Napleton Orlando Imports, LLC v. Volkswagen Group of America, Inc.

Background

The order addressed a discovery dispute and a motion to seal in multidistrict litigation concerning Volkswagen’s “Clean Diesel” vehicles. The plaintiffs were preparing to take a deposition of Bosch under Federal Rule of Civil Procedure 30(b)(6), which allows an organization to designate a witness to testify about information known or reasonably available to the organization. Bosch agreed to produce witnesses but sought a protective order preventing testimony on six topics.

Discovery Dispute

For Topic 1, the plaintiffs sought testimony about Bosch’s role in creating, developing, modifying, and refining an “acoustic function” in Audi vehicles. The plaintiffs said the function formed a blueprint for the defeat-device software involved in the case. The court found Bosch’s role in creating and developing the function relevant, but found no alleged relevant modifications that would justify testimony about modifying and refining it over a period of years. The court therefore ordered Bosch to provide a witness about creating and developing the function, but not about modifying and refining it.

Topics 16 and 17 concerned Bosch’s terms of engagement with automobile manufacturers other than Volkswagen. The plaintiffs argued that agreements with other manufacturers could help show how much control Bosch retained over its software and whether Volkswagen could modify the software on its own. The court found this evidence only indirectly useful because Bosch’s agreements with Volkswagen and evidence of how those agreements operated would more directly answer that question. The court also found that reviewing and comparing agreements with potentially 50 or more manufacturers would impose a substantial burden. Bosch therefore did not have to provide a witness on Topics 16 and 17.

Topics 46, 47, and 48 concerned a 2008 letter in which Bosch said software requested by Volkswagen could qualify as a defeat device if misused and sought indemnification from Volkswagen. The plaintiffs said Volkswagen refused to sign the letter but Bosch nevertheless provided the software. Bosch argued that the letter involved gasoline-vehicle emissions software rather than the diesel software at issue. The court found that the letter remained relevant because it could show Bosch knew its software could be used as a defeat device and shared that knowledge with Volkswagen. The court found Bosch had not shown that the burden of producing a witness on these topics outweighed the likely benefit. Bosch therefore had to provide a witness on Topics 46, 47, and 48.

The court stated that Bosch’s request for a protective order was granted in part and denied in part.

Motion to Seal

Bosch sought permission to redact information from the parties’ joint letter brief and Exhibit 3 to the plaintiffs’ counsel’s declaration. It also sought to file Exhibits 1 and 2 to that declaration entirely under seal. Exhibit 1 was a 2005 internal Bosch document concerning software “system requirements,” and Exhibit 2 was a 2009 internal Bosch email.

Because the discovery dispute was only tangentially related to the case’s merits, the court applied the “good cause” standard for sealing rather than the more demanding “compelling reasons” standard used for information in dispositive motions. Good cause requires specific prejudice or harm, not broad or unsupported claims of commercial harm.

The court denied Bosch’s request to seal Exhibits 1 and 2 in their entirety. Although Bosch described the exhibits as containing confidential business and technical information, the court found that Bosch had not shown specific harm from disclosure. The documents were 10 to 15 years old, and Bosch’s general statement that disclosure would cause commercial harm was insufficient.

The court allowed Bosch to redact the names and job titles of employees who were nonparties because those redactions protected nonparty privacy rights. Bosch could also redact nonparty identifying information in the three exhibits attached to counsel’s declaration, while providing a way to distinguish among the nonparties. The court denied the other requested redactions, including references in the parties’ letter brief to Exhibits 1 and 2 and references to the 2008 indemnification letter, because the exhibits would not be sealed and the indemnification letter was already publicly available.

Disposition

Judge Jacqueline S. Corley ordered that the protective-order request was granted in part and denied in part. The court denied Bosch’s request to seal Exhibits 1 and 2, granted Bosch’s request to redact the names and job titles of nonparty employees, and denied Bosch’s request to redact references in the parties’ letter brief to Exhibits 1 and 2 and to the 2008 indemnification letter.