Plaintiffs Deserve ‘Fair’ Access to Defendants’ ESI

Pertile v. Gen. Motors, LLC, No. 15-cv-0518-WJM-NYW, 2017 U.S. Dist. LEXIS 141088 (D. Colo. Aug. 31, 2017).

In this negligence case, the district court upheld the magistrate’s order requiring that the defendant provide electronic data (ESI) to the plaintiffs in a usable form, rather than restricting their access so tightly that it denied them a “fair opportunity” to evaluate that data.

This case began when Daniel Pertile, a passenger in a Chevrolet Silverado pickup truck, suffered serious injuries in a rollover accident. He and his wife subsequently sued General Motors, LLC (“GM”), alleging that the truck had a weak roof. Much discovery centered on the evidence that both sides’ mechanical engineering experts used.

The Pertiles’ expert, Andreas Vlahinos, did not have GM’s data. Instead, he used a generic finite element analysis (FEA) computer model. GM’s expert, Huizhen Lu, formed her opinion after reviewing GM’s engineering documents and technical reports. Lu criticized Vlahinos’s modeling but did not do any “comparable FEA modeling.”

The Pertiles moved to compel GM to disclose the three FEA models that they argued Lu had “considered” in forming her opinion. The magistrate judge granted the Pertiles’ motion in part. He held that GM must disclose one of those three models to allow the Pertiles to defend their expert’s approach and to cross-examine Lu.

The parties had, “to no one’s great surprise,” failed to agree on how to produce the FEA data. GM’s proposed protocol demanded an “on-site inspection” limited to one day. The Pertiles requested that GM provide the FEA files with a “highly confidential” designation under the court’s existing protective order. The magistrate rejected GM’s proposal.

GM objected to the magistrate’s order but did not request a stay of execution. The company simply did not comply with the magistrate’s order. The district court overruled GM’s objections and affirmed the order.

The district court first noted that what an expert considers in forming an opinion is broader than what the expert relies on. This is especially true where the warring experts “have inherently asymmetrical access to information.” In doing so, the court noted that Lu’s opinion may be better founded than Vlahinos’s but that the Pertiles “will never know unless they receive input and output electronic files of at least one FEA Model.”

As to the method of production, the district court found “no clear error” in the magistrate’s ruling and agreed with “rejecting GM’s proposed protocol for an onerously restrictive on-site inspection.” Moreover, the district court noted that “GM had the opportunity to explain and justify the salient points of its proposed protocol,” but it did not. In fact, in its objection, GM did not explain why its additional proposed restrictions were necessary. Such arguments might have included “any past violation of the existing protective order, or any record of breaches of confidentiality” by the Pertiles or their expert. The court found that the Pertiles deserved “a fair opportunity to review the materials [Lu] considered and to prepare to cross-examine her.”

Finally, the court noted that it was “displeased” that “GM simply declined to comply with” the magistrate’s “specific direction” rather than requesting a stay. While the court contemplated imposing sanctions for contempt, it ultimately did not — though it warned that it would not tolerate “additional delays or gamesmanship.”

Takeaways on complying with ediscovery

GM teaches two valuable lessons here. First, explain directly to the court why your proposed method of disclosure is necessary. Do not expect the court to figure it out, especially in a highly technical or specialized field. Second, if you do not request, and receive, a stay of an order to which you object, you must comply with that original order.

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