See et al v. Swagelok Company

Filing 104

ORDER in Response to Telephonic Informal Discovery Dispute Hearing held on 10/2/2018.(Written Opinion). Signed by Magistrate Judge Katherine M. Menendez on 10/9/2018. (LCC)

UNITED STATES DISTRICT COURT
DISTRICT OF MINNESOTA
In re: McNeilus Manufacturing
Explosion Coordinated Litigation

Case No. 17-cv-5237-PJS-KMM

ORDER

Defendant Swagelok Company seeks to conduct independent destructive
testing of critical evidence without the input, involvement, or observation of any
other party. Indeed, Swagelok has not revealed the precise nature of the test they
would like to run or the evidence that such a test might yield. Defendant San Diego
Fluid System Technologies joins in Swagelok’s request. The plaintiffs in the matter
oppose Swagelok’s proposal. The Court received letter briefs from each side and then
held a telephonic informal discovery dispute hearing on October 2, 2018. For the
reasons set forth below, the Court denies Swagelok’s request.
All of the parties in this litigation agree about several things that are relevant to
the Court’s determination. First, the material at issue is a 36 foot long length of hose
that is central to the case, which involves a serious explosion, grave injuries, and
significant property damage. Second, the various segments of hose were affected by
the fire in very different ways, depending on their location and their proximity to

clamps and other items. Therefore, tests on one part of the hose may yield very
different results than identical tests on other parts of the hose. And third, the testing
Swagelok seeks to do will be “destructive,” but only as to very small pieces taken from
different parts of the hose.
The Court concludes that, given the facts of this case, it is not appropriate for
Swagelok to perform ex parte destructive testing on any part of the hose. Because it
seems clear that the fire and explosion may have affected different parts of the hose in
very different ways, destroying any part of the hose ex parte would deprive the other
parties from performing their own tests on a part of the hose that is certain to be
identical or very similar. The cases Swagelok cites in support of its request are not
persuasive. Ostrander by Ostrander v. Cone Mills, Inc., 119 F.R.D. 417 (D. Minn. 1988)
does not support Swagelok’s position that private or independent destructive testing
of evidence is permissible under Minnesota law. Rather, Ostrander discusses whether
to permit destructive testing in the first place and instructs the court to “balance the
interests to be served by destructive testing against the value of preservation of the
evidence on behalf of the opposing party.” Id. at 419. In balancing the parties’
interests, the Ostrander court specifically cited the opposing party’s “opportunity to
attend and observe” the proponent’s testing as a factor that supported permitting
destructive testing to take place. Id. Indeed, each case cited by either party that
permits destructive testing explicitly contemplates or requires inspection or attendance

of the destructive test by the non-testing party. Trice v. Toyota Motor Corp., No. 10-cv2804 (ADM/AJB), 2012 WL 12894708 at (*2) (D. Minn. Sept. 12, 2012)
(“[D]efendants will be permitted to attend and record the destructive testing.”);
Mirchandani v. Home Depot, U.S.A., Inc., 235 F.R.D. 611, 617 (D. Md. 2006)
(“Defendants will be able to attend the testing….”); Spell v. Kendall-Futuro Co., 155
F.R.D. 587, 588 (E.D. Tex. 1994) (“Plaintiff, along with his counsel and expert(s),
may be present to observe all testing.”); see also Pizza Hut, Inc. v. Midwest Mech., Inc., No.
86-c-5487, 1988 WL 8980 at * 1 (N.D. Ill. Feb. 1, 1988) (permitting non-testing party
to attend and videotape the testing process despite the fact that the test would not
totally destroy the relevant evidence).
Swagelok’s citation to Sperberg v. Firestone Tire & Rubber Co., 61 F.R.D. 80 (N.D.
Ohio 1973), is similarly unavailing. In Sperberg, the issue was whether the plaintiff
could be permitted to dictate what tests the defendant would perform, not, as here,
whether one party could perform a destructive test without permitting the other party
to attend or observe the test. Id. at 81–82. Instead, the Court finds Jeld-Wen, Inc v.
Nebular Glasslam Intern., Inc., 249 F.R.D. 390 (S.D. Fl. 2008), more applicable to the
situation at hand.
In Jeld-Wen, the court specifically denied a motion for private destructive
testing. There, similar to here, the proponent of the tests argued that there were many
pieces of evidence (windows) to be tested, and thus there was no risk of destruction

of the evidence. Id. at 398. The Court rejected this argument in part due to the
potential variation in the windows. Id. Similarly, in the current dispute, there is the
potential for variation even within the small samples that Swagelok proposes, and
there is risk that the destruction of a unique sample could occur. The potential
prejudice to the plaintiffs in this case should this happen outweighs the prejudice
Swagelok faces by revealing test results that are potentially not in its favor, or by
disclosing one aspect of its litigation strategy. See id. Requiring Swagelok to permit all
parties and their experts to consult about and attend any destructive testing is an
adequate safeguard against the prejudice that the plaintiffs face.
Based on the foregoing, the Court denies Swagelok’s request to conduct
destructive testing independently.

Date: October 9, 2018

/s/ Katherine Menendez
Katherine Menendez
United States Magistrate Judge