Harkey v. General Electric Company

Filing 161

ORDER granting in part and denying in part 128 Motion to Compel for the reasons set forth in the attached Ruling. Signed by Judge William I. Garfinkel on 4/1/16. (Cates, S)

UNITED STATES DISTRICT COURT
DISTRICT OF CONNECTICUT
GLEN GRAYSON ET AL.,
Plaintiffs,
vs.

No. 3:13-cv-1799 (WWE)(WIG)

GENERAL ELECTRIC COMPANY,
Defendant.
_____________________________________X
RULING ON PLAINTIFF’S MOTION TO COMPEL
In this putative class action, Plaintiffs claim that certain models of microwave ovens
branded with defendant General Electric’s (“GE”) name were defectively designed or
manufactured, causing their glass doors to spontaneously shatter. Now, pursuant to Rule 37 of
the Federal Rules of Civil Procedure, Plaintiffs move to compel GE to produce certain discovery,
including discovery from Samsung Electrics Co., Ltd. (“Samsung Korea”), who is the
manufacturer of the microwaves at issue. [Doc. # 128]. After due consideration of the moving
papers and the response, the Court hereby grants the Motion to Compel in part and denies it in
part.
Background
Plaintiff’s Motion to Compel seeks four categories of documents:
Category One: Documents in Samsung Korea’s possession relating to the design
and manufacture of the microwaves at issue.
Category Two: Additional information from GE’s Factory Service Database,
which records customer complaints and service requests relating to the
microwaves at issue.
Category Three: Customer service documents that GE produced in a different
legal matter. Plaintiffs claim that these documents relate to GE’s procedures for
collecting consumer relations information.
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Category Four: Copies of any GE policies or procedures “that GE contends are
relevant to any issue in this litigation.” GE has objected to this request as overly
broad and unduly burdensome.1
Plaintiffs’ motion seeks an order compelling the above, or in the alternative excluding GE
from relying on this discovery at trial with all adverse inference drawn in Plaintiffs’ favor.
Discussion
Rule 26(b)(1) of the Federal Rules of Civil Procedure outlines the scope of discovery.
Under the Rule, parties “may obtain discovery regarding any nonprivileged matter that is
relevant to any party’s claim or defense and proportional to the needs of the case.” Relevance
involves a consideration of “the importance of the issues at stake in the action, the amount in
controversy, the parties’ relative access to relevant information, the parties’ resources, the
importance of the discovery in resolving the issues, and whether the burden or expense of the
proposed discovery outweighs its likely benefit.” Fed.R.Civ.P.26(b)(1). Even when a request
seeks relevant matter, the court can limit such discovery when “the discovery sought is
unreasonably cumulative or duplicative, or can be obtained from some other source that is more
convenient, less burdensome, or less expensive.” Fed. R. Civ. P. 26(b)(2)(C). See During v.
City Univ. of New York, No. 05 CIV. 6992(RCC), 2006 WL 2192843, at *4 (S.D.N.Y. Aug. 1,
2006) (“Even if the information sought is relevant, courts have the authority to forbid or to alter
discovery that is unduly burdensome.”).
Category One:
It is well-established that “a party is not obliged to produce … documents that it does not
possess or cannot obtain.” Shcherbakovskiy v. Da Capo Al Fine, Ltd., 490 F.3d 130, 138 (2d Cir.

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In their reply brief in support of the Motion to Compel, Plaintiffs state they are no longer
pursuing this request. Accordingly, the Court will not address this category.
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2007). Pursuant to Fed.R.Civ.P. 34, a party may serve on another party a request “to produce …
items in the responding party’s possession, custody, or control.” A party “controls documents
that it has the right, authority, or ability to obtain upon demand.” Scott v. Arex, Inc., 124 F.R.D.
39, 41 (D.Conn.1 989) (citations omitted). Plaintiffs bear the burden of establishing that the
documents are in GE’s control. See Pitney Bowes, Inc. v. Kern Int'l, Inc., 239 F.R.D. 62, 66 (D.
Conn. 2006). This is a “fact specific” inquiry that goes beyond the “particular form of the
corporate relationship” and instead looks at the “nature of the transactional relationship” between
the entities. Id. (internal citations and quotation marks omitted). Courts must also look to
whether there is a “practical ability of the [requested] party to obtain these documents.” Id.
(citing Power Integrations, Inc. v. Fairchild Semiconductor Int’l, Inc., 233 F.R.D. 143, 145
(D.Del.2005) (emphasis in original) (citation omitted)).
GE argues that Samsung Korea’s documents are not in its possession, custody, or control.
The Court agrees. The relationship between GE and Samsung Korea does not evidence GE’s
legal entitlement to the documents: they are completely different entities; GE is not a parent of
Samsung Korea, and does not have any ownership interest in it. Even in cases where there is a
parent/subsidiary relationship between entities, which is not the case here, courts look for “a
showing that the two entities operate as one, demonstrated access to documents in the ordinary
course of business, and an agency relationship.” DeSmeth v. Samsung Am., Inc., No. 92 CIV.
3710(LBS)RLE, 1998 WL 74297, at *9 (S.D.N.Y. Feb. 20, 1998). Plaintiffs have not made such
a showing here.
GE also does not have a practical ability to obtain the documents from Samsung Korea.
While Plaintiffs claim that GE has selectively produced some documents from Samsung Korea,
this argument is vitiated by GE’s assertion that it produced any relevant documents it already

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had in its possession from Samsung Korea. Already having documents does not necessarily
equate to a practical ability to obtain additional documents. Without more, there is insufficient
evidence that the business relationship between GE and Samsung Korea compels a finding of
control. See Sicav v. Wang, No. 12 CIV. 6682 PAE, 2014 WL 2624753 (S.D.N.Y. June 12,
2014) (denying a motion to compel on grounds that defendant did not have control over
documents held by its subsidiaries in part because the entities did not operate as one with respect
to day to day operations, and there was no evidence the defendant has regular access to its
subsidiaries’ documents).
Plaintiffs also claim that there is a contractual agreement between GE and Samsung
Korea giving rise to control. This arguments is unavailing because an examination of the
contract beyond the provisions to which Plaintiffs cite show that the agreement enabled GE to
ask for specific categories of documents for GE’s review and approval during the manufacturing
of the products at issue. GE maintains that any such documents that were already in their
possession as a result of this agreement, if relevant, were produced. The Court cannot say the
agreement’s language amounts to a finding of control. See Sahu v. Union Carbide Corp., No. 04
CIV. 8825 JFK, 2012 WL 2422757, at *21 (S.D.N.Y. June 26, 2012) aff’d sub nom. Janki Bai
Sahu v. Union Carbide Corp., 528 F. App’x 96 (2d Cir. 2013) (finding contracts between a
parent and subsidiary for purchase of manufacturing and technical services were “the very
definition of arms length dealings between corporate entities.”). Plaintiffs cite to Barton v. RCI,
LLC, No. CIV.A. 10-3657 PGS, 2013 WL 1338235 (D.N.J. Apr. 1, 2013) as support for the
proposition that a contractual right to access documents amounts to legal control. In that case,
however, the court found evidence sufficient to show an agency relationship between the

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defendant and the non-party entity. Id. at *20. Here, however, no agency relationship has been
shown.
Accordingly, the Motion to Compel is denied as to Category One.
Category Two:
Plaintiffs next seek a more extensive and more usable Factory Service Database. GE has
already produced a spreadsheet from this database pursuant an agreement between the parties as
to what information the spreadsheet would contain. It appears that, now, Plaintiffs want
additional information and/or information in a different format. It is quite clear that Rule 34
cannot be used to compel a party to produce a document that does not exist. See, e.g., Hallmark
v. Cohen & Slamowitz, Midland Funding LLC, No. 11–CV–842S(F) 2014 WL 5017859, at *5
(W.D.N.Y. Oct. 8, 2014) (citation and internal quotation marks omitted) (“It is basic that in
responding to a document production request, pursuant to Fed.R.Civ.P. 34(a), a party is not
required to create documents meeting the document requests, only to produce documents already
in existence.”). The Motion to Compel is denied insofar as it seeks GE to produce documents
that do not exist.
To the extent Plaintiffs seek documents in this category to be produced in native format,
GE maintains that has produced spreadsheets in accordance with the parties’ ESI protocol. In
their reply, Plaintiffs disagree and claim that GE misconstrues the ESI protocol. The Court
hereby orders the parties to meet and confer in good faith regarding the application of the ESI
protocol to this singular issue and file a joint status report within 14 days of this Ruling. The
Court finds it difficult to imagine that the parties, who are represented by very capable counsel,
will not come to an agreement on this seemingly minor issue.

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Category Three:
Finally, Plaintiffs seek production of customer service documents which show “a
problem with GE customer service representatives intentionally committing errors when
recording consumer complaints so as to avoid filling out extra paperwork after a customer calls
to complaint about a safety-related problem with a microwave.” While all consumer complaints
are not relevant or proportional to the needs of the case, complaints specific to spontaneous glass
door shattering in the models of the microwaves at issue in this case are clearly relevant. GE
should produce these within 45 days of the date of this Ruling.
Adverse Inference Instruction:
Plaintiffs seek to have the Court exclude from trial any Samsung Korea documents not
produced in response to their requests. This request is premature, as the issue is speculative at
this juncture. Likewise, the Plaintiffs are not entitled to an adverse inference instruction at this
time. See Zeiner v. Messina-Toombs, No. 312CV1414WWEWIG, 2015 WL 5062440, at *2 (D.
Conn. Aug. 26, 2015).
Conclusion
For the reasons set forth above, Plaintiff’s Motion to Compel [Doc. # 128] is granted in
part and denied in part. 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, this 1st day of April, 2016, at Bridgeport, Connecticut.
/s/ William I. Garfinkel
WILLIAM I. GARFINKEL
United States Magistrate Judge

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