Olsen et al v. United States

Filing 30

ORDER RE: DISCOVERY DISPUTE 29 (Illston, Susan) (Filed on 10/20/2015)

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UNITED STATES DISTRICT COURT

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NORTHERN DISTRICT OF CALIFORNIA

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SAMARN OLSEN, et al.,

Case No. 14-cv-05601-SI

Plaintiffs,
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v.

ORDER RE: DISCOVERY DISPUTE

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UNITED STATES,

Re: Dkt. No. 29

Defendant.

United States District Court
Northern District of California

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Now before the Court is a discovery letter submitted by the parties. Docket No. 29. This

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is the first discovery letter submitted in this case.

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Plaintiffs filed this action arising out of the death of Sterling Olsen on November 22, 2012.

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Pursuant to Federal Rule of Civil Procedure 30(b)(6), plaintiff served notices of deposition on the

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following topics: “(1) design and construction of the ramps and walkways adjacent to Building

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AB-4 before November 22, 2012; (2) modifications depicted in a photograph taken in April 2013;

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and (3) modifications depicted in a photograph taken May 3, 2015.” Dkt. No. 29 at 1. Defendants

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have not designated a deponent on these topics, arguing that Federal Rule of Evidence 407 bars

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the admission of subsequent remedial measures to prove: “negligence; culpable conduct; a defect

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in a product or its design; or a need for a warning or instruction.” See Fed. R. Evid. 407; Dkt. No.

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29 at 3.

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“Rule 407 governs admissibility. It does not preclude discovery.” Granberry v. Jet Blue

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Airways, 228 F.R.D. 647, 651 n. 2 (N.D. Cal. 2005) (citing Stalling v. Union Pac. R.R. Co., No. 01

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C 1056, 2003 WL 21317297 (N.D. Ill. June 6, 2003)). Evidence of subsequent remedial measures

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may be admissible at trial for purposes other than those precluded by Rule 407. Further, “[t]he

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standard of admissibility established by Rule 407 for evidence of subsequent remedial measures is

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more stringent than that for permitting pretrial discovery . . . because inadmissible material often

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leads to the discovery of admissible evidence.” 2-407 Weinstein’s Fed. Evid. § 407.09.

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After consideration of the arguments raised on the joint discovery letter, the Court

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GRANTS plaintiffs’ discovery request and ORDERS defendant to designate a deponent for the

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three topics listed in the letter no later than October 30, 2015.

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IT IS SO ORDERED.
Dated: October 20, 2015
______________________________________
SUSAN ILLSTON
United States District Judge

United States District Court
Northern District of California

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