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Counts v. General Motors LLC

United States District Court, E.D. Michigan

October 21, 2019

JASON COUNTS, DONALD KLEIN, OSCAR ZAMORA, DEREK LONG, BASSAM HIRMIZ, JASON SILVEUS, JOHN MISKELLY, THOMAS HAYDUK, CHRISTOPHER HEMBERGER, and JOSHUA RODRIGUEZ, individually and on behalf of themselves and all others similarly situated, Plaintiffs,
v.
GENERAL MOTORS LLC, ROBERT BOSCH GMBH, and ROBERT BOSCH LLC, Defendants.

          Patricia T. Morris Magistrate Judge.

          ORDER GRANTING DEFENDANTS' MOTION TO COMPEL NAMED PLAINTIFF DEREK LONG'S VEHICLE INSPECTION

          THOMAS L. LUDINGTON UNITED STATES DISTRICT JUDGE.

         On July 7, 2016, Plaintiffs filed a complaint against General Motors LLC, Robert Bosch GmbH, and Robert Bosch, LLC (“Defendants”) alleging violations of multiple state fraud and breach of contract statutes. ECF No. 1. The current motion at hand is Defendants' Motion to Compel Named Plaintiff Derek Long's vehicle for an inspection. ECF No. 198.

         I.

         In the complaint, Plaintiffs alleged they paid up to a $2, 400 premium for a diesel Chevrolet Cruze versus a similar gasoline powered vehicle. ECF No. 1 at PageID.59. Mr. Derek Long, a lead Plaintiff, admitted in his response to GM's interrogatories and in his deposition that he installed a “tuner” on his Chevrolet Cruze. ECF No. 219 at PageID.14311. In his response to interrogatories, Mr. Long wrote “I purchased and installed an ECM program and [Diesel Particulate Filter] delete pipe from Ox Tuners. Before removing the DPF, I have used my Snap-On scan tool to clear check engine lights related to failed regenerations. I have also used the tool to force manual regeneration cycles.” ECF No. 198-4 at PageID.13741. During his deposition, Mr. Long explained a DPF pipe is “a pipe that deleted the actual diesel particulate filter” but claimed he was not aware at the time that the pipe “disables or limits the vehicle's emissions control system.” Id. Mr. Long “purchase[d] the ECM [and] DPF kits in an effort to increase [his] vehicle's gas mileage” and to fix a regeneration issue with his engine. Id. at PageID.13741-13742. Mr. Long maintains he was unaware at the time that his modifications affected the emissions output of his vehicle and stated he did not investigate if they would affect the emissions control system in his vehicle. Id. Further, Mr. Long testified that he spent over $1000 on the ECM tuner and $274 on the DPF delete pipe. Id. at PageID. 13742.

         The parties agree that tuners “enable their users to . . . completely override the vehicle's emissions control software to enhance power, increase fuel economy and degrade or override emissions controls.” ECF No. 198 at PageID.13703. As a result, Defendants requested an inspection of Mr. Long's vehicle in May 2019, but Plaintiffs objected to the request. ECF No. 198-13 (Defendants' service of request for inspection of vehicle); ECF No. 198-17 (Plaintiffs' objection to the inspection); ECF Nos. 198-14, 198-15, 198-18, 198-200 (email conversations between parties). On July 30, 2019, after extensive discussions with Plaintiffs, Defendant, GM, filed a motion to compel named Plaintiff's, Derek Long, vehicle for inspection. ECF No. 198, ECF No. 219-3. Defendant, Robert Bosch, LLC, joined GM's motion to compel. ECF No. 199. Discovery closed on July 31, 2019 (ECF No. 166) and dispositive motions are due on January 10, 2020 (ECF No. 284). After Defendants and Plaintiffs narrowed the remaining issues before this Court on the motion to compel, the only question that remains is whether the inspection is necessary and if so, the limits on the inspection that will be outlined in the inspection protocol. ECF Nos. 219, 219-3, and 229.

         II.

         Parties are permitted under Federal Rule of Civil Procedure 37 to move for an order compelling disclosure or discovery. Fed.R.Civ.P. 37(a)(1) (“On notice to other parties and all affected persons, a party may move for an order compelling disclosure or discovery. The motion must include a certification that the movant has in good faith conferred or attempted to confer with the person or party failing to make disclosure or discovery in an effort to obtain it without court action.)”. “The Federal Rules of Civil Procedure are in place to facilitate discovery of all relevant evidence. Rule 26 authorizes a broad scope of discovery, provided the material sought has some probative value in proving or disproving a claim or defense.” Gamby v. First Nat'l Bank of Omaha, 2009 WL 963116 (E.D. Mich. Apr.8, 2009) (citing Fed.R.Civ.P. 26(b)(1)). FRCP 26 states that

[p]arties may obtain discovery regarding any nonprivileged matter that is relevant to any party's claim or defense and proportional to the needs of the case, considering the importance of the issues at stake in the action, the amount in controversy, the parties' relative access to relevant information, the parties' resources, the importance of the discovery in resolving the issues, and whether the burden or expense of the proposed discovery outweighs its likely benefit.

         III.

         Defendants argue that inspection is necessary to determine “precisely what this tuner was (and whether there have been other modifications), and [claim they are] entitled to present evidence of how the device worked and what impact it had on the vehicle's emissions.” ECF No. 229 at PageID.15107-15108 (emphasis omitted). Plaintiffs claim that Mr. Long responded to these questions during his deposition, namely that tuners affect emission systems in vehicles and that the tuner likely operated in the same fashion on Mr. Long's vehicle. ECF No. 219 at PageID.14316.

         Applying the FRCP 26(b) factors to the case at hand, Plaintiffs and Defendants have resolved the concerns regarding inconvenience to Mr. Long by ensuring Mr. Long has a loaner vehicle to use and Defendants willingness to let Mr. Long select the dealership for the inspection, thereby limiting the burden on Mr. Long. Other factors, the amount in controversy in this case and the importance of the issues at stake, support allowing the inspection in order to fully develop the facts of the case and the legal record. As such, the parties' access to information factor weighs in favor of allowing the inspection. Defendants do not have access to information about the specifics of the modifications Mr. Long made to his vehicle because Mr. Long admits he did the modifications himself and that his vehicle has not been emissions tested after he added the tuner. The parties' resources and the burden to the party being inspected also weigh in favor of inspection. The overall burden to Mr. Long is low and Defendants have no other means to obtain this information without an inspection.

         The last two factors - the relevance of the information to be learned and the importance of the discovery material in the case also favor an inspection. Plaintiffs assert Defendants created a cheat device that increases emissions when the vehicle is not being tested. ECF No. 94 at PageID.6192-6198. Plaintiffs also state they paid up to $2, 400 more for a clean diesel Chevrolet Cruze compared to a similar vehicle because of the reduced emissions. ECF No. 1 at PageID.59. When the Court denied Bosch's Motion to Dismiss, it recognized the potential economic harm if Plaintiffs paid up to an extra $2400 for the vehicle because of the expected environmental benefits but received a vehicle that did not have reduced emissions. ECF No. 122 at PageID.8298-8299. However, Mr. Long admitted he paid over $1200 to purchase a tuner in an effort to supposedly increase his gas mileage. Despite the warnings on the tuner's website and Mr. Long's history of doing his own mechanical work on his vehicle, Mr. Long stated he was unaware that the tuner would change his emissions. Therefore, there is an open question of whether Mr. Long has a claim against ...


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