Snyder v. Fleetwood RV, Inc. et al

Filing 63

OPINION AND ORDER granting in part and denying in part 38 Motion to Compel; granting in part and denying in part 50 Motion to Compel. Signed by Magistrate Judge Terence P. Kemp on 5/14/2015. (agm) Modified text on 5/14/2015 (agm).

IN THE UNITED STATES DISTRICT COURT
FOR THE SOUTHERN DISTRICT OF OHIO
EASTERN DIVISION
Lora F. Snyder,

:

Plaintiff,

:

v.

:

Fleetwood RV, Inc., et al.,
Defendants.

Case No. 2:13-cv-1019

:

Magistrate Judge Kemp

:
OPINION AND ORDER

This case is about an allegedly defective (and very
expensive) motor home.

Briefly, Plaintiff, Lora F. Snyder,

claims that the motor home, for which she paid in excess of
$800,000, was defective when she bought it, could not be repaired
successfully, and is unsafe to take out on the road.
The defendants, understandably, want to do a thorough
inspection of the vehicle.

Fleetwood sent Ms. Snyder a Rule 34

notice of inspection, and then an amended notice of inspection,
back on December 16, 2014.
responded with her own

(Docs. 31 and 32).

Ms. Snyder

notice which stated, in effect, that she

did not object to the inspection as long as it was conducted on
her terms, which she included in the response.

(Doc. 33).

That exchange of views did not result in an inspection.
Defendants then moved to compel an inspection, as well as to
permit a preliminary inspection so that they could create a
safety protocol for their more complete inspection.

(Doc. 38).

The Court promptly set the matter for a conference, which was
held on February 20, 2015.

That day, prior to the conference,

Ms. Snyder filed a response to the motion to compel in which she
argued that her objections to the inspection were based on
concerns for the safety of the public - she asserted that the
motor home could neither be safely started nor safely driven and preserving the integrity of the vehicle.

(Doc. 40).

The Court stressed, at the conference, the need for the
parties to work out an agreeable inspection protocol which
resulted in the defendants’ being able to obtain the information
they needed to defend the case.

The Court gave them thirty days

to do that, but it did not happen.

Several follow-up conferences

failed to produce a different result.
has now been extensively briefed.

Consequently, the issue

See Docs. 50, 54, and 59.

For

the following reasons, the Court grants the motions to compel an
inspection on the conditions set forth in this Opinion and Order.
The Court begins its analysis with some well-settled legal
principles.

First, Fed.R.Civ.P. 34(a) allows an opponent in

litigation to serve a request to “inspect, copy, test, or sample
... any designated tangible things....”

Second, “[p]roduction

for purposes of destructive testing falls within that rule as
well,” and, third, “the decision whether to allow destructive
tests rests within the sound discretion of the court.”

Ostrander

by Ostrander v. Cone Mills, Inc., 119 F.R.D. 417, 419 (D. Minn.
1988).

What these principles mean, in practice, is that

inspection of an object of litigation like a motor home is
presumptively proper, and the Court may even permit testing which
may destroy (or change the functioning of) a portion of that
object so long as care is taken to preserve anything which has
evidentiary value.

Courts have even developed multi-factored

tests governing the exercise of discretion in this area, such as
this one from Mirchandani v. Home Depot, U.S.A., Inc., 235 F.R.D.
611, 614 (D. Md. 2006), listing the relevant factors as:
1) Whether the proposed testing is reasonable,
necessary, and relevant to proving the movant's case;
2) Whether the non-movant's ability to present evidence
at trial will be hindered, or whether the non-movant
will be prejudiced in some other way; 3) Whether there
are any less prejudicial alternative methods of
obtaining the evidence sought; and 4) Whether there are
adequate safeguards to minimize prejudice to the
non-movant, particularly the non-movant's ability to
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present evidence at trial.
Against this backdrop of precepts that make inspections
presumptively permitted, and which allow alterations to the
object in question so long as they do not prejudice the parties’
litigation positions, Ms. Snyder continues to resist any
inspection of the motor home which involves starting and driving
it.

She argues, without citing any authority, that alterations

to an object in litigation, necessary in order to permit a proper
inspection of it, are not permitted “because the law does not
provide for same.”

(Doc. 54, at 4).

She then objects to having

the motor home started and driven in its unaltered condition
because the steering mechanism does not work due to leaks of
hydraulic steering fluid, and because the steps unexpectedly
extend while the motor home is being driven.

Part of her

objection appears to be based on her claim that even with prior
repairs similar to what Defendants now propose, the steering
system malfunctioned.
Legally, Ms. Snyder’s position is simply incorrect.

As

Defendants aptly note in their reply, the cases dealing with
destructive testing are broad enough to encompass modifications
necessary to conduct the appropriate tests, destructive or
otherwise.

See, e.g., Bostic v. Ammar’s, Inc., 2011 WL 251009,

*2 n.4 (E.D. Ky. Jan. 26, 2011)(“[d]estructive testing is testing
which would result in alteration or destruction”).

Ms. Snyder

has not argued that any of the proposed repairs would somehow
prejudice her litigation position, and she has had ample
opportunity to have her own experts inspect and test the motor
home, since it is and has been in her possession.

Further,

Defendants have proposed a test protocol that would permit Ms.
Snyder’s representatives to be present and to observe any repairs
and testing which is done.

There do not appear to be any

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reasonable alternatives available to Defendants, since many of
the issues raised by the complaint relate to how the motor home
behaves when driven.

In short, Ms. Snyder has not raised, either

in any of her objections to Defendants’ proposals or in her
briefing in this Court, any legally sustainable reasons for
preventing Defendants from conducting the inspection as they have
proposed.

Further, although she has characterized her position

as one of permitting an inspection as long as proper procedures
are followed, her insistence that no repairs can be made,
together with her assertion that the motor home cannot be started
or driven without repairs, is tantamount to a total refusal to
allow the inspection to proceed.
In fairness to Ms. Snyder, her arguments center around what
she perceives to be the risks both to the driver of the motor
home, any occupants, and the public from operation of the motor
home.

The Court assumes that Defendants and their experts would

not jeopardize their own safety and that they will conduct their
repairs and any test drive in a reasonable manner, paying
attention to the issues which Ms. Snyder is concerned about.
Additionally, Ms. Snyder has not presented the Court with any
credible evidence - such as an expert report - showing that a
safe test drive is either impossible or presents an unacceptable
level of risk.

Under these circumstances, the Court will

overrule her objections and allow the test to proceed.
For the foregoing reasons, the motions to compel inspection
(Docs. 38 and 50) are granted.

Within fourteen days, Defendants

shall conduct the inspection of the motor home in accordance with
the protocol attached to Doc. 50 as Exhibit A.

Plaintiff and her

representatives may be present during the inspection.
Defendants’ request for attorneys’ fees, although it presents a
close question, is denied.

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/s/ Terence P. Kemp
United States Magistrate Judge

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