Wang v. Colgan Air, Inc. et al

Filing 280

DECISION AND ORDER -- This document relates to 09-CV-769S GRANTING in part and DENYING in part Colgan's 1167 Motion to Compel Discovery; DIRECTING Plaintiff to provide responsive documents as ordered herein by 12/1/2013. Signed by William M. Skretny, Chief Judge on 11/17/2013. Associated Cases: 1:09-md-02085-WMS, 1:09-cv-00769-WMS (MEAL)

UNITED STATES DISTRICT COURT
WESTERN DISTRICT OF NEW YORK

IN RE: AIR CRASH NEAR CLARENCE CENTER,
NEW YORK, ON FEBRUARY 12, 2009,

DECISION AND ORDER
09-md-2085
This document relates to:
09-CV-769S

I. INTRODUCTION
On February 12, 2009, while on final approach to the Buffalo Niagara International
Airport, Continental Connection Flight 3407 crashed into a house in Clarence Center, N.Y.,
killing all 45 passengers, the four-person crew, and one person in the house. By order
entered October 6, 2009, the United States Judicial Panel on Multidistrict Litigation
transferred all then-pending actions concerning the crash of Flight 3407 to this Court for
coordinated or consolidated pretrial proceedings, pursuant to 28 U.S.C. § 1407. In Re Air
Crash Near Clarence Ctr., N.Y., on Feb. 12, 2009, 655 F. Supp. 2d 1355, 1356 (J.P.M.L.
2009). Subsequently-filed actions have also been transferred here.
Plaintiff Ping Wang’s decedent is her husband, Zhaofang Guo. (Declaration of
Terrence M. Connors, Esq., Docket No. 1176, ¶ 2.1 ) Zhaofang Guo and Plaintiff have one
child — Kevin Guo — who suffers from Asperger’s Disorder. (Connors Decl., ¶¶ 3, 9, 10.)
Asperger’s Disorder is marked by “qualitative impairments in social interaction and
restricted, repetitive, and stereotyped patterns of behavior, interests, and activities.”
(Expert Report of Dr. Lynda Geller, Docket No. 1170-2, p. 13.) Plaintiff and Kevin Guo are
the only beneficiaries under Zhaofang Guo’s Will. (Connors Decl., ¶ 9.)
Presently before this Court is a motion brought by Defendants Colgan Air Inc. and
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All docket references are to the multidistrict case, 09-md-2085, unless otherwise noted.

Pinnacle Airlines Corp. (collectively “Colgan”) to compel complete and proper discovery
responses to their First, Second, Third, and Fourth Requests for Production of Documents
and Things, and to their First Interrogatories. (Docket No. 1167.) Colgan also seeks an
Order compelling Plaintiff to produce information from her experts, and further requests the
issuance of a judicial subpoena to access the decedent’s email communications. This
Court has reviewed and considered the parties’ motion papers and finds oral argument to
be unnecessary. For the reasons discussed below, Colgan’s motion is granted in part and
denied in part.
II. DISCUSSION AND ANALYSIS
A.

Discovery Standard
District courts enjoy broad discretion when resolving discovery disputes. That

discretion is exercised by determining the relevance of discovery requests, assessing
oppressiveness, and weighing these factors in deciding whether discovery should be
compelled. See Yancey v. Hooten, 180 F.R.D. 203, 207 (D.Conn. 1998).
Discovery in federal court is broad and permissive. Rule 26(b)(1) of the Federal
Rules of Civil Procedure provides that “[p]arties may obtain discovery regarding any
nonprivileged matter that is relevant to any party’s claim or defense . . . .” (Emphasis
added.) Information is relevant so long as it is reasonably calculated to lead to the
discovery of admissible evidence. See Daval Steel Prods. v. M/V Fakredine, 951 F.2d
1357, 1367 (2d Cir. 1991)); see also FED. R. CIV. P. 26(b)(1) (“Relevant information need
not be admissible at the trial if the discovery appears reasonably calculated to lead to the
discovery of admissible evidence.”).

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This relevance standard is “necessarily broad in scope in order ‘to encompass any
matter that bears on, or that reasonably could lead to other matter that could bear on, any
issue that is or may be in the case.’” LaForest v. Honeywell Int’l Inc., No. 03-CV-6248,
2004 WL 1498916, at *2 (W.D.N.Y. July 1, 2004) (quoting Oppenheimer Fund, Inc. v.
Sanders, 437 U.S. 340, 351, 98 S.Ct. 2380, 57 L.Ed.2d 253 (1978) and omitting citation);
see also Breon v. Coca-Cola Bottling Co. of New England,232 F.R.D. 49, 52 (D.Conn.
2005) (“Relevancy continues to be ‘broadly construed, and a request for discovery should
be considered relevant if there is any possibility that the information sought may be
relevant to the claim or defense of any party.’”) (citations omitted; emphasis in original).
But this permissive standard is not unfettered. For example, under Rule 26
(b)(2)(C)(I), a court must limit discovery if it finds that the discovery sought is “unreasonably
cumulative or duplicative, or can be obtained from some other source that is more
convenient, less burdensome, or less expensive.” A court must also limit discovery if it
finds that the burden or expense of the requested discovery outweighs its likely benefit.
See Rule 26 (b)(2)(C)(iii).
The party seeking discovery to which it believes it is entitled may seek to compel
production under Rule 37 (a). The party resisting discovery bears the burden of specifically
demonstrating why the requested discovery — which for documents and things need only
be described with “reasonable particularity” under Rule 34 (b)(1)(A) — is objectionable.
See Obiajulu v. City of Rochester, Dep’t of Law, 166 F.R.D. 293, 295 (W.D.N.Y. 1996).
Objections must clearly set forth the specifics of each objection and how that objection
relates to the discovery being demanded. Id. (citing Roesberg v. Johns-Manville Corp., 85
F.R.D. 292 (E.D.Pa. 1980)). Pat, generic, boilerplate, and non-specific objections will not
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suffice. Obiajulu, 166 F.R.D. at 295.
B.

Previous Discovery Decisions
Two of this Court’s previous decisions bear on the issues raised in the instant

motion.
In the Pan2 action, this Court determined that the decedent’s and claimants’ financial
records were discoverable because they were relevant to claims for loss of support, loss
of consortium, and loss of services. See In re Air Crash Near Clarence Center, New York,
On February 12, 2009, Nos. 09-md-2085, 09-CV-961S, 2011 WL 6370189, at *4 (W.D.N.Y.
Dec. 20, 2011). And because the decedent’s gross income, lost earnings, and financial
support of the claimants were relevant to those claims, this Court ordered the production
of the decedent’s and claimants’ checking, bank, credit card, debit card, and investment
statements, as well as any other records that reflected their personal, family, educational,
and business spending, between 2004 and 2009. See id. This Court also ordered the
production of records pertaining to the valuation of the decedent’s estate, as relevant to
the plaintiff’s loss-of-inheritance claim. See id.
In a subsequent decision involving four other individual actions,3 this Court
reaffirmed its findings that a claimant’s credit card and financial records (including banking,
credit, investment and retirement accounts, and W-2 forms) are discoverable as relevant
to pecuniary damages, including claims for loss of future support. See In re Air Crash Near
Clarence Center, New York, On February 12, 2009, Nos. 09-md-2085, 09-CV-440S, 09-

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09-CV-961S

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09-CV-440S (Perry); 09-CV-378S (Davidson); 09-CV-379S (Davidson); 09-CV-294 (Perry)

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CV-379S, 09-CV-378S, 09-CV-294S, 2013 WL 5936975, at *3-*5, *7 (W.D.N.Y. Nov. 4,
2013).
C.

Colgan’s Discovery Requests
Colgan’s requests derive from its four Requests for Production of Documents and

Things and its First Interrogatories. Plaintiff has produced documents in response to
Colgan’s requests, but Colgan maintains that further production is necessary in the areas
discussed below. Plaintiff maintains that she has adequately responded to Colgan’s
requests, and that her objections to providing further discovery are proper under the law.
1.

Credit Card and Bank Records

Citing this Court’s previous discovery decisions, Colgan seeks production of the
decedent’s and claimants’ credit card and bank records,4 including any documents
concerning insurance policies on the cards.5 Colgan maintains that these documents are
relevant to personal consumption, as well as to the claimants’ claims for lost support and
loss of future financial assistance. Plaintiff maintains that credit card and bank statements
are not relevant or discoverable, and that Colgan’s request for them is unreasonably
cumulative and duplicative of the discovery already provided. Plaintiff also maintains that
life insurance information pertaining to the decedent’s credit cards is exempt from
disclosure under NY CPLR § 4545 (a).
Although Plaintiff may not agree, this Court has twice found that credit card and
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Colgan articulated its request as one seeking “a complete set of each claimants’ financial
records,” but it discusses only credit card and bank records. (See Colgan’s Memorandum of Law, Docket
No. 1170, p. 9). This Court therefore considers only the request for credit card and bank records.
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Colgan also sought production of the decedent’s statement of wages from the Social Security
Administration, but Plaintiff has already produced those documents. (See Plaintiff’s Memorandum of Law,
Docket No. 1176-10, pp. 9-10.)

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bank records are discoverable, because they are relevant to the issue of pecuniary
damages. See In re Air Crash Near Clarence Center, New York, On February 12, 2009,
2011 WL 6370189, at *4 (finding that financial records are relevant to claims for loss of
support, loss of consortium, and loss of the decedent’s services, and may reveal the
degree to which a claimant financially depended on the decedent); In re Air Crash Near
Clarence Center, New York, On February 12, 2009, 2013 WL 5936975, at *6 (noting that
“information regarding claimants’ financial status may be relevant to the issue of pecuniary
damages”).
As to the decedent and Kevin Guo, Plaintiff is directed to produce their credit card
and bank records, because Plaintiff has failed to distinguish this Court’s previous decisions.
As to herself, however, Plaintiff need not produce additional credit card or bank statements
because she is the decedent’s spouse — a distinction not raised in Pan — and as such,
her financial status is irrelevant. See In re Air Crash Near Clarence Center, New York, On
February 12, 2009, 2013 WL 5936975, at *4 (noting that “where the claimant is the
decedent’s spouse, the claimant’s financial status is irrelevant because any reasonable
expectation of future support from the decedent is based on the marriage, not financial
need”) (citing Matter of Frank, 286 A.D. 986, 144 N.Y.S.2d 435 (N.Y.A.D. 4th Dep’t 1955)).
As to Colgan’s request for records pertaining to insurance on the decedent’s credit
cards, Plaintiff has not demonstrated that NY CPLR § 4545 (a) precludes discovery.
Section 4545 (a) exempts life insurance as a collateral source that can be used to offset

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a wrongful death award.6 This section governs admissibility, however, not discovery. In
addition, not all types of life insurance benefits are necessarily exempted. See Bryant v.
New York City Health & Hosps. Corp, 93 N.Y.2d 592, 608 (N.Y. 1999) (“CPLR 4545 does
not exempt from offset collateral sources that are ‘in the nature of life insurance’ or
‘analogous to life insurance benefits.” (citation omitted)). The exact nature of the insurance
at issue is unclear. Consequently, this Court finds that Colgan is entitled to discovery on
this issue and Plaintiff is ordered to produce it. Any issues regarding admissibility will be
resolved at trial.
2.

Records Relating to the Valuation of the Decedent’s Estate

Colgan seeks production of documents pertaining to the decedent’s investment
property in South Carolina and a list and estimated value of each asset that the decedent
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NY CPLR § 4545 (a) provides as follows:
Actions for personal injury, injury to property or wrongful death. In any action
brought to recover damages for personal injury, injury to property or
wrongful death, where the plaintiff seeks to recover for the cost of medical
care, dental care, custodial care or rehabilitation services, loss of earnings
or other economic loss, evidence shall be admissible for consideration by
the court to establish that any such past or future cost or expense was or
will, with reasonable certainty, be replaced or indemnified, in whole or in
part, from any collateral source, except for life insurance and those
payments as to which there is a statutory right of reimbursement. If the court
finds that any such cost or expense was or will, with reasonable certainty,
be replaced or indemnified from any such collateral source, it shall reduce
the amount of the award by such finding, minus an amount equal to the
premiums paid by the plaintiff for such benefits for the two-year period
immediately preceding the accrual of such action and minus an amount
equal to the projected future cost to the plaintiff of maintaining such benefits.
In order to find that any future cost or expense will, with reasonable
certainty, be replaced or indemnified by the collateral source, the court must
find that the plaintiff is legally entitled to the continued receipt of such
collateral source, pursuant to a contract or otherwise enforceable
agreement, subject only to the continued payment of a premium and such
other financial obligations as may be required by such agreement. Any
collateral source deduction required by this subdivision shall be made by the
trial court after the rendering of the jury's verdict. The plaintiff may prove his
or her losses and expenses at the trial irrespective of whether such sums
will later have to be deducted from the plaintiff's recovery.

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held at the time of his death. Colgan maintains that these documents are relevant to
Plaintiff’s damages claims, including claims for loss of inheritance. Plaintiff resists this
discovery on the basis that the value of the South Carolina property is not at issue. That
is, there is no claim that the value of the property decreased due to the decedent’s death.
This Court has already determined that a valuation of a decedent’s estate at the
time of his or her death is relevant to a loss-of-inheritance claim and that Colgan is entitled
to relevant discovery. See In re Air Crash Near Clarence Center, New York, On February
12, 2009, 2011 WL 6370189, at *4. Inasmuch as Plaintiff asserts such a claim here, she
must produce responsive documents concerning the value of the South Carolina property
(which would include any loans) and any other assets held by the decedent at the time of
his death. Plaintiff is not required, however, to create an asset or valuation list, or any
other documents, in response to Colgan’s demand. See In re Gen. Elec. Co. v. Macejka,
252 A.D.2d 700, 701, 675 N.Y.S.2d 420, 420 (N.Y.A.D. 3d Dep’t 1998) (stating that “it is
axiomatic that a party may not be compelled to create documents in order to comply with
discovery demands”).
3.

Facebook Records

Colgan seeks production of Kevin Guo’s Facebook “friend list,” as well as an Order
that Plaintiff be directed to supplement her Facebook production as required by Rule 26
(e) of the Federal Rules of Civil Procedure. Plaintiff maintains that she has produced every
page of Kevin’s Facebook accounts (more than 2,000 pages), but that she is not required
to produce Kevin’s “friend list” or supplement her production.
In Pan, this Court ordered limited production of social media account records after
finding such records relevant to two specific issues in that case — Plaintiff’s domicile and
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the claimants’ loss of support claims. See In re Air Crash Near Clarence Center, New
York, On February 12, 2009, 2011 WL 6370189, at *6. Relying on that decision, Colgan
argues that production of Kevin’s “friend list” here is relevant to assessing Kevin’s
Asperger’s Disorder, particularly his ability to socialize and communicate with others. This
Court is not convinced.
Given the ease with which “friends” can be collected on Facebook — indeed, one
can be “friends” with people known to them, with strangers, with celebrities, with animals,
and even with inanimate objects — Colgan’s argument that Kevin’s “friend list” is relevant
to assessing his ability to socialize and communicate is unpersuasive. There seems little
likelihood of a correlation between the number of one’s virtual Facebook friends and one’s
ability to socialize and communicate in the real world. To the extent Kevin’s Facebook
presence contributes to an assessment of his Asperger’s Disorder, Plaintiff’s Facebook
production thus far, which includes every post, picture, and message, is adequate. Kevin’s
“friend list” adds nothing meaningful and Plaintiff is therefore not required to produce it.
Plaintiff has not, however, demonstrated that supplementing her Facebook production is
unduly burdensome under Rule 26 (b)(2)(C). She therefore remains subject to the
supplemental disclosure requirements of Rule 26 (e)(1).
D.

Colgan’s Request for Expert Testing Reports
Colgan seeks production of the psychological testing conducted on Plaintiff and

Kevin Guo by Plaintiff’s experts and maintains that this information should have been
produced along with the expert reports under Rule 26 (a)(2). Plaintiff argues that Colgan’s
request is unclear and, in any event, Rule 26 (a)(2) does not require such disclosure.
Testing performed in conjunction with a psychological examination is discoverable
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under Rule 26 (a)(2). See, e.g., McCumons v. Marougi, CIV. 08-11164-BC, 2011 WL
1330807, at *3 (E.D. Mich. Apr. 7, 2011) (finding that Rule 26 (a)(2)(B)(ii) requires
production of “raw data” from psychological testing); Taylor v. Erna, No. 08-10534-DPW,
2009 WL 2425839, *1-*2 (D. Mass. Aug. 3, 2009) (similar). Moreover, Plaintiff has
expressed a willingness to produce the expert testing materials underlying her experts’
opinions. (See Plaintiff’s Memorandum of Law, Docket No. 1176-10, p. 23.) Plaintiff is
therefore directed to produce copies of the psychological testing conducted on Plaintiff and
Kevin Guo. To the extent further clarification concerning the specific materials Colgan
seeks is necessary, the parties are directed to meet and confer to resolve such issues
without further judicial intervention.
E.

Colgan’s Request for the Issuance of a Judicial Subpoena to Access Email
Records
Colgan seeks the issuance of a subpoena to Yahoo! directing it to produce to

Plaintiff’s counsel the decedent’s email communications between 2004 and February 12,
2009. Plaintiff does not oppose this request. According to the parties, Yahoo! is unwilling
to produce this information in the absence of a subpoena and, as a practical matter, the
decedent’s account may have been purged due to inactivity. Nonetheless, given the lack
of opposition and this Court’s previous finding that electronic communications may be
relevant to loss of support claims, see In re Air Crash Near Clarence Center, New York,
On February 12, 2009, 2011 WL 6370189, at *6, Colgan may prepare and submit a
subpoena to the Clerk of Court for issuance.

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III. CONCLUSION
Defendants’ Motion to Compel is granted in part and denied in part, consistent with
this decision. The information ordered to be produced is reasonably calculated to lead to
the discovery of admissible evidence regarding claims and defenses in this case and
production is not unduly burdensome.
IV. ORDERS
IT HEREBY IS ORDERED, that Colgan’s Motion to Compel Discovery (Docket No.
1167) is GRANTED in part and DENIED in part.
FURTHER, that Plaintiff shall provide responsive documents as ordered herein by
December 1, 2013.
SO ORDERED.
Dated: November 17, 2013
Buffalo, New York

/s/William M. Skretny
WILLIAM M. SKRETNY
Chief Judge
United States District Court

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