Klorczyk et al v. Sears, Roebuck & Co. et al
Filing
171
DISCOVERY RULING and CASE MANAGEMENT ORDER. See attached ruling for scheduling details. Signed by Judge Holly B. Fitzsimmons on 4/9/2015.(Katz, S.)
UNITED STATES DISTRICT COURT
DISTRICT OF CONNECTICUT
FREDERICK KLORCZYK, JR., as
Co-Administrator of the
Estate of Christian R.
Klorczyk, et al
v.
SEARS, ROEBUCK & CO, ET AL
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CIV. NO. 3:13CV257 (JAM)
DISCOVERY RULING AND CASE MANAGEMENT ORDER
On March 4, 2015, the Court held an in-person discovery
conference. Counsel for plaintiffs Frederick Klorczyk, Jr. and
Lynne Klorczyk, as co-administrators of the Estate of Christian
R. Klorczyk (“plaintiffs”), and defendants Sears, Roebuck & Co.
(“Sears”), Shinn Fu Corporation (“Shinn Fu”), Shinn Fu Company
of America, Inc. (“Shinn Fu America”), Wei Fu (Taishan)
Machinery & Elec. Co., Ltd. (“Wei Fu”), and MVP (H.K.)
Industries, Ltd. (“MVP”) (collectively “defendants”)1,
participated. Prior to the conference, the parties submitted a
joint agenda listing the items for discussion. [Doc. #167]. The
Court will address each in turn. Familiarity with the procedural
and factual background of this matter is presumed, and will be
recited only as necessary in the context of the rulings made
below.2
1
Shinn Fu, Shinn Fu America, Wei Fu and MVP are sometimes collectively
referred to as the “non-Sears defendants.”
2
The agenda also lists five additional issues that “remain outstanding but
are not yet ready for judicial intervention.” [Doc. #167, 2]. Should these
items remain in dispute, the parties will seek relief through a formal motion
filed on CMECF. With respect to the second issue, the Court is in receipt of
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1. Requests for Admissions
Pending before the Court is plaintiffs‟ objection to
defendants‟ discovery requests, or in the alternative, motion
for leave for an extension of time regarding plaintiffs‟
responses. [Doc. #145]. MVP and Wei Fu have filed a response in
opposition [Doc. #150], to which plaintiffs have replied [Doc.
#152]. The Court will simultaneously issue a separate ruling on
the pending objection.
2. Request for Second Inspection of Vehicle
The non-Sears defendants have requested a second inspection
of the vehicle, which is alleged to have been involved in the
accident at issue. Plaintiffs have objected to this request.
The non-Sears defendants‟ describe the requested inspection
as follows:
PLEASE TAKE FURTHER NOTICE THAT the inspection will begin
at the motor vehicle‟s storage facility at 34 Taugwonk Spur
Road, Stonington, 06378 on March 3, 2015 at 10:00 am. The
motor vehicle will then be transported by flat-bed tow
truck to B&D Autobody, Inc., 91 Route 163, Montville,
Connecticut, where the motor vehicle will be further
inspected and measured and where the Defendants will
attempt to re-create the incident at issue in this case as
the Plaintiffs allege that it occurred, as set forth on
pages nine, twelve, and thirteen of the December 8, 2014
report of Frederick G. Heath. The “motor vehicle” will then
be returned by flat-bed tow truck to the storage facility.
The inspection will conclude on March 3, 2015.
[Doc. #167-1 (emphasis in original)]. Plaintiffs asserted the
following objection:
Plaintiffs object to Defendants‟ Request, particularly in
its reference to “attempt to re-create the incident at
issue in this case” as vague and ambiguous and overly
the parties‟ letter briefs and related exhibits. To the extent that this
issue is ripe for adjudication, the non-Sears defendants will file a formal
motion to compel, to which plaintiffs will respond. To the extent that the
parties arguments are fully set forth in their letter briefs, they may file
these on CMECF as the motion to compel and response in opposition,
respectively.
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broad, unduly burdensome and not reasonably calculated to
lead to the discovery of admissible evidence. Plaintiffs
also object to Defendants‟ Request as unreasonably
cumulative and duplicative in that Defendants have already
performed an inspection and examination of the subject
“motor vehicle.” Any additional examination sought by
Defendants can and should be undertaken by Defendants at
their sole expense by obtaining an exemplar of the “motor
vehicle” to prevent damaging the same. Plaintiffs also
object to Defendants‟ Request because it fails to specify a
reasonable manner for the inspection as required by Federal
Rule 34(b)(1)(B).
[Doc. #167-1].
At the March 4 conference, the non-Sears defendants
represented that they seek this second inspection because since
the accident at issue, the car has been serviced and driven
extensively, which allegedly conflicts with Mr. Klorczyk‟s
deposition testimony. The non-Sears defendants also represented
that they seek to inspect the vehicle‟s drain plug and contact
marks with the jack stands. These defendants also wish to
recreate the accident and maintain there will be no spoliation
of the vehicle if certain measures are taken which prevent the
vehicle from making contact with the ground.
At the March 4
conference, plaintiffs argued that there is no conflicting
evidence and that the non-Sears defendants already had an
opportunity to inspect the vehicle. Simply, plaintiffs do not
see the relevance of a second inspection merely because the car
had been driven since the accident at issue. Plaintiffs further
argue that if defendants wish to recreate the accident, they
should buy an exemplar vehicle with which to do so.
After considering the arguments of counsel, the Court will
permit the non-Sears defendants to conduct a second inspection
of the vehicle at issue in light of the information learned
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following the first inspection. The inspection requested is
relevant to the issues in this case. See Breon v. Coca-Cola
Bottling Co. of New England, 232 F.R.D. 49, 52 (D. Conn. 2005)
(“Relevancy continues to be „broadly construed, and a request
for discovery should be considered relevant if there is any
possibility that the information sought may be relevant to the
claim or defense of any party.‟” (citations omitted; emphasis in
original)). The Court does not find the request unreasonably
cumulative or duplicative, in light of the information
defendants received after the first inspection. The Court will
also permit the non-Sears defendants to recreate the accident
with the vehicle in light of their representations that steps
can be taken to protect the integrity of the evidence. In this
regard, the parties are encouraged to confer regarding a proper
protocol to best preserve the vehicle‟s current condition.
Therefore, plaintiffs‟ objections are OVERRULED.
3. Authorization for Release of Medical Records
The non-Sears defendants next request that the plaintiffs
provide authorizations for the release of Christian Klorczyk‟s
medical records from the University of Connecticut Student
Health Center (“UCONN”), Dr. Elizabeth Allard, the Connecticut
Office of the Chief Medical Examiner, and Lawrence & Memorial
Hospital. Plaintiffs object to this request and represent that
they have conducted a diligent search and produced responsive
medical records. Plaintiffs have additionally provided
defendants with copies of the letters and authorizations sent to
Dr. Allard, the Connecticut Chief Medical Examiner and Lawrence
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& Memorial Hospital and, represented that they have produced the
records received in response. Plaintiffs also provided a letter
from UCONN stating that Christian had never been treated there.
At the March 4 conference, the non-Sears defendants
represented that they had conflicting information about the
completeness of the medical records received to date. They also
made an in camera proffer concerning their request for
authorization to obtain Christian‟s medical records from UCONN.
On the current record, and even in light of defendants‟ in
camera proffer, the Court will not require plaintiffs to provide
an authorization for the release of records from UCONN, based on
UCONN‟s representation that plaintiff had never been treated
there. The non-Sears defendants have provided no basis for
concluding, even in camera, that UCONN treated Christian.
However, as discussed during the conference, the Court will
require plaintiffs to provide defendants with authorizations for
the release of Christian‟s medical records from Dr. Elizabeth
Allard, the Connecticut Office of the Chief Medical Examiner,
and Lawrence & Memorial Hospital, provided that when these
authorizations are sent, defendants identify the records
produced to date and instruct the medical providers that they
need not reproduce these records. See, e.g., Bonta v. Accor No.
Am., Inc., 07-CV-735S, 2010 WL 2869535, at *3 (W.D.N.Y. July 20,
2010) (requiring plaintiff to provide defendants with
authorizations for medical records).
Accordingly, the non-Sears defendants‟ request for release
authorizations is GRANTED in part and DENIED in part.
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4. Request for Christian Klorczyk’s Bank Records
The non-Sears defendants next seek the production of
Christian Klorczyk‟s bank records from age sixteen to the time
of his death, contending that this information is relevant to
plaintiffs‟ economic damages claim. The defendants also provided
information relevant to this request in camera. Plaintiffs
object on the basis at that the time of Christian‟s death, he
was only twenty one years old and had never held a paying job.
They also represent that their economist expert did not rely on
Christian‟s bank records in forming his opinion. The non-Sears
defendants respond that the records are relevant to Christian‟s
expenses, lifestyle choices and spending habits.
In light of the relevant case law, and the information
provided to the Court in camera, the Court GRANTS in part this
request. Plaintiffs will produce Christian‟s bank records from
the date on which he turned eighteen (18) through the time of
his death. See, e.g., In re Air Crash, No. 09-md-2085, 2013 WL
6073635, at *3 (W.D.N.Y. Nov. 18, 2013) (finding bank records
discoverable in wrongful death case because they are relevant to
this issue of pecuniary damages).
5. Shinn Fu America’s 30(b)(6) Deposition
Shinn Fu America has objected to producing a witness on
four of twenty-five topics listed in plaintiffs‟ notice of
30(b)(6) deposition. Shinn Fu represents that there is no one at
Shinn Fu America with knowledge of these topics. Plaintiffs
assert that these objections are improper and that Shinn Fu is
obligated to produce a witness who can testify that there is no
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one at the company with knowledge on these topics. Plaintiffs
also seek the specific identity of Shinn Fu America‟s 30(b)(6)
witness(es), and production of his or her resume. Plaintiffs
also request that Shinn Fu America produce any supplemental
documents prior to the deposition.
Rule 30(b)(6) provides:
[A] party may name as the deponent a public or private
corporation… and must describe with reasonable
particularity the matters for examination. The named
organization must then designate one or more officers,
directors, or managing agents, or designate other
persons who consent to testify on its behalf… The
persons designated must testify about information
known or reasonably available to the organization.
Fed. R. Civ. P. 30(b)(6). “Pursuant to Rule 30(b)(6), the
deponent „must make a conscientious good-faith endeavor to
designate the persons having knowledge of the matters sought by
[the party noticing the deposition] and to prepare those persons
in order that they can answer fully, completely, unevasively,
the questions posed… as to the relevant subject matters.‟” Sony
Elec., Inc. v. Soundview Techn., Inc., 217 F.R.D. 104, 112 (D.
Conn. 2002) (quoting Bank of New York v. Meridien BIAO Bank
Tanzania Ltd., 171 F.R.D. 135, 151 (S.D.N.Y. 1997) (alterations
in original)).
“While the 30(b)(6) deponents need not have
personal knowledge concerning the matters set out in the
deposition notice… the corporation is obligated to prepare them
so that they may give knowledgeable answers.”
Scoof Trading
Dev. Co., Ltd. v. GE Fuel Cell Sys., LLC, No. 10 Civ.
1391(LGS)(JCF), 2013 WL 1286078, at *2 (S.D.N.Y. March 28, 2013)
(compiling cases; internal quotations omitted; alterations in
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original).
Accordingly, a party responding to a 30(b)(6) notice
must “prepare the designee to the extent matters are reasonably
available, whether from documents, past employees, or other
sources.”
Id.
The Court turns first to defendant‟s position that it need
not designate a witness for a 30(b)(6) deposition topic of which
the company has no knowledge (topics 9, 10, 11, 13). The Court
finds the following passage from Judge Goodman‟s ruling on a
motion for sanctions for failure to comply with Rule 30(b)(6)
particularly helpful:
If the case law outlining the guiding principles of
30(b)(6) depositions could be summarized into a de facto
Bible governing corporate depositions, then the litigation
commandments and fundamental passages about pre-trial
discovery would likely contain the following advice:
[…]
23. The rule implicitly requires the corporation to review
all matters known or reasonabl[y] available to it in
preparation for a Rule 30(b)(6) deposition.
24. If a corporation genuinely cannot provide an
appropriate designee because it does not have the
information, cannot reasonably obtain it from other sources
and still lacks sufficient knowledge after reviewing all
available information, then its obligations under the Rule
cease.
[…]
28. When a corporation‟s designee legitimately lacks the
ability to answer relevant questions on listed topics and
the corporation cannot better prepare that witness or
obtain an adequate substitute, the “we-don‟t-know” response
can be binding on the corporation and prohibit it from
offering evidence at trial on those points.
[…]
QBE Ins. Corp. v. Jorda Enter., Inc., No. 10-21107-CIV, 2012 WL
266431, at *9-13 (S.D. Fla. Jan. 30, 2012) (citations omitted
throughout; alterations added). On the current record, Shinn Fu
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America has not made a showing that it does not have the
information sought, cannot reasonably obtain it from other
sources and still lacks sufficient knowledge after reviewing all
available information to testify on topics 9, 10, 11 and 13.
Therefore, after considering the arguments of the parties, and
the applicable case law, the Court will require Shinn Fu America
to designate a witness on topics 9, 10, 11 and 13. If Shinn Fu
America genuinely does not have knowledge on these topics, its
designated witness should be prepared testify concerning the
company‟s efforts to obtain this information and why it lacks
sufficient knowledge to testify concerning topics 9, 10, 11 and
13.
With respect to Topics 18 and 19, plaintiffs take issue
with Shin Fu America limiting the topic by way of their
objection and response. Shin Fu America responded it would
designate a witness on these topics. To the extent that any
further issues remain as to Topics 18 and 19, the parties may
raise them with the Court via letter brief. However, the Court
encourages the parties to proceed with the deposition on these
topics and to address any objections with the Court at the time
they are posed during the examination.
On the current record the Court will not require Shinn Fu
America to provide plaintiffs with the name and resume of its
30(b)(6) witness. With respect to the witness‟s credentials,
this is something that can be inquired into at the deposition.
Moreover, “[i]t is ultimately up to the organization to choose
the Rule 30(b)(6) deponent, and the party requesting the
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deposition generally has no right to assert a preference if the
designee is sufficiently knowledgeable on the subject matter.” 7
JAMES WM. MOORE,
ET AL.,
MOORE‟S FEDERAL PRACTICE §30.25[3](3d ed.
2013). There is nothing before the Court to suggest that Shinn
Fu America will not designate a sufficiently knowledgeable
witness. Therefore, the Court finds no reason to compel the
disclosure of his or her name and resume at this time. However,
to the extent that the parties can agree on producing this
information, they are free to do so.
6. Sears’ 30(b)(6) Deposition
Sears has also objected to producing a witness on four of
twenty-five topics listed in plaintiffs‟ Notice of 30(b)(6)
deposition. To the extent that Sears‟ objections overlap with
those of Shinn Fu America addressed above, the Court reiterates
its ruling with respect to producing a witness on topics 9, 10,
11 and 13. To the extent that there are other objections that
have not otherwise been resolved between the parties, Sears may
raise these with a letter brief to the Court, to which
plaintiffs may respond.
Similarly, the Court will not require
Sears to disclose the name(s) or resume(s) of its 30(b)(6)
witness.
7. Case Management/Scheduling Order
The parties request a schedule governing discovery. The
Court construes this request as a motion for modification of the
current scheduling order, which the Court GRANTS as follows:
Domestic Rule 30(b)(6) depositions by May 15, 2015;
Domestic merits depositions by June 15, 2015;
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Foreign Rule 30(b)(6) depositions by July 31, 2015;
Non-party fact witness depositions by September 30,
2015
Plaintiffs‟ expert depositions by July 17, 2015;
Disclosure of defendants‟ experts by August 17, 2015;
Defendants‟ expert depositions by September 30, 2015;
Rebuttal expert disclosures by October 16, 2015;
Rebuttal expert depositions by October 30, 2015
Dispositive motions by December 31, 2015.
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.
ENTERED at Bridgeport, this 9th day of April 2015.
_____/s/___________________
HOLLY B. FITZSIMMONS
UNITED STATES MAGISTRATE JUDGE
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