Turner et al v Summit Treestands, LLC

Filing 34

OPINION by U.S. Magistrate Judge Byron Cudmore: Plaintiffs Clinton and Kimberley Turner's Motion to Compel 26 is ALLOWED IN PART. See written order. Defendant Summit Treestands, LLC, is ordered to provide the supplemental responses as directed in this Opinion by December 23, 2011. (LB, ilcd)

E-FILED

Monday, 05 December, 2011 11:06:54 AM
Clerk, U.S. District Court, ILCD

IN THE UNITED STATES DISTRICT COURT
FOR THE CENTRAL DISTRICT OF ILLINOIS
SPRINGFIELD DIVISION

CLINTON TURNER and
KIMBERLEY TURNER,
Plaintiffs,
v.
SUMMIT TREESTANDS, LLC,
Defendant.

)
)
)
)
)
)
)
)
)
)

No. 11-CV-3053

OPINION
BYRON G. CUDMORE, U.S. MAGISTRATE JUDGE:
This matter comes before the Court on Plaintiffs Clinton and
Kimberley Turner’s Motion to Compel (d/e 26) (Motion). For the reasons
set forth below, the Motion is ALLOWED in part.
BACKGROUND
The Turners allege that on September 21, 2009, Plaintiff Clinton
Turner placed an order online for an “Osprey” model tree stand
manufactured by Defendant Summit Treestands, LLC (Summit). The
Osprey model was part of Summit’s Raptor Series (RS) tree stands. The
RS tree stands used a device referred to as the Talon hanging bracket.
The Osprey tree stand was delivered to Turner on or about September 28,

Page 1 of 16

2009. The stand is used in hunting deer. The stand is affixed to a tree and
the hunter climbs onto the stand to hunt. Clinton Turner used the stand on
November 13, 2009. While Clinton Turner was on the stand, the stand
disengaged from its mounting bracket causing him to fall and suffer
injuries. Complaint (d/e 1), ¶¶ 7-9. Clinton Turner brings claims for
products liability, negligence, and breach of warranty of merchantability.
Clinton’s wife Kimberley brings companion claims for loss of consortium.
See Complaint, Counts I-VI.
On June 23, 2011, the Turners served interrogatories and requests to
produce documents on Summit. Summit responded on or about
September 2, 2011. Summit objected to some interrogatories and requests
to produce, but, in general, provided some answers and documents. The
Turners ask the Court to overrule the objections and to order Summit to
give more complete responses. Summit responds that its responses are
complete. The parties have attempted to resolve this matter in good faith,
but have been unsuccessful.
The Turners have brought this Motion to compel responses to the
remaining disputed discovery requests. The Turners ask the Court to
compel answers to Interrogatories Nos. 2, 4, 6, 8, 10, 12, 15, and 19, and
responses to Requests to Produce Nos. 1, 14, 15, and 18. Plaintiffs’ Reply
to Defendant’s Response to Plaintiffs’ Motion to Compel (d/e 31) ¶¶ 1-2.
Page 2 of 16

ANALYSIS
Federal Rule of Civil Procedure 26(b)(1) allows parties to obtain
discovery regarding any matter, not privileged, which is relevant to the
claim or defense of any party. Relevant information need not be
admissible at trial if the discovery appears to be reasonably calculated to
lead to the discovery of admissible evidence. The rule gives the district
courts broad discretion in matters relating to discovery. See Brown-Bey v.
United States, 720 F.2d 467, 470-71 (7th Cir.1983); Eggleston v. Chicago
Journeymen Plumbers' Local Union No.130, 657 F.2d 890, 902 (7th Cir.
1981); see also, Indianapolis Colts v. Mayor and City Council of Baltimore,
775 F.2d 177, 183 (7th Cir.1985) (on review, courts of appeal will only
reverse a decision of a district court relating to discovery upon a clear
showing of an abuse of discretion). “[I]f there is an objection the discovery
goes beyond material relevant to the parties’ claims or defenses, the Court
would become involved to determine whether the discovery is relevant to
the claims or defenses and, if not, whether good cause exists for
authorizing it so long as it is relevant to the subject matter of the action.
The good-cause standard warranting broader discovery is meant to be
flexible.” Fed. R. Civ. P. 26(b)(1) Advisory Committee Notes, 2000
Amendment.

Page 3 of 16

The federal discovery rules are to be construed broadly and liberally.
Herbert v. Lando, 441 U.S. 153, 177 (1979); Jefferys v. LRP Publications,
Inc., 184 F.R.D. 262, 263 (E.D .Pa. 1999). Federal Rule of Civil Procedure
26(b)(1) provides that the “[p]arties may obtain discovery regarding any
matter, not privileged, that is relevant to the claim or defense of any
party . . .,” but “[f]or good cause, the court may order discovery of any
matter relevant to the subject matter involved in the action.” Id. The party
opposing discovery has the burden of proving that the requested discovery
should be disallowed. Etienne v. Wolverine Tube, Inc., 185 F.R.D. 653, 656
(D. Kan. 1999); Golden Valley Microwave Foods, Inc. v. Weaver Popcorn
Co., 132 F.R.D. 204, 207 (N.D. Ind. 1990); Flag Fables, Inc. v. Jean Ann’s
Country Flags and Crafts, Inc., 730 F. Supp. 1165, 1186 (D. Mass. 1989).
District Courts have broad discretion in discovery matters. Packman
v. Chicago Tribune Co., 267 F.3d 628, 646 (7th Cir., 2001). A party must be
diligent in pursuing the perceived inadequacies in discovery and the trial
court does not abuse its discretion if a party untimely seeks to compel
inadequate discovery responses. Id. at 647. However, even an untimely
filed motion to compel may still be allowed if the party demonstrates actual
and substantial prejudice resulting from the denial of discovery. Id.
Remember, we are talking discovery, not admissibility at trial.

Page 4 of 16

In light of these principles, the Court will address each disputed
discovery request. The discovery requests and responses quoted below
were all taken from the Motion, Exhibit C, Defendant Summit Treestands,
LLC’s Answers to Plaintiffs’ First Set of Interrogatories, and Exhibit D,
Defendant Summit Treestands, LLC’s Answers to Plaintiffs’ First Request
for Production of Documents.
I.

Interrogatories
A.

Interrogatory No. 2

Interrogatory no. 2 states:
Please identify all persons who assisted in the design of the
Raptor Series (RS) tree stands (including the Talon hanging
bracket) marketed and sold by Summit Treestands, LLC.
Summit responded:
Defendant objects to the overly broad and burdensome nature
of the request. Without waiving the objection, the Raptor Series
treestands, including the Talon Hanging Bracket was designed
in group effort by Summit Treestands representatives, including
Ron Woller.
The Turners ask the Court to compel the disclosure of all the
individuals who participated in the design of these products. Summit
responds that its answer is sufficient. The Court agrees with the Turners.
Stating that the design was done in group effort is non-responsive. Summit
makes no showing that disclosing the identity of these individuals would
impose a burden. The Court overrules the objections and orders Summit
Page 5 of 16

to identify all persons, by name, who assisted in the design of the RS tree
stands and the Talon hanging bracket as requested in the Interrogatory.
B.

Interrogatory No. 4

Interrogatory No. 4 states:
Was the design of the Talon hanging basket changed
prior to November 14, 2009 (the date of the incident in this
case)? If so, please state the nature of each change made, the
date of each change, the person requesting the change, the
person making the change in the design, and identify all
documents relating to each change.
Summit responded:
Defendant objects on the basis that the Interrogatory requests
information concerning a subsequent remedial measure. Without waiving
objection, Summit Treestands representatives, including Ron Woller, were
working on design changes for the Talon Hanging Bracket in late 2009.
Without waiving objection, see the engineering design drawings for the
2009 Talon Hanging Bracket/Strap System and the 2010 Talon Hanging
Bracket/Strap System. Bates Stamped pgs. 229-249, 279-282.
The Turners complain that Summit’s objection is improper because
the interrogatory asks for information about changes that occurred before
the alleged incident from which the action arose. The Court agrees, and
the objection is overruled. Summit is directed to answer the interrogatory.
If the design changes reflected in the documents identified in the current
answer are the only design changes that have been made, Summit is
directed to say so explicitly.

Page 6 of 16

C.

Interrogatory No. 6

Interrogatory No. 6 states:
Were the RS tree stands tested prior to being placed into
production? If so, please state:
a.) the date of each test;
b.) a description of each test (including the protocol and
results);
c.) the identity of the person(s) conducting the test(s);
d.) the location of the actual tree stand and/or components
tested and
e.) identify all documents relating to each test, including test
logs, photo video or digital images, reports notes and
correspondence.
Summit responded:
Defendant objects to the overly broad and burdensome nature
of the request. Without waiving the objection, the Talon
Hanging Bracket/Strap System was designed in a group effort
by Summit Treestands’ representatives, including Ron Woller.
The Raptor Series Hang-On Treestand and Talon Hanging
Bracket/Strap System went through extensive field testing by
Summit Treestands’ representatives. The Raptor Series HangOn Treestand and Talon Hanging Bracket/Strap System was
designed and manufactured in compliance with applicable
TMA/ASTM standards. The Raptor Series Hang-On Treestand
and Talon Hanging Bracket/Strap System was tested by an
independent laboratory and found to be in compliance with
applicable TMA/ASTM standards. Bates Stamped pages
20-61.
The Turners complain that the answer does not provide the
requested specifics about the testing. Summit makes no showing that the
interrogatory is overly broad or burdensome. The Court overrules the
objection and orders Summit to provide the requested information about

Page 7 of 16

the testing. If Summit does not know the answer to some of the
interrogatory, it can state that, but it must answer fully.
D.

Interrogatory No. 8

Interrogatory No. 8 states:
Please identify the person(s) referred to in communications with
the Consumer Products Safety Commission as a “prostaffer”
who reported in August, 2009, that a RS tree stand disengaged
from its hanging bracket while in use in the field, and state:
a.) the number of incidents reported by “prostaffers”;
b.) The date of each report by a “prostaffer”
c.) the identity of all person(s) having knowledge about
the incident(s) reported to you by “prostaffers”;
d.) the identity of the person to whom each report was
made;
e.) whether the reports were oral, written, or electronic;
f.)
the identity of the person who has custody of any
reports.
Summit responded:
The prostaffer is an individual identified as Greg Roe.
Defendant has no other documents responsive to this request.
The Turners complain that the response is incomplete. The Turners
ask the Court to order a complete response. The Court allows the request
in part. Summit is directed to state whether any other prostaffer reported
such an incident, and if so, to identify the additional prostaffer or
prostaffers. Summit is further directed to state whether the report was
written or oral and to whom the report was given.

Page 8 of 16

E.

Interrogatory No. 10

Interrogatory No. 10 states:
Please identify all documents generated in response to the
report(s) by prostaffer(s) relating to accidental disengagement
of RS tree stands from Talon hanging brackets.
Summit responded:
Defendant objects to the vague and ambiguous nature of the
request. Without waiving objection, there is no written
document concerning the incident with “prostaffer” in August
2009.
The Turners argue that the request is not vague or ambiguous. They
also view the term “written document” with suspicion. They are concerned
that the term may not include electronically stored documents such as
emails. They ask the Court to overrule the objection and order Summit to
state an answer completely. The Court agrees with Summit that the term
“generated in response” is somewhat vague. Summit, however, was able
to state whether it had written documents concerning the incident. The
Court orders Summit to state whether it has any other documents
concerning the incident, such as emails or other electronically stored
documents, and if so, to identify the same.
F.

Interrogatory No. 12

Interrogatory No. 12 states:
With regard to each such disengagement, please or identify
state:
Page 9 of 16

a.)
b.)
c.)
d.)
e.)
f.)
g.)
h.)
I.)

j.)

the date of the occurrence;
the model tree stand involved;
the location (city, county, and State) of the occurrence;
whether any investigation was undertaken by you;
the identities of all persons having knowledge of each such
disengagement;
the identities of all person(s) who conducted any investigation;
the identify all documents related to each such incident;
the person in possession of the tree stand and Talon hanging
bracket which were the subject of each such incident;
the person(s) who has possession and control of any
photographs, video tape, or digital image of the tree stand(s)
and/or Talon hanging brackets, involved in these incidents; and
the person(s) in possession and control of the documents
identified in the previous interrogatory.

Summit responded:
Defendant objects to the overly broad and burdensome nature
of the request. Without waiving objection, see the following:
Daniel Pustina, see Complaint, Bates Stamped pages 266-278.
Bobby Collins – no lawsuit. [address deleted] Coeburn Virginia
24320
The Turners complain that the response is incomplete. Summit
makes no showing that the interrogatory is overly broad or burdensome.
The Court overrules the objection and directs Summit to respond with the
information available to it. If Summit does not know the answer to some
part of the interrogatory, it should state so explicitly.
G.

Interrogatory No. 15

Interrogatory No. 15 states:
Please identify all differences between the RS Osprey tree
stand involved in this case and the RS Osprey tree stands
currently sold by you.
Page 10 of 16

Summit responded:
Defendant objects on the basis that the Interrogatory requests
information concerning subsequent remedial measures.
Without waiving objection, Summit Treestands representatives,
including Ron Woller, were working on design changes for the
Talon Hanging Bracket in late 2009. Without waiving objection,
see the engineering drawings for the 2009 Talon Hanging
Bracket/Strap System and the 2010 Talon Hanging
Bracket/Strap System. Bates Stamped pgs. 229-249, 279-282.
The Turners complain that the answer is not complete. They argue
that the objection is improper. The Court agrees that Turner should be
able to discover information about subsequent changes. Such information
may be admissible for certain limited purposes, and also may lead to
discoverable evidence. See Phillips v. Leitz Tooling Systems, 2007 WL
4438863, at *1 (S.D. Ind. 2007); Stallings v. Union Pacific R. Co., 2003 WL
21317297 (N.D. Ill. 2003). The Court therefore overrules the objection and
directs Summit to respond completely to the interrogatory. If the
referenced documents reflect all of the changes that have been made in
the Talon hanging bracket, Summit should state so explicitly.
H.

Interrogatory No. 19

Interrogatory No. 19 states:
Have you ever sold hanging tree stands other than RS tree
stands? If so, please state the model name and number of
each hanging tree stand, and the dates sold.

Page 11 of 16

Summit responded,
Defendant objects to the overly broad and burdensome nature
of the request. Defendant also objects that the request seeks
irrelevant information not likely to lead to discoverable
information.
The Turners ask the Court to overrule the objections. They argue the
request is not burdensome and evidence of alternate designs is relevant.
The Court agrees that evidence of alternate designs is relevant to the
Turners’ claims under all three theories of products liability, negligence,
and breach of warranty. Summit also makes no showing that the request is
overly broad or unduly burdensome. The Court, however, finds that some
time limit is appropriate. The Court therefore overrules the relevance
objection and overrules the overly broad and burdensome objection in part.
The Court directs Summit to answer the interrogatory, but limit the answer
to tree stands sold by Summit after January 1,2005. That time limit should
reduce the burden on Summit, but still provide relevant information about
alternate designs sold by Summit.
II.

Requests to Produce
A.

Request No. 1

Request No. 1 states:
Photographs and videotapes of the tree stand involved in this
case (including its components and related equipment); the
scene of the incident alleged in Plaintiff’s Complaint, and of the
Plaintiff.
Page 12 of 16

Summit responded:
Defendant objects on the basis that the information obtained at
the direction of legal counsel in anticipation, or during the
course, of litigation is protected by the attorney-client and/or
work product doctrine. Without waiving objection, Defendant is
not in possession of any documents responsive to this request.
The Turners state that Summit now acknowledges that it has
photographs of the tree stand in this case, but has not produced them.
Counsel for the Turners further states that Summit representatives took the
photographs with the Turners’ permission shortly after the incident. Motion,
at 8 ¶ 27. The Turners argues that this waives any claim of privilege. The
Court disagrees with the Turners. The work product privilege extends to
tangible things prepared in anticipation for litigation. There is no
requirement of confidentiality. Fed. R. Civ. P. 26(b)(3). If the photographs
were taken in anticipation of litigation, they may be covered by the work
product privilege. At this point, the Court cannot determine whether the
photographs were taken in anticipation of litigation. If the privilege applies,
the Turners have failed to make the required showing of need to overcome
the privilege. Fed. R. Civ. P. 26(b)(3)(A).1 The Court, therefore, directs
Summit to produce the responsive photographs if they are not privileged. If
Summit continues to assert the work product privilege, it must state the

1

Summit may also be required to disclose the photographs as part of its initial
disclosures if it may use them to support its defenses. See Fed. R. Civ. P.
26(a)(1)(A)(ii).
Page 13 of 16

basis for the claim of privilege in more detail. Summit must also produce a
privilege log in accordance with Rule 26(b)(4) for any privileged
photographs and any other documents that it is withholding pursuant to this
or any other claim of privilege.
B.

Request No. 14

Request No. 14 states:
Drawings of all versions of the Talon hanging bracket from its
initial conception.
Summit responded:
Defendant objects on the basis that some of the requested
documents will pertain to subsequent remedial measures.
Without waiving objections, see Bates Stamped pages 229249, 278-282.
The Turners ask the Court to overrule the objection and order
Summit to provide all responsive drawings. Summit’s response seems to
indicate that the documents contain drawings of all of the version of the
Talon hanging basket. Summit is directed to state whether the documents
provided contain all of the requested drawings. If the documents do not
contain all of the drawings, then the Court overrules the objections and
directs Summit to produce the additional drawings that are responsive to
the request. As discussed above, information about subsequent remedial
measures are discoverable.

Page 14 of 16

C.

Request No. 15

Request No. 15 states:
Documents relating to tests of RS tree stands and Talon
hanging brackets by any person, entity or group which were
done prior to the first date of production of the product in this
case.
Summit responded,
Defendant objects on the overly broad and burdensome nature
of the request. Without waiving objection, see Bates Stamped
pages 20-61.
The Turners ask the Court to overrule the objection and order
Summit to provide all responsive drawings. Summit’s response seems to
indicate that the documents produced are all of the responsive documents
related to testing before the first date of production. Summit is directed to
state whether the provided are all of the responsive documents. If not,
then the Court overrules the objection and directs Summit to produce all of
the responsive documents. Summit makes no showing that the request is
overly broad or unduly burdensome.
D.

Request No. 18

Request No. 18 states:
Documents relating to pre-November 14, 2009 accidental
disengagements of RS Tree stands from Talon hanging
brackets.

Page 15 of 16

Summit responded:
Defendant objects to the vague and ambiguous nature of the
request, pp 266-278.
The Turners ask the Court to overrule the objection and order
Summit to provide all responsive documents. Summit’s response identifies
some documents. Summit is directed to state whether the documents
provided are all of the responsive documents. If not, then the Court
overrules the objection and directs Summit to produce all of the responsive
documents. The request is not vague or ambiguous.
WHEREFORE, Plaintiffs Clinton and Kimberley Turner’s Motion to
Compel (d/e 26) is ALLOWED in part. Defendant Summit Treestands,
LLC, is ordered to provide the supplemental responses as directed in this
Opinion by December 23, 2011.
ENTER:

December 5, 2011

s/ Byron G. Cudmore
BYRON G. CUDMORE
UNITED STATES MAGISTRATE JUDGE

Page 16 of 16