United States District Court, E.D. Texas, Sherman Division
HENRY ZOCH II, Individually and on behalf of The Estate of Henry Zoch III, Deceased
DAIMLER, A.G., et al.
MEMORANDUM OPINION AND ORDER
L. MAZZANT UNITED STATES DISTRICT JUDGE.
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.
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.
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).
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,  and Plaintiff filed his reply (Dkt. #181)
on October 25, 2017.
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
Court addresses each motion in turn.
Motion to Compel
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.
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.
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.”
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
argues Defendant waived any application of foreign law
because it did not comply with Federal Rule of Civil
Procedure 44.1. The Court disagrees.
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).
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).