Opinion
Case No. 3:11-cv-164-J-34MCR.
June 6, 2011
ORDER
THIS CAUSE is before the Court on Defendant's Motion to Preserve Evidence (Doc. 16) filed June 2, 2011. Defendant, Delta International Machinery Corp., moves this Court to: (a) require the preservation of the subject Delta 10' Shopmaster Motorized Table Saw and related components, (b) prohibit any alteration or destructive testing of the subject saw, work piece, and any and all other related evidence in Plaintiff's possession, and (c) issue the parties' Agreed Order to Preserve Evidence. (Id.).
The Court assumes Defendant is seeking a protective order pursuant to Federal Rule of Civil Procedure 26(c), in which the court may enter a protective order upon motion of a party "for good cause shown." Fed.R.Civ.P. 26(c). Upon a finding of good cause, the Court may make any order "which justice requires to protect a party from annoyance, embarrassment, oppression or undue burden or expense." Id. Moreover, the Court may agree to enter a protective order when it is necessary to expedite the flow of discovery material, promote prompt resolution of disputes over confidentiality, and facilitate the preservation of material arguably worthy of protection. DYC Fishing, Ltd. v. Beaver St. Fisheries, Inc., 2007 U.S. Dist. LEXIS 41139, 2007 WL 1655389, *2 (M.D. Fla. May 18, 2007) (citing McCarthy v. Barnett Bank of Polk County, 876 F.2d 89, 91 (11th Cir. 1989)).
Defendant cites to numerous state court cases but fails to provide any federal authority for the relief sought. See (Doc. 16).
Here, the Court finds good cause exists to facilitate the preservation of material worthy of protection. However, certain portions of the parties' Agreed Order to Preserve Evidence (Doc. 16-A) have been modified. Accordingly, after due consideration, it is
The Complaint raises products liability claims against Defendant that directly place in issue the condition of the subject saw, the work piece, and all other related evidence. (Doc. 2). In order for Defendant to adequately defend itself, it is essential that the subject saw, work piece, and all other related evidence remain in its initial post-accident condition.
ORDERED:
Defendant's Motion to Preserve Evidence (Doc. 16) is GRANTED in part. The Court approves the terms of the modified Order to Preserve Evidence attached to this Order. The parties are hereby bound by those terms.
DONE AND ORDERED in Chambers in Jacksonville, Florida this
Modified ORDER TO PRESERVE EVIDENCE
The following matters came before the Court on Delta International Machinery Corp.'s Motion to Preserve Evidence.
it is hereby:
ORDERED AND ADJUDGED:
1. Unless agreed to by the parties in writing or ordered by the Court, the following evidence shall be maintained by Plaintiffs' counsel and protected from deterioration in its present condition as follows: the subject Delta 10' Shopmaster Motorized Table Saw (Serial No. 438483Q4042, Model TS200LS) and its component parts ("the subject saw"), the work piece Mr. Raiford was using at the time of the accident, and all other related evidence currently in the custody of Plaintiffs at 4088 Scenic Drive, Middleburg, Florida 32068.
Exhibit A
2. The subject saw, work piece, and all other related evidence shall not be sold or otherwise disposed of throughout the duration of this litigation. In the event that Plaintiffs desire to relocate the subject saw, work piece, and other related evidence's storage location, Plaintiffs shall notify the Defendants of the intent to do so at least two weeks in advance. The relocation shall not occur absent agreement of the Defendants or Order of Court.
3. The subject saw, work piece, and other related evidence shall not be inspected by a consulting expert, altered, disassembled, destroyed, permanently deformed, destructively tested, modified, or subjected to any other activity that would alter the evidentiary integrity of such evidence unless:
a. reasonable notice is given to all parties in advance,
b. a protocol of any such activity is provided to counsel for all parties a reasonable time in advance, to which any party may object, if appropriate,
c. all parties shall be given the opportunity to be present at any such activity on the date scheduled by or with Plaintiffs' counsel (after a good faith effort is made with counsel for all parties in scheduling the activity).
4. If, after reviewing a protocol and making a good faith effort concerning the scheduling and conduct of any of the activities identified in ¶ 3, counsel for the parties cannot agree on the terms of the protocol or the scheduling of the event described therein, any party may object and petition the Court for an order governing such activity. Such activity will not go forward until the objection is resolved by agreement of counsel or Order of Court.
5. The parties are permitted to videotape any of the activities identified in ¶ 3 but must take reasonable efforts to ensure that the opponent's work product and strategy are not unfairly revealed, including but not limited to the following:
a. the videographer shall ensure that neither spoken nor written words are captured on video,
b. the videotaping shall not disrupt the party or their representative conducting the activities; and
c. the videographer shall take reasonable steps to ensure that the level of zoom and the subject matter in the frame of the videotaping shall be only that necessary to prevent or record potential spoliation of evidence
d. each Party is entitled to a copy of any other's videotape at their own cost.
6. At the time of scheduling any of the activities identified in ¶ 3, the party conducting such activities and the observing parties will advise each other as to who will be present for such events. Each party may have present during such activities, any counsel, persons, experts, or representatives that their counsel deems appropriate. Defendants will not be required to execute any written agreement with Plaintiffs in lieu of this Order.
7. When in possession, custody, or control of the subject saw, work piece, and other related evidence, all parties shall preserve and protect the evidence and take all reasonable steps necessary to prevent loss, destruction, and/or further alteration of the evidence, except where permitted above.
DONE AND ORDERED in Chambers, United States Middle District Court, Jacksonville Division, Jacksonville, Florida, on this 3rd day of June, 2011