Lopez v. Harley-Davidson, Inc.

Background

The plaintiffs assert claims arising from a fatal accident involving a motorcycle produced by Harley-Davidson, Inc. They contend that the motorcycle’s sidestand, also called the kickstand or Jiffy Stand, had a design defect that caused the accident. The opinion states that the decedent had repaired the component before the accident.

The motorcycle was destroyed in July 2024 while the litigation was pending. The plaintiffs attributed the destruction to an instruction from another team at their law firm to the vendor storing the motorcycle. Harley-Davidson said it intended to seek sanctions for spoliation, meaning penalties based on the destruction or loss of potentially relevant evidence.

Harley-Davidson subpoenaed Interstate Services, the storage vendor, for documents concerning the motorcycle’s storage and destruction. The plaintiffs objected to communications between their counsel and the vendor as protected work product. They did not assert objections based on burden, overbreadth, or relevance. The opinion states that Interstate Services did not appear to object to the subpoena.

Request No. 1

Request No. 1 sought broad categories of records, including storage policies, chain-of-custody records, destruction information, photographs, invoices, visitor logs, and correspondence concerning the motorcycle. The plaintiffs did not object to producing storage policies, chain-of-custody records, the official destruction record, or photographs. Their objection concerned communications between their counsel and Interstate Services. Harley-Davidson clarified that it was not seeking communications about other vehicles stored by Interstate Services for the plaintiffs’ counsel.

The court found that Harley-Davidson had shown substantial need for communications and other records related to storing and destroying the motorcycle. The court concluded that this need was sufficient to overcome protection for non-opinion work product because Harley-Davidson needed the information to develop possible spoliation-sanctions arguments and less intrusive means were not available. The court also stated that most responsive documents held by Interstate Services were unlikely to contain communications involving legal advice protected by attorney-client privilege. Communications that merely gave the vendor instructions to store or destroy the motorcycle were, in the court’s view, at most ancillary to legal consultation.

The court ordered Interstate Services to produce all documents responsive to Request No. 1 to the plaintiffs for privilege review. The plaintiffs must identify documents containing opinion work product or attorney-client privileged material, withhold or redact those documents, and produce the remaining documents and a privilege log to Harley-Davidson. The parties and Interstate Services must meet and confer about the production schedule.

Request No. 2

Request No. 2 sought all documentation showing how many motorcycles Interstate Services stored for the plaintiffs’ law firm from January 2022 through September 2024. The plaintiffs objected that the request invaded other clients’ privacy and that less burdensome methods could provide the information Harley-Davidson sought.

The court stated that the number of other motorcycles stored for the law firm might be relevant to the degree of culpability or negligence involved in the erroneous destruction of the motorcycle in this case. But without more evidence about the destruction, the court found that other information in responsive documents could unnecessarily affect the privacy or privilege of other clients. The court suggested that a deposition of Interstate Services, potentially using written questions under Federal Rule of Civil Procedure 31(a)(4), might be enough to identify the number of motorcycles.

The court ordered that Interstate Services not comply with Request No. 2. It also ordered the parties and Interstate Services to meet and confer about less intrusive methods for determining the number of motorcycles stored for the plaintiffs’ counsel. The order states that Harley-Davidson may later seek documents responsive to Request No. 2 upon a stronger showing of need. The order was without prejudice to that later request.

Further Order

The parties and Interstate Services were ordered to file either a stipulation or a joint letter by January 24, 2025 addressing the timing of production for Request No. 1 and less intrusive discovery methods concerning Request No. 2. Judge Richard Seeborg issued the order resolving the subpoena dispute.