The case of the day is McAllister-Lewis v. Goodyear Dunlop Tires North America, Ltd. (D.S.D. 2015). Judith McAllister-Lewis sued Goodyear Dunlop Tires North America and the Goodyear Tire & Rubber Co. for wrongful death after her husband died in a motorcycle accident on the highway when the tire of his Harley Davidson Ultra Classic had a “catastrophic deflation.” The tire was designed, manufactured, and sold in the US but built at a Goodyear and Dunlop plant in Montlucon, France. The plaintiff served a discovery on the defendants, both US entities, seeking information in the possession of GDTF, an indirect subsidiary of Goodyear in France. The defendants argued that answering the questions McAllister-Lewis had posed about “which GDTF employees were involved in the manufacturing and/or inspection process” might violate French privacy law.
There were some unanswered questions about whether Goodyear had the requisite control over the subsidiary to bring the information within its “possession, custody, or control,” and the court asked the parties for further briefing on that point. But the court dismissed the argument based on French privacy law outright. The main reason was that the defendants “did not explain in their responses to plaintiff’s discovery requests the French privacy law upon which they relied.” I’m not sure that a party is required to do more in a discovery response than to make assertions; briefing the issue comes later. It may be, though, that the defendants didn’t mention the French privacy law at all in their responses. That would be a different story. But the opinion is not entirely clear.
Applying an Aerospatiale analysis, the court also rejected the defendants’ arguments, again pointing to a lack of detail about what French law requires. “First and foremost, the defendants have not cited any specific French law which prohibits the dissemination of this information.” Here it seems the court is talking about inadequate briefing rather than inadequate discovery responses. It’s not clear whether the defendants really dropped the ball or whether this is an instance of a failure of the civil law and the common law to understand each other. In any event, the moral of the story is: it’s not enough simply to assert that foreign law requires or forbids particular disclosures.