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

Filing 208

RULING granting in part and denying in part 173 Motion to Compel re: Multiple Sets of Objections and Responses to Plaintiffs' Written Discovery Requests. See attached ruling for details. Signed by Judge Holly B. Fitzsimmons on 12/16/2014. (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’ OMNIBUS MOTION TO COMPEL RE:
MULTIPLE SETS OF OBJECTIONS AND RESPONSES TO
PLAINTIFFS’ WRITTEN DISCOVERY REQUESTS [Doc. #173]
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‟
motion to compel regarding multiple sets of objections and
responses to plaintiffs‟ written discovery requests. [Doc.
#173]. Defendants oppose plaintiffs‟ motion [Doc. #177], to
which plaintiffs replied [Doc. #185].

Upon careful

consideration, plaintiffs‟ motion to compel is GRANTED in part
and DENIED in part, as set forth below.1

1

Defendants initially requested that the Court hold oral argument on this
motion, but later reported that oral argument was not necessary. Therefore,
the Court relies on the parties‟ written submissions.

I.

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

hook”2 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
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, inter alia, that the subject Jet Ski was
defectively designed by using the recessed hook. Over the course
of litigation, the parties have engaged in extensive fact
discovery.
II.

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
2

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.”
2

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
F.R.D. 79, 80 (D. Conn. 2009).
III. Other Applicable Law
A. Verification of Responses to Document Requests
As an initial matter, as to certain document requests,
plaintiffs‟ motion seeks an order compelling defendants to
verify either that all documents have been produced after a
diligent search, or alternatively, that despite a diligent
search, no responsive documents were found. Defendants generally
take exception to this, arguing that production of documents
under Rule 34 does not require verification in the same manner
as interrogatory responses. [Doc. #177, 24-25]. While this is
generally true when responsive documents are produced, “when a
response to a production for documents is not a production or an
objection, but an answer, the party must answer under oath.”
Vazquez-Fernandez v. Cambridge College, Inc., 269 F.R.D. 150,
154 (D. P.R. 2010). Indeed, this Court has previously held that
“a response that all documents have been produced does require
attestation.” Napolitano v. Synthes USA, LLC, 297 F.R.D. 194,
200 (D. Conn 2014) (emphasis in original; citation omitted).
Other district courts have also required attestation when a
party claims that the requested documents have already been
3

produced. See, e.g., Colon v. Blades, 268 F.R.D. 129, 132-33 (D.
P.R. 2010) (citation omitted) (“When a party claims that the
required documents have already been produced, it must indicate
that fact under oath in response to the request. Nevertheless,
if the party fails to make a clear and specific statement of
such compliance under oath, the court may order it to produce
documents.”); Rayman v. Am. Charter Fed. Savings & Loan Ass‟n,
148 F.R.D. 647, 651 (D. Neb. 1993) (“The [Advisory Committee]
comment to [Rule 34] indicates that in such a situation [where
the defendant responded by stating that the documents had been
produced], the proper procedure for making the response is
mandated by Rule 33, which requires responses by the party under
oath.”). Accordingly, to the extent that defendants have
provided an “answer” to a request for production, or otherwise
represented that there are no documents responsive to a request,
the Court will require defendants to provide a sworn statement
so indicating.
B. Production of KHI Documents, Generally
Earlier in this litigation, plaintiffs moved to compel
defendants to produce documents in the possession of defendants‟
Japanese parent company, Kawasaki Heavy Industries, Limited
(“KHI”), a non-party to this action. [Doc. #65]. By order dated
July 31, 2012, the Court denied plaintiffs‟ motion in light of
their failure to submit any facts or evidence establishing
defendants‟ control over the documents in KHI‟s possession.
[Doc. #89]. Plaintiffs now renew their argument that defendants
“control” or otherwise have the ability to obtain basic
4

information and documents from KHI and seek to compel the
production of this information. Defendants argue that plaintiffs
have again failed to carry their burden of proof that defendants
have “control” over the KHI documents plaintiffs seek.
As this Court previously noted, “In determining whether a
corporation within the United States can be compelled to produce
documents held by a foreign affiliate, this Court must first
consider the nature of the relationship between the corporation
and its affiliate.”

Hunter Douglas, Inc. v. Comfortex Corp.,

No. CIV. A. M8-85(WHP), 1999 WL 14007, at *3 (S.D.N.Y. Jan. 11,
1999) (citations omitted). “If the nature of the relationship
between the parent and its affiliate is such that the affiliate
can obtain documents from its foreign parent to assist itself in
litigation, it must produce them for discovery purposes. The
critical inquiry is whether the affiliate can exercise custody
and control over the documents.” Id.; see also Pitney Bowes,
Inc. v. Kern Int'l, Inc., 239 F.R.D. 62, 66 (D. Conn. 2006)
(citations and internal quotations omitted)(“While the
particular form of the corporate relationship does not govern
whether a party controls documents, the nature of the
transactional relationship between the subsidiary and parent… is
pivotal.”).

Moreover, the initial burden of proving the

opposing party‟s control rests with the requesting party. See
Honda Lease Trust v. Middlesex Mut. Assur. Co., No.
3:05CV1426(RNC), 2008 WL 3285242, at *2 (D. Conn. Aug. 7, 2008)
(citing Pitney Bowes, 239 F.R.D. at 66).
In this Circuit, “courts go beyond defining „control‟ as
5

the legal right of the [requested] party to obtain the documents
and include an inquiry into the practical ability of the
[requested] party to obtain these documents.” Pitney Bowes, 239
F.R.D. at 66 (quoting Power Integrations, Inc. v. Fairchild
Semiconductor Int‟l, Inc., 233 F.R.D. 143, 145 (D. Del. 2005))
(emphasis and brackets in original). “[W]here the litigating
corporation is the subsidiary and the parent corporation is in
possession of the requested documents, courts have found control
to exist on the following alternate grounds:
1) the alter ego doctrine which warrant[s] „piercing the
corporate veil‟;
2) the subsidiary was an agent of the parent in the
transaction giving rise to the lawsuit;
3) the relationship is such that agent-subsidiary can secure
documents of the principal-parent to meet its own
business needs and documents helpful for use in
litigation;
4) there is access to documents when the need arises in the
ordinary course of business; and
5) the subsidiary was marketer and servicer of the parent‟s
products… in the United States.”
Pitney Bowes, 239 F.R.D. at 66-67 (citing Camden Iron & Metal,
Inc. v. Maurbeni Am. Corp., 138 F.R.D. 438, 441-42 (D. N.J.
1991)). “Moreover, courts consider the degree of ownership and
control exercised by the parent over the subsidiary, a showing
that the two entities operated as one, demonstrated access to
documents in the ordinary course of business, and an agency
relationship.” Pitney Bowes, 239 F.R.D. at 67 (citing Camden
Iron, 138 F.R.D. at 442). Finally, and pertinent to the
discussion below, “there must be a nexus between the [documents
6

sought] and the party‟s relationship with its parent companies,
taking into account, amount other things, the party‟s business
responsibilities.” Pitney Bowes, 239 F.R.D. at 67 (quoting
United States Int‟l Trade Comm. V. ASAT, Inc., 411 F.3d 245, 255
(D. D.C. 2005)).
Based on the Court‟s careful review of deposition testimony
submitted by the parties, it appears that defendants at least
have access to some documents when the need arises in the
ordinary course of business. Accordingly, in general, it would
appear that defendants have control of certain documents in
KHI‟s possession. However, the Court‟s inquiry does not end
there. Whether the Court orders production of documents in KHI‟s
possession by defendants will largely turn on whether there is a
nexus between the documents sought and the defendants‟
relationship with KHI, including the defendants‟ business
responsibilities. Bearing this framework in mind, the Court now
turns to plaintiffs‟ specific requests.
IV.

Discussion – Specific Requests
A. First Set of Interrogatories and Requests for Production
to KMC
Plaintiffs first take issue with certain KMC responses to

plaintiffs‟ first set of interrogatories and requests for
production.


Interrogatory No. 12 of 1st Set of Ints. to KMC
Interrogatory No. 12 asks KMC to, “Identify every test on,

or involving the „recessed hooks‟ of any model or model year Jet
Ski or other personal watercraft performed by you, any other
Kawasaki entity, or any third party of which you are aware,
7

including but not limited to, testing at the design,
manufacturing or marketing level.” [Doc. #174, 20-21]. The
interrogatory then requests more specific information for each
test, including the date, location, purpose, and results of the
testing. KMC objected to this interrogatory as vague and
ambiguous with respect to what is meant by “testing at
the…marketing level,” and answered subject to this objection
that, “KMC is not the designer and does not generally perform
design-type testing. KMC does not possess information regarding
testing on recessed hooks on the subject Jet Ski personal
watercraft.” [Id. at 21].
Plaintiffs take issue with this response for several
reasons. First, plaintiffs submit that they requested KMC to
admit it did not perform any testing of the recessed hooks,
which KMC denied, but admitted to performing endurance testing
of the entire Jet Ski, which did not involve the recessed hooks.
Next, plaintiffs take issue with the boilerplate objections.
Finally, plaintiffs argue that, “[t]he interrogatory asks for
identification of every test involving the „recessed hooks‟
performed by any Kawasaki entity and any third party.” [Doc.
#174, 21]. Plaintiffs moreover point to deposition testimony
that KMM manufactured the Jet Ski based on KHI‟s testing. [Id.
at 22].
The Court SUSTAINS in part KMC‟s objection. There is
nothing before the Court to suggest that KMC has access to
testing conducted at the design or manufacturing level, nor is
there a reasonable nexus between this information sought and
8

KMC‟s relationship as distributor for KHI. See Doc. #174-6,
Russell Brenan Depo. Tr., Dec. 11, 2013, 196:12-19 (“Q: To your
knowledge did KMC have any role whatsoever in any testing that
was done on these particular recessed hooks? A: No. And again,
we only – the only type of testing we may do in terms of
watercraft would be endurance-type testing. So that is a KHI
function. That is a question you would have to ask them. It
would not involve KMC.”). This stands in contrast, however, to
KMM which manufactured the Jet Ski based on KHI‟s testing.
However, this request is not directed to KMM. Nevertheless, the
Court will require KMC to provide an amended response to this
interrogatory identifying any “endurance testing” KMC has
conducted on any model Jet Ski from 2000 through 2008.


Interrogatory No. 13 of 1st Set of Ints. to KMC
Interrogatory No. 13 asks KMC to identify the source and

date of various strength and safety specifications of the
recessed hook. [Doc. #174, 22]. KMC objected to this
interrogatory because it is “vague and ambiguous” and answered,
“Subject to and without waiving said objections, KMC is not the
designer and does not generally perform design-type testing.
That would be the responsibility of the designer. Nor does KMC
test and obtain the kind of detailed design-type specifications
of the type being sought in this interrogatory.” [Id. at 22-23].
Plaintiffs take issue with this response for several reasons,
including that KMC‟s boilerplate objections are improper and its
answer is non-responsive as the rules of civil procedure require
the production of information within a party‟s control.
9

The Court SUSTAINS KMC‟s objections, in light of its answer
provided under oath that it does not “test and obtain the kind
of detailed design-type specifications of the type being sought
in this interrogatory.” See also Doc. #174-6, Russell Brenan
Depo. Tr., Dec. 11, 2013, 195:17-23, supra. Indeed, this
interrogatory would be better directed to KMM which admittedly
manufactured the subject Jet Ski based on KHI‟s testing, and
presumably to KHI‟s design specifications.


Interrogatory No. 16 of 1st Set of Ints. to KMC
Interrogatory No. 16 asks KMC to “identify whether any

Kawasaki entities performed a hazard analysis or safety analysis
or an equivalent assessment of the product to determine what
hazards exist or can be produced by the presence of „recessed
hooks‟ on the product by the use or potential misuse of the
product.” [Doc. #174, 23-24]. The interrogatory then requests
more detailed information for any such analysis performed. KMC
objected on the grounds that “hazard analysis or safety analysis
or an equivalent assessment” are vague and ambiguous and that
“hazard analysis” is a term subject to different
interpretations. Notwithstanding this objection, KMC answered
that it “is not the designer nor is it the manufacturer of the
product involved in this case. Accordingly, KMC does not
generally perform design-type functions, such as the ones that
are presumably being identified here.” [Id. at 24].
Plaintiffs take issue with this response for several
reasons, including the use of improper boilerplate objections
and general non-responsiveness. The Court SUSTAINS KMC‟s
10

objections because there is nothing before the Court to suggest
that KMC has access to these sorts of analyses, nor is there a
reasonable nexus between this information sought and KMC‟s
relationship as distributor for KHI.


Interrogatory Nos. 25 and 26 of 1st Set of Ints. to KMC
Interrogatory No. 25 asks KMC to “State whether the

„recessed hook‟ was required to meet any internal safety
standards or specifications established by any Kawasaki entity
or any industry standards or specifications. If so, state the
standard or specification as of the date of the accident that is
the subject of this lawsuit.” [Doc. #174, 25]. KMC did not
object, but responded that it, “is not the designer nor is it
the manufacturer of the product involved in this case.
Accordingly, it does not generally perform design-type
functions, like equipment standards or specifications that would
cover the „recessed hooks.‟” [Id.]. Plaintiff contends that
KMC‟s answer is argumentative and non-responsive.
Similarly, Interrogatory No. 26 asks KMC to “State whether
the „recessed hook‟ was required to meet any government
standards, specifications, regulations or statutes. If so, state
the standard on the date of the accident that is the subject of
this lawsuit and how it was met.” [Doc. #174, 25]. KMC objected
on the grounds that this interrogatory is “vague, ambiguous and
overbroad as it is not limited to government standards,
specifications, regulations or statutes regarding any particular
subject, such as pertaining to Plaintiffs‟ allegations of defect
herein.” [Id.]. Subject to this objection, KMC answered that is
11

“is not the designer of the product involved in this case.
Accordingly, it does not generally perform design-type
functions. See also response to Interrogatory No. 18.” [Id.].
Plaintiffs respond that this interrogatory is clear and only
seeks the standards applying to the recessed hooks.
The Court will require KMC to answer these interrogatories
(as clarified by plaintiffs in their memorandum of law), in
light of Mr. Brenan‟s deposition testimony that KHI provides KMC
with information concerning product specifications and features,
see Doc. #174-6, Russel Brenan Depo Tr. April 30, 2014, 274:1225, supra, and that KMC advises KHI as to certain industry
standards and regulations, see id. at 281:5-13 (“Q: How do you
communicate the regulatory updates to KHI? A: The primary method
that I use to update them on regulatory issues is email. I will
send an email to a designated person within the certification
group, which is a group that I primarily have day-to-day
interaction with.”); id. at 281:20-282:8 (“Q: And do you ever
have to acquire information from the KHI certification group? A:
Yes. Q: And how do you do that? A: Normally I would ask for that
through an email. Q: And what historically has the KHI response
been to those requests, historically? A: Historically, the
majority of the time they‟re able to provide me with the
information that I need. But normally it is very basic
information… I will ask them for information on certain testing
that they may do and how it‟s done.”); id. at 290:2-13 (“Q: Does
KMC keep KHI apprised of developments in NMMA requirements? A:
Yes. Q: Why? A: NMMA is a group that we belong to, and we
12

utilize some of their standards…”).


Interrogatory No. 28 of 1st Set of Ints. to KMC
Interrogatory No. 28 asks KMC to “state whether the 2009,

2010 or 2011 STX-15F Jet Skis have „recessed hooks.‟” [Doc.
#174, 26]. This interrogatory then seeks additional information
if the response is “in the negative”, including the reasons the
hooks were removed, and whether the decision for removal was
made at the manufacture or design level. KMC responded,
Objection as this interrogatory seeks information
concerning model Jet Ski not involved in this case. Subject
to and without waiving that objection, 2009-2011 STX-15F
JetSki PWC do not have recessed hooks. Regarding
subparagraph (t), KMC did not manufacture 2009 STX-I SF
JetSki PWC, but refers Plaintiffs to KMM‟s response to this
same interrogatory. Regarding subparagraphs a-e and g-h,
KMC is not the designer nor is it the manufacturer of the
product involved in this case. Accordingly, it does not
generally perform design-type functions, such as decisions
whether to include components.

[Id. at 27].
The Court will not require KMC to answer this
interrogatory. Plaintiffs have had the opportunity to depose
KHI‟s corporate representative and ask the questions to which
answers are sought.


Interrogatory Nos. 46 and 47 of 1st Set of Ints. to KMC
Interrogatory No. 46 asks KMC to, “State whether you or

your attorney or agents have any knowledge of any incidents or
injuries or damage to property that occurred during operation of
a Kawasaki Jet Ski or any similar personal watercraft as a
result of failure to store or adequately secure a tow line or
other rope.” [Doc. #174, 28]. Interrogatory No. 47 asks KMC to
“State whether you or your attorney or agents have any knowledge
13

of any incidents or injuries or damage to property that occurred
on a Kawasaki Jet Ski or any similar personal watercraft as a
result of the towing or transporting of any recreational device,
manned or unmanned, from a hook, device, or fixture on the PWC.”
[Id. at 28]. Both interrogatories then seek additional
information in subpart questions. KMC responded to both of these
interrogatories as follows:
KMC objects [] on the basis that it is overbroad and seeks
information neither relevant nor reasonably calculated to
lead to the discovery of admissible evidence to the extent
it seeks information regarding incidents not substantially
similar to the incident Plaintiffs have alleged in the
present case or involving the model craft at issue. This
discovery also infringes upon the attorney/client and
attorney/work product privilege. Subject to and without
waiving that objection, KMC is not aware of any
substantially similar incident for any substantially
similar product, nor has it ever been sued for such type
injuries occurring in such situations. So, essentially, the
answer to this question is “no.”

[Doc. #174, 29-30]. Plaintiffs contend that these
interrogatories are “reasonably calculated to lead to the
discovery of admissible evidence in that negligence and punitive
damages are among the claims plaintiffs are pursuing under the
Connecticut Products Liability Act.” [Id.]. Plaintiffs also
argue that KMC‟s attempt to “re-write” the interrogatory is
improper. KMC stands on its objection that these interrogatories
are irrelevant and not reasonably calculated to lead to the
discovery of admissible evidence. KMC further argues that
plaintiffs have the burden of establishing the substantial
similarity predicate before they are entitled to evidence of
other claims or accidents.
Despite KMC‟s arguments to the contrary, “Unlike at trial,
where evidence of similar accidents is admissible only if those
14

accidents are shown to be „substantially similar,‟ a court may
allow discovery of similar accidents provided that the
„circumstances surrounding the other accidents are similar
enough that discovery concerning those incidents is relevant to
the circumstances of the instant case.” Cohalan v. Genie
Industries, 276 F.R.D. 161, 166 (S.D.N.Y. 2011) (multiple
citations omitted).
As an initial matter, the Court agrees that these
interrogatories are overly broad on their face as they are not
limited in temporal scope. However, because at the discovery
stage, plaintiffs need not lay the same foundation concerning
“substantial similarity” as would be necessary to support
admission into evidence, the Court need only find that the
circumstances surrounding the other accidents are similar enough
that discovery concerning those incidents is relevant to the
circumstances of the instant case. Here, only interrogatory no.
47, in its current form, meets this criteria. Interrogatory no.
46 as drafted is overly broad in scope as it does not implicate
a “recessed hook,” which is the focal point of this litigation.
Accordingly, the Court will not require KMC to answer
Interrogatory No. 46, but will require it to answer No. 47 for
the time period of 2000 to 2010. See, e.g., id. (emphasis in
original) (where accident at issue involved particular personnel
lift that tipped over while being pushed when a wheel fell off,
the Court noted that, “Notwithstanding the defendant‟s
contention that only accidents involving tip-over caused by a
broken wheel are sufficiently similar under this standard, all
15

accidents involving both [similar models] of personnel lift in
which the lift tipped over or a wheel broke are sufficiently
similar to shed light on the dangerousness of the product at
issue and the feasibility of alternative designs.”).


RFP No. 12 of 1st Set of Production Requests to KMC
RFP No. 12 seeks, “All documents regarding any warnings,

instructions, restrictions, or other limitations related to the
hazards of tow line or rope or safe handling or storage issues
provided by you or any Kawasaki entity to the consumer for any
year or model Jet Ski.” [Doc. #174, 31]. KMC responded,
KMC objects to Request No. 12 on the basis that it is vague
and ambiguous with regard to what is meant by “safe
handling or storage issues.” KMC further objects to Request
No. 12 on the basis that it is overbroad, unduly
burdensome, and seeks documents neither relevant nor
reasonably calculated to lead to the discovery of
admissible evidence in requesting all such documents
regarding any year or model JetSki personal watercraft,
ever. Further the phrase “tow line or rope or safe handling
or storage issues” is unduly vague. Subject to and without
waiving said objections, please refer to KMC‟s prior
interrogatory responses. KMC refuses to answer for “any
Kawasaki entity” in that such request is beyond the scope
of permissible discovery. KMC is only obligated to respond
for itself. Any information regarding this product and its
uses is contained in the materials mentioned in the
Interrogatory responses and Request for Production response
No. 5. Generally speaking, vehicle manufacturers do not
instruct operators how to pack their cars, or motorcycles,
or snowmobiles, or otherwise how to transport things. Such
issues are typically left to the ordinary consumer to
determine based upon whatever it is that they wish to
transport. See response to Request 11 above.

[Doc. #174, 31]. Plaintiffs take issue with this response for
reasons similar to those previously stated.
The Court agrees that on its face, this request is
overbroad in both substantive and temporal scope as it seeks
information for all Jet Skis ever made and additionally requests
information provided by “any Kawasaki entity.” On the current
16

record, the Court will not compel KMC to produce documents in
response to this request as drafted.


RFP No. 23 of 1st Set of Production Requests to KMC
RFP No. 23 seeks “All documents related to any testing on,

or involving, the „recessed hooks‟ of any model or model year
Jet Ski or other personal watercraft as identified in your
response to Interrogatory No. 12.” [Doc. #174, 32]. KMC
responded that it, “has no documents responsive to this request.
See KMC‟s response and objections to Interrogatory No. 12.”
[Id.]. For reasons already stated, KMC will produce documents
responsive to this request consistent with the Court‟s
directives concerning KMC‟s answer to Interrogatory No. 12. To
the extent that KMC, after a diligent search, does not have any
documents responsive to this request, it shall so state in a
sworn verification.


RFP No. 24 of 1st Set of Production Requests to KMC
RFP No. 24 seeks, “All documents upon which you rely as the

basis for your response to Interrogatory No. 13.” [Doc. #174,
33]. KMC responded that it, “has no documents responsive to this
request.” [Id.]. For reasons already stated with respect to
Interrogatory No. 13, the Court will not compel KMC to produce
documents responsive to this request. To the extent that it has
no responsive documents, then KMC should so state in a verified
response.


RFP No. 25 of 1st Set of Production Requests to KMC
RFP No. 25 seeks, “All documents related to any hazard
17

analysis or safety analysis or equivalent assessments of the
product upon which the design, development, design modifications
or manufacture of this product relied as identified in your
response to Interrogatory No. 16.” [Doc. #174, 33]. KMC
responded that it, “has no documents responsive to this request.
See KMC‟s answer and objection to the corresponding
interrogatory.” [Id.]. For reasons already stated with respect
to Interrogatory No. 16, the Court will not require KMC to
produce documents responsive to this request. To the extent that
it has no responsive documents, then KMC should so state in a
verified response.


RFP No. 33 of 1st Set of Production Requests to KMC
RFP No. 33 seeks, “Any and all standards, regulations,

statutes or specifications applicable to the „recessed hooks‟ of
any kind as identified in your response to Interrogatory No. 25
or 26.” [Doc. #174, 34]. KMC responded, “See response and
objections to Interrogatory Nos. 25 or 26.” [Id.]. For reasons
already stated, KMC will produce documents responsive to this
request consistent with the Court‟s directives concerning KMC‟s
answers to Interrogatory Nos. 25 and 26. The Court will also
require KMC to inquire of KHI to determine whether it has any
documents related to this request for reasons already stated.


RFP No. 34 of 1st Set of Production Requests to KMC
RFP No. 34 seeks, “All documents related to any decision to

eliminate the „recessed hooks‟ from the 2009, 2010, or 2011 STX15F Jet Skis including but not limited to the documents
identified in your response to Interrogatory No. 28.” [Doc.
18

#174, 34]. KMC responded, “See response and objection to
Interrogatory No. 28.” [Id.]. The Court will not require KMC to
produce documents responsive to this request for the same
reasons articulated above as to Interrogatory No. 28.


RFP No. 52 of 1st Set of Production Requests to KMC
RFP No. 52 seeks, “All documents related to your knowledge

of any incidents or injuries or damage to property that occurred
on a Kawasaki Jet Ski or any similar personal watercraft as a
result of the failure to store or adequately secure a tow line
or other rope including, but not limited to any complaints or
notifications made to you or any Kawasaki entity as identified
in your response to Interrogatory No. 46.” [Doc. #174, 35]. KMC
responded, “See Response to Request No. 50.” [Id.]. KMC‟s
response to Request No. 50 incorporated its objections and
response to Interrogatories 44-48. The Court will not require
KMC to produce documents responsive to this request for the same
reasons articulated above as to Interrogatory No. 46.


RFP No. 53 of 1st Set of Production Requests to KMC
RFP No. 53 seeks, “All documents related to your knowledge

of any incidents or injuries or damage to property that occurred
on a Kawasaki Jet Ski or any similar personal watercraft as a
result of the towing or transporting of any recreational device,
manned or unmanned, from a hook, device or fixture on the
personal watercraft including, but not limited to any complaints
or notifications made to you or any Kawasaki entity as
identified in your response to Interrogatory No. 47.” [Doc.
#174, 35]. KMC responded, “See Response to Request No. 50.”
19

[Id.]. For reasons already stated, KMC will produce documents
responsive to this request consistent with the Court‟s
directives concerning KMC‟s answers to Interrogatory No. 47. The
Court will also require KMC to inquire of KHI to determine
whether it has any documents related to this request for reasons
already stated. To the extent that any documents are withheld on
the basis of attorney-client privilege or work product doctrine,
KMC will produce a privilege log in compliance with the local
and federal rules of civil procedure.
B. Second Set of Interrogatories and Requests for Production
Plaintiffs also take issue with the responses to five
interrogatories in the second set of interrogatories and two
interrogatories in the fourth set of interrogatories.


Interrogatory No. 1 of 2nd Set of Ints. to KMC
The first interrogatory asks KMC to identify the

“worldwide” sales of three models of jet skis for various years
ranging between 2000 and 2008. KMC objected and stated
“„Worldwide‟ sales is not defined. Basically, KMC is the
wholesale distributor for the United States (although it does
distribute to a few other minor locations, like portions of the
Caribbean) and does not have records regarding PWC sales
„worldwide.‟” [Doc. #174, 37]. The Court OVERRULES KMC‟s
objection and will require KMC to provide the sales information
for both the United States and the Western Hemisphere, where it
was established at the July 15, 2013 hearing that KMC sells Jet
Skis in the Western Hemisphere. See Section IVD, infra.

20



Interrogatory No. 7 of the 4th Set of Ints. to KMC
Plaintiffs take issue with the answer provided to

Interrogatory No. 7 of the fourth set of interrogatories, which
asks KMC to identify all efforts made to determine the worldwide
sales of the Jet Skis listed in Interrogatory No. 1 above. KMC
answered that it, “does not have access to worldwide sales
information. Such information is not within its control and no
further efforts are required. KMC objects to responding further.
This also exceeds the allowable number of Interrogatories.”
[Doc. #174, 38]. The Court will not order KMC to answer this
interrogatory in light of its ruling on Interrogatory No. 1
above.


Interrogatory No. 8 of the 4th Set of Ints. to KMC
Plaintiffs next take issue with KMC‟s answer to

Interrogatory No. 8 of the fourth set of interrogatories, which
inquires, “Is it KMC‟s contention that it cannot find out what
the worldwide sales of those Jet Skis were?” [Doc. #174, 38].
KMC answered that, “Reading the complaint and the answer does
not reveal any „contention‟ in this case on this topic. This is
a discovery matter. To the extent that KMC has a „position‟, on
this matter, it would be set forth in the briefs that have
already been filed in this case…” [Id.]. The Court will not
compel KMC to answer this interrogatory for reasons already
stated.


Interrogatory No. 2 of 2nd Set of Ints. to KMC
Plaintiffs seek to compel KMC‟s answer to Interrogatory No.
21

2 of the second set of interrogatories, which asks KMC to
“identify the worldwide sales of the „recessed hooks‟ (or „cargo
hooks‟) that are the subject of this litigation as replacement
parts for each year from 2000 through 2012.” [Doc. #174, 39].
KMC answered, “See response to #1. KMC does not distribute
replacement parts „worldwide‟ and, therefore, cannot respond.”
[Id.]. The Court will require KMC to provide an answer to this
interrogatory which identifies the U.S. and Western Hemisphere
sales of the recessed hooks that are the subject of this
litigation as replacement parts for each year from 2000 through
2008. This is consistent with the Court‟s general direction at
the July 15, 2013 hearing. See Section IVD, infra.


Interrogatory No. 4 of 2nd Set of Ints. to KMC
Plaintiffs next seek to compel KMC‟s answer to the fourth

interrogatory, which asks KMC to “identify the worldwide sales
of the cargo net for every year from 2000 through 2012.” [Doc.
#174, 40]. KMC answered, “See response to #1. KMC does not sell
products „worldwide.‟ Accordingly, this defendant cannot
answer.” [Id.]. The Court will require KMC to provide an answer
to this interrogatory which identifies the U.S. and Western
Hemisphere sales of the cargo net for each year from 2000
through 2008. This is consistent with the Court‟s general
direction at the July 15, 2013 hearing. See Section IVD, infra.


Interrogatory No. 6 of 2nd Set of Ints. to KMC
Plaintiffs next seek to compel KMC‟s answer to the sixth

interrogatory, which asks KMC to “identify the worldwide sales
of the Predecessor Cargo Hook as replacement parts for each year
22

in which it was available.” [Doc. #174, 41]. KMC answered, “See
response to #1. KMC does not sell products „worldwide‟ and,
therefore, cannot answer this question.” [Id.]. The Court will
not require KMC to answer this interrogatory in light of its
ruling on plaintiffs‟ interrogatory no. 1 of the fourth set of
interrogatories to KMC. See Section IVD, infra.


Interrogatory No. 8 of 2nd Set of Ints. to KMC
Plaintiffs also seek to compel KMC‟s answer to the eighth

interrogatory, which requests KMC to “Identify all documents
that set forth the division of responsibilities between KMC,
KMM[], and KHI including but not limited to the design,
manufacture, and distribution/marketing of the 2008 STX-15F, as
well as liability for any injuries caused by defects.” [Doc.
#174, 42]. KMC answered,
This interrogatory is not reasonably calculated to lead to
admissible evidence. Plaintiffs have taken the deposition
of a KHI engineer. None of this request is related to
plaintiffs‟ burden to produce some proof of an actual
defect. Furthermore, the question is argumentative and
objectionable when it asks for “as well as liability for
injuries caused by defects.”
Obviously, every document in the company that would
describe who does what would fall into this category and,
therefore, this is completely objectionable. This defendant
will respond no further.

[Id.]. The Court SUSTAINS the objection for several reasons.
First, the interrogatory as framed is overly broad and unduly
burdensome as it implicates a large swath of documents, which
are not necessarily relevant to this litigation. Second,
plaintiffs have had ample opportunity to obtain this information
via Rule 30(b)(6) depositions and other document requests. See
Fed. R. Civ. P. 26(b)(2)(C)(ii) (“On motion or on its own, the
23

court must limit the frequency or extent of discovery otherwise
allowed by these rules or by local rule if it determines that[]
the party seeking discovery has had ample opportunity to obtain
the information by discovery in the action[.]”).


RFP No. 2 of 2nd Set of Production Requests to KMC
Plaintiff‟s second request for production of their second

set of requests seeks, “All documents concerning the decision to
change from the Predecessor Cargo Hook to the „recessed hook‟ at
issue in this litigation.” [Doc. #174, 42-43]. KMC responded,
“The defendant is not the company responsible for the design and
it does not make design decisions. However, Mr. Kamio (from KHI)
described the reasons in his deposition.” Plaintiffs argue that
the documents sought are “at the heart of this case” and that
KMC‟s response is non-responsive and argumentative.
As previously discussed, KMC is the distributor and
marketer for the subject jet ski, and KHI is responsible for
design. At the Rule 30(b)(6) deposition of KHI, Kunihiko Kamio
testified regarding the decision to remove the recessed hooks
from the STZ-15F in 2009:
Originally, we had provided this cargo hook that we call as
cargo hook onto the 2000 model 1100 STX[.] Even though the
cargo hook was provided and our reason was for providing
the – for providing this cargo hook was to increase the
convenience to the users. Later on, we did market research
and we did not receive much comment from the users that the
cargo hook was that much useful, so based on such
information as well as in order to reduce the cost, the
decision was made to eliminate the cargo hook.

[Doc. #174-5, Depo Tr. Aug. 2, 2012, 15:17-16:6]. Mr. Kamio also
testified that he does not know whether documents reflecting
this decision exist today, but that he did recall “that at the
24

time discussions were held.” [Id. at 16:7-13]. Russell Brenan,
KMC‟s Rule 30(b)(6) witness, also testified regarding KMC‟s
input, or lack thereof, involving the design of the subject
recessed hooks:
Q: To your knowledge did KMC provide any input whatsoever
to KHI involving the design of these recessed hooks that
are on this particular Jet Ski?
A: Generally speaking, no. The design work is a KHI
function, so that wouldn‟t be something that KMC would
contribute to.
Q:[…] [T]o your knowledge did KMC have any input whatsoever
in providing information or any type of input to KHI with
respect to the design of these particular recessed hooks?
A: I don‟t know that we provided any specific information
to the design.
[…]
Q: To your knowledge did KMC have any role whatsoever in
any testing that was done on these particular recessed
hooks?
A: No. and again, we only – the only type of testing we may
do in terms of watercraft would be endurance-type testing.
So that is a KHI function. That is a question you would
have to ask them. It would not involve KMC.

[Doc. #174-6, Depo. Tr. Dec. 11, 2013, 195:17-196:19]. He also
denied knowledge of KMC contributing to the market research
referenced by Mr. Kamio in his deposition:
Q: [Mr. Kamio] indicated that there had been some type of
market research done involving these recessed hooks, and
that based upon that market research, a decision was made
to eliminate the recessed hooks from the model years after
2009, I think it was. Was KMC involved at all in that
market research [that Mr. Kamio referred to]?
A: I don‟t know if KMC was or was not.
Q: Do you have a memory of KMC being involved in any market
research the purpose of which was to determine the
convenience or the usefulness of the recessed hooks on this
particular Jet Ski model?
A: No.
Q: Has KHI asked KMC on other occasions to do market
25

research within the United States to make a determination
as to whether or not certain design features or component
parts of their Jet Skis were useful or beneficial to the
consumer?
A: They‟ve asked us to do numerous research-type
activities. Conceivably that could be one of them, but I‟m
not certain if we had one specific to that particular
component.

[Id. at 192:21-194:2].
In light of this deposition testimony, the Court does not
find a reasonable nexus between the complete category of
documents sought and KMC‟s relationship with KHI. Indeed, KMC‟s
function is to distribute and market jet skis, not to design or
otherwise provide design input to KHI with the exception of
perhaps performing market research. Accordingly, the Court will
not require KMC to respond to this request as phrased. However,
the Court will require KMC to produce any market research
concerning the decision to change from the Predecessor Cargo
Hook to the „recessed hook‟ at issue in this litigation.


RFP No. 3 of 2nd Set of Production Requests to KMC
Plaintiffs‟ third request for production of their second

set of requests seeks, “All documents concerning any and all
investigations into the reason for the sale of a large number of
the Recessed Hooks as replacement parts.” [Doc. #174, 44]. KMC
responded,
KMC does not agree that less than a fraction of 1%
replacement part sales is a “large number” and objects to
this question as being argumentative. This defendant is not
the company responsible for the design. This defendant is
the wholesaler of replacement parts, and generally
speaking, it does not “investigate” why consumers are
purchasing replacement parts. The few warranty claims that
KMC received were mostly cosmetic issues (i.e., paint
peeling, scratches and the like).

[Id.]. Plaintiffs take exception to this response as being non26

responsive and argumentative. The Court agrees that KMC‟s
response is generally non-responsive. KMC will provide an
amended response to this request and either produce documents
or, if none are found after a diligent search, will provide this
response in a sworn statement. The Court will also require KMC
to inquire of KHI to determine whether it has any documents
related to this request in light of Mr. Kamio‟s deposition
testimony that, “If there is a problem with a part that KMC
learned about, then KMC will ask questions to KHI and KHI will
provide answers. That happens.” [Doc. #174-5, Depo Tr. Aug. 2,
2012, 62:22-63:24]. The Court also finds a reasonable nexus
between the documents sought and KMC and KHI‟s relationship
given that KMC admittedly is the wholesaler of replacement parts
for the jet skis KHI designs.


Interrogatory No. 3 of 2nd Set of Ints. to KMM
Plaintiffs‟ third interrogatory of their second set of

interrogatories to KMM requests KMM to, “Identify every Jet Ski
by model and model year which included the Cargo Net as standard
equipment.” [Doc. #174, 45]. KMM answered that, “„Standard
Equipment‟ is not defined. However, during the time frame of
1997, 1998, and 1999, KMM sold STX 1100 models with cargo nets.”
[Id.]. Upon counsel‟s meet and confer, defense counsel clarified
that the STX 1100 Jet Ski was the only model for which the cargo
net was included in the purchase price. Plaintiffs now request
that KMM make this response under oath. The Court GRANTS this
request. KMM will provide a supplemental answer to this
interrogatory that conforms with Rule 33(b)(3) of the Rules of
27

Civil Procedure.
C. Third Request for Production to KMC


RFP No. 5 of 3rd Request for Production to KMC.
Plaintiffs next seek to compel “a copy of the written job

description for Mr. Brenan3 as well as Friday‟s witness.” KMC
objected on the grounds of relevancy. Plaintiffs argue that they
are entitled to Mr. Brenan‟s job description to develop evidence
in response to KMC‟s defense that it is “just the distributor.”
KMC responds that Mr. Brenan testified at length about his
current and past job responsibilities during his two-day
deposition and plaintiffs had ample opportunity to address his
work experience during the deposition. The Court agrees and will
not require KMC to produce a copy of Mr. Brenan‟s job
description in light of his deposition testimony and plaintiffs‟
opportunity to obtain this information from Mr. Brenan under
oath. See Fed. R. Civ. P. 26(b)(2)(C)(ii) (“On motion or on its
own, the court must limit the frequency or extent of discovery
otherwise allowed by these rules or by local rule if it
determines that[] the party seeking discovery has had ample
opportunity to obtain the information by discovery in the
action[.]”).

Accordingly, plaintiffs‟ request to compel the

production of Mr. Brenan‟s written job description is DENIED.4


RFP No. 7 of 3rd Request for Production to KMC
Plaintiffs also seek to compel “Any documents which

3

Mr. Brenan is KMC‟s corporate representative, who testified at KMC‟s
30(b)(6) deposition.
4
Because plaintiffs do not address the request for the job description of
“Friday‟s witness,” the Court deems the request for this document waived.
28

evidence what KMC‟s role in advising/informing KHI of the USA
standards/regulations/statutes which apply to PWC‟s sold in the
USA as of 2003-2008.” KMC objected to this request and further
responded,
This request is unduly vague, but subject to and without
waiving such objection, during that time (2003-2008) KMC
would have been advising KHI as to changes in either Coast
Guard regulations (there were none that related to PWCs);
SAE PWC Standards and Recommended Practices (the last of
those was adopted in August 2002 [approved by SAE
International in Sept 2003]; NMMA certification agreements
(the first of which was executed in 2002 and negotiated
prior to that time); and any issues that came up regarding
the revisions to the emission requirements of CARB and EPA.
KMC objects to searching for matters related to
environmental or emission issues as that has no conceivable
relevance to this case. Additionally, there may have been
other miscellaneous issues that arose during that time, but
those records would not be over five years old and may no
longer be in KMC‟s possession. Presently, KMC has not
located any such advice that was particular to the STX I 5F
or the recessed hook at issue here.

Plaintiffs respond that they are not interested in documents
relating to environmental or emissions standards, regulations,
or statutes. Plaintiffs further contend that the statement “may
no longer be in KMC‟s possession” does not fulfill KMC‟s
discovery obligations, and seeks and order requiring KMC to
“exhaust all reasonable efforts to locate and/or obtain
responsive documents, to produce such documents or, if no
responsive documents exist, to state so under oath while
detailing its efforts to obtain such documents.” [Doc. #174,
47]. The Court GRANTS in part plaintiffs‟ motion to compel as to
this request. KMC will produce any documents which evidence what
KMC‟s role is in advising/informing KHI of the USA
standards/regulations/statutes which apply to the particular Jet
Ski at issue in this litigation and/or the recessed hook at
29

issue. If KMC does not have any responsive documents in its
possession or control, then KMC will provide a sworn statement
that despite a diligent search, no responsive documents were
found. Alternatively, if documents are produced in response to
this request, KMC will provide a sworn statement that after a
diligent search, all responsive documents have been produced.
The Court will not require KMC to detail its efforts made to
locate these documents.
D. Fourth Interrogatories to KMC
Plaintiffs next seek to compel KMC‟s answers5 to four
interrogatories (Nos. 1-4) set forth in plaintiffs‟ fourth set
of interrogatories. Plaintiffs generally argue that the
information requested is relevant to the number of replacement
parts sold and is necessary for an analysis of the replacement
part data. Plaintiffs also point to the Court‟s July 15, 2013
hearing where the Court addressed the scope and relevance of
these topics, but in the context of plaintiffs‟ Rule 30(b)(6)
deposition notices to defendants. KMC argues that the
information sought is irrelevant and not narrowly tailored to
lead to the discovery of admissible evidence. KMC also argues
that two of the interrogatories seek “worldwide” information
which would be in the possession of KHI, to the extent that it

5

Plaintiffs‟ motion states that, “KMC should be ordered to exhaust all
reasonable efforts to locate and/or obtain responsive documents, to produce
such documents or, if no responsive documents exist, to state so under oath
while detailing its efforts to obtain such documents.” [Doc. #174, 48-51].
However, because this portion of the motion pertains to interrogatories, as
opposed to requests for production, the Court will not order KMC to produce
“responsive documents.”
30

exists, and therefore not properly requested of KMC.6
The Court‟s comments at the July 15, 2013 hearing largely
addressed the relevance and scope of the information plaintiffs
now seek. Although that hearing focused on the scope of
plaintiffs‟ 30(b)(6) deposition notices to KMC and KMM, several
of those topics encompassed the information sought in the
following interrogatories. Indeed, the Court suggested that
these topics were better reserved for interrogatories.
Plaintiffs‟ first interrogatory and KMC‟s response state,
Interrogatory No. 1: Identify the number of predecessor
cargo hooks sold as replacement parts, without geographic
restriction, in each of the following years: [1997-2004].
KMC Response: See KMC‟s prior answers on this topic – KMC
objects to responding further. This also exceeds the
allowable number of interrogatories.

[Doc. #174, 47-48]. During the July 15, 2013 hearing, the Court
held the following dialogue with counsel regarding this topic:
MR. PESCE (KMC counsel): Next, Your Honor, was topic 15. So
topic 15 to KMC, that one asks for KMC total annual sales
of the predecessor cargo hook at (sic) replacement parts
for each years 1994 through 2004. And so when he says the
predecessor cargo hook, he‟s referring to 1100STX… ‟97, ‟98
and ‟99. Through he says 2004.
THE COURT: Right, and I think that‟s okay.
MR. PESCE: So this again would fall in the category of the
same objections as we had before, and this is really an
interrogatory as opposed to a topic.
THE COURT: Right, and I think if we do this as an
interrogatory the same way we do the other one […] that
should provide at least a basis for [plaintiffs‟ counsel]
to do what he thinks he needs to do.
MR. FAULKNER (plaintiffs‟ counsel): Right. And if I
understand Your Honor, the Court is saying that it would
6

As to KMC‟s position that plaintiffs have exceeded the number of permissible
interrogatories, the Court will not deny plaintiffs‟ requests on this basis.
Although the better practice is to seek leave to serve the excess
interrogatories, the Court implicitly permitted plaintiffs to serve
interrogatories encompassing the below topics at the July 15, 2013 hearing.
31

not be proper to make a relevance objection in discovery to
these two topics.
THE COURT: It sounds real good to me the way I conceived it
and the way you described it.
MR. PESCE: Kawasaki will respectfully file a response, and
it‟ll be an objection[…] I don‟t think it‟s relevant[…]
THE COURT: I don‟t think it will come as any surprise to
you if you make a relevance objection, I‟ll overrule it[…]
But there may be some other reason that I haven‟t heard
that he shouldn‟t get this information, but it sounds to
me, based on sort of a general description of where their
case is going, that it could lead to the admissibility of
evidence. It might even be admissible itself.

[July 15, 2013 Hrg. Tr. 33:24-35:19]. As the Court has already
found, the information sought in the first interrogatory is
relevant. KMC has failed to provide any other reason, other than
those previously addressed by the Court, as to why the
information sought is not relevant.

Accordingly, KMC‟s

relevance objection is OVERRULED. With respect to the geographic
scope of the request, the Court will not compel KMC to provide
the “worldwide” information sought, but rather will require KMC,
to the extent it has not already provided this information, to
provide the number of cargo hooks sold as replacement parts in
the United States, and in the Western Hemisphere, for each of
the years sought in the first interrogatory. This is consistent
with the Court‟s prior ruling permitting this scope of
information as to other similar requests.

See id. at 37:1-49:22

(discussing Rule 30(b)(6) topic as interrogatory seeking KMC‟s
total annual sales of recessed hooks as replacement parts for
2000 through 2012 and finding plaintiff entitled to information
for replacement parts sold from 2000 through 2008 both in the
United States and Western Hemisphere. In so finding, the Court
32

stated, “[N]ow that we all know that [KMC] sell[s] not just in
the United States but also in the hemisphere, that it would
behoove you, if it‟s available, to tell them the number for the
United States as well as the overall number.”); see also id. at
50:4-10 (The Court confirmed defense counsel‟s understanding
that, “KMC[] is going to go back and identify the total number
of replacement recessed hooks for the period of 2000 to the date
of the accident, whether or not they happened – whether the
purchases were from the U.S. or the hemisphere.”).
Plaintiffs‟ second through fourth interrogatories, and
KMC‟s responses thereto, all relate to “cargo nets”, and state:
Interrogatory No. 2: Identify by model and model year all
Jet Skis that were sold with a cargo net from 1997 through
2009 other than the 1997-1999 1100 STX (identified in
response to Int. No. 3 of Plaintiffs‟ Second Set of
Interrogatories which KMC responded to on or about Aug. 31,
2012).
KMC Response: Cargo nets are not an issue in this case and
this is not reasonably discoverable. This also exceeds the
allowable number of interrogatories.
Interrogatory No. 3: Identify by model and model year all
Jet Skis for which a cargo net was offered as optional
equipment from 1997 through 2009.
KMC Response: Cargo nets are not an issue in this case and
this is not reasonably discoverable. This also exceeds the
allowable number of interrogatories.
Interrogatory No. 4: Identify the number of cargo nets sold
by KMC, without geographic restriction, for each of the
years 1997 through 2009.
KMC Response: This is not reasonably calculated to lead to
the discovery of admissible information and exceeds the
number of permissible interrogatories. KMC does not intend
to respond to this question.

[Doc. #174, 48-50]. Again, the Court addressed the topic(s) of
these interrogatories at the July 15, 2013 hearing. For example,
in addressing proposed topic 13 of the Rule 30(b)(6) deposition
33

notice, plaintiffs‟ counsel and the Court had the following
dialogue:
MR. FAULKNER: […] So eventually my hope is that someday
you‟ll have the replacement number for the part at issue
compared to the number of units jet skis sold, you know, it
was on a number of different models, so that we can compare
it to – I would venture a guess that the number of
replacement parts of old hook used on the ‟97 through ‟99
1100STX is a very small number, because you could only use
a cargo net with it.
So that‟s why we want to be able to compare apples with
apples. You need to know the number of jet skis with the
hook sold. You need to know whether or not the cargo net
came as included equipment; if not, how many cargo nets
they sold; and then you ask the same questions about the
hook or cleat that we criticized as defective.
THE COURT: Why is this not an interrogatory?
MR. FAULKNER: It easily could be an interrogatory. My
experience is you get better answers from a deponent if you
could follow up, but if you can get the numbers by way of
an interrogatory, that‟s fine with me, too.
THE COURT: I think it‟s a reasonable request, but I think
it‟s an interrogatory[…]

[July 15, 2013 Hrg. Tr. 31:13-32:12]. As the Court previously
found, the information sought in these interrogatories is
reasonable. The Court further more finds that the information
sought is reasonably calculated to lead to the discovery of
admissible evidence. KMC has failed to provide any other reason,
other than those previously addressed by the Court, as to why
the information sought is not relevant.

Accordingly, KMC‟s

relevance objections are OVERRULED. For the reasons already
stated, the Court will limit the geographic scope of the
information sought to the United States and the Western
Hemisphere. Finally, the Court will only compel KMC to provide
answers through the year 2008 as this is again consistent with
the Court‟s other rulings during the July 15, 2013 hearing. See
34

id. at 46:23-47:3 (“I don‟t think on this record past the
accident is necessary, or likely to lead to admissible evidence.
So to the extent there‟s an objection to anything past the
accident, that‟s sustained.”).
E. Fifth Set of Production Requests to KMC
Plaintiffs next take issue with four requests (Nos. 1,2,3,
and 7) for production in their fifth set of production requests.
These requests seek various marketing materials and documents
relating to warranty claims involving a predecessor “cargo
hook.” After meeting and conferring, KMC indicated it had
searched for documents responsive to these requests to no avail.
In defendants‟ memorandum of opposition, KMC further expounds on
the efforts it undertook to locate any responsive documents and
unequivocally states “there are no documents responsive to these
requests.” Plaintiffs request that the Court order KMC to make
this response under oath. The Court GRANTS plaintiffs‟ request
for the same reasons previously articulated in Section IIIA
above.
V.

Conclusion
Plaintiffs‟ motion to compel [Doc. #173] is GRANTED in part

and DENIED in part, as articulated above.

To the extent that

this ruling orders the production of additional documents,
attestations, or answers to interrogatories, such information
will be produced within thirty (30) days of this ruling, or as
agreed to by the parties.
This is not a Recommended Ruling. This is a discovery
ruling or order which is reviewable pursuant to the “clearly
35

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 16th day of December 2014.

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

36