Ribeiro et al v. Baby Trend, Inc.

Filing 408

ORDER that the Defendants' Motion to Compel Inspections and Testing (Filing No. 384 ) is granted. Nondestructive visual inspection of the car seat at issue shall take place on April 6, 2016, in accordance with Defendants' proposed nondestructive inspection protocol. Ordered by Magistrate Judge F.A. Gossett. (LAC)

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF NEBRASKA
FRANCO RIBEIRO and DEANNA
RIBEIRO, as individuals and as next
friends and biological parents of
Lucas Ribeiro, an infant,
Plaintiffs,
v.
BABY TREND, INC., a corporation,
MARK SEDLACK, MILLENIUM
DEVELOPMENT CORP., INDIANA
MILLS & MANUFACTURING INC.,
LERADO GROUP CO., LTD.,
LERADO GROUP
(HOLDING)
COMPANY,
LTD.,
LERADO
(ZHONG SHAN) INDUSTRIAL CO.,
LTD., LERADO CHINA LIMITED,
LERADO
H.K.
LIMITED,
HOLMBERGS SAFETY SYSTEM
HOLDING AB, GNOSJOGRUPPEN
AB, HOLMBERGS CHILDSAFETY
AB, GNOTEC REFTELE AB, Maxi
MILIAAN
B.V.,
and
DOREL
INDUSTRIES, INC.,
Defendants.

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8:12CV204
ORDER

This matter is before the court on the motion to compel inspections and testing
(Filing No. 384) filed by Defendants Baby Tend, Inc., Mark Sedlack, and Millenium
Development Corp. (collectively, “Defendants”). For the reasons explained below, the
court will grant the motion.
Plaintiffs filed this suit alleging that the restraint system of a car seat
manufactured and/or developed by Defendants strangled and asphyxiated their child,

causing the child to suffer permanent brain and neurological injuries. Defendants filed
the present motion to compel the Plaintiffs to make available the car seat at issue to
conduct a nondestructive visual inspection prior to the parties’ depositions. (Filing No.
385 at p. 5). Plaintiffs object to the timing of the visual inspection because they
provided Rule 30(b)(6) notice of depositions to Defendants on January 22, 2016, prior to
Defendants’ request for inspection, and Defendants have not yet provided their available
dates for depositions. (Filing No. 400 at pp. 1-2).
Between January 27, 2016, and March 9, 2016, counsel for Defendants and
Plaintiffs exchanged several emails and telephone calls regarding scheduling of
depositions and inspection of the car seat. (Filing No. 385-3 to Filing No. 385-16).
Defendants’ counsel notified Plaintiffs’ counsel on February 8, 2016, of Defendants’
request to visually inspect the car seat prior to the depositions. (Filing No. 385-5 at p.
2). On March 2, 2016, counsel for Defendants formally served Plaintiffs with a
supplemental request for production for inspection and nondestructive testing under
Federal Rule of Civil Procedure 34. (Filing No. 385-11 at pp. 8-9). Defendants
outlined the nondestructive inspection protocol in their request. (Filing No. 385-11 at
pp. 12-13). Plaintiffs objected to the proposed inspection. (Filing No. 401-9 at p. 1).
Under Fed. R. Civ. P. 26(d), discovery may be used in any sequence unless the
court orders otherwise “for the parties’ and witnesses’ convenience and in the interests
of justice.” A party may serve on any other party a request to produce and permit the
requesting party to inspect and test tangible things in the responding party’s custody.
Fed. R. Civ. P. 34. A Rule 34 request must describe with reasonable particularity each
item or category of items to be inspected and must specify a reasonable time, place, and
manner for the inspection and for performing the related acts. Fed. R. Civ. P. 34.
The Plaintiffs have sole possession of car seat at issue in this case, which is
located at Plaintiffs’ counsel’s office in Omaha, Nebraska. (Filing No. 385-14 at p. 3).
Defendants seek to perform a nondestructive inspection to see how the car seat has been

handled and confirm it is Baby Trend’s product. (Filing No. 403 at p. 7). Defendants
assert that inspecting the car seat prior to their depositions will make the discovery
process more efficient. (Filing No. 403 at p. 7). Defendants argue they would be
prejudiced if they were not able to examine the car seat before being compelled to testify
about it. (Filing No. 403 at p. 8). Plaintiffs’ only objection to the nondestructive
inspection is related to its timing. As previously noted by this court, this litigation
involves multiple foreign entities and discovery in this case has been slow and difficult.
Defendants’ request to inspect the car seat prior to their depositions is reasonable and
appears aimed at expediting the discovery process. Therefore, in the interest of justice,
the court finds that the Defendants should be permitted to perform a nondestructive
inspection prior to the parties’ depositions. See Fed. R. Civ. P. 26(d). The parties are
available for the nondestructive inspection in Omaha, Nebraska, on April 6, 2016.
(Filing No. 385-16 at p. 5). The nondestructive inspection protocol proposed by
Defendants is reasonable. (Filing No. 385-11 at pp. 12-13). The Defendants’ motion
to compel should be granted and the nondestructive inspection should take place on
April 6, 2016, in accordance with Defendants’ proposed inspection protocol.
Defendants also seek to preserve the right to conduct a second inspection under
Rule 34, including destructive testing. (Filing No. 403 at p. 9). Defendants anticipate
they will seek destructive testing but have not yet submitted a proposed protocol under
Rule 34. (Filing No. 403 at p. 9). Plaintiffs have indicated in emails and filings in this
court that they will object to such a request. (Filing No. 400 at pp. 3-4). However,
Defendants have not yet made their request for destructive testing and the parties
therefore have not had the opportunity to confer regarding the issue. Therefore, the
court finds it premature to rule on Defendants’ potential request for destructive testing.
Accordingly,
IT IS ORDERED: Defendants’ Motion to Compel Inspections and Testing (Filing
No. 384) is granted. Nondestructive visual inspection of the car seat at issue shall

take place on April 6, 2016, in accordance with Defendants’ proposed
nondestructive inspection protocol.

DATED: April 4, 2016.
BY THE COURT:
s/ F.A. Gossett
United States Magistrate Judge