Woelfle v. Black & Decker (U.S.) Inc.

Filing 60

ORDER granting in part and denying in part 44 Motion to Compel. Signed by Hon. William K. Sessions III on 3/30/21. (SG)

UNITED STATES DISTRICT COURT
FOR THE
WESTERN DISTRICT OF NEW YORK
JAMES J. WOELFLE,
Plaintiff,
v.
BLACK & DECKER (U.S.), INC.,
individually and d/b/a
DEWALT INDUSTRIAL TOOL CO.,
Defendant.

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Case No. 1:18-cv-486

OPINION AND ORDER
Plaintiff James Woelfle brings this lawsuit alleging
injuries resulting from his use of a miter saw.

Currently

before the Court is Defendant Black & Decker’s motion to compel
certain discovery.

For the reasons set forth below, the motion

is granted in part and denied in part.

The parties shall bear

their own costs with respect to the motion.
I.

Factual Background
Woelfle filed an Amended Complaint on April 2, 2019,

asserting causes of action for negligence, breach of express and
implied warranties, strict product liability, and failure to
warn.

His claims arise out of an allegation that, on or about

December 13, 2017, he was using a DEWALT 12-inch double bevel
compound miter saw when the saw malfunctioned and caused him
injuries.

The parties have engaged in discovery, and Black &

Decker now moves to compel the production of five categories of

information: (1) photographs and videos of the saw, the scene,
and “other instrumentalities”; (2) a complete response to its
Request for Admissions; (3) HIPAA authorization for unredacted
pharmaceutical records for at least 5 years prior to the
incident and continuing through trial; (4) authorization to
obtain employment records; and (5) authorization to obtain
collateral source information.

A sixth category, relating the

Black & Decker’s Second Request for Production, has reportedly
been resolved.

ECF No. 57 (letter from counsel regarding

resolution).
II.

Photographs and Videos of the Saw and Accident Scene
Plaintiff’s Rule 26 disclosure contains a medical

(ambulance) record stating that Plaintiff “turned into” the saw
“while taking a panoramic photo” of his workshop.

Defendant

previously requested production of photographs or videos of the
scene, and now asks the Court to compel production of any
additional photographs or videos not already produced.
Plaintiff submits that he has disclosed 14 photographs of the
subject saw, spindles, stairway, and his injuries, and that
there is no panoramic photograph as described in the ambulance
report.

Certain images have been withheld on the basis of work

product or attorney-client privilege, including photos taken by
Plaintiff’s attorney or by Plaintiff himself at counsel’s
request.

Privilege logs have been provided.
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Defendant argues that Plaintiff’s privilege logs do not
comply with the Local Rules, specifically Local Rule 26(d).

The

Local Rule requires a privilege log to identify the type of
document; the general subject matter; the date the document was
created; other information needed to identify the document in
the event of a subpoena, including the author or creator of the
document; the location of the document; and any recipients.
L.R. 26(d)(1)(B)(i).

Plaintiff’s privilege log provides a

description of each photo or video, the creator, the reason for
withholding, and the address at which the item is held.

With

respect to the date, the log states “pre-suit in anticipation of
litigation.”

ECF No. 51 at 9.

While Plaintiff argues that the

cited Local Rule applies only to documents and not to visual
images, this district has required similar privilege log
information be provided for photographs.

See Fingerhut ex rel.

Fingerhut v. Chautauqua Inst. Corp., No. 07-CV-502-JTC, 2013 WL
5923269, at *3 (W.D.N.Y. Oct. 31, 2013).
Defendant’s motion centers on a document that it believes
is missing: the panoramic photo or video that, according to the
ambulance report, was taken immediately before the alleged
accident.

Plaintiff contends that no such photo or video

exists, and the Court cannot compel the production of an item
that does not exist.

Defendant’s effort to access all other

photos or video based upon the alleged shortcomings in the
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privilege log is misplaced.

The privilege logs at issue

substantially comply with the Local Rules, although the dates on
which the photographs were taken and the subject matter of the
photographs would assist the Court and the parties in assessing
the validity of the alleged privileges.
be amended accordingly.

The privilege logs must

If, after amendment, Defendant wishes

to challenge the assertion of privileges it may do so in a
separate motion.

The Court will not, however, compel the

production of privileged information on the basis of the alleged
shortcomings in the privilege logs.

See Essex Ins. Co. v.

Interstate Fire & Safety Equip. Co./Interstate Fire & Safety
Cleaning Co., 263 F.R.D. 72, 76 (D. Conn. 2009) (citing
authority for the proposition that while failure to provide a
privilege log in a timely manner may result in waiver, only
flagrant violations require such an outcome).

The motion to

compel on this issue is denied.
III. Requests for Admission
In the course of discovery, Plaintiff’s expert Les Winter
reportedly revealed that he altered the saw.

The revelation led

Defendant to propound a series of requests for admissions with
respect to the saw’s chain of custody.

In response to several

of those requests Plaintiff offered general objections,
essentially claiming: (1) attorney client/work product
protection; (2) that the request requires explanation rather
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than an admission and is overly broad; and (3) that the request
does not relate to facts, the application of law to facts, or
the genuineness of a document.

Defendant argues that over

twenty of Plaintiff’s responses, many of which refer to the
general objections, are insufficient.
As the United States District Court for the District of
Connecticut recently noted,
[T]he purpose of a request for admission is not to
discover information, but rather, to facilitate
resolution on the merits by narrowing the issues at
trial where the parties unambiguously agree. Unlike
interrogatories, depositions and document demands,
requests for admission are neither discovery device[s]
nor substitutions for such devices.
The sole purpose
of requests for admission under Rule 36 is to
streamline the presentation of evidence at trial.
Vernon Horn v. City of New Haven, No. 3:18 CV 1502 (RNC), 2021
WL 805504, at *4 (D. Conn. Mar. 2, 2021) (citations and
quotation marks omitted).

Requests for admission “‘presuppose

that the party proceeding under Rule 36 knows the facts or has
the document and merely wishes its opponent to concede their
genuineness.’”

Pasternak v. Dow Kim, No. 10-CV-5045 (LTS)

(JLC), 2011 WL 4552389, at *5 (S.D.N.Y. Sept. 28, 2011) (quoting
8B, Wright, Miller & Marcus, Federal Practice and Procedure, §
2253 at 324).
In this case, Defendant first asks Plaintiff to admit that
the saw remained in his custody or control, or that of his
agents, until it was made available to Defendant’s counsel.
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Plaintiff argues that custody or control is a term of art and
cannot be fairly answered in an admission or denial.

The Court

agrees that the question is subject to nuance, and notes that
Plaintiff was asked about chain of custody at his deposition.
As there is no indication that the parties unambiguously agree
about chain of custody, the Court will not compel further
responses to Requests 1-3.
Requests 4 and 5 ask for an admission that no modifications
were made to the saw.

The term “modification” is not defined,

and is too vague to be the subject of an admission or denial.
Accordingly, the Court will not compel additional responses to
those Requests.
Requests 6 and 11 ask Plaintiff to admit that his attorneys
arranged for the saw to be delivered to an evidence storage
company and then made available for inspection.

Plaintiff

asserts the three general objections, and argues that any
responses would violate attorney-client privilege and the work
product doctrine.

It is not clear how the general objections

apply, as the Requests are specific and do not ask for attorneyclient communications or attorney thought processes.

They

instead ask Plaintiff to confirm limited and specific
authorizations made by his attorneys regarding movement of, and
access to, the saw.

The responses shall therefore be

supplemented.
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Request 12 asks Plaintiff to admit that the saw was first
made available to his expert, Les Winter.

It is not clear from

the request whether “first made available” is in relation to
counsel, other experts, or Defendant.

The Court will not compel

an additional response to that Request.
Request 13 asks Plaintiff to admit that when Les Winter
inspected the saw, it was “in the same condition” as at the time
of the accident.

Defendant appears to be asking whether any

alterations were made prior to Winter’s inspection, but its
reference to the saw’s “condition” is unclear.

This same lack

of clarity arises in Requests 16-18, and the Court will not
require supplemental responses.
Requests 22-26 are more specific.

Those items ask

Plaintiff to essentially admit that Winter modified the saw both
before and after certain events, including the time of the
accident (modified after) and Defendant’s subsequent inspection
(modified before).

It is not clear how the general objections

apply, and Plaintiff shall supplement his responses to those
Requests.
IV.

Pharmacy Records
Defendant submits that on the date of the accident,

Plaintiff tested positive for cocaine and Benzodiazepine.
Defendant sought an authorization to obtain Plaintiff’s pharmacy
records, and Plaintiff offered a list of records post-dating the
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accident.

Those records did not show a prescription for

Benzodiazepine.

Defendants now seek unlimited access to

Plaintiff’s pharmaceutical records for the five years prior to
the accident.

Plaintiff objects to the request as overly broad

and as violating the physician-patient privilege.
Defendant argues that its request is material and relevant
to whether Plaintiff was operating machinery while taking
narcotics without a prescription, as well as whether Plaintiff
had failed to take medications that were prescribed.

Defendant

further contends that Plaintiff’s medications are relevant to
his overall medical condition, which is in turn relevant to his
claims for pain and suffering and loss of enjoyment of life.
Plaintiff counters that “unrelated illnesses and treatment” are
not discoverable.
The most relevant fact at issue is Plaintiff’s toxicology
report.

Whether a medication was taken with or without a

prescription is immaterial to whether the drug impacted
Plaintiff’s condition at the time of the accident.

With regard

to Plaintiff’s overall medical condition, the parties have not
fully briefed whether Plaintiff’s full medical records,
including any prescribed drugs, are open for discovery in light
of the nature of his claims.

Based upon the limited briefing

provided here, the Court finds that five-year access to
Plaintiff’s pharmaceutical records is not warranted.
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V.

Employment Records
Defendant seeks unrestricted access to Plaintiff’s

employment records for the 10 years prior to the date of the
incident.

To justify this request, Defendant argues that

employment records are relevant to Plaintiff’s claim for lost
future earnings, and that disciplinary records are relevant to
Plaintiff’s employability.

Defendant also contends that work

records will likely provide relevant information relating to
Plaintiff’s experience with wood-working tools, including miter
saws.
Plaintiff has made an effort to resolve this issue by
providing defendant with 10 years of employment authorizations
limited to the date of hire, the termination date, and wage and
benefit information.

In response, Defendant argues that dates

of unemployment must also be provided.

Those dates appear to be

implied, however, by Plaintiff’s termination dates and
subsequent dates of rehire.
Disciplinary records will not be compelled, as their
production will likely be more prejudicial than probative to the
central issues in this case.

With respect to Plaintiff’s

experience with miter saws, unrestricted access to employment
records is an overly-broad attempt to access such narrow
information, which may be easily accessed through questions,
either written or oral, directed to Plaintiff himself.
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The

motion to compel additional employment authorizations is
therefore denied.
VI.

Collateral Source Information
Defendant moves the Court to compel authorizations for

records from collateral sources, including insurers
POMCO/MagnaCare Insurance and RMSCO, as well as disability
applications to, or payments from, the Social Security
Administration.

In response to the motion, Plaintiff served

Defendant with authorizations for MagnaCare, RMSCO and POMCO for
payment records related to his left upper extremity.

Defendant

contends that the production is insufficient and seeks access to
Plaintiff’s health care insurance applications, arguing that a
health-related rejection of insurance could lead to evidence
relating to Plaintiff’s overall health and, correspondingly, his
future life expectancy and future lost earnings.

Defendant

seeks unlimited access to collateral source records for the same
reason.
As discussed above, the parties have not fully briefed
whether Plaintiff’s entire medical history is the proper subject
of discovery.

The Court declines to compel unlimited access to

collateral source records for the same reason that it will not
compel production of complete medical and/or pharmaceutical
records at this time.

The motion to compel additional

collateral source information is therefore denied.
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VII. Conclusion
As set forth above, Defendant Black & Decker’s motion to
compel (ECF No. 44) is granted in part and denied in part.

The

parties shall bear their own costs with respect to the motion.
DATED at Burlington, in the District of Vermont, this 30th
of March, 2021.
/s/ William K. Sessions III
William K. Sessions III
U.S. District Court Judge

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