Caldwell v. Morpho Detection, Inc. et al

Filing 43

MEMORANDUM AND ORDER -- IT IS HEREBY ORDERED that Defendant Morpho Detection, Inc.'s Motion for Protective Order [Doc. 40] is GRANTED. IT IS FURTHER ORDERED that topics 25 and 26 of Plaintiff's Notice of Corporate Repre sentative Deposition served upon MDI are QUASHED. IT IS FURTHER ORDERED that Plaintiff's Motion to Compel Defendant Morpho Detection, Inc.'s Corporate Representative Deposition [Doc. 38] is DENIED. Signed by Honorable Audrey G. Fleissig on 7/15/11. (KCM)

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF MISSOURI
EASTERN DIVISION

DEBORAH CALDWELL,
Plaintiff,
vs.
MORPHO DETECTION, INC.,
Defendant.

)
)
)
)
)
)
)
)
)

Case No. 4:10CV01537 AGF

MEMORANDUM AND ORDER
This matter comes before the Court on Plaintiff’s Motion to Compel Defendant
Morpho Detection, Inc.’s Corporate Representative Deposition (Doc. 38) and Defendant
Morpho Detection, Inc.’s Motion for Protective Order (Doc. 40). A hearing on both
parties’ motions was held on July 15, 2011. Upon review of the entire record, including
parties’ briefs, and for the reasons set forth below, the Court will deny Plaintiff’s motion
to compel and will grant Defendant Morpho Detection, Inc.’s motion for protective order.
Background
Plaintiff, an employee of the Transportation Security Administration (“TSA”) at
St. Louis Lambert International Airport, brought this products liability lawsuit against
Morpho Detection, Inc. (“MDI”) alleging that she sustained injuries while loading a
luggage scanner designed to detect explosives in checked passenger luggage. (Doc. 5, ¶¶
15-17.) Specifically, Plaintiff alleges that she was injured when a piece of luggage struck
the opening portal of the luggage scanner and fell from the side of the scanner’s
conveyor, striking Plaintiff, on June 9, 2007. (Doc. 5, ¶¶ 16-17.) Plaintiff contends that

the luggage scanner, an InVision model CTX 5500 DS, was designed, manufactured and
sold by a predecessor to MDI, and that the luggage scanner was the cause of Plaintiff’s
injury. (Doc. 5, ¶¶ 16-17.) Plaintiff also contends that Plaintiff’s injury could have been
prevented if guardrails were placed along the scanner’s infeed ramp. (Doc. 5, ¶ 21(d).)
On May 6, 2011, Plaintiff served on MDI a Notice of Corporate Representative
Deposition, as well as a list of thirty-four topics to be covered at the deposition. Topic 25
requested a corporate representative to testify on “The decision to include or not include a
guardrail or protective shield along the output of the CTX 5500 DS luggage scanner.”
(Doc. 41-1, ¶ 25.) Topic 26 requested a corporate representative to testify about “Other
lawsuits relating to claims of injury by TSA employees suffered while using or caused in
any way by a CTX 5500 DS luggage scanner.” (Doc. 41-1, ¶ 26.)
On June 7, 2011, MDI served its Objections to Plaintiff’s Notice, including its
objections to topics 25 and 26 of Plaintiff’s designated topics. MDI objected to the
information sought by topics 25 and 26 because it argued the information sought was
irrelevant, not reasonably calculated to lead to discoverable information, and unduly
burdensome. (Doc. 41-1, ¶¶ 25, 26.) MDI also objected to topic 26 on the grounds that it
was overly broad. (Doc. 41-1, ¶ 26.) In accordance with Local Rule 3.04 and Federal
Rule of Civil Procedure 37(a), the parties participated in a telephone conference on July
13, 2011, in an attempt to resolve their discovery disputes, but were unable to resolve
their disputes regarding topics 25 and 26. (Doc. 38, ¶5; Doc. 41 at 1-2.)
Plaintiff now seeks for this Court to order MDI to produce its corporate
representative to testify on topic 25 of Plaintiff’s Notice of Corporate Representative
2

Deposition. Conversely, MDI seeks for this Court to enter a protective order quashing
topics 25 and 26 of Plaintiff’s Notice of Corporate Representative Deposition.
Legal Standard
Under Federal Rule of Civil Procedure Rule 26(b)(1), parties may obtain discovery
“regarding any nonprivileged matter that is relevant to any party’s claim or defense . . . .”
Rule 26(b) also authorizes the Court, for good cause, to “order discovery of any matter
relevant to the subject matter involved in the action.” Such “[r]elevant information need
not be admissible at the trial if the discovery appears reasonably calculated to lead to the
discovery of admissible evidence.” Id. Evidence is relevant if it has “any tendency to
make the existence of any fact that is of consequence to the determination of the action
more probable or less probable than it would be without the evidence.” Fed. R. Evid.
401.
Rule 26(c)(1)(A) authorizes a court, for good cause, to issue an order limiting
discovery “to protect a party . . . from annoyance, embarrassment, oppression, or undue
burden expense.” The party moving for a protective order has the burden of
demonstrating good cause for the order. Miscellaneous Docket Matter No. 1 v.
Miscellaneous Docket Matter No. 2, 197 F.3d 922, 926 (8th Cir. 1999); Infosint SA v. H.
Lundbeck A.S., 2007 WL 1467784 (S.D.N.Y. May 16, 2007); Uniroyal Chem. Co. v.
Syngenta Crop Prot., 224 F.R.D. 53, 56 (D. Conn. 2004). The movant “must make a
specific demonstration of facts in support of the request as opposed to conclusory or
speculative statements about the need for a protective order and the harm which will be
suffered without one.” Frideres v. Schlitz, 150 F.R.D. 153, 156 (S.D. Iowa 1993).
3

“[T]he moving party must demonstrate that ‘disclosure will work a clearly defined and
very serious injury.’” Uniroyal Chem Co., 224 F.R.D. at 56.
Also, under Rule 37(a) of the Federal Rules of Civil Procedure, “a party may move
for an order compelling disclosure or discovery.” Fed. R. Civ. P. 37(a)(1). Such a motion
“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.” A motion to compel a discovery response may be made if

(i) a deponent fails to answer a question asked under Rule 30
or 31; (ii) a corporation or other entity fails to make a
designation under Rule 30(b)(6) or 31(a)(4); (iii) a party fails
to answer an interrogatory submitted under Rule 33; or (iv) a
party fails to respond that inspection will be permitted--or fails
to permit inspection--as requested under Rule 34.
Fed. R. Civ. P. 37(a)(3)(B).

“[A]n evasive or incomplete disclosure, answer, or

response must be treated as a failure to disclose, answer, or respond.” Fed. R. Civ. P.
37(a)(4).
Discussion
Topic 25
Topic 25 requests an MDI corporate representative to testify on “The decision to
include or not include a guardrail or protective shield along the output of the CTX 5500
DS luggage scanner.” (Doc. 41-1, ¶ 25.) MDI seeks to have the Court quash topic 25
because design decisions relative to the output of the luggage scanner are irrelevant to
Plaintiff’s claims that the luggage scanner’s entrance conveyor and entry portal were
defectively and negligently designed, or that MDI failed to warn of such defects. MDI
4

also argues that requiring it to respond to Plaintiff’s requests regarding the output of the
luggage scanner would also expose MDI to a burdensome and expensive search and
production of information regarding the output, which would also include the
cumbersome and time consuming process of submitting materials to TSA for security
clearance prior to production of these materials to Plaintiff.
Plaintiff’s Complaint only alleges a defective incline entrance conveyor and a
defective opening for passenger luggage to enter the machine. (Doc. 5, ¶¶ 20, 27, 34(a)(b).) Plaintiff has not made any allegations that the output of the luggage scanner was
similarly defective. Moreover, Plaintiff has alleged she was injured when a piece of
luggage struck the opening portal of the luggage scanner and fell from the side of the
scanner’s entrance conveyor, not from the output of the luggage scanner. (Doc. 5, ¶¶ 1617.) While Plaintiff argues that her allegation of a product defect, and MDI’s asserted
“government contractor defense,” makes the design and development of the product’s
entire luggage handling components and the decision to include or not include guard rails
on those components relevant, she has cited no cases that support such a finding.
Plaintiff cites to Lewy v. Remington Arms Co., Inc., 836 F.2d 1104, 1107-08 (8th
Cir. 1988), but that case is distinguishable from the case at hand. In Lewy, the Court
admitted evidence of a gun that was substantially similar to the gun at issue only after the
plaintiff had established that the two guns were substantially similar in both manufacture
and defect, and specifically excluded any evidence of other gun discharges that may have
resulted from other causes unrelated to the alleged defect in the gun at issue. Id. at 1108.
In the present case, Plaintiff has not alleged any defect in the output of the luggage
5

scanner, or that she was injured by a defect in the output of the luggage scanner, nor has
she alleged or established that the entrance and exit conveyor ramps were substantially
similar.
Moreover, although MDI asserted its objections in early June, 2011, Plaintiff did
not bring this matter to the Court’s attention until she filed her motion to compel on July
13, 2011, just days before the scheduled 30(b)(6) deposition. At this late date, it would
be unfair to require MDI to prepare a corporate representative on matters so unrelated to
the claims in the Complaint. Further it would not be reasonable to expand the scope of
the discovery to matters that have little, if any, relation to the claims at issue so late in the
case and so soon before the expert witness disclosure deadlines.
The Court finds that topic 25 is not “relevant to any party’s claim or defense,” as
required by Rule 26(b)(1) and would cause undue prejudice to MDI, and therefore, will
quash topic 25 of Plaintiff’s Notice of Corporate Representative Deposition served upon
MDI.
The Court notes that, at the hearing, Plaintiff raised the additional issue of whether
the end cap to the exit ramp was a retrofit to the luggage scanner, which might therefore
implicate the government contractor defense. The Court finds that this issue is not
properly before the Court at this time because it does not fall within the scope of topic 25.
However, Plaintiff shall be free to issue discovery with regard to the changes made to the
luggage scanner to install the end cap and whether those changes were approved by the
government.

6

Topic 26
Topic 26 requests an MDI corporate representative to testify about “Other lawsuits
relating to claims of injury by TSA employees suffered while using or caused in any way
by a CTX 5500 DS luggage scanner.” (Doc. 41-1, ¶ 26.) MDI seeks to have the Court
quash topic 26 because it argues that discovery regarding injuries allegedly suffered by
TSA employees “while using or caused in anyway” by a CTX 5500 DS luggage scanner
is overly broad and improperly encompasses claims and alleged injuries that are not
relevant and not substantially similar to Plaintiff’s claims. At the July 15, 2011 hearing,
Plaintiff advised the Court that it consented to MDI’s objection and will limit its
questioning of MDI’s corporate representative accordingly.
Accordingly,
IT IS HEREBY ORDERED that Defendant Morpho Detection, Inc.’s Motion for
Protective Order (Doc. 40) is GRANTED.
IT IS FURTHER ORDERED that topics 25 and 26 of Plaintiff’s Notice of
Corporate Representative Deposition served upon MDI are QUASHED.
IT IS FURTHER ORDERED that Plaintiff’s Motion to Compel Defendant
Morpho Detection, Inc.’s Corporate Representative Deposition (Doc. 38) is DENIED.

___________________________________
AUDREY G. FLEISSIG
UNITED STATES DISTRICT JUDGE
Dated this 15th day of July, 2011.

7