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Slabaugh v. LG Electronics USA, Inc.

United States District Court, S.D. Indiana, Indianapolis Division

January 30, 2015

MATTHEW SLABAUGH, BOBBIE SLABAUGH, Plaintiffs,
v.
LG ELECTRONICS USA, INC., LG ELECTRONICS, INC., Defendants.

ORDER ON MOTION TO COMPEL

MARK J. DINSMORE, Magistrate Judge.

This matter comes before the Court on Matthew Slabaugh and Bobbie Slabaugh's ("Plaintiffs") Motion to Compel Discovery Responses. [Dkt. 205.] For the following reasons, the Court hereby GRANTS IN PART and DENIES IN PART Plaintiffs' motion.

I. Background

Plaintiffs' case against LG Electronics USA, Inc. ("LG USA") and LG Electronics, Inc. ("LG Korea") (collectively "Defendants") involves claims for negligence and strict products liability. [Dkt. 85 at 23-25.] In June of 2011, Plaintiffs' home suffered water damage, allegedly caused by defective components in their LG brand washing machine. [ Id. ] After pursuing outof-court remedies, Plaintiffs filed suit in state court in June of 2012, and their case was removed to this Court in July of 2012. [Dkt. 67 at 4.]

In November of 2013, Defendant LG Korea entered its appearance in this matter, and two weeks later Plaintiffs served their Requests for Production of Documents on LG Korea. [Dkt. 206 at 1.] Additionally, in July of 2014 Plaintiffs served a Second Request for Production of Documents on LG Korea. [ Id. ] In response, LG Korea made numerous objections to Plaintiffs' requests and, in some cases, referred Plaintiffs to documents that had already been produced by LG USA, but LG Korea itself did not produce any documents in response to Plaintiffs' requests. [ Id. at 2.] Accordingly, Plaintiffs made several attempts to acquire the requested documentation from Defendants and, when they were not successful, Plaintiffs requested a conference with the undersigned and received the Court's approval to file a motion to compel, which is now before the Court. [ Id. at 3.]

Additionally, to clarify that they "admit liability, " the LG Defendants moved to amend their answer in order to clarify that "the LG Defendants are no longer disputing that the washer at issue in this case was defective, and malfunctioned and caused a discharge of water into the Plaintiffs' home, " which motion was granted by the Court on January 14, 2015. [Dkts. 196, 263.] In pertinent part, Defendants' amended answers admit that (1) Plaintiffs' washer malfunctioned by turning itself on and discharging a flow of laundry water into Plaintiffs' home, (2) Defendants are at fault for any damages proximately caused by the discharge of water, (3) Plaintiffs' washer was defective, (4) Plaintiffs' washer malfunctioned, and (5) Defendants are strictly liable for all damages to Plaintiffs and their property that resulted from the defective condition of their washer. [Dkts. 264, 265 at ¶¶ 8, 9, 12, and 128.]

Significantly, Defendants' amended answers do not admit to Plaintiffs' claims that (1) Defendants owed a duty to Plaintiffs to promptly and reasonably resolve Plaintiffs' Washer claim with regard to Plaintiffs' negligent infliction of emotional distress claim, (2) Defendants' breach proximately caused harm to Plaintiffs, including mental, emotional, and physical harm with regard to Plaintiffs' negligent infliction of emotional distress claim, (3) damages exist above the amount reimbursed by State Farm for which Defendants are liable with regard to Plaintiffs' strict products liability claim, and (4) Defendants undertook and had a duty to resolve Plaintiffs' Washer claim in a timely manner with regard to Plaintiffs negligence claim. [Dkts. 264, 265 at ¶¶ 116, 118, 129, and 131.] While the Court acknowledges that cross motions for summary judgment are pending [Dkts. 209, 221], the District Judge has not yet ruled on such motions. Therefore, all of Plaintiffs' claims and Defendants' defenses remain pending before the Court as plead.

II. Discussion

Rule 37 permits a motion to compel a required disclosure upon "evasive or incomplete disclosure, answer, or response." Fed.R.Civ.P. 37(a). A required disclosure, as broadly defined by Rule 26, includes any information that a party may use to support its claims. Fed.R.Civ.P. 26 (a)(1)(A). "For good cause, the court may order discovery of any matter relevant" to the issues of the case. Fed.R.Civ.P. 26 (b)(1). "Thus, the scope of discovery should be broad in order to aid in the search for truth." Kodish v. Oakbrook Terrace Fire Prot. Dist., 235 F.R.D. 447, 450 (N.D. Ill. 2006). When a party raises objections to discovery requests, the objecting party bears the burden of proving that a discovery request is improper. See, e.g., Janssen v. Howse, 09-CV-3340, 2011 WL 2533809 (C.D. Ill. June 27, 2011); Cunningham v. Smithkline Beecham, 255 F.R.D. 474, 478 (N.D. Ind. 2009). Ultimately, this Court has "broad discretion in discovery matters, [including a] motion to compel discovery." Packman v. Chicago Tribune Co., 267 F.3d 628, 646 (7th Cir. 2001).

Here, Plaintiffs made thirty requests for various productions in their First Requests for Production of Documents they served on LG Korea. [Dkt. 206-1.] In response, LG Korea objected to all but three of the requests made by Plaintiffs. [ See Dkt. 206-2.] In order to fully discuss each request and objection, the Court will now address each request in turn.

A. Request No. 1
Plaintiffs' Request for Production Number 1 reads:
All documents, including but not limited to any correspondence, emails, logs, text messages, or other documents, relating to, referencing, or evidencing communications between you and the Slabaughs from June 23, 2011, to January 1, 2012.

[Dkt. 206-2 at 1.] Defendant LG Korea responded to this request as follows:

Defendant objects to Request #1 as it is not reasonably calculated to lead to the discovery of admissible evidence in light of the fact that LG Electronics, Inc. has admitted the allegations related to liability for the overflow of the purported washer, which is the subject of the Plaintiffs' Complaint, with the intent to proceed in the defense of this case on the issues of the nature, extent, and proximate cause of Plaintiffs' damages, which are denied and disputed by it.
Without waiving said objection, Defendant states as follows: this Defendant is in possession of no such documents.

[ Id. ] While the Court acknowledges that LG Korea has, indeed, filed an Amended Answer that admits to the washer's defect and to its overflow of water therefrom [ see Dkt. 265], such admission does not dispel this request of any relevance to the remaining issues of the matter. Pursuant to Rule 26, "[r]elevant information need not be admissible at the trial if the discovery appears reasonably calculated to lead to the discovery of admissible evidence." Fed.R.Civ.P. 26(b)(1). The Court, having considered Plaintiffs' Request No. 1, finds that the communications requested remain relevant to the matter in spite of LG's admissions, as they, as the very least, are reasonably calculated to lead to the discovery of admissible evidence regarding Plaintiffs' claims that Defendants had a duty to resolve Plaintiffs' Washer claim in a timely manner. Therefore, LG Korea's objection is overruled, and LG Korea is ordered to provide a complete and unequivocal response thereto.

That being said, LG Korea did make a response to this request. Rule 26 requires that the disclosing party provide discovery that is "in its possession, custody, or control." Fed.R.Civ.P. 26(a)(1)(A)(iii). While LG Korea writes only that it is "in possession" of no such documents without noting whether such documents are within LG Korea's custody or control, LG has assured the Court in its response to Plaintiffs' motion to compel that "LG Korea is not in possession, custody or control of documents requested pursuant to Requests 1, 2, 7, 9 or 13 of Plaintiffs' requests." [Dkt. 216 at 6.] The Court cannot compel a party to disclose that which it does not have, though Defendants' attorneys are reminded that if it comes to light that any such responsive documents do exist, they would be exposing themselves and their clients to sanctions pursuant to Rules 11 and 37 of the Federal Rules of Civil Procedure by any continued failure to produce such documents.

B. Request No. 2
Plaintiffs' Request for Production Number 2 reads:
All documents, including but not limited to any correspondence, emails, logs, text messages, or other documents, relating to, referencing, or evidencing communications between you and State Farm regarding the Slabaughs' Insurance Claim and/or the Insured Event from June 23, 2011 to present.

[Dkt. 206-2 at 1.] Defendant LG Korea responded to this request as follows:

Defendant objects to Request #2 as it is not reasonably calculated to lead to the discovery of admissible evidence in light of the fact that LG Electronics, Inc. has admitted the allegations related to liability for the overflow of the purported washer, which is the subject of the Plaintiffs' Complaint, with the intent to proceed in the defense of this case on the issues of the nature, extent, and proximate cause of Plaintiffs' damages, which are denied and disputed by it.
Without waiving said objection, Defendant states as follows: this Defendant is in possession of no such documents.

[ Id. at 2.] Save the transposition of "#2" in place of "#1, " this objection and response combination is identical to LG Korea's objection and response to Plaintiffs' Request No. 1. For the same reasons set forth above in Section II.A., the Court overrules LG Korea's objection and orders LG Korea to provide a complete and unequivocal response to this request. However, again the Court cannot compel the disclosure of documents that LG Korea has assured the Court it does not have within its possession, custody, or control. The Court would remind LG Korea that documents in its counsel's possession are within LG Korea's control and would be subject to this order if responsive to any of Plaintiffs' discovery requests.

C. Request No. 3
Plaintiffs' Request for Production Number 3 reads:
All documents, including but not limited to any correspondence, emails, notes, text messages, internal documents, or other documents in your possession relating to, referencing, or evidencing communications by or documents in the possession of you and/or anyone else regarding the Slabaughs, the Washer Components, the Slabaughs' Manufacturer Claim, or the Slabaughs' Insurance Claim.

[Dkt. 206-2 at 2.] Defendant LG Korea responded to this request as follows:

Defendant objects to Request #3 as it is not reasonably calculated to lead to the discovery of admissible evidence in light of the fact that LG Electronics, Inc. has admitted the allegations related to liability for the overflow of the purported washer, which is the subject of the Plaintiffs' Complaint, with the intent to proceed in the defense of this case on the issues of the nature, extent, and proximate cause of Plaintiffs' damages, which are denied and disputed by it.
Without waiving said objection, Defendant states as follows: this Defendant is in possession of no such documents reasonably calculated to lead to the discovery of admissible evidence related to the Plaintiffs' claims for damages.

[ Id. (emphasis added).] Again, save the transposition of "#3" in place of "#1, " this objection is identical to LG Korea's objection to Plaintiffs' Request No. 1. Therefore, for the same reasons set forth above in Section II.A., the Court overrules LG Korea's objection and orders LG Korea to provide a complete and unequivocal response to this request.

Although it would appear that LG Korea has made the same response to Request No. 3 as it made to Requests No. 1 and 2, that is not the case. Significantly, LG Korea states only that it does not possess "such documents reasonably calculated to lead to the discovery of admissible evidence related to the Plaintiffs' claims for damages." This is a wholly inadequate and evasive response. It is not the role of the Defendant to determine that a request is not relevant-the producing party must object to a request for its lack of relevance, and the Court must then rule on such objection. See Fed.R.Civ.P. 26(a)(1)(C), (a)(3)(B). Here, LG Korea made such an objection, which the Court had overruled. Therefore, LG Korea is ordered to make a complete and unequivocal response to Plaintiffs' Request No. 3, producing all documents responsive thereto without regard to Defendants' opinion regarding their relevance.

D. Request No. 4
Plaintiffs' Request for Production Number 4 reads:
All documents evidencing, setting forth, or otherwise relating to information or instructions provided to your employees and agents, including but not limited to training guides or materials, emails, news bulletins, operation guides, procedure memos, claim-handling manuals, employee manuals, personnel manuals, supervisors [sic] manuals, manager manuals, policy interpretation documents, or other documents, regarding how claims and/or the testing of allegedly defective parts or components, such as the Washer Components, are to be handled by your adjustors, employees and or [sic] agents and that were provided, given, or otherwise made available to any of your employees, contractors, or similar agents who handled, worked on, or otherwise were involved in the handling of the Slabaughs' Manufacturer Claim.

[Dkt. 206-2 at 2.] Defendant LG Korea responded to this request as follows:

Defendant objects to Request #4 as it is not reasonably calculated to lead to the discovery of admissible evidence in light of the fact that LG Electronics, Inc. has admitted the allegations related to liability for the overflow of the purported washer, which is the subject of the Plaintiffs' Complaint, with the intent to proceed in the defense of this case on the issues of the nature, extent, and proximate cause of Plaintiffs' damages, which are denied and disputed by it.
Without waiving said objection, Defendant states as follows: this Defendant is in possession of no such documents reasonably calculated to lead to the discovery of admissible evidence related to the Plaintiffs' claims for damages.

[ Id. at 2-3.] Save the transposition of "#4" in place of "#3, " this objection and response combination is identical to LG Korea's objection and response to Plaintiffs' Request No. 3. For the same reasons set forth above in Section II.C., the Court overrules LG Korea's objection, and LG Korea is ordered to make a complete and unequivocal response to Plaintiffs' Request No. 4.

E. Request No. 5

Plaintiffs' Request for Production Number 5 requests documents and information more closely related in subject matter to Plaintiffs' requests numbered 9 through 19. Accordingly, Plaintiffs' Request #5 will be addressed hereinafter in Section E-1.

F. Request No. 6
Plaintiffs' Request for Production Number 6 reads:
A complete copy of any and all file(s), including any claim file(s), you maintain for or in relation to the Slabaughs, the Slabaughs' Manufacturer Claim, the Insured Event, and/or the Washer Components.

[Dkt. 206-2 at 3.] Defendant LG Korea responded to this request as follows:

Defendant objects to Request #6 as it is not reasonably calculated to lead to the discovery of admissible evidence in light of the fact that LG Electronics, Inc. has admitted the allegations related to liability for the overflow of the purported washer, which is the subject of the Plaintiffs' Complaint, with the intent to proceed in the defense of this case on the issues of the nature, extent, and proximate cause of Plaintiffs' damages, which are denied and disputed by it. Defendant further objects as said Request seeks information that is subject to the Attorney Client privilege and/or the Work Product doctrine. Any documents maintained related to Plaintiffs' claim which are not otherwise discoverable contain theories of defense, mental impressions regarding the case and claim, and communications with Defendant's insurance carrier.
Without waiving said objection, Defendant states as follows: this Defendant is in possession of no such documents reasonably calculated to lead to the discovery of admissible evidence related to the Plaintiffs' claims for damages.

[ Id. (emphasis added).] The Court interprets this request as making two general document requests: (1) all file(s) maintained pertaining to Plaintiffs and their claim event and (2) all file(s) maintained pertaining to other claim events involving the Washer Components. Having considered Plaintiffs' Request No. 6, the Court finds that the files requested remain relevant to the matter in spite of LG's admissions, as they, as the very least, are reasonably calculated to lead to the discovery of admissible evidence relating to Plaintiffs' claims that Defendants had a duty to resolve Plaintiffs' Washer claim in a timely manner, and LG Korea's rote relevance objection is overruled.

Next, LG Korea adds an additional objection to its response, alleging that Request No. 6 seeks privileged information. Even if a request for production does seek such information, however, a refusal to divulge any responsive information is an improper response. Rule 26 provides that when any information or documents are withheld during discovery on the basis of privilege or the work product doctrine, the withholding party must (1) expressly claim the privilege and (2) describe each document, communication, or tangible thing being withheld "in a manner that, without revealing information itself privileged or protected, will enable the other parties to assess the claim [of privilege]." Fed.R.Civ.P. 26(b)(5)(A). The Seventh Circuit has "well-settled law governing the required content of privilege logs, " so LG Korea should have had little trouble in putting together such a satisfactory privilege log when it responded to Plaintiffs' discovery requests. Novelty, Inc. v. Mountain View Mktg., Inc., 265 F.R.D. 370, 380 (S.D. Ind. 2009). There is no evidence that LG Korea made even an attempt to provide Plaintiffs with a privilege log, and LG must take such measure before it can avoid responding to Request. No. 6.

Finally, LG Korea adds the improper "response" seen in its responses to Requests. No. 3 and 4, which improperly concludes that the request seeks irrelevant information. Having already overruled LG Korea's relevance objection, the Court orders LG Korea to make a complete and unequivocal response to Plaintiffs' Request No. 6, only withholding allegedly privileged and/or work product documents and providing the required log "in a manner that, without revealing information itself privileged or protected, will enable the other parties to assess the claim [of privilege], " pursuant to Rule 26.

G. Request No. 7
Plaintiffs' Request for Production Number 7 reads:
All documents that were obtained by you from, or produced to you by, nonparties or State Farm in relation to the Insured Event, the Slabaughs' Manufacturer Claim, the Slabaughs' Insurance Claim, and/or those matters set forth in the Complaint.

[Dkt. 206-2 at 3.] Defendant LG Korea responded to this request as follows:

Defendant objects to Request #7 as it is not reasonably calculated to lead to the discovery of admissible evidence in light of the fact that LG Electronics, Inc. has admitted the allegations related to liability for the overflow of the purported washer, which is the subject of the Plaintiffs' Complaint, with the intent to proceed in the defense of this case on the issues of the nature, extent, and proximate cause of Plaintiffs' damages, which are denied and disputed by it.
Without waiving said objection, Defendant states as follows: this Defendant is in possession of no such documents.

[ Id. at 3-4.] Save the transposition of "#7" in place of "#1, " this objection and response combination is identical to LG Korea's objection and response to Plaintiffs' Request No. 1. For the same reasons set forth above in Section II.A., the Court overrules LG Korea's objection and orders LG Korea to provide a complete and unequivocal response to this request. However, again the Court cannot compel the disclosure of documents that LG Korea has assured the Court it does not have within it possession, custody, or control.

H. Request No. 8
Plaintiffs' Request for Production Number 8 reads:
All documents, including but not limited to emails, statements, affidavits, or other documents, relating to or evidencing communications with non-parties or State Farm, by you or anyone else, in relation to the Insured Event, the Slabaughs' Manufacturer Claim, the Slabaughs' Insurance Claim, and/or those matters set forth in the Complaint.

[Dkt. 206-2 at 4.] Defendant LG Korea responded to this request as follows:

Defendant objects to Request #8 as it is not reasonably calculated to lead to the discovery of admissible evidence in light of the fact that LG Electronics, Inc. has admitted the allegations related to liability for the overflow of the purported washer, which is the subject of the Plaintiffs' Complaint, with the intent to proceed in the defense of this case on the issues of the nature, extent, and proximate cause of Plaintiffs' damages, which are denied and disputed by it.
Without waiving said objection, Defendant states as follows: this Defendant is in possession of no such documents reasonably calculated to lead to the discovery of admissible evidence related to the Plaintiffs' claims for damages.

[ Id. ] Save the transposition of "#8" in place of "#3, " this objection and response combination is identical to LG Korea's objection and response to Plaintiffs' Request No. 3. For the same reasons set forth above in Section II.C., the Court overrules LG Korea's objection, and LG Korea is ...


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