Cornell v. Columbus McKinnon Corporation et al

Filing 58

ORDER RE: DISCOVERY LETTERS 55 (Illston, Susan) (Filed on 11/10/2014)

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UNITED STATES DISTRICT COURT

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NORTHERN DISTRICT OF CALIFORNIA

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BRIAN CORNELL,

Case No. 13-cv-02188-SI

Plaintiff,
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v.

ORDER RE: DISCOVERY LETTER

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United States District Court
Northern District of California

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COLUMBUS
CORPORATION, et al.,

MCKINNON

Re: Dkt. No. 55

Defendants.

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BACKGROUND

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On February 11, 2013, plaintiff filed a complaint against Columbus McKinnon

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Corporation, American Lifts, Inc., Autoquip, and Does 1-200, claiming he was injured while

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performing his usual work duties for Federal Express (“FedEx”) at the Oakland Hub at Oakland

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International Airport. Compl. ¶ 3. Plaintiff alleges that on February 16, 2011, his foot was

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crushed while he used a scissor lift cargo moving system, and that the injury was caused by

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defects in the design and/or manufacture of the system. Compl. ¶ 12. On July 18, 2013, this Court

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denied plaintiff’s motion to remand this action to state court. Docket No. 24. On May 29, 2014,

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plaintiff filed a first amended complaint. Docket No. 40.

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Now before the Court is a discovery dispute letter submitted by the parties and FedEx.

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The parties have served a total of twelve subpoenas on FedEx; FedEx has responded to the first

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seven of these subpoenas but has taken the position that it need not respond to the remaining

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requests. Docket No. 55, Discovery Letter 3-4. FedEx, a non-party to this action, opposes certain

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discovery sought by the parties, and further requests that it receive compensation from the parties

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for any further discovery-related expenses. Id. at 4.

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LEGAL STANDARDS

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I.

Rule 45
Rule 45(d)(2)(B)(ii) requires that when a court orders compliance with a subpoena over an

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objection, “the order must protect a person who is neither a party nor a party's officer from

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significant expense resulting from compliance.” Fed. R. Civ. P. 45(d)(2)(B)(ii). The Rule leaves

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little room for discretion on the question of when cost shifting must be applied.

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discovery is ordered against a non-party, the only question before the court in considering whether

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to shift costs is whether the subpoena imposes significant expense on the non-party. If so, the

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district court must order the party seeking discovery to bear at least enough of the cost of

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compliance to render the remainder ‘non-significant.’” Legal Voice v. Stormans Inc., 738 F.3d

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United States District Court
Northern District of California

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1178, 1184 (9th Cir. 2013), citing Linder v. Calero-Portocarrero, 251 F.3d 178, 182 (D.C. Cir.

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2001).

“[W]hen

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However, while “[t]he shifting of significant expenses is mandatory, . . . the analysis is not

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mechanical; neither the Federal Rules nor the Ninth Circuit has defined ‘significant expenses,’

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which is a term that readily lends itself to myriad interpretations depending on the circumstances

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of a particular case.” United States v. McGraw-Hill Companies, Inc., No. CV 13-0779-DOC

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JCGX, 2014 WL 3810328, at *3 (C.D. Cal. Aug. 1, 2014). “What constitutes a ‘significant’ cost

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is at the discretion of the district court.” Callwave Commc'ns, LLC v. Wavemarket, Inc., No. C 14-

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80112 JSW (LB), 2014 WL 2918218, at *3 (N.D. Cal. June 26, 2014).

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determination, a court may “take into account the financial ability of the non-party to bear some

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costs” for purposes of establishing whether expenses are “significant.” Linder 251 F.3d at 182; see

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also McGraw-Hill No. CV 13-0779-DOC JCGX, 2014 WL 3810328, at *4 (“This consideration

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makes practical sense -- an expense might be ‘significant,’ for instance, to a small family-run

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business, while being ‘insignificant’ to a global financial institution.”).

In making this

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II.

Rule 26

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Federal Rule of Civil Procedure 26 provides that a party may obtain discovery “regarding

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any nonprivileged matter that is relevant to any party’s claim or defense.” Fed. R. Civ. P.
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26(b)(1). “Relevant information need not be admissible at the trial if the discovery appears

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reasonably calculated to lead to the discovery of admissible evidence.” Fed. R. Civ. P. 26(b)(1).

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“Relevancy, for the purposes of discovery, is defined broadly, although it is not without ultimate

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and necessary boundaries.” Gonzales v. Google, Inc., 234 F.R.D. 674, 679-80 (N.D. Cal. 2006).

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“[T]he party opposing discovery has the burden of showing that discovery should not be allowed,

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and also has the burden of clarifying, explaining and supporting its objections with competent

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evidence.” Louisiana Pac. Corp. v. Money Mkt. 1 Institutional Inv. Dealer, 285 F.R.D. 481, 485

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(N.D. Cal. 2012).

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DISCUSSION

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United States District Court
Northern District of California

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I.

Cost Shifting

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FedEx argues that it is entitled to be at least partially compensed for its costs incurred in

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responding to all future subpoenas, which it estimates will amount to $75,000. Discovery Letter at

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4. The parties argue (1) because FedEx is seeking reimbursement from plaintiff in the form of a

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workers’ compensation lien, it has an interest in the outcome of the litigation and therefore is not a

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“non-party” as contemplated by Rule 45, (2) that its projected financial expenses are unreasonable,

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and (3) even if its projected costs are reasonable, they would not be “significant” in light of its

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ability to pay.

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Rule 45(d)(2)(B)(ii) requires a court to determine whether costs actually incurred are

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“significant” in light of all the facts and circumstances, and if so, what proportion of the expenses

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are recoverable by the non-party. Furthermore, by requiring that a party only be entitled to

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expenses “resulting from compliance” with a court order compelling discovery, the Rule

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inherently requires that the Court decide whether the expenses themselves were reasonable.

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McGraw-Hill No. CV 13-0779-DOC JCGX, 2014 WL 3810328, at *3 (“Rule 45 does not cut a

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blank check to nonparties-unnecessary or unduly expensive services do not ‘result from

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compliance’ and, therefore, do not count as ‘expenses.’”).

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The Court therefore DEFERS ruling on this issue at this juncture. Once all discovery has

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been produced, FedEx may file a motion for cost shifting. The Court may then rely on the
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developed record to determine whether significant expenses have indeed been reasonably incurred.

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FedEx’s assertion that it will incur $75,000 in future expenses is unsupported by any independent

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facts or data, and does not provide a proper basis for making such a determination at this time.
However, the Court ORDERS the parties to meet and confer so as to ensure that future

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discovery propounded on FedEx is not duplicative or unnecessarily burdensome.

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II.

Pending Discovery Requests
FedEx opposes (1) plaintiff’s request for a spreadsheet in its possession which records all

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accidents or injuries that occurred on FedEx loading docks since 20021, (2) plaintiff’s request for

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identification of all FedEx employees who were working at the FedEx facility in Oakland on the

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United States District Court
Northern District of California

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day of plaintiff’s accident, (3) defendant’s request that FedEx produce witnesses and custodians of

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records for upcoming depositions, and list its “person most qualified” and custodian of records on

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a number of topics. Discovery Letter at 8-13.

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The Court agrees with plaintiff that the accident information in the spreadsheet is likely to

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lead to relevant evidence, namely, similar accidents that have occurred in the past, and any

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potential product defects associated with the cargo system plaintiff was operating at the time he

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was injured. FedEx insists that it should be allowed to independently review the spreadsheet, and

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provide information on only those incidents it deems to be sufficiently related. Discovery Letter at

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9. This argument is unavailing. The spreadsheet is clearly likely to lead to relevant evidence;

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plaintiff should have the opportunity to make his own determination as to what data is relevant for

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purposes of prosecuting this action. Accordingly, the Court ORDERS FedEx to produce the

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spreadsheet to plaintiff.

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Plaintiff has requested that FedEx provide a list of all employees working at the Oakland

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facility on the day of the accident. FedEx responds that providing such information would invade

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the privacy of its employees, and that there are “better, more direct, and less burdensome ways for

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plaintiff to obtain this information” – although it provides no such alernatives. Id. at 10. The

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The parties have agreed that FedEx may redact all private information from the
spreadsheet. Discovery Letter at 8.
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Court finds that such information is likely to lead to relevant evidence, such as ascertaining the

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names of witnesses to the accident, and therefore ORDERS FedEx to produce the information to

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plaintiff. To the extent FedEx has concerns regarding the privacy of its employees, it may enter

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into a protective order with the parties to govern the use of these materials.
The remainder of the discovery requests relate to the production of witnesses for

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subpoenas and naming “persons most qualified” and custodians of records. FedEx does not object

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to these requests on substantive grounds; it only asserts that it refuses to comply with these

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requests in the absence of the Court ruling on whether it is entitled to fee shifting under Rule

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45(d)(2)(B)(ii). As noted above, the Court ORDERS FedEx to comply with all such discovery

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requests, without prejudice to filing a motion for fee shifting once it has actually incurred expenses

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United States District Court
Northern District of California

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related to complying with them.

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IT IS SO ORDERED.
Dated: November 10, 2014
______________________________________
SUSAN ILLSTON
United States District Judge

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