Ford Motor Company, Inc. v. Julia Tennin

IN THE SUPREME COURT OF MISSISSIPPI
NO. 2003-IA-02546-SCT
FORD MOTOR COMPANY AND WORLD RENTAL
CAR SALES OF MISSISSIPPI, LLC
v.
JULIA TENNIN, INDIVIDUALLY, AND AS
ADMINISTRATRIX OF THE ESTATE OF L. C.
TENNIN, III, DECEASED, AND ON BEHALF OF
ALL OTHER WRONGFUL DEATH
BENEFICIARIES; AND PATRICIA ALEXANDER,
INDIVIDUALLY, AND AS ADMINISTRATRIX OF
THE ESTATE OF ANTOINE ALEXANDER,
DECEASED, AND ON BEHALF OF ALL OTHER
WRONGFUL DEATH BENEFICIARIES
DATE OF JUDGMENT: 08/01/2003
TRIAL JUDGE: HON. WINSTON L. KIDD
COURT FROM WHICH APPEALED: HINDS COUNTY CIRCUIT COURT
ATTORNEYS FOR APPELLANTS: MICHAEL B. WALLACE
REUBEN V. ANDERSON
REBECCA HAWKINS
BARRY W. FORD
WALKER (BILL) JONES,III
BRADLEY WITHERSPOON SMITH
ROBERT F. WALKER
ATTORNEY FOR APPELLEES: FELECIA PERKINS
NATURE OF THE CASE: CIVIL - WRONGFUL DEATH
DISPOSITION: REVERSED AND REMANDED - 04/05/2007
MOTION FOR REHEARING FILED:
MANDATE ISSUED:
CONSOLIDATED WITH
NO. 2003-IA-02547-SCT
FORD MOTOR COMPANY AND WORLD RENTAL
CAR SALES OF MISSISSIPPI, LLC
v.
JULIA TENNIN, INDIVIDUALLY, AND AS
ADMINISTRATRIX OF THE ESTATE OF L. C.
TENNIN, III, DECEASED, AND ON BEHALF OF
ALL OTHER WRONGFUL DEATH
BENEFICIARIES; AND PATRICIA ALEXANDER,
INDIVIDUALLY, AND AS ADMINISTRATRIX OF
THE ESTATE OF ANTOINE ALEXANDER,
DECEASED, AND ON BEHALF OF ALL OTHER
WRONGFUL DEATH BENEFICIARIES
DATE OF JUDGMENT: 10/15/2003
TRIAL JUDGE: HON. WINSTON L. KIDD
COURT FROM WHICH APPEALED: HINDS COUNTY CIRCUIT COURT
ATTORNEYS FOR APPELLANTS: MICHAEL B. WALLACE
REUBEN V. ANDERSON
REBECCA HAWKINS
BARRY W. FORD
WALKER (BILL) JONES,III
BRADLEY WITHERSPOON SMITH
ROBERT F. WALKER
ATTORNEY FOR APPELLEES: FELECIA PERKINS
NATURE OF THE CASE: CIVIL - WRONGFUL DEATH
DISPOSITION: REVERSED AND REMANDED - 04/05/2007
MOTION FOR REHEARING FILED:
MANDATE ISSUED:
2
CONSOLIDATED WITH
NO. 2003-CA-02601-SCT
FORD MOTOR COMPANY AND WORLD RENTAL
CAR SALES OF MISSISSIPPI, LLC
v.
JULIA TENNIN, INDIVIDUALLY, AND AS
ADMINISTRATRIX OF THE ESTATE OF L. C.
TENNIN, III, DECEASED, AND ON BEHALF OF
ALL OTHER WRONGFUL DEATH
BENEFICIARIES; AND PATRICIA ALEXANDER,
INDIVIDUALLY, AND AS ADMINISTRATRIX OF
THE ESTATE OF ANTOINE ALEXANDER,
DECEASED, AND ON BEHALF OF ALL OTHER
WRONGFUL DEATH BENEFICIARIES
DATE OF JUDGMENT: 06/11/2003
TRIAL JUDGE: HON. WINSTON L. KIDD
COURT FROM WHICH APPEALED: HINDS COUNTY CIRCUIT COURT
ATTORNEYS FOR APPELLANT: MICHAEL B. WALLACE
REUBEN V. ANDERSON
REBECCA HAWKINS
BARRY W. FORD
WALKER (BILL) JONES,III
BRADLEY WITHERSPOON SMITH
ROBERT F. WALKER
ATTORNEY FOR APPELLEES: FELECIA PERKINS
NATURE OF THE CASE: CIVIL - WRONGFUL DEATH
DISPOSITION: REVERSED AND REMANDED -04/05/2007
MOTION FOR REHEARING FILED:
MANDATE ISSUED:
BEFORE COBB, P.J., DICKINSON AND RANDOLPH, JJ.
DICKINSON, JUSTICE, FOR THE COURT:
¶1. This case requires the Court to wade through the plaintiffs’ myriad and oft-repeated
accusations of discovery abuse by the defendant to determine whether the trial court abused
its discretion in ordering a new trial based on the alleged discovery violations. Our second
task is to evaluate whether the trial court abused its discretion in awarding attorney’s fees and
expenses in favor of the plaintiffs and against the defendant.
BACKGROUND FACTS AND PROCEEDINGS
¶2. The parties (and even the trial court) dispute how the discovery process proceeded.
Because our disposition hinges on the specific orders and rulings of the trial court, we have
scoured the 70-plus record volumes to develop the following timeline of key events.
¶3. On November 2, 2001, Bradley Christian was driving north on Highway 7 in Marshall
County, Mississippi, when he crossed into the southbound lane and collided at a high speed
with a 1997 Ford Explorer driven by L.C. Tennin and carrying Antoine Alexander. The
collision was a left frontal, driver-to-driver impact. Shortly after the crash, a fire started
somewhere within the Explorer, and both L.C. and Antoine died.1
¶4. Representatives from the two men’s estates (“plaintiffs”) filed suit against Ford Motor
Company (“Ford”), the manufacturer of the Explorer,2 on January 24, 2002. They alleged
that a defective fuel system caused the men’s deaths because it failed to perform properly
under the circumstances of the collision.
1
A point of contention at trial was whether L.C. and Antoine died as a result of their injuries
from the crash, or whether they survived the crash, found themselves trapped in the Explorer, and
then died as a result of the fire which later engulfed the vehicle.
2
The plaintiffs also filed suit against World Rental Car Sales of Mississippi, LLC (“World
Rental”), the seller of the Ford Explorer. Based on an indemnity agreement between World Rental
and Ford, the two entities were treated as one at trial. The references in this opinion to “Ford” or
“the defendant” also include World Rental where appropriate.
4
¶5. On January 29, 2002, Ford received Plaintiffs’ First Set of Interrogatories and First
Set of Requests for Production. A request for production concerning crash test reports was
to become a flash point in the discovery process. It stated:
REQUEST FOR PRODUCTION NO. 6: Crash test reports for crash tests
involving frontal, side or rear impacts, whether full, angled, or partial overlap,
with any Ford Explorer, which were conducted by or for the defendants from
the inception of the initial design of the Ford Explorer up to the date of the trial
of this lawsuit, including without limitation, evaluations, demonstrations,
experiments or tests (static or dynamic) used by engineering as a basis for
instructive analysis of the incident.
¶6. Ford served the plaintiffs with its response to the interrogatories and requests for
production on March 15, 2002. The response was prefaced by “General Objections” to all
of the plaintiffs’ requests, including the following:
1. The Ford vehicle at issue in this litigation is a 1997 Ford Explorer. To
the extent Plaintiffs’ Interrogatories seek information relating to vehicle
models or model years other than the 1997 Ford Explorer, Ford objects
on the ground that such requests are overly broad and unduly
burdensome, and the information sought is neither relevant to the
subject matter of this lawsuit nor reasonably calculated to lead to the
discovery of admissible evidence.
2. Ford objects to Plaintiffs’ Interrogatories to the extent that they seek
information protected by the attorney-client privilege, the attorney
work-product doctrine or any other applicable privileges, and otherwise
outside the scope of reasonable and permissible discovery provided by
the Mississippi Rules of Civil Procedure.
3. Ford’s responses to these Interrogatories are made without waiving the
right to object on the grounds of competency, privilege, relevance,
materiality, hearsay or any other proper ground, to the use of any such
information for any purpose in whole or in part in any subsequent
proceeding in this action or any other action.
* * *
Ford hereby objects to these requests as a whole on the above grounds.
In order to avoid repetition, Ford also hereby incorporates these
5
objections into each of its responses set out below as if these objections
were set forth in their entirety in each response. Ford has also detailed
its specific objections to each Interrogatory [and Request for
Production] and has responded within the scope of its objections.
¶7. Ford also responded to most of the plaintiffs’ interrogatories and requests for
production with specific objections. Its response to “Request for Production No. 6” stated:
RESPONSE: Ford objects to this Request on the grounds that it is overly
broad and unduly burdensome in seeking information pertaining to side or rear
impact crash tests as the incident at issue in this lawsuit involves a front impact
collision. As written, this Request seeks documents pertaining to vehicle
collisions which are substantially dissimilar to the vehicle incident which is the
subject of this lawsuit. Such information is neither relevant to the issues
involved in this lawsuit nor reasonably calculated to lead to the discovery of
admissible evidence. This Request is further overly broad and unduly
burdensome in seeking documents pertaining to crash tests without limitation
as to vehicle model year, vehicle component system tested or test purpose and
encompass[es] collision impacts that are substantially dissimilar to the front
impact collision that occurred in this case. As written, this Request seeks a
voluminous amount of information regarding the design, development and
testing of every Ford Explorer ever manufactured by Ford, “since its
inception,” including vehicles which are substantially dissimilar to the vehicle
which is the subject of this lawsuit. Further more, this Request is
objectionable to the extent that it exceeds the scope of discovery in this case
which is 1995-1997 Ford Explorers. Finally, this Request is objectionable to
Ford on the grounds and to the extent that it seeks documents protected from
disclosure by the attorney-client privilege and attorney work product doctrine.
Without waiving its objections, Ford refers Plaintiffs to Ford’s response to
Plaintiffs’ First Interrogatories No. 8 wherein Ford agreed to produce a list of
all non-privileged front impact crash tests conducted on the 1997 Ford
Explorer to test the fuel system integrity of such vehicles.
Similar “specific” objections were included in the responses to most of the plaintiffs’
interrogatories and requests for production.
¶8. On April 26, 2002, plaintiffs’ counsel received approximately 500 documents from
Ford responding to the plaintiffs’ requests, but the production did not include a point of
6
reference for the documents. That same day, plaintiffs’ counsel wrote Ford’s counsel
insisting that the company withdraw its general objections and provide amended responses.
Plaintiffs’ counsel then sent the documents back to Ford, explaining, “I received some Ford
documents in today’s mail and returned the same to your office this morning. Apparently,
the documents were mailed to my office in error.” A handwritten note faxed to Ford from
plaintiffs’ counsel similarly stated, “I received this stack of papers in today’s mail. This is
not a discovery supplementation. I do not know why this was mailed to my office so I am
returning the same.” Plaintiffs’ counsel neither described what defects she believed existed
in the production nor asked that they be cured.
¶9. On May 7, 2002, the plaintiffs filed a Motion to Compel, arguing that “[a]ll of the
discovery propounded to Defendant Ford is within the scope of discovery. Defendant Ford
has produced no documents responsive to Plaintiffs’ requests for production of documents.”
The motion asked the court to enter an order compelling Ford to amend its discovery
responses. However, the plaintiffs decided not to proceed with the motion to compel, and
no ruling was made or order entered by the trial court on the motion.
¶10. On May 16, 2002, Ford sent a letter to plaintiffs’ counsel requesting the plaintiffs sign
a protective order covering all “confidential, commercial and proprietary” documents
produced during discovery. Plaintiffs’ counsel advised Ford that she would not agree to its
proposed course of action “unless and until a judicial determination is made concerning trade
secrets, confidentiality, etc.” While Ford would later move for a protective order on August
22, 2002, agreeing to produce additional documents upon the entry of the requested order,
7
there is no evidence that this motion was ruled on by the trial court. However, on the eve of
trial, all allegedly privileged documents were ordered produced for in camera review.
¶11. On May 24, 2002, Ford’s counsel faxed a letter to plaintiffs’ counsel detailing the
documents that would be sent to plaintiffs’ counsel by May 29. The correspondence
concluded with an explanation that the documents previously sent to plaintiffs’ counsel were
“responsive to Plaintiffs’ discovery requests and are being returned to you immediately.
They will be accompanied by a very detailed description of the materials and the discovery
requests to which they are responsive.” Upon receiving the two boxes of documents,
plaintiffs’ counsel told Ford’s counsel that the documents would be returned, as they were
unindexed and she could not determine the request to which each document responded.
¶12. Ford then sent plaintiffs’ counsel a production chart designating the Bates-numbered
documents it produced, with designations by category and numbered as to the request for
production to which it responded. After reviewing the May 29 document production
compared with Ford’s production chart, plaintiffs’ counsel noted several missing documents
and alerted Ford via facsimile on June 14, 2002.
¶13. On August 19, 2002, the plaintiffs filed an Amended Motion to Compel. Specifically,
in response to Ford’s response to “Request for Production No. 6,” the plaintiffs stated,
[t]his request is within the purview of discovery in that it is reasonably
calculated to lead to the discovery of admissible evidence. The information
sought is not privileged or confidential, and it is not otherwise protected from
disclosure by the Mississippi Rules of Civil Procedure, or any order of this
court.
The motion concluded, “despite numerous requests, Ford has refused to withdraw the
objections to all of the discovery propounded by the Plaintiffs and provide meaningful
8
responses.” As their prayer for relief, the plaintiffs asked the court “to enter an Order
compelling Defendant to withdraw the objections, answer the interrogatories and produce
documents responsive to the request for production.” However, like their initial motion to
compel, the plaintiffs did not see this motion through to a ruling or order. Instead, they
withdrew the motion with plans to file a second amended motion to compel.
¶14. On August 21, 2002, the plaintiffs received the same production of documents that
plaintiffs’ counsel had returned to Ford on April 26, 2002. Also included in the production
were the documents plaintiffs’ counsel contended were missing from Ford’s second
production of documents. The next day, Ford provided the plaintiffs with an index of crash
test documents for the 1995-1997 Ford Explorers and requested the plaintiffs designate
which documents, if any, they wanted to obtain. However, Plaintiffs never responded.
¶15. During a telephonic hearing on September 18, 2002, the trial court ordered the parties
to confer in good faith to resolve this discovery dispute. The next day, Ford’s counsel and
plaintiffs’ counsel conferred for two hours regarding Ford’s discovery responses.3 According
to the plaintiffs, Ford agreed to withdraw various objections and supplement its discovery
responses, but the company did neither. According to Ford, it agreed to withdraw its general
objections, but it never promised to withdraw its specific objections to several of the
plaintiffs’ interrogatories and requests for production.
¶16. At a hearing on September 23, 2002, plaintiffs’ counsel asked the trial court to refrain
from ruling on the amended motion to compel because she wanted to re-amend the motion
3
Unfortunately, a transcript of the conference is not in the record, and the parties seem to
have different recollections of its substance. Much of the rancor created by these discovery issues
can be traced back to these discussions.
9
to include information about Ford’s alleged history of abusive discovery tactics. The court
told plaintiffs’ counsel to file the motion, not set the motion for hearing, and if the court had
to enter an order, it would be done with sanctions.
¶17. On September 27, 2002, Ford served a supplemental response to the plaintiffs’
requests for production. The response did not include a statement of general objections and
contained all crash test documents for the 1995-1997 Ford Explorers. The supplement again
designated the Bates-numbered documents which were responsive to each request, but most
of Ford’s specific objections to individual requests were not withdrawn.
¶18. On November 7, 2002, the plaintiffs filed their Second Amended Motion to Compel.
They claimed that “[d]espite plaintiffs [sic] counsel’s repeated attempts to confer with Ford,
along with warnings from this Court to cooperate in discovery, Ford has failed to fully and
honestly respond to plaintiffs’ discovery requests.” The plaintiffs included in their motion
thirteen cases wherein Ford was cited for discovery violations and the following amended
response to Ford’s response to “Request for Production No. 6”:
This request is within the purview of discovery in that it is reasonably
calculated to lead to the discovery of admissible evidence. The information
sought is not privileged or confidential, and is not otherwise protected from
disclosure by the Mississippi Rules of Civil Procedure, or any order of this
court. Moreover, Ford attempts to limit the scope of the discovery request and
should be ordered to produce all documents and/or tangibles responsive
thereto.
(Emphasis in original).
¶19. At some point unidentified in the record, the trial court ordered Ford to produce crash
test documents relating to the 1991-1994 Ford Explorers (in addition to documents on the
1995-1997 Explorers that Ford had already agreed to produce). There is no transcript of this
10
conference or of a related order being entered. However, during the April 14, 2003, hearing,
this ruling is referenced – although the parties seem to remember things quite differently.
¶20. Pursuant to the court’s ruling, Ford produced nine boxes of crash test documents
relating to the 1991-1994 Ford Explorers on November 22, 2002. Claiming the production
was not an appropriate supplemental response, plaintiffs’ counsel returned the boxes to Ford
and stated that the parties could address the discovery issue with the trial court.
¶21. On November 26, 2002, the plaintiffs filed their Supplemental Second Amended
Motion to Compel. In Ford’s response to this motion, it explained that
Ford has produced over 50,000 documents to Plaintiffs not only as they are
kept in the usual course of business at Ford, but also in three different formats
(letter, chart, supplemental responses) in its continuous and exhaustive efforts
to appease Plaintiffs. Despite these efforts, Plaintiffs’ counsel continues to
return documents and files frivolous motions to compel.
Ford’s response also included the following response to statements made by the plaintiffs
regarding the company’s production of documents:
Since the Court has already ruled that Ford shall produce all front crash tests
for 1991-1997 Ford Explorers and same have been produced, this issue is
moot. Plaintiffs’ allegations against Ford relate to a 1997 Ford Explorer
involved in a frontal collision with a post-collision fire and Plaintiffs fail to
provide the Court with any rationale or authority demonstrating why side or
rear-impact crash test reports are relevant to Plaintiffs’ claims in this case.
Additionally, Mississippi Code Annotated Section 11-1-63 governs Plaintiffs’
product liability claims. Section 11-1-63(a) requires that Plaintiffs establish
that the subject Ford Explorer was defective “at the time the product left the
control of the manufacturer seller.” Therefore, Plaintiffs are not entitled to
any information relating to Ford Explorers manufactured after 1997, the
model year of the subject vehicle since such information is not relevant to
Plaintiffs’ claims or Ford’s defenses under Section 11-1-63.
(Emphasis in original).
11
¶22. According to the plaintiffs, on February 12, 2003, the trial court ordered Ford to
resubmit its discovery responses within ten days. The record does not contain a transcript
from any hearing on this matter or a related order from the court. However, at a subsequent
hearing on March 27, 2003 (for which we have the benefit of a transcript), the trial court
clearly stated that Ford had been required to resubmit its responses without the general
objections. Ford contended it had already complied with the trial court’s previous ruling but,
nonetheless, the court ordered Ford to submit its previous resubmission to the court for
review, and stated that “if they’re not in compliance with the Court’s instructions, then the
Court will enter the appropriate order.” No such order was ever entered.
¶23. At the April 14, 2003, hearing, the issue of discovery was again discussed.
Significantly, this was the first time the trial court made a specific ruling as to Ford’s
individual discovery responses. The trial court ruled as follows:
[W]ith respect to interrogatories 5, 6, and 7 the objections shall be withdrawn.
Interrogatories 5 and 6, response should be given without objections; 7 will be
denied. With respect to the request for production, these documents requested
in 12 and 13 shall be produced within 10 days and a supplement shall be filed
withdrawing objections, and 14 will be denied.
A corresponding order was entered on April 22, 2003.
¶24. Although most of the alleged discovery problems involved the production, or lack
thereof, of documents, Ford was called out by the court during the April 21, 2003, hearing
for not properly responding to one of the plaintiffs’ interrogatories. Ford provided two
names of witnesses to the accident, John Tracey and Ben Vaughn, in an interrogatory
response, but it failed to include any type of contact information. Ford had a cell phone
number for one of the men and was able to find and get statements from both. Frustrated,
12
the court found that “identifying information as to John Tracey and Ben Vaughn [was not]
produced to the plaintiff in a timely manner in accordance with previous orders in this court.”
¶25. On April 22, 2003, the plaintiffs filed a Motion to Order Defendant Ford to Submit
Documents In Camera, arguing that “Ford’s claim of privilege allows the company to
unilaterally determine what information should be revealed without a judicial determination.”
This was the first time since Ford filed its motion for a protective order in August 2002 that
such a motion was entertained by the trial court. On May 23, 2003, the trial court ordered
Ford to submit allegedly privileged documents to the court for in camera review prior to the
beginning of trial on May 27, 2003.
¶26. At yet another hearing, on May 23, 2003, Ford again skated on thin ice with respect
to a discovery issue. Ford had in its possession a standard incident report from the Waterford
Fire Department which was not turned over to the plaintiffs during discovery, although they
were given the document a few days before this hearing since the report was on Ford’s
exhibit list. Earlier, the plaintiffs had asked for “basically anything that [Ford has] in [its]
possession that [it] will use to defend [itself] in this case.” Ford explained that the report was
not a Ford document, but something it found during the course of its investigation.
According to Ford, “it was not produced to the plaintiff on the understanding that she was
conducting her own investigation and had that document herself. We did not intentionally
conceal that.” The court did not enter any orders or rulings specific to this discovery issue.
¶27. The trial began on May 27, 2003, and on May 29, another discovery issue arose.
When Ford attempted to hand over additional documents for in camera review, plaintiffs’
counsel requested sanctions based on Ford’s failure to abide by the court’s order requiring
13
the submission on May 27. Ford explained its tardiness by stating that the documents had
to be gathered over a holiday weekend, so complying with the court’s order took longer than
anticipated. However, Ford never asked the court for an extension of time or stay of the
order. The company simply produced the documents two days later than ordered.
¶28. On May 30, 2003, the trial court entered an order regarding the documents submitted
by Ford for in camera review, finding “that the documents shall be turned over to the
plaintiffs and shall be subject to a protective order.” Therefore, the court finally ordered
many documents to be produced to the plaintiffs after the trial had begun.
¶29. During trial on this day, the parties and trial judge got into another heated argument
about perceived discovery violations. The familiar positions were repeated: the plaintiffs
believed Ford intentionally withheld documents after the court had ordered them produced,
while Ford believed it could rely on its specific objections to the production of certain
documents in the absence of court orders to the contrary. Although the trial judge believed
he had ordered the production of the documents at issue, the record does not bear this out.
Ford: We produced all frontal crash tests. There was no specific
objection to us only producing the frontal crash tests which are
the ones that are relevant to this case.
Court: No. What was ordered to be produced? I don’t think it’s
necessary for there to be an objection to a production. I believe
when the court orders some documents to be produced and if
they’re not produced, I don’t think it’s a requirement that there
be another objection. Did I order them to be produced?
Plaintiffs: Yes.
Ford: No, Your Honor.
* * **
14
Ford: She requested crash tests. We produced and it’s clear when we
produced it that we would produce all frontal crash tests, the 30
mile per hour frontal, left front right frontal . . . because those
were the relevant crash tests . . . . There was no specific
objection to the scope of production that we gave the plaintiff
and there was no order consequently from the court that what
we had done was inappropriate . . . .
** * *
Plaintiffs: Your Honor, that’s my point. Ford cannot unilaterally decide
what’s relevant and what’s not relevant when the request has
been made. That is for this court to decide. So the question is
– still remains, and it doesn’t have to be relevant in order to be
discoverable. Where are the crash tests?
Court: That’s law 101. It doesn’t have to be relevant.
(Emphasis added). Later during the day, the issue of discovery was again revisited:
Plaintiffs: We’ve not been provided any of these durability tests [allegedly
used by Ford’s expert]. . . . And so we’re now completely at a
loss to impeach whether these durability tests worked.
** * *
Ford: We objected on the ground that . . . a request for all crash tests
was overly broad and unduly burdensome in seeking
information pertaining to side or rear impact crash tests as the
incident at issue in this lawsuit involves a front impact collision.
As written, the request seeks documents pertaining to vehicle
collisions, which are substantially dissimilar to the vehicle
incident, which is the subject of this lawsuit. And, Your Honor,
plaintiffs did bring to the Court’s attention certain aspects
of Ford’s discovery responses. However, this was not one of
them. One of them was that she complained that we limited our
discovery to the ‘95 through ‘97 Explorer. This court
specifically entered an order that we needed to expand our scope
of discovery to the ‘91 through ‘94, as well as the ‘95 through
‘97. We immediately went back, produced everything that was
responsive for that particular Explorer. However, plaintiffs
never, never brought on for hearing to seek that this Court
overrule our proper objection that was lodged to this
discovery response.
** * *
15
Court: With respect to the crash tests and the durability tests, the
court is ordering those tests to be turned over to the
plaintiffs. . . . Have them by Monday morning.
** * *
Ford: When plaintiffs filed the request for production of documents,
Ford filed general objection [sic] to those request [sic] for
productions. They also filed specific objections to each request
for production. . . . [W]e remove[d] the general objections to the
plaintiffs request for production of documents. And that was
done even though we thought those were proper, the court asked
us to remove them and we volunteered actually to remove them
with Ms. Perkins. We did not agree to nor has this court ever
ordered Ford to remove specific objections to request
production or interrogatories that were outside the scope of
discovery under Mississippi Rules of Civil Procedure 26. And
we are entitled to make those objections. We’ve made them.
The plaintiffs have never come to this court and filed a motion
to compel certain crash tests beyond the crash tests that were
produced.
** * *
Court: With respect to the crash tests, tests that the court is ordering to
be produced are the ones set forth in [“Request for Production
No. 6,” including tests done on the 1998 through 2003 Ford
Explorers].
** * *
Court: [T]he order of the court is that you produce up until ‘97 by
Monday morning. That’s the order of the court. . . . And give
me a progress report on Monday morning as to the others.
¶30. On that Monday, June 2, 2003, Ford produced all crash and durability tests for the
1991 through 1997 Ford Explorer (16 or 17 boxes of documents). Ford also informed the
court that the crash and durability tests for the 1998 through 2003 Ford Explorer would be
ready by Tuesday, with videotapes of the crash tests available on Wednesday.
¶31. On June 3, 2003, the plaintiffs rested their case. That same day, Ford produced an
additional 17 boxes of documents on the 1998 through 2003 Ford Explorer pursuant to the
court’s order. Plaintiffs’ counsel argued that some of the documents in this production were
16
highly relevant to her case, declaring, “[t]here is no possible way that any rational attorney
can argue that these are not relevant to our case. Why they were not produced needs to be
addressed by this Court.” We would be remiss in failing to point out that on at least three
occasions, plaintiff’s counsel filed Motions to Compel which they then failed to pursue.
Notably, many of these documents were sent to plaintiffs’ counsel back in May and June of
2002, but she returned those documents to Ford.
¶32. The parties and trial court continued their round-and-round discovery feud throughout
the trial. On June 10, 2003, the jury returned a 12-0 verdict in favor of Ford.
¶33. On June 16, 2003, the plaintiffs filed a motion for judgment notwithstanding the
verdict or, in the alternative, for a new trial based on “deceitful and false representations and
intentional omissions by Ford.” (Emphasis in original). Plaintiffs’ counsel also submitted
an affidavit of her attorney’s fees from March 2002 through June 2003, itemized by the
number of hours spent on the case each month, the corresponding amount of attorney’s fees
incurred, and a description of her activities for that month, for a total of $326,362.50. The
affidavit also included an itemization of expenses listing a description of the expense, its
amount, and the date it was incurred, for a total of $177,829.21.4 The affidavits were not
accompanied by supporting documentation.
¶34. On August 1, 2003, the trial court entered an order denying the plaintiffs’ motion for
judgment notwithstanding the verdict and granting their motion for a new trial. The court
found “that an injustice has occurred herein and that the jury verdict will not be allowed to
4
Plaintiffs’ co-counsel, Kathy Nester, submitted a similar affidavit reporting the time she
spent working on the case from May 21, 2003, to June 10, 2003. Her fees amounted to $47,925.00.
17
stand. The plaintiffs were denied their right to a fair trial based upon defendants’ failure to
produce all relevant and discoverable documents in a timely manner.” The order also
awarded the plaintiffs reasonable attorney’s fees against the defendants.
¶35. Ford moved to strike plaintiffs’ counsel’s affidavits because they did not represent the
best evidence of fees and expenses incurred, but the trial court denied the motion. After
reviewing the affidavits, the trial court reduced plaintiffs’ counsel’s rate from $225.00 per
hour to $150.00 per hour, added up the time spent on the case from April through June 2003,
and awarded the plaintiffs $144,600.00 in attorney’s fees. The court also awarded the
plaintiffs $57,262.99 in expenses representing the fees paid to experts testifying at trial.
¶36. Ford appeals both the granting of the new trial and the award of fees and expenses to
the plaintiffs, presenting the following two issues on appeal: (1) whether the trial court erred
in ordering a new trial and sanctions for Ford’s allegedly untimely production of documents;
and (2) whether the trial court erred in ordering Ford to pay more than $200,000 in attorney’s
fees and expenses.5
DISCUSSION
¶37. We have opined that a trial court should grant a motion for a new trial “only when
upon a review of the entire record the trial judge is left with a firm and definite conviction
that the verdict, if allowed to stand, would work a miscarriage of justice.” Anchor Coatings,
Inc. v. Marine Indus. Residential Insulation, Inc., 490 So. 2d 1210, 1215 (Miss. 1986).
5
The plaintiffs independently raise the issue of jurisdiction. However, a panel of this Court
previously considered and rejected the plaintiffs’ motion to strike Ford’s interlocutory appeal
petitions based on perceived procedural deficiencies. The panel granted Ford’s petition as to the
new trial order and its conditional petition as to the money judgment, consolidating both
interlocutory appeals with the direct appeal.
18
The trial court’s granting of a motion for a new trial is reviewed for abuse of discretion.
Green v. Grant, 641 So. 2d 1203, 1207-08 (Miss. 1994). Additionally, “[t]rial courts have
considerable discretion in discovery matters, and their decisions will not be overturned unless
there is an abuse of discretion.” Beck v. Sapet, 937 So. 2d 945, 948 (Miss. 2006).
¶38. The assessment of reasonable attorney’s fees is likewise an issue within the discretion
of the trial court. Smotherman v. Columbus Hotel Co., 741 So. 2d 259, 269 (Miss. 1999).
It is well settled in this State that what constitutes a reasonable attorney’s fee
rests within the sound discretion of the trial court and any testimony by
attorneys with respect to such fee is purely advisory and not binding on the
trial court. We will not reverse the trial court on the question of attorney’s fees
unless there is a manifest abuse of discretion in making the allowance.
Deer Creek Constr. Co. v. Peterson, 412 So. 2d 1169, 1173 (Miss. 1982). Any award of
reasonable attorney’s fees must be supported by credible evidence. Regency Nissan, Inc.
v. Jenkins, 678 So. 2d 95, 103 (Miss. 1995).
¶39. Rule 26 of the Mississippi Rules of Civil Procedure governs general discovery
matters. The provisions relevant to this action state:
(b) Scope of Discovery: Unless otherwise limited by order of the court in
accordance with these rules, the scope of discovery is as follows:
(1) In general. Parties may obtain discovery regarding any matter,
not privileged, which is relevant to the issues raised by the
claims or defenses of any party. . . . It is not ground for
objection that the information sought will be inadmissible at the
trial if the information sought appears reasonably calculated to
lead to the discovery of admissible evidence.
****
(d) Protective orders. Upon motion by a party or by the person from whom
discovery is sought, and for good cause shown, the court in which the
action is pending . . . may make any order which justice requires to
protect a party or person from annoyance, embarrassment, oppression,
or undue burden or expense . . . .
19
Miss. R. Civ. P. 26 (emphasis added).
¶40. Rule 34 of the Mississippi Rules of Civil Procedure governs the production of
documents and things. Subsection (b), on the proper procedure to be employed, notes in part:
[t]he response [to the discovery request] shall state, with respect to each item
or category, that inspection and related activities will be permitted as
requested, unless the request is objected to, in which event the reasons for
objection shall be stated. If objection is made to part of an item or
category, the part shall be specified. The party submitting the request
may move for an order under Rule 37(a) with respect to any objection to
or other failure to respond to the request or any part thereof, or any failure
to permit inspection as requested.
Miss. R. Civ. P. 34(b) (emphasis added).
¶41. Rule 37 of the Mississippi Rules of Civil Procedure provides the procedure to be
followed when parties fail to cooperate in the discovery process. The following provisions
are relevant to the issues in this case:
(a) Motion for order compelling discovery. A party, upon reasonable
notice to other parties and all persons affected thereby, may apply for
an order compelling discovery as follows:
****
(2) Motion. If . . . a party fails to answer an interrogatory submitted
under Rule 33, or if a party, in response to a request for
inspection submitted under Rule 34, fails to respond that
inspection will be permitted as requested or fails to permit
inspection as requested, the discovering party may move for
an order compelling an answer . . . or an order compelling
inspection in accordance with the request. . . .
(b) Failure to comply with order.
****
(2) Sanction by Court in Which Action is Pending. If a party . . .
fails to obey an order to provide or permit discovery . . . the
court in which the action is pending may make such orders in
regard to the failure as are just, and among others the following:
****
20
(D) . . . an order treating as a contempt of court the failure to
obey any orders.
In lieu of any of the foregoing orders or in addition, thereto, the court
shall require the party failing to obey the order or the attorney advising
him or both to pay the reasonable expenses, including attorney’s
fees, caused by the failure . . . .
****
(e) Additional sanctions. In addition to the application of those sanctions,
specified in Rule 26(d) and other provisions of this rule, the court may
impose upon any party or counsel such sanctions as may be just,
including the payment of reasonable expenses and attorneys’ fees, if
any party or counsel . . . otherwise abuses the discovery process in
seeking, making or resisting discovery.
Miss. R. Civ. P. 37 (emphasis added).
¶42. With the guidance provided by these rules, and with the proper standard of review in
mind, we now consider the issues raised by Ford on appeal.
I. Whether the trial court erred in ordering a new trial and sanctions
for Ford’s allegedly untimely production of documents.
Discovery orders and rulings by the trial court
¶43. The crux of this appeal is whether Ford disregarded rulings and orders of the trial
court concerning the production of documents. The plaintiffs contend that throughout the
discovery process, and through the trial itself, Ford intentionally withheld relevant documents
in violation of numerous court orders. The plaintiffs highlight several comments made by
the trial court about Ford’s poor discovery conduct. However, in our review of the record
on appeal, we find only a few orders of the court concerning discovery matters, and only one
order violated by Ford.
¶44. In its original response to the plaintiffs’ interrogatories and requests for production,
Ford asserted general objections applicable to every request and specific objections to
21
various individual requests. In her April 26, 2002, correspondence to Ford, plaintiffs’
counsel asked the company to withdraw its general objections. Additionally, according to
the transcript, the trial judge, referring to a previous order, stated that “[t]he Court indicated
that defendants were required to resubmit the responses without [general] objections.” 6
However, at no point did the trial court order Ford to withdraw its specific objections to all
of the plaintiffs’ discovery requests. In fact, the trial court could not have taken such an
action. “[W]hen objections to discovery of specific documents are made, the trial court
should deal with each on an item-by-item basis, carefully considering each objection,
deciding whether to allow discovery, and stating the rule or exception which provides the
basis for the decision.” Hewes v. Langston, 853 So. 2d 1237, 1250 (Miss. 2003); see also
Miss. United Methodist Conference v. Brown, 911 So. 2d 478, 481-82 (Miss. 2005).
¶45. For example, a ruling by the trial court on the production of non-frontal crash tests for
various Explorer models – the plaintiffs’ “Request for Production No. 6” – was not made
until May 30, 2003, the fourth day of trial. Until then, Ford had every right to rely on its
specific objection to the production based on the dissimilarity of circumstances and
relevance. “A party has every right to make a good faith objection that certain interrogatories
[and discovery requests] are improper.” Grant v. K-Mart Corp., 870 So. 2d 1210, 1214
(Miss. Ct. App. 2001); see also West v. West, 891 So. 2d 203, 219 (Miss. 2004) (parties are
“bound by the rules of relevance in regard to discovery”); Pittman v. Miss. Power & Light
6
It appears the trial judge was attempting to overrule Ford’s objections and order them to
respond. However, the trial judge ordered Ford to withdraw its objections, which a trial judge has
no authority to do.
22
Co., 368 So. 2d 238, 240 (Miss. 1979) (a motion picture reconstruction of an accident was
not relevant because it contained material dissimilarities to the actual accident).
¶46. We now take this opportunity to address the validity of “general objections” to
discovery requests, like those proffered by Ford in its initial response to the plaintiffs’
interrogatories and requests for production. M.R.C.P. 34(b) specifies the duties of a party
objecting to a request for production:
The response shall state, with respect to each item or category, that inspection
and related activities will be permitted as requested, unless the request is
objected to in which event the reasons for objection shall be stated. If
objection is made to part of an item or category, the part shall be specified.
“General objections” applicable to each and every interrogatory or request for production are
clearly outside the bounds of this rule. If a party wishes to lodge an objection to a question
or request submitted by the opposition, that party must make such objection to that specific
question or request.
¶47. Although the plaintiffs rightfully ignored Ford’s general objections, which the trial
court later ordered withdrawn, they could not similarly disregard Ford’s specific objections.
As previously indicated, where the plaintiffs disagreed with a specific objection proffered
by Ford, the proper course of action was to timely file a motion to compel and subsequently
seek to obtain an order to compel. When a party is aware of an incomplete or evasive
discovery response, that party should take affirmative action by seeking an order compelling
discovery pursuant to Miss. R. Civ. P. 37(a)(2). Warren v. Sandoz Pharm. Corp., 783 So.
2d 735, 743 (Miss. 2000). In Caracci v. Int’l Paper Co., 699 So. 2d 546, 557 (Miss. 1997),
23
we outlined the appropriate procedure under the rules for dealing with a party’s failure to
fully respond to discovery:
Under our rules of civil procedure, failure to make or cooperate in discovery
should first be resolved by making a motion in the proper court requesting an
order compelling such discovery. See M.R.C.P. 37(a)(2). The remedy for
failing to comply with the discovery requests when the trial court grants an
order to compel falls under M.R.C.P. 37(a)(4) in the form of awarding the
moving party the expenses for such a motion. See M.R.C.P. 37; January v.
Barnes, 621 So. 2d 915, 922 (Miss. 1992). After such an order to compel
has been granted under M.R.C.P. 37(a)(2), and the party ordered to answer
fails to respond, then the remedy may be sanctions in accordance with
M.R.C.P. 37(b).
(Emphasis added). See also State Hwy. Comm’n v. Havard, 508 So. 2d 1099, 1104 (Miss.
1987) (“the discovering party must seek and obtain an order compelling a more detailed
response as a precondition of obtaining Rule 37(b) sanctions”).
¶48. As the passage above indicates, simply filing the motion is insufficient. It is the
movant’s burden to ensure that the motion is heard, ruled upon, and an appropriate order is
entered by the trial court. Cossitt v. Alfa Ins. Corp., 726 So. 2d 132, 135 (Miss. 1998) (“[a]
motion that is not ruled upon is presumed abandoned”).
¶49. At the April 14, 2003, hearing, the plaintiffs for the first time sought trial court rulings
on specific responses by Ford to their interrogatories and discovery requests. The court
ordered Ford to provide all of the documents requested by the plaintiffs in Interrogatories 5
and 6 and Requests for Production 12 and 13, and Ford complied.
¶50. April 22, 2003, was the first time that the plaintiffs requested the court examine in
camera the documents Ford claimed to be privileged. An order granting the plaintiffs’
motion was not entered until May 23, 2003, four days before trial. The order required the
24
documents to be submitted to the court by May 27, 2003. This is the only order not fully
complied with by Ford. Instead of producing all of the documents by May 27, the
submission was completed by Ford on May 29.
¶51. Ford has contended from the beginning of this litigation that non-frontal crash tests
on Ford Explorers other than the model at issue (1995-1997) are irrelevant to the claims at
issue, since the accident here was a frontal collision involving a 1997 Ford Explorer
(although Ford did abide by the court’s order expanding the scope of discovery to include
frontal crash tests for 1991-1994 Ford Explorers). On May 30, 2003, the plaintiffs finally
asked for a ruling on their “Request for Production No. 6” asking for all crash tests for all
Explorer models. The court ordered Ford to produce the requested documents in three days,
and Ford complied.
¶52. When the plaintiffs followed the procedure contemplated by Rule 37 just days before
and during trial, Ford produced the ordered documents.7 A party should not be punished
because the other party opted to continue complaining to the trial court about perceived
discovery abuses rather than request and pursue specific action earlier in the litigation. See
Caracci, 699 So. 2d at 557 (sanctions reversed where there was no order compelling plaintiff
to fix discovery deficiencies); Robert v. Colson, 729 So. 2d 1243, 1247 (Miss. 1999)
(sanctions for failing to timely answer interrogatories reversed where no order to compel had
been entered); January v. Barnes, 621 So. 2d 915, 922 (Miss. 1993) (sanctions reversed
where the only order to compel was substantially complied with); Harvey v. Stone County
7
Likewise, the production of documents post-trial was in response to the court’s ruling on
several of the plaintiffs’ requests for production to which Ford had asserted reasonable defenses.
25
Sch. Dist., 862 So. 2d 545, 550 (Miss. Ct. App. 2004) (sanction of dismissal unwarranted
where plaintiff complied with trial court’s only order to compel one day late); Warren v.
Sandoz Pharms. Corp., 783 So. 2d 735, 741 (Miss. Ct. App. 2000) (sanctions improper
where “there were no prior orders in place to compel discovery”). Cf. Amiker v. Drugs for
Less, Inc., 796 So. 2d 942, 949 (Miss. 2002) (new trial warranted where defendant “failed
to comply with orders regarding discovery”); Herrington v. Herrington, 660 So. 2d 215, 219
(Miss. 1995) (monetary sanctions upheld where defendant refused to comply with the trial
court’s oral ruling on plaintiff’s motion to compel).
¶53. In the end, Ford violated a single order of the court concerning the time frame for the
submission of documents, and the documents were submitted two days late. Thus, Ford is
not absolved of all fault for the discovery disputes in this case. Indeed, Ford often walked
a fine line with respect to other discovery issues, such as not disclosing a potential witness’s
phone number and waiting to disclose a fire report it had found in its investigation. That
said, while the trial court’s frustration with the discovery process is understandable, we find
that the ordering of a new trial after a unanimous jury verdict for the defendant, based on a
perceived violation of court orders which were never placed of record, was an abuse of
discretion.
Plaintiffs never requested a continuance
¶54. Inexplicably, the plaintiffs chose not to move for a continuance after receiving thirty-
plus boxes of discoverable documents during trial. “This Court has often enforced waivers
when there has been no request for a continuance.” Kindred v. Columbus Country Club,
26
Inc., 918 So. 2d 1281, 1286 (Miss. 2005) (plaintiff waived right to complain about the
exclusion of witnesses unknown until trial by failing to ask for a continuance or mistrial).
¶55. At oral argument, plaintiffs’ counsel stated that she did not want to incur the expense
of a continuance or mistrial, and she further believed that the trial court would not have
granted one. From reading the trial transcript and court papers, we think the decisional risk
rested more on a belief that the plaintiffs were going to prevail in the case regardless,
although hindsight reveals the imprudence of this choice. Nevertheless, the option was
available to the plaintiffs, and if they were genuinely concerned about needing the
information produced during trial, then the proper procedure was to request a continuance
or mistrial and a claim for expenses and costs. The plaintiffs should not get a second bite at
the apple based on their questionable trial strategy.
¶56. The trial court granted the new trial based on perceived violations of non-existent
court orders. We can find no evidence in the record showing the discovery abuses claimed
by the trial court, and as such, the unanimous jury verdict in favor of Ford should not have
been disregarded. Additionally, since the plaintiffs failed to request a continuance or mistrial
after the crash test and durability reports were produced during trial, they cannot now benefit
from that flawed strategic decision. Therefore, we find the trial court abused its discretion
in setting aside the jury’s verdict and ordering a new trial.
II. Whether the circuit court erred in ordering Ford to pay more than
$200,000 in attorney’s fees and expenses.
¶57. As previously noted, the issue of attorney’s fees falls within the sound discretion of
the trial court. Smotherman, 741 So. 2d at 269. However, where the basis for the award is
27
itself a product of abused discretion, so too is the award. See, e.g., City of Jackson v. Powell,
917 So. 2d 59, 76 (Miss. 2005) (violation of 42 U.S.C. § 1983 not proven, so award of fees
pursuant thereto reversed); Moses v. Moses, 879 So. 2d 1036, 1041 (Miss. 2004) (court
reversed contempt judgment, so award of attorney’s fees also reversed); Madison County
v. Hopkins, 857 So. 2d 43, 51 (Miss. 2003) (chancellor’s finding of a conflict of interest held
erroneous, so award of fees based thereon reversed); Anderson v. B.H. Acquisition, Inc., 771
So. 2d 914, 922 (Miss. 2000) (trial court’s finding that claim was frivolous was erroneous,
so award of fees based thereon reversed). In this case, the trial court’s finding of multiple,
intentional discovery violations was erroneous, so the award of attorney’s fees and expenses
to the plaintiffs (presumably under Miss. R. Civ. P. 37(e)) was consequently an abuse of
discretion.
¶58. That is not to say, though, that the plaintiffs were not owed some amount of
reasonable attorney’s fees and expenses. Pursuant to Miss. R. Civ. P. 37(a)(4), once a trial
court has entered an order granting a motion to compel, as the trial court did in this case on
April 22, 2003, with respect to the plaintiffs’ interrogatories 5, 6, and 7, and requests for
production 12 and 13:
the court shall, after opportunity for hearing, require the party . . . whose
conduct necessitated the motion or the party or attorney advising such conduct
or both of them to pay to the moving party the reasonable expenses incurred
in obtaining the order, including attorney’s fees, unless the court finds that the
opposition to the motion was substantially justified or that other circumstances
make an award of expenses unjust.
Therefore, the trial court, after a hearing, could have assessed Ford the reasonable expenses
incurred by the plaintiffs in bringing the February 24, 2003, motion to compel referenced in
28
the order.8 See Willard v. Paracelsus Health Care Corp., 681 So. 2d 539, 545 (Miss. 1996);
Barnes v. A Confidential Party, 628 So. 2d 283, 291 (Miss. 1993).
¶59. Likewise, under Miss. R. Civ. P. 37(b), a trial court may impose sanctions for the
failure to comply with an order. As previously stated, the only order not fully complied with
by Ford was the trial court’s order to submit allegedly privileged documents for in camera
review by the start of trial. Ford ultimately complied with the order two days late. Pursuant
to Rule 37(b), the trial court “shall require the party failing to obey the order or the attorney
advising him or both to pay the reasonable expenses, including attorney’s fees, caused by the
failure, unless the court finds that the failure was substantially justified or that other
circumstances make an award of expenses unjust.” Therefore, the trial court could have
assessed Ford the reasonable expenses incurred by the plaintiffs caused by its compliance
with the court’s ruling two days later than ordered.
¶60. “[A]ny testimony by attorneys with respect to [reasonable attorney’s fees] is purely
advisory and not binding on the trial court.” Mauck v. Columbus Hotel Co., 741 So. 2d 259,
269 (Miss. 1999). Under Miss. Code Ann. Section 9-1-41 (Rev. 2004):
In any action in which the court is authorized to award reasonable attorneys’
fees, the court shall not require the party seeking such fees to put on proof as
to the reasonableness of the amount sought, but shall make the award based on
the information already before it and the court’s own opinion based on
experience and observation; provided however, a party may, in its discretion,
place before the court other evidence as to the reasonableness of the amount
of the award, and the court may consider such evidence in making the award.
See also Regency Nissan, Inc. v. Jenkins, 678 So. 2d 95, 103 (Miss. 1995).
8
This rule permits a recovery of expenses for motions to compel ruled on by the trial court,
and our review of the record reveals that this is the only such motion.
29
¶61. This Court has also instructed trial courts to refer to the factors set forth in Rule 1.5
of the Mississippi Rules of Professional Conduct when determining the reasonableness of an
attorney’s fee. Miss. Power & Light Co. v. Cook, 832 So. 2d 474, 486 (Miss. 2002). These
factors include:
(1) the time and labor required, the novelty and difficulty of the questions
involved, and the skill requisite to perform the legal service properly; (2) the
likelihood, if apparent to the client, that the acceptance of the particular
employment will preclude other employment by the lawyer; (3) the fee
customarily charged in the locality for similar services; (4) the amount
involved and the results obtained; (5) the time limitations imposed by the
client or by the circumstances; (6) the nature and length of the professional
relationship with the client; (7) the experience, reputation, and ability of the
lawyer or lawyers performing the services; and (8) whether the fee is fixed or
contingent.
See also McKee v. McKee, 418 So. 2d 764, 767 (Miss. 1982). Any award of attorney’s fees
and expenses should be supported with factual determinations by the trial court. Browder
v. Williams, 765 So. 2d 1281, 1288 (Miss. 2000).
¶62. The trial court may assess reasonable attorney’s fees and expenses against Ford
related to the order described supra and pursuant to the guidelines discussed. We remand
the award of attorney’s fees and expenses to the plaintiffs for reconsideration by the trial
court.
CONCLUSION
¶63. For the reasons herein, we reverse the trial court’s order granting a new trial and its
award of attorney’s fees and expenses, and we remand the case for the reinstatement of the
jury verdict in favor of Ford and for a determination of the amount of reasonable attorney’s
fees to be awarded consistent with this opinion.
30
¶64. REVERSED AND REMANDED.
SMITH, C.J., WALLER AND COBB, P.JJ., EASLEY, CARLSON AND
RANDOLPH, JJ., CONCUR. DIAZ, J., DISSENTS WITH SEPARATE WRITTEN
OPINION JOINED BY GRAVES, J.
DIAZ, JUSTICE, DISSENTING:
¶65. The majority correctly addresses the requirements for sanctions and attorney’s fees.
However, I respectfully disagree that the combative actions of Ford Motor Company did not
warrant sanctions.
¶66. I am concerned by the majority’s calmness regarding Ford’s actions. It is clear that
Ford violated an order of the trial court regarding discovery, but this fact is glossed over. If
a holiday was an issue in compliance, or there was difficulty in indexing the information (for
Ford already had the documents in its possession), the proper response by Ford should have
been to move the court for an extension of time to comply. The order of a trial court is an
order that must be obeyed, and we cannot treat its violation with such a cavalier attitude.
¶67. Likewise, the majority seems content with the brazen violations of the discovery
process Ford committed. We are repeatedly informed that Ford disgorged hundreds of
documents without any sort of responsive categorization or indexing, at which point counsel
for the plaintiffs rightly returned them. We do not permit such “burying” or “haystacking”
under our rules. See Miss. R. Civ. P. (b) (“When producing documents, the producing party
shall produce them as they are kept in the usual course of business or shall organize and
label them to correspond with the categories in the request that call for their production”)
(emphasis added). This is because we wish to “deter deliberate attempts by a producing
party to burden discovery with volume or disarray or deliberately mixing critical documents
31
with others in an effort to obscure significance.” Comment, Miss. R. Civ. P. 34. The
message is simple: Litigation is to be fair and conducted in a professional manner.
¶68. Nonetheless, the majority again glosses over this chronic failure of Ford to comply
with one of our most basic rules of litigation. Ford has become notorious for its foot-
dragging and sandbagging during discovery, and it has an extensive history of abusing the
discovery process. These actions have been rewarded with sanctions by multiple federal and
state trial courts. Often the behavior is exactly the same as in today’s case—refusing to
categorize or index responsive documents. Ford’s historical behavior also mirrors the
posture in this case: it refuses to comply with discovery until immediately before trial, often
resulting in continuances and further delay.
¶69. In an order in the case of Irvin v. Ford Motor Company, No. 2:95-CV-291PG (S.D.
Miss. Nov. 1997), then-federal district Judge Charles Pickering found “that Ford did fail to
disclose relevant information to Plaintiffs without justification,” and on the eve of trial
ordered a continuance and mandated Ford to produce certain witnesses and documents it had
withheld. Likewise, in an order entered in a case filed in Holmes County Circuit Court,
Robinson v. Ford Motor Company, No. 96-0200 (Miss. Aug. 1998), Ford was sanctioned
$5,000 for its abuse of the discovery process.
¶70. Looking to Ford’s actions outside of Mississippi, a federal district court in Texas
sanctioned Ford for failing to comply with discovery, including failing to categorize or index
documents. Anderson v. Ford Motor Company, No. 2:00CV136 (E.D. Tx. Feb. 2001).
Because it had already been sanctioned once before in the case for similar behavior, the
federal court required Ford to pay the attorney’s fees required in bringing the motion and was
32
penalized in the upcoming trial by having its time for opening statement and closing
argument shortened and being limited to only two peremptory strikes.
¶71. In an order entered in Kaler v. Ford Motor Company, No. C97-00737 (Calif. Superior
Ct. Oct. 1998), Ford was sanctioned for failure to comply with various discovery issues,
including failing to respond to interrogatories and objecting without valid reasons. In one
Maryland federal case, Samuel v. Ford Motor Company, No. WMN-96-2155 (S.D. Md.
June 1997), the court criticized the “unsatisfactory pace” of discovery, and noted that the
case was not ready for trial because “Ford has taken the attitude that it will not do anything
that it is not forced to do.” That order detailed at length Ford’s obstructionist behavior,
ultimately forcing Ford to immediately produce witnesses and documents it had withheld,
bear the costs of depositions, pay costs associated with the motion to compel, and refused to
allow any Ford employee or expert who was not timely produced from testifying. See also
Lasar v. Ford Motor Co., 399 F.3d 1101, 1104 (9th Cir. 2005) (affirming sanctions against
Ford for violating two pretrial in limine orders); Kent v. Ford Motor Co., 200 F. Supp. 2d
670, 672 (S.D. Miss. 2002) (plaintiffs were “entitled to attorneys’ fees and costs pursuant to”
both statute and Rule 11 of the Federal Rules for Ford’s improper removal of a case).
¶72. Ford as a corporation has demonstrated an institutionalized and knowing disregard for
the Rules of Civil Procedure, and specifically a hostility to the process of discovery. We
should be loathe to let parties abuse our judicial system and discovery process in this way.
As the Montana Supreme Court has explained, we should be mindful of “discovery abuse
pursuant to our concern over crowded dockets and the need to maintain fair and efficient
judicial administration of pending cases.” Richardson v. State, 130 P.3d 634, 647 (Mont.
33
2006) (internal quotations and citations omitted). I agree that “[l]itigants who are willful in
halting the discovery process act in opposition to the authority of the court and cause
impermissible prejudice to their opponents,” and “in this era of crowded dockets, that they
also deprive other litigants of an opportunity to use the courts as a serious dispute-settlement
mechanism.” Id.
¶73. Because Ford continues to disregard the rules and values of our judicial system, I must
respectfully dissent.
GRAVES, J., JOINS THIS OPINION.
34