Hansen et al v. Vista Outdoor Inc et al

Filing 75

ORDER denying Plaintiff's 67 Motion to Compel Discovery and Defendants' motion for sanctions (Doc. 70 at 7-8). See text of Order. Signed by Chief Magistrate Judge CJ Williams on 3/22/2018. (skm)

IN THE UNITED STATES DISTRICT COURT
FOR THE NORTHERN DISTRICT OF IOWA
CENTRAL DIVISION

RONALD W. HANSEN,
No. 17-CV-3002-LTS
Plaintiff,
ORDER
vs.
SAVAGE ARMS CO.; and SAVAGE
ARMS INC.,
Defendants.
____________________
TABLE OF CONTENTS
I.

Factual and Procedural Background ......................................................... 2

II. Applicable Law ................................................................................. 3
III.

Discussion ..................................................................................... 5

A. Bulged Barrels ................................................................................ 6
B. Muzzleloader Return Team ............................................................... 11
C. Sanctions..................................................................................... 12
IV.

Conclusion................................................................................... 13
This matter is before the Court on Ronald W. Hansen’s (“plaintiff”) Motion to

Compel Discovery and Request for Expedited Relief. (Doc. 67). Savage Arms Co.1 and
1

Savage Arms Co. has apparently been dissolved and no longer exists. (Doc. 9, at 1 n. 1
“Savage Arms Co. is a dissolved Delaware Corporation and is not a viable legal entity.”).
However, Savage Arms Co. has not been dismissed from the instant case. Thus, the Court will
refer to both Savage Arms Co. and Savage Arms Inc. as the defendants in this matter.

Savage Arms Inc. (“defendants”) timely filed their resistance (Doc. 70), and plaintiff
timely filed his reply. (Doc. 71). Although plaintiff requested oral argument, the Court
determined that oral argument was not necessary and, further, that granting plaintiff’s
request for oral argument would hamper plaintiff’s request for expedited relief. As such,
the Court considers the motion to be fully submitted and ripe for a ruling. For the
following reasons, plaintiff’s motion is denied. Defendants’ request for sanctions is
denied.
I.

FACTUAL AND PROCEDURAL BACKGROUND

Plaintiff alleges that while firing a muzzleloader rifle manufactured by defendants,
the muzzleloader exploded, causing plaintiff to suffer severe permanent injury to both his
right hand and ear. (Doc. 8). The cause of the alleged explosion is in dispute. Plaintiff
theorizes that the explosion was caused by a design defect, which caused the steel used
to manufacture the firearm to weaken and begin “bulging,” before ultimately exploding.
(Doc. 67-3, at 2-4). Defendants, however, contend that the alleged explosion was caused
by user error as opposed to a defect with the firearm. This dispute has led plaintiff to
seek discovery of those firearms whose barrels bulged. Although defendants maintain
that bulged barrels are irrelevant to the instant litigation, defendants assert that “in an
effort to avoid discovery disputes and move this case forward, Defendant[s] produced
copies” of all information pertaining to bulged barrels that plaintiff contends has gone
unproduced. (Doc. 70, at 4-6). Plaintiff, in turn, asserts that defendants’ claim that they
have produced all such material “is simply untrue and misleading.” (Doc. 71, at 2).
Plaintiff, however, offers nothing in support of this contention.
This is the second motion to compel discovery that has come before the Court. In
the Court’s first Order, the Court determined that defendants properly objected to certain
definitions posed by plaintiff in the context of discovery requests and that defendants

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properly proposed different clarifying definitions. (Doc. 62, at 11-12). The Court
previously found the alternative definitions to be “unobjectionable.” (Id., at 11). As the
Court noted, however, the Court’s determination that the definitions were acceptable was
due more to plaintiff’s failure to provide the Court with any reason to find the alternative
definitions improper, than it was due to a finding on the merits of the definitions
themselves. (Id., at 11-12). Otherwise stated, plaintiff previously failed to make his
case that the definitions were improper. The issues currently presented largely overlap
with those issues the Court considered previously. The Court has addressed the overlap
where appropriate.
The issues presented in the instant motion are as follows: 1) whether bulged barrels
are to be included within the scope of discovery; 2) whether defendants should be
compelled to produce “any and all information generated by the muzzleloader return
team;” 3) whether defendants should be compelled to produce “in as convenient form as
possible” the contact information for customers who returned muzzleloaders with bulged
barrels; 4) whether defendants should be compelled “to make an immediate due and
diligent search for the current employment, addresses[,] and phone numbers of proposed
deponents;” and 5) whether defendants should be ordered to comply with the Court’s
previous Order. (Doc. 62). (Doc. 67, at 1-3). Defendants contend that the motion “was
not substantially justified,” and request that they be awarded reasonable attorneys’ fees
incurred in resisting the motion. (Doc. 70, at 7-8).
II.

APPLICABLE LAW

A party moving to compel discovery “must include a certification that the movant
has in good faith conferred or attempted to confer with the person or party failing to make
disclosure or discovery in an effort to obtain it without court action.” FED. R. CIV. P.
37(a)(1); see also LR 37(a). Alternatively, counsel may certify in a written declaration

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that such a personal conference was impossible “and describe the efforts undertaken to
schedule the conference. An exchange of written communications or a single telephone
message will not, by itself, satisfy the requirements of this [rule].” LR 37(a). The
importance of the meet-and-confer requirement is not to be diminished. See Williams v.
Cent. Transp. Int’l., Inc., No. 4:13-CV-2009 (CEJ), 2014 WL 6463306, at *2 (E.D.
Mo. Nov. 17, 2014) (“The meet-and-confer requirement is ‘not an empty formality.’”).
Rule 26(b)(1) of the Federal Rules of Civil Procedure provides:
Unless otherwise limited by court order, the scope of discovery is as
follows: 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, considering 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. Information within this scope of
discovery need not be admissible in evidence to be discoverable.
FED. R. CIV. P. 26(b)(1). Rule 26(b) is widely acknowledged as “liberal in scope and
interpretation, extending to those matters which are relevant and reasonably calculated to
lead to the discovery of admissible evidence.” Hofer v. Mack Trucks, Inc., 981 F.2d
377, 380 (8th Cir. 1992) (citation omitted). Additionally, in the context of discovery,
the standard of relevance is “broader” than in the context of admissibility. Id. (citing
Oppenheimer Fund, Inc. v. Sanders, 437 U.S. 340 (1978)). Yet, “[s]ome threshold
showing of relevance must be made before parties are required to open wide the doors of
discovery and to produce a variety of information which does not reasonably bear upon
the issues in the case.” Id.
Rule 401 of the Federal Rules of Evidence reads: “[e]vidence is relevant if: (a) it
has any tendency to make a fact more or less probable than it would be without the
evidence; and (b) the fact is of consequence in determining the action.” FED. R. EVID.

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401. A discovery request “should be considered relevant if there is any possibility that
the information sought may be relevant to the claim or defense of any party.” Catipovic
v. Turley, No. C11-3074, 2013 WL 1718061, at *2 (N.D. Iowa Apr. 19, 2013) (internal
quotation marks and citation omitted).
The party requesting discovery bears the burden of making a threshold showing
that the requested discovery would be relevant; once this threshold has been met, the
burden of proving irrelevance shifts to the party resisting the motion to compel. Hofer,
981 F.2d at 380-81 (holding that the proponent of discovery bears the initial burden of
establishing relevance); Cont’l Ill. Nat’l Bank & Trust Co. of Chi. v. Caton, 136 F.R.D.
682, 684-85 (D. Kan. 1991) (“All discovery requests are a burden on the party who must
respond thereto.

Unless the task of producing or answering is unusual, undue or

extraordinary, the general rule requires the entity answering or producing the documents
to bear that burden.” (internal citation omitted)).
Here, the Court finds that the parties did properly meet and confer regarding this
discovery dispute in compliance with FED. R. CIV. P. 37(a)(1) and LR 37(a).
III.

DISCUSSION

Having found that the meet and confer requirement has been satisfied, the Court
will first consider whether bulged barrels should be included within the scope of
discovery and whether defendants should be compelled to produce “the last known
address and telephone number of all persons who returned” their muzzleloaders due to
bulged barrels. (Doc. 67, at 2). The Court will then turn to whether defendants should
be compelled to produce any materials generated by the muzzleloader return team.
Finally, the Court will consider defendants’ motion for sanctions.
The Court previously ordered defendants “to supplement their discovery responses
to explicitly state that they have diligently and in good faith searched for [documents

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responsive to plaintiff’s requests for production] and have produced all responsive
documents [defendants] located.” (Doc. 62, at 16). This declaration is relevant to
whether defendants should be compelled to produce the materials now requested, as
outlined supra, as well as to plaintiff’s final request that defendants be ordered to come
into compliance with this direct mandate.
The Court has been advised that although defendants had not provided the
aforementioned declaration as of the date the instant motion was filed, defendants have
since provided the declaration. The Court previously provided that it would accept
defendants’ declaration as true. (Id.). The Court stands by that intention and, thus, is
satisfied that defendants have fully complied with the Court’s previous Order. As a
result, plaintiff’s request that defendants be required to come into compliance with the
Court’s previous Order (Doc. 62) is denied as moot. Likewise, the parties have indicated
that defendants have provided the requested contact information for potential deponents.
(Docs. 70, at 7; 71, at 3). As such, plaintiff’s request that defendants be compelled to
provide the requested contact information is denied as moot.
A.

Bulged Barrels

The motion to compel currently at issue largely circles around the definition of
“other similar instances” defendants proposed in response to plaintiff’s discovery
requests. Plaintiff contends that the definition of “other similar instances” should include
bulged barrels because, as shown above, plaintiff asserts that a bulging barrel is indicative
of a barrel that will soon explode. (Doc. 67-3, at 3-4). Thus, plaintiff’s logic is that
bulged barrels should not be excluded from discovery simply because they had not yet
reached the point of exploding. (Id.).
As defendants assert, this issue has already been litigated. The definition of “other
similar instances” was one of the definitions previously submitted to the Court, and the

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Court previously found the definition proposed by defendants—which did not include
bulged barrels as “other similar instances”—was not objectionable. Plaintiff had his
chance to present the Court with evidence showing why bulged barrels should be included
in the definition of “other similar instances,” and plaintiff failed to use such evidence in
support of his position. Plaintiff now relies upon an expert witness report in support of
his position. (Doc. 67-7). Notably, this report is dated October 16, 2017 (Doc. 67-7, at
30), and was included as an exhibit to plaintiff’s first motion to compel. (Doc. 40-2).
The difference, however, is the purpose for which the report is now being used, as will
be discussed infra. To allow a party a second opportunity to litigate an issue such as the
one now presented results in a waste of judicial resources and a waste of the parties’
resources.

See Parklane Hosiery Co., Inc. v. Shore, 439 U.S. 322, 326 (1979)

(“Collateral estoppel . . . has the dual purpose of protecting litigants from the burden of
relitigating an identical issue with the same party or his privy and of promoting judicial
economy by preventing needless litigation.” (citation omitted)). Such a waste certainly
does not serve the interests of “secur[ing] the just, speedy, and inexpensive
determination” of cases. FED. R. CIV. P. 1. The Court will thus not permit plaintiff a
second opportunity to litigate the same issues presented previously.
As discussed above, the Court will not entertain plaintiff’s renewed request that
bulged barrels be included within the scope of discovery and that defendants be compelled
to produce the contact information for those customers who returned their muzzleloaders
due to bulged barrels.

The Court will, however, explain the rationale behind its

declination to reconsider the issue. Without fully recounting its earlier discussion (Doc.
62) of whether bulged barrels should be included in the definition of “other similar
instances,” the Court will summarily note the differences presented between this second
motion to compel and the first. The primary difference is that plaintiff has now met his

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burden of proof in showing why bulged barrels should be included in the definition.
Plaintiff previously presented no legal analysis nor expert opinion on the issue.
The primary issue presented with respect to whether bulged barrels are relevant is
an issue of metallurgy.2 The Court is not learned in metallurgy, nor is this an issue that
the Court could properly consider absent some sort of expert analysis. The first time
plaintiff raised the issue of bulged barrels, plaintiff simply provided argument, without
evidence, that bulged barrels should be included in the definition of “other similar
incidents.” Because the bulged barrels are an issue of metallurgy, about which the Court
cannot formulate its own findings, plaintiff’s argument alone was insufficient to meet his
burden of proving relevance. Hofer, 981 F.2d at 380.
Plaintiff has now, however, used an expert witness report to support this argument.
The report purports to show that when a muzzleloader’s barrel bulges, the bulge is caused
because of the same defect that causes barrels to ultimately explode. (See Doc. 67-7).
Although this report was included with plaintiff’s first motion to compel (Doc. 40-2),
plaintiff used the report merely to show that “plaintiff nevertheless plowed forward trying
to comply with the Court[’]s scheduling order.” (Doc. 40-1, at 6). At no point did
plaintiff attempt to use the report substantively or even exhibit recognition that the report
could be used substantively. In short, plaintiff’s second motion to compel rehashes the
arguments the Court previously decided, but now relies upon then-existing evidence for
its substantive, rather than its procedural, value. The Court will therefore not entertain
plaintiff’s argument that the bulged barrels should now be included within the scope of
discovery. It may be that plaintiff is correct that bulged barrels reflect firearms that will
soon explode with repeated firings.

Plaintiff, however, should have supported that

2

Metallurgy is the branch of science concerned with the physical and chemical behavior of
metallic elements, their intermetallic compounds, and their mixtures.

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argument with proper evidence in the first instance instead of resubmitting his motion with
newfound considerations of the same evidence.3
Even if the Court were inclined to grant the motion, however, the Court is doubtful
that defendants could produce additional materials. Defendants attested in their resistance
that plaintiff’s motion “is without merit as all complaints relating to bulged barrels have
been provided as part of the production of the Palatka materials. There is no benefit to[ ]
compelling production of documents that Plaintiff already possesses.” (Doc. 70, at 5).
The “Palatka” materials referenced in defendants’ resistance are the discovery materials
produced in Palatka v. Savage Arms, Inc., No. 1:10-cv-626, 2015 WL 13621441 (Mar.
31, 2015). Plaintiff in the instant case requested that defendants produce the entire body
of discovery that was produced in Palatka. Defendants, seemingly, complied. Thus,
plaintiff should be in possession of all discovery that was produced in Palatka.
In accordance with this Court’s prior Order (Doc. 62), defendant has already
provided a sworn declaration to plaintiff that defendant has produced all of the materials
produced in any previous litigation. (See also Doc. 67-2, at ¶ 21). Defendants’ statement
that “all complaints relating to bulged barrels” were included in the Palatka materials was
made by two attorneys who are officers of the Court and have a duty of candor to the
Court. Further, the legal profession is just that—a profession. Members of the legal
profession should be able to rely upon one another to conduct themselves as professionals,
which includes the basic courtesy of honesty regarding whether certain materials have
been produced. Although the Court is not so naïve as to think all attorneys are honest on
every occasion, the Court has no reason to doubt the truth of defense counsel’s insistence
that plaintiff has received the materials he now seeks to compel, yet again. See Jones v.
3

The Court will also briefly note that in the absence of plaintiff using the report for its substantive
value, the Court was under no obligation to make the argument that the report supported
plaintiff’s position sua sponte. It is not the job of the Court to make the parties’ arguments for
them, and the Court will not assume the role of advocate.

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Derwinski, 1 Vet. App. 596, 606 (Ct. App. Vet. Cl. 1991) (finding that “the Court must
be able to rely upon the representations of those who practice before it”). Indeed, the
Court has not been advised of any previous misdeeds in this case. Thus, even if the Court
were to compel defendants to produce all materials relating to bulged barrels, every
indication shows that plaintiff would not receive any new material that he does not already
possess. Should plaintiff later discover that defendants did withhold such information,
plaintiff may petition the Court for appropriate sanctions.
Further, the Court has explicitly considered the issue of whether defendants should
be compelled to provide plaintiff with the contact information of other customers who
returned their muzzleloaders due to bulged barrels. The Court’s analysis of that issue
surrounded the excessive number of interrogatories plaintiff propounded as opposed to the
substantive request at issue.

Defendants initially objected to certain of plaintiff’s

interrogatories as being in excess of the twenty-five interrogatories permitted without leave
of court. FED. R. CIV. P. 33(a)(1). The Court upheld defendants’ objections on this basis
and stated, in no uncertain terms:
The Court notes that defendants have provided substantive responses to some
of the interrogatories they contend are in excess of the number permitted.
However, the Court will not compel defendants to provide any further
responses to Interrogatories Seven through Twenty-Seven, as these are in
excess of the twenty-five permitted interrogatories.
(Doc. 62, at 15).

The interrogatory requesting the contact information at issue is

Interrogatory Number Eleven. Interrogatory Number Eleven, of course, falls within the
range of Interrogatories Seven through Twenty-Seven, which the Court explicitly found
were in excess of the number permitted. This issue, just as the definition of “other similar
instances” has already been litigated. The Court will not revisit this issue absent a
compelling reason.

As such, plaintiff’s motion with respect to bulged barrels and

customer contact information is denied.

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Further, defendants provided the Court with a spreadsheet purporting to identify
the exact Bates-Numbered pages at which plaintiff may find the contact information for
other customers who returned their muzzleloaders due to bulged barrels. (Doc. 70-1).
On its face, the spreadsheet is clear and identifies only a few pages to which plaintiff
would have to turn for each customer to locate the information requested. Plaintiff is thus
capable of readily identifying the contact information for each customer at issue.
The Court is unclear what plaintiff means by compelling defendants to produce the
requested information “in as convenient form as possible.” (Doc. 67, at 2). Plaintiff does
not specify whether he requests the information be produced in the most convenient form
for defendants to assemble it or whether he requests that it be produced in the most
convenient form possible for plaintiff to analyze it. Either way, plaintiff has mistaken the
standard for the production of such information. Federal Rule of Civil Procedure 33(d)
allows a party to produce business records in response to an interrogatory “if the burden
of deriving or ascertaining the answer will be substantially the same for either party.”
Plaintiff has not alleged that defendants are in possession of the requested information in
any form other than within the business records identified in the aforementioned
spreadsheet. Plaintiff, likewise, does not contend that he faces a greater burden in
ascertaining the information than defendants would face in culling through the records
indicated on the spreadsheet to locate the information. As such, plaintiff’s request is
without merit.
B.

Muzzleloader Return Team

Defendants’ resistance provides that “[p]laintiff is in possession of all information
known to exist (save for privileged communications with counsel) regarding [the
muzzleloader return team].” (Doc. 70, at 6-7). Plaintiff’s position is that plaintiff
requested information surrounding the muzzleloader return team “in several different

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interrogatories and requests for production.” (Doc. 71, at 5). In December 2017, the
Court ordered defendants to provide plaintiff with a sworn declaration that they had
“diligently and in good faith searched for responsive documents and [had] produced all
responsive documents they located.” (Doc. 62, at 16). If the information regarding the
muzzleloader return team was truly requested by plaintiff in its requests for production
and interrogatories propounded prior to the Court’s first Order, such information would
have fallen within the purview of the previously required declaration.
Although plaintiff should understand his own discovery requests better than
anyone, the Court will not make such an assumption in the instant case. The Court has
no reason to doubt that defendants have produced all discovery requested with respect to
the muzzleloader return team. To prevent relitigation of this issue, however, the Court
will require defendants to supplement their discovery responses with a sworn statement
that they have conducted a diligent and good faith search for all requested discovery
materials with respect to the muzzleloader return team and that all materials that have been
located have, in fact, been produced. Of course, if defendants cannot make this statement
truthfully, they should supplement their discovery responses accordingly prior to issuing
the statement.
This statement should be unnecessarily redundant because, as shown supra, this
statement should have been implicitly included in defendants’ prior sworn statement. The
Court will not require defendants to produce a similar statement with respect to each
discovery request, especially given the blanket declaration defendants have already made.
C.

Sanctions

The Court will turn now to defendants’ motion for sanctions. Although the Court
will not grant sanctions in response to the current motion, the Court will strongly consider
granting sanctions should plaintiff bring future unwarranted motions. See Willhite v.

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Collins, 459 F.3d 866 (8th Cir. 2006) (finding that monetary sanctions, a requirement that
counsel take and pass a law school course, and temporary suspension of counsel’s law
license were all appropriate sanctions for counsel having improperly brought a case before
the court). Although the parties are welcome to bring genuine issues before the Court,
plaintiff is cautioned against bringing issues before the Court that have already been
litigated. Defendants’ motion for sanctions is denied.
IV.

CONCLUSION

For the reasons set forth above, Plaintiff’s Motion to Compel Discovery and
Request for Expedited Relief is denied. (Doc. 67). Defendants’ motion for sanctions is
denied. (Doc. 70, at 7-8). Defendants are directed to provide a declaration that they
have conducted a diligent and good faith search for all requested discovery materials with
respect to the muzzleloader return team and that all materials that have been located have,
in fact, been produced.
IT IS SO ORDERED this 22nd day of March, 2018.

__________________________________
C.J. Williams
Chief United States Magistrate Judge
Northern District of Iowa

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