Marcellin et al v. HP, Inc. et al

Filing 50

ORDER denying 25 Motion to Compel; denying 25 Motion for Sanctions; granting 32 Motion to Compel; denying 43 Motion for Protective Order Signed by Hon. H. Kenneth Schroeder Jr. on 3/27/2024. (DLR)

UNITED STATES DISTRICT COURT
WESTERN DISTRICT OF NEW YORK
CAROL S. MARCELLIN, individually, and as
Co-Administrator of the Estate of Charles E.
Hollowell, deceased, and JESSICA HOLLOWELLMcKAY, as Co-Administrator of the Estate of
Charles E Hollowell, deceased.
v.

Plaintiffs,
21-CV-00704-JLS-HKS

HP., INC. and STAPLES, INC.,
Defendants.

DECISION AND ORDER
This case was referred to the undersigned by the Hon. John L.
Sinatra, Jr., pursuant to 28 U.S.C. § 636(b)(1), for all pretrial matters and to hear and
report upon dispositive motions. Dkt. #4.

This is a wrongful death and personal injury product liability case
arising out of a fire allegedly caused by the explosion of a battery in a laptop computer.

Currently before the Court are plaintiffs’ motion to compel (Dkt. #25),
defendant HP, Inc.’s cross motion to compel (Dkt. #32), and defendant HP, Inc.’s motion
for protective order (Dkt. #43).

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BACKGROUND
On January 24, 2020, plaintiff Carol Marcellin (“Marcellin”) was asleep in
the home she shared with her long-time companion, decedent Charles Hollowell
(“Hollowell”), when a laptop in the home caught fire. Dkt. #1, ¶¶12-14. Marcellin was
unable to get Hollowell, who was physically disabled, out of the home. Marcellin exited
the home to call for help, but by the time help arrived, Hollowell had perished. Id. Marcellin
suffered smoke inhalation and severe emotional and psychological suffering. Dkt. #1,
¶ 16.

Plaintiffs filed this diversity action on June 2, 2021 alleging claims for: (1)
strict products liability—manufacturing defect 1; (2) strict products liability—design defect;
(3) strict products liability—failure to warn; and (4) negligence. Dkt. #1. They named as
defendants H.P., Inc. (“H.P.”), the successor corporation to Hewlett Packard Company,
the manufacturer of the laptop, and Staples, Inc., the store where plaintiff bought the
computer. Dkt. #1, ¶¶ 10-11.

Plaintiffs originally alleged that Marcellin purchased the laptop in 2010. Dkt.
#1, ¶ 10. During discovery, however, it was determined that the battery in the laptop—
which apparently exploded and caused the fire—was manufactured in 2014 and was not
the battery that had been sold with the laptop. Dkt. #25-1, ¶ 4. It was also revealed that

Plaintiffs are not pursuing their manufacturing defect theory against HP, but they are pursuing
their design defect claim. Dkt. #39-3, pp. 16-17.
1

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the battery lacked features to prevent it from overcharging and potentially exploding. Dkt.
#25-2, ¶ 5. 2

On December 16, 2021, plaintiffs served a first set of interrogatories and
document requests to Staples. Dkt. ## 25-5, 25-6. Plaintiffs served these requests by
email, stating: “Should you also require service by regular postal mail, please let us know
and we will promptly forward hard copies.” Dkt. #33-1, p. 2. Plaintiffs’ counsel avers that
“[a]t no time did Defendant Staple’s counsel request paper copies of these discovery
demands be served [by] mail.” Dkt. #33, ¶ 4. Staples provided responses to these
requests on August 30, 2022. Dkt. #25-7. On November 8, 2022, plaintiffs sent Staples’s
counsel a letter setting forth alleged deficiencies in Staples’s responses. Dkt. #25-8.

On February 22, 2022, HP served interrogatories and requests for
production on plaintiffs. Dkt. #32-2. Plaintiffs provided responses to these requests on
March 9, 2022. Dkt. #32-3. For more than a year, HP and plaintiffs corresponded about
the adequacy of plaintiffs’ responses. Dkt. ##32-4—32-8.

Meanwhile, plaintiffs’ counsel theorized that Marcellin may have bought the
laptop as a refurbished computer in 2015 and not as a new computer in 2010. Dkt. #251, ¶ 12. When plaintiffs’ counsel communicated this information to counsel for HP on
March 16, 2023, defense counsel stated that they would need to reschedule Marcellin’s

Discovery has since revealed that plaintiff stated in the property inventory she submitted to her
insurer after the fire that she purchased the HP laptop from Staples in 2011. Dkt. #48-2, p. 5.
2

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deposition—which was set for the following day—and the parties reached an impasse on
that issue. Dkt. #25-9. 3

On March 29 and 30, 2023, plaintiffs served a second set of discovery
requests on defendants to try to determine to whom the laptop was originally sold and
when Marcellin bought it. Dkt. #25-16-#25-19. The requests to Staples, including a notice
of Rule 30(b)(6) deposition, were again sent by email, Dkt. ##25-18, 25-19, 25-20.

On May 4, 2023, plaintiffs’ counsel emailed defense counsel noting that
defendants had not provided responses to these second requests and seeking dates for
a meet and confer to discuss that issue as well as scheduling matters. Dkt. #25-21, p. 2.
On May 8, 2023, plaintiffs’ counsel renewed their request. Dkt. #25-22.

On May 11, 2023, counsel for HP and plaintiffs conferred via email regarding
their respective discovery responses. Dkt. #25-23. Plaintiffs informally supplemented their
responses to HP’s interrogatories, noting that they would follow up with formally amended
responses. Dkt. #25-23, pp. 8-9.

Similarly, HP informally supplemented its responses to plaintiffs’ second set
of interrogatories, noting that it would follow up with formal responses. Dkt. #25-23, p. 8.
Specifically, in response to the first interrogatory asking HP to “identify the date the Laptop
was first sold, the amount received by HP in the sale, the suggested retail price of the

3

Plaintiffs were eventually deposed on July 7, 2023. Dkt. #29, ¶ 9(b).

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Laptop and the name and address of the purchaser,” HP stated: “Given the age of the
laptop at issue, we have been unable to locate this information.” Dkt. #25-23, p.8. In
response to the second interrogatory asking HP to identify “the name and address of the
person or entity who registered for the warranty described in HP 00482 for the Laptop,”
HP stated: “See the attached screenshot for the laptop registration identifying Carol
Marcellin as the registered owner of the laptop. I intend to have the attached batesstamped and will make this a formal response.” Dkt. #25-23, p. 8.

The parties had a teleconference on May 11, 2023, in which they discussed
scheduling matters and the production of outstanding discovery by June 30, 2023. Dkt.
#25-1, ¶ 20; Dkt. #27, ¶ 11; Dkt. #29, ¶ 8.

In the emails exchanged that day, plaintiffs’ counsel noted the “outstanding
discovery requested of your clients,” Dkt. #25-23, p. 9, and on May 15, 2023, plaintiffs’
counsel emailed Staples’s counsel

a Word version of “the outstanding discovery

demands to your clien[t].” Dkt. #25-23, p. 6.

On May 24, 2023, plaintiffs’ counsel asked Staples’s counsel, “Can you
produce the 30b6 witness that first week of August as well Maria?” Dkt. #25-23, p. 3.
Staples’s counsel responded: “I’ll check into it and get back to you ASAP.” Dkt. #25-23, p.
2.

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On June 23, 2023, the parties filed a joint request for an amended
scheduling order, which the Court granted. Dkt. ##23, 24. In that request, counsel for HP
stated that the parties were working through additional document discovery; had agreed
to exchange supplemental discovery responses by June 30, 2023; and would conduct
plaintiffs’ depositions on July 7, 2023 and the deposition of an HP representative on
August 2, 2023. Dkt. #23.

On July 5, 2023, plaintiffs emailed defense counsel noting that they had not
provided responses to outstanding discovery requests by June 30, as promised. Dkt. #2530, p. 2.

On July 13, 2023, HP served plaintiffs with its formal responses to plaintiffs’
second set of interrogatories. Dkt. #25-31. Plaintiffs did not raise any objections to these
responses. Dkt. #27, ¶ 14. Instead, plaintiffs filed their motion to compel on July 25, 2023.
Dkt. #25.

On July 31, 2023, HP served responses to plaintiffs’ second set of requests
for production. Dkt. #27-3. Because the deposition of HP’s Rule 30(b)(6) deponent was
imminent, HP’s counsel emailed plaintiffs’ counsel to see if he wanted to reschedule the
deposition, but plaintiffs’ counsel stated he had reviewed the documents and rescheduling
was not necessary. Dkt. #31-2.

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On August 2, 2023, plaintiffs took the deposition of HP’s Rule 30(b)(6)
designee, Lee Atkinson (“Atkinson”), who was produced to testify to: HP’s knowledge of
counterfeit batteries being sold to users of its laptops; the risks posed by such counterfeit
batteries; the availability to HP of battery authentication systems designed to detect and
warn against counterfeit replacement batteries; and warnings, manuals and instructions
issued by HP to purchasers of its laptops regarding replacement batteries. Dkt. #43-1, ¶¶
2-3.

Atkinson testified that HP had been aware of the issue of counterfeit battery
packs since 2016-2017; that HP introduced a pop-up counterfeit battery alert to new HP
computers in 2019; and that HP did not communicate with previous customers regarding
aftermarket batteries. Dkt. #43-8, p. 5. Atkison also testified that he had discussions
“about the potential hazards associated with using these unauthorized battery packs”
within the last four years with David Pipho (“Pipho”), an employee in HP’s quality group.
Dkt. #43-8, p. 4. Atkinson testified that he discussed numerous safety issues—which
included thermal protection shutdown processes—with Pipho “probably multiple times.”
Dkt. #47-3, p. 9. Atkinson testified that he did not know whether HP took any further action
on the issue. Dkt. #43-8, p. 5.

On August 7, 2023, HP’s counsel emailed plaintiffs’ counsel inquiring if
plaintiffs intended to proceed with their motion to compel given that HP had responded to
plaintiffs’ second set of requests. Dkt. #31-3, p. 3. On August 10, 2023, plaintiffs’ counsel
responded that plaintiffs considered HP’s responses to their second set of discovery

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requests to be incomplete. Dkt. #31-3, p. 2. Similarly, on August 18, 2023, counsel for
Staples requested that plaintiffs withdraw their motion to compel and “work towards
completing discovery,” but plaintiffs refused. Dkt. #29, ¶ 13.

On August 25, 2023, HP sent plaintiffs a letter detailing the alleged
deficiencies in their discovery responses. Dkt. #32-9. HP and plaintiffs held a meet and
confer on August 28, 2023, and plaintiffs agreed to supplement their responses by
September 11, 2023. Dkt. ##32-10, 39-2.

HP then filed its cross-motion to compel on September 7, 2023, Dkt. #32,
and plaintiffs provided HP with their third amended answers to HP’s interrogatories the
same day. Dkt. #39-3.

On September 13, 2023, plaintiffs served a notice to take David Pipho’s
deposition. Dkt. #43-3, pp. 2-3. HP objected and, after attempts to resolve the issue, Dkt.
#43-8, HP filed its motion for protective order to prohibit plaintiffs from deposing Pipho.
Dkt. #43-9.

DISCUSSION AND ANALYSIS

Legal Standards
Pursuant to Fed. R. Civ. P. 26, parties “may obtain discovery regarding any
nonprivileged matter that is relevant to any party’s claim or defense and proportional to
the needs of the case.” Fed. R. Civ. P. 26(b)(1).

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“Information is relevant if: (a) it has any tendency to make a fact more or
less probable than it would be without the evidence; and (b) the fact is of consequence in
determining the action.” Duhaney v. TransUnion, LLC, 23-CV-04066 (NJC) (JMW), 2024
WL 85074, at *1 (E.D.N.Y. Jan. 8, 2024) (citation and internal quotation marks omitted).
Relevance, “for purposes of discovery, is an extremely broad concept.” Carlyle Aviation
Mgmt. Ltd. v. Frontier Airlines, Inc., 23 Civ. 4774 (PAE), 2023 WL 8472725, at *1 (S.D.N.Y.
Dec. 7, 2023) (citation and internal quotation marks omitted).

“Once any possibility of relevance sufficient to warrant discovery is shown,
the burden shifts to the party opposing discovery to show the discovery is improper.”
Rhodes v. Phoenix Arms, 1:20-CV-267 (GTS/CFH), 2022 WL 2079088, at *2 (June 9,
2022) (citation and internal quotation marks omitted). “Generally, discovery is only limited
when sought in bad faith, to harass or oppress the party subject to it, [or] when it is
irrelevant or privileged.” Id.

Federal Rule of Civil Procedure 37(a)(1) requires “the parties to confer or
attempt to confer in good faith to try to resolve discovery disputes without court
intervention before filing a motion to compel.” Marseet v. Rochester Inst. of Tech., 20-CV7096FPG, 2023 WL 1097969, at *3 (W.D.N.Y. Jan. 30, 2023). This Court’s local rules also
state that no party may seek judicial intervention unless they include an affidavit “showing
that sincere attempts to resolve the discovery dispute have been made.” Loc. R. Civ. P.
7(d)(3). “Only those matters that remain unresolved after serious attempts to reach

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agreement should be the subject of a motion to compel.” Marseet, 2023 WL 1097969, at
*3 (citation and internal quotation marks omitted).

A party’s failure to comply with the conferral requirement before filing a
motion to compel is grounds to deny the motion. McFadden v. Williams, 18-CV-6684FPG,
2022 WL 17126213, at *3 (W.D.N.Y. Nov. 22, 2022) (citation omitted).

Plaintiffs’ Motion to Compel as to HP
The Court finds that plaintiffs’ motion to compel as to defendant HP should
be denied.

HP served plaintiffs with its formal responses to plaintiffs’ second set of
interrogatories on July 13, 2023. Dkt. #25-31. Plaintiffs did not raise any objections to
those responses. Dkt. #27, ¶ 14. Instead, plaintiffs filed their motion to compel on July 25,
2023. Dkt. #25.

Plaintiffs thus failed to satisfy the conferral requirement as to these
interrogatories. McFadden, 2022 WL 17126213, at *3.

Moreover, HP’s responses are not deficient as alleged. Plaintiffs’ counsel
avers that HP failed to identify the original purchaser of the laptop and failed to provide
the date that Marcellin registered the laptop. Dkt. #25-1, ¶ 26.

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First, as to the identity of the original purchaser of the laptop, HP’s sworn
response states that: “After diligent search, HP Inc. states it is not able to answer this
interrogatory as to the specific notebook at issue.” Dkt. #25-31, p. 2. A “challenge to the
accuracy of an [interrogatory] answer is not a basis for court intervention.” Adams v.
Taylor, 21-CV-6056EAW, 2023 WL 7390042, at *9 (W.D.N.Y. May 26, 2023).

Second, plaintiffs’ remaining interrogatory requested the “name and
address of the person or entity who registered for the warranty described in HP 00482 for
the Laptop.” Dkt. #25-31, p. 2. This interrogatory did not ask for the date of the registration.
HP’s response is thus not incomplete.

Next, plaintiffs do not dispute that HP provided a response to plaintiffs’
second request for production on July 31, 2023, six days after plaintiffs filed their motion
to compel. Dkt. #33, ¶7. This moots plaintiffs’ motion as to these requests. Adams, 2023
WL 7390042, at *9.

Finally, plaintiffs argue that a screen shot produced by HP in response to
document requests relating to Marcellin’s registration of the laptop suggests that “[t]here
is clearly more information in whatever database this screenshot is taken from.” Dkt. #33,
p. 5. Such speculation is insufficient to support a motion to compel. In re Terrorist Attacks
on Sept. 11, 2001, 03-MD-1570 (GBD)(SN), 2018 WL 4237470, at *7 (S.D.N.Y. Aug. 29,
2018) (denying motion to compel where plaintiffs “have not offered any concrete evidence

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showing that there are actually more documents in [defendant’s] possession, custody, or
control that the organization has failed to produce”). 4

Plaintiffs’ Motion to Compel as to Staples
Plaintiffs argue that Staples failed to respond fully to plaintiffs’ first set of
discovery requests and has failed to provide any responses to their second set of
requests. Dkt. #25-32, p. 4.

Staples first argues that plaintiffs failed to properly serve Staples with all
discovery requests because they were sent by email, rather than by regular mail, and
Staples had not consented to electronic service as provided in Fed. R. Civ.5(b)(2)(E). Dkt.
#30, pp. 2-3.

Staples’s conduct in this matter suggests that this argument is a post hoc
rationalization. In 2022, Staples responded to plaintiffs’ first set of discovery requests,
which were served via email with the notation that plaintiffs would also serve them by mail
if Staples so desired. Dkt. #33-1, p. 2. Staples did not request such service. Staples’s
counsel participated in the May 11, 2023 teleconference, also apparently without ever
raising the service issue. On May 24, 2023, when plaintiffs’ counsel inquired about
Staples’s availability for their Rule 30(b)(6) deposition, counsel responded, “I’ll check into

Plaintiffs’ counsel states in his reply affidavit that HP’s counsel “agreed to provide further
information from this database,” Dkt. #33, p. 5, but this misstates the record. In the cited
correspondence, HP’s counsel stated only that he would “see if there is some further detail we
can get you regarding when [Marcellin] registered the product.” Dkt. #33-5, p. 2.
4

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it and get back to you ASAP.” Dkt. #25-23, p. 2. Staples then joined in the parties’
proposed amended scheduling order filed on June 23, 2023. Dkt. #23.

Finally, on August 18, 2023, Staples’s counsel requested that plaintiffs
withdraw their motion to compel and “work towards completing discovery.” Dkt. #29, ¶ 13.

Nonetheless, Rule 5(b)(2)(E)’s requirement of consent for service “by other
electronic means” is strictly construed, and the advisory committee notes state that
“consent must be express, and cannot be implied from conduct.” Fed. R. Civ. P. 5(b)
advisory committee’s note to 2000 amendment. See Roe v. Marshall Univ. Bd. of
Governors, Case No. 3:22-cv-00532, 2024 WL 1054671, at *1 (S.D. W. Va. Mar. 11, 2024)
(collecting cases).

The Court will thus order plaintiffs to serve their first and second set of
discovery requests on Staples in compliance with by Rule 5. The Court need not reach
the parties’ alternative arguments.

Plaintiffs’ motion to compel as to Staples will thus be denied.

HP’s Motion to Compel
HP’s motion to compel is well taken.

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Plaintiffs do not contest the relevance of the information sought in HP’s
requests or argue that the requests are burdensome. They argue only that the alleged
deficiencies in their responses are “trivial.” Dkt. #39, p. 2.

Furthermore, although plaintiffs served third amended responses to HP’s
requests after HP filed its motion to compel, HP notes in its reply brief that plaintiffs have
yet to provide clear information on a crucial issue in this case: what aftermarket battery
did Marcellin or someone else purchase for either the HP laptop that allegedly caused the
fatal fire or for some other computer in the home? Dkt. #42-3, p. 5.

HP’s motion to compel will thus be granted.

HP’s Motion for Protective Order
The final motion before the Court is HP’s motion for a protective order
prohibiting the deposition of David Pipho. Dkt. #43. The Court concludes that this motion
should be denied.

“Parties seeking cover from discovery may avail themselves of a motion for
a protective order which, in effect, is the flip side of a motion to compel.” C.K. through
P.K. v. McDonald, 345 F.R.D. 262, 268 (E.D.N.Y. 2023). “The court may, for good cause,
issue an order to protect a party or person from annoyance, embarrassment, oppression,
or undue burden or expense.” Id. (citations and internal quotation marks omitted).

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“The burden is on the party seeking issuance of the order to show ‘good
cause’ through ‘particular and specific facts’ as opposed to ‘conclusory assertions.’” Id.
(citation omitted).

“If the movant establishes good cause for protection, the court may balance
the countervailing interests to determine whether to exercise discretion and grant the
order.” Id. (citation and internal quotation marks omitted). “Because of the interest in
broad discovery, the party opposing the discovery of relevant information . . . bears the
burden of showing that based on the balance of interests the information should not be
disclosed.” Id.

“In general, motions for protective orders seeking to prevent the taking of a
deposition [are] regarded unfavorably by the courts.” Klosin v. E.I. Pont De Nemours and
Co., 1:19-CV-00109-EAW-MJR, 2023 WL 1097859, at *2 (W.D.N.Y. Jan. 30, 2023)
(citation and internal quotation marks omitted). “Such orders should rarely be granted
absent extraordinary circumstances,” and “therefore, the moving party bears a heavy
burden.” Id.

HP argues that Pipho’s deposition is not relevant to any claim or defense in
this case. Dkt. #43-9, p. 7. In support, HP filed an affidavit from Pipho in which he avers
that he is not employed in the battery unit at HP; from 2011 to 2020, he played no role in
decisions by HP to take action related to counterfeit batteries; and, during that time, he
played no role in the decision of whether to notify end users of the dangers of counterfeit

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replacement batteries. Dkt. #43-2. He further avers that he vaguely recalls conversations
with Atkinson about counterfeit batteries, but nothing specific, and such discussions were
not part of his duties at HP. Id.

However, Atkinson’s testimony is somewhat different. He recalled
specifically discussing with Pipho, multiple times, various safety concerns about
counterfeit batteries that he learned during other litigation involving HP. Dkt. #47-3, pp.
6-9.

Pipho’s testimony is thus relevant to plaintiffs’ post-manufacture duty-towarn theory, i.e., that HP knew that the batteries in its laptops would need to be replaced
before the end of the useful life of the laptop itself; that counterfeit batteries lacking
important safety features—including those that would prevent fires such as that allegedly
caused by HP’s laptop in this case—were widely sold; that HP had a duty to warn previous
purchasers of such dangers; and that HP failed to do so, proximately causing plaintiffs’
injuries.

That Pipho disavows specific knowledge in his affidavit does not warrant
the relief HP seeks because plaintiff is entitled to test Pipho’s knowledge on crossexamination. Whether the deposition may or may not yield evidence useful to plaintiffs
does not render the subject matter irrelevant.

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HP also argues that Pipho’s deposition is not proportional to the needs of
this case. Dkt. #43-9, pp. 8-11. This argument fails.

Considering the relevant factors, Klosin, 2023 WL 1097859, at *2, the Court
notes that this is a serious case involving a person’s death allegedly caused by a product
commonly found in homes throughout this country. Plaintiff also states, and HP does not
contest, that plaintiffs have taken only one other deposition so far. The civil rules
presumptively allow up to ten depositions to be taken by each party. Fed. R. Civ. P.
30(a)(2)(A)(i).

HP’s motion for protective order will thus be denied.

Requests for Attorneys’ Fees
Because both plaintiffs and HP have prevailed on some motions but not
others, the Court declines both sides’ requests for fees. See 6340 NB LLC v. Capital One,
N.A., 20-CV-02500 (OEM) (JMW), 2023 WL 7924176, at *8-9 (E.D.N.Y. Nov. 16, 2023)
(denying both parties’ requests for fees in relation to discovery motions; “both motions
required a similar amount of effort in drafting and opposing and compiling documents in
support of those motions and oppositions”).

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CONCLUSION
Consistent with this decision, plaintiff’s motion to compel (Dkt. #25) is
denied, HP’s motion to compel (Dkt. #32) is granted, and HP’s motion for protective order
(Dkt. #43) is denied.

Within ten (10) days of entry of this Decision and Order, plaintiffs shall serve
their first and second set of discovery requests on Staples pursuant to Fed. R. Civ. P. 5.

The parties shall confer and file a proposed third amended scheduling order
by April 15, 2024.

SO ORDERED.

DATED:

Buffalo, New York
March 27, 2024
s/ H. Kenneth Schroeder, Jr.
H. KENNETH SCHROEDER, JR.
United States Magistrate Judge

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