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United States District Court, N.D. Illinois

January 8, 2004.

Ford Motor Co.

The opinion of the court was delivered by: JAMES ZAGEL, District Judge

Jacob Krippelz, Sr. sued Ford Motor Company for infringing claim 2 of United States Patent No. 5,017,903. The patent's subject matter is a lighting device. Ford's Explorer vehicles have similar lighting devices, which Krippelz claims infringe his patent. In the course of discovery, Ford, through its expert Dr. John Van Derlofske, conducted tests of the Ford Explorer, including measuring the illuminance and luminance from the lighting device. Ford used these results in opposing Krippelz's second motion for summary judgment. Krippelz now moves to compel Ford to permit him to conduct inspection of the Explorer, equipment, devices and facilities used in the test.

Federal Rule of Civil Procedure 34 permits entry upon designated land or other property of a party for the purpose of measuring, inspecting, photographing and testing, among other things. The scope of permitted inspections is as broad, being governed by Rule 26. Cuno Inc. v. Pall Corp., 116 F.R.D. 279, 281 (E.D.N.Y. 1987) ("Inspection is permitted, and indeed anticipated, by Rule 34(a), to be governed by the scope of Rule 26(b). . . . The scope of Rule 26(b) is `any matter . . . which is relevant.'"); Eirhart v. Libbey-Owens-Ford Co., 93 F.R.D. 370, 371 (N.D. Ill. 1981) ("In general terms, that Rule [26] poses a very low hurdle — it permits `discovery regarding any matter not privileged, which is relevant to the subject matter involved in the pending action.'"). In general, if the discovery sought is relevant, or likely to lead to the discovery of admissible evidence, then it should be permitted.

Krippelz argues that inspection of the test site and materials is necessitated by the gross discrepancy (about an order of magnitude) in maximum light test data of Ford. In a document produced by Ford dated April 4, 1995, maximum light values on the ground of 320 and 835 lux were measured. Yet the measurements made by Ford's expert for opposing summary judgment, maximum light values of only 34 and 92 lux were reported. These differences are critical because of the definition of "conical beam of light" for this case.

  Krippelz desires to repeat as closely as possible the Ford test to determine the source of the discrepancy in the litigation results. In his replication, he wants to eliminate as many variables as possible, but despite discovery, certain elements of Ford's test remain unknown. One way for Krippelz to replicate the test and reduce as many variables as possible is for him to have access to the facility, equipment and materials used in conducting the test.

  Ford argues that the 1995 test is irrelevant because it only tested a prototype of the lighting device and not production versions and that Krippelz's request for comparative purposes is therefore irrelevant. However, Ford does not offer evidence that the prototype for which measurements were made in 1995 is different than the production versions. In addition, Krippelz's requested discovery is likely to lead to the discovery of admissible evidence regardless of the comparative purpose for its request. Ford also argues that Krippelz's access to the testing facility and to the mats used is unnecessary because illuminance is unaffected by the ground around the vehicle. However, the test measured luminance as well as illuminance, and the reflective properties and surfaces of the items used in the test may be important with regards to luminance measurements.

  In sum, I find that Krippelz's requested discovery is relevant, or at least likely to lead to the discovery of admissible evidence. I therefore compel Ford to make available for Krippelz's inspection, including without limitation, for use, measuring, testing and photographing: (1) the Explorer tested in October 2003; (2) the facilities where it was tested for up to six (6) hours; and (3) the illuminance and luminance meters, mats, and other equipment and materials used in the testing.

  For the reasons above, Krippelz's Motion to Compel Inspection is GRANTED.


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