Opinion
No. CIV 05-198 JH/LFG.
December 13, 2005
ORDER GRANTING IN PART AND DENYING IN PART PLAINTIFF'S FIRST MOTION TO COMPEL DISCOVERY
THIS MATTER comes before the Court on Plaintiff Ervin Ward's First Motion to Compel Defendant Terex-Telelect to Answer and Respond to Discovery [Doc. 32], filed herein on August 11, 2005. Defendant filed its Response [Doc. 33], Plaintiff filed his Reply [Doc. 38], and the motion is now fully briefed and ready for ruling. For the reasons given below, the Court grants the motion in part and denies it in part.
Factual and Procedural Background
Plaintiff Ervin Ward ("Ward") brings this product liability and negligence action against the two corporate defendants. He alleges in his complaint that he was severely injured from an electrical shock while using a "Hi-Ranger 57 OM" device, manufactured and marketed by Defendant Terex-Telelect, to install a non-energized electrical line at an oil well site. The Hi-Ranger 57 is a device used to lift workers up to the electrical line. It consists of a bucket attached to a boom. Ward alleges that while was in the bucket and working on the line, the boom of the Hi-Ranger 57 came into contact or close proximity with an energized power line and that, when he touched the hand controls that operate the bucket, voltage traveled from the power line into the bucket, resulting in severe injuries from electrical shock.
The parties agree that Terex-Telelect is the corporate successor to Simon-Telelect, which is no longer in business. To the extent the Court by this Order compels "Defendant" or "Defendants" to produce information, the Court intends that any responsive information in the custody or control of either Defendant must be produced.
Ward asserts that his injuries were caused by defects in the Hi-Ranger 57 which resulted in voltage traveling back to the bucket where he was working. These alleged defects include hand controls made of uninsulated metal, lack of rubber covers for metal screws in the cowling covering the boom, propensity of the bucket and boom to suffer from "hydraulic drift," and failure of Defendants to warn of the dangers of hydraulic drift. Ward brings claims for strict products liability and negligence, and his wife Angie Ward brings a claim for loss of consortium. Both plaintiffs seek compensatory and punitive damages and other relief.
On May 11, 2005, Ward served his first set of interrogatories and requests for production on Defendant Terex-Telelect ("Terex"). Terex served its responses on June 29, 2005, answering some of the responses in full or in part, and objecting to many of them. Ward now brings this Motion to Compel Terex to respond fully. Ward noted in his Reply that after the Motion was filed, some of the disputed discovery requests have been resolved, at least for the time being. The Court will address only those matters currently in contention.
Discussion
As a preliminary matter, the Court notes that the parties are in fundamental disagreement over interpretation of the language of Fed.R.Civ.P. 26(b)(1), as amended in 2000. Prior to 2000, the rule provided that parties may obtain discovery of information, not privileged, that is relevant to the "subject matter" involved in the action. The rule now reads:
Parties may obtain discovery regarding any matter, not privileged, that is relevant to the claim or defense of any party. . . . For good cause, the court may order discovery of any matter relevant to the subject matter involved in the action. Relevant information need not be admissible at the trial if the discovery appears reasonably calculated to lead to the discovery of admissible evidence.
In addition, Rule 26(b) includes three instances in which the court might limit the use of discovery methods otherwise permitted: (1) if the discovery is unreasonably cumulative or duplicative; (2) if the party seeking discovery has already had ample opportunity to obtain the material sought; or (3) if the burden or expense of the discovery outweighs its likely benefit.
Many of Defendant's objections are based on its position that the material sought goes beyond the scope of relevance "to the claim or defense of any party." Defendant argues that the 2000 amendment substantially reduced the scope of Rule 26(b) and was intended to rein in the broad-ranging approach to discovery prior to 2000, which was subject to abuse by over-eager litigants. Plaintiff argues that the amendment was not intended to narrow the scope of permissible discovery, particularly in product liability cases, and "the current standard `is still a very broad one.'" [Doc. 38, at 4]. Plaintiff contends that "while the 2000 amendments may have arguably narrowed somewhat the scope of discovery, there is no indication that they marked a substantial departure from the traditional liberal construction of the term relevance. . . ." [Id., at 5].
The Court disagrees that the 2000 amendment only "arguably narrowed somewhat the scope of discovery." The Advisory Committee comments to the amendment makes clear that the changes were, in fact, intended "to address concerns about overbroad discovery." The amended Rule includes a provision under which the court may allow discovery beyond the "claims or defenses" limitation, if good cause is shown therefor:
The rule change signals to the court that it has the authority to confine discovery to the claims and defenses asserted in the pleadings, and signals to the parties that they have no entitlement to discovery to develop new claims or defenses that are not already identified in the pleadings. . . . [However], [t]he court may permit broader discovery in a particular case depending on the circumstances of the case, the nature of the claims and defenses, and the scope of the discovery requested.
Advisory Committee comment to 2000 amendment to Rule 26(b)(1).
In addition, the Committee notes that a sentence was added to the end of Rule 26(b)(1), calling attention to the three limitations of subdivision (b)(2)(1) — described above — and adds, "This otherwise redundant cross-reference has been added to emphasize the need for active judicial use of subdivision (b)(2) to control excessive discovery." Id.
The Court rejects Plaintiff's argument that the scope of Rule 26 was not really narrowed by the amendment. If that were the case, there would have been no need to include provision for broadening the scope to the pre-2000 standard, if the requesting party can show good cause and the court deems it necessary under the circumstances: "For good cause, the court may order discovery of any matter relevant to the subject matter involved in the action." Given the explicit language of the new Rule, and the Advisory Committee's comments, the range of discovery must be limited to matters relevant to the claims and defenses of the parties. It is only if the court determines that good cause has been shown that a party may obtain discovery of matters relevant only to the broader "subject matter" of the action.
With these principles in mind, the Court turns to the specific discovery requests at issue.
Interrogatories
Interrogatory No. 2In this interrogatory, Plaintiff asks Defendant to identify all persons, including but not limited to employees, agents and independent contractors of the defendant companies, who may have knowledge of any fact relevant to the lawsuit. Plaintiff then lists 26 specific "areas" which he considers to be relevant to the lawsuit, in a massive list covering nearly three single spaced pages.
The "areas" identified include such things as the design and testing of the Hi-Ranger 57; the marketing and sale of the device; existence of any engineering report; any hazard or risk testing of the device; the relationship between the two corporate defendants, and between defendants and any other company or person, as it relates to the incident or the device, including any verbal or written agreements; any audio or videotape relevant to the incident or the device; the facts and circumstances of the incident; prior lawsuits against Defendants alleging electrical shocks; prior complaints against Defendants involving electrical shocking; prior similar incidents involving the Hi-Ranger 57 involving electrical shocking; any investigative reports involving electrical shocking incidents relevant to the incident involved in this case; corporate financial information indicating the current net worth of Terex; agreements showing any financing or loans obtained by Terex; risk management policies; document retention policies as relevant to the facts or issues in this case; insurance information; information on compensatory damages to plaintiffs resulting from any lawsuit; punitive damages against Terex; and the identity of the custodian of any document or item responsive to an interrogatory or request for production.
Defendant objects to the interrogatory on grounds it is overly broad and seeks information beyond what is relevant to the claims or defenses involved in the case. Further objections are made based on undue burden, vagueness and ambiguity. Without waiving its objections, Defendant provides the names and addresses of two persons "having knowledge of the design, manufacturing and marketing of the product at issue." In addition, Defendant notes that Plaintiff Ervin Ward and his co-workers on the day of the incident, as well as other employees and agents of the City of Farmington Electrical Utility System (Ward's employer on the date of the accident), should have knowledge of the facts and circumstances of the incident.
Plaintiff complains that Defendant's identification of only two persons with knowledge of the "design, manufacturing and marketing" of the Hi-Ranger 57 is insufficient, in that Defendant failed to identify persons knowledgeable about other specific subjects listed in the interrogatory, and the answer is therefore incomplete and equivalent to no answer at all. Defendant counters that the two persons identified in the answer "have knowledge of most of the areas of inquiry listed in the interrogatory." [Doc. 33, at 3]. As for other areas, Defendant stands by its objection based on overbreadth, as the areas listed by Plaintiff are not limited to the specific defects alleged in Plaintiff's complaint.
The Court agrees with Defendant that the interrogatory is exceedingly broad and that some of the areas as listed by Plaintiff are vague. Indeed, the Court notes that notwithstanding the numerical limitation on interrogatories imposed by Fed.R.Civ.P. 33(a), or the limitation ordered by the Court, this interrogatory alone almost exceeds the limitations.
Defendant states that the two named individuals — Norman Hargreaves, Director of Product Safety for Terex, and "Jim Olson of Terex-Telelect, Inc.," otherwise unidentified as to job title — have information on the "design, manufacturing and marketing" of the device. Given the breadth of the interrogatory, it is difficult to ascertain which of the 26 specific areas the broad categories, described as "design, manufacturing and marketing," are within the knowledge of these two individuals. The request to disclose identities of "each and every" person with knowledge of these areas, which is what plaintiff requested, is far too broad to answer. Hilt v. SFC, Inc., 170 F.R.D. 182, 188 (D. Kan. 1997).
However, some of the information requested is certainly relevant and discoverable. For this reason, the Court will order Defendant to supplement its answer by providing the names of all persons, in addition to Mr. Hargreaves and Mr. Olson, who are or were employed by the defendant companies during the last five years, who have knowledge of the following areas which the Court finds are relevant to the claims and defenses involved in this case:
The design of the Hi-Ranger 57 device, including any testing of the device such as hazard, risk assessment, or human factors testing; information as to prior lawsuits and prior similar incidents involving allegation of injuries caused by the specific defects noted in Plaintiffs' complaint; risk management policies and procedures for the defendant companies; and insurance information as requested.
Defendant is not required to do Plaintiff's own investigative work, but to the extent this information is available to Defendant or readily obtainable, it should be provided.
For each such person disclosed, Defendant must also note the general nature of his/her knowledge.
As to Plaintiff's request for the identities of persons having knowledge of the incident giving rise to the lawsuit, the Court finds that this information is certainly relevant. Defendant implies by its response that the only persons having this knowledge are employees of the City of Farmington. That is not necessarily true, as there may have been other witnesses to the incident. In any event, Defendant has not identified any particular such employees whom they know to have witnessed the events surrounding the accident. Defendant is directed to state the names, job titles, and contact information for any such employees of the City of Farmington whom Defendant knows witnessed the accident, and for any other persons subject to Defendant's control who have knowledge concerning the details of the electrical accident involving Plaintiff Ervin Ward.
Interrogatory No. 3
In Interrogatory No. 3, Plaintiff seeks the identity of each fact witness Defendant intends to call at trial, giving a summary of the subject matter of witness's testimony and identifying each document pertinent to the anticipated testimony of each witness.
Defendant objects to the request as overly broad, premature, and going beyond what is relevant, citing Fed.R.Civ.P. 26(a)(3)(A) for the proposition that Defendant is only required to disclose names, addresses and phone numbers of each person who may be called as a fact witness. Without waiving the objection, Defendant states that it will supplement the answer as required by the Court's earlier scheduling order.
The Court agrees with Plaintiff that the information requested is relevant, and it overrules Defendant's objection on grounds of relevancy. Defendant is directed to supply this information to the extent is it currently available, and reminds Defendant of its duty under Fed.R.Civ.P. 26(e) to supplement its response as information becomes available.
Interrogatory No. 6
In this interrogatory, Plaintiff asks Defendant whether it, or anyone acting on its behalf, conducted an investigation or investigations of the incident in question and, if so, to identify the person who performed the investigation and to state the findings and conclusions of each such investigation.
Defendant responded by stating that Jim Olson inspected the Hi-Ranger 57 device and took photographs of it, and that these photographs were disclosed in Defendant's original Rule 26 initial disclosures. Plaintiff complains that this response is incomplete, as Defendant failed to disclose the findings and conclusions from the investigation, and failed to clarify whether any other documents responsive to this request exist. In its Response to Plaintiff's Motion to Compel, Defendant states that it has fully answered Interrogatory No. 6. Defendant also states that, since the filing of Plaintiff's motion, Defendant has received the City of Farmington's investigation into the incident. Defendant is directed to supplement its response by stating whether it undertook an investigation, and whether the City of Farmington's investigation was taken "on behalf of" Defendant and, if it was, to state the findings and conclusions of the City of Farmington's investigation.
Defendant must also disclose whether, in preparation for this lawsuit, it conducted its own investigation, but it is not obligated to provide its own investigation, its findings or conclusions, as documents prepared in anticipation of litigation are generally exempt from discovery except under special circumstances. However, to the extent Defendant has retained testifying experts, Defendant has or must provide Rule 26(a)(2) reports as required by the Court's case management plan.
Interrogatory Nos. 7 and 8
In Interrogatory No 7, Plaintiff asks Defendant to state whether Terex-Telelect or Simon-Telelect designed the Hi-Ranger 57 or any of its component parts or operating systems. If so, Defendant is asked to identify each person who had any involvement in such design. To the extent, if any, that Defendants were not involved in the design of the device or any of its component parts or operating systems, Plaintiff asks that Defendant identify the persons or parties who were so involved. In addition, Defendant is asked to identify "all documents relevant or pertinent to this interrogatory" and to produce such documents in response to the requests for production.
Identical information is sought in Interrogatory No. 8 as to the manufacturer of the Hi-Ranger 57 or any of its component parts or operating systems.
Defendant objects to both interrogatories as overly broad, irrelevant, unduly burdensome, and vague and ambiguous. Without waiving the objection, Defendant states that Terex-Telelect designed and manufactured the device, except for components designed and manufactured by "other third parties." Defendant identifies the company which provided the chassis and installed the aerial lift onto the chassis. Defendant further answers by stating, "If Plaintiffs would specify the particular component or sub-part(s) for which design [or manufacturing] information is sought, Defendant can supplement this response by identifying the entity responsible for the design [or manufacture] of such subpart(s) and component(s)."
In its response to Interrogatory No. 7, Defendant refers to the device as the "Hi-Ranger OM-1665-BDD." Although in Interrogatory No. 7, Plaintiff asked about a device identified as the "Hi-Ranger 57 OM-1556-BDD," the Court assumes that Plaintiff's use of "1556" is a typographical error, since the Complaint refers to the "Hi-Ranger 57," with serial number "57 OM-1665-BDD." The Court further assumes that Defendant's reference is to the "Hi-Ranger 57" involved in this case, and that the parties are talking about the same device.
Plaintiff complains that Defendant failed to identify which individuals at Terex were involved in the design and manufacture of the device. Defendant appears to have remedied this omission by identifying, in its Response brief, Norman Hargreaves and Jim Olson as the persons at Terex who were responsible for the design and manufacture of the device.
Plaintiff argues that information as to the designer(s) of all components or sub-parts is relevant to Plaintiff's claim of defective design as well as Defendant's defense of comparative negligence and argues further that Defendant is in a far better position to provide information as component parts than is Plaintiff, and it would be unreasonable to expect Plaintiff to identify each component or sub-part before Defendant provides a full response to these interrogatories. Defendant supports its relevance objection by noting that it should not be forced to identify all component parts, even those which may have no bearing on the specific characteristics of the aerial device which allegedly led to the injury.
Both parties have a point. Information as to the identities of the individuals who designed the devices and their corporate affiliations, and information as to manufacturer(s), is relevant to the claims and defenses. However, Defendant should not be expected to identify all persons responsible for the design or manufacture of every nut and bolt used in the device. Indeed, it is the Plaintiff's burden to prove what, if anything at all, was defective. The Court, however, directs Defendant to provide a list of all component parts or sub-parts used in the specific portions of the Hi-Ranger device referred to in Plaintiffs' complaint — that is, the operator hand controls in the bucket; the boom, its cowling and method of attachment; and the hydraulic system. To the extent that Defendant knows or can reasonably ascertain, it should identify the designer and manufacture of each of these parts or sub-parts. Designers must be identified by name and corporate affiliation, if other than Terex. If this information is not known nor reasonably available to Terex, it need not be provided.
Plaintiff argues further that the interrogatory response is insufficient in that Defendant failed to identify documents relevant to the design and manufacture, as requested. Defendant counters that this request is too vague to answer but offers to work with Plaintiffs in an effort to narrow the request and get a better idea of the type of documents sought. The Court agrees that the request for "all documents relevant or pertinent to this interrogatory" is overly broad and vague, and to this extent will not compel a response to these interrogatories. Interrogatory Nos. 9, 11 and 12
In Interrogatory No. 9, Plaintiff asks Defendant to state whether it tested the Hi-Ranger 57 or any of its component parts and operating systems. If so, Defendant is asked to identify each person who had any involvement with the testing and state the nature of the tests performed, the date of testing, and the results of each test performed. If Defendant did not test the entire device, it is asked to identify which parts were tested by other persons or parties, and to identify such persons. In addition, Plaintiff asks Defendant to identify "all documents relevant or pertinent to this interrogatory" and to produce such documents in response to Plaintiff's first requests for production.
Interrogatory No. 11 seeks similar information regarding any hazard or risk assessments, or fault or failure analysis, performed on the Hi-Ranger 57 or any of its component parts or operating systems, including but not limited to: (1) the operator hand controls; (2) the construction and covering of the boom; (3) the hydraulic system and any hydraulic drift; (4) the cowling; (5) any warnings about hydraulic drift; and (5) the electrical conductivity of the device. Plaintiff asks that Defendant identify any engineering reports pertinent to hazard or risk assessments, as well as "all documents relevant or pertinent to this interrogatory."
In Interrogatory No. 12, Plaintiff seeks similar information regarding any "human factors studies or tests." In his request that Defendant identify documents, Plaintiff asks for information regarding any document pertinent to such "human factors" tests, including any engineering reports or "any document evincing any human factors studies involving" the five specific matters set forth in Interrogatory No. 11 (see above). In addition, as with the other two interrogatories, Plaintiff seeks "all documents relevant or pertinent to this interrogatory."
Defendant objects to these three interrogatories on grounds of overbreadth, irrelevance, unduly burdensome and vague and ambiguous. Without waiving these objections, Defendant answers Interrogatory No. 9 (the "testing" interrogatory) by stating that Terex did test the Hi-Ranger 57 during the design and manufacturing process prior to its installation by Commercial Body Corporation onto a chassis provided by that company, and if Plaintiff would be more specific about the type of testing for which information is sought, as relevant to issues raised in the complaint, Defendant will supplement the response.
In addition, without waiving the objections, Defendant responds to Interrogatory No. 11 (the "risks and hazards" interrogatory) by stating that it assesses the risks and hazards in connection with the use of all of its products, including the Hi-Ranger 57, during the design and manufacturing phases. Defendant did not provide any information other than its objections in response to Interrogatory No. 12 (the "human factors" interrogatory).
In its Response to Plaintiff's Motion to Compel, Defendant argues that it stands by its objection that the interrogatories are overly broad, as:
not all testing done on the product in question is relevant to the claims made by Plaintiffs in this case. . . . [and] because these interrogatories seek information on all types of testing ever done on the product line and its components and subparts, regardless of whether such testing has any relevance to the claims made by Plaintiffs in this action, the likely benefit to Plaintiffs in developing their case is outweighed by the undue burden on Defendants in tracking down this information and putting it into narrative form.
[Doc. 33, at 6].
In addition, Defendant states in its Response brief that Norman Hargreaves and Jim Olson have already been identified as witnesses who can testify about the process by which the device was designed and manufactured and who are responsible for accounting for, and warning about, potential dangers in the product's use. Defendant also states that these two witnesses can provide information as to "dielectric testing" done on the device, related to its insulating qualities and limitations and says it will produce documents related to this dielectric testing.
The Court agrees with Defendant that not all testing that might have been done on device, its components and subparts would necessarily be relevant to the claims or defenses in the case. However, Plaintiff narrowed his requests in Interrogatories Nos. 11 and 12 to five specific areas as to which he seeks information on "human factors" and "risks and hazards" testing. Defendant states that it will supplement its response to Interrogatory No. 9 if Plaintiff will specify the type of testing for which information is sought. The Court directs Defendant to complete its answer to Interrogatory No. 9 by providing the requested information as to any testing done by Terex with respect to the five specific areas noted in the other two interrogatories; Plaintiff need not identify "the type of testing," as Defendant requests, since Defendant is in a better position than is Plaintiff to identify the "types" of tests that might apply to the device and its subparts and components. Terex need not provide information if testing was done by some other entity or manufacturer, but to the extent that some other entity or manufacturer who did perform tests is known to Terex, Defendant shall identify the entity or manufacturer by company or corporate name and provide contact information.
Plaintiff's request for information on "hazards and risks" analysis in Interrogatory No. 11, and its request for information on "human factors" studies in Interrogatory No. 12, are sufficiently narrow given Plaintiff's list of five specific areas of concern. Defendant is directed to complete its answer to Interrogatory No. 11 by identifying the specific methods it used in analyzing the risks and hazards associated with use of the Hi-Ranger 57, limited to the five areas noted by Plaintiffs, and to supply information as to any "human factors" testing they might have done on the device, similarly limited to these five specific areas.
The Court agrees with Defendant, however, that Plaintiff's requests in each interrogatory for "all documents relevant or pertinent to this interrogatory" are simply too vague and potentially overly broad to answer. The motion to compel is denied as to these requests.
Interrogatory No. 10
In this request, Plaintiff asks Defendant to state whether it ever marketed, advertised or promoted the Hi-Ranger 57 or any its component parts or operating systems for sale. If so, Defendant is asked to identify all advertising, marketing or promotional campaigns, gives dates of such campaigns, and identify all promotional material related to such campaigns. In addition, Defendant is asked to identify any person involved in such marketing or promotion, and Plaintiff again requests "all documents relevant or pertinent to this interrogatory."
Defendant objects to this interrogatory on grounds it is overly broad, seeks irrelevant information, is unduly burdensome, and portions are too vague and ambiguous to answer. Without waiving the objection, Defendant states that Terex did market and advertise for the sale of the device prior to its installation onto the chassis by another company. Defendant argues that the information is irrelevant, as Plaintiff has not made any claim for breach of warranty or misrepresentation, which would be the only causes of action for which such information might be relevant. While it is true that Plaintiff has not alleged breach of warranty or misrepresentations, Plaintiff has alleged negligence in "the design, testing, manufacture, marketing and warnings." [IPTR, Doc. 20 at 3]. Defendant is directed to identify any marketing campaign for the Hi-Ranger 57, during the five-year period before the accident; to provide promotional material used as part of a public marketing campaign for the Hi-Ranger 57, during the five years prior to the accident; and to identify the person or entity in charge of marketing of the Hi-Ranger 57, for the period of five years prior to the accident. No other response will be necessary.
Interrogatory Nos. 16-19
Interrogatory No. 16 asks whether Defendant has ever been sued for any design, manufacturing or marketing defects involving the Hi-Ranger 57 with respect to allegations involving electrical shocking, and/or the five specific subject areas as described in Interrogatory No. 11 (see above). If so, Defendant is asked to identify each such lawsuit by stating the jurisdiction, the name and case number, the nature of the lawsuit, the outcome of the case, and the parties and attorneys involved.
Interrogatory No. 17 seeks similar information with respect to "a complaint (of whatever kind or nature, oral or written) involving any of the theories asserted in this lawsuit," including allegations of electrical shocking and/or the five specific areas already noted.
Interrogatory No. 18 seeks similar information with respect to any other similar incidents involving the Hi-Ranger 57; any component part or operating system manufactured, designed, or installed by Defendant "or any other third party"; any electrical shocking; and/or the five specific areas already noted.
Interrogatory No. 19 asks whether Defendant maintains a list, index, or summary of all customers who purchased the Hi-Ranger 57 and, if so, Defendant is asked to identify the list, state in detail how it was maintained, and identify who is responsible for maintaining the list.
For each of these interrogatories, Defendant is also asked to identify "any document pertinent to this interrogatory, including any pleading, summary or other document evidencing such lawsuits," and to produce all such documents in response to the requests for production.
Defendant object to each of these interrogatories as overly broad and seeking irrelevant information, and, as to Interrogatory No. 19 (the "customer list" interrogatory), as seeking proprietary information which should be the subject of a protective order if produced.
Without waiving these objections, Defendant answered Interrogatories 16, 17, and 18 by identifying and agreeing to produce the original complaint in a federal lawsuit filed in the Western District of Arkansas, which involved allegations of defects in the operator hand controls and the covers on the boom of "an OM series aerial device." In addition, without waiving its objections, Defendant answered Interrogatory No. 19 by stating that Terex keeps a list/index of all persons or entities that have purchased an OM series aerial device and have sent back a warranty registration card, and Defendant identifies the individual responsible for maintaining this list.
Plaintiff complains that the answers are incomplete. He argues that information as to other lawsuits, complaints and similar incidents is relevant to whether Defendant had notice of a defect in the product or a defect in design, relevant to a failure to warn of such defects, and relevant to the state of Defendant's knowledge as it bears on punitive damages. In addition, Plaintiff contends that the information is relevant to Defendant's affirmative defenses of comparative negligence and lack of proximate cause, and for impeachment purposes. The customer list information, Plaintiff argues, is reasonably calculated to lead to discovery of admissible evidence, including other lawsuits, complaints and similar incidents.
The Court agrees with Plaintiff that some of the information sought in these four interrogatories is relevant to issues of notice of defects, proof of defective design, and punitive damages, Smith v. Ingersoll-Rand Co., 214 F.3d 1235, 1248 (10th Cir. 2000); Gonzales v. Surgidev Corp., 120 N.M. 133, 899 P.2d 576 (1995); or is calculated to lead to discovery of admissible evidence. In addition, Plaintiff is correct that the "substantially similar" test is less an obstacle at the discovery stage than at trial, and "the requirement [ i.e., of substantial similarity between the other incidents and the incident being litigated] is relaxed" when the evidence of other accidents is submitted to prove notice or awareness of the potential defect, rather than to prove the ultimate issue of existence of a dangerous condition. Wheeler v. John Deere Co., 862 F.2d 1404, 1407-08 (10th Cir. 1988).
Defendant states that the one lawsuit identified in the response to Interrogatory No. 16 is "the only other complaint/incident that Defendants are aware of that involved the model of aerial device involved in this accident that involved allegations that appear to be similar to those made by Plaintiffs in this action concerning insulation of the controls and the use of metal screws on boom covers." [Doc. 33, at 7]. This is too narrow an application of the "substantially similar" test.
While it is true that Plaintiffs allege in their complaint that the hand controls in the bucket and the metal screws on the boom cowling were not properly insulated, they also complain of defects in the hydraulic system and problems with "hydraulic drift." In his Request for Production No. 22, Plaintiff asks Defendant to produce documentation of lawsuits involving the Hi-Ranger 57, in six specific areas: (a) the operator hand controls in the bucket; (b) the construction and covering of the boom; (c) the hydraulic system or any "hydraulic drift"; (d) the cowling that covered any part of the boom; (e) any warnings related to "hydraulic drift"; and (f) electrical conductivity of the device.
If lawsuits, complaints or records exist of other similar incidents involving allegations of injury to persons using the Hi-Ranger 57 based on of any of these six reasons, Defendants must disclose them. The Court finds that narrowing the subject area in this manner maximizes the possibility that the material produced will involve incidents that are "substantially similar" to Plaintiffs' case. The ultimate determination of whether these other incidents are "substantially similar" to the one in which Ervin Ward was allegedly injured is not one to be made by Defendant at the discovery stage, but by the trial judge at the time, if ever, that Plaintiff attempts to introduce these incidents at trial.
Defendant must also disclose a sub-set of its customer list to Plaintiffs. If there are other customers who also experienced difficulties with the Hi-Ranger 57 or made complaints relating to any of the six areas identified above, and if Defendant was made aware of these complaints, even if they did not ripen into a lawsuit, that information bears directly on notice of defect and punitive damages. "[W]ith respect to punitive damages, Ms. Salmeron must produce evidence of similar misconduct to show malice. . . . [E]vidence that defendant has repeatedly engaged in prohibited conduct would provide relevant support for punitive damages. . . . [as] repeated misconduct is more reprehensible than an individual instance of malfeasance." Salmeron v. Highlands Ford Sales, Inc., 220 F.R.D. 667, 670 (D.N.M. 2003) (sustaining plaintiff's objections to discovery order restricting disclosure of customer lists).
Terex need not produce a list of all customers nor even a list of all customers who purchased the Hi-Ranger 57. Rather, Terex should produce a list of customers who have reported difficulties in use of hand controls in the buckets; problems or defects in covering of the boom; or problems with the hydraulic system leading to hydraulic drift or any of the six areas ("a" through "f") identified above. The customer list should be provided for purchasers within the last five years.
In order to balance Plaintiff's need for access to the customer list against the potential harm that disclosure of the list might have on Defendant's business, see Salmeron, supra, at 671, this discovery is ordered pursuant to a protective order, set out at the end of this opinion. Interrogatory No. 21
In this interrogatory, Plaintiff asks Defendant to state whether it ever provided safety updates, advisories or bulletins to its customers with regard to the Hi-Ranger 57 or its component parts or operating systems. If so, Defendant is asked to identify each such advisory, giving the nature and content of the advisory, the date it was sent, how it was provided, and whether the City of Farmington received it. Plaintiff again asks that Defendant "identify all documents relevant or pertinent to this interrogatory" and produce them.
Defendant objects to the interrogatory on grounds it is overly broad and seeks irrelevant information. Without waiving the objection, Terex states that it did send out, via mail and via its website, safety alert bulletins, campaign bulletins and product advisories related to the Hi-Ranger 57. Defendant also states that it sent the City of Farmington Electrical Utility certain campaign bulletins and other specifically identified material, and that the City of Farmington received this material. Defendant agrees to produce this documentation.
Plaintiff complains that Defendant objects on relevancy grounds and then provides an incomplete answer. The information requested is relevant to Defendant's knowledge of defects and state of mind as relevant to punitive damages. The Court overrules the objections and directs Defendant to supplement its answer by identifying all such bulletins and advisories sent to any of its customers with respect to the Hi-Ranger 57 device and to provide the other information requested in the interrogatory.
The Court again finds, however, that the request for "all documents relevant or pertinent" to the interrogatory is overly broad and vague. The Court directs Defendant to supply the text of the specific bulletins, advisories, etc. which are responsive to this request; it need not provide every scrap of paper "relevant or pertinent" to the interrogatory.
Interrogatory No. 22
In this interrogatory, Plaintiff asks Defendant Terex to describe the business relationship between Terex and Defendant Simon-Telelect, if any; to state all facts or circumstances surrounding Simon-Telelect's ceasing to exist as a corporate entity; to identify all persons with knowledge of any decisions or transactions by which Simon-Telelect ceased to exist; and to state and identify anyone who took and has possession of Simon-Telelect's records, files and documents that may be relevant to this lawsuit, including any documents pertaining to the Hi-Ranger 57.
Defendant objects on grounds the interrogatory seeks information not relevant to the claims or defenses in this action, and states as follows: "Defendant Terex-Telelect and counsel for Plaintiffs agreed during the Rule 16 case management conference that a stipulation would be entered setting forth that Terex-Telelect is the proper defendant in this action and is the entity responsible for the design, manufacture and marketing of the aerial device at issue."
Plaintiff acknowledges the stipulation but argues that it does not absolve Terex from disclosing the requested information, particularly information as to when Simon-Telelect ceased to exist, the persons involved, and who has possession of Simon-Telelect's documents and records. In its Response to the Motion to Compel, Terex states that it is the corporate successor in interest to Simon-Telelect and will answer for the design, manufacture and marketing of the Hi-Ranger 57. Terex states further that Simon-Telelect ceased to exist in the late 1990s, and that any documentation it may have had regarding the Hi-Ranger 57 is now in Terex's possession, custody and control. [Doc. 33, at 7].
The Court finds that Defendant's objections are well-taken. Defendant has provided an adequate answer to Interrogatory No. 22, and no further response is required.
Interrogatory No. 25
In this interrogatory, Plaintiff asks Defendant Terex to state its financial net worth and describe the method used to arrive at this net worth on an annual basis for the past five years. Plaintiff also asks that Terex identify all relevant documents used in determining its net worth, including profit and loss statements, balance sheets, financial statements, and earnings statements.
Defendant objects on grounds of relevance. Plaintiff argues that the information is necessary for purposes of assessing punitive damages, which is alleged in the complaint. Defendant counters that a defendant may be held liable for punitive damages only for its in-state conduct, and any financial information that relates to profits made outside the State of New Mexico is irrelevant, citing State Farm Mut. Auto. Ins. Co. v. Campbell, 538 U.S. 408, 123 S. Ct. 1513 (2003). Defendant further takes the position that "should there be evidence that Plaintiff can specifically point to that indicates that a question on punitive damages should go to the jury, Defendants would then agree to produce some limited documentation to indicate its financial condition at the time of trial. . . ." [Doc. 33, at 8].
The Court agrees with Defendant that Campbell precludes consideration of conduct occurring outside the forum state. In overturning a $145 million punitive damage award, the Supreme Court held, inter alia, that:
A State cannot punish a defendant for conduct that may have been lawful [in another State] where it occurred. . . . Nor, as a general rule, does a State have a legitimate concern in imposing punitive damages to punish a defendant for unlawful acts committed outside of the State's jurisdiction.Campbell, supra, 538 U.S. at 421. Thus, while there may be some relevancy in Plaintiff's request, the relevancy is outweighed by Defendant's privacy interests and burden in compiling the information.
Plaintiff argues that financial information is relevant because of the demand for punitive damages. There is no dispute that evidence of a party's net worth is relevant on the issue of punitive damages. City of Newport v. Fact Concerts, Inc., 453 U.S. 247, 270, 101 S. Ct. 2748, 2761 (1981); Ramsey v. Culpepper, 738 F.2d 1092, 1099 (10th Cir. 1984). Defendant's argument that financial information should not be provided until a prima facie showing has been made finds support in both federal and state rulings. See, e.g., Chenoweth v. Schaaf, 98 F.R.D. 587 (W.D. Pa. 1983); John Does I-VI v. Yogi, 110 F.R.D. 629 (D.D.C. 1986); Rupe v. Fourman, 532 F. Supp. 344 (S.D. Ohio 1981).
However, a majority of federal courts that have considered this question permit pretrial discovery of a defendant's financial condition without requiring the plaintiff to first make a prima facie showing of any entitlement to punitive damages. Mid Continent Cabinetry, Inc. v. George Koch Sons, Inc., 130 F.R.D. 149 (D. Kan. 1990) (eleven cases collected in support of discovery). The Court agrees with the Mid Continent Cabinetry approach. However, the Court further believes that evidence of a party's net worth is the appropriate factor for the jury to consider in determining an amount of punitive damages.Woods-Drake v. Lundy, 667 F.2d 1198, 1203 n. 9 (5th Cir. 1982). A defendant's financial information or net worth from years back is not relevant; it is only defendant's present ability to respond in damages that is significant.
In Cincinnati Insurance Co. v. Clark, No. 91-0820, 1992 WL 34128, at *2 (E.D. Pa. Feb. 19, 1992), the court was faced with a similar issue. A plaintiff sought a wide variety of financial information, including information from previous years. The court stated that the important inquiry concerned defendant's present net worth, not its financial dealings or net worth from years ago. In that case, the court required the defendant to produce financial information, but limited the request to information touching on the defendant's present net worth. Thus, information concerning balance sheets, assets and liabilities, income and expenses, profit and loss, financial statements, gross revenues, inventory sheets, land values, resale values for a period of years, and the like are not particularly helpful.
The Court determines that it is proper to order Defendant to produce a statement of its current net worth, and nothing more. Moreover, it is clear that the Court may properly limit discovery to protect a defendant from unfair disclosure and prevent a plaintiff from disseminating private information outside of this litigation. The Court believes that an order limiting the use of the net worth statement is appropriate. Therefore, the information produced is to be used only for purposes of this litigation and for no other purpose. It may not be disseminated outside of this litigation process, and at the completion of the litigation, Plaintiff and Plaintiff's counsel are directed to return all financial information provided, together with all copies of the information. Should Plaintiff use a damage expert in the prosecution of the case and disclose the statement of Defendant's net worth to their expert, that expert, too, must comply with the terms of this order and agree to keep the information confidential, and return all copies of information provided at the completion of the litigation.
Thus, Plaintiff's motion to compel production of financial information is granted in part and denied in part. The motion is granted insofar as Defendant is directed to produce a statement of its current net worth. No other financial information need be produced, and, accordingly, Plaintiff's request for extensive financial information from years prior is denied.
Requests for Production
Request for Production No. 6In this RFP, Plaintiff asks Defendant to produce "any recording information or statements from anyone responsive to any request," including audio and video recordings, pictures, photographs, prints and other images, related to eight specific areas, set forth in detail in the RFP. Those areas are, in summary: (A) the incident; (B) "any issue or theory pertinent or relevant to any of the issues involved in this lawsuit"; (C) the design of the Hi-Ranger 57; (D) the manufacture of the Hi-Ranger 57; (E) the marketing, promotion or sale of the H-Ranger 57; (F) the testing of the Hi-Ranger 57; (G) any fault or failure analysis or human factors testing of the Hi-Ranger 57; and (H) any educational material provided to employees of either of the defendant corporations in connection with any Product Safety Management Program.
Defendant objects to the request as "vague and ambiguous to the point that Defendant is unsure what documents are being requested," and also overly broad and asking for irrelevant material. Without waiving the objection, Defendant states that photographs of the Hi-Ranger 57 device have already been produced.
Plaintiff apparently intended this RFP to correspond to Interrogatory No. 6, which asks for information on any investigation conducted by Defendant into the incident. In his Motion to Compel, Plaintiff complains that Defendant failed to fully answer the Interrogatory and failed to provide any documents or items in response to the RFP, aside from the photograph alluded to above. Defendant counters in its Response to the Motion that it stands by its objection that the RFP is vague, ambiguous and overly broad. Defendant argues that complete responses to the RFP, as worded, would require production of documents not relevant to Plaintiff's claims:
[s]pecifically, all photographs and video of the design, manufacture and marketing of the product in question are not relevant to the specific defect claims asserted in this case, which center around the tip of the boom of the aerial lift device and even more specifically hydraulic drift of the upper boom, insulated controls and metal screws on upper boom tip covers.
[Doc. 33, 4]. Defendant also states that since the filing of the Motion to Compel, Defendant has received photographs and a video related to the City of Farmington's lineman training program, as well as the City's investigation into the incident, and that Defendant has already served these photographs and videotapes on Plaintiff's counsel.
The Court agrees that much of this RFP is overly broad and vague. For example, the Court cannot imagine how Defendants could reasonably respond to the request for "Any recorded information or statements obtained from anyone responsive to any request . . . that involves . . . (B) Any issue or theory pertinent or relevant to any of the issues involved in this lawsuit." Even the more specific categories ( e.g., design of the device, marketing, testing, etc.) suffer from the vagueness of the opening line, "Any recorded information or statements obtained from anyone responsive to any request. . . ."
As Plaintiff has paired this RFP with Interrogatory No. 6 in his briefing, the Court assumes that he intends to request any documents produced as a result of any investigation into the incident that injured Ervin Ward. In its order on Interrogatory No. 6, the Court directed Defendant to state the findings and conclusions of the City of Farmington's investigation. If any such findings and conclusions exist in written form, Defendant is ordered to produce this documentation in response to RFP No. 6, to the extent it has not already done so. Defendant need not provide any further response to this RFP. As discussed previously, Defendant need not produce any other expert report, save for the mandatory expert disclosures required under Rule 26.
Requests for Production Nos. 7-9
These RFPs deal with privilege logs. To each of them, Defendant respond that a log/index will be produced if any documents exist to which Defendant wishes to assert attorney-client, work product, or any other sort of privilege. This is a sufficient response to these RFPs.
Request for Production No. 10
In this RFP, Plaintiff asks for "Any and all design and engineering documents" for the Hi-Ranger 57 and its component parts or operating systems, including 18 specific categories of documents. Defendant objects to the request as overly broad, seeking irrelevant documents, vague and ambiguous, and unduly burdensome.
Plaintiff argues that the documents sought are highly relevant to the defective design claim. Defendant does not dispute this but argues that Plaintiff's blanket request for all documents relevant to design and manufacture would encompass "thousands upon thousands" of documents, most of which would not be relevant to the specific defect claims made in this case. In addition, Defendant asserts that it is still not exactly sure what documents are sought by this RFP as written. Defendant states that it is willing work with Plaintiffs to narrow this request and get a better idea of the type of documents sought which might be related to the specific defect claims made in this case.
The Court agrees that the Request is overly broad, vague and seeks some documents which are not relevant to the claims and defenses under Fed.R.Civ.P. 26. "All design and engineering documents" for the device and any of its component parts or operating systems would, again, require documentation for the engineering of every nut, bolt, device, switch, line, etc. This is well beyond the kind of discovery contemplated by Rule 26. The Court will order that Defendant produce any design drawings, fault and failure analysis studies, risk and hazard assessment reports, human factors testing reports, and engineering reports, but only for the specific portions of the device referred to in Plaintiff's complaint — that is, the operator hand controls in the bucket; the boom, its cowling and method of attachment; and the hydraulic system. However, no other response or production is necessary.
Request for Production No. 11
This RFP seeks "design and engineering documents," as requested in RFP No. 10, for prior and subsequent models of the Hi-Ranger 57 device at issue in this case. Defendant asserts the same objections to this RFP as were made to RFP No. 10, and it provides no material in response to the RFP. Plaintiff points out that it is not asking for design and engineering documents relating to every model of aerial device designed and manufactured by Defendant, but only prior or subsequent models of the Hi-Ranger 57.
The Court finds the request to be appropriate; however, the RFP suffers from the same defects as did RFP No. 10. In any event, Defendant has asserted in its Response to the Motion to Compel that, as Defendant understands the request, there are no prior or subsequent models of the Hi-Ranger 57. [Doc. 33, at 9]. The Court cannot direct Defendant to produce something which does not exist. The objection is sustained. The Motion to Compel with respect to this RFP is denied.
Request for Production Nos. 13-16
In these RFPs, Plaintiff asks for the owner/operator manuals for the Hi-Ranger 57 and any prior or subsequent model, including manuals for any component parts or operating systems (RFP 13); the maintenance manual for the same (RFP 14); any technical or schematic manual for the same (RFP 15), and "Any other manuals of whatever kind or nature in connection" with the same (RFP 16). Defendant objects on grounds of overbreadth and relevance. Without waiving the objections, it states that the operator's manual, maintenance manual and service manuals for the Hi-Ranger 57 have already been produced.
Plaintiff complains that these earlier productions did not include any other manuals for the Hi-Ranger, aside from the operator's, maintenance, and service manuals, nor did they include manuals for any prior or subsequent models. They ask that Defendant be directed to either produce such manuals or indicate that no other manuals exist. Defendant counters that all manuals applicable to the Hi-Ranger 57 will be produced and reiterates that there have been no prior or subsequent models of this device.
Defendant's objections are sustained. In light of Defendant's promise to produce all manuals applicable to the Hi-Ranger 57, the Court finds this RFP has been answered in full and will direct no further response.
Request for Production No. 17
In this RFP, Plaintiff asks for "Any and all communications of whatever kind or nature in your possession, custody or control (including letters, memos, emails and other communications) for the last twenty years that is in any way relevant or pertinent to, or otherwise affects or involves issues raised in this lawsuit," specifically, the Hi-Ranger 57, its predecessor or subsequent models, any component parts or operating systems (specifically listed), or the incident that is the subject of the lawsuit.
Defendant objects on grounds the request is overly broad and unduly burdensome and seeks documents that are not relevant to the claims and defenses. Without waiving its objection, Defendant refers to correspondence produced in response to RFP No. 1 and states that it "reserves the right" to supplement its response.
Plaintiff complains that he cannot ascertain from Defendant's response whether any communications responsive to this request have been withheld. The Court agrees with Defendant that Plaintiff has overreached and that it would be unduly burdensome to expect Defendant to produce all communications for the past 20 years that relate in any way to the Hi-Ranger 57. Defendant asserts that all relevant communications concerning the incident that were in Defendant's possession, custody or control at the time the responses were served have been produced, and that further documentation from the City of Farmington regarding the incident has been produced since that time.
The Court sustains Defendant's objections. Defendant's response to this RFP is adequate, and the Court will not require anything further.
Request for Production No. 18
This RFP seeks documents relevant to any Product Safety Management Program which Defendant has in place. Defendant objects to the request as vague and ambiguous with respect to the term "Product Safety Management Program." Without waiving the objection, Defendant states it does not believe there are any documents responsive to the request.
Plaintiff mentions this RFP in the introduction to his Motion to Compel [Doc. 32, at 2] but does not provide any discussion or argument about it, other than to mention Defendant's objection to this RFP as one of several that are overly general. [ See Doc. 32, at 19 and 20]. The Court sustains Defendant's objection to RFP 18.
Request for Production No. 19
In this RFP, Plaintiff asks for any "field reports or inspection documents evincing any problems observed by or noted by either customers or agents and employees" of Defendant in connection with the Hi-Ranger 57, with respect to: (1) the electrical conductivity of the boom; (2) the electrical conductivity of the hand controls in the bucket; and (3) the hydraulic system.
Defendant objects to the RFP as overly broad, vague and ambiguous as to the terms, "field reports" and "inspection documents," and as seeking documents irrelevant to the claims and defenses. Without waiving the objections, Defendant states that it does not believe it has any documents responsive to the request.
Plaintiff complains that the documents sought are relevant. While Plaintiff was not explicit as to what he meant by "field reports" or "inspection documents," it is clear that any report by customers or employees of Defendant with respect to problems observed in the three specific areas noted by Plaintiffs in the RFP would be relevant to the case.
Defendant is directed to produce any documentation of reports or complaints which contain customer complaints or employee reports of problems with the Hi-Ranger 57 model with respect to electrical conductivity of the boom or hand controls, or with respect to the hydraulic system.
Request for Production Nos. 20-21
RFP 20 seeks Defendant's federal and state income tax returns for the past ten years. RFP 21 seeks any publicly filed documents showing Defendant's financial condition, including profit and loss statements, balance sheets, income and expense statements. Defendant objects to both RFPs on grounds of relevancy.
In the discussion regarding Interrogatory No. 25, which seeks similar information on Defendant's net worth going to the issue of punitive damages, the Court sustained Defendant's objection. While net worth is relevant, tax records for the last decade are not. Request for Production Nos. 22-23
RFP 22 asks Defendant to produce any document in its possession, custody and control involving any lawsuit against it based on the Hi-Ranger 57, specifically lawsuits involving the operator hand controls in the bucket, the construction and covering of the boom, the hydraulic system or any "hydraulic drift," the cowling that covered the boom, any warnings related to "hydraulic drift," and electrical conductivity of the device. Plaintiff then sets forth a list of six types of documents he wants Defendant to produce, including pleadings, discovery requests and responses, depositions, affidavits, litigation summaries, analysis of the lawsuits, risk-benefit analysis, settlement agreements or releases.
RFP 23 asks for similar information for any complaint received by or lodged against Defendant. Plaintiff sets forth a list of four types of documents connected with such complaints which he wants Defendant to produce, including "any document in your possession, custody or control evincing any complaint against you at any time," summaries of such complaints, any list of such complaints, and any document "evincing the settlement or resolution of such complaints or any action you took in connection with such complaint."
Defendant objects to both RFPs as overly broad, as seeking materials irrelevant to the claims and defenses, and as seeking material that is subject to the attorney-client privilege and work product doctrine. Without waiving the objections, Defendant states it has produced the original complaint from the lawsuit described in its answer to Interrogatory 16.
In its discussion of requests for similar sorts of information in Interrogatories 16-19 (see above), the Court held that information as to prior lawsuits and complaints is relevant to the claims and defenses herein, and Defendant's objection on that ground is overruled. However, these RFPs are overly broad. The subject matter areas listed by Plaintiff are helpful in ensuring that the documents produced relate to "substantially similar" incidents. However, Defendant need not produce every piece of paper filed in these cases. It will be sufficient if Defendant produces copies of the complaints in any such lawsuits, including amended complaints. Plaintiff is free thereafter to conduct his own further investigation to obtain documentation filed or utilized in these cases. Defendant need not produce any "litigation summaries," risk assessments, legal analyses, or settlement documents. With respect to any complaints that did not lead to litigation, Defendant is directed to produce a copy of any written complaint received about the operator hand controls in the bucket, the construction and covering of the boom, the hydraulic system or hydraulic drift, or the electrical conductivity of the Hi-Ranger 57.
Any material ordered produced under these RFPs 22 and 23, to the extent it is not already part of the public record, is ordered produced subject to the Protective Order set forth at the end of this Order.
Request for Production No. 26
In this RFP, Plaintiff asks Defendant to produce "Any document in your possession, custody or control evincing any supplement, amendment, replacement or similar document pertaining to or involving any retention policy and procedures sought in these requests." Defendant objects on grounds of vagueness, stating it is not sure what documents are being requested. Defendant also objects on grounds of overbreadth and relevancy.
The Court finds the wording of this RFP to be confusing; however, Plaintiff clarifies in his Motion to Compel that he is seeking any documents related to document retention policies or procedures. Defendant argues that such documents are not relevant to the claims and defenses of the parties.
The Court agrees with Defendant that its corporate document retention policies are not relevant to the specific claims and defenses involved in this case. As noted above, Rule 26(b)(1) allows the Court to order discovery of any matter "relevant to the subject matter of the action" if the requesting party shows good cause. However, Plaintiff has not made such a showing. He provides no reason why he needs to see Defendant's policies with regard to document retention; rather, he simply cites one unpublished case in which such discovery was ordered.
In that case, Nike, Inc. v. Brandmania.com, Inc., No. Civ.A. 00-5148, 2002 WL 32348549 (E.D. Pa. Oct. 7, 2002), the court noted that the requesting party sought the opposing party's document retention policy based on the requesting party's claim that the policy might help explain why certain categories of documents were not produced in discovery. Other cases allowing such discovery likewise involve allegations of spoliation, improper destruction of documents, or mysterious refusals to provide documents. See, e.g., Muhl v. Tiber Holding Corp., No. CIV. A. 95-5284, 1997 WL 13680 (E.D. Pa. Jan. 9, 1997); In re "Agent Orange" Product Liability Litigation, 98 F.R.D. 558 (E.D.N.Y. 1983). Plaintiff has made no such allegation in this case, nor has he made the requisite "good cause" showing for material not directly related to the claims and defenses. The Motion to Compel with respect to RFP 26 is denied.
Order
IT IS THEREFORE ORDERED that Plaintiff Ervin Ward's First Motion to Compel Defendant Terex-Telelect to Respond to Discovery [Doc. 32] is granted in part and denied in part, as detailed above. All discovery shall be produced within 20 days of the date of this Order.
IT IS FURTHER ORDERED THAT any discovery ordered above which is subject to a Protective Order must comply with the following terms:
1. Plaintiffs and Plaintiffs' counsel shall hold this material in the strictest of confidence, store the material securely, and use the material solely for purposes of this litigation.
2. Plaintiffs and Plaintiffs' counsel shall not disclose or produce this material to any non-party at any time except for use at trial.
3. Plaintiffs and Plaintiffs' counsel shall accept responsibility for limiting access to this material to those qualified persons (attorneys, associates, and staff/employees who are working on the litigation) who are authorized to receive the material for purposes of the litigation.
4. Plaintiffs and Plaintiffs' counsel agree to return the material produced under this protective order to Defendants, within thirty (30) days of the resolution of the case.
5. Plaintiffs and Plaintiffs' counsel agree to purge all copies of the material from their files at the resolution of this lawsuit.
6. Nothing in this Protective Order precludes Plaintiffs from contacting persons named in the customer list discussed above in connection with Interrogatory No. 19.