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Pertile v. General Motors, LLC

United States District Court, D. Colorado

March 17, 2016

DANIEL PERTILE, an individual, and GINGER PERTILE, an individual, Plaintiffs,
GENERAL MOTORS, LLC a Delaware limited liability company, TRW VEHICLE SAFETY SYSTEMS, INC., a Delaware corporation, KELSEY-HAYES COMPANY, a Delaware corporation, JOHN DOE NOS. 1-25, and JOHN DOE COMPANIES NOS. 1-25, Defendants.


Nina Y. Wang Magistrate Judge

This matter comes before the court on Plaintiffs’ Motion to Compel Production of General Motors LLC’s Finite Element Models for the GMT 900 Series (the “Motion to Compel FEA Models”) [#87, filed Sept. 1, 2015]. The matter was referred to this Magistrate Judge pursuant to the Order of Reference dated May 12, 2015 [#58] and the memorandum dated September 2, 2015 [#88]. The Parties submitted briefing on the Motion to Compel FEA Models, including an Opposition by Defendant General Motors LLC (“GM”)[1] [#96, filed Sept. 22, 2015] and a Reply filed by Plaintiffs Daniel and Ginger Pertile (“Plaintiffs” or “the Pertiles”) [#107, filed Oct. 9, 2015]. The court held oral argument on October 30, 2015, and took the Motion to Compel FEA Models under advisement. Having now fully considered the issue presented, this court DENIES the Motion to Compel FEA Models for the following reasons.


The Pertiles originally initiated this action in state court in the District Court for the City and County of Denver, Colorado on February 17, 2015. [#1-1]. The Pertiles allege that Plaintiff Daniel Pertile was catastrophically injured during a rollover accident in which he was the front seat passenger of a Chevrolet Silverado 2500 HD crew cab, VIN number 1GC1KVCG9BF167901, that occurred on or about February 25, 2013. [#1-1 at ¶ 35]. As initially pled, Plaintiffs named a number of defendants that were purportedly involved in the design and manufacturer of a Chevrolet Silverado 2500 HD crew cab truck, its safety restraint system, and the electronic stability control system. [#1-1 at ¶¶ 39-41]. On March 12, 2015, one of those defendants, Delphi Automotive Systems, LLC, removed the action to this court. [#1].

On April 8, 2015, Plaintiffs filed an Amended Complaint, dismissing a number of Defendants (including Delphi Automotive Systems).[2] [#31]. By the time that the Scheduling Order was entered in this case on May 13, 2015, only five named entities remained as Defendants: GM, TRW Vehicle Safety Systems, Inc. (“TRW”), Kelsey-Hayes Company (“Kelsey-Hayes”), DPH Holdings Corporation and DPH-DAS, LLC (collectively “DPH”). DPH was subsequently dismissed [#69], leaving GM, TRW, Kelsey-Hayes, the John Doe Individuals and John Doe Companies as Defendants. The court entered a Protective Order, to which the Parties had stipulated, on July 6, 2015, and an Electronically Stored Information (“ESI”) Protocol to facilitate discovery. [#81, #79]. The ESI Protocol reflected the Parties’ disagreement as to whether GM would be required to produce ESI related to its finite element analysis. [#79 at 3]. Finite element analysis (“FEA”) refers to “a computer modeling technology used to create a mathematical simulation of three dimensional, virtual representation of a vehicle, component or system subjected to prescribed load conditions.” [#96 at 2]. It is used to simulate real-world behavior of physical objects. See Cordis Corp. v. Medtronic Ave, Inc., 511 F.3d 1157, 1169-70 (Fed. Cir. 2008). It does not reflect actual real-world testing performed on the final design of the vehicle at issue.

The Parties proceeded with discovery, including the exchange of documents and ESI through Initial Disclosures. GM has produced ESI related to the design of the Chevrolet Silverado at issue, in the form of Computer Aided Design (“CAD”) files. [#96-1 at ¶ 5]. On August 25, 2015, this court held a telephone discovery conference regarding Plaintiffs’ request for GM’s FEA Models. Specifically, Plaintiffs request production “in their original native formal all finite element models depicting the roof and pillar structures of the subject vehicle design including but not limited to inputs, outputs, pre and post processing, and mesh files.” [#87-1 at 1]. GM refused to produce its trade-secret FEA Models, on the grounds that the discovery sought by Plaintiffs was not reasonable or necessary, particularly in light of the other discovery provided by GM.

The court then asked the Parties to brief the issue, and include any evidentiary support for their positions. This instant Motion to Compel FEA Models, and the related briefing, followed.


The recent amendment to Federal Rule of Civil Procedure 26(b)(1), effective December 1, 2015, reads “[u]nless otherwise limited by court order, the scope of discovery is as follows:

Parties may obtain discovery regarding any nonprivileged matter that is relevant to any party’s claim or defense and proportional to the needs of the case, considering the importance of the issues at stake in the action, the amount in controversy, the parties’ relative access to relevant information, the parties’ resources, the importance of the discovery in resolving the issues, and whether the burden or expense of the proposed discovery outweighs its likely benefit.

Pursuant to 28 U.S.C. § 2074(a) and the Order of the Supreme Court dated April 29, 2015, the amendment shall govern all civil cases commenced after December 1, 2015 and “insofar as just and practicable, all proceedings then pending.”[3] Although this case was initiated prior to December 1, 2015, this court applies the principles of proportionality as discussed above because they are the same principles that would have applied through the former Rule 26(b)(2)(C)(iii). See Fed. R. Civ. P. 26(b)(1) advisory committee’s note to 2015 amendment (“Most of what now appears in Rule 26(b)(2)(C)(iii) was first adopted in 1983.”).

In this case, the threshold inquiry is whether, pursuant to Rule 26(b)(1), the FEA Models should be produced in native format, to support Plaintiffs’ claims for product liability and negligence.[4] GM asserts (and Plaintiffs do not contest) that it has already produced over 150, 000 pages of discovery materials and data, including three-dimensional CAD drawings. [#96-1 at 5]. GM has also produced the engineering analysis reports and the evaluation reports resulting from the FEA Models. [Id. at ¶ 10]. Plaintiffs contend, however, that the production to date is insufficient because the FEA Models are necessary to reflect what GM knew when it designed and tested the roof. [#87 at 5]. Plaintiffs further contend that with the FEA Models, Plaintiffs could conduct their own simulations and would be able to understand what GM knew or could have known about the truck’s design and testing. [Id.].


I. Relevance

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