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

Filing 206

RULING granting 198 Motion to Compel Production of a Supplemental Affidavit. See attached ruling for details. Signed by Judge Holly B. Fitzsimmons on 11/5/2014. (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 DEFENDANTS‟ MOTION TO COMPEL PRODUCTION OF
A SUPPLEMENTAL AFFIDAVIT, OR ALTERNATIVELY,
REQUEST FOR DEPOSITION OF PLAINTIFFS‟ COUNSEL [DOC. #198]
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 defendants‟
motion to compel production of a supplemental affidavit, or
alternatively, request for deposition of plaintiffs‟ counsel.
[Doc. #198].

On October 30, 2014, the Court held a telephone

conference addressing the merits of defendants‟ motion and
providing counsel an opportunity to be heard.

For the reasons

articulated below, defendants‟ motion to compel [Doc. #198] is
GRANTED.
On June 13, 2014, plaintiffs‟ counsel, Brendan Faulkner,
advised defendants that, “the tube and rope [involved in the
accident] are presently missing and I doubt they will be
located.” [Doc. #198-2]. Attorney Faulkner then provided a brief
description of what he believed happened to the evidence. The

Court held a telephone conference on July 2, 2014, where
defendants raised the issue of the missing tube and rope. The
Court ordered that Attorney Faulkner provide an affidavit
attesting to the status of the rope and tube. [Doc. #179].
Attorney Faulkner provided the affidavit on August 8, 2014.
[Doc. #198-1]. Defendants, not satisfied with the information
provided in this affidavit, sent a letter to Attorney Faulkner
dated August 13, 2014, seeking additional information bearing on
the disappearance of the rope and tube (“August 13 letter”). The
present motion to compel followed after Attorney Faulkner failed
to substantively respond to the August 13 letter.
On October 17, 2014, Attorney Faulkner did respond to the
August 13 letter, stating that he had already provided
sufficient information regarding what he believed happened to
the rope and tube. He further stated,
The significance of the missing tube and rope to this
litigation is very low under the circumstances. First,
the tube and the rope were well documented and
photographed prior to being lost, including by
[defendants‟] own experts. Second, it is apparent that
Kawasaki obtained replicas of both the tube and the
rope in order to conduct the testing it hired its
expert to perform.
Notwithstanding this position, Attorney Faulkner then provided
additional information in an attempt to answer defendants‟
questions. He further cautioned that he could not provide the
level of detail defendants seek.
During the October 30, 2014 telephone conference,
defendants argued that Attorney Faulkner‟s October 17 letter did
not resolve the issues presented in the motion to compel.
2

Defendants also argued that they need the information requested
in the August 13 letter for purposes of seeking an adverse
inference instruction in light of the apparent spoliation of the
rope and tube. Plaintiffs reiterated the position taken in the
October 17 letter.
A party seeking an adverse inference instruction based on
the destruction of evidence must establish,
(1) that the party having control over the evidence
had an obligation to preserve it at the time it was
destroyed; (2) that the [evidence was] destroyed „with
a culpable state of mind‟; and (3) that the destroyed
evidence was „relevant‟ to the party‟s claim or
defense such that a reasonable trier of fact could
find that it would support that claim or defense.
Residential Funding Corp. v. DeGeorge Financial Corp., 306 F.3d
99, 107 (2d Cir. 2002) (citing Byrnie v. Town of Cromwell, 243
F.3d 93, 107-12 (2d Cir. 2001)).

A party may establish the

“culpable state of mind” factor “by a showing that the evidence
was destroyed knowingly, even if without intent to breach a duty
to preserve it, or negligently.” Id. at 108 (emphasis and
brackets altered; citation omitted). As to the relevance factor,
[A] showing of gross negligence in the destruction []
of evidence will in some circumstances suffice,
standing along to support a finding that the evidence
was unfavorable to the grossly negligent party.
Accordingly, where a party seeking an adverse
inference adduces evidence that its opponent destroyed
potential evidence (or otherwise rendered it
unavailable) in bad faith or through gross negligence
(satisfying the “culpable state of mind” factor), that
same evidence of the opponent‟s state of mind will
frequently also be sufficient to permit a jury to
conclude that the missing evidence is favorable to the
party (satisfying the “relevance” factor).

3

Id. at 109 (internal citation omitted); see also R.F.M.A.S.,
Inc. v. So, 271 F.R.D. 13, 23 (S.D.N.Y. 2010) (citation omitted)
(discussing same standard in copyright and trade infringement
action involving destruction of jewelry exemplar).
The questions posed in the August 13 letter directly bear
on whether Attorney Faulkner‟s conduct was “grossly negligent,”
which will become pertinent to deciding defendants‟ anticipated
application for an adverse inference. Therefore, the Court
GRANTS defendants‟ motion to compel [Doc. #198]. Attorney
Faulkner will answer the questions posed in the August 13 letter
in a sworn affidavit to the best of his ability. If he cannot
answer a question, he should so state. He will also include the
last known contact information (email, telephone, address) for
Mr. Barney and Dr. deMayo. Attorney Faulkner will provide this
affidavit to defendants within fourteen (14) 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 5th day of November 2014.

______/s/_________________
HOLLY B. FITZSIMMONS
UNITED STATES MAGISTRATE JUDGE
4