Laudero v. Dover Corporation et al
Filing
63
DECISION AND ORDER re 48 MOTION to Compel AND EXTEND PLAINTIFF'S TIME TO SERVE EXPERT REPORTS filed by Lisa A. Laudero. Signed by Hon. Jeremiah J. McCarthy on 7/12/11. (DAZ)
UNITED STATES DISTRICT COURT
WESTERN DISTRICT OF NEW YORK
______________________________________
DECISION AND ORDER
LISA A. LAUDERO,
Plaintiff,
10-CV-00054(JJM)
v.
OTIS ELEVATOR COMPANY,
Defendants.
______________________________________
THERESA A. FLYNN,
Plaintiff,
10-CV-00053(JJM)
v.
DOVER CORPORATION, et al.,
Defendants.
______________________________________
RITA J. ROBINSON and THOMAS ROBINSON,
Plaintiff,
10-CV-00378(JJM)
v.
THYSSENKRUPP ELEVATOR
MANUFACTURING, INC., et al.,
Defendants.
_______________________________________
The parties have consented to proceed before a Magistrate Judge pursuant to 28
U.S.C. §636(c) [29].1 Before me is that aspect of plaintiffs’ motion to compel production of
accident/incident reports from defendant Otis Elevator Company (“Otis”). Braun Affirmation
1
Bracketed references are to the CM/ECF docket entries. Although plaintiffs’ motion was
filed in each of the three cases, all docket references will be to Flynn v. Otis Elevator Company, et al.,10
-cv-0053(M), unless otherwise noted.
[44], ¶¶24-26. The parties were given the opportunity to argue this aspect of the motion at the
July 11, 2011 conference. The remaining aspects of the motion have either been resolved or the
parties continue to confer in an attempt to reach a resolution. For the following reasons, this
aspect of plaintiffs’ motion [44] is denied.
BACKGROUND
Each of these three cases arise from personal injuries sustained by plaintiffs
during separate occurrences while utilizing elevators at the Wende Correction Facility.2
Plaintiffs’ Sixth Notice for Production of Documents requests “[a]ny and all accident/incident
reports, with or without injury, concerning said elevators”. Braun Affirmation [144], Ex. D,
Request #3. Otis responded that it would not produce such reports because the demand was
“overbroad, unduly burdensome and seeks irrelevant and unidentifiable information” and “also
seeks potentially privileged communications and/or confidential attorney work-product and/or
material prepared in anticipation of litigation that is not subject to disclosure”. Id., Ex. F.3
Plaintiffs’ counsel later agreed to limit the time period to one year prior to the alleged incidents
and six months after the alleged incidents. Braun Reply Affirmation [51], ¶¶13, 17; Hickey
Affirmation [49], Ex. P.
2
Although these cases have not been formally consolidated, they have proceeded on a
single track.
3
Inexplicably, despite indicating that it will not produce any such reports, Otis’ response
to this demand incorporates another response which indicates that it is “in the process of confirming
whether the report requested . . . is discoverable, and to the extent it is same will be disclosed
accordingly in supplemental form”. Braun Affirmation [44], Ex. F, Response ## 3, 6. Given Otis’
current opposition to the motion, I assume that this was an error.
-2-
ANALYSIS
In response to plaintiffs’ motion, Otis acknowledges that plaintiffs have agreed to
restrict the time period of the demand. Hickey Affirmation [49], ¶53. Nevertheless, it argues that
the demand “is clearly overbroad as it seeks all ‘reports’ without restriction to a time period or to
a type of ‘accident/incident’ that is relevant herein”. Id., ¶52. It also argues that its disclosure of
“Rope and Repair Records” and “online history report” is “further responsive to this demand
because it contains maintenance and repair records for the subject elevators”. Id., ¶54. Neither
party cites any case law in support of their position.
“Parties may obtain discovery regarding any nonprivileged matter that is relevant
to any party’s claim or defense”. Fed. R. Civ. P. 26(b)(1). “Evidence of [prior similar accidents]
would unquestionably be relevant, if not central, to [plaintiff’s] case”. Stagl v. Delta Airlines,
Inc., 52 F.3d 463, 474 (2d Cir. 1995). “[W]here negligence is alleged, proof of prior accidents
may be admitted to show that the defendant had notice of a dangerous condition”. Schmelzer v.
Hilton Hotels Corp., 2007 WL 2826628, *2 (S.D.N.Y. 2007). See Hicks v. Long Island Railroad,
165 F.R.D. 377, 381 (E.D.N.Y. 1996) (“the materials requested relating to similar accidents are
relevant to the degree of risk associated with the Domore chairs, as well as to whether LIRR had
notice of that risk and what, if any, actions LIRR took to protect the safety of its employees after
receiving notice of the defect”).
Therefore, Otis shall produce all accident/incident reports associated with the
subject elevators during the time period from one year prior to the alleged incidents through six
months after the alleged incidents. If necessary, questions concerning the admissibility of these
reports based upon their timing and similarity to the subject incidents will be resolved after their
-3-
production. See Schmelzer, 2007 WL 2826628, *2.
CONCLUSION
For these reasons, that aspect of plaintiffs’ motion seeking disclosure of
accident/incident reports associated with the subject elevators is granted. Braun Affirmation
[44], ¶¶24-26. Otis shall produce all accident/incident reports, if any, associated with the subject
elevators during the time period from one year prior to the alleged incidents through six months
after the alleged incidents by August 5, 2011. If necessary, the other aspects of plaintiffs’ motion
to compel and the admissibility of this discovery will be resolved at a later date.
SO ORDERED.
Dated: July 12, 2011
/s/ Jeremiah J. McCarthy
JEREMIAH J. MCCARTHY
United States Magistrate Judge
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