United States District Court, N.D. California
This Relates To Napleton, No. 316-cv-2086-CRB
ORDER RE: (1) ECF NO. 6608 DISCOVERY DISPUTE, (2) ECF
NO. 6607 MOTION TO SEAL
JACQUELINE S. CORLEY UNITED STATES MAGISTRATE JUDGE
are preparing to take a Rule 30(b)(6) deposition of Bosch.
Bosch, while agreeing to make witnesses available for that
deposition, has requested a protective order to prevent
Plaintiffs from seeking testimony on six topics. The Court
considers those topics below.
Topic No. 1: Bosch's role in the creation,
development, modification, or refinement of the
“acoustic function” (whether known by that name
or any other in German or another language) in Audi vehicles
to correct or compensate for a noise problem in the vehicles
upon ignition as described in paragraph 78 of the Third
argues that this first topic is unwieldy and unduly
burdensome because it effectively requests a corporate
witness to testify about all steps that Bosch took to create,
develop, modify, and refine the “acoustic
function” in Audi vehicles over a 14-year period.
(See MDL Dkt. No. 6608 at 5.) Plaintiffs counter
that the topic is relevant because the Audi acoustic function
“formed the blueprint for the development of the defeat
device software at issue in this case (in the EDC 17).”
(Id. at 10.) Plaintiffs also insist that the
relevant time period is five years, not 14. (See Id.
at 11 (explaining that the relevant acoustic function appears
to have been used from 2004 to 2008).)
Court agrees with Plaintiffs that Bosch's role in
creating and developing the Audi acoustic function is
relevant, given that the software at issue in this case may
trace its origins to that function. The topic is overbroad
however. No. relevant modifications to the Audi function are
alleged. Thus, testimony on Bosch's role in modifying and
refining the function over the course of years (whether that
be 14 years or five) is not relevant and would impose an
unwarranted burden on Bosch.
light of the above, the Court instructs Bosch to provide a
Rule 30(b)(6) witness to testify about the company's role
in creating and developing the Audi acoustic function. But
Bosch need not provide a witness to testify about its role in
modifying and refining that function.
Nos. 16 and 17: These topics generally cover “the
terms of engagement between Bosch and other automobile
[manufacturers].” (MDL Dkt. No. 6608 at 12.) Plaintiffs
provide the following explanation for why they seek this
A key dispute in this case is whether Bosch actively
developed and modified the defeat device software, or whether
Volkswagen used it and modified it to its own ends. . . .
Plaintiffs seek to establish that Bosch retained tight
control over its software, and ultimately would not allow
modifications without its knowledge. If Bosch had agreements
with other [car manufacturers] that were more restrictive
than with Volkswagen, that would tend to support Bosch's
defense that Volkswagen had the ability to modify the
software on its own, and Plaintiffs are entitled to that
discovery. If Bosch's agreements with other [car
manufacturers] were less restrictive (such that other [car
manufacturers] had more control over the software), that
would tend to support Plaintiffs' claims that Bosch's
agreements with Volkswagen were designed to provide Bosch
will full control over its software.
(Id. (emphasis omitted).)
probative value of this evidence (that is, of testimony about
the terms of engagement between Bosch and car manufacturers
other than Volkswagen) is limited. As framed by Plaintiffs,
the relevant question is whether Bosch retained tight control
over the software it provided to Volkswagen. The answer to
that question should be evident from Bosch's agreements
with Volkswagen and from evidence of how those agreements
were implemented. (Did the agreements allow Volkswagen to
modify the software or not?) The terms of engagement between
Bosch and other car manufacturers would at most provide a
much less direct answer to the relevant question.
burden on Bosch of providing the requested testimony would
also be substantial. A witness would need to identify and
review the agreements Bosch had with every car manufacturer,
and then compare and contrast those agreements. Given
Bosch's statement that it has entered into agreements
with “potentially 50 or more [car manufacturers]”
(id. at 7), this would be a significant undertaking.
burden on Bosch of providing the requested testimony
outweighs the testimony's limited probative value. As a
result, Bosch need not provide a witness to address Topic
Nos. 16 and 17.
Nos. 46, 47, and 48: The last three disputed topics
relate to a letter that Bosch sent to Volkswagen in 2008.
Bosch explained in the letter that certain software
Volkswagen had requested could qualify as a defeat device if
used improperly. Bosch then requested that Volkswagen
indemnify Bosch for any liability arising from the
software's misuse. (See MDL Dkt. No. 4175-1 at
7-12 (English version of the letter).) Plaintiffs maintain
that Volkswagen refused to sign the indemnity ...