A lengthy hearing was conducted on April 14, 2005.[1] Since then, as I requested during the hearing, defendants have provided me with additional information about the documents they maintain with regard to certain warranty claims.[2] Before issuing this Report and Recommendation, I have considered all of the documents, briefs, and arguments submitted to me by counsel for the parties.

I. PLAINTIFF'S OBJECTIONS TO MAGISTRATE JUDGE'S FEBRUARY 18, 2005 OPINION AND ORDER

On February 18, 2005, Magistrate Judge Komives issued an Opinion and Order, in which he denied plaintiff's motion to compel defendants to produce certain documents and answer certain interrogatories regarding warranty information and failure statistics. The essence of the current dispute between the parties is to what extent, if any, defendants should be required to provide plaintiff with additional documents regarding radiator warranty claims.[3]

Plaintiff alleges in this product liability action that he was burned when a radiator neck on a 1992 BMW 325 ruptured, causing plaintiff to be scalded with coolant fluid. Plaintiff claims that the radiator neck and/or end tank was defective, and that defendants are liable for negligence, gross negligence, and breach of implied warranty.

Plaintiff seeks information regarding radiator warranty claims from 1987 until the present in all BMW vehicles with radiators that are substantially similar to the one in the subject vehicle. There is no doubt that such information is relevant or reasonably calculated to lead to the discovery of admissible evidence. The information is probative of both the existence of a product defect and defendants' knowledge of the alleged defect. Moreover, defendants have contended in discovery that only a tiny percentage of their vehicles with radiators substantially similar to the subject vehicle have experienced failures of the kind alleged by plaintiff; plaintiff is entitled to test the basis for and accuracy of that contention.

*2 Although plaintiff's discovery requests seek relevant information, even plaintiff would concede that the requests are overly broad. Only information pertaining to radiator neck and/or end tank failures substantially similar to the failure which allegedly occurred in the subject vehicle may ultimately prove to be admissible.

In responding to plaintiff's discovery requests, defendants have contended in part that information limited to substantially similar alleged failures is not reasonably accessible. Defendants state that they have received many thousands of warranty claims that are coded to show radiator leaks in the vehicles in question, but that the claims are not coded so as to be specific about the type of leak. Defendants point out that there are many possible causes of radiator leaks other than a defect in the neck or end tank, including fan malfunction, plugged radiator, water pump malfunction, collision, improper coolant mixture, and misuse.

At least since 1992, warranty claim forms have been submitted to defendants by their dealers electronically. Although the warranty claim forms involving radiator warranty leaks are not specifically coded to show the type of radiator leak, the forms do contain a section for dealer comments. In any particular instance, that section of the form may or may not be completed and, if completed, the dealer comments may or may not contain specific information about the nature of the leak.

Thus, it is highly likely that some of the radiator warranty claim forms contain relevant information, while many others do not. The forms, however, are not text-searchable. In other words, it is impossible to determine electronically which forms contain relevant information and which do not. The only way to make that determination is to review the forms manually.

Since 1992, approximately 60,000 leaking radiator warranty claims have been submitted to BMW NA and BMW AG for the E34 (5 series) and E36 (3 series) vehicle models.[4] There is no dispute between the parties that the radiators in those vehicles are substantially similar to the one in the subject vehicle.

Obviously, it would be a considerable burden to review each of those warranty claim forms (some of which are filled out in languages other than English) to determine which of them, if any, reveal radiator failures that are comparable to the one alleged in this case. Plaintiff, however, is willing to undertake that task if only the forms can be produced. Given the way defendants keep their records, manually reviewing all of the claim forms is the only way to cull from them information which may be highly relevant. If plaintiff is willing to assume that burden, it seems to me that he should be allowed to do so. The burden on defendants of producing the forms for plaintiff to review is relatively light, and in my opinion is not an undue burden in light of the potential importance of the information contained in the forms.

Accordingly, I recommend that defendants be required to produce all leaking radiator warranty claim forms since 1992 for E34 and E36 model vehicles, and that in all other respects plaintiff's objections to the Magistrate Judge's February 18, 2005 Opinion and Order be denied. If possible, the warranty claim forms should be produced on CD in any standard readable and printable format (i.e., Word, WordPerfect, Excel, or the like). If hard copies of the forms must be produced, then plaintiff should bear the copying expense.

II. PLAINTIFF'S 10TH MOTION TO COMPEL DISCOVERY[5]

*3 In this motion, plaintiff seeks to compel defendants to produce the following seven categories of documents:

Defendants have agreed to produce the documents requested in the seventh of these categories. With regard to the other six categories, it is my opinion that the documents requested will have little or no probative value if the radiator warranty claim forms which I discussed above are produced instead. To the extent that the first six categories of documents sought by this motion would have any independent probative value, that value would be outweighed by the burden of compiling and producing the documents.

According, I recommend that plaintiff's 10th Motion to Compel Discovery be denied.

III. PLAINTIFF'S 11TH MOTION TO COMPEL PRODUCTION OF DOCUMENTS

In December 2004, plaintiff served subpoenas on all BMW dealerships in the United States, seeking documents pertaining to certain radiator neck and radiator end tank failures, ruptures, and cracks. After the subpoenas were served, BMW NA set up an e-mail address, croskeysubpoena@bmwna.com, on its company website. Plaintiff thereafter served requests for production on defendants, asking them to produce any written communications with their dealers concerning plaintiff William Croskey.

Defendants objected to producing such documents on the grounds that the requests are cumulative, the documents are privileged, and the documents are irrelevant. Plaintiff filed the instant motion to compel defendants to produce the documents in question. In my opinion, defendants' objections are not well taken.

First, if plaintiff were seeking communications between BMW NA and BMW AG, then the requests would be cumulative, but that is not what plaintiff wants. Plaintiff seeks documents reflecting or relating to communications between defendants and their dealers about Mr. Croskey.

Second, as a general matter the documents will not be privileged; they will neither reflect attorney-client communications nor constitute attorney work product. To the extent that a particular responsive document is in fact privileged, then of course it may properly be withheld from production and appropriately identified as having been withheld.

Third, it seems to me that the requests for production are reasonably calculated to lead to the discovery of admissible evidence. Surely much of what was said by defendants and their dealers in their e-mails or other written communications about Mr. Croskey, while it may be interesting to plaintiff's counsel, will have no probative value in the underlying lawsuit. It is likely, however, that there will also be relevant statements either about the alleged radiator defects or about which documents should be produced in response to plaintiff's subpoenas. Plaintiff should be allowed to examine the documents to determine whether they contain any such relevant statements.

*4 Accordingly, I recommend that plaintiff's 11th Motion to Compel Production of Documents be granted.

IV. DEFENDANTS' OBJECTIONS TO MAGISTRATE JUDGE'S FEBRUARY 14, 2005 OPINION AND ORDER

On February 14, 2005, Magistrate Judge Komives issued a Memorandum Opinion and Order Deeming Moot In Part, Granting in Part, and Denying in Part BMW's Emergency Motion to, Inter Alia, Permit BMW's Counsel to Meet Ex Parte with Plaintiff's Treating Physicians. Defendants have objected to that Opinion and Order. The primary issue raised by their objections is whether the Health Insurance Portability and Accountability Act of 1996 (HIPAA) and the regulations promulgated thereunder preempt Michigan law regarding the applicability of the physician-patient privilege when personal injury claims are asserted in court.

Plaintiff has argued that this is a pure legal issue, that it is inappropriate for a master appointed under Rule 53(a) to issue a recommendation regarding this issue, and that I should refrain from doing so. I agree. I will leave this issue for the Court.

/s/ ______________________________

S. Thomas Wienner Master

No record was made of the hearing. In addition to the four matters which are the subject of this Report and Recommendation, the parties informally addressed at the hearing and have been able to resolve a number of other discovery disputes.

Such information has been given to me through e-mail communications from defendants' counsel, copies of all of which were sent to plaintiff's counsel as well. Plaintiff's counsel have commented on those e-mails in e-mails of their own, copies of which likewise were sent to defendants' counsel.

During the April 14, 2005 hearing, defendants agreed to produce certain additional documents regarding failure statistics. That issue appears to have been resolved.

See the May 12, 2005 e-mail from Jeffrey Gorcyca, one of defendants' lawyers, a copy of which is attached as Exhibit A. This information was not available to Magistrate Judge Komives when he issued his February 18, 2005 Opinion and Order.

Although this is the title of the instant motion, defendants deny that plaintiff actually had filed as many as nine previous motions to compel.