Cooper Tire & Rubber Co. v. McGill

Decision Date22 July 2004
Docket NumberNo. 2003-CA-00234-SCT.,2003-CA-00234-SCT.
Citation890 So.2d 859
PartiesCOOPER TIRE & RUBBER COMPANY v. Johnnie McGILL and Dorothy Paige, Individually, on Behalf of the Estate of Donald Paige, and the Wrongful Death Beneficiaries of Donald Paige.
CourtMississippi Supreme Court

Sam E. Scott, Jackson, David Dial, attorneys for appellant.

John Lee Davidson, Judson Morgan Lee, John D. Giddens, Jackson, attorneys for appellee.

Before WALLER and COBB, P.JJ., and GRAVES, J.

GRAVES, Justice, for the Court.

¶ 1. Plaintiffs John McGill and Dorothy Paige, individually, on behalf of the Estate of Donald Paige, and the wrongful death beneficiaries of Donald Paige filed a complaint against several parties including Cooper Tire & Rubber Company. As the trial date approached, issues arose regarding discovery and the failure by Cooper Tire to produce certain documents. This appeal follows from a contentious discovery process between plaintiffs and Cooper Tire. The trial court ordered that certain documents be produced and issued several immediate and prospective sanctions if Cooper Tire failed to meet specific deadlines, which it did not. On the morning prior to a hearing regarding Cooper Tire's failure, Cooper Tire and plaintiffs reached a settlement. Following this, the trial court reconsidered the sanctions and dismissed all sanctions save a $10,000 fine for a one-day violation of the court's order.


¶ 2. The issue before this Court stems from Cooper Tire's failure to produce several documents that were initially requested by plaintiffs and later ordered by trial court.1

¶ 3. On December 20, 2001, on Cooper Tire's request, a protective order was entered. Subsequently, plaintiffs requested the production of documents related to Tuckier, et. al. v. Cooper Tire & Rubber Co., et al., Cause No. CV-97-64-C(P1). Cooper Tire objected, contending that the documents were not relevant, the request was overbroad, the cases were distinguishable from one another and access to the documents was limited by a protective order entered by the Circuit Court of Panola County.2

¶ 4. On July 19, 2002, plaintiffs moved for the trial court to compel Cooper Tire to produce documents recently produced in Brownlee v. Cooper Tire & Rubber Co. and Whitaker v. Cooper Tire & Rubber Co. (hereinafter "Brownlee/Whitaker"), which were similar suits pending in the federal district court for the Eastern District of Arkansas. Plaintiffs contended that the issues in Brownlee/Whitaker cases were similar to the instant case and that the documents in question were therefore relevant. Cooper Tire argued the motion was flawed in that the documents were never requested as required by M.R.C.P. 34 and that plaintiffs failed to submit a good faith certificate as required by URCCC 4.04(c). Further, it argued that the motion was untimely based on the fact that it was filed after the discovery deadline.3

¶ 5. On July 24, 2002, the trial court heard arguments on the motion to compel.4 Following this hearing, both parties filed several memoranda and documents supporting their respective positions. Plaintiffs filed a second motion to compel, which presented reasons why they sought to compel production and which had attached an order from a South Carolina Court in Middleton v. Cooper Tire & Rubber Co., No. 99-CP-25-214. In an order entered in Middleton, the trial court recognized that Cooper Tire had electronically stored much of the information regarding tires returned for tread separation.

¶ 6. On July 30, 2002, the trial court issued an opinion and order on the motion that was highly critical of Cooper Tire's conduct regarding the production of documents and discovery practices. The trial court cited Cooper Tire for, inter alia, discovery abuses and for making material misrepresentations to the court regarding the production of documents.5 Noting the protective order previously entered, the trial court ordered that Cooper Tire produce all depositions and testimony of experts and employees from the Brownlee/Whitaker case. Such documents were to be provided on diskettes formatted to Microsoft Word 97, unless plaintiffs requested hard copies. As to these documents, the trial court ordered that Cooper Tire would be sanctioned $10,000 for every day after July 31, 2002, that it failed to satisfy the order.

¶ 7. Cooper Tire was ordered to allow the inspection and copying of the Talalai documents by counsel for plaintiffs.6 The inspection was to begin no later than August 2, 2002, and the trial court ruled that Cooper Tire would be sanctioned $10,000 for every day after this date if plaintiffs were not provided access. Cooper Tire was ordered to pay costs associated with the inspection. The court stressed that if it was determined to be Cooper Tire's fault, further sanctions would be considered in the event that all inspection, production, copying and other access were not completed by August 7, 2002.

¶ 8. Additional sanctions were based generally on Cooper Tire's conduct during discovery and misrepresentations to the trial court. The trial court ordered that Cooper Tire be prepared to show cause at a future hearing regarding why it should not be further sanctioned. Finally, the trial court denied the motion for pro hac vice submitted by attorney Daniel T. Plunkett and ordered that Cooper Tire be sanctioned, for an amount to be determined later, for its systematic failure to make proper discovery and discovery abuses.7

¶ 9. Despite the order, neither production requirements were satisfied. None of the Brownlee/Whitaker documents were provided. As to access to the Talalai repository, Cooper Tire denied access to plaintiffs' counsel and consultants. On August 2, 2002, after the plaintiffs' representatives traveled to the facility located in Finley, Ohio, Cooper Tire refused access citing the lack of an established protocol for the inspection. On this same day, in its first response to the trial court's order, Cooper Tire filed a motion to reconsider. The motion provided several reasons supporting Cooper Tire's position and included its letter to the trial judge dated July 29, 2002, seeking to correct the misrepresentation that was the subject of the memorandum opinion. Plaintiffs filed a motion requesting that Cooper Tire be held in contempt.

¶ 10. On August 8, 2002, the trial court heard arguments regarding Cooper Tire's motion to reconsider and/or vacate its order. At that time, the parties notified the court that a settlement had been reached on all claims and defenses, including those of facts and law earlier that morning. Nevertheless, the trial court heard the arguments. As to the Brownlee/Whitaker documents, Cooper Tire contended it was seeking to satisfy the order but that it was unable to produce the documents in the format mandated. Likewise, Cooper Tire contended that it faced a conflict between the protective orders issued in this case and by the Arkansas federal court in Brownlee/Whitaker which retained jurisdiction over the documents. Cooper Tire represented that it filed in the federal court a request for guidance. When questioned by the trial court, Cooper Tire could not provide a reason why it failed to contact the trial court or request an emergency hearing or telephonic conference.

¶ 11. As to the failure to grant access to the Talalai document repository, Cooper Tire contended that there were numerous protective orders in place and that it would not allow plaintiffs to inspect the documents until there was an agreement between them regarding certain protocol. As to why it failed to contact either the trial court or counsel for plaintiffs regarding its inability to comply with the order, Cooper Tire again gave no explanation.

¶ 12. Though Cooper Tire failed to comply with its order, the trial court amended its earlier ruling. Holding that many of the issues were now moot following the announcement of a settlement, save one, the court vacated all the sanctions ordered. Cooper Tire was fined $10,000. As will be discussed further, the parties dispute the basis for the fine. The trial court stated that it would not consider holding Cooper Tire in contempt.8

¶ 13. Cooper Tire cites numerous issues, which are combined now on appeal.


I. What Was the Basis for the Sanctions?

¶ 14. Though sanctions were ordered in the July 30, 2002 opinion, the only sanctions imposed were those ordered during the August 8, 2002 hearing.9 Thus, our analysis focuses on the sanctions actually ordered.

¶ 15. In the initial order (i.e., the July 30 order), the trial court cited M.R.C.P. 37(e) for its authority to sanction Cooper Tire. To be certain as to the trial court's authority to sanction, we consider the basis for sanctions.

¶ 16. The July 30 order set forth both immediate and prospective sanctions for discovery violations. However, all immediate sanctions were dismissed, and the order was modified following the August 8, 2002, hearing. The parties disagree as to the basis supporting the sanctions. On the one hand, Cooper Tire argues that sole reason for the fine was its failure to comply with the July 30 order. While on the other, plaintiffs argue that it was the failure of Cooper Tire to contact the trial court prior to the August 2 deadline to inform it that it could not satisfy the deadline for producing Brownlee/Whitaker documents.10 This Court agrees with explanation advanced by Cooper Tire in that the sanction imposed was based on its failure to produce the Brownlee/Whitaker documents by the end of the day on July 31, 2002. This finding is understandable after considering why the trial court inquired into Cooper Tire's failure to contact it.

¶ 17. A review of the transcript reveals that the explanation set forth by plaintiffs has some support. As an obstacle to complying with the deadline, Cooper Tire claimed that its obligation under trial court's order required more time and that the order created issues with orders entered by courts in other...

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    • United States
    • Mississippi Supreme Court
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    ...several days without notice, a hearing or benefit of other due process procedural safeguards as outlined in” Cooper Tire & Rubber Company v. McGill, 890 So.2d 859 (Miss.2004). ¶ 6. Judge Skinner and the Commission agreed that Judge Skinner violated Section 177A of the Mississippi Constituti......
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2 books & journal articles
  • Compel, resist and amend discovery
    • United States
    • James Publishing Practical Law Books Archive Handling Federal Discovery - 2021 Contents
    • July 31, 2021
    ...whether non-compensatory sanctions may be imposed under FRCP 37 without a inding of contempt. See Cooper Tire & Rubber Co. v. McGill , 890 So. 2d 859, 867 n.13 (Miss. 2004) (“[T]here is a split among the federal courts of appeals as to whether Federal Rule 37 provides authority to impose a ......
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    • United States
    • James Publishing Practical Law Books Handling Federal Discovery
    • May 1, 2022
    ...whether non-compensatory sanctions may be imposed under FRCP 37 without a finding of contempt. See Cooper Tire & Rubber Co. v. McGill , 890 So. 2d 859, 867 n.13 (Miss. 2004) (“[T]here is a split among the federal courts of appeals as to whether Federal Rule 37 provides authority to impose a......

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