Affiliated FM Insurance Company v. Earthquake Enterprises, Inc.

Filing 45

Order by Magistrate Judge Donna M. Ryu granting 40 Discovery Letter Brief.(dmrlc2, COURT STAFF) (Filed on 10/19/2012)

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1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 NORTHERN DISTRICT OF CALIFORNIA 11 For the Northern District of California United States District Court 10 AFFILIATED FM INSURANCE COMPANY, 12 Plaintiff(s), 13 No. C 11-04925 DMR ORDER RE PARTIES' JOINT DISCOVERY LETTER [DOCKET NO. 33] v. 14 EARTHQUAKE ENTERPRISES, 15 16 Defendant(s). ___________________________________/ 17 This discovery dispute arises out of a fire sprinkler system failure in Unit 607 of 733 Front 18 Street ("the Property"). On October 6, 2010, the 733 Front Street Home Owners Association 19 ("HOA") hired Defendant Earthquake Enterprises, Inc. to inspect and repair a leak in Unit 607 of the 20 Property. After cutting a hole in the ceiling to access the leak, Defendant noticed that the leak was 21 coming from T-shaped pipe fitting. Defendant depressurized the sprinkler system, removed the 22 leaking portion,1 and installed new piping. Shortly after Defendant repressurized the system, an 23 elbow pipe adjacent to the T-shaped pipe in the sprinkler system failed, causing significant damage 24 to Unit 607, other units of the Property, and the Property's common areas. Plaintiff Affiliated FM 25 Insurance Company reimbursed the HOA for the repairs and restoration, and pursuant to the terms of 26 their insurance policy, brought this negligence action against Defendant to recover the damages. 27 28 1 The parties do not agree on which portion of the sprinkler system Defendant removed. 1 Currently at issue is Defendant's request to obtain glue samples from fire sprinkler pipes for 2 comparison testing, which may illuminate whether Defendant performed any work on the elbow 3 pipe that failed. The court held a discovery hearing on October 17, 2012. This order memorializes 4 the rulings made during the hearing. 5 A. Defendant's Argument 6 Defendant wants to obtain glue samples so that it can compare the glue from the failed pipe Defendant installed during its repairs. Defendant’s expert will test the samples to determine the 9 chemical compounds, formulas, manufacturers, and/or ages of the respective glues. Defendant 10 argues that this information will aid in assessing whether the failed pipe came from the original 11 For the Northern District of California to the glue on nearby pipes that originally were installed in 2007, as well as to those pipes which 8 United States District Court 7 installation or from Defendant’s repairs. According to Defendant, the samples would weigh less 12 than a tenth of a gram, would be "no larger than a couple of pin heads in size," and would take no 13 more than several minutes to complete. Defendant warrants that the sampling would pose no danger 14 to the sprinkler system, nor would it require that the system be taken offline. Because the procedure 15 would necessitate opening the ceiling of Unit 607, Defendant has offered to pay reasonable costs for 16 opening and repairing the ceiling, using a contractor of Plaintiff's choice. Defendant insists that the 17 entire procedure could take place on one day, or perhaps even half a day, since the sampling itself 18 would take very little time, and the opening and closing of the ceiling would be straightforward. 19 Defendant also wishes to obtain glue samples from other areas of the original fire sprinkler piping in 20 readily accessible areas of the Property's common areas. 21 B. Plaintiff's Argument 22 Plaintiff objects to the sampling and inspection requests, asserting that Defendant has 23 presented no credible justification for the procedures. Plaintiff also insists that taking glue samples 24 would threaten the integrity of the fire sprinkler system and may cause unforeseen damage 25 elsewhere. It therefore concludes that taking samples from Unit 607 would be unreasonably 26 burdensome and intrusive to the Property, the HOA, and the unit's owner and possible tenant. 27 Moreover, Plaintiff insists that neither it nor the HOA has ownership, custody, or control of the 28 2 1 ceiling of Unit 607; the HOA may access to the fire sprinkler system for only repair and emergency 2 purposes. 3 C. Discussion 4 Defendant's sought-after discovery is relevant. Comparing the glue from the pipe that 5 reportedly failed with the glue from the original pipes, as well as those from Defendant’s repairs will 6 help Defendant more accurately ascertain if the failed pipe was a product of its repairs – the factual 7 question at the heart of this matter. The benefits that Defendant may reap from its findings outweigh 8 any potential burden, particularly in light of the $700,000 in controversy in this action. See Fed. R. 9 Civ. P. 26(b). The court therefore grants Defendant’s motion. To minimize any inconvenience and possible damage to Plaintiff, the court orders that 11 Defendant provide Plaintiff with a protocol for performing the sampling by 5:00 p.m. on October 19, 12 2012. The sampling procedure shall occur by no later than October 27, 2012 absent extraordinary 13 and unforeseen circumstances. When the sampling occurs, Defendant may remove only a 14 reasonable portion of the ceiling in Unit 607 (anticipated to be approximately 3' by 3'), and Plaintiff 15 may have a representative witness and video tape the procedure. Plaintiff may select the contractor 16 who will open and close the ceiling, as long as the contractor is reputable and charges a reasonable 17 fee. Defendant shall reimburse Plaintiff for the costs of the procedure and for any injury or damage 18 incurred as a result of the sampling process, but not including the work performed by the contractor. 19 Defendant shall complete the procedure in one day, or shorter if possible. The court also orders that 20 Defendant may take glue samples from the Property’s common areas, subject to the same conditions, 21 as long as the procedures remain non-invasive and involve glue samples from piping that is similar 22 to the pipes at issue in this case. S . Ryu M Donna JudgeRYU DONNA M. NO 27 Dated: October 19, 2012 RT 28 United States Magistrate Judge H ER 3 R NIA 26 FO 25 DERED O OR IT IS S LI IT IS SO ORDERED. A 24 S DISTRICT TE C TA RT U O 23 UNIT ED For the Northern District of California United States District Court 10 N F D IS T IC T O R C

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