Haeger v. Goodyear Tire & Rubber Co. (906 F. Supp. 2d 938, 2012)

ORDER

ROSLYN 0. SILVER, Chief Judge.

Litigation is not a game. It is the time-honored method of seeking the truth, finding the truth, and doing justice. When a corporation and its counsel refuse to produce directly relevant information an opposing party is entitled to receive, they have abandoned these basic principles in favor of their own interests. The little voice in every attorney’s conscience that murmurs turn over all material information was ignored.

Based on a review of the entire record, the Court concludes there is clear and convincing evidence that sanctions are required to be imposed against Mr. Hancock, Mr. Musnuff, and Goodyear. The Court is aware of the unfortunate professional consequences that may flow from this Order. Those consequences, however, are a direct result of repeated, deliberate decisions by Mr. Hancock, Mr. Musnuff, and Goodyear to delay the production of relevant information, make misleading and false in-court statements, and conceal relevant documents. Mr. Hancock, Mr. Musnuff, and Goodyear will surely be disappointed, but they cannot be surprised.

FINDINGS OF FACT

I. The Accident

In June 2003, Leroy and Donna Haeger, along with Barry and Suzanne Haeger (collectively “the Haegers”), were traveling in a motor home owned by Leroy and Donna. It was manufactured by Gulf Stream Coach (“Gulf Stream”) on a chassis manufactured by Spartan Motors, Inc. (“Spartan”). The motor home had “G159” tires manufactured by Goodyear Tire and Rubber Company (“Goodyear”). While traveling on the highway, one of the motor home’s front tires failed, followed immediately by the motor home leaving the road and tipping over. The Haegers suffered serious injuries as a result. The motor home was insured by Farmers Insurance Company (“Farmers”).

II. Initial Proceedings

In 2005, the Haegers and Farmers sued Gulf Stream, Spartan, and Goodyear. The Haegers and Farmers alleged various product liability and negligence claims, including a claim that G159 tires were defective if used on motor homes. (Doc. 13). The Haegers were represented by David Kurtz. Goodyear was represented by Graeme Hancock of Fennemore Craig PC and Basil Musnuff of Roetzel & Andress in Akron, Ohio. Because Goodyear was being sued throughout the country based on alleged defects in the same G159 tire, it had appointed Mr. Musnuff as “national coordinating counsel” on all G159 cases. (Doc. 1014 at 93). In that role, Mr. Musnuff was responsible for reviewing discovery requests, coordinating the search for documents, and drafting responses. (Doc. 1014 at 124-25). Mr. Musnuff worked directly with Goodyear’s in-house counsel Deborah Okey.

On December 15, 2005, Goodyear served its Initial Disclosure Statement. (Doc. 992-1 at 20). According to that statement, “Plaintiffs’ allegations with regard to the subject tire [were] unclear.” (Doc. 992-1 at 23). Based on the alleged uncertainty, Goodyear’s disclosure statement contained no meaningful information. In fact, it appears Goodyear’s disclosure statement largely referenced witnesses and documents previously provided to Goodyear by Plaintiffs. Mr. Kurtz was not satisfied with Goodyear’s initial disclosure and he wrote to Mr. Hancock and asked that Goodyear “take a more reflective look at your disclosure statement and comply with both the spirit and intent of the rule.” (Doc. 992-1 at 27). In particular, Mr. Kurtz asked Goodyear to provide more meaningful disclosures regarding individuals who might have relevant information regarding the tire. Mr. Kurtz also asked Goodyear to produce “[t]esting documentation regarding the G 159 tires.” (Doc. 992-1 at 29). Goodyear did not supplement its initial disclosure in any relevant way.

III. Plaintiffs’ Responses to Interrogatories

On August 18, 2006, Plaintiffs responded to a set of interrogatories from Goodyear. Goodyear’s interrogatory number 5 asked for “each legal theory under which you believe Goodyear is liable.” (Doc. 963-1 at 19). In response, Plaintiffs stated it had been inappropriate to market the G159 tire for use on motor homes. According to Plaintiffs: “Prolonged heat causes degradation of the tire which, under appropriate circumstances, can lead to tire failure and tread separation even when the tire is properly inflated.” (Doc. 963-1 at 20). Because the G159 was originally designed “for pick-up and delivery trucks,” Plaintiffs claimed using the tire on motor homes meant it was “operating at maximum loads and at maximum speeds, producing heat and degradation to which the tire was not designed to endure, leading to its premature failure.” (Doc. 963-1 at 20) (emphasis added). Accordingly, as of approximately August 18, 2006, Goodyear and its counsel knew Plaintiffs’ liability theory and that heat would be a central issue in this ease.

IY. First Discovery Dispute and Protective Order

In August 2006, the parties filed then-first notice of a discovery dispute. (Doc. 49). That disagreement centered on the terms of a protective order. The parties could not agree on how material designated “confidential” should be handled and on whether the protective order should include a provision allowing Mr. Kurtz to “share” information with other counsel litigating G159 claims against Goodyear elsewhere in the country. (Doc. 49). On August 22, 2006, the Court held a scheduling conference and also addressed the pending disagreements.

At the conference, Plaintiffs were represented by David Kurtz and Goodyear was represented by Mr. Hancock. When asked to explain the parties’ disputes, Mr. Kurtz began by stating he was concerned Goodyear would abuse the provision allowing for documents to be designated “confidential.” In effect, Mr. Kurtz wanted the protective order to contain a provision that would allow Goodyear’s counsel located elsewhere to designate documents as “confidential.” Local counsel, however, would be required to make “a reasonable inquiry to verify that in fact those confidentiality designations have been thoughtfully made by appropriate people.” (Doc. 53 at 8). The Court rejected Mr. Kurtz’s request and stated local counsel would not have to personally verify all “confidential” designations. But the Court also observed that local counsel remained “responsible for anything that’s filed in this court ... [and] they have a good-faith obligation to the Court and they are officers of the Court.” (Doc. 53 at 8).

As for the sharing provision, Plaintiffs argued it was necessary to ensure that all parties litigating cases against Goodyear would receive “the appropriate and complete data in similarly situated cases.” (Doc. 53 at 10). The Court rejected this request, emphasizing that “every officer before this Court has an obligation to provide all relevant discovery.” (Doc. 53 at 10). The Court observed that the Federal Rules already provide “that anything that is relevant must be turned over to counsel and to all the parties,” so there was no need for the sharing provision. Therefore, as of August 2006 all counsel were expressly aware of the Court’s expectations regarding discovery. The Court signed the scheduling order and the parties began discovery in earnest.

Y. Plaintiffs’ First Request for Production of Documents

In September 2006, Plaintiffs served Goodyear with their First Request for Production of Documents (“First Request”). (Doc. 59). Approximately thirty days later, Goodyear provided its responses. As later explained by Mr. Musnuff, in preparing discovery responses Mr. Musnuff would draft the responses, send them to Ms. Okey for approval, and after Ms. Okey approved them, they would be sent to local counsel for filing and service. (Doc. 1014 at 65-66). While Mr. Musnuff was tasked with drafting responses, Ms. Okey was always the final decision maker regarding discovery responses. (Doc. 1014 at 67).

The initial responses drafted by Mr. Musnuff, approved by Ms. Okey, and signed by local counsel consisted of sixteen “general objections” and then specific objections to each request which largely referenced the general objections. (Doc. 938-1 at 19). For example, Plaintiffs’ Request for Production No. 14 sought: “All test records for the G159 tires, including, but no[t] limited to, road tests, wheel tests, high speed testing, and durability testing.” (Doc. 938-1 at 24). Goodyear’s response was:

RESPONSE: See General Objections. Goodyear objects to this Request for the reasons and on the grounds that it is Overly Broad, Unduly Burdensome and seeks Irrelevant and Confidential Information, seeks information about tires Not Substantially Similar, and Plaintiffs have identified No Defect Theory.

The record does not reflect any communications between Plaintiffs and Goodyear until Goodyear provided supplemental responses on November 1, 2006. (Doc. 62, 63). Most relevant here is Goodyear’s supplemental response to the same “Request for Production No. 14.” The supplemental response was:

RESPONSE: See General Objections. Goodyear objects to this Request for the reasons and on the grounds that it is Overly Broad, Unduly Burdensome and seeks Irrelevant and Confidential Information, seeks information about tires Not Substantially Similar, and Plaintiffs have identified No Defect Theory.

SUPPLEMENTAL RESPONSE: Subject to and without waiving the foregoing objections, and in a good faith spirit of cooperation, Goodyear will produce, subject to the Protective Order entered in this case, the DOT test data for the Subject Tire for the Subject Time Frame.

(Doc. 948-1 at 54).

The sequence of events following Goodyear’s supplemental responses is intensely disputed. On December 5, 2006, Mr. Kurtz and Mr. Hancock spoke on the phone. That conversation was about the difficulties the parties were having regarding discovery. According to a memorandum to the file Mr. Hancock prepared, during the call:

I explained to [Mr. Kurtz] that the ‘testing’ universe he had asked for was overly broad and included all kinds of tests done on component parts or on design criteria that had nothing to do with anything we had seen involving this case. I anticipate [Mr. Kurtz] will send us a revision that asks for testing that has to do with high speed.

(Doc. 1032-2 at 51). On the particular issue of Request for Production No. 14, the memorandum stated Mr. Kurtz “agreed to be more specific about what kinds of tests he was looking for.” (Doc. 1032-2 at 53). Mr. Kurtz has submitted an affidavit disputing Mr. Hancock’s interpretation of that phone call. According to Mr. Kurtz, he “never withdrew or otherwise narrowed the scope of [the] original discovery requests.” (Doc. 992-1 at 40). Mr. Kurtz states he “had no phone conversation with Mr. Hancock in December” where he made such an agreement. In short, according to Mr. Kurtz: “Nothing like [the events described by Mr. Hancock] ever occurred.” (Doc. 992-1 at 40). The Court need not decide whose recollection of the December 5, 2006 phone call is accurate. Any question of whether there was an understanding evaporated after a letter from Mr. Kurtz to Mr. Hancock.

On December 20, 2006, Mr. Kurtz sent Mr. Hancock a letter. That letter was meant as “a follow up of our recent discussions regarding discovery disputes.” (Doc. 1044-2 at 17). The letter is lengthy and goes through numerous discovery disputes the parties were having. Most relevant here is the portion of the letter devoted to Request for Production No. 14. The letter states:

Request for Production No. 14. We asked for test records for the G159 275/70R 22.5, including road tests, wheel tests, high speed testing, and durability testing. You objected, suggesting the test records were overly broad and unduly burdensome. You have only produced the DOT test data showing the tires were tested at 30 mph. My interest is in finding the rest of the test data. If there is any, it is your obligation to disclose it.

(Doc. 1044-2 at 25).

After receiving this letter, Mr. Hancock wrote an email to Mr. Musnuff. That email opened by stating: “We should either respond to any portions of Kurtz’ 12.20 letter or figure out that we have a fight on our hands on these points and prepare a counter argument.” (PSOF Ex. 7). The email goes through the entirety of Mr. Kurtz’ letter but contains a specific reference to the Request for Production No. 14 and asks for guidance from Mr. Musnuff:

RTP 14. Test records for all testing on this size G159 tire. Again, was the only testing at 30 mph or less? What speed testing/fleet testing did Goodyear rely on? Can/should we supplement since his theory is that this tire can’t operate at 75 mph in the southwest for long periods?

(PSOF Ex. 7). The record does not contain Mr. Musnuffs response to this email.

Based on this evidence, the December 5, 2006 phone call may have led to confusion on Mr. Hancock’s part whether the Request for Production No. 14 remained in place. But Mr. Kurtz’s December 20, 2006 letter cleared up any possible confusion. Upon receiving that letter, Mr. Hancock undoubtedly knew Plaintiffs’ Request for Production No. 14 had not been withdrawn or narrowed. In particular, this is evidenced by Mr. Hancock’s email to Mr. Musnuff stating Goodyear needed to “figure out if we have a fight on our hands.” Mr. Hancock could not have simultaneously believed that Mr. Kurtz withdrew the request but also that Goodyear might have “a fight on [its] hands.” Moreover, Mr. Hancock explicitly acknowledged that Mr. Kurtz continued to request “[t]est records for all testing.” (Emphasis added). Mr. Hancock’s email establishes Mr. Musnuff knew about Mr. Kurtz’s letter and that Mr. Musnuff knew Plaintiffs’ Request for Production No. 14 was still active.

For simplicity and clarity, as of December 20, 2006 Mr. Hancock and Mr. Musnuff knew there was an outstanding request for: “All test records for the G159 tires, including, but no (sic) limited to, road tests, wheel tests, high speed testing, and durability testing.” Any suggestion by Mr. Hancock and Mr. Musnuff that Mr. Kurtz had withdrawn his First Request is belied by the evidence of what they knew in December 2006. In addition, the position later advanced by Goodyear that it was relieved of any further obligation to respond to the First Request because it had lodged objections cannot be taken seriously. Mr. Hancock’s email establishes Goodyear’s counsel did not believe Mr. Kurtz needed to seek relief from the Court to obtain any further information from Goodyear. And finally, as of January 2, 2007, the date of Mr. Hancock’s email, Mr. Musnuff knew the theory of Plaintiffs’ case, and knew the request for additional test data was outstanding, but he neglected to even begin a search for responsive documents.

VI. Goodyear Discovers High Speed Testing

On January 5, 2007, Plaintiffs disclosed their expert witnesses. (Doc. 103). One of Plaintiffs’ experts was David Osborne. Mr. Osborne’s expert report identified the speed at which the tire was operated as a contributing factor to its failure. Mr. Hancock and Mr. Musnuff exchanged emails after reviewing Mr. Osborne’s report. Mr. Musnuff wrote to Mr. Hancock:

Osborne appears to draw the conclusion that the subject tire was only tested at speeds up to 30 mph from the fact that the only test data we produced is the DOT test data. Of course, our discovery response was limited to DOT test data because plaintiff had not yet identified their defect theory at that time. Now that plaintiffs are pinpointing speed as an issue, perhaps we need to supplement our discovery responses to show the testing of this tire at various speeds. Thoughts?

(PSOF Ex. 8). Mr. Hancock responded: ‘Tes, we should produce the testing that shows this tire was capable of prolonged speed use and was built for the rated load and had a wide safety margin.” (PSOF Ex. 8).

On January 11, 2007, Mr. Musnuff emailed Ms. Okey to give her a copy of Mr. Osborne’s report. That email contained the same paragraph Mr. Musnuff sent to Mr. Hancock and concluded that “we should consider supplementing our discovery responses to show the testing of this tire at various higher speeds.” (PSOF Ex. 9). Therefore, as of January 11, 2007, Mr. Hancock, Mr. Musnuff, and Ms. Okey were aware Plaintiffs had “pinpoint[ed] speed as an issue” and that Goodyear needed to “consider supplementing” its prior discovery responses. The record does not contain any indication whether Mr. Hancock, Mr. Musnuff, or Ms. Okey had further conversations on this point. The record is clear, however, that no supplementation ever occurred.

Around this same time, Mr. Musnuff was working with Sherman Taylor, a Goodyear tire engineer, “to locate documents and test data regarding the G159 Tire.” (Doc. 984-1 at 9). Based on receipt of Mr. Osborne’s opinion, Mr. Musnuff asked Mr. Taylor “to locate the test data that the Radial/Medium Truck Tire Development Group used to release the G159 Tire for use at highway speeds.” (Doc. 984-1 at 10). Mr. Taylor was not able to find “electronic or paper copies of the actual W84 high speed test data Goodyear used to release the G159 Tire for production.” (Doc. 984-1 at 10). But on January 24, 2007, Mr. Taylor located “electronic post-production W84 high speed test data (“High Speed Tests”) on the G159 Tire.” (Doc. 984-1 at 11). When he discovered that data, Mr. Taylor also “discovered L04 heat rise test results (“Heat Rise tests”) for the G159 Tire in the same electronic database.” (Doc. 984-1 at 11). Mr. Taylor had another “employee pull the test results data into text files, which [he] then printed.” (Doc. 984-1 at 11). According to Mr. Taylor, “[w]ithin a day or two of printing the test data, I delivered a copy to Mr. Musnuff.” (Doc. 984-1 at 11). Mr. Taylor’s statement refers to both the High Speed tests and the Heat Rise tests. Thus, according to Mr. Taylor, no later than early February 2007, Mr. Musnuff had actual copies of the High Speed and Heat Rise tests, not merely some knowledge that the tests had been conducted.

On February 12, 2007, Mr. Musnuff emailed Mr. Hancock a memo with a summary of the High Speed tests attached. (PSOF Ex 12). According to the memo, “Goodyear did test the [G159] at speeds greater than the 30 mph standard” as reflected in the High Speed tests. (PSOF Ex. 12). Based on that testing, the “tire was capable of being rated as a 75 mph tire.” (PSOF Ex 12). That same day, Mr. Musnuff emailed Mr. Taylor and asked about the “list of High Speed Test Results” Mr. Taylor had given to him. Mr. Musnuff asked whether the ten “High Speed Test Results” Mr. Taylor had provided represented “ALL occasions on which the subject tire was subjected to [the] High Speed Test.” (PSOF Ex. 15). Mr. Taylor responded there were “66 [High Speed] test[s] performed between 1996 & 2002.” Mr. Musnuff then asked Mr. Taylor to gather that additional data because “if we disclose any of the [High Speed] testing — which is in our best interest-then we need to produce all of it.” (PSOF Ex. 15).

On February 19, 2007, Mr. Hancock emailed Mr. Musnuff to discuss the “Schedule for Haeger.” (PSOF Ex. 16). That email stated:

We need to gather and produce documents re high speed testing as soon as reasonably practicable. No deadline, but we want to produce them promptly, given the accusation of no high speed testing in the January report that put that at issue in the case.

(PSOF Ex. 16). Therefore, no later than February 19, 2007, Mr. Hancock, Mr. Musnuff, and numerous Goodyear employees knew the High Speed tests needed to be produced. Even assuming Mr. Musnuff decided to wait for Mr. Taylor to search for and locate additional test results, there is no acceptable explanation, or one even offered, why Mr. Musnuff did not produce the results he had at that time. While the record establishes Mr. Musnuff and Mr. Hancock both believed the High Speed tests needed to be produced, there is no indication which discovery request Mr. Musnuff and Mr. Hancock believed the tests were responsive to. But given that Plaintiffs had not yet propounded their Third Request for Production of Documents, Mr. Musnuff and Mr. Hancock could not have believed the High Speed tests were responsive only to that later request. Finally, as of February 19, 2007, Mr. Hancock knew that Plaintiffs’ expert was relying on the alleged lack of high speed testing.

VII. Statements Made After Learning High Speed Tests Existed

On April 6, 2007, approximately two months after Mr. Hancock knew the High Speed tests existed, the Court held a status conference. (Doc. 146). During that conference, the Court inquired whether the parties were on schedule to complete discovery by the applicable deadline. Plaintiffs’ counsel stated he was on schedule. The Court then asked Mr. Hancock for his opinion on whether all discovery could be completed on time.

The Court: Let me ask defense counsel, is there any internal documentation that is available that has been requested that your client has — clients have not provided?

Mr. Hancock: Your Honor, speaking on behalf of Goodyear, we have responded to all outstanding discovery and those responses have been outstanding for some time and, you know, if a document shows up, we’ll of course produce it and supplement our answers but I think we’re done or nearly done.

The Court: And your client has provided certification as is required by the rule?

Mr. Hancock: Correct.

(Doc. 146 at 12-13). These statements were false.

Mr. Hancock received notice of the existence of the High Speed tests on February 12, 2007 and sent an email on February 19, 2007 stating Goodyear “need[ed] to gather and produce” them “as soon as reasonably practicable.” As of the April 6, 2007 status conference, the High Speed tests had not been disclosed, Mr. Hancock knew this, and his in-court statements at the April 6, 2007 were untruthful.

VIII. Third Request for Production of Documents

On May 8, 2007, Plaintiffs served their Third Request for Production of Documents (“Third Request”). Three of Plaintiffs’ requests are relevant here: numbers 3, 4, and 10. Requests 3 and 4 sought: “All documents which relate to any speed or endurance testing to determine that the subject tire was suitable for [65 or 75] mph highway purposes.” And Request 10 sought: “All documents which relate to the approval by Goodyear of the [G159] for 75 mph, including, but not limited to, all testing records relating to suitability of the subject tire for that speed.” (Doc. 938-1 at 36). In an affidavit, Mr. Kurtz explained why he propounded the Third Request:

My Third Request for Production utilized alternative language in a request for test records, which followed the language utilized in Goodyear’s expert disclosures, which were received in my office in mid-April 2007. Mr. Olsen, Goodyear’s in-house expert, specifically expressed his opinion that the G159 tire was designed for general highway use and designed to be operated at continuous highway speeds of 75 mph.

(Doc. 992-1 at 4(M1). The Third Request for Production was not intended “to relieve Goodyear of any obligation to properly respond to Plaintiffs’ First Request for Production of Documents and Interrogatories” nor was it intended to release Goodyear from “its obligations to timely supplement discovery responses.” (Doc. 992-1 at 41). Before Goodyear responded to the Third Request, the Court held a hearing on a separate discovery dispute.

At the discovery dispute hearing on May 17, 2007, the Court addressed a dispute involving Plaintiffs’ attempts to obtain information from Gulf Stream and Spartan regarding other motor home accidents. During discussion of the dispute, Plaintiffs’ counsel expressed his belief that this “tire was never tested above 30 miles an hour.” (Doc. 201 at 48). Because of this statement, the Court asked a specific question of Goodyear’s counsel and received an unequivocal response.

The Court: Mr. Hancock, are there any tests that are available to show when this tire was tested for speeds above 30 miles an hour?

Mr. Hancock: Yes, Your Honor.

The Court: And they have been produced?

Mr. Hancock: No, Your Honor. They have been requested from the plaintiffs in a Request for Production that arrived in my office I believe last week where the discovery response is due in mid-June. And they will be — I have requested them from my client and they will be produced at that time.

The Court: All right. So Mr. Kurtz— Mr. Kurtz: Your Honor, if I may, we have, as have lawyers across the country, they have asked for these tests. My requests for these speed tests have been outstanding for well over a year and Mr. Hancock himself told me the reason they haven’t been produced is because nobody can find them anywhere.

The Court: Well, he’s found them. He apparently has found them so you’re going to have what you want.

Mr. Kurtz: Well, I’ll be looking forward to reading them but that won’t change the issue, Your Honor. You know, I think — you know, this is discovery, Judge. We ought to be able to ask some questions and I’m pleased to provide the court with a detailed factual record about these. These are not things that I’m making up. They are not things that experts divined. They are tied to hard documents prepared by Goodyear.

The Court: It seems to me that the issue has been narrowed after our lengthy conversation to the tests that have been used or were engaged in by Goodyear for the purpose of establishing for their purposes and for consumers that these tires could be used for— based upon the weight and pressure that they have indicated that they were or that they could hold for traveling above 75 or at 75 miles an hour.

Mr. Hancock: At and below Your Hon- or, thank you.

The Court: At and below. At no more than 75 miles an hour.

(Doc. 201 at 48-49). After further discussion with counsel regarding the appropriate scope of discovery and depositions, the Court made sure Mr. Hancock understood his obligations.

The Court: Is there any question in your mind, Mr. Hancock, what I am going to allow in terms of discovery? And that is the deposition questions that I will allow?

Mr. Hancock: Your Honor, I believe the court is saying ... my witnesses should be deposed about the [testing] done on this [specific] tire with respect to the speed in which it can be operated and what records they have, what records they don’t have and what those records show?

The Court: That’s exactly right.

Mr. Hancock: Thank you, Your Honor. (Doc. 201 at 51). Mr. Hancock’s statements were misleading.

As evidenced by the early February 2007 email traffic, Mr. Hancock knew about the High Speed tests and knew the tests needed to be produced. This was three months prior to Plaintiffs’ Third Request. Thus, Mr. Hancock’s in-court statement that the High Speed tests had only recently been requested in May 2007 was misleading and an apparent attempt to obscure the fact that Goodyear had been withholding the tests for approximately four months.

On May 21, 2007, Goodyear deposed Plaintiffs expert, Mr. Osborne. As Mr. Hancock and Mr. Musnuff knew, Mr. Osborne had opined that “no high speed testing of the tire was done.” (Doc. 983-1 at 5). As evidenced by their email traffic in early February 2007, Mr. Hancock and Mr. Musnuff both knew high speed testing existed, Plaintiffs’ expert’s report directly implicated that testing, and the testing needed to be produced. Mr. Hancock and Mr. Musnuff decided to withhold the High Speed tests for at least three months, and proceed with Mr. Osborne’s deposition, knowing that Mr. Osborne was operating under incorrect assumptions and an incomplete record. The only plausible interpretation of this behavior is that Mr. Hancock and Mr. Musnuff decided to delay production of the tests in hopes of gaining a tactical advantage.

Still prior to production of the High Speed tests, the parties filed a notice of yet another discovery dispute. (Doc. 225). That notice recounted a variety of disputes, including a dispute involving Plaintiffs’ request that Goodyear provide a 30(b)(6) witness. At the discovery dispute hearing, Plaintiffs began by explaining the main theory of their case:

Mr. Kurtz: And the tire can’t carry the weight of the motor home at [freeway] speed. And it causes the tire to degrade and fail. And we believe — and we’re in the middle of this in this case — that that is part of the reason that we saw all these motor home failures with the G159 tire, is that when they get up to freeway speed, they’re just not put together to operate in that environment.

(Doc. 243 at 13).

The parties then discussed with the Court the 30(b)(6) issue. Plaintiffs’ counsel described the proposed deposition topics as including “the design history of this tire” and “testing for speed and weight.” (Doc. 243 at 21). The Court ruled that the 30(b)(6) deposition could occur. (Doc. 243 at 27). The Court also clarified with Goodyear’s counsel that the witness would be speaking on behalf of Goodyear. (Doc. 243 at 29).

On June 21, 2007, Goodyear responded to Plaintiffs’ Third Request. The responses were provided to Ms. Okey for her explicit approval. (PSOF Ex. 19, 20). Goodyear’s responses opened with the same or substantially similar boilerplate objections as those made in response to Plaintiffs’ First Request. Goodyear then provided three identical responses to Plaintiffs’ three requests for the “speed or endurance testing” Goodyear used to determine the G159 was suitable for use at 65 and 75 mph. That response was:

Subject to and without waiving the following objections, and in a good faith spirit of cooperation, Goodyear states that it is producing, subject to the Protective Order entered into this case, copies of electronically-maintained high speed durability test results conducted on [G159] production tires since August 1996. After diligent search, to date Goodyear has not been able to locate additional paper records for the tests that are recorded electronically, and it is believed that those paper records have been discarded pursuant to the Company’s document retention practices. Also, after diligent search, to date Goodyear has not been able to locate the paper records for the high-speed durability tests which it conducted on the [G159] tire prior to August 1996, which were not recorded electronically, and it is believed that those paper records have been discarded pursuant to the Company’s document retention practices. Goodyear will supplement this Response to produce these paper records if they are subsequently located.

Goodyear objects to this Request for the reasons and on the grounds that it is Overly Broad, Unduly Burdensome, seeks Irrelevant and Confidential Information.

(Doc. 938-1 at 36).

IX. Repeated Statements that Goodyear Withheld High Speed Tests

Around the same time Goodyear responded to Plaintiffs’ Third Request, the Court ordered the parties to “confer and set dates for all remaining depositions and discovery.” (Doc. 251). On June 26, 2007, Plaintiffs filed a document stating the parties had complied with the Court’s Order by establishing dates to complete discovery. Because a status hearing was scheduled for the near future, Plaintiffs’ filing also addressed various discovery problems they were still having with Goodyear. According to Plaintiffs, Goodyear’s June 21, 2007 disclosures were the “first time” it had disclosed “evidence which relates to the inability of the subject tire to operate at freeway speeds.” Plaintiffs stated they were still waiting for Goodyear to produce additional testing information and they requested the Court “inquire and determine whether additional testing data is in Goodyear’s possession to assure that Goodyear’s disclosures are complete.” (Doc. 256 at 3).

On June 28, 2007, Plaintiffs submitted a status report. In that report, Plaintiffs stated:

[T]he speed tests ... were finally produced last week by Goodyear. They were originally requested in September of 200[6]. The documents had been in Goodyear’s possession since January 2007 but not disclosed until after Plaintiffs had disclosed their experts’ opinions, including rebuttal opinions, and Plaintiffs’ expert’s deposition was taken.

(Doc. 260 at 2-3). A second status report from Plaintiffs submitted that same day referenced the High Speed tests and alleged: “All of the test data has been the subject of outstanding discovery requests since last September.” (Doc. 262 at 2). These repeated statements reflect Plaintiffs’ belief that their First Request remained in effect and that the High Speed tests were responsive to the First Request.

On August 9, 2007, the parties filed a joint statement regarding a request to modify the scheduling order. In that document, Plaintiffs stated they were still attempting “to gather information from Goodyear on the design and testing of this tire.” (Doc. 301 at 5). In addition, Plaintiffs claimed “Goodyear did not produce any testing on the speed of the tire until June [21], 2007, despite the fact such testing was requested in Plaintiffs’ First Request to Produce on September 20, 2006.” (Doc. 301 at 6). In response, Goodyear argued Plaintiffs were attempting to “distraet[ ] the Court with a series of red herrings regarding as yet unpresented and inchoate discovery disputes.” (Doc. 301 at 7). Goodyear did not provide any substantive response regarding its late disclosure of testing data nor did Goodyear explain that its disclosure of the test data was timely based on Mr. Kurtz withdrawing his First Request in a phone conversation with Mr. Hancock in December 2006. Instead, Goodyear argued the discovery deadline had passed and requested the Court limit the amount of remaining discovery. Without addressing the testing data issue, the Court imposed new discovery deadlines. (Doc. 311).

On September 10, 2007, the parties submitted another joint statement of discovery dispute. (Doc. 319). Plaintiffs were seeking to brief the issue regarding the “proper scope of discovery.” Plaintiffs also wished to present “information that Goodyear improperly withheld high-speed test data from the court.” (Doc. 319 at 2). On the issue of test data, Goodyear responded: “Nothing suggests this Court has ever ordered production of any test data to it.” (Doc. 319 at 5). Goodyear also claimed it had “produced all the high speed test data on this tire in its possession in a timely response to Plaintiffs Third Request for Production.” This latter statement was misleading.

As of February 2007, Mr. Hancock and Mr. Musnuff knew the High Speed tests were responsive to Plaintiffs’ First Request. The statement in the status report that the High Speed tests had been produced in a “timely response to Plaintiffs Third Request” was intended to mislead the Court into believing those tests had been requested only in the Third Request. That was plainly not true and contrary to Mr. Hancock and Mr. Musnuffs own knowledge as shown in their emails. Based in part on Goodyear’s deception, the Court denied Plaintiffs’ request to brief these issues and ordered the parties to comply with prior rulings regarding the appropriate scope of discovery. (Doc. 320).

X. Deposition of Goodyear’s 30(b)(6) Witness

On September 12, 2007, Plaintiffs deposed Richard Olsen. Mr. Olsen had been designated as Goodyear’s 30(b)(6) witness. Mr. Olsen was asked about the “high speed” tests Goodyear performed on the tire prior to Goodyear determining it could be released as a tire able to perform at speeds up to 75 miles per hour. In particular, Mr. Olsen was given the four High Speed tests which had been turned over to Plaintiffs in June 2007 and was asked whether they constituted the entire universe of such tests.

Mr. O’Connor (Plaintiffs’ Counsel): To the best of your knowledge, [were] only these four high-speed tests available to Goodyear prior to rating this tire as a 75 mile an hour tire[?]

Mr. Olsen: No.

Mr. O’Connor: What other high-speed tests are available?

Mr. Olsen: I think we talked at length this morning when we first started getting into the high-speed test data that I’ve spoken with the people who were involved in the release of this tire, and they’ve confirmed to me that high-speed tests were run in the development process of this tire before it was released to production. We just don’t have any paperwork available for that.

Mr. O’Connor: Okay. So there were tests run, but those have either been discarded or thrown away, and we don’t have the results of those tests. Correct?

Mr. Olsen: We don’t have them here today, but the people making the decision at that time likely had them available to them at that time.

Mr. O’Connor: Okay. So they had them available, apparently, in 1998 and have somehow discarded them since 1998. Is that what you’re trying to tell me?

Mr. Olsen: I’m just saying that they’re not available today.

Mr. O’Connor: Okay. So based on the record we have, we only know of four available high-speed tests that we can look at as to whether or not Goodyear could justify speed rating this tire at 75 miles an hour in June of 1998. Correct? Mr. Olsen: We have four available today to us.

Mr. O’Connor: Okay. So there’s any— any separate testing that would have been done on this car — on this particular tire, sir?

Mr. Olsen: There’s a number of different test procedures that are run in the development process of a new tire before it goes into production.

Mr. O’Connor: Do we have any of those tests, sir?

Mr. Olsen: I don’t have them, no.

Mr. O’Connor: Are they still available?

Mr. Olsen: I don’t believe so.

(Doc. 938-1 at 4(M5) (emphasis added).

Mr. Hancock then asked Mr. Olsen some questions based on a document previously examined during the deposition. That document described the High Speed tests produced by Goodyear:

Mr. Hancock: Okay. The — earlier on, the plaintiffs’ counsel asked you about an exhibit ... it is the test data for high-speed wheel tests performed on this tire. Do you have that?

Mr. Olsen. Yes....

Mr. Hancock: ... There are other numbered tests that are not on the exhibit. Is that correct? Do you recall the testimony the plaintiffs’ counsel asked you about saying, “Well, we don’t have tests, for example, 4 through 7,” that sort of thing?

Mr. Olsen: Yes, sir.

Mr. Hancock: As far as you know, are all of the tests that were in the databases that were searched that were on the — this, the tire at issue in this case, this specification tire, in that database, in what you have there?

Mr. Olsen: Yes. They’re all included here.

(Doc. 938-1 at 40-47).

Based on Plaintiffs’ dissatisfaction with Mr. Olsen’s testimony, the parties submitted another joint statement of discovery dispute. One of the disputes centered on Plaintiffs’ belief that Mr. Olsen “was not sufficiently knowledgeable” on various topics. (Doc. 345 at 1). Plaintiffs also claimed that Goodyear had not produced “all high-speed testing on the G159 tire and has improperly redacted responsive G159 high speed test results.” Goodyear claimed it had “produced all ‘high speed testing’ data more than three months ago.” (Doc. 345 at 3). Goodyear also represented that it had not redacted any tests but it had “simply omitted tests with other tires not at issue in the case, which were not part of Plaintiffs’ request for the high speed tests (‘any speed or endurance testing to determine that the subject tire was suitable for 75 mph highway purposes’).” (Doc. 345 at 3). The Court held a hearing on these disputes on October 19, 2007. (Doc. 361).

At that hearing, Mr. Hancock made a number of unequivocal statements. Mr. Hancock averred that “Goodyear has searched for and produced all of the high-speed testing in its possession concerning the tire that is at issue in this case.” (Doc. 361 at 45). After the Court learned Mr. Olsen may not have been qualified to state that all high speed testing data had been produced, the Court ordered Mr. Hancock to “ask [Mr. Olsen] just to make sure that ... that everything that relates to the high-speed testing of this tire has been produced.” Mr. Hancock responded: “I will do that, Your Honor. I will supplement our record. I believe that to be the ease. I have checked with my client and confirmed that that is the case.” (Doc. 361 at 46). Mr. Hancock then went on to “flesh out the record.” He stated:

Goodyear’s normal document retention policy means we don’t have those records anymore. These are not government-required tests. You don’t keep them.... So there were tests done. Mr. Olsen can testify about those tests but there are no documents for him to be questioned about other than the documents that have been produced and we will supplement with direct confirmation of that.

(Doc. 361 at 47) (emphasis added). After a break, Mr. Hancock affirmed that Plaintiffs had asked for “documents which relate to any speed or endurance testing to determine that the subject tire was suitable for 65 miles per hour.” (Doc. 361 at 53). Mr. Hancock affirmed yet again that Goodyear:

has searched for and produced all of the high-speed testing on this tire. The original discovery request, which is how we got here, were all documents which relate to any speed testing to determine that the tire was suitable for highway purposes. All of that has been produced.

(Doc. 361 at 58-59). Mr. Hancock continued: “The discovery request is what did you rely on and tell the public that this tire could go 75 miles an hour? All of that testing has been produced. This tire goes out for sale and we produced all of the testing on any tire that was the same as any of the tires for sale.” (Doc. 361 at 63).

All of these statements by Mr. Hancock were seriously misleading. Mr. Hancock knew, as evidenced by his February 2007 email to Mr. Musnuff, that the high speed tests were responsive to Plaintiffs First Request and they needed to be produced. By repeatedly relying on the tests being responsive only to the Third Request, Mr. Hancock was misleading the Court into thinking that Goodyear had been timely in producing the tests. But more importantly, Mr. Hancock repeatedly represented that there were no other documents beyond those already produced. As Mr. Olsen would inadvertently reveal later, Goodyear and its attorneys were concealing a wide variety of other testing documents.

XI. Post-Discovery Activity

Discovery formally ended shortly after the October 2007 hearing and the parties began briefing dispositive motions. The dispositive motions involved a wide array of complicated issues which, for purposes of this Order, are irrelevant. While those motions were pending, Plaintiffs agreed to dismiss Gulf Stream. (Doc. 635). Eventually, the Court issued a lengthy order denying Plaintiffs’ motion for summary judgment and denying in part and granting in part Goodyear’s motion for summary judgment. (Doc. 651). The Court also granted Spartan’s motion for summary judgment, dismissing Spartan from the case. (Doc. 652). Plaintiffs and Goodyear then prepared for trial by inundating the Court with motions in limine and other pretrial filings. The Court devoted substantial time and effort to resolving those motions. (Doc. 842, resolving over thirty motions). On April 14, 2010, the first day of trial, Plaintiffs and Goodyear informed the Court they had reached a settlement. (Doc. 926). As a result, the case was closed.

XII. Other G159 Cases

Having recounted the factual history of this case, the Court must very briefly outline certain events which occurred in other cases also involving G159 tires. There were three other G159 cases of particular relevance here. Those cases involved actions by some combination of Mr. Hancock, Mr. Musnuff, and Goodyear. The three cases are Woods v. Goodyear in Alabama, Schalmo v. Goodyear in Florida, and Bogaert v. Goodyear in Maricopa County Superior Court. This Court cannot and would not issue sanctions based on actions taken in these other cases. But given that they bear directly on issues presented in this case, it is appropriate to look to them in some detail. See, e.g., Thibeault v. Square D Co., 960 F.2d 239, 246 (1st Cir. 1992) (“The totality of the circumstances [relevant to a request for sanctions] can include events which did not occur in the case proper but occurred in other cases and are, by their nature, relevant to the pending controversy.”). In particular, these other cases are relevant when determining the credibility and state of mind of individuals involved in the present case.

A. Woods v. Goodyear

Woods v. Goodyear involved an accident with a Monaco Diplomat motor home and was filed in Alabama. (Doe. 938-1 at 84). Mr. Musnuff worked directly on the case in his role as national coordinating counsel. Sometime prior to July 2007, the Woods plaintiffs served on Goodyear their “Fifth Request for Production of Documents.” That request sought, among other things: “All other testing conducted by Goodyear ... that was undertaken, at least in part, to determine the suitability of [G159] tires to be driven at 65 mph.” (Doc. 992-1 at 100). Goodyear’s “Responses and Objections to Plaintiffs’ Fifth Request for Production of Documents” were very similar to the responses served in Haeger. Those responses started out with sixteen general objections and then individual objections incorporating the general objections. Upon receiving Goodyear’s responses, plaintiffs’ counsel in Woods sent a letter asking Goodyear to “reconsider” its objections. Goodyear did not and the parties presented the issue to the court.

In late August 2007, the judge handling the Woods case resolved the discovery dispute. The court began by noting the case had “been pending for over 3 years and [had] been marked by disagreements over production of documents on first one issue then another.” The court said it was “disgusted with the whole thing” and ordered Goodyear “to produce to the Plaintiff every document requested regarding the [G159] tire.” (Doc. 992-1 at 127).

After receiving this order, Mr. Musnuff sent an email to numerous individuals at Goodyear explaining the judge had required Goodyear to “fully and completely respond to the Requests for Production.” (PSOF Ex. 23). Mr. Musnuff included a “plan of action for responding to each RFP” and a “list of documents that need to be assembled for production in order to comply with the court’s ruling.” (PSOF Ex. 23). As recounted by Mr. Musnuff, the Woods plaintiffs’ request number 7 sought:

All other testing conducted by Goodyear of its [G159] tire that was undertaken, at least in part, to determine the suitability of such tires to be driven at 65 mph without an undue risk of tread or belt edge separations.

Mr. Musnuff included a comment regarding this request:

We will need to produce documents regarding ALL types of testing of the [G159] tire. That is the unfortunate reality of the judge’s decision. We already have the high speed test data, but we should go through the release checklist and identify all available testing data. We have already produced the W84 Test Protocol in other litigation. We have not previously produced the protocol set forth in the Master Specification, but we need to consider whether it serves our best interest to produce it.

(PSOF Ex. 23, August 20, 2007 email) (emphasis added).

One week later, Goodyear employee Sherman Taylor responded by stating, “Below are the responses to [RFP] # 7.” (PSOF Ex. 24). Mr. Taylor attached the following documents:

• DOT FMVSS-119 Extended Certification

• Heat Rise test;

• Bead durability test;

• Crown durability test;

• W16 test;

• W64 test;

• G09 test; and

• L04 test.

That email was sent to Mr. Musnuff and Goodyear engineer Jim Stroble. There is no record that Mr. Stroble subsequently clarified that Mr. Taylor’s email was wrong. And, presumably relying on Mr. Taylor’s opinion, Mr. Musnuff later supervised the production of the Heat Rise tests and the other tests listed.

The following point is critical and must be emphasized. As of August 27, 2007, Mr. Taylor and Mr. Musnuff knew that all of the tests listed in Mr. Taylor’s email were responsive to a request for those tests which Goodyear conducted “to determine the suitability of [the G159] to be driven at 65 mph.” This is in direct conflict with the position Mr. Musnuff and Goodyear adopted in the present case. According to Mr. Musnuff and Goodyear, their position in the present case was based on a belief that only the High Speed tests were responsive to Plaintiffs’ request for: “All documents which relate to any speed or endurance testing to determine that the subject tire was suitable for [65 or 75] mph highway purposes.” Mr. Taylor’s email shows Mr. Musnuff and Goodyear previously believed many other tests were responsive to such a request.

B. Schalmo v. Goodyear

Schalmo v. Goodyear involved an accident with a Fleetwood motor home and was filed in Florida. (Doc. 938-1 at 84). Again, Mr. Musnuff worked directly on the case in his role as national coordinating counsel. During discovery, the Schalmo plaintiffs’ sought “all documents reflecting studies, analysis or testing ... associated with determining the appropriate speed rating, Load Range and/or vehicle application of the G159 tires.” (Doc. 992-1 at 4). In April 2008, Goodyear responded to this request with a list of over twenty-five tests. Included in those tests were the Heat Rise tests. (Doc. 992-1 at 5).

Just as in the Woods matter, Goodyear’s discovery response in Schalmo was an affirmative statement that the Heat Rise tests were responsive to a request for the testing Goodyear had used to determine the “appropriate speed rating, Load Range, and/or vehicle application of the G159 tires.” As with Woods, the position taken in Schalmo is inconsistent with that taken in the present case. Rather than merely concede the response in the current case was inaccurate, Mr. Musnuff and Goodyear now claim the response in Schalmo was inaccurate.

According to Mr. Musnuff and Goodyear, when local counsel in Schalmo responded to the discovery request, he simply listed the same test data for each request for production, even though each of the tests listed was not responsive to each request. As stated by Mr. Musnuffs current counsel, “the fact that the same lists were included with the responses to the first three discovery requests did not indicate that each listed test was responsive to each specific type of data requested.” (Doc. 1000 at 3). Neither Goodyear nor Mr. Musnuff gives an acceptable explanation why, after being so precise in its discovery responses elsewhere, Goodyear suddenly decided to produce documents in this manner. Mr. Musnuff has attempted to explain that the Schalmo discovery response was complicated by Florida law and the need to submit certain documents for in camera review prior to production. That explanation is senseless. Even assuming Florida law requires extra procedures, there is no requirement in Florida law that litigants provide grossly inaccurate discovery responses.

A final point regarding Schalmo involves Mr. Musnuffs admission that the Heat Rise tests were a type of “durability test.” On May 8, 2009, Mr. Musnuff emailed Goodyear engineer Jim Stroble to discuss the Heat Rise tests. That email states “plaintiffs in Schalmo are now trying to cite our Heat Rise Testing as evidence that the tire is defective for generating excessive temperatures.” As recounted by Mr. Musnuff, the Schalmo plaintiffs were “highlighting] the Heat Rise testing taken during the durability testing of the G159.” (PSOF Ex. 34) (emphasis added). Thus, as of May 2009, Mr. Musnuff knew the Heat Rise tests were a type of durability testing and that plaintiffs suing Goodyear in a G159 motor home case believed the Heat Rise tests were of great significance.

C. Bogaert v. Goodyear

Bogaert v. Goodyear involved an accident with a Fleetwood motor home and was filed in Maricopa County Superior Court in 2005. (Doc. 938-1 at 84). Goodyear was represented by Mr. Hancock as local counsel and Mr. Musnuff served as national coordinating counsel. As with all the other Goodyear cases which have been brought to the Court’s attention, the Bogaert matter involved extreme difficulty in convincing Goodyear to produce documents. In early 2008, dissatisfied with Goodyear’s discovery responses, the Bogaert plaintiffs filed a motion to compel. (Doc. 992-1 at 49). On March 20, 2008, the discovery special master ordered Goodyear to “produce the requested documents.” (Doc. 992-1 at 66). In particular, Goodyear was ordered to produce the “testing conducted by Goodyear of its [G159] tires that was undertaken, at least in part, to determine the suitability of such tires to be driven at 65 mph without an undue risk of tread or belt edge separations.” (Doc. 992-1 at 70). This was identical to the discovery request in Woods that led Mr. Taylor to list as responsive the various tests, including the Heat Rise tests.

On June 5, 2008, Mr. Musnuff emailed Mr. Hancock regarding the Bogaert case. That email stated, in relevant part:

In meeting with [Goodyear Engineer] Jim Stroble yesterday, we came to conclude that we might be best served by producing data from additional tests of the Subject Tire. As you know, we have produced the available electronically maintained high-speed test data in this case (and in Haeger and Haley [another G159 case] as well) along with the current protocol.

One of the 30(b)(6) topics relates to testing done to make sure the tire was suitable for RV usage. There was no testing specifically done on RVs, but our whole testing package was to ensure that the tire was suitable for over-the-road applications, including RV.

In the Woods case, we were compelled to produce other testing data/protocols in addition to High Speed. There, we produced (i) extended DOT testing data, (ii) heat-rise test data, (iii) bead durability (aka Runflat) test data, and (iv) crown durability test data, along with the current (evergreen) protocol for each of those tests....

Jim thinks that it may be helpful to produce these documents so that he can review them in preparation for his deposition. That seems ok with me. Do you agree? Thoughts?

(PSOF Ex. 31) (emphasis added). The first bolded portion above is a statement by Mr. Musnuff that as of June 5, 2008, he believed Goodyear’s “whole testing package” was done to ensure the G 159 was “suitable for over-the-road applications, including RV.” That testing package included the Heat Rise tests. And the second bolded portion shows Mr. Hancock knew as of June 5, 2008 that “extended DOT testing data,” “heat-rise test data,” “bead durability ... test data,” and “crown durability test data” existed and it had been produced in another G159 case. Mr. Hancock responded to the email with “Let’s discuss.” Three months later, Mr. Hancock asked “Basil — Did you come to a conclusion on this?” And one month after that, Mr. Hancock said “Need to discuss this.” The Heat Rise tests were never produced in Bogaert.

The history of Bogaert establishes three critical facts. First, Bogaert was filed in Arizona state court in 2005. Under Arizona Rule of Civil Procedure 26.1, Goodyear had affirmative disclosure obligations. Mr. Hancock claims to have explained these affirmative disclosure obligations to Mr. Musnuff but Mr. Musnuff now claims that prior to early 2007, he “was unaware of any test records relating to the G159 tire other than the DOT test data” Goodyear produced in every case. (Doc. 983-1 at 6). Mr. Musnuff stated under oath that he only started looking for test results in January 2007. Thus, the present record is clear that either Mr. Hancock did not explain Rule 26.1 or Mr. Musnuff and Goodyear chose to ignore it. Either way, Goodyear and its attorneys clearly had no interest in complying with their discovery obligations unless those obligations were in the “best interest[s]” of Goodyear. (PSOF Ex. 23, August 20, 2007 email) (emphasis added).

The second fact that the Bogaert record establishes is that long after its responses were served in the present case, Mr. Musnuff believed Goodyear’s “whole testing package” was to ensure the suitability of the G159 for “over-the-road applications.” That testing package included the Heat Rise tests, the extended DOT test, crown durability test, and the bead durability test. Therefore, prior to the present sanctions proceedings, Mr. Musnuff was of the opinion that all of these tests were responsive to a request for the data Goodyear used to determine the G159’s suitability for use “over-the-road.” In other words, in June 2008 Mr. Musnuff was of the opinion that the Heat Rise tests, extended DOT test, the bead durability test, and the crown durability test were responsive to Plaintiffs’ Third Request.

And the third fact established by the Bogaert record is that no later than June 5, 2008 Mr. Hancock knew of the existence of additional test data not produced in the present case. While there is no evidence that Mr. Hancock actually had copies of the underlying test results referenced in Mr. Musnuffs email, he knew that the tests existed and he either knew or should have known that the disclosures in the present case had been woefully inadequate.

Viewed together, Goodyear and its counsel took positions in the other G159 cases directly contrary to the positions they now ask this Court to accept. The positions taken in these other cases, when Goodyear and its counsel were not attempting to avoid sanctions, are reliable. As explained below, this means Goodyear, Mr. Hancock, and Mr. Musnuff knowingly concealed crucial documents in the present litigation.

XIII. Plaintiffs’ Counsel Writes to Goodyear About Undisclosed Tests

Close to one year after the present case settled, Mr. Kurtz wrote to Mr. Musnuff and stated he had “great concern regarding the adequacy and honesty of the disclosures made” in this case. (Doc. 938-1 at 49). This concern was based on a newspaper article regarding Schalmo. That case had proceeded to trial and resulted in a 5.6 million dollar award against Goodyear. (Doe. 938-1 at 12). According to the newspaper article, during trial the Schalmo plaintiffs had presented “Goodyear documents including internal heat and speed testing and failure rate data.” (Doc. 938-1 at 12). Mr. Kurtz observed that no such data was produced in this case and he asked Mr. Musnuff whether such records actually exist. In response, Mr. Musnuff stated “Goodyear stands behind its discovery responses in the Haeger case, and we stand behind the properly-stated objections to the scope of the discovery requests propounded by the plaintiffs in this case.” (Doc. 938-1 at 53). Mr. Kurtz then emailed Goodyear’s counsel, asking for a direct answer whether “internal heat test records” existed. (Doc. 938-1 at 56). Mr. Musnuff responded that it would not be “productive to debate these issues further.” (Doc. 938-1 at 56).

Mr. Kurtz sent a follow-up letter, which Mr. Musnuff responded to by claiming Mr. Kurtz’ allegations were “unprofessional and without merit.” (Doc. 938-1 at 66). Mr. Musnuff stated Goodyear had “abided by all of Judge Silver’s rulings and we take issue with any suggestion that we were disrespectful or misled the court in any manner or that we failed to comply with any of her rulings in this case.” Mr. Musnuff admitted “it is true there are testing records regarding the [G159] tire that were not produced in the Haeger litigation. That fact was clear during the course of the litigation, and certainly at the time plaintiffs chose to resolve this case.” (Doc. 938-1 at 66) (emphasis added). Mr. Musnuff then offered a disturbing explanation of what happened.

Plaintiffs propounded a request that Goodyear produce all testing data related to the Subject Tire. However, that did not automatically create an obligation that Goodyear produce all testing data in this case. Goodyear responded to plaintiffs’ request by objecting to the scope of the request on several good-faith grounds.... Goodyear did produce DOT testing data in response to plaintiffs’ request, showing that the Subject Tire was in full compliance with FMVSS 119, but Goodyear objected to the production of any other testing data. We never represented that this DOT testin