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Zoch v. Daimler, A.G.

United States District Court, E.D. Texas, Sherman Division

November 8, 2017

HENRY ZOCH II, Individually and on behalf of The Estate of Henry Zoch III, Deceased
DAIMLER, A.G., et al.



         Pending before the Court is Plaintiff Henry Zoch II's Expedited First Motion to Compel (Dkt. #171) and Defendant Daimler, A.G.'s Motion to Set Hearing on Plaintiff's Expedited First Motion to Compel (Dkt. #182). After reviewing the relevant pleadings and motion, the Court finds it should grant Plaintiff's Motion and deny Defendant's Motion.


         This is a products liability case arising from the alleged failure of the driver's seat in Henry Zoch III's vehicle during a rear-end collision. As a result of the collision, Zoch III suffered a severe head injury and later died.

         Subsequently, Plaintiff, individually and on behalf of Zoch III, filed suit on February 16, 2016 (Dkt. #1). On March 30, 2017, Plaintiff deposed Defendant's Rule 30(b)(6) corporate representative, Manfred Deubert. As a result, on May 10, 2017, Plaintiff sent an e-mail to Defendant requesting the disclosure of various items referenced by Mr. Deubert in his deposition or related to past documents disclosed by Defendant (Dkt. #171, Exhibit E) (“Plaintiff's First Requests for Production” or “Plaintiff's First RFP”). On August 1, 2017, in response to Plaintiff's First RFP, Defendant sent Plaintiff its Objections and Responses (Dkt. #171, Exhibit F). In Defendant's response, it included general objections and objections based on German privacy law (Dkt. #171, Exhibit F at pp. 5-8).

         As a result, on October 10, 2017, Plaintiff filed his Expedited First Motion to Compel (Dkt. #171). On October 17, 2017, the Court entered an Order (Dkt. #175) expediting briefing. Subsequently, Defendant filed its response (Dkt. #177) on October 23, 2017, [1] and Plaintiff filed his reply (Dkt. #181) on October 25, 2017.

         Further, on October 30, 2017, Defendant filed a Motion to Set Hearing on Plaintiff's Expedited First Motion to Compel (Dkt. #182). On October 31, 2017, Plaintiff filed his response (Dkt. #184).

         The Court addresses each motion in turn.


         I. Motion to Compel

         In response to Plaintiff's Motion to Compel, Defendant argues Plaintiff's requests are moot and that German privacy law prohibits disclosure of the requested information. Conversely, Plaintiff claims his motion is not moot, that Defendant waived its argument that foreign law applies, and that foreign law does not control in this case. The Court addresses each argument in turn.

         a. Mootness

         Defendant claims Plaintiff's requests are moot as a result of Defendant's “document production since the time Plaintiff filed his motion to compel” and its “soon” supplemental written responses and privilege log. Plaintiff argues its requests are not moot because Defendant's disclosure did not address all of Plaintiff's requests, Defendant failed to provide a privilege log, and Defendant's liberally redacted documents it produced.

         Pursuant to Federal Rule of Civil Procedure 26(b)(5)(A), a party must comply with certain requirements when it withholds discoverable information while claiming a privilege applies. Fed.R.Civ.P. 26(b)(5)(A). Specifically, the withholding party must “(i) expressly make the claim; and (ii) describe the nature of the documents, communications, or tangible things not produced or disclosed-and do so in a manner that, without revealing information itself privileged or protected, will enable other parties to assess the claim.” Fed.R.Civ.P. 26(b)(5)(A)(i)-(ii).

         Here, Defendant has yet to produce a privilege log complying with Rule 26(b)(5)(A). Instead, Defendant asserts various privileges while redacting large portions, if not entire pages, of documents. (See Dkt. #181, Exhibits A-C). Further, although Defendant claims its past and future disclosures meet Plaintiff's request, the Court is unpersuaded given Defendant's failure to obey the Federal Rules and its copious redaction of documents it produced. As such, the Court finds Plaintiff's Motion to Compel is not moot.

         b. Waiver

         Plaintiff argues Defendant waived any application of foreign law because it did not comply with Federal Rule of Civil Procedure 44.1. The Court disagrees.

         Rule 44.1, in pertinent part, states, “[a] party who intends to raise an issue about a foreign country's law must give notice by a pleading or other writing.” Fed.R.Civ.P. 44.1. “This rule is intended to avoid unfair surprise, not to set any definite limit on the party's time for giving the notice of an issue of foreign law . . . .” Northrop Grumman Ship Sys., Inc. v. Ministry of Defense of the Republic of Venez., 575 F.3d 491, 496-97 (5th Cir. 2009) (internal quotations omitted) (citations omitted). “When the applicability of foreign law is not obvious, notice is sufficient if it allows the opposing party time to research the foreign rules.” Id. at 497 (citing Thyssen Steel Co. v. M/V Kavo Yerakas, 911 F.Supp. 263, 266 (S.D. Tex. 1996)). In determining whether notice is reasonable, the Court considers (1) “[t]he stage which the case had reached at the time of the notice, ” (2) “the reason proffered by the party for his failure to give earlier notice, and” (3) “the importance to the case as a whole of the issue of foreign law sought to be raised . . . .” Id. (citing Fed.R.Civ.P. 44.1. advisory committee notes).

         Here, factors (1) and (3) weigh in favor of Defendant. Defendant's notice of its intent to rely on foreign law took place at an early stage of the litigation, on October 23, 2017. See The Court's Scheduling Order, Dkt. #176 (setting the discovery deadline as June 1, 2018, the final pretrial conference for August 31, 2018, and trial between October 1, 2018 and October 26, 2018). Additionally, the foreign law issue, whether German privacy law precludes production of specific documents, is important to the case as a whole. Specifically, the information sought in Plaintiff's First RFP (Dkt. #171, Exhibit E) seeks documents related to the development, design, and engineering of Plaintiff's vehicle, which are essential in a products liability case. Regarding the second factor, Defendant failed to provide the Court with reasons for its failure to give earlier notice. However, despite Defendant's failure to provide the Court with such reasons, Plaintiff failed to “allege that it was prevented from responding or otherwise prejudiced by the delayed notice.” Northrop, 575 F.3d at 497. Further, Plaintiff had the ability to fully address and respond to Defendant's arguments that foreign law applies in this case. As such, the Court finds Defendant did not waive its ability to apply foreign law. See Id. (holding that an eighteen month delay in providing notice did not create unfair surprise or prejudice since the objecting party had time to respond such an argument); Thyssen, 911 F.Supp. at 266-67 (finding an objecting party who did not allege unfair surprise but instead only claimed waiver as a procedural matter was not harmed by the application of foreign law despite the opposing party's late notice and suspect reasoning for such late notice).

         c. ...

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