Settlemyer et al v. Borg-Warner Morse Tec, LLC et al

Filing 136

ORDER: Plaintiffs' #120 Motion to Compel Defendant Carlisle Industrial Brake & Friction, Inc. to Respond to Plaintiffs' Interrogatories, and Request for Production of Documents, Dates for the Deposition of Defendant's Rule 30(b)(6) Corporate Representative, and Motion Regarding Sufficiency of Certain Responses to Request for Admission is DENIED as specified herein. Signed by Magistrate Judge W. Carleton Metcalf on 1/6/2021. (maf)

IN THE UNITED STATES DISTRICT COURT
FOR THE WESTERN DISTRICT OF NORTH CAROLINA
ASHEVILLE DIVISION
1:19 CV 344 MR WCM
DAVID L. SETTLEMYER and
JANE SETTLEMYER
Plaintiffs,
v.
BORG-WARNER MORSE TEC, LLC;
BWDAC, INC.; CARLISLE
INDUSTRIAL BRAKE & FRICTION
INC.; CATERPILLAR, INC.; CBS
CORPORATION; CERTAIN TEED
CORPORATION; CONSOLIDATED
TRUCK PARTS, INC.; CRA
TRAILERS INC.; CUMMINS, INC.;
DAIMLER TRUCKS NORTH
AMERICA LLC; DANA
COMPANIES, LLC; EATON
CORPORATION; FEDERAL-MOGUL
ASBESTOS PERSONAL INJURY
TRUST; FORD MOTOR COMPANY;
HEAVY DUTY PARTS, INC.;
GENUINE PARTS COMPANY;
KELSEY-HAYES COMPANY; MACK
TRUCKS, INC.; NAVISTAR, INC.;
PACCAR, INC.; PNEUMO ABEX, LLC
Defendants.
_______________________________

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ORDER

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This matter is before the Court on Plaintiffs’ Motion to Compel
Defendant Carlisle Industrial Brake & Friction, Inc. to Respond to Plaintiffs’
Interrogatories, and Request for Production of Documents, Dates for the
Deposition of Defendant’s Rule 30(b)(6) Corporate Representative, and Motion
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Regarding Sufficiency of Certain Responses to Request for Admission (the
“Motion to Compel,” Doc. 120). The Motion to Compel is fully briefed, see Docs.
121, 125, & 126, and a hearing was conducted on December 21, 2020.
I.

Background

Plaintiffs have filed the instant case seeking damages related to David
Settlemyer’s alleged exposure to asbestos and subsequent mesothelioma
diagnosis.
Relevant to the Motion to Compel, Plaintiffs explain that during his
deposition in April 2020, Mr. Settlemyer testified that he performed brake
repair and replacement work on semitrucks and trailers while employed as a
mechanic at Davis Oil Company in Statesville, North Carolina from 1979-1994.
Doc. 121 at 1-2. Plaintiffs further state that Mr. Settlemyer testified that to
change the brakes, he used an air compressor or air hose to blow out debris
from inside the brake drum, which created dust in the air, and that he handled
old brake linings and used a drill to remove those linings which also created
dust. Id. at 2. Mr. Settlemyer identified Carlisle Industrial Brake & Friction,
Inc. (“Carlisle”) as a manufacturer of brake linings he used at Davis Oil. Id.
II.

Legal Standard

Under Rule 26 of the Federal Rules of Civil Procedure, “[p]arties 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.” This
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determination is to be made “considering 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.” Fed. R. Civ. P. 26(b)(1).
“[T]he party or person resisting discovery, not the party moving to
compel discovery, bears the burden of persuasion.” Oppenheimer v. Episcopal
Communicators, Inc., No. 1:19-CV-00282-MR, 2020 WL 4732238, at *2
(W.D.N.C. Aug. 14, 2020) (quoting Kinetic Concepts, Inc. v. ConvaTec Inc., 268
F.R.D. 226, 243 (M.D.N.C. 2010)).
A district court has broad discretion in managing discovery, Lone Star
Steakhouse & Saloon, Inc. v. Alpha of Va., Inc., 43 F.3d 922, 929 (4th Cir. 1995),
including the “discretion to determine whether discovery is relevant to a
party’s claim or defense,” Serum Source Int’l, Inc. v. GE Healthcare BioSciences Corp., No. 3:16CV471, 2017 WL 915132, at *1 (W.D.N.C. Mar. 8, 2017)
(citing Watson v. Lowcountry Red Cross, 974 F.2d 482, 489 (4th Cir. 1992)).
III.

Discussion

By the Motion to Compel, Plaintiffs originally sought to compel Carlisle
to provide additional responses to Interrogatories 16, 17, 19, and 20; Requests
for Production 1-4, 7-8, 10-13, and 16-20; and Requests for Admission 6 and 815. Additionally, Plaintiffs sought an order compelling Carlisle to provide
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dates for a corporate deposition.
During the December 21, 2020 hearing, counsel for Plaintiffs and counsel
for Carlisle advised that the parties had reached a negotiated resolution of
most of the issues raised in the Motion to Compel. Plaintiffs now seek to compel
Carlisle to (1) provide dates for Carlisle’s corporate deposition; and (2) provide
supplemental responses to Requests for Production 10, 12, and 13.
A. Dates for Carlisle’s Corporate Deposition
The record indicates that on November 10, 2020 Plaintiffs served a
Notice of Deposition on Carlisle pursuant to Rule 30(b)(6) of the Rules of Civil
Procedure. Doc. 120-8. Exhibit A to that Notice included 46 topics for
examination. The Notice did not contain a specific date for the deposition.
Plaintiffs assert that Carlisle has refused to provide dates for this
corporate deposition, see Doc. 121 at 2 & 3, and during the hearing, Plaintiffs
confirmed that they seek an order either compelling Carlisle to provide such
dates or setting a date for the deposition. Carlisle advised that, after Plaintiffs
sent the Notice, it has been negotiating with Plaintiffs regarding the list of
deposition topics.
Rule 30(b)(1) states, in part, that “a party who wants to depose a person
by oral questions must give reasonable written notice to every other party. The
notice must state the time and place of the deposition and, if known, the
deponent’s name and address.”
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Further, Rule 30(b)(6) provides, in part:
In its notice or subpoena, a party may name as the
deponent a public or private corporation, a
partnership, an association, a governmental agency, or
other entity and must describe with reasonable
particularity the matters for examination. The named
organization must designate one or more officers,
directors, or managing agents, or designate other
persons who consent to testify on its behalf; and it may
set out the matters on which each person designated
will testify.
This section was amended, effective December 1, 2020, to require that “before
or promptly after the notice or subpoena is served, the serving party and the
organization must confer in good faith about the matters for examination.”
This requirement was added in an effort to avoid “overlong or ambiguously
worded lists of matters for examination and inadequately prepared witnesses.”
See 2020 Amendment Advisory Committee Notes.
Here, the Motion to Compel was filed two (2) days after the Notice was
served and it is not apparent that the parties have fully discussed the
numerous topics Plaintiffs have proposed. Further, Plaintiffs have not issued
a notice setting the corporate deposition for a date and time certain. Under
these circumstances, the undersigned finds the Motion to Compel to be
premature as to a date for Carlisle’s corporate deposition.

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B. Requests for Production 10, 12 and 13
During the hearing, Plaintiffs explained that through these document
requests Plaintiffs seek information regarding the state of Carlisle’s knowledge
concerning asbestos exposure. Request 10 seeks “all documents, files or
materials relating to warnings and/or cautions Carlisle provided to its
employees regarding the potential health hazards of asbestos;” Request 12
seeks “all documents, files or materials concerning Carlisle’s attempts to
comply with OSHA, MSHA, NIOSH or other governmental standards1 at
Carlisle’s manufacturing, development, storage, warehouse, processing,
testing, and research facilities;” and Request 13 seeks “all documents, files or
materials

concerning

all

incidents

of

asbestosis,

lung

cancer,

and

mesothelioma suffered by – or claimed to be suffered by – Carlisle’s current
and former employees.”
Carlisle argues that Request 10 is overly broad in temporal scope
because Mr. Settlemyer worked at Davis Oil from 1979 through 1994, and
testified that he only worked around Carlisle’s products during the early
1980’s. Additionally, Carlisle argues that it has produced MSDS sheets and
photographs of warnings provided to end users, and that the type of exposure
to which its employees were exposed was materially different such that any

During the hearing, counsel for Plaintiffs explained that the parties had agreed to
excise this phrase from Request 12.
1

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warnings and/or cautions Carlisle provided to its employees are irrelevant.
Plaintiffs contend that Carlisle’s employees were exposed to the same asbestos
fiber to which Mr. Settlemyer was exposed.
With respect to Request 12, Carlisle argues that the “attempts to comply”
language is vague, and that documents related to Carlisle’s occupational
standards are not relevant. Plaintiffs initially noted that they were unwilling
to revise this document request to include a temporal limitation and a
limitation to documents related to Carlisle’s brake linings but at a later point
during the hearing indicated that they may be agreeable to such limitations.
With respect to Request 13, Carlisle explains that because Plaintiffs
sought documents related to Carlisle’s “current and former employees,”
Carlisle provided information regarding workers’ compensation claims.
Carlisle further argues that the request was overly broad because it sought
documents concerning health conditions that could have nothing to do with
asbestos exposure and, in any event, sought the private health information of
non-parties.

Plaintiffs explain that they sought clarification of Carlisle’s

answer; in particular, whether any of Carlisle’s current or former employees
had filed lawsuits related to asbestosis, lung cancer, and mesothelioma.
As there was some indication during the hearing that Plaintiffs may be
willing to reduce the scope of the document requests, the undersigned has
considered whether to compel production of relevant information that may be
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covered by narrowed versions of the requests. See e.g., Mazza v. Quicken
Loans, Inc., No. 1:12cv142, 2013 WL 2296657, at *7 (N.D. W. Va. May 24, 2013)
(“Rather than causing Plaintiff to rewrite and re-submit Interrogatories 4 and
18 in a more limited scope only to have the same objections raised and argued
by Defendant Quicken, the undersigned elects instead to direct Defendant
Quicken to respond to the same as herein limited.”). However, as Plaintiffs
have asked the Court to compel Carlisle to respond to the requests as written,
the undersigned will address the requests as they stand. See Progressive
Northwestern Insurance v. Gant, No. 15-9267, 2017 WL 656676, at *2 (D.
Kansas Feb. 16, 2017) (“Because the discovery requests are so broadly written,
the Court cannot endeavor to rewrite or narrow them to make them
appropriate. To the extent Defendants want specific information that is
encompassed within these categories, Defendants are instructed to serve
revised discovery requests.”); Finkelstein v. Guardian Life Ins. Co. of Am., No.
C07-1130, 2008 WL 2095786, at *2 (N.D. Cal. May 14, 2008) (“Rule 26 does not
require the Court to rewrite discovery requests for the parties.”) (quoting Robin
Singh Educ. Servs., Inc. v. Excel Test Prep, No. C-03-5039, 2004 WL 2554454,
*1 (N.D. Cal. Nov. 9, 2004) (declining to rewrite “overly broad discovery
request” even though the request “includes documents that might be
discoverable”)); JJCO, Inc. v. Isuzu Motors Am., Inc., Civ. No. 08–00419
SOM/LEK, 2009 WL 3569600, at *10 (D. Haw. Oct. 30, 2009) (“The Magistrate
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Judge is not obligated to rewrite a discovery request to narrow it, or to parse
an overly broad request.”).
In that regard, the undersigned finds Requests for Production 10, 12, and
13 as written to be overly broad. For example, the requests are not limited in
time or to the Carlisle products that appear to be at issue in this case. While
Plaintiffs are not foreclosed from issuing more narrowly tailored document
requests, the undersigned, as noted, declines to rewrite the current Requests
for Production on Plaintiffs’ behalf.2
Carlisle has not requested that it be awarded its expenses relative to the
Motion to Compel pursuant to F.R.C.P. 37(a)(5) and the undersigned does not
conclude that such an award should be made.

Plaintiffs also argue that Carlisle has waived objections to certain discovery
requests because Carlisle’s objections were “boilerplate.” “A mere statement by the
responding party ‘that an interrogatory or a document production request is ‘overly
broad, burdensome, oppressive, and irrelevant’ does not suffice as a specific
objection.’” Brown v. Blue Cross and Blue Shield of Alabama, No. 3:13-cv-121-GCM,
2014 WL 3519100, at * 5 (W.D.N.C. July 15, 2014) (quoting Mainstreet Collection,
Inc. v. Kirkland’s, Inc., 270 F.R.D. 238, 240 (E.D.N.C. 2010)). Here, while Carlisle’s
responses to the document requests could have been more robust, the undersigned is
not persuaded, particularly in view of the breadth of the requests, that Carlisle should
be deemed to have waived its objection rights.
2

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IT IS THEREFORE ORDERED that Plaintiffs’ Motion to Compel
Defendant Carlisle Industrial Brake & Friction, Inc. to Respond to Plaintiffs’
Interrogatories, and Request for Production of Documents, Dates for the
Deposition of Defendant’s Rule 30(b)(6) Corporate Representative, and Motion
Regarding Sufficiency of Certain Responses to Request for Admission (the
“Motion to Compel,” Doc. 120) is DENIED as follows:
1. The Motion to Compel is DENIED WITHOUT PREJUDICE with
respect to Plaintiffs’ request that the Court compel Carlisle to provide
dates for a corporate deposition;
2. The Motion to Compel is DENIED with respect to Requests for
Production 10, 12, and 13; and
3. With respect to the other issues raised by the Motion to Compel which
were resolved by the parties prior to the hearing, the Motion to
Compel is DENIED AS MOOT.
Signed: January 6, 2021

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