Feuerstein et al v. Home Depot U.S.A. Incorporated et al

Filing 71

ORDER granting in part and denying in part 58 Motion to Compel. The motion at docket 58 is GRANTED in part and DENIED in part as follows. Plaintiffs shall make Burt Feuerstein available for a resumed deposition at a mutually agreeable time and p lace within 21 days from the date of this order. At the deposition, Defendants may pose only those questions which are authorized by this order. Any motion to recover reasonable motion practice expenses must be made within 14 days from the date of this order. Signed by Judge John W Sedwick on 8/23/13.(JWS)

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1 2 3 4 5 6 UNITED STATES DISTRICT COURT 7 DISTRICT OF ARIZONA 8 9 10 Burt Feuerstein and Janet Shalwitz, 11 12 Plaintiffs, vs. 13 14 15 The Home Depot, U.S.A., Inc., et al., Defendants. ) ) ) ) ) ) ) ) ) ) ) 2:12-cv-1062 JWS ORDER AND OPINION [Re: Motion at docket 58] 16 17 I. MOTION PRESENTED 18 At docket 58 defendants The Home Depot, U.S.A., Inc. (“HD”) and Tricam 19 Industries, Inc. (“TI”) (collectively “Defendants”) move pursuant to Federal Rule of Civil 20 Procedure 37(a)(1) for an order compelling plaintiff Burt Feuerstein (“Burt”) to appear 21 for a further deposition and to provide certain deposition testimony, as well as for 22 sanctions and costs associated with bringing the motion. Burt opposes at docket 59. 23 24 25 26 27 28 Defendants reply at docket 61. A statement of personal consultation is at docket 57. Oral argument was not requested and would not be helpful to the court. 1 2 II. BACKGROUND Burt and his co-plaintiff, Janet Shalwitz (collectively “Plaintiffs”), filed suit against 3 Defendants and two other entities on May 21, 2012. Jurisdiction is based on 28 U.S.C. 4 5 § 1332. According to his amended complaint, Burt was injured on May 8, 2011, when a 6 ladder slipped from beneath him. Plaintiffs allege the ladder was manufactured by TI 7 and sold by HD. They allege it slipped while set up on decking manufactured by 8 defendant Trex Company, Inc., which was also sold by HD. Plaintiffs plead claims 9 under Arizona law for strict liability, violation of statutory obligations, breach of an 10 implied warranty, negligence, failure to warn, punitive damages, and Janet Shalwitz’s 11 12 loss of consortium. According to Plaintiffs, at the time of Burt’s fall he was using the 13 ladder in accordance with applicable instructions. The gravamen of all Plaintiffs’ claims 14 is that the ladder slipped due to a defective design of the ladder’s feet, defective 15 warnings or instructions, and a defective design of the surface of the Trex decking. 16 Defendants’ answers deny that the claims advanced by Plaintiffs have merit. 17 18 III. STANDARD OF REVIEW 19 Federal Rule of Civil Procedure 37(a)(1) authorizes a party to move to compel 20 discovery after conferring in good faith with the opposing party in an attempt to avoid 21 motion practice. Rule 37 (a)(5)(A) provides generally that if the motion is granted, the 22 court must order the opposing party to pay the reasonable expenses of making the 23 motion. Rule 37 (a)(5)(C) provides that where the motion is denied the court must 24 25 award reasonable expenses to the party opposing the motion. 26 27 28 2 1 2 3 Discovery rules are liberally construed to effect the just, speedy, and inexpensive resolution of litigation.1 Discovery’s scope is broad. The Federal Rules of Civil Procedure give parties the right to “obtain discovery regarding any nonprivileged matter 4 5 that is relevant to any party’s claim or defense . . . .”2 Furthermore, such “[r]elevant 6 information need not be admissible at the trial if the discovery appears reasonably 7 calculated to lead to the discovery of admissible evidence.”3 Professor Wright instructs 8 that “[t]he rules . . . permit the broadest scope of discovery and leave it to the 9 10 enlightened discretion of the district court to decide what restrictions may be necessary in a particular case.”4 The Ninth Circuit observes these principles and has emphasized 11 12 that “wide access to relevant facts serves the integrity and fairness of the judicial 13 process by promoting the search for truth.”5 However, discovery is not unfettered. All 14 discovery requests are subject to limitations against discovery which is unreasonably 15 cumulative, seeks information which the requesting party had ample opportunity to 16 17 18 obtain in other litigation, or imposes a burden or expense which outweighs its likely benefit under the circumstances of the particular case.6 19 20 21 1 8 Charles Alan Wright, Arthur R. Miller, and Richard L. Marcus, Federal Practice and Procedure, § 2001 at 44 (2d ed. 1994) (“Wright”). 22 2 23 3 24 4 25 5 26 27 28 Fed. R. Civ. P. 26(b)(1). Id. Wright, § 2036 at 488. See Epstein v. MCA, Inc., 54 F.3d 1422, 1423 (9th Cir. 1995) (citation omitted). 6 Fed. R. Civ. P. 26(b)(1) imposes these limitations, which are more fully described in Fed. R. Civ. P. 26 (b)(2)(C). 3 1 2 3 Rule 30 governs the conduct of depositions. It provides in pertinent part that one “may instruct a deponent not to answer only when necessary to preserve a privilege, to enforce a limitation ordered by the court, or to present a motion [to terminate the 4 5 deposition] pursuant to Rule 30(d)(3).”7 IV. DISCUSSION 6 7 8 9 A. Answering Particular Questions Burt was deposed on May 6, 2013. Defendants contend that their efforts to obtain relevant testimony at the deposition were thwarted by the improper objections 10 11 made and instructions given to Burt by Plaintiffs’ counsel. Defendants assert that 12 Plaintiffs’ lawyer’s conduct should be evaluated in light of the defense contentions that if 13 the ladder slipped, this happened because Burt “set up the ladder at too shallow an 14 angle,” and he failed “to follow the instructions and warnings on the ladder.”8 These 15 contentions must have been known to Plaintiffs’ lawyer, because they were set out in 16 HD’s interrogatory answers dated March 25, 2013, over a month prior to Burt’s 17 18 19 deposition.9 Defendants contend, and the deposition transcript supports the assertion, that at 20 his deposition Burt had a very limited memory of facts that would be pertinent to 21 warnings on the ladder and Defendants’ contentions about the manner in which Burt 22 23 24 25 7 26 8 27 9 28 Fed. R. Civ. P. 30(c)(2). Doc. 58 at p. 3. Doc. 58-4. 4 1 was using the ladder.10 Seeking more details than Burt could remember, Defendants 2 posed questions relating to communications he might have had with other persons prior 3 to the deposition. It is some of those questions which are the subject of the motion. 4 5 The first question Defendants contend Burt should have answered but did not, 6 because Plaintiffs’ lawyer instructed Burt not to respond, came after Burt’s answers 7 established that he did not know what instructions were lacking on the ladder. The 8 question was, “[H]ave you ever had any conversation with . . . anyone who you 9 considered to have expertise in the area which has suggested to you that some label or 10 warning is missing from the accident ladder which would have prevented your accident 11 12 from taking place.”11 Plaintiffs’ lawyer interjected before Burt could answer: “I’m going 13 to instruct the witness not to answer that question. It’s not designed to elicit any 14 discoverable information.”12 Finding out whether there has been such a conversation 15 and then with whom might very well yield information that would fall within the broad 16 scope of discovery contemplated by the federal rules. The objection was not well 17 18 taken. In their opposition Plaintiffs assert that the work-product doctrine might support 19 Burt’s refusal to answer. However, such an objection clearly is not applicable to the 20 question actually asked, which did not ask for any document or tangible thing, a request 21 which would have been foreclosed by Fed. R. Civ. P. 26 (b)(3)(A) governing trial 22 23 24 25 10 26 11 27 12 28 Deposition of Burt Feuerstein, doc. 58-1 at deposition pp. 10-12, 18-21, and 28-29. Id. at deposition p. 12, ll. 19-25. Id. at deposition p. 13, ll. 1-4. 5 1 preparation materials.13 Moreover, the work product doctrine was not mentioned in the 2 objection at the deposition. Burt will be required to answer the question posed and any 3 logical follow-up questions that do not require disclosure of privileged information, such 4 5 6 7 8 9 as something disclosed in a conversation in which his attorney participated, or the content of something protected by Rule 26 (b)(3)(A). Next, Defendants assert that Burt should have answered the following inquiry: “Mr. Feuerstein, have you ever had any conversations with anyone who claims to have expertise in the area of ladder labeling or anyone who has suggested to you that he is 10 going to offer testimony in this case regarding this claim of yours that there was some 11 12 deficiency in the labels and the warnings and instructions on the ladder?”14 He did not 13 answer because his lawyer interjected the following: “And I’m going to instruct 14 Mr. Feuerstein not to answer a question as to discussions with parties that are not here. 15 And if in fact there are experts that we intend to utilize in this action, you’ll be able to 16 depose them pursuant to the rules and ask them any questions with regard to their 17 18 opinions . . . . “ Again, the question falls within the broad scope of permissible 19 discovery, and the question posed did not itself seek any privileged communication. 20 Because this preliminary question was not answered, it is impossible to know if follow- 21 up questions might run afoul of any privilege. Burt will be required to answer this 22 question and any logical follow-up questions that do not run afoul of any privilege or 23 Rule 26 (b)(3)(A). 24 25 26 27 28 13 See Fed. R. Civ. P. 26 Advisory Committee Notes (discussing the 1970 Amendment as it relates to Rule 26(b)(3)). 14 Doc. 58-1 at deposition p. 14, ll. 16-22. 6 1 2 3 The third matter relates to a follow-up question posed after Burt responded to a question about marks left by the ladder saying, “[m]y attorney told me there were marks.”15 The follow-up question asked if Burt’s attorney had been present during an 4 5 examination of the scene by someone with engineering expertise. The objection at the 6 deposition was based on the attorney-client privilege. That objection came at least one 7 question too soon. Burt’s lawyer did not raise a relevance objection, but the court 8 cannot understand how this question falls within the broad scope of discovery. Rather, 9 it relates only to potential activity by Burt’s lawyer in preparing for the litigation. The 10 court declines to order Burt to answer a question which falls outside the scope of 11 12 13 discovery, despite the failure of his lawyer to raise a relevance objection. Burt will not be required to answer this question. 14 The next two questions which Defendants say Burt should be required to answer 15 asked whether he ever observed a retained consultant or his attorney perform any tests 16 of the ladder at the scene of the accident, and whether he ever saw any consultant 17 18 performing any test of the ladder on the Trex surface. These questions are within the 19 scope of discovery and do not in themselves violate any privilege or the provisions of 20 Rule 26 (b)(3)(A). Burt will be required to answer them, as well as any follow-up 21 questions that do not invade any area of privilege or fall within the prohibition on trial 22 preparation materials in Rule 26 (b)(3)(A). 23 Finally, Defendants contend that Burt should be required to answer the question 24 25 whether he ever gave his lawyer specific measurements with reference to the location 26 27 28 15 Id. at deposition p. 14, l. 23. 7 1 of the ladder at the time of the accident. The court agrees with Plaintiffs that this inquiry 2 seeks to learn the content of a communication Burt may have had with his lawyer, and 3 therefore, requiring an answer would violate the attorney-client privilege. Burt will not 4 5 6 be required to answer this question. B. Sanctions 7 8 9 As an alternative to requiring Burt to appear at a resumed deposition to answer certain questions, Defendants ask the court to strike the allegations that the ladder’s design or manufacture caused Burt’s fall and to strike the allegations that a deficiency 10 in the ladder’s label or instructions caused the fall. These alternative sanctions would 11 12 have the effect of terminating Plaintiffs’ claims against HD. 13 Before imposing a claim dispositive sanction, this court must consider five 14 criteria: the public interest in prompt conclusion of litigation; need to manage the court’s 15 docket; risk of prejudice to the party asking for the sanction; policy favoring disposition 16 of disputes on their merits; and suitability of less drastic sanctions.16 Here, neither of 17 18 the first two considerations come into play, for this case may still be timely resolved. 19 The risk of prejudice to HD is virtually non-existent, for it can obtain the information it 20 seeks at a resumed deposition. The policy favoring resolution on the merits weighs 21 heavily against imposing the alternative sanctions. Moreover, imposing the sanctions 22 sought by HD might leave TI at greater risk as the only remaining defendant, yet TI has 23 no responsibility for the actions by Plaintiffs’ counsel. Finally, the lesser sanction of 24 25 16 26 27 28 Conn. Gen. Life Ins. Co. v. New Images of Beverly Hills, 482 F.3d 1091, 1096 (9th Cir. 2007). 8 1 ordering the resumption of the deposition so that certain questions may be answered is 2 a more proportional, and indeed entirely adequate, sanction. 3 C. Expenses 4 5 The remaining issue is whether to require one party to pay the other its 6 reasonable expenses incurred in the motion practice at hand. Where, as here, the 7 motion is being granted in part and denied in part, Rule 37 (a)(5)(C) gives the court 8 discretion after giving the parties an opportunity to be heard to apportion the expenses. 9 The court directs counsel to confer in an effort to reach an agreement on this issue. If 10 they cannot do so, then either side may move for an award of motion expenses within 11 12 14 days from the date of this order. The court assumes that before either party makes 13 such a motion careful consideration will be given to the question whether the game is 14 worth the candle. 15 16 V. CONCLUSION The motion at docket 58 is GRANTED in part and DENIED in part as follows. 17 18 Plaintiffs shall make Burt Feuerstein available for a resumed deposition at a mutually 19 agreeable time and place within 21 days from the date of this order. At the deposition, 20 Defendants may pose only those questions which are authorized by this order. 21 22 Any motion to recover reasonable motion practice expenses must be made within 14 days from the date of this order. 23 DATED this 23rd day of August 2013. 24 25 26 /S/ JOHN W. SEDWICK UNITED STATES DISTRICT JUDGE 27 28 9

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