IN THE UNITED STATES DISTRICT COURT FOR THESOUTHERN DISTRICT OF INDIANA

INDIANAPOLIS DIVISION

)In re BRIDGESTONE/FIRESTONE, INC. )ATX, ATX II, AND WILDERNESS TIRES ) Master File No. IP 00-9373-C-B/S

) PRODUCTS LIABILITY) LITIGATION

) MDL No. 1373THIS DOCUMENT RELATES TO ALL ) Hon. Sarah Evans BarkerACTIONS )__________________________________________)

FORD MOTOR COMPANY’S OPPOSITION TOBRIDGESTONE/FIRESTONE, INC.’S MOTION TO COMPEL

Defendant Ford Motor Company (“Ford”), states as follows in opposition to

Bridgestone/Firestone, Inc.’s (“Firestone”) Motion To Compel Ford Motor Company To Produce

Documents In Response To Firestone’s First Set Of Requests For Production Of Documents And

Things (“Requests” or “Firestone’s Requests”).

INTRODUCTION

Firestone’s Motion to Compel is misplaced and unavailing. As set forth in detail below,

Firestone’s Requests are in large part grossly overbroad, unduly burdensome, redundant,

duplicative of prior requests propounded by other parties, and are not reasonably calculated to

lead to the discovery of admissible evidence. Firestone alone has propounded 184 requests on

Ford, not including subparts, in addition to the more than 500 requests propounded by Plaintiffs.

In response, Ford has, at phenomenal expense and effort and in full compliance with the Federal

Rules of Civil Procedure, searched for and produced millions of pages of responsive documents.

In Request No. 2, by way of example, Firestone seeks all documents “constituting,

embodying, reflecting, analyzing, discussing, transmitting, transcribing, summarizing, or any

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way relating to . . . the design and development of the Ford Explorer.”1 Firestone’s request

lacks any reasonable limitation. It seeks documents relating to the design and development of

every feature and component of the Explorer, from the engine and powertrain to the seats,

restraints, glazing, sound system, and heating and air conditioning system.

Moreover, Firestone does not limit its overbroad requests to the Explorer, or even to Ford

sports utility vehicles in general. In Request No. 117, Firestone seeks all documents constituting

or relating in any way to “any engineering analysis of any sort regarding vehicle handling,

stability, ride or control, or biomechanics during or following a tread/belt separation or other tire

failure.” Like Request No. 2, Request No. 117 lacks any reasonable limitation. It seeks

documents relating to all vehicles of every make, model and vintage, and engineering analyses of

any sort relating to any and all tire failures regardless of failure mode, the type of tire, or the

manufacturer of the tire.

Despite the breadth of Firestone’s requests, Ford has made every reasonable effort to

identify responsive documents within the scope of the matters at issue in this litigation. Ford

has also invited Firestone to meet and confer in order to formulate reasonable and mutually

acceptable scopes for many of the Firestone requests at issue in Firestone's motion. See, e.g.,

Ford’s Responses to Requests Nos. 5, 10, 13, 39, 43-45, 47, 49-51, 55-58, 60, 76, 77, 85, 86, 93-

95, 98, 100, 101, 112, 117, 119, 120 (Firestone Memorandum in Support, Tab 3). While the

parties conferred on some issues after Ford served its objections to Firestone’s discovery on

August 6, 2001, many of the particular requests at issue here were not addressed. Moreover,

despite Ford’s invitation, the parties have not met on these requests at all since Ford filed its

substantive responses to Firestone’s discovery on September 5, 2001. Contrary to the

1While Firestone Request No. 2 is not at issue in Firestone's motion, it is indicative of the over breadth of all therequests that follow, and aptly illustrates what Ford had to contend with in responding to the Firestone Requests.

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requirements of this Court’s Case Management Order and Local Rule 37.1, Firestone filed its

motion to compel without first meeting with Ford in an effort to narrow the issues in

controversy.

Firestone’s primary complaint concerns Ford’s production of documents in an electronic

depository accessible via the internet on the forddocs.com website. Ignoring the website’s

sophisticated search features and the production of documents by category in the depository,

Firestone refers to the depository as a “classic data dump” and an “undifferentiated mass of

records.” Firestone Memorandum in Support, p. 19. Tellingly, despite its complaints, Firestone

has requested forddocs.com passwords for several individuals, and apparently is making good

use of the system.

Firestone seeks to compel responses to 54 document requests and 4 requests for

production of things. In each instance, Ford’s objections and responses comply fully with the

Federal Rules of Civil Procedure. Nevertheless, in light of the Firestone's narrowing of certain

requests in its brief, and in an effort to resolve this matter short of court intervention, Ford will

voluntarily supplement its initial response by October 19, 2001 and further identify by Bates

range specific documents responsive to many of the requests at issue.

The Firestone Requests at issue here are overbroad, redundant, unduly burdensome, and

seek a wide range of material that is not relevant to this case and not likely to lead to the

discovery of admissible evidence. Nevertheless, Ford has responded to the Firestone Requests in

good faith and provided Firestone the documents it seeks within the bounds of relevancy. Under

any measure, Ford has met its discovery obligations to Firestone, and Firestone’s motion should

be denied.

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ARGUMENT

I. The Requirements Of Federal Rule Of Civil Procedure 26

Rule 26 requires parties to litigation to make reasonable responses to discovery requests.

See, e.g., Fed. R. Civ. P. 26(g) (requiring an attorney to make a reasonable inquiry to ensure that

a party has reasonably responded to discovery). Reasonableness, by definition, is case-specific,

and turns on the scope of the matters in dispute among the parties, the need for the discovery at

issue, the unique circumstances of the case and the parties, and the burden or expense of the

proposed discovery. See Tec-Air, Inc. v. Nippondenso Mfg. USA, Inc., No. 91 C 4488, 1994

U.S. Dist. LEXIS 2026 at *26-27 (N.D. Ill. Feb. 23, 1994) (“What ultimately constitutes

reasonableness depends on the circumstances of each case.”); Poole ex rel. Elliott v. Textron,

Inc., 192 F.R.D. 494, 503 (D. Md. 2000) (same); IBP, Inc. v. Mercantile Bank of Topeka, 179

F.R.D. 316, 320 (D. Kan. 1998) (“The interrogatories and responses call for a balance between

the need for fair access to material information and the burden of producing it. [Rule 26(b)]

authorizes liberal discovery within reasonable bounds determined by judicial discretion.”).

Under Rule 26(b)(2), the Court may, in response to a motion for a protective order or on

its own initiative, “limit discovery if it determines that (1) the discovery sought is unreasonably

cumulative or duplicative, or is obtainable from some other source that is more convenient, less

burdensome, or less expensive . . . or (2) the burden or expense of the proposed discovery

outweighs its likely benefit, taking into account the needs of the case, the amount in controversy,

the parties’ resources, the importance of the litigation, and the importance of the proposed

discovery in resolving the issues.” While Ford has not sought a protective order in response to

the Firestone Requests, Ford has interposed objections to Firestone’s over broad, duplicative and

redundant discovery, and Rule 26(b)(2) is an important guidepost by which to measure the

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propriety of the Firestone Requests. See Fed. R. Civ. P. 26(b)(2) Advisory Committee Notes

(2001) (emphasizing the desirability of courts more vigorously applying the Rule 26(b)(2) cost-

benefit factors when determining allowable discovery).

It is Firestone’s burden to prove that the documents it seeks are relevant. Salvatorie

Studios, Int’l. v. Mako’s, Inc., No. 01 Civ. 4430 (BSF)(DF), 2001 U.S. Dist. LEXIS 11729

(S.D.N.Y. Aug. 13, 2001) (citation omitted). Under Rule 26(b)(1), Ford can withhold irrelevant

documents from production. In re: Vitamin Antitrust Litig., Misc. No. 99-197 (TFH), MDL No.

1285, 2001 U.S. Dist. LEXIS 11536, at *37 (D.D.C. Apr. 23, 2001) (citations omitted). “While

the Supreme Court has mandated [under the former Rule] that Fed. R. Civ. P. 26(b)(1) be

construed broadly, courts should not allow parties to “roam in the shadow zones of relevancy and

to explore matter which does not presently appear germane on the theory that it might

conceivably become so.” Spina v. Our Lady of Mercy Med. Ctr., No. 97 CIV 4661 (RCC), 2001

U.S. Dist. LEXIS 7338 (S.D.N.Y. June 6, 2001) (citations omitted).

As noted by Firestone, effective December 1, 2000, Rule 26(b) (1) was amended to limit

the scope of discovery to matters related to “the claim or defense of any party.” Firestone

Memorandum in Support, p. 7, n. 5. Contrary to Firestone’s suggestion, however, the purpose

and effect of the amendment was to narrow the scope of discovery “in some meaningful way”

and to involve the court more actively “in regulating the breadth of sweeping or contentious

discovery.” Fed. R. Civ. P. 26(b)(1) Advisory Committee Notes; Surles v. Air France, No. 00

Civ. 5004 (RMB)(FM), 2001 U.S. Dist. LEXIS 15315, at *4 n.3 (S.D.N.Y. Sept. 27, 2001).

Applying the clear dictates of Rule 26, Firestone’s motion should be denied.

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II. The Firestone Requests Are Overbroad, Unduly Burdensome And NotReasonably Calculated To Lead To The Discovery Of Admissible Evidence

Most of the document requests at issue in Firestone’s motion are overbroad and seek

documents that are neither relevant nor reasonably calculated to lead to the discovery of

admissible evidence. Many of the requests at issue seek documents relating to the design,

development and performance of all light trucks and sport utility vehicles produced since 1980,

regardless of manufacturer. See, e.g., Request Nos. 32, 33, 34, 42, 44, 45, 47, 49, 50, 107, 109,

111, 117. Others seek production of documents relating to all tire failures, regardless of the type

or size of tire, the identity of the tire manufacturer, or the alleged failure mode. See, e.g.,

Request Nos. 44, 45, 47, 49, 50, 105, 106, 107, 109, 111, 112, 114, 115, 117, 120, 122. Nearly

all the requests, in whole or in part, seek the production of documents and information wholly

unrelated to the tire performance and vehicle handling issues raised in this litigation.

In Request No. 50, for example, Firestone seeks all documents constituting or relating in

any way to “any communication or meeting between Ford and any person regarding (1) the

failure of any tire on any SUV or LT produced since 1980 or (2) the stability, control, handling

or emergency maneuver characteristics of any SUV or LT produced since 1980.” Request No.

50 seeks documents relating to any and all handling characteristics on all sports utility vehicles

and pickup trucks, regardless of manufacturer, produced since 1980, as well as documents

relating to the failure of any tire, without regard to the manufacturer of the tire, the size of the

tire, the type of tire, or the failure mode.

Read literally, Request No. 50 would require Ford to produce documentation of a

hypothetical customer complaint made in 1980 that the Goodyear snow tires on her new Ford F-

150 pickup truck repeatedly went flat. Read literally, it would further require Ford to produce

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documentation of a hypothetical inquiry from NHTSA concerning the handling characteristics of

compact pickup trucks when towing campers.

Ford, and presumably Firestone, would agree that this is not what Firestone actually

intended. The problem, however, is defining an appropriate limitation under these circumstances

on the scope of Firestone’s Requests. Ford cannot be required to guess Firestone’s desires and

thereby risk either producing too much information – only to be accused of “dumping” – or

produce too little – only to be accused of withholding important information.

As noted by Firestone, “evidence regarding other incidents of the same type, or involving

the same product, are properly discoverable” under Rule 26. Firestone Memorandum in Support,

p. 10 (citing Fed. R. Civ. P. 26(b)(1) Advisory Committee Note; and Anderson v. Hale, No. 00C

2021, 2001 WL 64113 at * 2 (N.D.Ill. June 1, 2001)). Ford agrees. Discovery in automotive

product liability actions is routinely limited in scope to substantially similar vehicles and

accident circumstances.

In Piacenti v. General Motors Corp., 173 F.R.D. 221, 225 (N.D. Ill. 1997), an action

involving a 1991 Geo Tracker, the court upheld General Motors’ objections to plaintiffs’

discovery requests regarding the Suzuki Samurai on the ground that the two vehicle models are

dissimilar and that the plaintiffs’ discovery requests were thus unduly burdensome and sought

information that was neither relevant nor reasonably calculated to lead to the discovery of

admissible evidence. The court noted that “[t]he legal tenet that relevancy in the discovery

context is broader than in the context of admissibility should not be misapplied so as to allow

fishing expeditions in discovery.” Id. at 224 (citing Hofer v. Mack Trucks, Inc., 981 F.2d 377,

380 (8th Cir. 1992)). “Allowing discovery of models that are not substantially similar to the

model at issue is truly the equivalent of comparing apples and oranges where there are

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differences between the other models and the model at issue.” Id. at 225; see also Uitts v.

General Motors Corp., 62 F.R.D. 560, 562 (E.D. Pa. 1974) (in a handling case involving a

Chevrolet Blazer, court limited discovery to the Blazer model at issue and declined to order

production of information on dissimilar vehicles with dissimilar parts).2

This case involves tread/belt separation failures of Firestone P235/75R15 ATX and

Wilderness AT tires on Ford Explorers. Ford agrees that the performance of the same or

substantially similar tires on other sports utility vehicles and the performance of other

manufacturers’ tires on the Explorer may be relevant to show that it was the design and

manufacture of the subject Firestone ATX and AT tires, as opposed to the Explorer, that led to

the failure of the Firestone tires. Ford has produced responsive documents pertaining to this

issue. This does not open the door, however, to unfettered discovery regarding the handling

characteristics of all sports utility vehicles and light trucks produced since 1980 or the

performance of all tires of all types installed on such vehicles. Firestone’s requests are grossly

overbroad and improper.

Tellingly, Firestone has withdrawn its request for documents relating to the Ford Ranger.

Firestone Memorandum in Support, p. 1. Presumably, by extension, Firestone is withdrawing its

requests for documents relating to other Ford pickup trucks, vans, and other vehicles that might

2 Although Uitts was distinguished by Swain v. General Motors Corp., 81 F.R.D. 698 (W.D. Pa. 1979), federalcourts since Swain have not hesitated to cite Uitts with approval when limiting discovery in products liability cases.See, e.g., Hofer, 981 F.2d at 381 (citing Uitts and denying discovery on other truck models so “sufficientlydissimilar in design [from the model being litigated] that a burdensome production of documents regarding thedesign minutiae of those earlier models would not have yielded information which would have supported[plaintiff’s] claim that the model . . . truck cab was defective”); Fine v. Facet Aerospace Prods. Co., 133 F.R.D. 439,442 (S.D.N.Y. 1990) (citing Uitts for the proposition that “where there has been no suggestion that other modelsshare pertinent characteristics with the products at issue, discovery relating to those models will be disallowed” anddenying discovery because plaintiff failed to make threshold showing that the other designs were relevant); In re:Richardson-Merrell, Inc. “Bendectin” Prods. Liab. Litig., 624 F. Supp. 1212, 1241 (S.D. Ohio 1985) (relying onUitts to refuse discovery because “not confining discovery to Bendectin and its components alone or in combinationwith other components would have necessarily opened all of defendant’s drugs to discovery – a result that would betruly oppressive and would thwart any attempt at a just, speedy, or inexpensive determination of the action”).

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be classified as light trucks.3 Firestone improperly insists, however, on obtaining all documents

relating to the Ford Bronco II. Firestone Memorandum in Support, p. 8.

The Ford Bronco II was introduced in 1984 and has been out of production since 1990.

The Explorer was first introduced in 1990. The design and development of the Bronco II

predates the design and the development of the Explorer by several years, and the Bronco II

program is wholly irrelevant to the issues raised in this litigation. While there may be several

isolated instances where a Ford employee referred to the Explorer as an “updated” version of the

Bronco II, see Firestone Memorandum in Support at 8, n. 6, the Bronco II and the Explorer are

different vehicles that were separately developed with different designs and features.

Notably, Firestone has been involved as Ford’s co-defendant in litigation involving the

Bronco II. Firestone is familiar with the design and performance of the Bronco II. Moreover,

Ford has produced in this case a voluminous set of indexed documents relating to the design,

development and performance of the Bronco II. Ford has fully met its discovery obligations with

respect to the Bronco II.4

As yet another example of the overbreadth of Firestone’s discovery, Request No. 8,

which incorporates Request Nos. 6 and 7, including 23 subparts in Request No. 6, seeks all

documents referring to or relating in any way to

The identity, professional background, opinions, bases foropinions, reports, communications, and testimony of any personwho served as or was named as an expert or consultant, or whotestified regarding vehicle stability, ride, handling, rollover, loss ofcontrol, or emergency maneuvering in or concerning anycomplaint/claim/lawsuit or customer contact [involving anyallegation, contention or assertion that any Ford Explorer went outof control wholly or partly because of some inappropriate or

3 Firestone declines to define “light truck.” As defined by Ford, the light truck category includes the Ford F-series,Ranger, Bronco, Bronco II, Aerostar, E-Series, Explorer, Expedition, and Windstar.4 See Ford’s responses to Request Nos. 17, 18, 24, and 25 relating to the Bronco II.

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defective aspect of the vehicle or that any Ford Explorer isdefective in any manner because of its (a) actual or allegedpropensity to rollover, (b) actual or alleged lack of understeer, (c)actual or alleged lack of linear control . . . (d) handlingcharacteristics, (e) stability characteristics, . . (h) steeringcharacteristics, (i) turning characteristics, . . . (r) wheels or anyelement thereof, (s) suspension system or any element thereof . . .(v) anti-lock braking [and] (w) shielding or protection againstdamage from objects, including parts of tires, striking any part ofthe underside of the vehicle.]

Firestone’s request, read literally, seeks extensive documentation relating to any Ford

expert or non-testifying consultant, any plaintiff’s expert or non-testifying consultant, any co-

defendant expert or non-testifying consultant, any Ford, Firestone or other co-defendant

employee, any plaintiff, or any other lay witness who gave any opinion testimony about vehicle

stability, ride, handling, and other issues in any case involving the Explorer from 1990 to the

present. Such a request is patently overbroad and seeks information about non-testifying

consultants that is protected from disclosure when, as here, Firestone has made no attempt to

meet the “heavy burden”5 of demonstrating “exceptional circumstances” under Fed. R. Civ. P.

26(b)(4)(B).6 Braun v. Lorillard Inc., 84 F.3d 230, 235-36 (7th Cir.), cert. denied, 519 U.S. 992

(1996); Ager v. Jane C. Stormont Hosp. and Training Sch. for Nurses, 622 F.2d 496, 502 (10th

Cir. 1980) (noting that this rule “was largely developed around the doctrine of unfairness

5 Kiser v. General Motors Corp., Civil Action No: 98-3669 Section: “L”(3), 2000 U.S. Dist. LEXIS 10479, at *9(E.D. La. July 19, 2000); State Auto Ins. Cos. v. Briley, 140 F.R.D. 394, 397 (E.D. Mo. 1992) (citing Kuster v.Harner, 109 F.R.D. 372, 375 (D. Minn. 1986)).6 See also Pickett v. IBP, Inc., Civil No. 96-A-1103-N, 2000 U.S. Dist. LEXIS 19500, at *9-*10 (M.D. Ala. Oct. 16,2000) (noting four reasons why information from non-testifying consultants should be protected – “(1) an ‘importantinterest in allowing counsel to obtain the expert advice they need in order properly to evaluate and present theirclients’ position without fear that every consultation with an expert may yield grist for the adversary’s mill,’ . . . (2)unfairness of allowing an opposing party to benefit from a party’s effort and expense incurred in preparing its case;(3) fear of restraint on the willingness of experts to serve as consultants if their testimony could be compelled; and(4) the substantial risk of ‘explosive’ prejudice stemming from the fact of the prior retention of an expert by theopposing party”) (citation omitted). As discussed supra , the 2000 Amendment narrowing the scope of discoveryunder Rule 26(b)(1) reinforces these critical substantive protections.

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designed to prevent a party from building his own case by means of his opponent’s financial

resources, superior diligence and more aggressive preparation”).

Firestone’s Request No. 35 seeks all documents constituting or relating in any way to

“any subjective test and the results thereof for the Ford Explorer, Ford Bronco II and/or Ford

Ranger.” On its face, this request calls for any and all documents relating to any subjective

analysis of the Explorer, and would include such matters as ride comfort and roominess, the

accessibility and ease of use of the dashboard controls, and interior noise levels. In its brief,

Firestone recasts this request to call for “documentation of a test drivers' subjective reaction to

driving one of these vehicles.” Firestone Memorandum in Support, p. 14, n.10. While this

somewhat narrows the request, the request even as redrawn still calls for documents having

nothing to do with handling and stability issues. Obviously, Ford should not have to learn of

Firestone’s actual intent through a motion to compel. Firestone should properly craft its requests

in the first instance to seek the documents it wants rather than leaving Ford to divine Firestone’s

intent. If there is to be a narrowing of Firestone’s requests, it should occur at the meet and

confer stage, and because of a motion to compel.

Ford stands on its objections to Firestone’s requests to the extent that these requests are

overbroad, unduly burdensome, and seek documents that are neither relevant nor reasonably

calculated to lead to the discovery of admissible evidence. Ford is prepared to defend its

objections to this Court or to meet and confer with Firestone in an effort to narrow the issues in

controversy concerning the breadth of Firestone’s requests. In either event, Firestone’s motion

should be denied.

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III. Firestone’s Requests Are Duplicative Of Other Discovery Previously ServedOn Ford

Most of the Firestone Requests, served on Ford on or about July 6, 2001, are duplicative

of requests served on Ford on or about June 13, 2001 in the consolidated Explorer/Firestone state

court litigation pending in Texas. See Texas Plaintiffs’ Supplemental Request For Production Of

Documents (“Texas Plaintiffs’ Requests”), attached as Exhibit 1. Firestone is a party to the

Texas litigation. Although the Texas Plaintiffs’ Requests were served on all counsel of record in

that proceeding, Firestone claims never to have seen the requests. Firestone Memorandum in

Support, pp. 3, n. 2, 19. However, as demonstrated by a quick comparison of Firestone Request

Nos. 1-6 to Texas Plaintiffs’ Request Nos. 139-144, the order and phraseology of the requests are

nearly identical.

Texas Plaintiffs’ Request No. 139 Firestone Request No. 1Documentation “of the creation ofthe initial idea and plan fordeveloping the Ford vehiclesoriginally denominated as UN46'sand later denominated as FordExplorers, and the goals sought tobe achieved in such development.”

All documents relating to “theinitial idea and plan for developingthe Ford Explorer and the goalssought to be achieved by itsdevelopment.”

Texas Plaintiffs’ Request No. 140 Firestone Request Nos. 2 and 3Documentation “of the design,development, and testing of FordExplorers as related to (1)prevention, or reduction in thelikelihood, or failure of any tire, (2)prevention of loss of control ordrivability following a tire failureor disablement while the vehicle isin motion, (3) directional stability,static or dynamic resistance torollover, and/or (5) (sic) vehiclehandling and control . . . .”

All documents relating to “thedesign or development of the FordExplorer . . .[and] any testing,analysis or review of the FordExplorer with respect to stability,ride, handling, rollover, loss ofcontrol, or emergency maneuvercharacteristics.”

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Texas Plaintiffs’ Request No. 141 Firestone Request No. 4Documentation of “the contributionor non-contribution to anyoccurrence of loss of control ofFord Explorers by (1) the inflationlevel of the vehicle's tires, (2) thesize of the vehicle's tires, (3) therolling resistance of the tires or anypermutation or combinationthereof, (4) the amount of surfacefriction of the roadway on whichthe vehicle is proceeding, (5) theweight of the vehicle, (6) theconfiguration or distribution of theweight of the vehicle . . . [and 23other factors].”

Documents relating to “the effector non-effect of any vehicle part[or] component . . . on thestability, ride, handling, rollover,loss of control or emergencymaneuver characteristics of theFord Explorer, including, but notlimited to: (a) the size, inflationlevel, or rolling resistance of thevehicle's tires, or any combinationor permutation thereof, (b) theamount of surface friction of theroadway on which the vehicle isproceeding, (c) the weight of thevehicle, (d) the configuration ordistribution of the weight of thevehicle . . . [and 18 other factors].”

Texas Plaintiffs’ Request No. 142 Firestone Request No. 5Documentation of “any occurrence,experienced or alleged to have beenexperienced at any time by anyone,of loss of control or drivability ofFord Explorers.”

Documents relating to “any actualor alleged occurrence of anyperson losing control of, or rollingover in, a Ford Explorer.”

Texas Plaintiffs’ Request No. 143 Firestone Request No. 6Documentation of“complaints/claims/lawsuitsinvolving allegations, contentions,assertions, or facts that any FordExplorer had or has inappropriateor defective (1) propensity to rollover or pitch over, (2) handlingcharacteristics, (3) stabilitycharacteristics, (4) controlcharacteristics . . .[ and 17 otherenumerated items].”

Documents relating to “anycomplaint/claim/lawsuit or othercustomer contact involving anyallegation, contention or assertionthat any Ford Explorer is defectivein any manner because of its: (a)actual or alleged propensity torollover, . . . (c) actual or allegedlack of linear control . . . (d)handling characteristics, (e)stability characteristics . . . [and 19other enumerated items].”

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The suggestion that Firestone drafted its requests without any reference to the Texas Plaintiffs’

Requests (or some other prior set of requests on which both drafters relied) is not credible.7

As set forth in Ford’s responses, certain of the Firestone Requests are also duplicative of

requests propounded by the MDL Plaintiffs. Firestone argues that Firestone Request No. 45,

among the requests at issue, is not duplicative of MDP Plaintiffs’ Request Nos. 72, 239, and 248.

Firestone Memorandum in Support, p. 17. To a degree, Firestone is correct. Firestone Request

No. 45 seeks documents relating, without limitation, to all tires on all sports utility vehicles and

light trucks produced since 1980. The MDL plaintiffs’ requests on the other hand are more

properly limited to Firestone ATX, ATXII and Wilderness AT tires.

In any event, despite the unnecessary burden resulting from the duplicative Firestone

Requests, Ford has nowhere refused to respond to the Requests on the grounds they are

duplicative. Indeed, the only direct mention of the Texas Plaintiffs’ Requests in Ford’s

discovery response to Firestone is in its General Objections. Now that this matter is before the

Court, however, it is appropriate for the Court to place limits on Firestone’s duplicative

discovery and require Firestone to acquire the documents it seeks in a manner that does impose

undue burden. To the extent Firestone already has documents in its possession from other

sources, including documents produced by Ford in the Texas state court litigation, Ford should

not have to reproduce those documents here.8 Fed. R. Civ. P. 26(b)(2)(i) (stating that discovery

7 Other Firestone Requests duplicative or substantially similar to the Texas Plaintiffs’ Requests are Request Nos. 7,10, 12, 15-21, 24, 26, 28-42, 44-50, 55-95, 97-132, and Request Nos. I, II, and IV-VI.

8 Firestone’s citation to Prins v. International Tel. and Tel. Corp., 757 F. Supp. 87 (D.D.C. 1991); Bonilla v. TrebolMotors Corp., Civil No. 92-1795 (JP), 1997 WL 178844 (D.P.R. Mar. 27, 1997), rev’d on other grounds sub nom.Bonilla v. Volvo Car Corp., 150 F.3d 88 (1st Cir. 1998); Burton Mech. Contractors, Inc. v. Foreman, 148 F.R.D.230 (N.D. Ind. 1992); and Wilk v. American Med. Ass’n, 635 F.2d 1295 (1980), does not change this conclusion. InPrins, because plaintiff had supplemented his discovery responses, one defendant was allowed additional discoveryto develop its own theories despite co-defendant’s agreement to produce documents it might use at trial. Prins, 757F. Supp. at 95. In Bonilla , production of documents already provided by another defendant was necessary becauseplaintiffs had to correlate documents between the two defendants to prove their case. Bonilla , 1997 WL 178844, at

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“shall be limited . . . if . . . [it] is unreasonably cumulative or duplicative, or is obtainable from

some other source that is more convenient, less burdensome, or less expensive”); Higgins v.

Higgins, Case No. 95 CV 4465, 1997 U.S. Dist. LEXIS 2305, at *8-*9 (N.D. Ill. Feb. 20, 1997)

(denying inter alia discovery of materials that “have been produced or answered by way of

affidavit . . . [and that] could be more easily obtained from other sources”); Maze v. Hargett, No.

4:94CV211-D-A, 1996 U.S. Dist. LEXIS 22375, at *6-*7 (N.D. Miss. Jan. 12, 1996) (denying

motion to compel when materials were already in movant’s possession).

IV. The Firestone Requests Are Confusing And Internally Redundant

Firestone takes pains to point out several drafting mistakes in Ford’s objections and

responses, perhaps to divert the Court’s attention from the substance of Firestone’s requests. The

Firestone Requests also contain drafting mistakes, and even a cursory review of the requests

illustrates that they are over broad, duplicative and redundant, confounding any effort by Ford to

provide neat and orderly responses.

By way of example, Request No. 3 seeks documents constituting, referring to or relating

in any way to “any testing, analysis, or review of the Ford Explorer with respect to stability, ride,

handling, rollover, loss of control, or emergency maneuver characteristics.” Presumably any

document referring to or analyzing the effect of the Explorer’s tires, wheels, suspension,

geometry, weight, and steering on its stability and handling would be responsive to this request,

and that is how it was understood by Ford. Yet in Request No. 4, Firestone seeks documents

constituting, referring to or relating in any way to

*10. Burton is distinguishable because the other party whose documents would potentially be produced had beenevading discovery – there is no evidence that this has occurred here. Burton, 148 F.R.D. at 234. Finally, the UnitedStates Court of Appeals for the Seventh Circuit in Wilk, like the MDL Panel “in litigation of this magnitude,” was“impressed with the wastefulness of requiring the State of New York to duplicate discovery already made.” Wilk,635 F.2d at 1299. It resolved the discovery dispute by modifying the protective order already in place. Id.

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the effect or non-effect of any vehicle part, component, system [or]subsystem . . . on the stability, ride, handling, rollover, loss ofcontrol or emergency maneuver characteristics of the FordExplorer, including [among 22 enumerated items] (a) the size,inflation level, or rolling resistance of the vehicle's tires, or anycombination or permutation thereof, . . . (c) the weight of thevehicle, . . . (g) the wheelbase or track width of the vehicle, . . . (i)the suspension system, or and [sic] element thereof, on the vehicle,(j) the steering system, or any element thereof, on the vehicle,[and] (t) the steering system, or any element thereof, on thevehicle.

Ignoring Firestone’s own drafting mistakes (e.g., repeating its reference to the steering

system), it is difficult for Ford to discern what documents would be covered by Request No. 4

that are not covered by Request No. 3. In the same vein, if “effect” is given its usual and

customary meaning, it is difficult for Ford to discern what Firestone intended by including the

term “non-effect” in its request.

In Requests Nos. 42, 43, 44, 51, 55, 56, 57, 58, 76, and 86, Firestone seeks documents

regarding Ford’s representations to NHTSA and Congress concerning the Firestone tire

controversy, including in particular Ford’s March 28, 2001 submission to NHTSA, and all

documents “regarding these representations, as well as documents regarding the meetings and

presentations at which these representations were made.” Firestone Memorandum in Support at

11. Of these requests, Request No. 42 seeks documents constituting or relating in any way to

“any communication between Ford and any state or federal legislative body or agency . . .

including but not limited to NHTSA and the Department of Transportation . . . .” This request

seemingly would cover documents relating to Ford's formal submissions to NHTSA, including

its March 28, 2001 submission. Yet in Request No. 55, Firestone separately seeks all documents

relating to “Ford’s March 28, 2001 NHTSA Submission, including, but not limited to its

creation, development, and presentation as well as the testing reported and representations made

17

in that submission.” Request No. 76 further requests all documents relating to the assertion in

Ford’s March 28, 2001 NHTSA Submission that “Explorers have a margin of safety ‘as

designed’ to accommodate, to a reasonable level, component failures including tread

separations,” and Request No. 86 requests all documents relating to the assertion in Ford’s

March 28, 2001 NHTSA Submission that “Absent unique factors, an Explorer will not be forced

out of control by vehicle factors before, at, or after tread separation.” As conceded by Firestone

in referencing these requests as a group in its brief, these requests are redundant.

In the same vein, while Request No. 42 also seemingly covers all of Ford’s presentations

to Congress concerning the Firestone tire controversy, Firestone separately requests all

documents relating to “the preparation of Ford officials for testimony before Congress on

September 6, 2000, September 12, 2000 and/or June 19, 2001.” See Request No. 43. Firestone

has also propounded a new set of 44 requests all relating to the June 19, 2001 testimony of

Ford’s President and CEO, Jacques Nasser, before Congress. See Bridgestone/Firestone, Inc.’s

Requests For Expedited Production By Ford Motor Company Of Documents Relating To The

June 19, 2001 Testimony Of Jacques Nasser Before Congress, attached as Exhibit 2. While it

may be appropriate to occasionally recast a document request to ensure a complete response,

Firestone’s repeated redundant requests are unduly burdensome and improper.

As with the duplicative Firestone Requests, Ford has nowhere refused to respond to the

Requests on the grounds they are redundant. Ford has properly, when responding to redundant

Firestone requests, incorporated its responses to other Firestone requests seeking the very same

documents. See 7 James Wm. Moore et al., Moore’s Federal Practice § 33.103 (3d ed. 1997)

(noting that it is appropriate when responding to interrogatories “to refer to answers of other

interrogatories or other discovery in order to avoid unnecessary repetition . . . .”); Loyd v. Rubin,

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Civil Action No. 3:96-CV-0010-D, 1999 U.S. Dist. LEXIS 19436, at *10 (N.D. Tex. Dec. 15,

1999) (denying motion to compel in part because answer cited other interrogatory responses and

was deemed complete); Tucker v. Janota, No. 75 C 2931, 1978 U.S. Dist. LEXIS 14603, at *5

(N.D. Ill. Nov. 1, 1978) (denying sanctions because it was proper “[i]n light of the extensive

document production . . . requested” to adopt previous responses when requests sought the same

information).

V. Ford Has Properly Responded To The Firestone Requests By ProducingDocuments In Electronic Format, By Designating Bates Ranges OfResponsive Documents Available To Firestone In Ford's ElectronicDepository, And By Incorporating Prior Responses To Redundant Requests

Firestone complains that Ford has failed to produce any responsive documents, with two

minor exceptions, other than what it has compiled and placed in its electronic depository.

Firestone Memorandum in Support, p. 6. While the electronic depository is the primary means

by which Ford has produced documents, Ford has produced numerous documents to plaintiffs

and Firestone in hard copy, including video tapes, schematic drawings, database runs, and

witness books.

Ford’s production of documents via an electronic depository is proper and appropriate.

See e.g., In re Diet Drugs (Phentermine, Fenfluramine, Dexfenfluramine) Prods. Liab. Litig.,

MDL Docket No. 1203, Civil Action No. 99-20593, 2000 U.S. LEXIS 12275 (E.D. Pa. Aug. 28,

2000) (settlement agreement and related documents made available online after production of

over 6,000,000 pages of documents at a document depository). 935 F. Supp. 1452 (D. Colo.

1996).

It is clear that voluntarily providing documents in a searchable database complies with

Rule 1’s overriding purpose of securing “the just, speedy, and inexpensive determination of

every action.” Wegner by Wegner v. Cliff Viesmman, Inc., 153 F.R.D. 154, 157 (N.D. Iowa

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1994) (observing that “the objectives of the discovery rules must be kept in mind so that a just

and speedy determination of cases can be obtained”); Manville Sales Corp. v. Paramount Sys.,

Inc., Civil Action No. 86-4157, 1987 U.S. Dist. LEXIS 11566, at *8 (E.D. Pa. Dec. 16, 1987)

(same); Snead v. American Export-Isbrandtsen Lines, Inc., 59 F.R.D. 148, 151 (E.D. Pa. 1973)

(same).

As the Court is aware, forddocs.com is not an “undifferentiated mass” of records On the

contrary, this method of production has been acceptable to the NHTSA, the U.S. Congress,

Texas CMO, California CMO and many individual cases. The reason for forddocs.com's

acceptance is its functionality. Assuming Ford had produced the current 3.9 million pages of

documents to plaintiffs or Firestone as kept in the normal course of business (or in a manner

similar to Firestone's dump), the documents would then have to be imaged, coded, reviewed, and

scanned by the plaintiffs and Firestone. Because of the unique circumstances of this case, Ford

has done all of these tasks and more. Ford has provided drop-down menus allowing users to

search within previous searches conducted for other litigation, or develop their own search

methods using the industry standard search engine, Alta Vista, and to produce the materials

automatically by either printing on their desktop or in bulk printing by paper or CD. Assuming,

then, there was no benefit to be gained by all of the functionality of the search engine or website,

it would still allow for a simple paper production of all documents should Firestone wish to

return to a pre-computerized method of discovery.

No method of production is perfect, particularly in a situation where Ford is being called

upon by Firestone and the other parties to produce millions of pages of documents. As set forth

above, Rule 26 requires Ford to undergo a reasonable effort to locate and produce documents

responsive to Firestone’s requests. The fact that one document may not turn up in a search on

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forddocs.com is not an indictment of the whole system. Indeed, it is likely that any production of

this magnitude, whether made in hard copy or electronically, some documents will be

inadvertently misplaced despite the best intentions and most conscientious efforts of all involved.

While Firestone has quoted from the Court’s March 15, 2001 Order concerning potential

shortcomings in forddocs.com, Firestone has failed to support any claim that Firestone has been

unable to locate the documents it needs to defend its interests in this case.

In its March 15, 2001 Order Regarding Document Production, the Court commended

Ford’s efforts in creating an electronic document repository. Recognizing the plaintiffs’ relative

lack of knowledge of Ford’s documents, however, the Court required Ford to respond to

plaintiffs’ requests by identifying documents by Bates number such that the documents can be

obtained from the depository without using the website’s search feature.

As stated in the Order, the Court was concerned about the plaintiffs’ potential lack of

knowledge of common engineering abbreviations and code words and their lack of familiarity

with Ford's organizational structure and how individual documents, authors or recipients are

related. These concerns do not apply to Firestone.

Firestone and Ford had a close working relationship for since 1903 and until this year,

Firestone was the primary supplier of OEM tires for Ford vehicles. Firestone is familiar with the

acronyms, codes, abbreviations, and buzzwords in the tire and automotive industries, and has

routinely interacted with the Ford engineers and departments responsible for tire selection and

acquisition. Firestone has been Ford’s co-defendant in a number of rollover and tire failure cases

involving a variety of Ford vehicles, and presumably is intimately familiar with the Ford

documents produced in those cases, as well as the testimony of Ford’s engineers and testifying

experts. Firestone has also presumably retained numerous experts and consultants in this

21

litigation who are familiar to varying degrees with Ford’s documents and the inner workings of

Ford vehicle design programs.

Firestone is a sophisticated party with substantial resources. Firestone is fully capable of

identifying and locating any document it may need from the Ford electronic depository.

Firestone knows precisely what documents it is looking for, while Ford can only attempt to

divine Firestone’s true target from its vague and overbroad discovery requests. As such, it is

demonstrably less burdensome for Firestone to search for and locate responsive documents or

categories of documents than it is for Ford. This Court has a general duty to minimize discovery

burdens in complex litigation and should require Firestone here to incur the burden of reviewing

Ford’s documents in the electronic depository when preparing its own claims or defenses rather

than require Ford to cull out select documents. See Societe Nationale Industrielle Aerospatiale v.

United States Dist. Court for the S. Dist. of Iowa, 482 U.S. 522, 546 (1987) (“Judicial

supervision of discovery should always seek to minimize its costs and inconvenience and to

prevent improper uses of discovery requests.”); Wilson v. Wilson, No. 89 C 9620, 1991 U.S.

Dist. LEXIS 10992, at *7 (N.D. Ill. Aug. 2, 1991) (noting that district courts generally have the

“authority to regulate discovery in such a way as to minimize the unnecessary burdens and

disruption potentially caused by expansive discovery”).

Nevertheless, Ford has identified responsive documents by Bates number in those

instances where it has been able to discern the target of Firestone’s requests. In light of

Firestone’s narrowing of certain requests in its brief, Ford has reviewed each of the requests at

issue and will serve Firestone with supplemental responses by October 19, 2001, responding in

most cases with a Bates range of responsive documents. Where Firestone’s requests are

22

redundant or duplicative, Ford has incorporated its responses to the prior requests. Ford’s

responses are proper and appropriate.

VI. Firestone Seeks To Hold Ford To A More Demanding Standard Than It IsWilling To Abide By Itself

Firestone’s arguments are largely undercut by the fact that it has, in numerous ways, been

far less responsive to Ford’s discovery requests than Ford has been to Firestone’s requests. This

calls into serious question the sincerity of Firestone’s complaints with Ford’s responses. It also

suggests that Firestone is unwilling to abide by the same standards that it demands of Ford. This

Court should not condone Firestone’s double standard. Pending the outcome of meet and confer

negotiations, Ford may soon be filing its own motion to compel responses by Firestone to a

limited number of Ford’s document requests. In the meantime, it is worth noting a few examples

of deficiencies in Firestone’s responses that are more egregious than any of Ford’s own.

First, Firestone objects to the fact that in Ford’s responses, Ford refers Firestone to

documents located on its website, www.forddocs.com. As the Court is aware, Ford has

expended considerable resources to create a website containing millions of pages of documents.

The documents on Ford’s website are indexed and word searchable. Nonetheless, Firestone

complains that it lacks the sophistication to perform searches on the website for documents in

which it has an interest, and suggests that Ford should be required to search for and identify by

Bates range, documents responsive to its vague and overbroad requests. Though Ford has

objected to the scope of Firestone’s requests, and though its website provides capabilities far

beyond the limited box-by-box index that Firestone has provided for its document production,

Ford is voluntarily undertaking to search for documents responsive to many of Firestone’s

requests, and to create drop-down menus identifying responsive documents by Bates range.

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Firestone has been far less responsive. Only two of Firestone’s responses to Ford’s

discovery requests identify specific documents – and even those responses do not identify the

documents by Bates range. See Bridgestone/Firestone, Inc.’s Response to Defendant Ford Motor

Company’s First Request for Production, 29, 33, attached as Exhibit 3 ("Firestone Responses").

In every other instance Firestone responds to Ford’s requests by offering to “mak[e] the contents

of [its] repository available to counsel for Ford.” Firestone Responses, p. 3.9 Firestone’s

“repository” consists of a warehouse of boxes. Ford has no way of identifying what documents

might or might not be responsive other than by relying on an “index” that Firestone does not

even claim fully describes the contents of each document. Unlike Ford, Firestone has not

undertaken to perform a single search of its repository to locate responsive documents.

Firestone’s complaints that Ford’s responses do not satisfy its obligations under the Federal

Rules of Civil Procedure lacks all credibility, given that Ford’s website offers Firestone greater

search capacity than Firestone’s index, and that Ford has voluntarily agreed to provide drop-

down menus identifying by Bates range documents responsive to many of Firestone’s requests,

while Firestone has undertaken no such effort.

Second, as noted above, Firestone complains that Ford has not produced documents

relating to tires and vehicles wholly different from those at issue in this litigation. Nonetheless,

Firestone refuses to produce documents relating to similar tires. For example, in response to a

request relating to claims for any P-metric or LT-metric tires manufactured by Firestone,

Firestone objects that the request “is not limited to the facts and circumstances of the subject

9 Firestone states that it will provide counsel for Ford copies of the documents in its repository “as provided in theJoint Stipulation on Document Depository Protocol.” (Firestone Responses, p. 3.) Ford believes that Firestone isreferring to a stipulation it entered into with plaintiffs’ counsel regarding Firestone’s responses to plaintiffs’document requests. See Order Regarding Firestone’s Document Production, March 16, 2001. Ford never enteredinto any such stipulation with Firestone, and does not agree to be bound by the terms of any stipulation that purportsto hold Firestone to a lower standard of responsiveness.

24

accidents.” Firestone Responses, No. 31. It is unreasonable for Firestone to ask this Court to

compel Ford to produce documents relating to dissimilar vehicles and tires, while Firestone itself

refuses to produce documents relating to similar tires.

Third, Firestone objects to Ford’s refusal to produce confidential documents obtained

from third party tire suppliers. Firestone Memorandum in Support, pp. 3, 25. Firestone argues

that any concerns regarding proprietary information are already addressed in the Court’s March

7, 2001 Confidentiality Order.10 Nonetheless, while Firestone argues that the Confidentiality

Order is sufficient to protect the concerns of third parties, Firestone categorically refuses to

produce its own purportedly confidential information under the terms of the Confidentiality

Order. See, e.g., Firestone Responses, Nos. 4 and 5.

Fourth, Firestone asks the Court to compel Ford to produce documents relating to Ford’s

alleged retention of former Department of Transportation employees who might have assisted

Ford in relation dealing with NHTSA, Congress or any other governmental body regarding tires

failures or the Ford Explorer or Bronco II. Firestone Memorandum in Support, p. 11-12. At

the same time, Firestone categorically refuses to produce any documents in response to Ford’s

request for all document “relating to Firestone’s consultations or communications with

legislative affairs advisors or firms” concerning Firestone’s recall, Ford’s service action or Ford

Explorers in general, on the grounds that such information is both irrelevant and privileged.

Firestone Responses, Nos. 10-11. Firestone offers no rationale as to why its communications

with legislative affairs advisors are irrelevant and privileged, while similar communications by

Ford are supposedly highly relevant and non-privileged.

10 As Firestone as well aware, the Court currently has before it a motion by one of Ford’s tire suppliers, Goodyear,addressing confidentiality concerns relating to its proprietary information.

25

Finally, Firestone points to a number of typographical errors in Ford’s responses,

apparently to suggest that Ford’s responses are somehow substantively deficient. Memorandum

in Support, p. 2. By that standard, Firestone’s own responses are deficient, because they contain

similar errors. For example, in response to Ford’s Request No. 34, Firestone objects that

“Firestone is not apprised of Ford’s definition of ‘considered’ or [‘]otherwise used’ as used in

this request.” Yet Request 34 does not contain either one of these terms. Firestone’s objection

is nonsensical. As another example, Firestone’s response to Ford’s Request No. 23 contains the

following incomplete phrase: “Without waiving these objections, Firestone states that

documents contained in the document repository as described in the Introductory Statement ¶¶ 2

and 3 above.” Ford has no way of knowing what Firestone means by this cryptic response.

In sum, not only are Firestone’s objections to Ford’s responses generally ill founded, but

Firestone also relies on a double standard. If, as Firestone argues, Ford’s responses do not

satisfy its obligations under the Federal Rules of Civil Procedure, then it follows that Firestone’s

responses, which are significantly less responsive than Ford’s, are doubly deficient.

VII. Confidential And Proprietary Documents From Firestone’s CompetitorsShould Be Subject To Additional Protection To Avoid UnintendedCirculation Of Information Within Firestone

Several of the Firestone Requests call for the production of documents that may include

sensitive, proprietary information belonging to Firestone’s tire manufacturing competitors.

Request Nos. 100 and 101, in particular, seek all documents relating in any way to the “selection

26

purchase, and/or procurement or any tire used or considered for use on Ford Explorers, Ford

Bronco IIs and/or Ford Rangers” and all documents relating in any way to the “testing, analysis

or review of any tire used or considered for use on Ford Explorers, Ford Bronco IIs and/or Ford

Rangers.” Ford has objected to these requests on the grounds, among others, that the requests

“seek documents that contain confidential and proprietary information and that public disclosure

of such information concerning Goodyear’s, Michelin’s or other tire manufacturers’ trade

secrets, confidential research, development and commercial information could cause competitive

harm to tire manufacturers. Ford has attempted to provide discovery in a manner that respects

the third parties' desire to maintain their trade secrets.

Firestone argues that any information produced by Ford is fully protected by the March 7,

2001 Confidentiality Order entered in this case, that Ford has no standing to assert the

confidentiality interests of third parties, and that Ford has failed to demonstrate why the

requested documents contain confidential business information. Memorandum in Support at 25-

26. Firestone is wrong on all three counts.

The requests at issue seek documents that would include pricing information, marketing

information, testing information, manufacturing information and other material that is by its very

essence proprietary. Without accusing Firestone of any impropriety, it is also obvious that such

information could be used by Firestone, intentionally or unintentionally, to great competitive

advantage. Once a Firestone employee has access to such information for purposes of this

litigation, he or she is likely to consciously or subconsciously take such information into account

when making business decisions. The human brain simply cannot be compartmentalized so as to

prevent this from occurring.

27

While the Confidentiality Order may protect documents from disclosure to the public,

Paragraph 7(g) expressly permits the disclosure of confidential documents to Firestone

employees. Such disclosure creates a great risk of competitive harm to Firestone’s competitors

and raises antitrust concerns. North Atl. Instruments, Inc. v. Haber, 188 F.3d 38, 44-46 (2d Cir.

1999) (affirming decision to protect trade secret11 from disclosure in antitrust case); American

Standard, Inc. v. Pfizer Inc., 828 F.2d 734, 741 (Fed. Cir. 1987) (noting that “[c]ourts have

presumed that disclosure to a competitor is more harmful than disclosure to a noncompetitor”)

(citation omitted).

Ford has a significant interest in protecting the information (much of which is subject to

non-disclosure agreements) it obtains from its vendors.12 Indeed, the type of material Ford

receives from its vendors often represents the most advanced thinking in the industry. Some of

the concepts or proposals contain either Ford or the vendors' attempts to design and manufacturer

a better product than is on the road currently. For the same reason Firestone would not want to

release this information to its competitors, Firestone's competitors desire the same.

Ford does not suggest that Firestone has no right to production of relevant documents in

Ford’s possession containing information obtained from Firestone’s competitors. As set forth

above, Firestone’s requests are over broad and should be narrowly limited to the information it

needs to defend this case. For example, Firestone does not need information concerning the tires

used or considered for use by Ford on the F-150. As for the competitor information that is

11 The Haber court defined a trade secret as “‘any formula, pattern, device or compilation of information which isused in one’s business, and which gives [the owner] an opportunity to obtain an advantage over competitors who donot know or use it.’” Haber, 188 F.3d at 44 (citation omitted).12 Firestone’s reliance on Burton Mechanical and Mike v. Dymon, Inc., Civ. A. No. 95-2405-EEO, 1996 WL606362 (D. Kans. Oct. 17, 1996), is misplaced. In Burton Mechanical, an employee unsurprisingly lacked standingto assert protection of his employer’s proprietary or confidential business information. Burton Mechanical, 148F.R.D. at 234. Comparably, the plaintiff in Mike made no showing that the documents sought to be withheld wereproprietary or confidential. Mike, 1996 WL 606362, at *3. Here, the sensitivity of information supplied to Ford byFirestone’s direct competitors is apparent and is paramount to Firestone’s competing concerns.

28

relevant, Ford suggests that the Confidentiality Order be modified to provide a heightened level

of protection for such documents sharply limiting their disclosure to Firestone employees. Fed.

R. Civ. P. 26(c)(7). Ford remains available to discuss this matter with Firestone in an effort to

resolve this issue.

VIII. Firestone’s Contentions And Arguments Are Otherwise Without Merit

Firestone raises a smattering of other concerns, none of which is a basis for relief.

Firestone asserts that the batch printing feature of the forddocs.com website does not appear to

work. Firestone Memorandum in Support, p. 22. While there have been isolated instances

where individuals have had difficulty using different forddocs.com features, the difficulties have

been resolved when brought to Ford’s attention. Firestone brought this concern to Ford’s

contention in its motion to compel and in a telephone conversation among counsel on October 9,

2001. Ford has since arranged to speak with the appropriate technical support person at Jones

Day Reavis & Pogue when he returns to his office on October 15, and presumably Firestone’s

difficulties will be resolved at that time. Others have experienced no difficulties with the batch

printing feature, which Ford understands is fully operational.

Firestone further suggests that Ford has failed to produce documents on CD ROM,

purportedly as ordered by the Court in its March 15, 2001 Order. On the contrary, Ford has

agreed to produce materials at Firestone's expense and has provided proposals from its vendors

directly to Firestone's counsel. Firestone's counsel – perhaps to develop a discovery dispute –

has insisted that Ford produce the material on CD ROM as opposed to other more economical

methods. Ford stands ready, as it has, to produce the materials sought by Firestone subject to

Firestone’s agreement to pay the reasonable costs of producing documents in this manner.

29

Firestone complains that it has been prejudiced in its defense of this case as the result of

Ford’s alleged delay in responding to the Firestone Requests. Firestone Memorandum in

Support, pp. 4-5.) Firestone has not suffered any prejudice. Firestone, like Ford, has conducted

extensive investigations of the Firestone tire failures in connection with the NHTSA recall.

Firestone has presumably retained many able consultants to analyze in detail the performance of

its tires and the Ford Explorer. Firestone has defended numerous cases involving Firestone tires

and the Ford Explorer, and has long had access to many Ford documents concerning the matters

raised in this litigation. Firestone has had full access to forddocs.com since April and May,

2001. The Firestone Requests were not served on Ford until July 6, 2001, and Ford has timely

responded to the requests. Aside from its conclusory complaint, Firestone fails to show any

prejudice, and indeed there is none.

Firestone also complains that Ford improperly refers Firestone to other means of

discovery, including depositions, in lieu of producing documents responsive to the Firestone

Requests. Firestone Memorandum in Support p. 24. While Ford has suggested in its objections

that depositions would be a superior means of discovery concerning certain information

requested by Firestone, Ford has not interposed this suggestion as the sole basis for refusing to

produce documents.

An example is Firestone Request Nos. 76 and 77. In these requests, Firestone seeks all

documents relating in any way to the assertion in Ford’s March 28, 2001 NHTSA Submission

that “Explorers have a margin of safety as designed to accommodate, to a reasonable level,

component failures including tread separations,” and all documents relating to “the means and

criteria used by Ford for determining what constitutes a ‘reasonable level’ of accommodation of

component failures and/or tread/belt separations.” Ford’s assertion to NHTSA is an engineering

30

opinion based on the collective engineering wisdom and judgment of the Ford employees and

consultants who conducted the root cause analysis of the Firestone tire failures. It is based on an

extensive analysis conducted over a period of many months. It is also based on the broad

experience of those who performed the analysis, gained over long careers in the automotive

industry. While the extensive documentation underlying the root cause analysis produced on

forddocs.com to date has been identified by Bates range, the request at issue, and others like it,

does not lend itself to the production of a small, well-defined group of responsive documents. It

is, as suggested in Ford’s response, a matter better addressed through other means of discovery,

including in particular, depositions.

Finally, Firestone complains that Ford has failed to properly certify that it has produced

“all” documents responsive to Firestone’s requests. Firestone Memorandum in Support, pp. 13-

14. Pursuant to Rule 26(g), Ford must make a diligent inquiry and a reasonable search for the

documents requested by Firestone, and produce all the responsive documents that it locates.

Ford’s discovery responses are signed by counsel and meet the requirements of Rule 26. While

Ford’s document sweep and production are ongoing, and while additional documents are being

produced on a regular basis, Ford has complied with Rule 26, and has made a good faith,

reasonable effort to locate and produce documents responsive to Firestone’s requests within the

bounds of relevancy. Rule 26(g) does not, however, require Ford to certify that it has produced

“all” responsive documents, particularly in light of the overbreadth and vague and confusing

31

nature of the requests propounded by Firestone.13 Rule 26 likewise does not require the

production of documents that are not relevant. In re: Vitamin Antitrust Litig., supra, at *37.

Ford’s discovery responses are complete and proper and Firestone’s Motion to Compel should be

denied.

CONCLUSION

For the foregoing reasons, Firestone's motion to compel discovery should be denied.

Dated: Respectfully submitted,

________________________________John H. BeisnerO’MELVENY & MYERS LLP555 13th Street, N.W.Suite 500 WestWashington, DC 20004-1109(202) 383-5300

________________________________Randall R. RiggsLOCKE REYNOLDS LLP1000 Capital Center South201 N. Illinois StreetIndianapolis, Indiana 46204(317) 237-3814

COUNSEL FOR FORD MOTORCOMPANY

13 Firestone’s assertion that it is “entitled” to such a certification under Ellman v. Hentges, No. 99 C 50269, 2001WL 649508 (N.D. Ill. June 8, 2001), and Arkwright Mut. Ins. Co. v. National Union Fire Ins. Co. of Pittsburgh, No.90 CIV. 7811 (AGS), 1994 WL 142064 (S.D.N.Y. Apr. 14, 1994), is mistaken. Although the district courts in thosecases ordered the issuance of such a guarantee, Ellman, 2001 WL 649508, at *3; Arkwright, 1994 WL 142064, at*2, there is no general requirement under Rule 26 that such a certification occur as a matter of course.

32

CERTIFICATE OF SERVICE

Service of the foregoing was made by hand delivery or by placing a copy of the same into

the United States Mail, first class postage prepaid, this _____ day of _______________, 2001,

addressed to all counsel of record appearing on the Panel Attorney Service List, and others, as

necessary.

____________________________________Randall R. RiggsLOCKE REYNOLDS LLP201 N. Illinois Street, Suite 1000P.O. Box 44961Indianapolis, Indiana 46244-0961(317) 237-3800

506028_1