Acosta et al v. American LaFrance, LLC

Filing 113

DECISION AND ORDER denying 107 Motion to Quash. The City shall within 10 days of this Decision and Order make all records in its possession, custody or control within the terms of the subpoenas available to Federal Signal. Please refer to D&O for further instructions. Signed by Hon. Leslie G. Foschio on 11/17/2016. (SDW)

UNITED STATES DISTRICT COURT
WESTERN DISTRICT OF NEW YORK

ACOSTA v. AMERICAN LAFRANCE, LLC, et al.

14-CV-881A(F)

BAUTISTA v. AMERICAN LAFRANCE, LLC, et. al.

14-CV-884A(F)

BROWN v. AMERICAN LAFRANCE, LLC, et al.

14-CV-886A(F)

CLARK v. AMERICAN LAFRANCE, LLC, et al.

14-CV-887A(F)

CROCKER v. AMERICAN LAFRANCE, LLC, et al.

14-CV-889A(F)

FITZPATRICK v. AMERICAN LAFRANCE, LLC, et al.

14-CV-891A(F)

HARRINGTON v. AMERICAN LAFRANCE, LLC, et

14-CV-893A(F)

al. HOFFSTETTER v. AMERICAN LAFRANCE, LLC,

14-CV-894A(F)

et al. JOHNSON v. AMERICAN LAFRANCE, LLC, et

14-CV-895A(F)

al. KINSLEY v. AMERICAN LAFRANCE, LLC, et al.

14-CV-896A(F)

LOTOCKI v. AMERICAN LAFRANCE, LLC, et al.

14-CV-897A(F)

McALLISTER v. AMERICAN LAFRANCE, LLC, et al.

14-CV-898A(F)

MENGE v. AMERICAN LAFRANCE, LLC, et al.

14-CV-899A(F)

PERRY v. AMERICAN LAFRANCE, LLC, et al.

14-CV-900A(F)

RELOSKY v. AMERICAN LAFRANCE, LLC, et al.

14-CV-902A(F)

SANFORD v. AMERICAN LAFRANCE, LLC, et al.

14-CV-903A(F)

STANTON v. AMERICAN LAFRANCE, LLC, et al.

14-CV-904A(F)

SWAREZ v. AMERICAN LAFRANCE, LLC, et al.

14-CV-905A(F)

WALLS v. AMERICAN LAFRANCE, LLC, et al.

14-CV-907A(F)

WREST v. AMERICAN LAFRANCE, LLC, et al.

14-CV-908A(F)

DECISION AND ORDER

APPEARANCES:

THOMPSON COBURN LLP
Attorneys for Defendant Federal Signal Corporation
J. DAVID DUFFY,
AUDREY MENSE, of Counsel
55 East Monroe Street, 37th Floor
Chicago, Illinois 60603
GOLDBERG SEGALLA LLP
Attorneys for Defendant Federal Signal Corporation
JOHN J. JABLONSKI, of Counsel
665 Main Street, Suite 400
Buffalo, New York 14203
TIMOTHY A. BALL
CITY OF BUFFALO CORPORATION COUNSEL
Attorney for Respondents City of Buffalo Purchasing Division
and the Buffalo Fire Department
J. CHRISTINE CHIRIBOGA,
Assistant Corporation Counsel, of Counsel
1100 City Hall
65 Niagara Square
Buffalo, New York 14202

In this products liability action, Plaintiffs, 193 present and former City of Buffalo, a
non-party, (“the City”) firefighters, claim Defendant Federal Signal (“Federal Signal”)
negligently designed and manufactured fire engine sirens resulting in Plaintiffs’ hearing
losses caused by continued exposure, during emergency responses, to the sound
created by Defendant’s sirens installed on the City firefighting trucks and vehicles in
which Plaintiffs were transported in response to emergency calls.
Before the court is the City’s motion, filed October 12, 2016, Dkt. 107 (“City’s
motion”) to quash a subpoena duces tecum to produce records pursuant to
Fed.R.Civ.P. 45(a)(1)(D) served by Defendant on July 25, 2016 pertaining to the first

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group of Plaintiffs.1 The City’s motion is supported by the Declaration of J. Christine
Chiriboga, Assistant Corporation Counsel, Dkt. 107-1, (“Chiriboga Declaration”), the
Affidavit of Garnell W. Whitfield, Jr., Exh. A to Chiriboga Declaration (Dkt. 107-2)
(“Whitfield Affidavit”), and the Affidavit of Anthony J. Greco, Exh. B to Chiriboga
Declaration (Dkt. 107-3) (“Greco Affidavit”), together with Memorandum of Law In
Support Of Motion To Quash (Dkt. 107-4) (“City’s Memorandum”). In opposition, on
November 3, 2016, Defendant filed Federal Signal Corporation’s Response To The City
of Buffalo And The Buffalo Fire Department’s Motion To Quash (Dkt. 111) (“Federal
Signal’s Response”). On November 10, 2016, the City filed its Reply Memorandum of
Law In Support Of Motion To Quash (Dkt. 112) (“City’s Reply”). Oral argument was
deemed unnecessary.
Prior to Federal Signal’s two subpoenas at issue, served on July 22, 2016, Dkt.
100-1, on the City’s Fire Departments’ Records Custodian (Dkt. 100-1) (“Subpoena No.
1”) and the head of the City’s Purchasing Division (Dkt. 100-2) (“Subpoena No. 2”), the
City had been previously served in September 2015 and March 2016 with similar
subpoenas by two other defendants in this action, Pierce Manufacturing (“Pierce”) and
Mack Trucks (“Mack”) seeking records substantially similar to those sought by Federal
Signal’s more recently served subpoenas. These defendants have since been
terminated from the action leaving Federal Signal as the sole remaining defendant. In
an attempt to facilitate the City’s voluntary compliance with the prior served subpoenas,
Defendants Mack, Pierce and Federal Signal, communicated with a City assistant
corporation counsel during the prior October 2015 to May 2016 period who preceded
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The parties have agreed to process discovery in smaller groupings of the 193 Plaintiffs.

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the present City attorney who assumed responsibility for the matter in June 2016.
Defendants’ efforts included offering assistance to the City in the location and retrieval
of responsive records as well as providing, at Defendants’ expense, staff to review
records along with vendors to copy responsive records. Dkt. 111 at 2 (referencing Dkt.
103-5). The prior assistant corporation counsel assigned to the motion provided a
modicum of cooperation and production of responsive documents. See Dkt. 103-5
(passim). According to Federal Signal, despite its good faith efforts to communicate
with the present City’s attorney, it was unable to do so. Dkt. 111 at 3. Although
Defendants’ previous efforts and communication with the City’s prior counsel between
October 2015 and May 2016 resulted in the City’s limited compliance with the two prior
subpoenas, the “vast majority” of Defendants’ document requests under the subpoenas
remain unsatisfied. Dkt. 111 at 2.2
Federal Signal’s two subpoenas seeking a wide-ranging number of records and
documents it believes are relevant to Plaintiffs’ claims and Federal Signal’s defenses.
Federal Signal notes that it has received cooperation from six major city fire
departments in response to significant and similar discovery requests in firefighter
hearing loss litigation over the past 20 years but has been, for the first time,
“stonewalled” by the City in this case. Dkt. 111 at 3. Specifically, Subpoena No. 1
requests the City produce eight categories of documents related to the City’s firefighting
equipment such as identifying information, a description of existing firefighting
apparatus related design specifications particularly related to the type of siren selected
by the City and location on the City’s fire apparatuses, purchasing and maintenance
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No timely motion to quash was filed against the earlier subpoenas by the City.

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information, response time logs, user manuals, the use of siren sound suppression
products, and seven categories of documents relating to the purchase of sirens for the
City’s firefighting apparatuses including competitive bids, specifications, manufacturer’s
operating instructions, and the City’s records concerning the testing of such equipment.
Federal Signal’s Subpoena No. 2, directed to the Records Custodian of the City Fire
Department, requests the City to produce two categories of records relating to Plaintiffs’
personnel and medical records, eight categories of records related to the types and use
of the City’s firefighting equipment similar to those requested by Subpoena No. 1,
including the use of siren sound suppression devices, as well as records relating to the
City’s acquisition of its firefighting equipment such as requests for proposals,
specifications, and testing of such equipment purchased over the past 20 years by the
City, records relating to firefighter safety and training including policies, use of
equipment, and purchases for the prevention of firefighter hearing loss, the results of
any studies directed to such hearing loss, firefighter occupational hearing loss claims,
including worker compensation claims, equipment response time records, standard
operating procedures in connection with the use of the city’s firefighting equipment,
documents reflecting the City’s compliance with government required firefighter
occupational health and safety regulations, identification of persons with knowledge of
the foregoing subjects and the City and City Fire Department’s document and record
retention policy.
At the outset, Federal Signal argues the City failed to meet and confer, pursuant
to Fed.R.Civ.P. 37(a)(1) (“Rule 37(a)(1)”) (“meet and confer”), prior to filing the instant
motion. Dkt. 111 at 4 (citing caselaw). However, neither Rule 37(a)(1) nor this court’s
local rules requires a meet and confer prior to a Rule 45(d)(3) motion to quash. While a
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meet and confer is undoubtedly a salutary pre-motion undertaking, the City’s motion
makes it clear that the City has no interest in such an activity and thus imposing such a
requirement upon the City at this time would be undoubtedly futile and would therefore
unnecessarily delay the disposition of the instant motion.
The City raises several contentions in support of its motion to quash. First, the
City asserts Federal Signal’s subpoenas seek irrelevant information. Dkt. 107-4 at 5.
“The reach of a subpoena issued pursuant to Fed.R.Civ.P. 45 is subject to the general
relevancy standard applicable to discovery under Fed.R.Civ.P. 26(b)(1).” Syposs v.
United States, 181 F.R.D. 224, 226 (W.D.N.Y. 1998). Under Fed.R.Civ.P. 26(b)(1),
discovery is available for information relevant to a claim or defense if proportional to the
needs of the case. Here, Federal Signal is confronted with claims by scores of present
and former City firefighters that the use of Federal Signal’s sirens on firefighting
apparatus in or on which Plaintiffs were riding while responding to emergency calls over
a period of 41 years has caused Plaintiffs’ alleged hearing losses. While Plaintiffs have
not sought the same records requested by the subpoenas (at a status conference with
court conducted November 2, 2016 (Dkt. 109) Plaintiffs’ counsel indicated Plaintiffs
intended to rely solely on Plaintiffs’ testimony and expert evidence), it is not
unreasonable for Federal Signal to thoroughly investigate, if not reconstruct, the actual
circumstances upon which Plaintiffs’ case is in fact founded to enable it to pursue
numerous obvious defenses, including, for example and without limitation, Plaintiffs’
pre-existing conditions, Plaintiffs’ initial awareness of the alleged injuries relevant to
potential accrual of any applicable statute of limitations defense, Federal Signal’s
compliance with purchaser, i.e., the City’s, specifications, issues of causation, product
abuse, misinstallation, lack of proper maintenance, mitigation, and damages. Thus,
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regardless of Plaintiffs’ lack of perceived need for the same information sought by
Federal Signal, Federal Signal is entitled to obtain any records from any source upon
which it reasonably expects to defend this action, and those containing information and
data particularly required to enable its experts to counter, by cross-examination or
opposing expert opinion testimony, Plaintiffs’ expected expert evidence. Thus, the
City’s attempt to minimize Federal Signal’s need for such documents as Plaintiffs’
“toxicology records,” “therapy records,” and “slides” as wholly unrelated to the issues in
this case, City Reply at 3-4, ignores the obvious relevance of such information to
whether any Plaintiffs suffered from other health issues that could reasonably have
caused or aggravated the asserted hearing losses. The City’s dismissive opposition of
Federal Signal’s subpoenas for lack of relevance proportional to the needs of the case
involving, as it does, 193 Plaintiffs with alleged damages accruing over a 41-year
period, is therefore without merit. Additionally, the City’s objection that Federal Signal
has failed to provide adequate authorizations to the Buffalo Fire Department to permit
access to Plaintiffs’ health and personnel records is also incorrect as Defendants have
already done so, see Dkt. 43; Dkt. 103-1 ¶ 5, and will continue to do so. Dkt. 111 at 5.
The City primarily opposes the subpoenas on the ground that compliance will be
excessively burdensome. Dkt. 107-4 at 6. The City also argues that it is entitled to
reimbursement for its expenses, including the costs of providing counsel to oversee
compliance. Dkt. 107-4 at 7. The City also objected to compliance for any Fire
Department vehicles without sirens as overly broad. Id. With regard to records
concerning Plaintiffs’ complaints of hearing loss during Plaintiffs’ employment, the City
contends compliance would necessitate reviewing the personnel files for each Plaintiff.
Id. at 8. The City also argues that in order to comply with the subpoenas’ request for
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identification of Fire Department safety officers, the Department would be required to
engage in an exhaustive search of records since 1973. Dkt. 107-4 at 9. Such
contentions border on the trivial.
Information regarding hearing loss claims by City fire department personnel who
operated official vehicles without sirens could provide evidence that factors other than
siren exposure causes firefighter hearing loss, and a search for the names of the safety
officers is no more burdensome than any of the other Federal Signal requests which is
to be expected in a case of this magnitude and complexity. The City’s burdensomeness
objection is, moreover, substantially obviated by Federal Signal’s offer to reduce any
burden on compliance by conducting the necessary search, retrieval, and copying of
responsive records and documents with personnel and equipment supplied by Federal
Signal at its own expense. Dkt. 111 at 2; 10. In a case involving the potential review of
39,000 files to retrieve relevant, unprivileged, documents to comply with a subpoena,
the court held the subpoena imposed formed no undue burden where the party serving
the subpoena agreed to share the costs of production and privilege review. United
States v. California Rural Legal Assistance, Inc., 824 F.Supp.2d 31, 46-47 (D.D.C.
2011), aff’d in part, vacated in part, and remanded, 722 F.3d 424 (D.C. Cir. 2013).
Here, the City does not assert any of the requested documents are privileged.
Accordingly, although compliance with Federal Signal’s subpoenas will likely entail
some degree of burden and inconvenience, it is also true that “‘[e]very subpoena
imposes a burden in its recipient,’” California Rural Legal Assistance, Inc., 824
F.Supp.2d at 46 (quoting Linde Thomson Langworthy Kohn & Van Dyke, P.C. v.
Resolution Trust Corp., 5 F.3d 1508, 1517 (D.C. Cir. 1993)), and a cost-sharing of
expenses will substantially moderate any such inconvenience. California Rural Legal
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Assistance, Inc., 824 F.Supp.2d at 46-47. That no privilege is claimed by the City in the
subpoenaed documents and records defeats the City’s request for reimbursement of
any attorney time the City asserts is required to monitor the retrieval and copying of tis
records and documents in the compliance process. Thus, the City’s Fire Department
Commissioner’s opinion, Dkt. 102-2, that compliance with the subpoenas will require
substantial manpower which the City does not have available to it fails as a basis to find
the subpoenas will create an undue burden. The Greco Affidavit (Dkt. 107-3)
confirming, inter alia, the availability of “run journals” which are within the scope of the
subpoenas, explaining the confined storage facilities for many of the requested records,
is similarly not a valid obstacle to compliance. Accordingly, by requiring Federal Signal
to bear the predominant share of the cost of compliance with the subpoenas, limiting the
City’s inconvenience to providing reasonable access, assistance and oversight, the
City’s burdensome objection should be and is overruled. In re Fitch, Inc., 330 F.3d 104,
108 (2d Cir. 2003) (“motions to compel and motions to quash a subpoena are both
‘entrusted to the sound discretion of the district court’” (quoting United States v.
Sanders, 211 F.3d 711, 720 (2d Cir. 2000))).

CONCLUSION
Based on the foregoing, the City’s motion (Dkt. 107) is DENIED. The City shall
within 10 days of this Decision and Order make all records in its possession, custody or
control within the terms of the subpoenas available to Federal Signal to facilitate
Federal Signal’s review and copying at its expense during the City’s normal working
hours. Federal Signal shall also reimburse the City for 50% of the cost of one employee
to facilitate and oversee Federal Signal’s access to and copying of such responsive
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records and to provide reasonable safeguards to protect the integrity and security of all
records which Federal Signal designates to the City in writing for its review and copying
in accordance with the subpoenas. Such reimbursement shall be at the normal hourly
rate of compensation for the City employee whom the City employee may designate to
Federal Signal for this purpose, and the time incurred by such employee shall be
recorded in a contemporaneous daily log and provided to Federal Signal together with
the City’s invoice for reimbursement which shall be submitted to Federal Signal on a biweekly basis.
SO ORDERED.
/s/ Leslie G. Foschio
________________________________
LESLIE G. FOSCHIO
UNITED STATES MAGISTRATE JUDGE
Dated: November 17, 2016
Buffalo, New York

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