Jenks et al v. New Hampshire Motor Speedway, Inc. et al

Filing 109

ORDER granting as outlined 104 Motion to Compel. Counsel for Jenks and Textron to confer within 14 days to resolve the issue of searching Dr. Vigilantes database or file system for his expert reports on warning issues in other cases. Textrons request for a copy of Dr. Vigilantes article is moot. So Ordered by Judge Joseph A. DiClerico, Jr.(dae)

UNITED STATES DISTRICT COURT FOR THE
DISTRICT OF NEW HAMPSHIRE

Melissa Jenks, G/N/F of
Roderick Jenks
v.

Civil No. 09-cv-205-JD
Opinion No. 2011 DNH 159

New Hampshire Motor Speedway, Inc.,
F/K/A New Hampshire Speedway, et al.
v.
ADL Leasing and Textron Financial, Inc.
O R D E R
Melissa Jenks, as the guardian and next friend of her
husband, Roderick Jenks, and on her own behalf, sued New
Hampshire Motor Speedway, Breann Thompson, and Textron, Inc.,
alleging negligence claims against Thompson and the Speedway and
product liability claims against Textron, arising from an
accident involving a golf cart.

Jenks has retained an expert

witness, William J. Vigilante, Ph.D., to provide his opinion
about the adequacy of warnings on the golf cart.

Textron moves

to compel Jenks to produce an article and expert reports that Dr.
Vigilante has prepared in other cases.

Jenks objects to the

motion on the grounds that Textron failed to include a
certification that it attempted to resolve the dispute before

filing the motion, that the discovery request is overly broad and
burdensome, and that the request seeks privileged material.

A.

Certification
Federal Rule of Civil Procedure 37(a)(1) requires that a

motion to compel “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.”

Under the rule, the

requirement to confer or make a good faith effort to do so is not
satisfied by an exchange of emails or letters demanding
production.

See Aponte-Vavedo v. Nalco Chem. Co., 268 F.R.D. 31,

40 (D.P.R. 2010); Antonis v. Electronics for Imaging, Inc., 2008
WL 169955, at *1 (D.N.H. Jan. 16, 2008).

In the absence of a

certification, the court may consider the circumstances to
determine whether an adequate effort was made to satisfy the
requirements of Rule 37(a)(1).

See Velazquez-Perez v. Developers

Diversified Realty Corp., 272 F.R.D. 310, 312 (D.P.R. 2011); see
also Abernathy v. Corinthian Colleges, Inc., 2011 WL 4055237, at
*1 (S.D. Ohio Sept. 12, 2011).
Textron did not include a specific certification that the
parties had conferred or that it had made a good faith effort to
confer about the discovery dispute as required by Rule 37(a)(1).
2

Textron did provide a history of the parties’ interaction about
the discovery issue, including copies of letters sent between
counsel.

In the motion Textron states:

“Undersigned counsel

attempted but was unable to obtain the assent of Plaintiffs’
counsel to this motion.”

Doc. no. 104, ¶16.

As part of the

“Preliminary Statement” section of the memorandum in support of
the motion, Textron states:

“Good faith attempts to resolve this

discovery dispute have been unsuccessful; this motion follows.”
Doc. no. 104-9 at 2.
The documented communication between counsel shows the
following.

During the deposition of Dr. Vigilante taken on May

20, 2011, counsel for Textron asked Dr. Vigilante if he had ever
before testified or consulted in a case involving the adequacy of
warnings on golf carts.
recall that he had.

Dr. Vigilante responded that he did not

When asked whether he had been retained or

involved in any “ATV-related” cases, he said he had been involved
in about six ATV cases and most of them involved the adequacy of
warnings.

Textron’s counsel then asked Dr. Vigilante if he could

find the names of the ATV cases, and Dr. Vigilante said he would
have to search his database which is organized by key words.
Counsel asked that Dr. Vigilante make a word search of his
database for “ATV” and “all terrain vehicle.”

Jenks’s counsel

asked Textron’s counsel to make the request to him.
3

Textron’s

counsel also asked for an article authored by Dr. Vigilante and
for Dr. Vigilante’s reports in two other cases.
On June 3, 2011, Textron’s counsel sent a letter to Jenks’s
counsel asking for certain documents and for the “[n]ames of all
cases and copies of all reports by Dr. Vigilante relating to All
Terrain Vehicles (“ATVs”) in Dr. Vigilante’s database.”

Jenks’s

counsel responded in a letter dated June 13, 2011, asking counsel
to send a formal request for production of documents.

Counsel

also included an “informal” response, stating that counsel would
provide the citation for an article authored by Dr. Vigilante,
that Dr. Vigilante would search his database for pertinent expert
reports, and that Dr. Vigilante would ask his other clients to
agree to allow him to release the reports he had prepared in
other cases.
On June 20, 2011, Textron sent a Rule 34 request for
production of documents, asking Jenks to produce the article,
“[a] complete copy of Dr. Vigilante’s prior case database
reflecting (but not limited to) those fields that identify the
names of the party(ies) retaining him, case caption, venue, case
description and/or product at issue, date of accident, and
whether a written report was prepared, as described by Dr.
Vigilante during his deposition,” and reports from two other
cases.

Textron’s counsel also disagreed that Dr. Vigilante’s
4

expert reports in other cases were subject to privilege, which
required him to ask permission to disclose them.
In response, Jenks’s counsel stated general objections to
the requests and specifically objected to having Dr. Vigilante
conduct the requested search without a commitment from Textron to
pay any related fees and before he had an opportunity to contact
his clients to get their permission to produce their work
product.

Jenks also objected on the grounds that the request for

the database was overly broad and burdensome, that it was not
sufficiently calculated to lead to admissible evidence, and that
Dr. Vigilante did not have a database as described in the
request.
On August 31, counsel exchanged emails about the requested
documents.

Jenks’s counsel said that he was not withdrawing

objections but would discuss the matter with opposing counsel and
would need to talk with Dr. Vigilante about the issues.
Textron’s counsel responded by saying that he was filing a motion
to compel and would certify that Jenks’s counsel did not assent
to the motion.

The motion to compel was filed the same day.

On

September 19, Jenks provided a copy of Dr. Vigilante’s article to
Textron’s counsel.
Counsel should have spent more time and made more of a good
faith effort to resolve this discovery dispute before resorting
5

to the court.

The discussion at Dr. Vigilante’s deposition and

the resulting exchange of correspondence does not appear to meet
the Rule 37(a)(1) requirement that the moving party confer or
attempt to confer with the opposing party about the dispute.

On

the other hand, Jenks’s objection to the motion to compel
demonstrates a lack of interest in resolving the dispute between
the parties.

To move the matter forward, the court will address

the motion on the merits, while cautioning counsel that they are
expected to use good faith efforts to resolve discovery disputes
and to comply with Rule 37(a)(1) before involving the court.

B.

Motion to Compel
A party may serve on another party a request “to produce and

permit the requesting party or its representative to inspect,
copy, test, or sample” certain documents that are within the
scope of Federal Rule of Civil Procedure 26(b) and are in the
party’s custody and control.

Fed. R. Civ. P. 34(a)(1).

“A party

seeking discovery may move for an order compelling an answer,
designation, production, or inspection.

This motion may be made

if: . . . (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).

6

An evasive or incomplete

response is treated as a failure to respond.

Fed. R. Civ. P.

37(a)(4).
Under Rule 26(b), unless otherwise limited, “[p]arties may
obtain discovery regarding any nonprivileged matter that is
relevant to any party’s claim or defense--including the
existence, description, nature, custody, condition, and location
of any documents or other tangible things . . . .”

The court

must limit discovery that is unreasonably cumulative or
duplicative, that can be obtained from another source which is
more convenient or less expensive or burdensome, when the party
seeking discovery has had an ample opportunity for discovery, and
when the burden or expense outweighs the likely benefit.
Civ. P. 26(b)(2)(C).

Fed. R.

To meet the requirements of Rule

37(a)(3)(B), a party seeking to compel production in response to
an opposing party’s objection, bears the initial burden of
showing that the information he seeks is relevant and not
privileged.

Wamala v. City of Nashua, 2010 WL 3746008, at *2

(D.N.H. Sept. 20, 2010) (citing Caouette v. OfficeMax, Inc., 352
F. Supp. 2d 134, 136 (D.N.H. 2005)).
Textron asks the court to compel Jenks to produce:
(1) a copy of an article authored by Dr. Vigilante in 2009
that is titled: “Forensic human factors/ergonomics practice from
the perspective of the forensic consulting firms,”
7

(2) “[a] searchable computer database that maintains all of
Dr. Vigilante’s prior expert reports, including expert reports he
prepared regarding his methodologies and opinions in failure to
warn claims on behalf of plaintiffs and defendants concerning
recreational vehicles such as ATVs,”
(3) Dr. Vigilante’s expert report in Hilton v. Tarter Gate
Co., Docket No. 03-cv-6970 (Ct. Common Pleas, Ohio), and
(4) Dr. Vigilante’s expert report in Farias v. Mr. Heater
Inc., 757 F. Supp. 2d 1284 (S.D. Fla. 2010).

1. Article
Jenks has provided Textron with a copy of the article.

2.

Database

Textron contends in support of its motion to compel that a
party’s expert witness’s prior reports are relevant for purposes
of determining the validity of the opinions expressed in the
present case by examining inconsistencies in the opinions and the
theories and methodologies used in forming prior opinions.
Textron also disputes any assertion of privilege because the
prior reports were publicly disclosed.

Jenks objects on the

grounds that the information sought is irrelevant, that Dr.
Vigilante does not have the database that Textron describes, that
8

Dr. Vigilante has already searched for and did not find the
reports Textron seeks, and that a search of Dr. Vigilante’s
entire database would exceed the scope of discovery.
A party is required to disclose “a list of all other cases
in which, during the previous 4 years, the witness testified as
an expert at trial or by deposition.”
26(a)(2)(B)(v).

Fed. R. Civ. P.

Courts have required parties to produce

deposition testimony and opinions of an expert given in other
cases to assess the consistency of the expert’s opinions and
methodologies.

See, e.g., Spano v. Boeing Co., 2011 WL 3890268,

at *1 (S.D. Ill. Sept. 2, 2011); Duplantier v. Bisso Marine Co.,
Inc., 2011 WL 2600995, at *2-*3 (E.D. La. June 30, 2011);
Expeditors Int’l of Washington, Inc. v. Vastera, Inc., 2004 WL
406999, at *2 (N.D. Ill. Feb. 26, 2004).
Jenks does not dispute that at least some of Dr. Vigilante’s
reports in prior cases are discoverable.

Instead, Jenks argues

that Dr. Vigilante does not have a searchable database for his
expert reports and that he should not have to produce his entire
filing system.

Jenks further asserts, supported by Dr.

Vigilante’s affidavit, that he searched for project folders using
the keywords “ATV” and “fall from a moving vehicle warning cases”
but did not find any reports on those subjects.

9

At his deposition, Dr. Vigilante testified that he has given
opinions in cases involving warnings in ATV cases.

Jenks has not

provided an adequate explanation for why Dr. Vigilante’s opinions
prepared in those cases cannot and should not be produced.

In

addition, Textron asked Dr. Vigilante to search using the
keywords “ATV” and “all terrain vehicle.”

Dr. Vigilante does not

explain why he did not do a search for “all terrain vehicle” or
why other search terms would not produce discoverable reports.
On the other hand, it does appear that requiring Dr. Vigilante to
produce a copy of his entire database likely would implicate a
concern as to whether a less burdensome method would not be more
productive.
Therefore, counsel shall confer about the best means for
searching Dr. Vigilante’s records to find any of his reports,
testimony, or depositions expressing opinions on warnings in ATV
cases and on other topics related to his opinions in this case.
Related topics include his opinions on product warnings.

3.

Reports in Hilton and Farias Cases

Textron also seeks Dr. Vigilante’s expert reports in two
cases in which he served as an expert witness, Hilton v. Tarter
Gate Co., Docket No. 03-cv-6970 (Ct. Common Pleas, Ohio), and
Farias v. Mr. Heater Inc., 757 F. Supp. 2d 1284 (S.D. Fla. 2010).
10

Jenks objects to producing the reports because Dr. Vigilante’s
clients in those cases have not authorized him to disclose the
reports.
Once the moving party meets the initial burden of showing
that the requested documents are within the scope of Rule 26(b),
the party asserting a privilege bears the burden of showing that
the asserted privilege applies.

See In re Grand Jury

Proceedings, 183 F.3d 71, 73 (1st Cir. 1999).

“To do so, the

proponent of the privilege must set forth facts sufficient to
establish all the elements of the claimed privilege.”

Id.

In support of its motion to compel, Textron contends that
the expert reports in Hilton and Farias are not privileged
because they were publicly disclosed in those cases.

Jenks

claims “privilege” with respect to the reports but does not
identify the privilege asserted or provide any legal authority in
support of the claimed privilege.

Instead, Jenks reiterates that

Dr. Vigilante’s clients have not authorized him to release the
reports, suggests that one of the reports might be confidential
because of the settlement agreement, and argues that the reports
are not sufficiently similar to the issues in this case to be
relevant.
Jenks’s assertion of privilege is not sufficiently
supported.

As presented, it appears that Dr. Vigilante’s
11

opinions in the Hilton and Farias cases both pertain to the
sufficiency of warnings on products.

Therefore, they are

sufficiently related to the warning issue in this case to come
within the scope of Rule 26(b)(1).

Jenks shall produce copies of

Dr. Vigilante’s expert reports in the Hilton and Farias cases.

Conclusion
For the foregoing reasons, the defendant’s motion to compel
(document no. 104) is granted as to Dr. Vigilante’s expert
reports in Hilton v. Tarter Gate Co., Docket No. 03-cv-6970 (Ct.
Common Pleas, Ohio), and Farias v. Mr. Heater Inc., 757 F. Supp.
2d 1284 (S.D. Fla. 2010), which shall be produced to Textron
within fourteen days of the date of this order.

12

Counsel for Jenks and for Textron shall confer within
fourteen days of the date of this order to resolve the issue of
searching Dr. Vigilante’s database or file system for his expert
reports on warning issues in other cases.

Textron’s request for

a copy of Dr. Vigilante’s article is moot.

SO ORDERED.

____________________________
Joseph A. DiClerico, Jr.
United States District Judge
October 3, 2011
cc:

R. Matthew Cairns, Esquire
James M. Campbell, Esquire
R. Peter Decato, Esquire
Dona Feeney, Esquire
Mark V. Franco, Esquire
Neil A. Goldberg, Esquire
John A.K. Grunert, Esquire
Daniel R. Mawhinney, Esquire
David S. Osterman, Esquire
Christopher B. Parkerson, Esquire
Michael D. Shalhoub, Esquire
William A. Whitten, Esquire

13