2:12-md-02311-MOB-MKM Doc # 1294 Filed 04/20/16 Pg 1 of 9 Pg ID 23052
`
`UNITED STATES DISTRICT COURT
`EASTERN DISTRICT OF MICHIGAN
`SOUTHERN DIVISION
`
`
`In Re: AUTOMOTIVE
`PARTS ANTITRUST
`LITIGATION
`
`
`
`In Re: All Auto Parts Cases
`
`
`THIS DOCUMENT RELATES
`TO: ALL AUTO PARTS CASES
`
`
`
`
`: 12-md-02311
`: Honorable Marianne O. Battani
`: Special Master Gene J. Esshaki
`
`: 2:12-MD-02311-MOB-MKM
`:
`:
`:
`:
`:
`:
`
`SPECIAL MASTER’S ORDER REGARDING
`THE PARTIES’ MOTION TO COMPEL DISCOVERY FROM
`NON-PARTY OEMS AND ORDERING NON-PARTY OEM
`RULE 30(b)(6) DEPOSITIONS
`
`WHEREAS, on January 19, 2016, Plaintiffs and Defendants (collectively,
`
`the “Parties”1) filed a Joint Motion to Compel Discovery from Non-Party Original
`
`Equipment Manufacturers,2 seeking to compel responses to certain narrowed
`
`requests of uniform subpoenas served on the non-party original equipment
`
`
`1 The Parties consist of End Payor Plaintiffs (EPPs), Automobile Dealer Plaintiffs
`(ADPs), Truck and Equipment Dealer Plaintiffs (TEDPs), the State of Florida, the
`State of Indiana (collectively, the “Plaintiffs”), and Defendants in the Automotive
`Parts Antitrust Litigation, No. 2:12-md-02311-MOB-MKM (E.D. Mich.) (see
`ECF. No. 1185 Attachment A).
`2 The Parties’ Motion to Compel Discovery from Non-Party Original Equipment
`Manufacturers (see, e.g., ECF No. 1185).
`
`
`
`UNITED STATES DISTRICT COURT
`EASTERN DISTRICT OF MICHIGAN
`SOUTHERN DIVISION
`
`
`In Re: AUTOMOTIVE
`PARTS ANTITRUST
`LITIGATION
`
`
`
`In Re: All Auto Parts Cases
`
`
`THIS DOCUMENT RELATES
`TO: ALL AUTO PARTS CASES
`
`
`
`
`: 12-md-02311
`: Honorable Marianne O. Battani
`: Special Master Gene J. Esshaki
`
`: 2:12-MD-02311-MOB-MKM
`:
`:
`:
`:
`:
`:
`
`SPECIAL MASTER’S ORDER REGARDING
`THE PARTIES’ MOTION TO COMPEL DISCOVERY FROM
`NON-PARTY OEMS AND ORDERING NON-PARTY OEM
`RULE 30(b)(6) DEPOSITIONS
`
`WHEREAS, on January 19, 2016, Plaintiffs and Defendants (collectively,
`
`the “Parties”1) filed a Joint Motion to Compel Discovery from Non-Party Original
`
`Equipment Manufacturers,2 seeking to compel responses to certain narrowed
`
`requests of uniform subpoenas served on the non-party original equipment
`
`
`1 The Parties consist of End Payor Plaintiffs (EPPs), Automobile Dealer Plaintiffs
`(ADPs), Truck and Equipment Dealer Plaintiffs (TEDPs), the State of Florida, the
`State of Indiana (collectively, the “Plaintiffs”), and Defendants in the Automotive
`Parts Antitrust Litigation, No. 2:12-md-02311-MOB-MKM (E.D. Mich.) (see
`ECF. No. 1185 Attachment A).
`2 The Parties’ Motion to Compel Discovery from Non-Party Original Equipment
`Manufacturers (see, e.g., ECF No. 1185).
`
`
`
`2:12-md-02311-MOB-MKM Doc # 1294 Filed 04/20/16 Pg 2 of 9 Pg ID 23053
`
`manufacturers (“OEMs”) and their affiliates3 pursuant to the Court’s orders at ECF
`
`No. 277, Case No. 2:12-cv-00100 and ECF No. 949, Case No. 2:12-md-002311,
`
`and certain plaintiff parties filed a separate motion to compel regarding Request
`
`Nos. 27 and 31 in the Uniform OEM Subpoena (collectively, the “Motions”);4
`
`WHEREAS, on February 19, 2016, the subpoenaed OEMs and their
`
`affiliates subject to the Motions filed several oppositions to the Motions5;
`
`WHEREAS, on March 11, 2016, the Parties filed replies to the Motions6;
`
`WHEREAS, on March 24, 2016, after having reviewed the above-referenced
`
`submissions, the undersigned held a mediation with the Parties and the OEMs, and
`
`a hearing regarding the disputes raised in the Motions;
`
`WHEREAS, the undersigned, after conducting several hours of discussions
`
`both individually and jointly with the Plaintiffs, Defendants, and OEMs, reached
`
`the conclusion that there was insufficient information before him to rule on
`
`whether and/or to what extent to order the requested discovery from the OEMs and
`
`their affiliates;
`
`
`3 The full list of OEMs and sub-categories of entities is set forth in ECF No. 1227-2.
`4 The motions to compel are docketed at ECF Nos. 1185, 1187 and 1188.
`5 The OEMs’ oppositions to the motions to compel are docketed at ECF Nos. 1223,
`1224, 1226, 1227, and 1230. Defendants filed an opposition to the motion to
`compel filed by certain plaintiff parties regarding Request Nos. 27 and 31. See
`ECF No. 1216.
`6 See ECF Nos. 1246, 1250, and 1254.
`
`
`
`2
`
`
`
`2:12-md-02311-MOB-MKM Doc # 1294 Filed 04/20/16 Pg 3 of 9 Pg ID 23054
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`WHEREAS, on March 24, 2016, following the mediation, the Special Master
`
`held a hearing regarding the disputes raised in the Motions, during which he heard
`
`argument from the various OEMs and then issued his rulings on the Motions. This
`
`Order Regarding Serving Parties’ Motion to Compel Discovery from Non-Party
`
`OEMs and Ordering Rule 30(b)(6) Deposition of Certain Non-Party OEM Families
`
`(the “Order”) memorializes the Special Master’s rulings on these disputes.
`
`IT IS HEREBY ORDERED AS FOLLOWS:
`
`I.
`
`DEFINITIONS
`“Auto Part Product” shall mean the specific automotive part to
`
`A.
`
`which each Lead Case (as defined in the March 22, 2106 Electronic
`
`Case Management Protocol Order, Master File No. 2:12-md-02311,
`
`ECF No. 1262) is related in the Auto Parts Cases.
`
`B.
`
`“Auto Parts Cases” shall mean all cases that are consolidated or
`
`coordinated into In re Automotive Parts Antitrust Litigation and
`
`including, without limitation, 2:15-cv-12893 and 2:15-cv-003200
`
`(Automotive Hoses); 2:15-cv-13000 (Automotive Brake Hoses); 2:15-
`
`cv-14080, 2:16-cv-11256 and 2:15-cv-03300 (Shock Absorbers);
`
`2:16-cv-10456, 2:16-cv-11260 and 16-cv-03400 (Body Sealings) and
`
`2:16-cv-10461, 4:16-cv-11257 and 16-cv-03500 (Plastic Interior Trim
`
`Parts); 2:16-cv-11082 and 2:16-cv-11087 (Exhaust Systems).
`
`
`
`3
`
`
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`2:12-md-02311-MOB-MKM Doc # 1294 Filed 04/20/16 Pg 4 of 9 Pg ID 23055
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`C.
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`“Plaintiffs” shall mean End Payors (EPPs), Automobile Dealer
`
`Plaintiffs (ADPs), Truck and Equipment Dealer Plaintiffs (TEDPs),
`
`D.
`
`E.
`
`the State of Florida, and the State of Indiana.
`
`“Defendants” shall mean Defendants in the Auto Parts Cases.
`
`“OEM Deponent Group” shall mean the “Chrysler Group” (FCA
`
`US LLC and Fiat Chrysler Finance North America, Inc.); the
`
`“Daimler Group” (Daimler North America Corp. (MI); Daimler
`
`North America Corp. (NJ); Daimler Purchasing Coordination Corp.;
`
`Daimler Trucks North America LLC; Daimler Vans Manufacturing,
`
`LLC; Daimler Vans USA LLC; Freightliner Custom Chassis Corp.;
`
`Mercedes-Benz Advanced Design of North America Inc.; Mercedes-
`
`Benz Credit Corp.; Mercedes- Benz Financial Services USA LLC;
`
`Mercedes- Benz Research & Development North America, Inc. (CA);
`
`Mercedes-Benz Research & Development North America, Inc. (MI);
`
`Mercedes-Benz U.S. International, Inc.; Mercedes- Benz USA, LLC;
`
`Mitsubishi Fuso Truck of America, Inc.; Thomas Built Buses, Inc.;
`
`Western Star Trucks Sales, Inc.); the “GM Group” (General Motors
`
`Company; General Motors Financial Company, Inc.; General Motors
`
`Holdings LLC; General Motors LLC);
`
`the “Honda Group”
`
`(American Honda Motor Co., Inc.; American Honda Finance Corp.;
`
`
`
`4
`
`
`
`2:12-md-02311-MOB-MKM Doc # 1294 Filed 04/20/16 Pg 5 of 9 Pg ID 23056
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`Honda Manufacturing of Indiana, LLC; Honda North America, Inc.;
`
`Honda of America Mfg., Inc.; Honda of South Carolina Mfg., Inc.;
`
`Honda Precision Parts of Georgia, LLC; Honda R&D Americas, Inc.;
`
`Honda Research
`
`Institute USA,
`
`Inc.; Honda Transmission
`
`Manufacturing of America, Inc.); the “Hyundai Group” (Hyundai
`
`Motor Manufacturing Alabama, LLC; Hyundai America Technical
`
`Center, Inc.; Hyundai Motor America; Hyundai AutoEver America,
`
`LLC; Hyundai Capital America); the “Kia Group” (Kia Motors
`
`Manufacturing Georgia, Inc.; Kia Motors America, Inc.); the “Nissan
`
`Group” (Nissan North America, Inc.; Nissan Design America,
`
`Inc.(part of NNA); Nissan Technical Center North America, Inc. (part
`
`of NNA); Nissan Diesel America, Inc. (part of NNA); Nissan Motor
`
`Acceptance Corp.); the “Subaru Group” (Subaru of America, Inc.,
`
`Subaru Leasing Corp., Fuji Heavy Industries U.S.A., Inc., Subaru of
`
`Indiana Automotive, Inc.); and, the “Toyota Group” (Toyota Motor
`
`Sales, USA, Inc.; Toyota Motor Engineering & Manufacturing North
`
`America, Inc. (the Parties have agreed to hold in abeyance subpoenas
`
`to the other listed Toyota entities).
`
`F.
`
`“Smaller OEM Group” herein shall mean each OEM group listed on
`
`page 6 (of 7) of Exhibit 1227-2 to The Specified Subpoenaed Entities’
`
`
`
`5
`
`
`
`2:12-md-02311-MOB-MKM Doc # 1294 Filed 04/20/16 Pg 6 of 9 Pg ID 23057
`
`Joint Opposition to the Parties’ Motions to Compel, ECF No. 1227-2
`
`(i.e., (1) BMW; (2) Hino; (3) Jaguar Land Rover; (4) Mitsubishi;
`
`(5) Porsche; (6) Subaru; (7) VW; and (8) Volvo).
`
`II. DEPOSITIONS ORDERED
`The Parties collectively may take one (1) Rule 30(b)(6) deposition
`A.
`
`lasting up to fourteen (14) hours over two (2) days (or such longer
`
`periods as specifically set forth in Section II of this Order) of each
`
`OEM Deponent Group respecting the following fields of inquiry (and,
`
`where an OEM Deponent Group manufactures or sells vehicles at
`
`issue in the TEDP case, as well as the vehicles at issue in the ADP and
`
`EPP cases, the Parties may collectively take up to two such Rule
`
`30(b)(6) depositions of up to fourteen (14) hours each):
`
`1.
`
`Transactional purchase data for the Auto Parts Products at
`
`issue;
`
`2.
`
`Procurement process and supplier selection and price
`
`adjustments for the Auto Parts Products at issue, and documents
`
`3.
`
`4.
`
`related thereto;
`
`Vehicle cost data and other cost information;
`
`Vehicle pricing process, including process for setting and
`
`adjusting pricing, and documents related thereto;
`
`
`
`6
`
`
`
`2:12-md-02311-MOB-MKM Doc # 1294 Filed 04/20/16 Pg 7 of 9 Pg ID 23058
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`5.
`
`Transactional sales data for sales of vehicles:
`
`a.
`
`from OEMs to automobile dealers and truck and
`
`b.
`
`c.
`
`equipment dealers;
`
`from OEMs to distributors;
`
`from distributors to automobile dealers and truck and
`
`equipment dealers;
`
`d.
`
`from automobile dealers and truck and equipment dealers
`
`to end-consumers;
`
`e.
`
`f.
`
`from OEMs to end-consumers (e.g., fleet buyers); and
`
`from distributors to end-consumers.
`
`B.
`
`References in 1–5 above to documents and data include information
`
`on format, volume, where maintained, time period, current and legacy
`
`systems, and costs and burden of production.
`
`C.
`
`The allotted time for each deposition shall be divided equally between
`
`Plaintiffs (collectively) and Defendants (collectively). If, at the end of
`
`the deposition, one side has not used all of its allotted time, the parties
`
`will confer regarding said remaining time.
`
`D.
`
`Each hour of examination time of any corporate representative whose
`
`examination is conducted through an interpreter shall count as 7/13’s
`
`
`
`7
`
`
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`2:12-md-02311-MOB-MKM Doc # 1294 Filed 04/20/16 Pg 8 of 9 Pg ID 23059
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`of an hour toward the fourteen (14) hour maximum time for the Rule
`
`30(b)(6) deposition of the particular OEM Deponent Group.
`
`E.
`
`The depositions ordered herein shall commence four weeks after the
`
`ECF filing date of this Order if it is not appealed, or the date on which
`
`the order is affirmed by the District Court, if it is appealed (the
`
`“commencement date”), and shall be completed within 45 days of the
`
`commencement date.
`
`F.
`
`The Parties collectively shall serve on each OEM Deponent Group
`
`from which the Parties seek Rule 30(b)(6) testimony a deposition
`
`notice listing the OEM Deponent Group entities and identifying the
`
`fields of inquiry listed in Section II.A.1–5 and B. For each OEM
`
`Deponent Group whose counsel has appeared
`
`in
`
`these MDL
`
`proceedings in connection with the Motion, service of the notices may
`
`be effected via e-mail to such counsel. So long as they conform with
`
`the topics set forth in this Order, no objections to the deposition notices
`
`shall be permitted.
`
`G. An OEM Deponent Group must designate one or more appropriate
`
`individual(s) to serve as its corporate representative(s) to testify on its
`
`behalf in response to a Rule 30(b)(6) notice.
`
`
`
`8
`
`
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`2:12-md-02311-MOB-MKM Doc # 1294 Filed 04/20/16 Pg 9 of 9 Pg ID 23060
`
`H.
`
`The corporate representative, or representatives collectively, shall be
`
`prepared to testify concerning the fields of inquiry for which the
`
`Deponent OEM Group has designated him or her a corporate
`
`representative on behalf of the entire OEM Group.
`
`I.
`
`Depositions of Smaller OEM Groups, except for Subaru, will be held
`
`in abeyance pending completion of the other OEM Group Rule
`
`30(b)(6) depositions ordered herein.
`
`III. AVAILABILITY OF APPEAL OF THIS ORDER
`This Order shall be subject to appeal to The Honorable Marianne O. Battani,
`
`pursuant to the Order Appointing A Master (ECF No. 792). Any party that wishes
`
`to file an objection to this Order must do so within fourteen (14) days of the ECF
`
`filing date of this Order. Responses shall be due ten (10) days after the date on
`
`which the objections are filed, and replies shall be due five (5) days after the date
`
`on which the responses are filed. Failure to meet this deadline results in waiver of
`
`any objection to the Master’s order, absent good cause shown. Order Appointing
`
`A Master, § II.B.
`
`DATED: April 20, 2016
`
`
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`
`
`/s/ Gene J. Esshaki
`GENE J. ESSHAKI, Special Master
`
`
`
`CERTIFICATE OF SERVICE
`
`
`The undersigned certifies that the foregoing Order was served upon counsel of record via the Court's
`ECF System to their respective email addresses or First Class U.S. mail to the non-ECF participants on
`April 20, 2016.
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`s/ Kay Doaks
`Case Manager
`
`
`
`9
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