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Lindholm v. BMW of North America, LLC

United States District Court, D. South Dakota, Central Division

April 25, 2016

BRUCE LINDHOLM, individually and as personal representative of the ESTATE OF ALEXANDER NELS LINDHOLM, and VANOOSHEH LINDHOLM, individually, Plaintiffs,



Plaintiffs Bruce Lindholm, individually and as personal representative of the Estate of Alexander Nels Lindholm, and Vanoosheh Lindholm filed a Notice of Motion and Motion to Compel Discovery and for an Award of Attorney's Fees and Costs, Doc. 38, along with certification affidavits of good faith from counsel, Docs. 40, 41, in compliance with Local Rule 37.1 of the Civil Local Rules of Practice for the United States District Court of the District of South Dakota. Plaintiffs seek an order compelling BMW of North America, LLC ("BMW NA") to respond to certain requests made by Plaintiffs for production of documents. Plaintiffs also move for an order under Rule 37(a)(5) awarding attorney's fees. For the reasons explained below. Plaintiffs' motion is granted only in part and attorney's fees are not awarded to either party.


This products liability and wrongful death action centers on a tragic incident that occurred on July 5, 2013. Docs. 1, 1-1, 1-2. On July 5, 2013, Alexander N. Lindholm ("Alex") was performing maintenance work on his 1997 BMW 540i in Pierre, South Dakota, and was utilizing the car's jack to elevate the vehicle. Doc. 1-1 at 2. Plaintiffs allege that, while Alex was under the vehicle, the jack "functionally failed and a plastic piece of the jack fractured, causing the vehicle to fall and crush Alex." Doc. 1-1 at 2. Alex died from asphyxia due to the weight of the vehicle crushing his chest. Doc. 1-1 at 2.

On March 25, 2015, this Court entered its Rule 16 Scheduling Order. Doc. 7. Under that order, all discovery was to be completed by November 16, 2015, and all motions, other than motions in limine, were to be filed and served by December 31, 2015. Doc. 7 at ¶¶ 4, 9 (emphasis omitted).

In early September of 2015, BMW NA's counsel informed Plaintiffs' counsel that the BMW NA corporate representative for the case would be Peter Baur ("Baur"). Doc. 43-2. Counsel for both parties exchanged dates for Baur's deposition, but because of scheduling conflicts, Baur's deposition ultimately was set for December 4, 2015. Docs. 43-2, 43-3, 36-2. No party moved to enlarge the discovery deadline, but both parties agreed to take the deposition outside of the discovery deadline. Docs. 43-3, 36-2. Two days before Baur's deposition, Plaintiffs' counsel emailed BMW NA's counsel and requested that Baur review court records "prior to and/or bring" documents from two cases which Plaintiffs' counsel believed to involve E39 model jacks. Doc. 39-2. Specifically, Plaintiffs' counsel requested that Baur search his records for documents from a case titled "Gallimore v. BMW of NA, Case No. 05-10652, " and for an inspection report that was done for a case titled "Beaver v. BMW NA." Doc. 39-2. Plaintiffs' counsel explained that he learned of the Beaver inspection report through Baur's testimony in a New York case titled "Benton v. BMW NA. Index No. 110022/2011." Doc. 39-2. BMW NA's counsel replied via email that same day and stated that although production on such short notice was unlikely, the request would be forwarded to BMW NA and Baur. Doc. 39-3. BMW NA's counsel concluded the email by stating, "As you know, under [Rule] 34 BMW [NA] is entitled to 30 days to respond to a request for documents which is what you are making here." Doc. 39-3.

At Baur's deposition, Baur did not produce documents concerning the cases referenced in the December 2, 2015 email and testified that he had no specific recollection of either case. Doc. 39-5 at 2-3. BMW NA objected to Plaintiffs' line of questioning regarding documents from other cases as untimely and stated that BMW NA would "need the time that is ordinarily allowed under Rule 34 to respond" to Plaintiffs' requests. Doc. 39-5 at 1.

After the deposition, on December 29, 2015, Plaintiffs' counsel sent a letter to BMW NA's counsel requesting the following:

1. Any and all records in BMW NA's in [sic] possession pertaining to the cases involving car jacks, including, but not limited to, Beaver v. BMW NA; Benton v. BMW NA and Gallimore v BMW NA including any portions of the files that are not privileged. If privilege is claimed for any documents, identify such and set forth what privilege BMW NA intends to rely on.
2. A true and correct copy of the "inspection" and related report that Mr. Baur performed on the car jack in Beaver v. BMW NA and/or Benton v. BMW NA.
3. Any and all complaints, either where a car jack provided with any E39 model BMW "broke" or "failed" as defined by Mr. Baur, which are kept in the "database" as stated by Mr. Baur.

Doc. 39-4 at 1. These requests were similar to, but broader than, the email request for documents sent two days before Baur's deposition. Cf. Doc. 39-2. Plaintiffs' counsel asked that he be notified if BMW NA required a formal request for production of documents. Doc. 39-4 at 2.

On February 6, 2016, Plaintiffs' counsel again emailed BMW NA's counsel because BMW NA had neither responded to nor produced the requested documents. Doc. 39-6. Plaintiffs' counsel sent a letter to the same effect to BMW NA's counsel on February 8, 2016. Doc. 39-7. BMW NA's counsel acknowledged receipt of the email and letter, pointed out that both requests were made after the discovery deadline, and stated that "[b]ecause these requests were made informally, please consider this BMW NA's informal response objecting to them." Doc. 39-8. ...

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