                                                                         F I L E D
                                                                   United States Court of Appeals
                                                                           Tenth Circuit
                                     PUBLISH
                                                                           JUN 2 2004
                    UNITED STATES COURT OF APPEALS
                                                                     PATRICK FISHER
                                                                               Clerk
                                  TENTH CIRCUIT



 GREGORY CUMMINGS; TRACEY
 CUMMINGS, husband and wife,

       Plaintiffs - Appellants,

 v.                                               No. 02-6340 and 03-6209

 GENERAL MOTORS
 CORPORATION,

       Defendant - Appellee.


             ORDER ON APPELLANTS’ PETITION FOR REHEARING
                AND SUGGESTION OF REHEARING EN BANC
                                   365 F.3d 944


Before KELLY, McKAY, and HENRY, Circuit Judges.



      This matter is before the court on Appellants’ Petition for Rehearing and

Suggestion of Rehearing En Banc. The panel has voted to grant rehearing

pursuant to Federal Rule of Appellate Procedure 40(a)(4)(C) for the limited

purpose of amending the majority opinion so as to be technically accurate with

regard to the standard set forth in the case law. We modify the proposed opinion

by replacing the last sentence in the first paragraph after the heading “Denial of
Rule 60(b) Motion on the Merits” to read as follows:

         The application must be “clearly substantiated by adequate proof,”
         Wilkin, 466 F.2d at 717, and “the challenged behavior must
         substantially have interfered with the aggrieved party’s ability fully
         and fairly to prepare for and proceed at trial.” Woodworker’s
         Supply, Inc. v. Principal Mut. Life Ins. Co., 170 F.3d 985, 993 (10th
         Cir. 1999) (internal quotation marks and citations omitted).

This change has no effect on the result in this case given our conclusion that there

was no discovery misconduct on General Motors’s part–the issue of when a retrial

is mandated under Federal Rule of Civil Procedure 60(b)(3) due to discovery

misconduct was not reached. In all other respects, the petition for rehearing and

suggestion for rehearing en banc is denied. A revised opinion is attached to this

order.

                                         Entered for the Court
                                         Patrick Fisher, Clerk


                                         By:
                                                 Deputy Clerk




                                           -2-
                                                                    F I L E D
                                                              United States Court of Appeals
                                                                      Tenth Circuit
                                     PUBLISH
                                                                     APR 28 2004
                   UNITED STATES COURT OF APPEALS
                                                                 PATRICK FISHER
                                                                          Clerk
                                  TENTH CIRCUIT



 GREGORY CUMMINGS; TRACEY
 CUMMINGS, husband and wife,

       Plaintiffs - Appellants,

 v.                                            No. 02-6340 and 03-6209

 GENERAL MOTORS
 CORPORATION,

       Defendant - Appellee.


        APPEAL FROM THE UNITED STATES DISTRICT COURT
           FOR THE WESTERN DISTRICT OF OKLAHOMA
                    (D.C. No. 00-CV-1562-W)


Richard L. Denney, (Lydia JoAnn Barrett, Denney & Barrett, P.C., Norman,
Oklahoma and Robert R. Robles, Oklahoma City, Oklahoma on the briefs;
Richard J. Goralewicz, Turner, Turner, Goralewicz & Dillingham, Oklahoma
City, Oklahoma, with him on the briefs), for Plaintiffs - Appellants.

Mary Quinn Cooper, (William S. Leach and Andrew L. Richardson, on the brief),
Eldridge, Cooper, Steichen & Leach, P.L.L.C., Tulsa, Oklahoma, for Defendant -
Appellee.


Before KELLY, McKAY, and HENRY, Circuit Judges.


KELLY, Circuit Judge.
      Gregory and Tracey Cummings brought this suit against General Motors

Corporation (“GM”) to recover for injuries Mrs. Cummings sustained in an

automobile accident involving a 1995 Pontiac Grand Am. The Cummings allege

that Mrs. Cummings’s injuries resulted from a flawed seat belt system and seat

designed by GM, as well as inadequate warnings of the dangers inherent in the

product. A jury returned a verdict in favor of GM, and the Cummings appeal,

asserting that the court should have directed a verdict in their favor based on the

evidence, and that the district court abused its discretion with regard to several

discovery rulings. Approximately eight months after the trial, the Cummings filed

a motion in the district court for relief under Federal Rule of Civil Procedure

60(b) based on alleged discovery misconduct on GM’s part. The district court

denied relief, and the Cummings appeal. We have jurisdiction under 28 U.S.C. §

1291 over both appeals and consider them in turn below, affirming in all respects.



                                     Background

      Gregory and Tracey Cummings were involved in a car accident on the

evening of September 13, 1998 in rural Carter County, Oklahoma. Mr. Cummings

was driving a 1995 Pontiac Grand Am with his wife, Tracey, in the front

passenger seat. Their children were in the back seat, with the three-month-old in

a car seat behind Mrs. Cummings. Mr. Cummings ran a “partially obscured” stop


                                         -2-
sign at a T-type intersection and drove off the road, through a ditch, and into a

field. I Aplt. App. at 191. Although the other passengers sustained only minor

injuries, Mrs. Cummings sustained a compression fracture of the third vertebra

resulting in paraplegia. I Aplt. Br. at 12.

      The Cummings brought this suit against GM, asserting that Mrs. Cummings

sustained such severe injuries as a result of the design of the seat belt and the

seat, as well as GM’s failure to warn. Prior to trial, the parties engaged in

multiple discovery disputes, including disputes over the adequacy of responses to

requests for production, expert witness designations, depositions, and electronic

discovery. See I Aplt. App. at 17-37. These disputes resulted in three motions to

compel by the Cummings and several motions for protective orders by GM. The

magistrate judge addressed the majority of these disputes in an order dated June

18, 2002, in which the judge denied Plaintiffs’ motions, granted Defendant’s

motions for protective orders, and granted Defendant’s their attorney’s fees and

costs. Id. The district court reviewed the Plaintiffs’ motions de novo and

affirmed the magistrate’s findings in all respects. Id. at 3.

      At trial, GM countered the Cummings’ claims with evidence that there was

no defect in either the seat, the seat belt system, or the warning. See id. at 714-

15, 725, 865, 889-90, 1030-32. GM contended that Mrs. Cummings’s injuries

resulted not from any defect, but rather from a combination of the forces exerted


                                         -3-
on her during the accident and her position and posture at the time of the

accident. Although the Cummings offered evidence that Mrs. Cummings had her

seat angled back approximately 25 degrees, id. at 157, 524, GM’s experts testified

that she was most likely reclined at 40-45 degrees at the time of the accident, id.

at 689; sitting slouched in the seat, id. at 686-87, 900-02; and/or turned to attend

to the children in the back seat, I Aplee. Supp. App. at 316. The Cummings

argued that such a conclusion was impossible because there was a rear-facing

child safety seat located behind Mrs. Cummings that prevented her from reclining

her seat. GM offered evidence that the child seat was actually installed in a

forward-facing direction at the time of the accident, thus allowing the front

passenger seat to recline.

      At the close of all the evidence, out of the presence and hearing of the jury,

both the Cummings and GM moved for judgment as a matter of law. I Aplt. App.

at 1041-49. GM made its motion first, moving for judgment as a matter of law

with regard to all claims, including the alleged defective seat, seat belt, failure to

warn, and punitive damages claims. The Cummings responded to GM’s

contentions, and then the court directed them to make their motion for judgment

as a matter of law. Counsel for the Cummings stated:

      Your Honor, I would move for judgment as a matter of law on the
      foreseeable misuse or the so-called misuse defense. Throughout the
      trial we have had to listen to [General Motors] accuse Mrs.
      Cummings of reclining the seat. I don’t need to tell Your Honor.

                                          -4-
      Your Honor knows foreseeable misuse is not a defense. No one
      denies that this is foreseeable misuse of a seat. No one denies that
      they built the capability into the seat to do it. They knew the risk,
      that they knew people would be injured if they did that. No one
      whatsoever denies that in this trial. This jury should be instructed
      that reclining the seat is not a defense, and that if this Defendant
      built a recliner seat that is dangerous, this Defendant should be held
      legally responsible for the consequences. That’s the law in
      Oklahoma.

Id. at 1047-48. The court denied both motions.

      The jury returned a verdict for GM, finding GM not liable for any design

defect or failure to warn. I Aplee. Supp. App. at 324. The Cummings failed to

make any motions following the return of the verdict. Id. at 327. The Cummings

filed a timely appeal, asserting that (1) they were entitled to judgment as a matter

of law with regard to liability, and (2) the trial court abused its discretion in its

rulings on various discovery motions.

      One month after the verdict, and after filing the appeal, the Cummings

discovered six videos of child safety seat acceleration tests conducted by GM and

produced by GM in an unrelated trial. The videos show tests by GM involving

child-sized dummies in forward-facing child car seats placed in the back seat. In

the videos, the children are thrown from the car seat during various accident

simulations. The Cummings argue the tests fall within their prior requests for

production and would have demonstrated that it was impossible for Mrs.

Cummings to have her seat fully reclined at the time of the accident, as their child


                                           -5-
would have been injured had the child been in a forward-facing child restraint.

      The Cummings did not immediately move for relief upon discovery of the

videos. Instead, they waited seven months to file a motion for relief under

Federal Rule of Civil Procedure 60(b). The district court, finding the motion both

untimely and lacking in support, denied the motion, and the Cummings appeal.

The appeals have been consolidated and are addressed jointly below.



                                     Discussion

A. Preserving Appellate Review of Sufficiency of the Evidence

      The Cummings assert the trial court erred in not granting judgment in their

favor, arguing that the “[e]vidence of defect and causation presented at trial

entitled [them] to judgment as a matter of law.” I Aplt. Br. at 26. GM contends

that the Cummings have failed to preserve this issue for appeal, stating (1) the

Cummings moved for judgment as a matter of law at the close of evidence only on

the defense of product misuse and not on liability generally, and (2) the

Cummings failed to renew their motion for judgment as a matter of law after the

verdict. I Aplee. Br. at 5, 6.

      A party challenging the sufficiency of the evidence during a civil trial must

make a motion for judgment as a matter of law before the case is submitted to the

jury, in accordance with Federal Rule of Civil Procedure 50(a). “If, for any


                                         -6-
reason, the court does not grant a motion for judgment as a matter of law made at

the close of all the evidence, the court is considered to have submitted the action

to the jury subject to the court’s later deciding the legal questions raised by the

motion.” Fed. R. Civ. P. 50(b). If the court denies the motion and submits the

case to the jury, the party may nevertheless renew its motion after the verdict if

the jury finds for the opposing party or fails to reach a verdict. Id.

      Because a motion for judgment as a matter of law at the close of evidence

and following a verdict are closely intertwined, we consider both in turn. A

motion for judgment as a matter of law at the close of the evidence, formerly

referred to as a motion for a directed verdict, serves several purposes. Anderson

v. United Tel. Co. of Kan., 933 F.2d 1500, 1503 (10th Cir. 1991) (collecting

cases). A motion under Rule 50(a) protects the Seventh Amendment right to trial

by jury. Such a motion alerts the opposing party to any deficiencies in the case,

thereby giving the party an opportunity to rectify any deficiencies prior to the

case being submitted to the jury. Id. A motion for judgment as a matter of law

also alerts the court to a claim of insufficient evidence before the case is

submitted to the jury so the court is not faced with such a claim after the fact

when the court’s ability to address the motion is limited. Id. Finally, a motion at

the close of evidence preserves the issue as a question of law for appeal. Id.

      These purposes are met when the moving party alerts the court and the


                                          -7-
opposing party to the insufficiency of the evidence prior to submission of the case

to the jury. Greenwood v. Societe Francaise De, 111 F.3d 1239, 1244-45 (5th Cir.

1997). Upon such a motion, the court “may grant a directed verdict only if the

evidence points but one way and is susceptible to no reasonable inferences which

may support the opposing party’s position,” with the evidence and inferences

construed in the light most favorable to the nonmoving party. Q.E.R., Inc. v.

Hickerson, 880 F.2d 1178, 1180 (10th Cir. 1989). On appeal, this court reviews

de novo the district court’s denial of a motion for judgment as a matter of law,

Cadena v. Pacesetter Corp., 224 F.3d 1203, 1208 (10th Cir. 2000), applying the

same standard as applied in the district court, Q.E.R., 880 F.2d at 1180. “[W]e . .

. will reverse only if there is no legally sufficient evidentiary basis . . . with

respect to a claim or defense . . . under the controlling law.’” Cadena, 224 F.3d at

1208 (internal quotations and citations omitted).

      Where a party fails to move for judgment as a matter of law before the

close of the evidence, however, we have repeatedly held that such a failure bars

appellate review of the sufficiency of the evidence. F.D.I.C. v. United Pac. Ins.

Co., 20 F.3d 1070, 1076 (10th Cir. 1994); Green Constr. Co. v. Kan. Power &

Light Co., 1 F.3d 1005, 1012 (10th Cir. 1993); Comcoa, Inc. v. NEC Tels., Inc.,

931 F.2d 655, 663 n.11 (10th Cir. 1991). The motion must also be sufficiently

certain as to the issues raised. Rule 50(a) requires that a motion for judgment as a


                                           -8-
matter of law at the close of the evidence “specify the judgment sought and the

law and the facts on which the moving party is entitled to the judgment.” Fed. R.

Civ. P. 50(a)(2). The motion must include all issues challenged, as the “failure to

move for a directed verdict [now judgment as a matter of law] on a particular

issue will bar appellate review of that issue.” Davoll v. Webb, 194 F.3d 1116,

1136 (10th Cir. 1999).

      When determining whether a particular issue has been raised in a motion

for judgment as a matter of law, the court has liberally construed such motions,

Aguinaga v. United Food & Commercial Workers Int’l Union, 993 F.2d 1463,

1470 (10th Cir. 1993), stating that “[t]echnical precision is not necessary in

stating grounds for the motion so long as the trial court is aware of the movant’s

position,” United States v. Fenix & Scisson, Inc., 360 F.2d 260, 266 (10th Cir.

1966); see also Anderson, 933 F.2d at 1504. While technical precision is not

required, “merely moving for directed verdict is not sufficient to preserve any and

all issues that could have been, but were not raised in the directed verdict

motion.” United Int’l Holdings, Inc. v. Wharf Ltd., 210 F.3d 1207, 1229 (10th

Cir. 2000). Rule 50 “does require that [the grounds for a motion] be stated with

sufficient certainty to apprise the court and opposing counsel of the movant’s

position with respect to the motion.” Id.

      In this case, the Cummings moved for judgment as a matter of law with


                                         -9-
regard to the defense of misuse only and requested a jury instruction on this issue.

Counsel did not move for judgment as a matter of law with regard to GM’s

liability generally. The Cummings assert that the motion should be read liberally

in accordance with Aguinaga to include the issue of liability generally. Although

technical precision is not required, the moving party must adequately notify the

court of the issues being raised in order to satisfy the purposes of the rule. The

Plaintiffs’ motion was limited to a motion for judgment as a matter of law on the

issue of misuse, and therefore any appeal is so limited. See Dilley v. SuperValu,

Inc., 296 F.3d 958, 962 (10th Cir. 2002); Smith v. Northwest Fin. Acceptance,

Inc., 129 F.3d 1408, 1415-16 (10th Cir. 1997); United Pac. Ins., 20 F.3d at 1076.

Beyond the issue of foreseeable misuse, we are limited to review for “‘plain error

constituting a miscarriage of justice.’” Dilley, 296 F.3d at 962 (quoting First Sec.

Bank v. Taylor, 964 F.2d 1063, 1057 (10th Cir. 1992)); see also Smith, 129 F.3d

at 1416.

      GM also asserts that the Cummings’ failure to renew their motion after the

verdict results in a waiver. While true in most circuits, 1 under Tenth Circuit


      1
        We note that the vast majority of other circuits have held that the failure to
renew a motion for judgment as a matter of law following a jury verdict precludes
an appellate court from reviewing the sufficiency of the evidence. See Adames v.
Perez, 331 F.3d 508, 511-12 (5th Cir. 2003) (holding failure to file a post-verdict
motion waives a sufficiency claim, limiting court to a review for plain error);
Cross v. Cleaver, 142 F.3d 1059, 1069-70 (8th Cir. 1998) (holding, where a party
fails to move for judgment as a matter of law following the verdict, the court

                                        - 10 -
precedent, even where a party fails to make a post-verdict motion for judgment as

a matter of law, it is not barred from appealing the issue of the sufficiency of the

evidence, at least where an appropriate motion has been made prior to the

submission of the case to the jury. See Morrison Knudsen Corp. v. Fireman’s

Fund Ins. Co., 175 F.3d 1221, 1246 (10th Cir. 1999) (holding such a failure does

not bar appellant “from appealing the issue of the sufficiency of the evidence”);

Marshall v. El Paso Natural Gas Co., 874 F.2d 1373, 1385 (10th Cir. 1989)

(holding “failure to move for judgment notwithstanding the verdict does not bar

an appeal”); Hansen v. Vidal, 237 F.2d 453, 454 (10th Cir. 1956) (holding motion

for judgment as a matter of law not a “condition precedent to appeal from a final



cannot test sufficiency of evidence beyond plain error to prevent a manifest
miscarriage of justice); Patel v. Penman, 103 F.3d 868, 879 (9th Cir. 1996);
Varda, Inc. v. Ins. Co. of N. Am., 45 F.3d 634, 638 (2d Cir. 1995) (failure to
make motion results in a waiver of challenge to sufficiency of evidence);
Velazquez v. Figueroa-Gomez, 996 F.2d 425, 426-27 (1st Cir. 1993); Biodex
Corp. v. Loredan Biomedical, Inc., 946 F.2d 850, 862 (Fed. Cir. 1991)
(concluding the “failure to present the district court with a post-verdict motion
precludes appellate review of sufficiency of the evidence”); Dixon v. Montgomery
Ward, 783 F.2d 55, 55 (6th Cir. 1986); Woods v. Nat’l Life & Accident Ins. Co.,
347 F.2d 760, 769 (3d Cir. 1965) (“A party’s failure to file a motion for judgment
n.o.v. in the trial court precludes an examination of the record by that court or
this court for the purposes of ascertaining whether that party was entitled to a
directed verdict.”); cf. Benner v. Nationwide Mut. Ins. Co., 93 F.3d 1228, 1234
(4th Cir. 1996) (failure to move for judgment as a matter of law pursuant to Rule
50(b) limits the court’s remedial powers, but not the ability to review for error).
Despite the fact that our approach diverges from that taken by the other circuits,
we are constrained to follow our prior precedent, as we are “without power to
overrule the unequivocally contrary precedent of this Circuit.” Morrison
Knudsen, 175 F.3d at 1246 n.34.

                                         - 11 -
judgment”). Thus the Cummings’ failure to move for judgment as a matter of law

following the adverse jury verdict does not bar their appeal regarding the

sufficiency of the evidence to support the misuse defense.

      In the absence of a Rule 50(b) motion, however, we are limited in the relief

we may grant. The Supreme Court has repeatedly noted that in the absence of a

motion for judgment as a matter of law following an adverse jury verdict “made

in the trial court within ten days after reception of a verdict[, Rule 50(b)] forbids

the trial judge or an appellate court to enter such a judgment.” Johnson, 344 U.S.

at 50; see also Globe Liquor Co. v. San Roman, 332 U.S. 571, 574 (1948); Cone

v. W. Va. Pulp & Paper Co., 330 U.S. 212, 218 (1947) (holding appellate court is

“without power to direct the District Court to enter judgment contrary to the one

it had permitted to stand”). Thus, “[t]his court has no authority to direct a verdict

contrary to that of the trial court where, as here, the complaining party has not

given the trial court an opportunity to first correct its own error.” Fortier v. Dona

Anna Plaza Partners, 747 F.2d 1324, 1334 (10th Cir. 1984). In this situation, the

only remedy available is a new trial. Johnson, 344 U.S. at 50-51; Morrison

Knudsen, 175 F.3d at 1246; Fortier, 747 F.2d at 1334.

      As to whether the court should have granted the Cummings judgment as a

matter of law with regard to GM’s liability generally, because the Cummings’

Rule 50(a) motion was limited to the issue of GM’s misuse defense, we review


                                         - 12 -
the sufficiency of the evidence only for plain error constituting a miscarriage of

justice. In addition, we are limited to determining whether a new trial is required,

as we are without power to grant judgment in the Cummings’ favor. As noted

previously, judgment as a matter of law is appropriate only “if the evidence points

but one way and is susceptible to no reasonable inferences which may support the

opposing party’s position.” Davis v. United States Postal Serv., 142 F.3d 1334,

1339 (10th Cir. 1998) (internal quotations and citations omitted). “This stringent

standard of review is further heightened under plain error review, which has been

limited to errors which seriously affect the fairness, integrity or public reputation

of judicial proceedings.” Dilley, 296 F.3d at 963 (internal quotations and

citations omitted). After a thorough review of the record in this case, we find

nothing that rises to the level of such a miscarriage of justice. Therefore we

conclude the district court did not commit plain error in allowing the Cummings’

products liability claims to go to the jury.

      We review the district court’s denial of the Cummings’ motion for

judgment as a matter of law as to GM’s defense of misuse de novo, although as

above noted we are limited to determining whether the Cummings are entitled to a

new trial. Under Oklahoma law, to establish a manufacturer’s product liability, a

plaintiff must prove that (1) “the product was the cause of the injury,” (2) the

defect existed in the product “at the time the product left the manufacturer’s


                                         - 13 -
possession and control,” and (3) “the defect made the article unreasonably

dangerous.” Kirkland v. Gen. Motors Corp., 521 P.2d 1353, 1363 (Okla. 1975).

However, where a plaintiff is using a product for a purpose for which it was not

intended, and is injured, the plaintiff may not recover. Id. at 1366. Misuse of a

product is a “defense subject to being pleaded and proved by defendant.” Stewart

v. Scott-Kitz Miller Co., 626 P.2d 329, 331 (Okla. App. 1981). “Abnormal or

misuse of a product occurs where the method of using a product is not that which

the maker intended or is a use that could not reasonably be anticipated by a

manufacturer.” Treadway v. Uniroyal Tire Co., 766 P.2d 938, 941 (Okla. 1988).

Oklahoma has drawn a distinction between “use for an abnormal purpose” or

misuse, and “use for a proper purpose but in a careless manner.” Id. Use for a

proper purpose but in a careless manner is considered contributory negligence,

id., and contributory negligence is not a defense to a products liability claim,

Fields v. Volkswagen of Am., Inc., 555 P.2d 48, 56 (Okla. 1976).

      Although GM’s main defense was that there was no defect in the seat or

seat restraint system, GM also asserted that Mrs. Cummings’s injuries may have

resulted from either her posture or position at the time of the accident. GM

presented evidence that Mrs. Cummings was reclined in her seat and that the

injury resulted due to her position at the time of the accident. GM presented

evidence of a warning in the owner’s manual against such use, which contained a


                                         - 14 -
picture of a person reclined and a warning that “[e]ven if you buckle up, your

safety belts can’t do their job when you’re reclined like this.” I Aplt. App. at

809. The experts testified that riding with the seat reclined was not an advised

use of the seat given the warning and safety concerns, id. at 406-07, and that the

seat reclined for uses while the car was parked rather than moving, id. at 760-61,

998. The Cummings countered with evidence that such a use was foreseeable by

manufacturers. I Aplee. Supp. App. at 319. The Cummings’ own statements were

that such a use was “unsafe” and that Mrs. Cummings would never ride in this

position. Id. at 154.

      A motion for judgment as a matter of law at the close of the evidence may

only be granted if “the evidence points but one way and is susceptible to no

reasonable inferences which may support the opposing party’s position.” Q.E.R.,

880 F.2d at 1180. Construing the evidence and inferences in the light most

favorable to GM, and refraining “from weighing the evidence, passing on the

credibility of witnesses, or substituting our judgment for that of the jury,” Brown

v. Wal-Mart Stores, Inc., 11 F.3d 1559, 1563 (10th Cir. 1993), we find there was

evidence supporting both parties’ positions, and consequently the court did not err

in denying the motion for judgment as a matter of law and submitting the issue to

the jury.




                                        - 15 -
B. Discovery Rulings

      With regard to the Cummings’ appeal of the trial court’s discovery rulings,

we discern three main arguments: (1) GM failed to respond adequately to requests

for discovery; (2) GM withheld names and locations of persons responsible for

the design and implementation of the seat system; and (3) GM failed timely to

produce research, development, and testing, including the failure to provide

access to GM’s databases. I Aplt. Br. at 39-40.

      The district court has broad discretion over the control of discovery, and we

will not set aside discovery rulings absent an abuse of that discretion. GWN

Petroleum Corp. v. OK-Tex Oil & Gas, Inc., 998 F.2d 853, 858 (10th Cir. 1993).

This standard of review applies equally to the denial of a motion to compel,

Motley v. Marathon Oil Co., 71 F.3d 1547, 1550 (10th Cir. 1995) (noting a denial

of a motion to compel discovery will not be disturbed absent an abuse of

discretion), and the grant of a protective order, Kidd v. Taos Ski Valley, Inc., 88

F.3d 848, 853 (10th Cir. 1996) (“The decision of a district court to enter a

protective order under Rule 26(c) is reviewed for an abuse of discretion.”).

Under this standard, “we will not disturb a trial court’s decision absent a definite

and firm conviction that the lower court made a clear error of judgment or

exceeded the bounds of permissible choice in the circumstances.” Id. (internal

quotations and citations omitted). Such an abuse will occur only when the judge


                                        - 16 -
renders “an arbitrary, capricious, whimsical, or manifestly unreasonable”

judgment. Coletti v. Cudd Pressure Control, 165 F.3d 767, 777 (10th Cir. 1999)

(internal quotations and citations omitted).

      We do not find such an abuse of discretion in this case. The Cummings

assert that GM abused the discovery process and failed to adequately respond to

discovery requests, yet they fail to point to anything in the record to support this

proposition. We agree with the district court’s conclusion that “numerous

miscommunications and unnecessary disputes have been caused by Plaintiffs’

failure to frame precise discovery requests and notices in accordance with the

provisions of the rules.” I Aplt. App. at 24.

      We similarly find no support for the Cummings’ assertion that GM failed to

provide the names and locations of persons, including a Mr. Zurkiwskyj,

responsible for the design and implementation of the seat system. GM provided

several representatives from the company to be deposed under Rule 30(b)(6) on

the issues of the seat design, seat restraint system, and the All-Belts-To-Seats

design. I Aplt. App. at 27-28, 30. The Cummings cannot place the blame on GM

for their own failure to depose the designated representatives.

      To the extent the Cummings attempted to depose specific individuals, their

service of notice to GM was in error. Under Federal Rule of Civil Procedure

30(b)(6), a party may issue a notice of intent to take a deposition to an


                                         - 17 -
organization, and then the organization shall designate “one or more officers,

directors or managing agents, or other persons who consent to testify on its

behalf.” The corporate entity itself designates the representative. Id. To the

extent a party wants to subpoena an individual of its choice for a deposition, it

must do so under Rule 30(a)(1), which states that a party “may take the testimony

of any person, including a party, by deposition upon oral examination without

leave of court.” Rule 30(a) allows the Cummings to take the deposition of

nonparty witnesses, including employees. “Except where the employee has been

designated by the corporation under Rule 30(b)(6), an employee is treated in the

same way as any other witness. His or her presence must be obtained by

subpoena rather than by notice . . . .” 8A Wright et al., Federal Practice and

Procedure Civ. 2d § 2103. Mr. Zurkiwskyj’s attendance must be compelled as

any other nonparty witness–by subpoena. Fed. R. Civ. P. 45.

      The Cummings’ reliance on Rule 26 is similarly misplaced. The magistrate

ruled the newest version of Rule 26 would govern in this case, including the 2000

amendments, I Aplt. App. at 26 n.5, and the Cummings did not object to this

holding. Under the 2000 amendments, a party’s “initial disclosure obligation . . .

has been narrowed.” Fed. R. Civ. P. 26 advisory committee’s note, 2000 amends.

Rule 26(a)(1) only requires automatic disclosure of “the name and, if known, the

address and telephone number of each individual likely to have discoverable


                                        - 18 -
information that the disclosing party may use to support its claims or defenses.”

Fed. R. Civ. P. 26(a)(1)(A). Under this rule, a party is not obligated “to disclose

witnesses or documents, whether favorable or unfavorable, that it does not intend

to use.” Fed. R. Civ. P. 26 advisory committee’s note, 2000 amends.; see Gluck

v. Ansett Austl. Ltd., 204 F.R.D. 217, 221-22 (D.D.C. 2001) (holding under the

new version of Rule 26 that the opposing party was not required to produce

information with regard to potential witnesses because “the essential inquiry is

whether the disclosing party intends to use the witness.”).

      Finally, we find no abuse of discretion in the denial of the motion to

compel access to GM’s databases and the grant of a protective order to GM. As

noted by the magistrate judge, “Plaintiffs’ proposed computer database searches

are overly broad in scope, duplicative of prior requests and unduly burdensome.”

I Aplt. App. at 35. “It is the unusual or exceptional case where the reviewing

court will vacate a protective order entered by a trial court under Fed. R. Civ. P.

26(c),” In re Coordinated Pretrial Proceedings in Petroleum Prods. Antitrust

Litig., 669 F.2d 620, 623 (10th Cir. 1982), and there is no support for such a

conclusion in this case. Rather than an abuse of discretion, the record reveals a

thorough and reasoned disposition on the part of the court, especially given the

multiple motions before the court and the breakdown of communication between

the parties.


                                        - 19 -
C. Rule 60(b) Motion

      Federal Rule of Civil Procedure 60(b) provides that “[o]n motion and upon

such terms as are just, the court may relieve a party or a party’s legal

representative from a final judgment, order or proceeding for . . . fraud . . .,

misrepresentation, or other misconduct of an adverse party.” We review a district

court’s denial of a Rule 60(b) motion for an abuse of discretion. Amoco Oil Co.

v. EPA, 231 F.3d 694, 697 (10th Cir. 2000); see also Stubblefield v. Windsor

Capital Corp., 74 F.3d 990, 994 (10th Cir. 1996) (collecting cases). In

undertaking such a review, we are guided by the principle that “[r]elief under

Rule 60(b) is extraordinary and may only be granted in exceptional

circumstances.” Bud Brooks Trucking, Inc. v. Bill Hodges Trucking Co., 909

F.2d 1437, 1440 (10th Cir. 1990).

      1. Timeliness of Rule 60(b) Motion

      In denying the Cummings’ Rule 60(b) motion, the district court relied in

part on counsel’s delay in filing the motion. II Aplt. Br., Att. 1 at 3-4. Rule 60

requires that such a motion be “made within a reasonable time, and for reasons

(1), (2), and (3) not more than one year after the judgment, order, or proceeding

was entered or taken.” Fed. R. Civ. P. 60(b). Because the Cummings have

argued misconduct under Rule 60(b)(3), the motion must have been filed within a

“reasonable time,” and not more than a year after the judgment.


                                         - 20 -
      The Cummings filed the Rule 60(b) motion within a year of the judgment.

However, “[a] motion is not timely merely because it has been filed within one

year of the judgment.” White v. Am. Airlines, Inc., 915 F.2d 1414, 1425 (10th

Cir. 1990). The Cummings waited seven months after discovery of the tests to

file the motion. This court has upheld several Rule 60(b) denials based on delay

where the motion was nevertheless filed prior to the one year deadline. See

White, 915 F.2d at 1425 (finding motion untimely where delay of almost a year

with only justification that party needed time to raise a defense); Sec. Mutual Cas.

Co. v. Century Cas. Co., 621 F.2d 1062, 1067-68 (10th Cir. 1980) (finding motion

untimely where unexplained delay of 115 days after received notice of grounds

for motion). Where a party delays in filing a Rule 60(b) motion after discovery of

the grounds for the motion, it must offer sufficient justification for the delay.

White, 915 F.2d at 1425. The Cummings argue their motion was presented in a

“reasonable time in light of their numerous attempts at securing relief through

other procedural channels.” II Aplt. Br. at 20. However, the Cummings fail to

explain what “other procedural channels” were explored. Id. at 20-21. They also

state that they did not want to rush for relief “lest they risk the imposition of

sanctions” under Rule 11. Id. at 21. Although it is true Rule 11 imposes a duty

on attorneys to conduct “a reasonable inquiry” into the facts and law prior to

signing any pleading filed with the court, Cooter & Gell v. Hartmarx Corp., 496


                                         - 21 -
U.S. 384, 392 (1990), the Cummings do not explain why seven months were

needed to conduct such an inquiry. They merely assert that, given the

extraordinary nature of the remedy under Rule 60, they did not want to rush into

filing such a motion. Such an assertion, without more, is insufficient to justify

the delay. See White, 915 F.2d at 1425 (concluding party’s asserted need for

more time to assess defense was insufficient justification for delay). Given this

court’s precedent, and the failure of the Cummings to offer sufficient justification

for the delay, it was not an abuse of the court’s discretion to consider the

Cummings’ delay in denying the motion.

      2. Denial of Rule 60(b) Motion on Merits

      In addition to finding the motion untimely, the district court concluded that

the motion should be denied “more importantly, because the plaintiffs have failed

to establish misconduct by GMC.” II Aplt. Br., Att. 1 at 4. As noted above,

“[r]elief under Rule 60(b) is extraordinary and may only be granted in exceptional

circumstances.” Bud Brooks, 909 F.2d at 1440. Parties seeking relief under Rule

60(b) have a higher hurdle to overcome because such a motion is not a substitute

for an appeal. Id. Given the lower court’s discretion, the district court’s ruling is

only reviewed to determine if a “definite, clear or unmistakable error occurred

below.” Amoco Oil Co., 231 F.3d at 697. The burden is on the moving party,

Wilkin v. Sunbeam Corp., 466 F.2d 714, 717 (10th Cir. 1972), and they must


                                         - 22 -
show “clear and convincing proof” of fraud, misrepresentation, or misconduct,

Anderson v. Dep’t of Health & Human Servs., 907 F.2d 936, 952 (10th Cir. 1990);

Yapp v. Excel Corp., 186 F.3d 1222, 1231 (10th Cir. 1999). The application must

be “clearly substantiated by adequate proof,” Wilkin, 466 F.2d at 717, and “the

challenged behavior must substantially have interfered with the aggrieved party’s

ability fully and fairly to prepare for and proceed at trial.” Woodworker’s Supply,

Inc. v. Principal Mut. Life Ins. Co., 170 F.3d 985, 993 (10th Cir. 1999) (internal

quotation marks and citations omitted).

      Failure to disclose information requested during discovery may constitute

“misconduct” under Rule 60(b)(3). Id. However, the Cummings have failed to

provide clear and convincing evidence that GM’s failure to disclose the videos in

this case constitutes misconduct. The Cummings assert that the videos in

question show “infant-sized crash dummies squirt[ing] out of their safety seats in

simulated accidents similar to that suffered by the Cummings,” II Aplt. Br. at 6;

they argue such evidence would have been crucial in countering GM’s defense, as

the videos show that a scenario involving a forward facing child seat would have

resulted in injury to the infant in this case. GM counters that the videos are

irrelevant, as they involve child dummies ages three and above, in dissimilar car

seats, in dissimilar cars. II Aplee. Br. at 14-15.

      Even assuming the videos were relevant, GM was under no duty to produce


                                        - 23 -
the videos given the requests for production in this case. Plaintiffs offer various

requests for production and a subpoena duces tecum, arguing the tests fall within

the requested documents. However, the requests are either overly broad or focus

solely on the “seat, shoulder anchorages, seat bottom/pan, the seat back, the seat

belt anchorages and seat belt angles.” II Aplt. App. at 123-24. The Cummings

have failed to point to any discovery requests that would encompass the videos in

question.

      This is particularly true given that the scope of the discovery in this case

was limited to 1992-1998 N-cars, which included the 1995 Pontiac Grand Am.

The magistrate judge stated during discovery that “[i]nformation about “N” cars

that do not share pertinent designs and component parts with the car model at

issue would not be relevant to the claims and defenses in this case.” I Aplee. Br.

at 18 (quoting I Aplt. App. at 34). Given the scope of discovery set forth by the

district court, it does not appear the failure to produce the videos in response to

the Cummings’ discovery requests was “misconduct” on the part of GM.

      The Cummings point to two cases, Anderson v. Cryovac, Inc., 862 F.2d

910, 925-26 (1st Cir. 1988), and Rozier v. Ford Motor Co., 573 F.2d 1332, 1339

(5th Cir. 1978), to support their argument that GM’s conduct constituted

“misconduct.” We are unpersuaded. The particular documents at issue in those

cases were clearly requested during discovery. In Anderson, the court specifically


                                         - 24 -
found that “[e]ach and all of these Rule 34 demands, fairly read, necessitated

divulgement of the Report.” 862 F.2d at 928. In Rozier, the court determined

that “[b]y any fair reading, the district court’s . . . discovery order called for

production of this Trend Cost Estimate.” 573 F.2d at 1339. These cases merely

stand for the principle that the failure to disclose in response to a request for

production, where proven with clear and convincing evidence, may constitute

misconduct under Rule 60(b)(3).

      We similarly find lacking the Cummings’ argument that GM was required

to disclose the video tapes under Federal Rule of Civil Procedure 26. To the

extent the Cummings argue GM is required to automatically produce any

document “relevant” to the disputed facts at issue in this case, see II Aplee. Br. at

10-11, as discussed above, their reference to the prior version of the rule is

inappropriate. Rule 26(a)(1) requires that parties make initial disclosures of “all

documents, data compilations, and tangible things that are in the possession,

custody, or control of the party and that the disclosing party may use to support

its claim or defenses, unless solely for impeachment.” Fed. R. Civ. P.

26(a)(1)(B). Under the applicable version of the rule, GM was not required to

automatically disclose documents that it did not intend to use. Id., advisory

committee’s note, 2000 amends. Although a party “may obtain discovery

regarding any matter, not privileged, that is relevant to the claim or defense of


                                          - 25 -
any party” under Federal Rule of Civil Procedure 26(b)(1), it is the party’s own

responsibility to seek such discovery through depositions and interrogatories.

      The Cummings argue that “the letter and the spirit of the federal rules”

require a new trial in this case. II Aplt. Br. at 22. The policies of full and fair

disclosure, however, do not relieve them of their burden to prove misconduct.

The district court concluded that the Cummings failed to satisfy this burden.

Given the extraordinary nature of this remedy, and the lack of support for the

motion, this conclusion was not an abuse of discretion.

      AFFIRMED.




                                         - 26 -
