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In re Volkswagen "Clean Diesel" Marketing, Sales Practices, and Products Liability Litigation

United States District Court, N.D. California

September 13, 2019

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

         I. DISCOVERY DISPUTE

         Plaintiffs 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 Amended Complaint.

         Bosch 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).)

         The 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.

         In 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.

         Topic Nos. 16 and 17:[1] 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 testimony:

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).)

         The 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.

         The 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.

         The 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.

         Topic 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 ...


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