Woelfle v. Black & Decker (U.S.) Inc.
Filing
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OPINION AND ORDER granting in part and denying in part 29 Motion for Protective Order; granting in part and denying in part 32 Motion to Compel. Signed by Hon. William K. Sessions III on 3/12/20. (SG)
UNITED STATES DISTRICT COURT
FOR THE
WESTERN DISTRICT OF NEW YORK
JAMES J. WOELFLE,
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Plaintiff,
v.
BLACK & DECKER (U.S.) INC.,
Individually and d/b/a DeWALT
INDUSTRIAL TOOL CO.,
Defendant.
Case No. 1:18-cv-486
OPINION AND ORDER: DEFENDANT’S MOTION FOR PROTECTIVE ORDER RE
PLAINTIFF’S RULE 30(b)(6) NOTICE & PLAINTIFFS’ CROSS-MOTION TO
COMPEL DISCOVERY
(ECF 29, 32)
Plaintiff James Woelfle brings a product liability personal
injury lawsuit against Black & Decker Inc. on theories of
negligence, breach of warranty (express and implied), and strict
liability. ECF 21. The product at issue is a DeWalt DW716 Type 2
compound miter saw (hereafter “subject saw”). ECF 21.
On August 16, 2019, Defendant Black & Decker filed a motion
for protective order to quash Plaintiffs’ Rule 30(b)(6)
corporate deposition notice. See ECF 29. Black & Decker argues
that the notice should be quashed because (1) it is overly
broad, unduly burdensome, and not proportional to the needs of
the case; (2) it seeks information not reasonably calculated to
lead to discovery that is relevant to the product liability /
negligence causes of action at issue; (3) it fails to provide
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reasonable particularity with respect to the information sought
or is otherwise vague and ambiguous, and (4) it seeks privileged
information not subject to disclosure. ECF 29-5 at 2. Black &
Decker also alleges that Plaintiffs’ notice improperly
circumvents the duration limits on deposits set forth in Fed. R.
Civ. P. 30(d)(1). ECF 29-5 at 2.
On September 9, 2019, Plaintiff James Woelfle filed a cross
motion to compel discovery. ECF 32. Woelfle alleges that
Defendant refused to produce a privilege log and/or respond to
his request to identify what documents, if any, Defendant
withheld pursuant to a claim of privilege. ECF 33 at 3.
Plaintiff further submits that Defendant impermissibly narrowed
his discovery requests to only information concerning the exact
model and size of the subject saw. ECF 33 at 19.
For the following reasons, Defendants’ motion for
protective order is granted in part and denied in part, and
Plaintiffs’ cross-motion to compel discovery is granted in part
and denied in part.
I.
DEFENDANTS’ MOTION FOR PROTECTIVE ORDER
First, Defendant files a motion for protective order to
quash Plaintiffs’ Rule 30(b)(6) corporate deposition notice.
STANDARD OF REVIEW
Fed. R. Civ. P. 26(c)(1) requires the party seeking a
protective order limiting discovery to show good cause for the
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request. See Fed. R. Civ. P. 26(c)(1) (“The court may, for good
cause, issue an order to protect a party or person ...”). “Good
cause is established by demonstrating a particular need for
protection.” Patient A v. Vermont Agency of Human Services, 2016
WL 880036 (D. Vermont 2016).
The 2015 amendments to Rule 26(b)(1) of the Federal Rules
of Civil Procedure explain that the scope of discovery extends
only to nonprivileged matters that are both (a) relevant to a
claim or defense and (b) “proportional to the needs of the
case”. In making proportionality determinations, the court must
consider “the importance of the issues at stake in the action,
the amount in controversy, the parties' relative access to
relevant information, the parties' resources, the importance of
the discovery in resolving the issues, and whether the burden or
expense of the proposed discovery outweighs its likely
benefit.” Id.
DISCUSSION
Black & Decker submits that Plaintiff Woelfle’s Rule
30(b)(6) notice should be quashed due to multiple alleged
defects, which we address in turn.
A. Length of Witness Depositions under Fed. R. Civ. P.
30(b)(6)
First, the parties dispute the proper length of witness
depositions. Plaintiffs argue that Fed. R. Civ. P. 30(d)(1)
limits the duration of a 30(b)(6) deposition to seven hours per
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person, while Defendants contend that Rule 30(d)(1) places a
limit on the total time spent in depositions.
Plaintiff prevails in his argument. Fed. R. Civ. P.
30(d)(1) states that “unless otherwise stipulated or ordered by
the court, a deposition is limited to one day of 7
hours.” Fed. R. Civ. P. 30(d)(1). Rule 30(d)(1) clearly and
specifically places a seven-hour default time limit on
individual depositions; it does not reference the total time
spent in deposition. See id. Hence, Plaintiff is entitled to
allot seven hours of time for each witness deposition. On this
issue, the Court denies Defendants’ protective order.
I.
Overbreadth of “including but not limited to” and
“similar to and including” language under Fed. R. Civ. P.
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Next, Defendant submits that Plaintiffs’ 30(b)(6) topical
designations containing the language “including but not limited
to” and “similar to and including” are overbroad. ECF 29-5 at 5.
This argument lacks merit.
Rule 30(b)(6) topical designations are subject to
limitations under Fed. R. Civ. P. 26, including the limitation
that they may not be overbroad. Dongguk University v. Yale
University, 270 F.R.D. 70, 74 (D. Conn 2010). While “including
but not limited to” language may be overbroad in cases where it
generates so many topics as to defeat the purpose of
enumeration, Plaintiff’s use of “including but not limited to”
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and “similar to and including” does not pose a serious risk of
overbreadth in this case. Plaintiff uses this language to seek
relevant testimony about “all miter saws and/or optional
accessories, including clamps, similar to and including the
subject product.” ECF 29-5 at 5. This request is limited to
information about products similar to the one at issue in this
case, which is a reasonably bounded category with relevance to
this litigation. The Court denies Defendants’ protective order
on this issue.
II.
Relevance and Proportionality of Topical Designations 1,
2, 7, and 28
Black & Decker further contends that Plaintiffs’ Topical
Designations 1, 2, 7, and 28 are not relevant and proportional
to the needs of the case, and should be quashed under Fed. R.
Civ. P. 26. Rule 26(b)(2)(C) instructs courts to limit discovery
to the extent that “the burden or expense of the proposed
discovery outweighs its likely benefit.” Fed. R. Civ. P.
26(b)(2)(C)(iii). This proportionality consideration seeks to
prevent possible over-discovery. Fed. R. Civ. P. 26 Advisory
Committee's Note (1983).
Topical Designation 1 seeks deposition information about
the corporate structure of Black & Decker and DeWalt. This
information is not relevant and proportional to the needs of the
case. Plaintiffs’ products liability claims do not implicate
questions concerning the Defendant’s corporate structure, and
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Plaintiff does not need this information to make a showing of
legal wrongdoing. Moreover, this request would place be a
significant discovery burden on the Defendant without clear
necessity. Defendants’ motion for protective order on this issue
is granted.
Topical Designation 2 seeks testimony as to the design,
manufacture, and sale of products and optional accessories. This
information is directly relevant to the issues at bar, as
Defendants’ manufacture and sales practices go to show the
possibility of negligence in the case of this particular saw.
The central importance of this evidence suggests that it meets
the relevance and proportionality standard. Defendants’ motion
for protective order on this issue is denied.
Topical Designation 7 concerns business transactions and
agreements between Black & Decker and DeWalt. This topical
designation is overbroad. There is no indication in the record
that Plaintiff needs information about the relationship between
these two entities to support its case. Insofar as particular
facts about Black & Decker and DeWalt’s collaborations may be
relevant to this litigation, Plaintiffs’ request seeks a much
larger category of information without any time or scope
limitation. Defendants’ motion for protective order on this
issue is granted.
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Finally, Topical Designation 28 seeks “the person most
knowledgeable about principles of safe product design.”
Testimony from this person is highly relevant to this
litigation, as Defendants’ safe product design principles may
include crucial information about the subject saw which directly
bear on Plaintiffs’ claims. Moreover, Defendant has not shown
that Plaintiffs’ request to depose the individual most
knowledgeable about this subject would create an undue burden –
to the contrary, deposing the most knowledgeable individual on
the subject would mitigate the need for significant additional
discovery about the company’s safe product design principles.
Defendants’ motion for protective order on this issue is denied.
III. Vagueness and Reasonable Particularity of Topical
Designations 5, 14, and 15.
Black & Decker also argues that Plaintiffs’ Topical
Designations 5, 14, and 15 fail to meet Rule 30(b)(6)’s
requirement that the notice “describe with reasonable
particularity to the needs of the case.” Fed. R. Civ. P.
30(b)(6). Defendant’s motion for protective order on this issue
is denied.
First, Defendant contends that Plaintiff’s fifth topical
designation, seeking “the identity of the purchasing agent
and/or agents for miter saws and optional accessories, including
clamps, similar to and including the subject product which have
been sold by [Defendant] for the past 10 years,” is not
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reasonably particular. ECF 29-5 at 8. Defendant argues that the
demand to produce a representative with knowledge and
information about all “optional accessories, including clamps,
similar to and including the subject product,” fails to identify
what specific “optional accessories” plaintiff seeks information
about that are relevant and proportional to the product
liability claims at issue in this case. ECF 29-5 at 8.
This argument lacks merit. Plaintiffs’ request seeks a
bounded category of purchasing agents involved in sale of
products including and similar to the subject saw. Plaintiffs’
mention of “optional accessories” refers to a specific class of
supplementary items (such as clamps) that support the use of the
product at issue. This is a sufficiently particular request to
pass muster under Rule 30(b)(6).
Next, Defendant challenges Topical Designation 14 and 15,
which seek “any studies, memos, notices, warnings or findings
conducted by or known by [Defendant] regarding possible hazards
associated with miter saws…” ECF 29-5 at 8. Defendant contends
that this request lacks reasonable particularity because the
request does not specify who conducted the study, and on grounds
that it is overbroad and not proportional to the needs of the
case. ECF 29-5 at 8. This argument also lacks merit.
Plaintiff’s request for company documentation regarding
possible hazards deriving from the subject saw speaks directly
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to the central claims of this litigation. Moreover, the
requests’ lack of reference to specific studies does not render
the request vague; the request seeks any studies falling into
this category within Defendants’ possession, any of which would
be relevant to the case. Defendant’s motion for protective order
on this issue is denied.
IV.
Plaintiffs’ Topical Designations Seeking Privileged
Information
Finally, Defendant requests a protective order to limit
deposition questioning around the factual bases underlying its
position statements, defenses, and counterclaims in Topical
Designations 34 - 52. ECF 29-5 at 9-10. Black & Decker submits
that these contentions lack reasonable particularity and are
protected from disclosure under attorney-client privilege, work
product doctrine, and / or consulting expert privilege. ECF 29-5
at 9. Defendants’ motion is denied as to these issues.
As a general matter, the factual bases of contentions,
denials, and affirmative defenses are properly subject to
questioning under Fed. R. Civ. P. 30(b)(6). United States v.
Niagara Cty., N.Y., 2015 WL 6554713 at 5 (W.D.N.Y. Oct. 29,
2015). Moreover, both the attorney-client privilege and workproduct doctrines require that witnesses disclose information
which they are aware of even if shared with an attorney. Upjohn
Co. v. United States, 449 U.S. 383, 395-96 (1981). Only
communications are protected; the underlying facts are not. Id.
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As such, Plaintiff may properly discover the factual bases
underlying Defendants’ position statements, defenses, and
counterclaims under the attorney-client privilege and workproduct doctrines.
Moreover, Defendant has not provided any factual basis to
suggest that Plaintiff’s request is vague, overbroad, unduly
burdensome, or duplicative of discovery. Factual bases of a
party’s asserted position statements, defenses, and
counterclaims are appropriate areas of Rule 30(b)(6) deposition
questioning, and Defendant must provide the court with a good
cause justification for protection to the contrary. Here, the
information sought is relevant to the litigation and there is no
indication of an undue burden or duplication. Defendant’s motion
for protective order on this issue is denied.
II.
PLAINTIFFS’ MOTION TO COMPEL DISCOVERY
Next, Plaintiff files a cross motion to compel discovery.
STANDARD OF REVIEW
Rule 26(b)(1) of the Federal Rules of Civil Procedure
defines the scope of discovery as including “any nonprivileged
matter that is relevant to any party's claim or defense and
proportional to the needs of the case considering the importance
of the issues at stake in the action, the amount in controversy,
the parties' relative access to relevant information, the
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parties' resources, the importance of the discovery in resolving
the issues, and whether the burden or expense of the proposed
discovery outweighs its likely benefit.” Fed. R. Civ. P.
26(b)(1). The Supreme Court has broadly construed the scope of
discovery “to encompass any matter that bears on, or that
reasonably could lead to another matter that could bear on” the
claims or defenses, and that is proportional to the needs of the
case.” Fed. R. Civ. P. 26(b)(1); Oppenheimer Fund, Inc. v.
Sanders, 437 U.S. 340, 351 (1978). Discovery is neither limited
to the issues raised by the pleadings, nor to the merits of a
case. Oppenheimer, 431 U.S. at 351.
In determining whether a discovery request is proportional
to the disputed issues, Fed. R. Civ. P. 26(b)(1) directs trial
courts to consider “the importance of the issue at stake in the
action, the amount in controversy, the parties’ access to
relevant information, the parties’ resources, the importance of
the discovery in resolving the issues, and whether the burden or
expense of the proposed discovery outweighs its likely
benefit.” Fed. R. Civ. P. 26(b)(1). Rule 26 vests the trial
judge with broad discretion over making these determinations.
Crawford-El v. Britton, 523 U.S. 574, 598 (1998).
A. Defendant’s written privilege log.
Defendant responded to Plaintiffs’ first set of discovery
requests with a boilerplate privilege objection to all their
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requests. See ECF 29-3. Plaintiff contends that Defendant failed
to provide a written privilege log pertaining to each of its
privilege claims as required by Fed. R. C. P. 26(b)(5) and Local
Rule 26(d). ECF 33 at 18. Black & Decker responds that it is not
currently withholding any documents based on a claim of
privilege, but rather based on an objection of overbreadth. ECF
37-5 at 10. Specifically, Black & Decker seeks specific
information regarding “how the alleged incident occurred” as
well as “plaintiff’s product defect theory of liability.” ECF
37-5 at 10.
Because Black & Decker has evidently withdrawn it privilege
objections to Plaintiffs’ discovery requests, the question of
whether Defendant must provide a privilege log is moot.
Plaintiffs’ motion to compel production of a written privilege
log is thus denied as moot.
B. Defendants’ narrowing of Plaintiffs’ discovery requests
to “the DeWalt Model DW716 Model DW716 Type 12-inch
double bevel compound miter saw involved in the
incident.”
Finally, Plaintiff alleges that Defendant impermissibly
narrowed the scope of his discovery requests by limiting it to
the specific type of saw involved in the incident at bar.
Plaintiff requests the court to compel production of all
responsive information of all miter saws similar to the product,
all clamps similar to the optional accessory for the product,
and information of similar incidents. ECF 33 at 21. Defendant
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has stated in its Response that “as a result of Plaintiff’s
deposition testimony . . . Black & Decker will also promptly
produce information regarding claims or lawsuits involving a
DW716, DW715 or DW706 miter saw”, as well as regarding clamp
assembly for the DW716 miter saw, at this point in the
litigation. ECF 37 8-9.
As such, the question before the court is whether
Plaintiffs’ motion to compel discovery should be granted with
regard to other “similar” miter saws besides the DW716, DW715,
and the DW706 models. The Court denies Plaintiffs’ motion with
regard to all responsive information concerning all miter saws
similar to the subject saw – this part of the request is
overbroad, as Defendants’ decision to produce information
regarding the DW716, DW715 and DW706 models will capture a
reasonable range of similarity without causing burdensome
discovery. However, we grant Plaintiffs’ motion with specific
regard to all similar incidents which resulted from kickback.
Courts typically allow discovery of different models of a
product “if they share with the accident-causing model those
characteristics pertinent to the legal issues raised in the
litigation. Fine v. Facet Aerospace Products, Co., 133 F.R.D.
439, 441 (S.D.N.Y. 1990).
Here, models that have been known to
cause kickback share those pertinent characteristics to the
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operative legal questions of this case, and should be allowed in
discovery.
Hence, the Court grants in part and denies in part
Plaintiffs’ motion to compel discovery regarding all miter saws
similar to the product, all clamps similar to the optional
accessory for the product, and information of similar incidents.
CONCLUSION
For the aforementioned reasons, Defendants’ motion for
protective order (ECF 29) is granted in part and denied in part,
and Plaintiffs’ cross-motion to compel discovery (ECF 32) is
granted in part and denied in part. The parties each bear their
own costs.
DATED at Burlington, Vermont, this 12th day of March, 2020.
/s/ William K. Sessions III
William K. Sessions III
U.S. District Court Judge
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