653 F.2d 671 (D.C. Cir. 1981), 80-1267, In re Multi-Piece Rim Products Liability Litigation

Docket Nº:80-1267, 80-1284.
Citation:653 F.2d 671
Party Name:In re MULTI-PIECE RIM PRODUCTS LIABILITY LITIGATION. Appeal of FIRESTONE TIRE & RUBBER CO. In re MULTI-PIECE RIM PRODUCTS LIABILITY LITIGATION. Appeal of William HADDON, Jr., M.D., Benjamin Kelley, Brian O'Neill, John Arminio, Jackson Wong, Paul R. Rohr, Sharon Goins, and the Insurance Institute for Highway Safety.
Case Date:May 29, 1981
Court:United States Courts of Appeals, Court of Appeals for the District of Columbia Circuit
 
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653 F.2d 671 (D.C. Cir. 1981)

In re MULTI-PIECE RIM PRODUCTS LIABILITY LITIGATION.

Appeal of FIRESTONE TIRE & RUBBER CO.

In re MULTI-PIECE RIM PRODUCTS LIABILITY LITIGATION.

Appeal of William HADDON, Jr., M.D., Benjamin Kelley, Brian

O'Neill, John Arminio, Jackson Wong, Paul R. Rohr,

Sharon Goins, and the Insurance

Institute for Highway Safety.

Nos. 80-1267, 80-1284.

United States Court of Appeals, District of Columbia Circuit

May 29, 1981

Argued Feb. 20, 1981.

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[Copyrighted Material Omitted]

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Patrick W. Lee, Washington, D. C., with whom Wendy N. Munyon, Washington, D. C., was on the brief for Firestone Tire and Rubber Co., appellant in No. 80-1267 and appellee in No. 80-1284.

Ronald G. Precup, Washington, D. C., with whom Lucien Hilmer, Washington, D. C., was on the brief for Haddon, Jr., M.D., et al., appellees in No. 80-1267 and cross appellants in No. 80-1284.

Before WILKEY and MIKVA, Circuit Judges, and JAMES F. GORDON [*], Senior Judge, United States District Court for the Western District of Kentucky.

Opinion for the Court filed by Circuit Judge MIKVA.

MIKVA, Circuit Judge:

Firestone Tire & Rubber Co. (Firestone) appeals from an order of the district court denying Firestone's motion to compel discovery from certain non-party witnesses in connection with a products liability suit. The witnesses cross-appeal from the district court's failure to award them the expenses of their opposition to Firestone's motion. Finding that the court acted within its discretion on both counts, we affirm.

I. FACTUAL AND PROCEDURAL BACKGROUND

Firestone is one of the manufacturers of articles known as "multi-piece wheels and wheel rims," whose safety is currently a major issue in a series of products liability

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cases. Seventeen personal injury and wrongful death cases were consolidated for pretrial proceedings by the Judicial Panel on Multidistrict Litigation, see In re Multi-Piece Rim Products Liability Litigation, 464 F.Supp. 969 (Jud.Pan.Mult.Lit.1979), and some fourteen further cases have been added thereto. The consolidated proceedings have gone forward under the supervision of a multidistrict transferee judge in the United States District Court for the Western District of Missouri. On April 23, 1979, in his First Pretrial Order, the transferee judge designated eight common issues as appropriate for consolidated discovery.

The appellees are the Insurance Institute for Highway Safety (IIHS) and seven of its employees. IIHS is a nonprofit organization funded by motor vehicle insurance companies; one of its principal objectives is to focus public and governmental attention on possible causes of highway "losses." The discovery Firestone seeks in the present appeal relates to IIHS efforts to focus public and government attention on multi-piece wheels and wheel rims. The major channel for these efforts was submission of information to the National Highway Traffic Safety Administration (NHTSA), although IIHS has also participated in a rulemaking proceeding of the Occupational Safety and Health Administration (OSHA).

Firestone claims that IIHS has provided erroneous and misleading information to government agencies, and that some of this misinformation may be reflected in government reports impugning the safety of multi-piece wheels and rims. Such reports could be highly damaging to Firestone in a products liability case if they were put before a jury as admissible hearsay under Federal Rule of Evidence 803(8). That rule authorizes admission of

Records, reports, statements, or data compilations, in any form, of public offices or agencies, setting forth (A) the activities of the office or agency, or (B) matters observed pursuant to duty imposed by law as to which matters there was a duty to report, ... or (C) in civil actions and proceedings ... factual findings resulting from an investigation made pursuant to authority granted by law, unless the sources of information or other circumstances indicate lack of trustworthiness.

(emphasis added). Firestone's announced purpose in seeking discovery from IIHS and its employees is to uncover evidence that would enable Firestone to make the showing of untrustworthiness necessary to keep government conclusions about multi-piece rims out of court.

Firestone's discovery attempts antedate the consolidation of the seventeen original cases in the Western District of Missouri. In September 1978, Firestone obtained subpoenas duces tecum from the Clerk of the District Court for the District of Columbia for discovery in connection with an action then pending in the District Court for the Northern District of Alabama, Clayton v. Firestone Tire & Rubber Co., Civ. No. 78-G0396S (N.D.Ala.). Firestone then served these subpoenas on IIHS's President (one of the seven present appellees) and its General Counsel (whose successor is among the appellees) demanding

all documents, books, notes(,) correspondence, drafts, and paperwriting whatsoever in any way reflecting, referring, or relating to the initiation, investigation, research, preparation and submission, of the Petition for the Initiation of a Defect Investigation for Multi-piece Wheels submitted to the National Highway Traffic Safety Administration; and any and all documents reflecting, referring, or relating to said petition from the date of submission until the present date.

Joint Appendix (J.A.) at 145. IIHS produced over 13,000 pages of documents in response to these subpoenas, but denied Firestone's right to inquire into the preparation of the NHTSA petition or its reliability. IIHS sought a protective order in the District Court for the District of Columbia, and an order was granted, announcing that IIHS and the two subpoenaed witnesses "need not respond to deposition questions relating to the preparation, accuracy or reliability of the Institute's Petitions transmitted

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on June 14, 1978 and October 2, 1978 to the National Highway Traffic Safety Administration of the Department of Transportation." Clayton v. Firestone Tire & Rubber Co., Misc. No. 78-0307 (D.D.C. Nov. 17, 1978), J.A. 146. No reasons were stated for the court's order.

Clayton was one of the seventeen cases consolidated by the Judicial Panel on Multidistrict Litigation in early 1979. Firestone expressed its concern about Federal Rule of Evidence 803(8) to the multidistrict transferee judge, although the record suggests that no mention was made of the protective order IIHS had obtained the preceding fall. The transferee judge responded by designating as the eighth common issue for multidistrict discovery:

Government Reports. Whether any reports prepared by any governmental body pertaining to multi-piece rims and/or multi-piece wheels are accurate and trustworthy.

In re Multi-Piece Rim Products Liability Litigation, M.D.L. No. 362, First Pretrial Order at 4 (W.D.Mo. Apr. 23, 1979), J.A. 24.

Armed with this pretrial order, Firestone returned to IIHS and served subpoenas duces tecum from the District Court for the District of Columbia on the seven appellees, having noticed depositions scheduled to begin in January 1980. The new subpoenas required

any and all documents, books, notes, correspondence, drafts, and paper writings received or generated between September 1, 1978, and the date of this subpoena and all travel vouchers, desk calendars, telephone logs, minutes of the IIHS Board of Directors meetings, communications among and between insurance companies and the IIHS, its staff, or Board of Directors received or generated between September 11, 1976, and the date of this subpoena, which are within your possession or control, in any way reflecting...

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