Ex Parte Cooper Tire & Rubber Co.

• Court: Alabama Supreme Court
• Writing for the Court: Cobb
• Citation: Ex Parte Cooper Tire & Rubber Co., 987 So.2d 1090 (Ala. 2007)
• Decision Date: 26 October 2007
• Docket Number: 1050638.
• Parties: Ex parte COOPER TIRE & RUBBER COMPANY. In re William Keith Dillard, as administrator of the estate of Richard Alan Dillard, deceased; et al. v. Cooper Tire & Rubber Company and Kevin Williams, as administrator of the estate of Elio Lopez Velasquez, deceased.

987 So.2d 1090

Ex parte COOPER TIRE & RUBBER COMPANY In re William Keith Dillard, as administrator of the estate of Richard Alan Dillard, deceased; et al. v. Cooper Tire & Rubber Company and Kevin Williams, as administrator of the estate of Elio Lopez Velasquez, deceased.

1050638.

Supreme Court of Alabama.

October 26, 2007.

Rehearing Denied January 18, 2008.

Matthew H. Lembke, Justin T. McDonald, and Richard H. Monk III of Bradley Arant Rose & White, LLP, Birmingham; and Edward R. Jackson and Richard E. Fikes of Jackson, Fikes, Hood & Brakefield, Jasper, for petitioner.

David H. Marsh and Thomas M. Powell of Marsh, Rickard & Bryan, P.C., Birmingham; and William H. Atkinson of Fite, Davis, Atkinson, Guyton & Burt, P.C., Hamilton, for respondent William Keith Dillard et al.

Jonathan B. Lowe of Lowe, Mobley & Lowe, Haleyville; and Fred Wood of Fred Wood & Associates, Hamilton, for respondent Kevin Williams.

COBB, Chief Justice.¹

Cooper Tire & Rubber Company ("Cooper") petitions this Court for a writ of mandamus ordering the Marion Circuit Court to grant its motion for a protective order seeking to limit the discovery of evidentiary materials by the plaintiffs in the underlying action. The underlying action arises from a collision in 2004 between a van driven by Elio Lopez Velasquez and an automobile driven by Richard Alan Dillard. Dillard's passengers included his wife, Karen Cosby Dillard; their minor daughter, Sara Elizabeth Dillard; and Karen's mother, Jessie Lee Cosby. All the adults in both vehicles were killed and Sara was seriously injured. The plaintiffs, the personal representatives of the Dillards and Cosby, sued Cooper and Velasquez's personal representative and alleged, with respect to Cooper, that a tire manufactured by Cooper and mounted on Velasquez's van failed as the result of Cooper's defective design and manufacture and caused Velasquez to lose control of the van, resulting in the accident.

In the ensuing litigation, the plaintiffs sought discovery of various documents and materials relating to the design and manufacture of Cooper's tires, including information pertaining to accidents and injuries allegedly caused by defects in Cooper's tires. A significant part of the information the plaintiffs sought to discover was information that had been produced by Cooper in the context of other litigation involving its tires. Cooper objected to the discovery on numerous grounds and asserted generally that complying with the plaintiffs' discovery request would be unduly burdensome and expensive, would result in irrelevant and duplicative materials, and would, in at least some circumstances, violate Cooper's privileges relating to its attorneys' work product and its trade secrets. On October 12, 2005, the plaintiffs moved to compel discovery, and Cooper responded, opposing the motion to compel, on October 24. On November 14, 2005 the trial court granted the motion to compel and entered a detailed protective order that mandated confidentiality with respect to various discovered materials and required counsel to maintain and account for copies of all materials subject to the protective order.

Cooper continued to resist producing the discovery requested by the plaintiffs, and on January 5, 2006, the trial court advised the parties of its rulings on the motion to compel by telephone and requested the parties' counsel to draft a proposed order, but counsel could not reach an agreement. On January 23, 2006, the trial court conducted a telephone conference with all counsel and directed Cooper to produce certain items requested by the plaintiffs within 10 to 15 days. On January 27, 2006, Cooper filed a motion for a protective order with respect to the production ordered by the trial court in its January 23 telephone conference. On January 31, 2006, Cooper filed a petition for a writ of mandamus and a motion for an emergency stay of proceedings with this Court; it withdrew those filings when the trial court entered an order on the same day relieving Cooper of any obligation to comply with the 10-to-15-day time limit for production of the requested materials and stating that it would address in a subsequent order the concerns raised by Cooper in its motion for a protective order. That order was issued on February 9, 2006, and the substance of that order is at issue in this petition. Cooper seeks a writ of mandamus limiting the scope of the trial court's February 9 order concerning the plaintiffs' requested discovery to the parameters set out in Cooper's January 27 motion for a protective order.

The trial court's thoughtful and thorough orders thus far in this case exemplify its dedication to performing the extensive legal work and to understanding the legal principles necessary for resolving the complex discovery issues posed by this case. In its February 9 order, the trial court described the discovery sought by the plaintiffs and resisted by Cooper as follows:

"1. Documents requested by the Plaintiffs in various motions for production but not produced by Cooper.

"A. Quality Assurance Documents including Adjustment Date. ...

"(Plaintiffs have agreed to limit this request for a period beginning in 1998 until the present date. Plaintiffs have agreed to limit this request to tires produced at Cooper's Tupelo Plant.)

"B. Skim Stock Formula. ...

"(Plaintiffs have agreed to modify the scope of this request and accept any documents evidencing changes of antioxidants and antiozidants and other chemical changes relating to the durability of Cooper's steel-belted tires.)

"C. Test Reports and Wire Coverage Reports. ...

"(Plaintiffs have agreed to accept documents generated by Cooper from 10 weeks before the subject tire was manufactured until 10 weeks after the date of manufacture. It is stipulated that the tire involved in the present case was manufactured during the 19th week of 2002.)

"D. Adjustment Records specifically relating to tires with nylon overlays and wedges. ...

"E. Documents relating to blisters and air pockets that can contribute to tread separation. ...

"F. Tread Separation Information. ...

"(Plaintiffs have agreed to limit this request to the time period beginning at the first of 1997 and until the present. Cooper seeks to limit the information and documents produced in response to this request to one tire design, `GTS 2879,' and for the time period from July, 2000, through August, 2004.)

"G. Information pertaining to other accidents, injuries or failures of steel-belted radial tires designed and/or manufactured by Cooper. ...

"(Plaintiffs have agreed to limit this request to documents and evidence of accidents, injuries and failures occurring from the beginning of 1997 until the present. Cooper seeks to limit the information and documents produced in response to this request to those relating to complaints and lawsuits concerning only `GTS 2879' model tires, filed only in Alabama and only during a five (5) year period.)

"H. Claims and/or Incident Reports or written documents by whatever name called reporting or addressing a tread separation involving a Cooper steel-belted radial tire. ...

"(Plaintiffs have agreed to accept documents that fall in this category that relate to other incidents that may have occurred from the beginning of 1997 to the present. Cooper seeks to limit the response to this request to those relating to complaints and lawsuits concerning only `GTS 2879' model tires, filed only in Alabama and only during a five (5) year period.)

"I. Product Change Notification.

"The period of this request extends from a date five (5) years prior to the date of manufacture.

"J. Documents relating to Cooper's efforts to reduce or eliminate tread separations in their steel-belted radial tires. ...

"(Plaintiffs have agreed to limit the scope of this request to documents relating to activities that occurred from the beginning of 1997 to the present. Cooper seeks to limit the information and documents produced in response to this request to those relating to its efforts relating only to `GTS 2879' model tires and only those dated from July, 2000 through August, 2004.)

"K. Depositions of Cooper employees given in other steel-belted radial tires separation cases. ...

"(Plaintiffs have agreed to limit this request to depositions of Cooper's employees taken in the California consolidated cases. Cooper seeks to limit its production in response to this request to only the portions of those depositions that Cooper deems to be `non-confidential.')

"2. Copies of documents and the indices of documents produced by Cooper in other cases involving the failures of steel-belted radial tires, including documents contained and maintained in repositories pertaining to such other cases. ...

"3. Documents designated by a Bates stamp numbering system employed by Cooper and produced in other, similar litigation but not yet produced in the present case. ..."

In most instances the material requested is followed by the phrase "[p]laintiffs have agreed to limit" or a phrase of similar import, indicating that the discovery process leading to the order had already resulted in limitations on the plaintiffs' requests.

The trial court's February 9 order also summarizes Cooper's January 27 64-page motion for a protective order by noting that in its motion Cooper sought to limit the plaintiffs' requested discovery (1) to a particular geographic area, i.e., to claims and actions filed in Alabama, (2) to a particular time period, i.e., to five years immediately preceding for discovery of other claims and causes of action and to 49 months immediately preceding for discovery of tread-separation documents, and (3) to a certain design of steel-belted tires, i.e., the particular model of tire involved in the accident that gave rise to the plaintiffs' action.

Among the many evidentiary submissions presented to the trial court before the issuance of the February 9, 2006, order was the affidavit of Dennis...