Case Law

Court Puts the Brakes on Auto Manufacturer's Proposed Discovery Protocol Involving an Onerously Restrictive Onsite Inspection


Pertile v. GM, 2017 U.S. Dist. LEXIS 141088 (D. Colo. Aug. 31, 2017) In this negligence claim, the plaintiffs sustained injury in a rollover automobile accident and sought to establish that the vehicle’s roof was too weak because the defendant did not comply with industry design standards. During discovery, disputes arose over whether electronic data, on which the defendant’s expert witness formed her opinion, was properly produced. In previous hearings, now under review, the magistrate judge ordered the defendant to disclose this electronic data to the plaintiffs for review by their expert. The magistrate judge ordered the parties to agree on a method of producing this data, which they were unable to accomplish. The defendant sought to provide a partially-encrypted copy of the data for monitored, onsite inspection and highly restricted output files, while the plaintiffs sought to obtain a complete copy of the data on a hard drive with a designation of “highly confidential”. In resolving the production issue, the magistrate judge ruled that the defendant’s proposed discovery protocol presented too many roadblocks for the plaintiffs’ expert to fully understand the data and ordered the defendant to produce all the data to the plaintiffs. Taking the issue under review, the district court judge held that there was no clear error in the magistrate’s ruling, finding that the plaintiffs needed a fair opportunity to review the materials on which the defendant’s expert based her opinions. In conclusion, the defendant’s argument that the data was highly confidential was not enough to warrant additional discovery restrictions.

Keywords: ESI, Onsite Inspection, Discovery, Encryption, Confidentiality, Automotive Industry