Lutes et al v. Kawasaki Motors Corp U.S.A. et al

Filing 202

RULING granting in part renewed 142 MOTION to Compel Production of Unredacted Warranty Claim Documents from KMC. See attached ruling for details. Signed by Judge Holly B. Fitzsimmons on 10/22/2014.(Katz, Samantha)

UNITED STATES DISTRICT COURT
DISTRICT OF CONNECTICUT
CARLY LUTES, KEVIN LUTES, AND :
S.L., PPA KEVIN AND CARLY
:
LUTES
:
:
v.
:
:
KAWASAKI MOTORS CORP., USA
:
AND KAWASAKI MOTORS
:
MANUFACTURING CORP.
:

CIV. NO. 3:10CV1549 (WWE)

RULING ON PLAINTIFFS’ RENEWED MOTION TO COMPEL PRODUCTION OF
UNREDACTED WARRANTY CLAIM DOCUMENTS [DOC. #142]
Plaintiffs Carly and Kevin Lutes bring this products
liability action against defendants Kawasaki Motors Corporation,
USA (KMC), and Kawasaki Motors Manufacturing Corporation (KMM).
It arises out of personal injuries plaintiffs sustained from an
accident involving a Jet Ski manufactured by KMM and marketed
and distributed by KMC. Pending before the Court is plaintiffs‟
renewed motion to compel the production of unredacted warranty
claim documents. [Doc. #142].

Defendant KMC opposes plaintiffs‟

motion. [Doc. #152]. For the reasons articulated below,
plaintiffs‟ renewed motion to compel is GRANTED IN PART.
1.

Background
The claims in this action arise from the use of a “recessed

hook”1 on plaintiffs‟ Jet Ski. Specifically, plaintiffs Carly and
Kevin Lutes were using their Jet Ski to tow an unmanned inner
tube, which was attached by rope to the Jet Ski‟s recessed hook

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The parties dispute the proper term for the device in question. Plaintiffs
refer to the subject device as a “cleat.” The owner‟s manual for the Jet Ski
at issue refers to the device as a “recessed hook”, while the Kawasaki parts
system refers to it as a “cargo hook.” For purposes of this ruling, the
subject device will be referred to as a “recessed hook.”

and tow hook.

Plaintiff Carly Lutes was holding the excess rope

when the recessed hook allegedly broke away from the Jet Ski,
causing the tow rope to constrict around her arm, pulling her
off the Jet Ski, and severing her left hand from her arm.
Plaintiffs allege that the subject jet ski was defectively
designed in using the recessed hook.
Over the course of extensive discovery, KMC produced
documents relating to warranty claims involving the recessed
hook for the Jet Ski model at issue.

KMC has produced twenty

two (22) such warranty claims, albeit with redactions to the
customers‟ names, addresses, and telephone numbers.

KMC

redacted this information pursuant to the right to privacy set
forth in Article I, Section I of the California Constitution.
Plaintiffs seek the customer information to counter KMC‟s
suggestion that it has never heard of a customer using the
recessed hooks for anything other than securing cargo.
Plaintiffs contend that they should not have to “take KMC‟s word
for it”, in light of the significant number of replacement parts
sold, and the dealer comments in the warranty claim documents.
Plaintiffs also claim that this information is “potentially
critical to the issues of notice, the pre-and post-sale duties
to warn, and recklessness.”

Simply, plaintiffs seek to

investigate how these customers used the recessed hooks, and why
the hooks broke.
After hearing oral argument on February 18, 2014, on
February 20, 2014, the Court issued a ruling granting in part
and denying in part plaintiff‟s motion to compel. [Doc. #158].
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In so ruling, the Court did not reach a choice of law issue as
the order required defendants to send a letter on behalf of
plaintiffs to the warranty claim customers. [Id.]. On May 20,
2014, the Court held a telephone conference addressing, in part,
the sufficiency of the responses received from the warranty
customer letters. [Doc. ##168-69]. Out of twenty two (22)
letters sent, plaintiffs received zero (0) telephone calls, six
(6) envelopes stamped “return to sender” and one (1) written
response. Plaintiffs accordingly have renewed their request to
directly contact the twenty-two warranty claim customers.
2.

Legal Standard
Rule 26(b)(1) of the Federal Rules of Civil Procedure sets

forth the scope and limitations of permissible discovery.
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 trial if the
discovery appears reasonably calculated to lead to the discovery
of admissible evidence. Fed. R. Civ. P. 26(b)(1).

Information

that is reasonably calculated to lead to the discovery of
admissible evidence is considered relevant for the purposes of
discovery.

See Daval Steel Prods. v. M/V Fakredine, 951 F.2d

1357, 1367 (2d Cir. 1991); Morse/Diesel, Inc. v. Fidelity &
Deposit Co., 122 F.R.D. 447, 449 (S.D.N.Y. 1988). “The party
resisting discovery bears the burden of showing why discovery
should be denied.” Cole v. Towers Perrin Forster & Crosby, 256
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F.R.D. 79, 80 (D. Conn. 2009).
3.

Discussion
Plaintiffs make several arguments in favor of granting the

motion to compel, the majority of which implicate choice of law
principles. At this stage of the proceedings, the Court declines
to make a broad finding of the law applicable to plaintiffs‟
substantive claims and again need not reach the choice of law
issue where, even assuming California law applies, the Court
finds that defendants have not met their burden to establish the
right to privacy privilege. However, in an abundance of caution,
the Court will not require defendants to provide the contact
information for those customers with California addresses.
The right to privacy is explicitly codified in California‟s
constitution. Cal. Const. art. 1, § 1; Bible v. Rio Prop., Inc.,
246 F.R.D. 614, 620 (C.D. Cal. 2007). This right to privacy
“protects the individual‟s reasonable expectation of privacy
against a serious invasion.” Puerto v. Superior Court, 158 Cal.
App. 4th 1242, 1250 (2004) (emphasis in original; citation
omitted). California courts apply the following framework for
evaluating invasion of privacy claims:
First, a claimant must possess a “legally protected
privacy interest.” Second, the claimant must have a
reasonable expectation of privacy under the particular
circumstances, including the customs, practices, and
physical settings surrounding particular activities.
Third, the invasion of privacy must be serious in
nature, scope, and actual or potential impact. Trivial
invasions do not create a cause of action. If there is
a reasonable expectation of privacy and the invasion
of privacy is serious, then the court must balance the
privacy interest at stake against other competing or
countervailing interests, which include the interest
of the requesting party, fairness to litigants in
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conducting the litigation, and the consequences of
granting or restricting access to the information.
Puerto, 158 Cal. App. 4th at 1250-51 (citations omitted). Courts
have likewise applied this framework to a discovery request for
witness contact information. Id. at 1252. Accordingly, bearing
this framework in mind, and assuming without deciding that
California law applies to the privilege issue, the Court turns
to the present dispute.
First, the warranty customers have a legitimate expectation
of privacy in their addresses and telephone numbers under
California law. See id. (quoting Planned Parenthood Golden Gate
v. Superior Court, 83 Cal. App. 4th 347, 359 (2000)). Indeed,
California “[c]ourts have frequently recognized that individuals
have a substantial interest in the privacy of their home,”
including “disclosure of residential addresses and telephone
numbers.” Planned Parenthood, 83 Cal. App. 4th at 359.
However, under the particular circumstances, the Court is
not convinced that all of the warranty customers‟ expectations
of privacy are reasonable under the circumstances, particularly
where their contact information has already been voluntarily
disclosed to defendants.
A “reasonable” expectation of privacy is an objective
entitlement founded on broadly based and widely
accepted community norms. The reasonableness of a
privacy expectation depends on the surrounding
context. We have stressed that customs, practices, and
physical settings surrounding particular activities
may create or inhibit reasonable expectations of
privacy.
County of L.A. v. L.A. County Employee Relations Com., 56 Cal.
4th 905, 927 (2013) (internal quotation marks and citation
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omitted).
Here, the warranty customers who are not California
residents had no apparent expectation of privacy when purchasing
the Jet Ski(s) or submitting their warranty claims. Indeed, all
customers, even those residing in California, voluntarily
disclosed this information to defendants. Further, although it
is reasonable to hope that contact information is not
disseminated beyond the purpose for which it is provided, it is
not reasonable in today‟s society and under these circumstances
to expect that basic information such as an address will not be
distributed further than intended, absent a direct
representation to that effect. Accordingly, although the
California residents may have a slightly reasonable expectation
of privacy in their contact information, the non-California
residents, considering the “customs, practices, and physical
settings surrounding [these] particular activities,” do not.
Moreover, “[t]he fact that we generally consider residential
telephone and address information private does not mean that the
individuals would not want it disclosed under these
circumstances.” Puerto, 158 Cal. App. 4th at 1252-53. Indeed,
“[w]hile it is unlikely that the [warranty customers]
anticipated broad dissemination of their contact information
when they gave it to [defendants], that does not mean that they
would wish it to be withheld from plaintiffs seeking relief for
[injuries resulting from a Jet Ski model] that they shared.” Id.
at 1253. Accordingly, the Court does not find that all of the
warranty customers had a reasonable expectation of privacy in
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their contact information. See, e.g., McArdle v. AT&T Mobility
LLC, No. C 09-1117CW(MEJ), 2010 WL 1532334, at *4 (N.D. Cal.
April 16, 2010) (“Here, like in Pioneer2, release of the customer
identifying information would be limited to Plaintiff and his
counsel in this case. Further, it involves disclosure of contact
information already voluntarily disclosed to Defendants. This
information will help Plaintiff learn the names of other persons
who might assist in prosecuting this case, and it involves no
revelation of personal or intimate activities, or similar
private information.”).3
Finally, the Court must consider whether the invasion of
privacy is serious in nature, scope, and actual or potential
impact. “[T]he invasion of privacy complained of must be
„serious‟ in nature, scope and actual or potential impact to
constitute an „egregious‟ breach of social norms, for trivial
invasions afford no cause of action.” McArdle, 2010 WL 1532334,
at *4 (citation omitted). “Contact information, while personal
is not particularly sensitive, as it is merely contact
information, not medical or financial details, political
affiliations, sexual relationships or personnel information.”
Foster v. ScentAir Tech., Inc., Case No. 13-cv-05772-TEH(MEJ),
2014 WL 4063160, at *4 (N.D. Cal. Aug. 15, 2014) (citation and
2

3

Pioneer Electronics (USA) v. Superior Court, 40 Cal. 4th 360 (2007).

Like the Court in McArdle, here the Court will not require that defendants
provide written notice to the warranty customers so that they can “opt out”
of the disclosure of their information. “First, Pioneer does not impose a
notice requirement. Second, notice would make no sense here, as witnesses
cannot choose to „opt out‟ of civil discovery. Generally, witnesses are not
permitted to decline to participate in civil discovery, even when the
information sought from them is personal or private.” McArdle, 2010 WL
1532334, at *4 (citations omitted).
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internal quotation marks omitted).

The Court agrees that the

information plaintiffs seeks is not “particularly sensitive” and
that disclosing this information to plaintiffs‟ counsel would
not constitute a “serious” invasion of the warranty customers‟
privacy. See, e.g., Puerto, 158 Cal. App. 4th at 1254 (“As the
Supreme Court pointed out in Pioneer, the information sought by
the petitioners here – the location of witnesses – is generally
discoverable, and it is neither unduly personal nor overly
intrusive.”).
The defendants fail to provide any evidence to suggest
otherwise. Indeed, the cases in which defendants rely in support
of their position are distinguishable from the present matter.
For example, in City of San Jose v. Superior Court, 74 Cal. App.
4th 1008 (1999),
[T]he court ruled that a newspaper could not compel a
city to disclose the names, addresses and telephone
numbers of individuals who had complained about
airport noise. The court reasoned that it could infer
from human experience that public disclosure of that
information would “have a chilling effect on the
number of the complaints made” and that it would
“subject complainants to the loss of confidentiality
in their complaints, and also to direct contact by the
media and by persons who wish to discourage
complaints.”
Planned Parenthood, 83 Cal. App. 4th at 360 (citing City of San
Jose, 74 Cal. App. 4th at 1024). The Court disagrees that
disclosure of the warranty customer contact information rises to
the same level of invasion as that presented in City of San
Jose. Indeed, there the disclosure would have been to media
versus an attorney who may not further disseminate the
information to the public at large. Moreover, complaints to a
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governmental entity regarding airport noise and a warranty claim
to a private corporation are vastly different for obvious
reasons. For example, the Court cannot fathom that an “exposed”
customer may face the same ramifications for submitting a
warranty claim as an “exposed” member of the public complaining
to the government. See, e.g., City of San Jose, 74 Cal. App. 4th
at 1020 (quoting Evans v. Dep‟t of Trans., 446 F.2d 821, 824 n.
1 (5th Cir. 1971)) (“A citizen must be able in confidence to
complain to his Government and to provide information…”).
The Planned Parenthood case, upon which defendants also
rely, is similarly distinguishable. There, the appellate court
reversed a superior court ruling ordering the disclosure of
names, residential addresses and telephone numbers of Planned
Parenthood staff and volunteers who had knowledge relevant to
the underlying litigation.4 Planned Parenthood, 83 Cal. App. 4th
at 350-51. There, the court determined that privacy interests at
issue presented strong concerns about safety and privacy
“because the litigants [] represent opposing factions in the
emotionally charged and often violent debate regarding the
abortion issue[…]” Id. at 362. As such, the appellate court
found that, “human experience distinguishes Planned Parenthood‟s
staff and volunteers from potential witnesses in „routine‟ civil
litigation. Case law from this and other jurisdictions confirms
that when the circumstances merit protection of just this type
of information, courts do not hesitate to afford it.” Id. at
4

The Planned Parenthood litigation concerned the scope of the plaintiff‟s
rights to engage in antiabortion protest activities outside Planned
Parenthood facilities. Planned Parenthood, 83 Cal. App. 4th at 350.
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364. By contrast, the present litigation is “routine” civil
litigation that does not implicate the impassioned views
associated with the abortion debate. For example, the disclosure
of the warranty customer contact information, unlike the
disclosure of Planned Parenthood‟s staff‟s contact information,
does not implicate the strong safety and privacy concerns at
issue in Planned Parenthood.
Finally, defendants rely on Bible v. Rio Properties, Inc.,
246 F.R.D. 614 (C.D. Cal. 2007). In Bible, plaintiff brought a
claim against a hotel to recover damages for injuries she
sustained from tripping over a room service tray left in a
hallway. Id. at 616. Plaintiff served defendant with a Rule
30(b)(6) deposition notice seeking documents relating to
customer complaints involving falling or tripping over a room
service tray. Id. at 616. Defendant objected to producing
responsive documents that invaded third parties‟ right to
privacy. Id. at 620. Without specifically evaluating the
invasion of privacy claim, the court found that, “the rights of
third parties can be adequately protected by permitting
defendant to redact the guest‟s complaints and staff incident
reports to protect the guest‟s name and personal information,
such as address, date of birth, telephone number, and the like.”
Id.
Although Bible is somewhat analogous to the present case,
the Court agrees with plaintiff‟s analysis that, because the
claim information produced would have provided the substantive
information sought (i.e., how other similar incidents occurred
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and the nature of any injuries sustained), plaintiff there
presented no need to produce the guests‟ contact information.
Here by contrast, the redacted documents already produced to
plaintiffs do not offer the substantive information sought. Only
by contacting the warranty customers could plaintiffs obtain
such information. Although defendants argue that plaintiffs
cannot demonstrate that any warranty customer‟s claims involved
the same circumstances, defendants have put this matter directly
at issue and plaintiffs are not obligated to rely on their word.
See, e.g., Synthleabo v. Apotex, Inc., 299 F. Supp. 2d 303, 30809 (S.D.N.Y. 2004) (finding it unfair for complainant to assert
contentions to the court and then to rely on privilege to block
disclosure of materials that might disprove or undermine those
contentions).
Therefore, because defendants have failed to meet the
criteria for invasion of a privacy interest, the Court need not
balance the privacy interest at stake against other competing or
countervailing interests. Although defendants have generally not
met their burden, in an abundance of caution, the Court will not
require defendants to provide the contact information for the
warranty customers with California addresses. Defendants will,
however, provide the non-California warranty customer contact
information including names, addresses and telephone numbers,
within ten (10) days of this ruling. Plaintiffs‟ counsel will
not further disseminate the contact information received.

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4.

Conclusion
Accordingly, plaintiffs‟ renewed motion to compel [Doc.

#142] is GRANTED in part, as set forth above. Defendants will
provide the non-California warranty customer contact information
within ten (10) days of this ruling.
This is not a Recommended Ruling. This is a discovery
ruling or order which is reviewable pursuant to the “clearly
erroneous” statutory standard of review. 28 U.S.C. §
636(b)(1)(A); Fed. R. Civ. P. 72(a); and D. Conn. L. Civ. R.
72.2. As such, it is an order of the Court unless reversed or
modified by the district judge upon motion timely made.

SO ORDERED at Bridgeport this 22nd day of October 2014.

_____/s/__________________
HOLLY B. FITZSIMMONS
UNITED STATES MAGISTRATE JUDGE

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