Bringuier et al v. Avco Corporation, et al

Filing 153

OPINION AND ORDER regarding 93 , 146 : Denied. Signed by US Magistrate Judge Marcos E. Lopez on 12/20/11. (jhi)

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF PUERTO RICO
JORGE BRINGUIER, et. al.,
Plaintiffs,

CIVIL NO.: 09-2140 (ADC)

v.
AVCO CORP., et. al.
Defendants.
______________________________________
ZULAIKA RODRÍGUEZ-DELGADO, et. al.,
Plaintiffs,

CIVIL NO.: 10-1211 (ADC)

v.
AERO INVESTMENT CORP., et. al.,
Defendants.

OPINION AND ORDER
I.

PROCEDURAL POSTURE
On August 18, 2011, plaintiffs filed a motion requesting an order to compel defendant Aero

Investment Corporation (“Aero”) to surrender the plane’s motor and some of its parts (“the
wreckage”) so that plaintiffs could send it to a laboratory in Colorado for inspection. (D.E. No. 93).
On October 21, 2011, the court ordered plaintiffs and Aero to file informative motions clarifying
three points pertaining to this discovery dispute (D.E. No. 129), which they did on October 27, 2011
and October 28, 2011, respectively. (D.E. Nos. 141, 143). Subsequently, plaintiffs filed a second
motion to compel, requesting the same relief as their prior motion (D.E. 146), to which all
defendants filed responses in opposition. (D.E. Nos. 147, 148). Pending before the court are

plaintiffs’ two motions to compel. (D.E. Nos. 93, 146). For the reasons set forth below, the motions
are denied.
II. LEGAL ANALYSIS
Federal Rule of Civil Procedure (“Rule”) 37 allows a party who has requested items under
Rule 34(a) to move for an order compelling discovery when the opposing party fails to produce those
items. Rule 34(a) allows a party to serve a discovery request on any other party “to produce and
permit the requesting party . . . to inspect . . . items in the responding party’s possession, custody,
or control.” Fed. R. Civ. P. 34(a)(1) (emphasis added). While plaintiffs have repeatedly asserted
that the wreckage is under Aero’s possession and control (D.E. Nos. 93, p. 2; 106-1, p. 4; 141, p. 1),
Aero denies this (D.E. Nos. 99, p. 7; 99-4, p. 1; 143, p. 2), and plaintiffs have provided no evidence
to the contrary. Aero informed the court that the wreckage is in the possession, custody, and control
of a claims supervisor at Chartis Insurance Company (“Chartis”) under a policy held by Atis
Corporation (“Atis”), the owner of the aircraft. (D.E. Nos. 99, p. 7; 143, p. 2).1 The court cannot
compel Aero to produce items over which it has no possession, custody, or control, as Rule 34 does
not allow plaintiffs to request such discovery from them. See Fed. R. Civ. P. 34(a)(1).
An item is considered to be under a party’s “control,” and thus subject to production under
Rules 34 and 37, if that party “has the right, authority, or ability to obtain [it] upon demand.” Colon
v. Blades, 268 F.R.D. 129, 132 (D.P.R. 2010) (citing Greene v. Fulton, 157 F.R.D. 136, 142 (D. Me.
1994)). Plaintiffs have not shown that Aero has such a right, authority or ability with respect to the
wreckage. Plaintiffs’ own complaint states that Atis Corporation (“Atis”) was the “owner/operator”

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Plaintiffs moved to voluntarily dismissed their claims against Atis and Chartis (a.k.a. American
International Insurance Company of Puerto Rico), and the court subsequently dismissed said claims with prejudice
on January 10, 2011, after plaintiffs. (D.E. Nos. 58, 59.)

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of the aircraft. (D.E. No. 6-4, ¶ 4, in Case No. 10-1211 (ADC)). Further, according an email
exchange between the parties in April 2011, counsel for defendant Aero informed plaintiffs’ counsel
that “control over the wreckage lies with Atis Corp. and the people at Chartis who handle the claims
against Atis under their insurance policy. Aero investment, my client in this case, has never owned
the wreckage and does not control it.” (D.E. No. 99-4) (see also D.E. No. 106-1 (plaintiffs
acknowledge that counsel for Aero told them that control of the wreckage lays with Atis and Atis’s
claims supervisors at Chartis, and provide no argument or evidence to the contrary)).2 Aero states
that they are also insured by Chartis, but under a separate policy. (D.E. No. 99, p. 7). None of the
parties’ submissions to the court suggest that Aero has the right, authority, or ability to obtain from
its insurer items belonging to another client of that insurance company. Nor is there evidence of any
linkage between Aero and Atis which would allow the former to demand the wreckage from the
latter. Therefore, Rule 34 does not permit the discovery request which plaintiffs seek to enforce
against Aero through their motions to compel, nor can the court compel discovery from a nonparty
via this procedural device. See Fed. R. Civ. P. 45 (governing production of evidence from
nonparties).
Furthermore, plaintiffs’ undue delay in attempting to coordinate the desired laboratory
inspection warrants denial of the motions to compel. A brief chronology of these events makes this
point clear. At issue in this case is an airplane crash that occurred on February 8, 2009. (D.E. No.
2.) Plaintiffs filed their complaint in November of the same year, alleging that engine failure caused
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Additionally, in support of their motion to compel, plaintiffs submitted a copy of a letter from plaintiff
Jorge Bringuier to Ted Lawton, the insurance adjuster at Chartis whom Bringuier states is in control of the wreckage.
(D.E. 106-2.) In that letter, Bringuier writes that the owner of the airplane wreckage is “your client,” Atis
Corporation. (D.E. 106-2, p. 2.) Although this letter supports Aero’s assertion that the wreckage is in the hands of
Atis’s representatives at Chartis, the same was submitted in Spanish with no certified English translation and thus
cannot be considered part of the record pursuant to Local Rule 5(g).

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the airplane to crash due to the respective defendants’ negligence in designing, manufacturing, and
maintaining said engine. (D.E. No. 2).
On April 13, 2011, the parties met pursuant to Federal Rule of Civil Procedure 26(f), where
they drew up a proposed discovery timetable. (D.E. No. 79). The agreed upon schedule indicated
that a joint preliminary inspection of the aircraft and its engine would take place between May 23
and June 3, 2011, and that any party who wished to conduct an additional inspection would do so
on or before August 3, 2011. (D.E. No. 79, p. 3). Subsequently, the court entered a case
management order setting January 31, 2012 as the deadline for completion of all discovery. (D.E.
No. 80).
On May 31, 2011, the preliminary inspection took place, at which time plaintiffs expressed
their need to send the wreckage to a laboratory for further testing. (D.E. No. 93). However,
according to the parties’ submissions, plaintiffs’ next communication regarding the laboratory
testing did not occur until July 19, 2011, fifteen days prior to the agreed upon deadline for further
inspections. (D.E. Nos. 100-5; D.E. 106-3, p. 2; 106-1, p. 4).3 That same day, defendants responded
requesting proposed testing dates and expressing the need to agree on protocols for the transport and
testing of the wreckage prior to making the arrangements. (D.E. No. 100-6). Defendants added that
reaching such an agreement would take time, and suggested holding an immediate telephone
conference to agree on extending certain discovery deadlines to “give us enough time to undertake
discovery properly without any prejudicial delay to anybody.” (D.E. No. 100-7). Plaintiffs promptly
responded that they agreed (D.E. No. 100-8); however, there is no evidence in the record to suggest
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Plaintiffs seem to imply that their first communication to this effect occurred on June 2, 2011, but the
email that they cite from plaintiffs’ counsel merely says: “[w]ith regards to the laboratory analysis of the aircraft
parts, it is our understanding that we will also be informed as to which laboratory will handle the analysis, and which
parts will be analyzed.” (D.E. 106-1, p. 4; 106-3, p.1.) This statement merely implies that there will be an analysis,
but evidences no effort on plaintiffs’ part to make it happen in a timely manner.

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that such a conference ever took place. Instead, the next communication between the parties that is
reflected in the record is a letter from defendants’ counsel dated August 3, 2011, the agreed upon
deadline for further inspection of the wreckage. (D.E. No. 100-9). It stated that defendants had not
received any suggestions from plaintiffs as to the shipping and testing protocols, and emphasizes that
defendants wished to depose their experts after receiving plaintiffs’ expert reports and would thus
need to reschedule those depositions if the inspection would prevent plaintiffs from submitting their
expert reports by the agreed upon deadline of September 3, 2011. (D.E. 100-9; D.E. 79, p. 3-4). The
letter also contains a list of questions for plaintiffs to address in order to draft the protocol, for
example: who will be responsible for crating the wreckage for shipping, how will the crating be
accomplished, what company or individual will perform the shipping from Puerto Rico to Colorado,
and who will receive the shipping crates in Colorado. (D.E. No. 100-9, p. 1-2).
The next day, plaintiffs sent an e-mail responding defendants’ letter, protesting that
defendants were not cooperating with their efforts to conduct the inspection and were instead
“raising further obstacles and restrictions.” (D.E. No. 100-10). They also complained that
defendants had listed “9 items” “that must be covered, supposedly by us” for inclusion in the
protocol. (D.E. No. 100-10). Four days later, plaintiffs sent another email noting that defendants
had sent them “a detailed ‘protocol’” which was “very cumbersome,” but that they were “trying to
see how [to] comply in order to have the wreckage examined again.” (D.E. No. 12). They added
that “[i]f it cannot be examined, it is not because of any fault of ours, but because of the difficulties
invoked by defendants in this respect.” (D.E. No. 12).
Plaintiffs’ response to defendants’ request for a protocol and for the information that it would
entail is difficult to fathom.

Sending an airplane engine and other pieces of aircraft wreckage
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overseas is not an ordinary shipping endeavor, especially when that aircraft is the subject of
litigation, raising concerns about preserving its evidentiary integrity. Therefore, it is unsurprising
that defendants would insist upon an agreement as how the wreckage would be packaged and
shipped, not to mention who would bear the expense of this inevitably costly process. It is also
reasonable that defendants would ask plaintiffs to provide–or at least suggest–the details for this
procedure, as it was plaintiffs who requested the inspection. There is no evidence that plaintiffs
provided any of the requested information at that time nor that they attempted to meet and negotiate
with defendants. Instead, on August 18, 2011, plaintiffs filed their first motion to compel, assuring
the court that “[a]lthough cumbersome, the information requested will be provided.” (D.E. No. 93,
p. 3).4
The record, however, does not reflect any attempt by plaintiffs to provide the requested
information to defendants until after this court’s order of October 21, 2011, ordering the parties to
clarify whether plaintiffs had ever submitted the requested protocol. (D.E. No. 129). In response
to that order, plaintiffs asserted that they had indeed sent a proposed protocol to defendants. (D.E.
No. 141). However, defendants stated that plaintiffs sent them said protocol on October 27, 2011,
a fact that plaintiffs do not dispute. (D.E. No. 143-2 (showing copy of e-mail from plaintiffs to
defendants transmitting protocol, dated October 27, 2011)). Moreover, defendants state that they
objected to a section of the protocol providing that one of the plaintiffs, Jorge Bringuier, would
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The foregoing e-mail exchange, and plaintiffs’ apparent failure to meet and negotiate with defendants or to
propose a protocol raise doubt as to plaintiffs’ compliance with the prerequisite that the moving party certify to the
court that is has “in good faith conferred or attempted to confer with the person or party failing to make the
disclosure” prior to filing a motion to compel. Fed. R. Civ. P. 37(a)(1); see Aponte-Navedo v. Nalco Chemical Co.,
268 F.R.D. 31, 40-41 (D.P.R. 2010) (quoting Ross v. Citifinancial, Inc., 203 F.R.D. 239, 240 (S.D. Miss. 2001))
(“‘The meet and confer prerequisite is not an empty formality’ and ‘cannot be satisfied by including with the motion
copies of correspondence that discuss the discovery issue itself.’”); see also Local Rule 26(b) (requiring a
certification that the moving party has “made a reasonable and good-faith effort to reach an agreement with opposing
counsel on the matters set forth in the motion. An attempt to confer will not suffice.”).

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prepare the shipping crate and help pack the wreckage in it. (D.E. No. 147, p. 4). Plaintiffs
acknowledge defendants’ complaint, stating that Bringuier “has no objection that a separate
independent company do it.” (D.E. No. 146, p. 2). However, plaintiffs have not shown that they
have made any effort to designate an independent company and to update the proposed protocol to
cure this dispute and allow the parties to agree on a final protocol.
Therefore, despite plaintiffs’ expressed urgency to proceed with the desired inspection, the
record shows that they have not made a serious effort to negotiate a protocol with defendants in an
expedient fashion, especially in light of the discovery cut off date set by the court for January 31,
2012. Moreover, there is no evidence in the record that plaintiffs have attempted to contact Atis or
Chartis, whom defendants repeatedly asserted are the parties in control of the airplane wreckage.
Furthermore, and finally, in its order of October 21, 2011, this court ordered plaintiffs to state how
much time it would take them to transport the wreckage to Colorado, perform the proposed
laboratory tests, and produce their expert report based on the results. (D.E. No. 129). In response,
plaintiffs stated that “[t]he laboratory in Colorado is ready to proceed . . . but it cannot give us a
definite, specific, time frame for that, which will depend on various factors.” (D.E. No. 141, p. 2).
Because plaintiffs did not provide even a range of dates or an approximation of the required time
line, the court cannot be assured that the inspection would be complete in time for the parties’ expert
reports to be produced and for expert witness depositions to take place prior to the discovery cut off
of January 31, 2011. The court cannot order an inspection that will likely delay the discovery
process, and it cannot cure plaintiffs’ lack of diligence in coordinating a timely inspection by
ordering Aero to produce items from a third party.

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III. CONCLUSION
In view of plaintiffs’ (1) insistence on requesting an order to compel Aero to release items
not in its possession, custody, or control, (2) lack of diligence in compliance with the parties agreed
upon discovery plan, and (3) lack of compliance with this court’s order to provide a time frame for
the proposed inspection, plaintiffs’ two Motions to Compel defendant Aero to produce the wreckage
for inspection (D.E. Nos. 93, 146) are hereby DENIED.
IT IS SO ORDERED.
In San Juan, Puerto Rico, this 20th day of December, 2011.
s/Marcos E. López
U.S. Magistrate Judge

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