Jones v. The Whirlpool Corporation, et al

IN THE UNITED STATES DISTRICT COURT
FOR THE SOUTHERN DISTRICT OF ALABAMA
SOUTHERN DIVISION
JARVIS JONES, 	)
Plaintiff, 	)
)
v. 	) CIVIL ACTION NO. 1:22-00475-KD-N
)
THE WHIRLPOOL 	)
CORPORATION, 	)
Defendant. 	)
ORDER
This action is before the Court on Jarvis Jones’ (Plaintiff) motion to
compel 	discovery 	(Doc. 	81), 1 	The 	Whirlpool 	Corporation’s 	(Defendant)
opposition response (Doc. 90), and Plaintiff’s reply in support (Doc. 92). The
parties appeared before the Court for oral argument in connection with
Plaintiff’s motion on September 10, 2024. (Doc. 95). Upon consideration, with
the benefit of oral argument, and for the reasons stated herein, Plaintiff’s
motion to compel discovery (Doc. 81) is GRANTED in part and DENIED in
part.
I. 	Background
Plaintiff initiated this action in the Circuit Court of Mobile County,
1 The assigned District Judge has referred this motion to the undersigned
Magistrate Judge for appropriate action under 28 U.S.C. § 636(a)–(b), Federal
Rule of Civil Procedure 72, and S.D. Ala. GenLR 72(a). See S.D. Ala. GenLR
72(b); (8/6/2024 elec. ref.).
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Alabama on October 31, 2022. (Docs. 1, 1-2). Defendant removed on diversity
grounds in November 2022. See 28 U.S.C. §§ 1332, 1446. (Doc. 1). The operative
amended complaint filed April 19, 2023, against Defendant and now-former
Defendant Robertshaw Controls Company (“Robertshaw”),2 brings causes of
action 	under 	the 	Alabama 	Extended 	Manufacturer’s 	Liability 	Doctrine
(“AEMLD”) for design and manufacturing defects (Count I) and failure to warn
(Count II), along with causes of action rooted in 	negligence (Count III),
wantonness (Count IV) and breach of warranties (Count V). (Doc. 23).
Discovery 	began 	in 	January 	2023, 	and 	Plaintiff’s 	first 	set 	of
interrogatories and requests for production were served March 31, 2023. (Doc.
18). Discovery proceeded without much interruption until February 2024 when
Robertshaw noticed the Court of its bankruptcy filing. (Doc. 54). That notice
prompted a stay of discovery as to Robertshaw pursuant to 11 U.S.C. § 362(a)
(Doc. 55), and motion practice regarding whether that stay should extend to
Defendant. (Docs. 56, 59, 62). Defendant ultimately withdrew its motion
seeking to share in the stay (Doc. 63; see Doc. 64), but the motion practice
necessitated changes to the schedule (see Docs. 65, 66). At present, discovery
is set to close November 14, 2024. (Doc. 66).
2 Robertshaw was dismissed without prejudice under Rule 41(a)(2) as of April
30, 2023. (Docs. 58, 64).
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A previous motion to compel was filed May 13, 2024. (Doc. 68), which
was denied in part and granted in part by the Court on July 1, 2024 (Doc. 79).
Addressing that motion, the Court ordered Defendant to identify its models or
products (including those within the Defendant corporate umbrella) fitting the
physical characteristics of the stove at issue, which it would then use to search
its 	database 	for 	responsive 	instances 	known 	to 	Defendant—occurring 	no
earlier than five years prior to Plaintiff’s initial discovery—where those models
or products were alleged to have failed in the same or substantially similar
manner to that described by Plaintiff. (Doc. 79). Defendant was ordered to
supplement its response, utilizing those search results, which yielded one
additional similar incident from Defendant’s “Claims and Litigation Database”
that was not reported to Plaintiffs prior to this motion to compel. (Doc. 81,
PageID.658; Doc. 90, ¶ 5, PageID.815).
Following 	the 	above 	discovery 	supplementation, 	a 	deposition 	of 	a
corporate representative was held July 23, 2024. (Doc. 81, Ex. 5). During that
deposition, David Iott, a product safety engineer with Whirlpool, provided
various statements regarding internal databases and company procedures for
similar claims to those made by Plaintiff. (Doc. 81, Ex. 5). The supplemental
search and deposition lead us to the current Motion to Compel filed by Plaintiff.
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(Doc. 81). 3
II. 	Legal Standards
The scope of discovery for civil actions in federal court is broad, allowing
each party to “obtain discovery regarding any nonprivileged matter that is
relevant to any party’s claim or defense and proportional to the needs of the
case…” Fed. R. Civ. P. 26(b)(1). This broad purpose aims to empower parties
“to obtain the fullest possible knowledge of the issues and facts before trial.”
Hickman v. Taylor, 329 U.S. 495, 501 (1947). However, it is not without limits,
and district courts have “broad discretion to compel or deny discovery.” United
States v. Cuya, 964 F.3d 969, 970 (11th Cir. 2020); see Rosen v. Provident Life
& Accident Ins. Co., 308 F.R.D. 670, 676 (N.D. Ala. July 10, 2015) (“The scope
of discovery is largely within the discretion of the trial court because discovery
should be tailored to the issues involved in the particular case”) (cleaned up).
Proportionality requires counsel and the court to consider whether
relevant information is discoverable in view of the needs of the case. See
Graham & Co., LLC v. Liberty Mut. Fire Ins. Co., 2016 WL 1319697, at *3 (N.D.
Ala. April 5, 2016). Whether a particular discovery request is “proportional to
3 Plaintiff contemporaneously moved for leave to seal exhibits relevant to his
motion in accordance with the Protective Order governing this action and the
Court’s Local Rules. S.D. Ala. CivLR 5.2. (Doc. 80; see Doc. 34), which was
granted. Documents shall remain sealed subject to future reconsideration.
(See Doc. 87; Doc. 32).
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the needs” of the case involves consideration of several non-exclusive factors:
“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.” Fed. R. Civ. P.
26(b)(1). “Any application of the proportionality factors must start with the
actual claims and defenses in the case, and a consideration of how and to what
degree the requested discovery bears on those claims and defenses.” Graham,
2016 WL 1319697 at *3 (citations omitted). The court must “consider these and
all 	the 	other 	factors 	in 	reaching 	a 	case-specific 	determination 	of 	the
appropriate scope of discovery.” Fed. R. Civ. P. 26, 2015 advisory committee
note; see Lemons v. Principal Life Ins. Co., 2020 WL 9348326 (N.D. Ala. Mar.
9, 2020).
Parties “may move for an order compelling disclosure or discovery” under
Rule 37(a). Relevant here, such a motion is permitted if a party “fails to answer
an interrogatory submitted under Rule 33” or “fails to produce documents… as
requested under Rule 34.” Fed. R. Civ. P. 37(a)(3)(iii)-(iv). Under Rule 37(a)(4),
“an evasive or incomplete, disclosure, answer, or response must be treated as
a failure to disclose, answer or respond.” A resisting party’s basis for non-
disclosure must be adequately stated, and blanket or conclusory objections to
production in the face of otherwise proper discovery requests are “tantamount
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to not making any objection at all.” Boler v. Bank of Am., N.A., 2018 WL
7142093, at *4 (N.D. Ala. Oct. 1, 2018) (citation omitted). Ultimately, the
resisting party bears the burden of establishing how and why the discovery
sought is improper. See e.g., Panola Land Buyers Assoc. v. Shuman, 762 F.2d
1550, 1559 (11th Cir. 1985).
When considering requests for additional discovery about a party's
discovery efforts—often termed "discovery on discovery"—courts must balance
the need for transparency with the potential for undue burden. As noted in
Culliver v. BP, "[d]iscovery on discovery has been broadly described by courts
as 	any 	discovery 	seeking 	information 	regarding 	a 	party's 	preservation,
collection, and retention efforts." 2022 WL 19568966 (N.D. Fla. 2022). The
purpose 	of 	such 	requests 	is 	generally 	"to 	challenge 	the 	sufficiency 	and
thoroughness of the other party's production of documents and other evidence."
Id.
Courts 	have 	traditionally 	approached 	discovery 	on 	discovery 	with
caution. The Federal Rules of Civil Procedure do not demand perfection, and
the occasional omission of relevant documents does not automatically warrant
additional 	discovery. 	See 	id. 	However, 	courts 	must 	ensure 	good 	faith
compliance with discovery obligations and be prepared to investigate beyond
mere speculation when potential deficiencies in production are indicated. See
id.; see also Lemons, 2020 WL 9348326.
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While speculation of wrongdoing is insufficient to justify discovery on
discovery, 	it 	may 	be 	appropriate 	"where 	there 	is 	evidence 	of 	a 	specific
deficiency in the production" Culliver, 2022 WL 19568966 at *1. The burden of
demonstrating deficiency can be met by pointing to produced documents or
other evidence suggesting the existence of additional materials, allowing the
court to make a “reasonable deduction that other documents exist” or “pointing
to the existence of additional responsive material.” Id. at *2 (citing Hubbard v.
Potter, 247 F.R.D. 27 (D.D.C. 2008)).
III. 	DISCOVERY AT ISSUE:
Here, Plaintiff's Motion to Compel (Doc. 81) argues that the search
conducted in response to the previous court order was inadequate. The motion
contends that other databases likely contain relevant information that was
excluded from production. (Doc. 81, ¶ 10, PageID.662). These allegations follow
corporate testimony and supplemental production—as described above in
Section III—which yielded facially dissimilar documents and raised concerns
about possible discrepancies in internal claims processing. (Doc. 81, ¶¶ 10-16,
PageID.663-64). Additionally, Plaintiff seeks expanded discovery into product
testing, quality assurance, and communications with a now-bankrupt parts
supplier. (Doc. 81, PageID.673).
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Specifically, Plaintiff seeks the following in the current motion:
• 	(1) All warranty claims, complaints, reports, alerts, notices, lawsuits, or
other documentation reflecting substantially similar incidents as defined
by this Court’s Order dated July 1, 2024;
• 	(2) the Failure Mode and Effects Analysis (“FMEA”) for the Glass
Cooktop and Infinite Switch;
• 	(3) Whirlpool’s manufacturing, testing, and quality assurance records for
the 	Glass 	Cooktop 	and 	Infinite 	Switch, 	and 	Whirlpool’s 	written
procedures governing the same; and
• 	(4) documents exchanged between Whirlpool and Robertshaw during the
vendor selection process for the Infinite Switch.
Additionally, Plaintiff requests 30(b)(6) testimony on:
• 	(5) the similar incidents and claims disclosed by Whirlpool and its
documentation related to each such event; and
• 	(6) Whirlpool’s document searches and related efforts to comply with this
Court’s Order governing similar incident discovery; and
• 	(7) Whirlpool’s knowledge of the facts of the underlying grease fire that
injured Plaintiff.
(Doc. 81, PageID.673-74).
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A. DISCUSSION:
As a preliminary matter, concluding from oral arguments, and after
review of the relevant motions, part of Plaintiff’s request is denied as moot, as
it has already resolved or is repetitive of a previous court order. Thus, the
following issues are either resolved or subject to forthcoming supplementation
and/or stipulation:
• 	Item (1) mirrors this Court’s previous Order. (Doc. 79). As such, the
issue is deemed denied as moot, as Defendant already bears the burden
of responsive discovery encompassed by the Order issued July 1, 2024.
(Doc. 	79, 	PageID.651). 	To 	the 	extent 	any 	such 	documents 	remain
outstanding, 	Defendant 	is 	ordered 	to 	expend 	reasonable 	efforts 	in
production.
• 	Item 	(2), 	as 	addressed 	at 	oral 	arguments, 	any 	available 	“FMEA”
documentation, should be provided to Plaintiff subject to the previous
confidentiality requirements asserted under the prior Protective Order.
(See Doc. 34). The Court withholds any opinion regarding responsive
requests subsequent to this disclosure.
Items (3) through (7) remain contested. Item (3) provides requests for
new documentation regarding “manufacturing, testing, and quality assurance
records,” for the Glass Cooktop and Infinite Switch. This request appears
facially similar to the requests of Item (2), requesting engineering analysis,
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which Defendant has acknowledged it possesses. The Court makes no finding
on the specific availability of additional such documents and is mindful defense
counsel asserted the lack of availability for technical analysis on individual
components. However, to the extent any such documentation exists, Defendant
should 	make 	diligent, 	reasonable 	efforts 	to 	produce 	to 	Plaintiff 	any
manufacturing, testing, and quality assurance records for the Glass Cooktop
and Infinite Switch, that is not already encompassed by the forthcoming
reports produced in response to Item (2).
Item (4) requests documents exchanged in the procurement process with
now defunct defendant Robertshaw. The Court acknowledges that Defendant
may shoulder more of the burden than if there were still co-defendants in this
matter, however it is reasonable to assume such documentation may exist
regarding the Infinite Switch and is relevant to the subject matter of this case.
The Court deems reasonable production of such documents is warranted,
subject to privilege and confidentiality.
Item (5) and Item (7) request deposition testimony on the handling of
Plaintiff’s incident and related incidents as specified in the previous Order
(Doc. 79). The Court recognizes the difficulties faced by Defendant in producing
a single witness that can accurately respond to each issue presented by
Plaintiff. However, given the deposition of Defendant’s prior representative,
the Court deems it a reasonable request to provide responsive testimony to
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Plaintiff’s 	incident. 	The 	questioning 	of 	Plaintiff’s 	alleged 	fire 	and 	the
associated claims process—and to a reasonable extent, educated responses on
similar incidents—is a request elementary in nature to basic discovery. See
Fed. R. Civ. P. 26. Therefore, Defendant is ordered to provide deposition
testimony as requested regarding Item (7), and to a good faith and reasonable
extent, any such similar incidents as described in Item (5).
Plaintiff's other outstanding discovery request, Item (6), involves what
has been called “discovery on discovery” in which Plaintiff seeks to challenge
the sufficiency and thoroughness of Defendant's production of documents and
other evidence. This request reflects Plaintiff's continuing distrust of the
completeness of Defendant's responses.
During Oral Argument, the Defendant sought to affirm compliance with
the July 1, 2024, Order, asserting that no specific showing had been made to
necessitate discovery on discovery. (Doc. 95). However, the prior motion to
compel revealed a similar incident that was not disclosed to Plaintiff (Doc. 81,
Ex. 	2). 	Moreover, 	deposition 	testimony 	brought 	to 	light 	the 	existence 	of
multiple databases and the processing of claims through a call center, records
of which were absent in Defendant's supplementation (Doc. 81, ¶ 10, ¶ 19-20).
Furthermore, Plaintiff appropriately highlights facial dissimilarities in the
reporting of incidents (Compare Doc. 69 with Doc. 82).
While each of these factors may independently suffice to demonstrate a
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discrepancy or deficiency, their cumulative effect has persuaded this Court
that Plaintiff's burden in seeking "discovery on discovery" has been met. See
Culliver, 2022 WL 19568966 at *1.
The Court acknowledges Defendant's argument that the claims and
litigation database encompasses several departments and would contain any
"similar incidents" to that of Plaintiff. However, this assertion was qualified by
the statement that the database would only contain reports of "damage, injury,
or hazard to health," not any report as defined by the July 1 Order (Doc. 95).
Furthermore, the Defendant has expounded on the challenges associated
with E-discovery, explaining the near impossibility of thoroughly examining
all records held by Defendant relevant to the switch at issue. See id. The Court
takes note of these difficulties but finds that they do not negate the necessity
for a more comprehensive examination of Defendant’s discovery efforts.
This Court believes the issue has been sufficiently narrowed to create a
reasonable task for presenting reports on malfunctioning switches in the same
or similar cooktops, as described in the Court’s July Order. (See Doc. 79)
(“Glass Top Stoves bearing any Whirlpool or Whirlpool umbrella brand with
physical 	knobs 	that 	contain 	Robertshaw 	Infinite 	Switches. 	Only 	a 	finite
number of Whirlpool and/or Whirlpool umbrella products will contain those
exact specifications….”)
The deficiencies in Defendant's current production stem from its failure
---
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to comply fully with the Court's July 1 Order. 4 The Order did not limit the
scope to incidents that only resulted in "damage, injury, or hazard to health,"
but encompassed all "claims, complaints, reports, alerts, notices or lawsuits"
that resulted from malfunctioning switches (those which spontaneously ignited
and/or 	otherwise 	had 	a 	temperature/heat 	output 	that 	deviated 	from 	the
burner's controller) (Doc. 79, PageID.649). While the Court makes no finding
on 	the 	actual 	existence 	of 	such 	additional 	documents, 	if 	the 	Defendant
maintains that this request remains outside the realm of possibility, the
burden now falls upon Defendant to provide responsive testimony regarding
its production efforts.
Therefore, the Court, having determined that Plaintiff has met the
threshold showing of deficiency in production, finds that Plaintiff is entitled to
discovery on the process used in producing the documents, limited to those
related to Item (1). See Culliver 2022 WL 19568966. The Court orders that
this information be provided through responsive 30(b)(6) testimony from
individuals 	with 	knowledge 	of 	the 	database(s) 	and 	collection 	efforts, 	as
4 As part of Defendant’s on-going efforts to produce, they provided an
unsworn affidavit from their legal department which describes their search of
the “claims and litigation” database for responsive material. (Doc. 90-1,
PageID.823) However, the affidavit does not indicate the inclusiveness of the
database, nor is it instructive on distinguishing claims related only to
“damage, injury, or hazard to health.” Such explanations may have
eliminated many of the issues currently before the Court.
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requested. (Doc. 81, PageID.673). This testimony should encompass collection
and production 	efforts to provide all 	"claims, complaints, reports, alerts,
notices, or lawsuits," of same or similar incidents with any glass top stoves
with Robertshaw Infinite Switches under the Whirlpool umbrella—even those
that fall outside the scope of "damage, injury, or hazard to health."
IV. 	CONCLUSION
Upon consideration and for the reasons stated herein, Plaintiff’s motion
to compel (Doc. 81) is GRANTED in part and DENIED in part.
Defendant is ORDERED to comply with the requests of Items (3), (4),
(5), and (7), and provide responsive testimony to the collection and production
efforts as described above for Item (6), within 21 days of this Order, on or
before October 8, 2024.
To the extent Plaintiff seeks an award of "reasonable expenses" under
Fed. R. Civ. P. 37(a)(5)(A) for bringing the subject motion to compel, any motion
for reasonable expense under Rule 37(a)(5)(A) must be filed and served no later
than October 1, 2024. Any such motion must include evidence and argument
supporting both the amount and reasonableness of the expenses sought. The
failure to file such a motion by the deadline will be deemed a waiver of any
entitlement to Rule 37(a)(5)(A) expenses in connection with the subject motion
to compel. (Doc. 81). If a motion for expenses is timely filed, an appropriate
briefing schedule will be entered forthwith.
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DONE and ORDERED this the 17th day of September 2024.
/s/ Katherine P. Nelson
KATHERINE P. NELSON
UNITED STATES MAGISTRATE JUDGE
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