collisions just like that which occurred this case. What Ford dis- that, years ago, closed also developed, revealed had but App 276 304 by Opinion Gribbs, withstanding greater used, capable much a seat of never injured impacts Until last than that which Sarah. rear-end August, that. Ford has none of disclosed it a Task also failed disclose that had convened Ford to study performance, seat that that Task Force Force to back backs, performed on had numerous tests Ford seat had apparently report drafted, Ford was but never issued. that a by justify withholding of attempts to that information its contending that, years, existence the Task Force for the of privileged. Force thought were to be The Task its work finally now Ford and its counsel disclosed because “probably privileged.” The that the same are conclude Absolutely privilege disingenuous. nothing dis- claim of any supports about the Force and activities closed Task Furthermore, revealing appearance privilege. highly a of of privilege The of is how Ford handled that claim. the claim response existence, proper but would have been note the particulars, information, of the and then not disclose al., produce privilege. Martin, because of a et decline it Michigan (3d ed), 2.314, p Rule 383. Court Rules Practice The Court could then have ruled on claim. Ford’s coun- right way. knew the Ford’s silence was not the assertion sel privilege, concealing but information of a the deliberate be The claim of a mistaken belief in known to discoverable. unpersuasive privilege is an rationalization. a mendacity example more of Ford’s will suffice. One interrogatories 1994 asked Ford Another identify complained against all it which about lawsuits’ seat 1986 in the seat backs and/or tracks of the defects Tempos utilizing vehicles the same or Ford other Ford only first, At 2 lawsuits. similar seats. Ford identified such reported lawsuits, been no that there had but Later recently-produced particulars were doc- ever disclosed. Tempo/Topaz that' has defended uments reveal brought lawsuits. of those seat in 91 Some lawsuits were injured minor who were due to seat on behalf of children having passengers failures, been several them back seat injured just Traxler, collapsing like a front seat. Sarah startling in dis- more is the revelation the documents Even July response has to this Court’s order that Ford closed v Ford Motor Co Opinion by Gribbs, J. involving defended hundreds of lawsuits the same seat in Nothing other models. was disclosed about those numerous August, explanation lawsuits until 1996. Ford’s for its initial supposed inaccurate is its belief that asking involving about Tempos, lawsuits year generated only pair model and which of lawsuits. nonsense, put bluntly. That is interrogatory Plaintiffs’ complaining asked for all design lawsuits about or manufac- turing defects in Tempo the front seats “of the 1986 Ford automobile, any as well as employing other automobile for [emphasis original]. same or similar seat[s]” majority The opinion accepts Ford’s arguments that it is “entitled” to an evidentiary hearing to demon- strate that Ford’s actions were accidental or involun- tary and plaintiffs that prejudiced by were not Ford’s respectfully mistakes. I disagree because the trial court already found supported and its findings that Ford (1) requested never evidentiary an hearing, (2) activity in this lawsuit clearly was deliberate and intentional, prejudice and (3) plaintiffs was clearly established.

Ford never filed a motion for evidentiary an hear- ing. by mention Ford evidentiary of an hear- ing during oral argument plaintiffs’ on motion for default, when expressed defense counsel a willing- ness to participate in an evidentiary hearing needed if and left the decision to the trial court.2 Issues raised the first time on appeal are subject to appellate 2 plaintiffs appeal, As note in their brief on defense counsel made two passing evidentiary hearing during argument references to an oral Judgment, Motion for Default but left' the decision to the trial t: r cou examples that, Counsel-. the Court wanted more Defense If happy provide evidentiary hearing would be an and have people discovery group anyone from Ford’s else the Court inquire wished to list additional items. [sic] App by Opinion Gribbs, 535, 546; People Grant, review.

123 (1994). remand, as for the the reasons important,

But most have by majority, and articulated by Ford argued dispelled carefully thoroughly and already been found specifically court court. The trial the trial refusal than an intentional were “more Ford’s actions “flagrant was a and discovery,” that there to facilitate discovery.” The trial court to facilitate wanton refusal in a calcu- finding “engaged that Ford made clear its deceit,” of concealment campaign lated lied” and that Ford “consistently” “blatantly discovery process with repeatedly “perverted” to mislead the carefully crafted answers[s], “dishonest documented thoroughly court also reader.” The trial follow-up inquiries and many motions, needless specifically plaintiffs, clarifications demanded unnecessarily complicated that Ford’s actions found in this case: delayed years for the trial badly prejudiced and this Ford’s conduct has spend counsel has had to considerable Court. Plaintiffs’ expense acquiring great from other sources effort and incur signifi- have disclosed. More information which Ford should plaintiffs cantly, has frustrated the Ford’s misconduct persuasive presenta- development of information vital to a belatedly Ford has revealed about tion of their claims. What case, what testing the car seat at issue in this availability tests, appears to have learned from those used, seat, the fact that a safer seat was never a safer directly plaintiff prove in a case like go to what a must all information, it needs more Counsel: the Court [i]f feels Defense your Honor, respectfully request right to have an evi- we can dentiary hearing .... on two issues expressly apparent hold an left the decision to I believe it is that Ford evidentiary hearing to the trial court. v Ford Motor Co 1998] by Opinion Gribbs, Supreme expects this one and what the Court to be dis- discovery. during Mfg Co, closed See Prentice v Yale readily 688-689 It is [365 apparent from Ford’s recent briefs that it has a favorable “spin” plaintiffs respond, on that information. To enable to experts needs to start anew. Plaintiffs’ to need over, start all follow-up inquir- and a tremendous amount of pertinent personnel. ies must be made of Ford and its That put year, very would off trial until next which would be plaintiffs. unfair to already years old, price This case is three and the of addi- delay paid by plaintiffs,

tional will be not Ford. With the passage time, plaintiffs of more it will bé harder for to prove their case. more, Witnesses will scatter even memories will become even dimmer. One of Ford’s excuses delays scheduling depositions for the was the retirement many employees. happen and move of That will more as passes. time Witnesses who remain available will remember less, they subject and what challenge remember will be to age. jury because of delay, Whatever the is told about the experience delay teaches that itself creates doubts in the jurors. ages, persuasive. minds of As a case it becomes less proof Since the plaintiffs, burden of is on will feel the consequences age. reason, ordering For that even pay to all the costs of henceforward, will not off- prejudice set plaintiffs, punish them, per- but a real version. having impaired plaintiffs’ Ford’s misconduct abil- ity prove liability, if expenses, even reimbursed all their plaintiffs significantly will disadvantaged remain with Ford benefitting. ineffectual, say still least, That is in deal- ing Furthermore, with what very Ford did. a default[ ]is appropriate directly because it focuses on that which Ford damaged: plaintiff’s ability prove has liability. [sic] majority As the agrees, the trial court’s findings and conclusions are supported by the record. Because of Ford’s egregious and intentional conduct, because severely have been harmed the prolonged

Opinion by Gribbs, delay and needless and concealment will necessi-

discovery beginning again, tate all over and because

years process provided has been of due in this

matter, I affirm. would

Case Details

Case Name: Traxler v. Ford Motor Co.

Court Name: Michigan Court of Appeals

Date Published: Mar 26, 1998

Citation: 576 N.W.2d 398

Docket Number: Docket 200704, 200856

Court Abbreviation: Mich. Ct. App.