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Zingerman v. Nissan North America, Inc.

United States District Court, N.D. Illinois, Eastern Division

August 10, 2016

L. ZINGERMAN, D.D.S., P.C. d/b/a NILES FAMILY DENTAL, individually and on behalf of all others similarly situated Plaintiffs,

          Judge, Virginia M. Kendall



         Plaintiff L. Zingerman D.D.S., P.C. (“Plaintiff” or “Zingerman”), individually and on behalf of a putative class, sues Defendant Nissan North America, Inc. (“Defendant” or “Nissan”) for its alleged misrepresentation of the availability of certain technology in its 2014 Infiniti Q50 automobile. (Compl. ¶ 1.) In particular, Zingerman claims that Nissan represented that the Q50 contained the “InTouch” interactive telematics system, which enabled users to access various mobile applications. (Id.) Contrary to such representations, however, Zingerman contends that the system could not perform the tasks Nissan represented it would. (Id.) The case is before this Court on Plaintiff’s motion to compel the production of documents withheld as privileged. (Dkt. 90.) For the reasons stated herein, the motion is denied.


         On May 20, 2016, Plaintiff filed a motion to compel the production of documents or, in the alternative, an in camera review of documents that total 223 pages of a privilege log.[1] (Dkt. 90, Ex. A.) Plaintiff delayed in filing its motion to compel until after the May 13, 2016 close of discovery even though Judge Kim, the then-supervising magistrate judge, advised the parties that this deadline was a “firm deadline.” (Dkt. 79, 87.) Judge Kim first gave the parties notice of the “firm deadline” upon granting Plaintiff’s motion for an extension of the fact discovery deadline on February 19, 2016. (Dkt. 79.) In spite of this instruction, Plaintiff again filed for an extension merely one day prior to the close of fact discovery. (Dkt. 85.) Judge Kim denied the motion for an extension and reiterated that he had advised the parties of the “firm deadline” for the close of fact discovery. (Dkt. 87.) Although Judge Kim informed the parties that Plaintiff could file a motion to compel by May 20, 2016, his order explicitly instructed Plaintiff to explain in any motion Plaintiff would bring the timeliness of its discovery issues. (Id.)

         Outside of providing a timeline of events in its statement of facts, (dkt. 90, pp. 3-4), and asserting that the Federal Rules of Civil Procedure do not provide a deadline for challenging a privilege log, (dkt. 99, p. 5), Plaintiff does little to address the timeliness of its motion. In fact, Plaintiff acknowledges in its reply brief that it filed its motion after several months of discussions with Defendant regarding the dispute over the adequacy of Defendant’s privilege log. (Id. at 2, 5.)

         Yet despite the apparent tardiness of Plaintiff’s motion, this Court allowed Plaintiff to identify 20 documents that Plaintiff believed had self-sustaining evidentiary value such that the production of the documents themselves would provide value to Plaintiff’s case at this late stage of the litigation. In other words, because discovery is closed, [2] Plaintiff cannot use the production of documents as a basis for further discovery practice such as the generation of requests for production or questions for depositions. Accordingly, Defendant’s production is meaningless unless Plaintiff can use the documents Defendant has withheld for purposes of summary judgment or at trial. Cf. Fed. R. Civ. P. 26(b)(1) (noting that information does not need to be "admissible in evidence to be discoverable").

         Plaintiff identified 20 documents on August 1, 2016, (dkt. 104), and shortly thereafter, the Court directed Defendant to submit the identified documents to chambers for in camera review. (Dkt. 105.) Defendant promptly complied, and the Court has completed its document-by-document review.


         The bulk of the documents identified by Plaintiff have absolutely no evidentiary value whatsoever. The documents include emails arranging meetings and contain purportedly privileged redactions of information entirely irrelevant to this litigation. Other documents contain information that could potentially be of limited evidentiary value, but Plaintiff has already derived any such value through alternative means. For example, one document discusses consumer complaints regarding the InTouch system, thus placing Nissan on notice of problems with the software. But, as Plaintiff’s complaint and already-exchanged discovery make clear, the fact that consumers complained to Nissan about functionality issues is already established. (Dkt. 67 (granting in part and denying in part motion to compel discovery of complaints filed by other consumers regarding the InTouch system; shielding Defendant’s settlement negotiations that reveal customer complaints, but stating “Defendant has already provided Plaintiff with complaints it has received about InTouch …”).) Finally, irrespective of the privilege issue, certain of the identified documents have no relation at all to the issues raised by this litigation.

         The Court acknowledges, however, that a few of the reviewed documents appear relevant and unprivileged (at least) under Illinois privilege law.[3] Whether the documents themselves would be admissible is not obvious absent further scrutiny, but the Court believes various Federal Rules of Evidence may render certain of the documents admissible. See e.g., Fed. R. Evid. 803(6) (business record exception); Fed.R.Evid. 801(d)(2)(D) (statement of party opponent). However, the Court need not further scrutinize the documents or choice of law. Rather, Plaintiff’s substantial and unnecessary delay ultimately dooms this motion because Plaintiff had a reasonable opportunity to discover the documents it now seeks. The Court is further satisfied that withholding the documents at issue will not cause the case to be decided on a technicality or prevent a fair decision on the merits.

         Plaintiff unreasonably delayed in bringing this motion to compel. Fact discovery closed on May 13, 2016. (Dkt. 87.) Plaintiff had notice of the issues raised in this motion by, at the latest, December 23, 2015. (See dkt. 99, p. 5 (stating Plaintiff received Nissan’s initial privilege log on November 23, 2015 and notified Nissan in writing of the log’s alleged deficiencies on December 23, 2015).) Despite taking issue with Nissan’s privilege log in December 2015, however, Plaintiff waited nearly five months and until after the firm close of discovery to file its motion for relief. (Dkt. 90 (Plaintiff’s motion to compel filed May 20, 2016).)

         On initial review of the timeline of events, the Court was concerned that Defendant may have lulled Plaintiff into a false sense of security that the parties would resolve the privilege log dispute absent court intervention. That concern is allayed in light of the fact Plaintiff has failed to identify any basis from which it could reasonably believe Defendant would acquiesce on the privilege log issue. Furthermore and as set forth above, Judge Kim expressly directed Plaintiff to address why the Court should consider any motion to compel timely if Plaintiff filed such a motion despite the passing of the firm close of discovery. (Dkt. 87.) Plaintiff provides the Court with a timeline in its statement of facts, (dkt. 90, pp. 3-4), and correctly points out that the Federal Rules of Civil Procedure do not prohibit a party from challenging a privilege log subsequent to the close of discovery. (Dkt. 99, p. 5). But, absent more, this does little to justify the timing of this motion when taking into consideration Judge Kim’s direction and Plaintiff’s ample opportunity to file this motion at an earlier time given its longstanding awareness of this dispute.

         The Court draws further support for finding the motion untimely because Plaintiff’s own filings indicate that the parties wrangled over the privilege log issue for an extended period of time. For example, Plaintiff’s first motion for a 90-day discovery extension on February 10, 2016, plainly identifies the continued dispute. (Dkt. 76, ¶ 6 (identifying that Nissan provided supplemental information related to the privilege log, but asserting that Nissan did not provide the title, position, or employer company for certain individuals referenced therein).) On May 12, 2016, merely one day prior to the close of discovery, Plaintiff filed a second motion to extend discovery and again identified the privilege log as ...

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