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IN THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF MARYLAND

CHRISTOPHER TUCKER et al. Plaintiffs, v. 1099 OHTSU TIRE & RUBBER CO., LTD., et al. Defendants.

* * * Civil Action No. AMD 98* *

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MEMORANDUM AND ORDER Plaintiffs' latest of many motions to compel that have required court resolution in this products liability case seeks to obtain production of documents related to two lawsuits brought against defendant Ohtsu ("Ohtsu" or "defendant") in other jurisdictions. The first was filed in

state court in Texas, Hernandez v. Ohtsu Tire and Rubber Company, Case No. 08-08-3500, District Court in the 79th Judicial District, Jim Wells County, Texas (the "Hernandez" case), and the second was filed in state court in New York, Peralta v. Allweather Tire Sales & Service, Inc., Index No. 34057/98, Supreme Court of New York, Kings County,(the

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"Peralta" case).

Defendant Ohtsu objects to production of the

documents relating to these two cases for a variety of reasons: the plaintiffs' motion to compel was untimely; the defendant regards the plaintiffs' motion as harassment; it alleges production of these documents will violate a protective order; and it raises objections as to relevance, burdensomeness, and cost. As required by Local Rule 104.8,

all of the papers relating to this motion have been filed collectively at Paper No. 54. Rule 105.6. No hearing is necessary. Local

For the reasons stated below, plaintiffs' motion

is granted, in part, and denied, in part. All but one of the defendant's objections to the discovery plaintiffs seek are easily resolved. While

plaintiffs candidly acknowledge that they failed to timely file this motion,1 the defendant has identified no prejudice it would suffer if the motion is received. Plaintiffs only

seek production of documents,2 not more extensive discovery.

Local Rule 104.8 requires the filing of motions to compel responsive answers to interrogatories and document production requests within 30 days of receipt of the allegedly non-responsive answers. In this case, plaintiffs' motion was more than 40 days late. To the extent that defendants may fear that, once plaintiffs review the documents produced as a result of this order, they may seek to take additional discovery in light of the information revealed in them, this concern is misplaced, as no extension of the discovery deadline would be granted absent extraordinary 2
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The Peralta documents, according to the defendant, already have been produced, but not yet reviewed by the plaintiffs. The Hernandez documents are already in the possession of the defendant's Texas law firm, and are maintained in a segregated form, as apparently required by an order of the United States District Court for the Southern District of Texas.3 Thus,

granting the motion would not unfairly prejudice or burden the defendant. Moreover, while a failure to comply with the time requirements of Local Rule 104.8 might ordinarily prove fatal to a motion to compel responsive answers, an absolute rule requiring this result without first determining whether the opposing party would suffer any real prejudice if the motion is granted would be too harsh a construction of the local rule. Fed. R. Civ. P. 1. Accordingly, the plaintiffs' motion

circumstances. Plaintiffs refer to this order by the United States District Court for the Southern District of Texas regarding these documents on page 3, note 4 of their memorandum in support of their motion to compel. According to a letter from plaintiffs' counsel to this court, dated February 16, 2000, the order was made during a telephone conference on July 9, 2000 and the court did not memorialize it in writing. Neither party has provided me with any more information regarding this order, such as its specific content or the basis for the jurisdiction of the Southern District of Texas to enter such an order. Therefore, no information has been presented to me regarding the actions of the Southern District of Texas that would warrant changing the ruling in this order. 3
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will not be dismissed simply because it was untimely. Defendant's relevance arguments also are without merit. As to the Peralta case, the defendant's production of those documents, which it asserts it has done -- but the plaintiffs have yet to review them -- moots its relevance argument. As

to the Hernandez case, even though it relates to a light truck tire, not a passenger tire as is at issue here, the plaintiffs have established threshold relevance, as required by Fed. R. Civ. P. 26(b)(1) and Fed. R. Evid. 401. As plaintiffs note in

their memoranda, the plaintiffs in the Hernandez case alleged the same defect as is alleged in this case, i.e., improper adhesion of the components of a steel belted radial tire. addition, the plaintiffs already have made reference during this litigation to one deposition taken in the Hernandez case, to contradict statements made in the deposition of the defendant's Rule 30(b)(6) designee in this case. Accordingly, In

I am convinced that the Hernandez documents, if otherwise discoverable, are relevant to this case and may lead to the discovery of admissible evidence. Fed. R. Civ. P. 26(b)(1).

Additionally, defendant's assertions of harassment, burden, prejudice, and expense are generalized, non-specific objections, which are insufficient to prevent the requested discovery. The party claiming that a discovery request is unduly

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burdensome must allege specific facts that indicate the nature and extent of the burden, usually by affidavits or other reliable evidence. See Coker v. Duke & Co., 177 F.R.D. 682, 686 (M.D. Ala.

1998); Jackson v. Montgomery Ward & Co., 173 F.R.D. 524, 528-29 (D. Nev. 1997). enough. A conclusory assertion of burden and expense is not

See Coker, 177 F.R.D. at 686.

The one issue raised by the defendant in connection with the Hernandez case, however, which does require more extensive consideration, is its assertion that certain of the documents sought in connection with that case cannot be produced because to do so would violate a confidentiality order issued by the Texas court in that litigation. Because this issue is a

recurring one, and there is little helpful authority to aid in its resolution, it deserves to be discussed in more detail. The starting point is the confidentiality order itself. The order in question is titled "Agreed Confidentiality Order." "Order".) (Pls.' Mem. at Ex. 3, Paper No. 54, hereinafter, the The parties to the Order are the plaintiffs in the

Hernandez litigation (the "Hernandezes") and defendant Ohtsu. The Order recites that the Hernandezes sought from Ohtsu documents which Ohtsu considered sensitive and confidential. The Order further states that because of this dispute, the Hernandezes and Ohtsu had agreed that the procedures

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identified in the Order would apply to all documents produced by Ohtsu that it designated as confidential. Thus, the scope

of the Order is limited to protecting Ohtsu with respect to documents which it designated as confidential and produced during discovery. Like the protection afforded by the Order,

the obligations imposed by it are similarly one sided, as only the Hernandezes are enjoined from any use of the documents produced that do not fall within those permitted by the Order. At the conclusion of the litigation, the plaintiffs' attorney was obligated to return to Ohtsu's attorney all of the confidential documents produced, as well as any copies made. Order at

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