United States District Court, E.D. Michigan
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,
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
L. LUDINGTON UNITED STATES DISTRICT JUDGE.
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.
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
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.
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
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.
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.
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 ...