BPP Retail Properties LLC v. North American Roofing Services, Inc. et al
Filing
131
MEMORANDUM AND ORDER re 113 Motion to Compel. Plaintiff's motion to compel is GRANTED as to information and documents regarding "other claims;" and DENIED as to information and documents regarding indemnification agreements. Signed by Judge Francisco A. Besosa on 07/02/2014. (brc)
IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF PUERTO RICO
BPP RETAIL PROPERTIES, LLC,
Plaintiff,
Civil No. 13-1259 (FAB)
v.
NORTH AMERICAN ROOFING SERVICES,
INC., et al.,
Defendants.
MEMORANDUM & ORDER
BESOSA, District Judge.
Before the Court is plaintiff BPP Retail Properties, LLC
(“BPP”)’s motion to compel production of documents and answers to
interrogatories from defendants North American Roofing Systems
(“NAR”) and Carlisle Construction Materials Inc. (“Carlisle”).
(Docket No. 113.)
After considering the parties’ arguments, the
Court now GRANTS IN PART and DENIES IN PART plaintiff’s motion.
I.
Background
Between April 18 and 22, 2014, BPP served defendants with its
first requests for production (“RFP”), interrogatories, and notices
of witness depositions. (Docket Nos. 72-79.)
On May 22, 2014, BPP
served defendants with its second requests for production and first
interrogatories.
(Docket Nos. 101-104.)
Defendants served their
responses and objections to BPP’s discovery requests on June 6,
Civil No. 13-1259 (FAB)
2
2014.1
(Docket No. 113.)
pending
discovery
In a good-faith effort to resolve
disputes,
between June 10 and 12, 2014.
the
parties’
attorneys
(Docket No. 113.)
conferred
On June 16, 2014,
after failing to reach a resolution on several discovery disputes,
plaintiffs
moved
to
compel
defendants’
responses.
discovery deadline in this case is July 30, 2014.
Id.
The
(Docket No. 91.)
BPP seeks to compel the following:
1.
Defendant NAR’s responses to BPP’s first RFPs 8, 9,
2.
Defendant
and 10;
NAR’s
responses
to
BPP’s
first
interrogatories 4, 5, 6, and 7;
3.
Defendant Carlisle’s responses to BPP’s RFPs 6, 7,
and 8; and
4.
Defendant
Carlisle’s
responses
to
BPP’s
first
interrogatories 2, 3, 4, 5, 6, 11, and 12.
(Docket No. 113.)
Plaintiff’s requests can be categorized as
seeking information and/or documents regarding (1) “other claims”
involving
thermoplastic polyolefin
(“TPO”)
roofing
membranes;2
1
Carlisle, claiming not to have received plaintiff’s second
discovery requests, served its responses to BPP’s second set of
requests on June 20, 2014. (Docket Nos. 118 & 119.)
2
Plaintiff’s RFPs to NAR 8 and 9; plaintiff’s interrogatories
to NAR 6 and 7; plaintiff’s RFPs to Carlisle 6 and 7; and
plaintiff’s interrogatories to Carlisle 4, 5, 6, 11, and 12.
Civil No. 13-1259 (FAB)
3
(2) indemnification agreements;3 and (3) the chemical makeup of TPO
membranes sold by defendants.4
Defendants raised a combination of
objections to these requests, including vagueness, irrelevance,
overbreadth, privilege, and trade secret.
II.
(Docket No. 113.)
Legal Standard
Discovery may be obtained as to any non-privileged material
relevant to
any
party’s
claim
or
defense
that
is reasonably
calculated to lead to the discovery of admissible evidence.
R. Civ. P. 26(b)(1).
Fed.
The party resisting discovery has the burden
of showing “specifically how each interrogatory is not relevant or
how each question is overly broad, burdensome or oppressive.”
Vazquez-Fernandez v. Cambridge Coll., Inc., 269 F.R.D. 150, 155-56
(D.P.R.
2010)
(Arenas,
J.)
(internal
omitted); Fed. R. Civ. P. 33(b)(4).
quotation
and
citation
When a party withholds
otherwise discoverable information on the basis of privilege, the
party must, “(i) expressly make the claim; and (ii) describe the
nature of the documents, communications, or tangible things not
produced or disclosed — and do so in a manner that, without
revealing information itself privileged or protected, will enable
other parties to assess the claim.”
Fed. R. Civ. P. 26(b)(5)(A);
Rivera v. Kmart Corp., 190 F.R.D. 298, 300 (D.P.R. 2000) (Pieras,
3
Plaintiff’s RFPs to NAR 10; plaintiff’s interrogatories to
NAR 4 and 5; and plaintiff’s RFP to Carlisle 8.
4
Plaintiff’s interrogatories to Carlisle 2 and 3.
Civil No. 13-1259 (FAB)
4
J.) (citing Fed. R. Civ. P. 26(b)(5)).
If the responding party
fails to object or state the reason for the objection timely, he or
she may be held to have waived any objection.
Rivera, 190 F.R.D.
at 300 (citing Marx v. Kelly, Hart & Hallman, P.C., 929 F.2d 8, 12
(1st Cir. 1991)).
III. Discussion
The
Court
addresses
plaintiff’s
motion
and
defendants’
objections by the category of information involved.
A.
Information Regarding “Other Claims”
Plaintiff
seeks
information
and
documents
regarding
complaints, legal claims, or allegations made against defendants
regarding the in service performance or premature failure of TPO
roofing membranes between 2000 and 2008.
Citing
cases
that
assessed
the
(Docket Nos. 113 & 126).
admissibility
—
rather
than
discoverability — of “other claims” in products liability actions,
defendants contend that plaintiff’s requests are overly broad and
seek information that is not relevant because the materials or
conditions were not “the same as, or similar to,” the materials or
conditions used in plaintiff’s roofing installations.5
(Docket
Nos. 115 & 116.)
5
To the extent defendants object to these requests on the
basis of privilege or confidentiality, defendants have not provided
the Court with any privilege logs or information sufficient to
satisfy their burden with regard to privilege. See Fed. R. Civ. P.
26(b)(5)(A).
Civil No. 13-1259 (FAB)
5
The advisory committee notes to Federal Rule of Civil
Procedure 26 (“Rule 26”) specify that “A variety of types of
information not directly pertinent to the incident in suit could be
relevant to the claims or defenses raised in a given action.
For
example, other incidents of the same type, or involving the same
product,
could
be
properly
discoverable
under
the
revised
standard.” Fed. R. Civ. P. 26(b)(1) advisory committee notes. The
“widely-accepted view” among federal courts is that discovery of
other litigation is permissible “where it involves (1) the same or
similar claims arising from (2) the same or similar products at
issue.”
United Oil Co., Inc. v. Parts Assoc., Inc., 227 F.R.D.
404, 410 (D. Md. 2005).
See also Liberty Mut. Fire Ins. Co. v.
Centimark Corp., No. 4:08CV230-DJS, 2009 WL 539927, at *2 (E.D. Mo.
Mar. 4, 2009) (finding information regarding other legal actions to
be
reasonably
relevant
to
plaintiffs’
claim,
and
rejecting
defendant’s argument in a products liability action “that plaintiff
cannot prove that defendant installed plaintiff’s roof improperly
or
breached
these
parties’
contract
by
introducing
evidence
regarding claims made with respect to the design, manufacture,
sale,
or
installation
of
other
roofs
around
the
country.”)
(emphasis in original); Dollar v. Long Mfg., N.C., Inc., 561 F.2d
613, 617 (5th Cir. 1977) (reversing trial court’s denial of motion
to compel, because interrogatory seeking information regarding
prior accidents and injuries was “reasonably calculated to lead to
Civil No. 13-1259 (FAB)
the
discovery
of
6
admissible
evidence.”);
Kozlowski
v.
Sears,
Roebuck & Co., 73 F.R.D. 73, 75 (D. Mass. 1976) (noting that “most
courts have held that the existence and nature of other complaints
in
product
liability
cases
is
discovery”)
(internal
citations
a
proper
subject
omitted).
for
pretrial
Courts considering
whether plaintiffs in products liability cases are entitled to
discovery concerning other claims or incidents have generally held
that “plaintiff need not lay the same foundation of substantial
similarity
as
would
be
necessary
to
support
admission
into
evidence.” A.H. ex rel Hadjih v. Evenflo Co., Inc., No. 10cv02435MSK-KMT, 2011 WL 3684807, at *4 (D. Colo. Aug. 23, 2011) (compiling
cases). “For discovery purposes, the court need only find that the
circumstances surrounding the other accidents or products are
similar enough that the discovery concerning those incidents is
reasonably calculated to lead to the uncovering of substantially
similar occurrences.”
Id. (citing cases).
See also Lohr v.
Stanley-Bostitch, Inc., 135 F.R.D. 162, 164 (W.D. Mich. 1991)
(concluding that plaintiffs were entitled to discovery concerning
accidents involving different products but exhibiting the same
features as those plaintiff claimed caused the injury.).
Here, plaintiff’s requests seek information regarding the
installation, durability, and/or failure of the same or similar
product as the one central to its complaint:
roofing membranes.
defendants’ TPO
The Court finds that discovery of claims
Civil No. 13-1259 (FAB)
7
against defendants regarding TPO membranes between the years 2000
and 2008 are reasonably calculated to lead to the discovery of
admissible
defects
evidence,
or
such
of
causation
as
the
defendants’
alleged
knowledge
damages
in
regarding
this
case.
Accordingly, plaintiff’s motion to compel production of information
and documents regarding “other claims” is GRANTED. The information
and documents
shall
July 11, 2014.
information
at
be
produced
to
plaintiffs
no
later
than
Should plaintiff seek to admit “other claims”
trial,
it
will
have
to
lay
a
foundation
of
substantial similarity to support its admissibility.
B.
Indemnification Agreements
Plaintiff seeks information and documents pertaining to
any indemnity
or
hold harmless
agreements
defendants regarding TPO membranes.
or
claims
made
by
Defendants object to these
requests because they go beyond what Rule 26 permits.
Rule 26.1
carves out a specific exception providing for the discoverability
of insurance agreements.
Fed. R. Civ. P. 26.1.
No such provision
exists, however, for non-insurance indemnification agreements. See
Fed. R. Civ. P. 26.1(e)(1).
The advisory committee notes to Rule
26(b)(2) specify that the rule does not extend to cover “the
ordinary
business
indemnification.”
notes.
concern
that
enters
into
a
contract
of
Fed. R. Civ. P. 26(b)(2) advisory committee
See also In re Zicam Cold Remedy Mktg., Sales Practices,
and Products Liab. Litig., No. 09MD2096-PHX-FJM, 2010 WL 4715951,
Civil No. 13-1259 (FAB)
at
*1
(D.
Ariz.
Nov.
8
15,
2010)
(holding
that
“[b]ecause
no
insurance business is party to the agreement, [Rule 26] does not
require its automatic disclosure.”).
Because plaintiff seeks non-insurance indemnification
agreements
beyond
the
scope
of
Rule
26,
the
Court
DENIES
plaintiff’s motion to compel as to those requests.
C.
The Chemical Makeup of Defendants’ TPO Membranes
Lastly,
plaintiff
seeks
information
chemical makeup of Carlisle’s TPO roof membranes.
regarding
the
Carlisle filed
a motion for a protective order to prevent the disclosure of the
requested information, which it claims constitutes trade secrets.
(Docket No. 117.)
Because plaintiff has not responded to this
motion yet, the Court declines to rule on the motion to compel as
to information regarding the chemical makeup of Carlisle’s TPO
membranes.
In the meantime, the parties are free — and encouraged
— to consider entering into a confidentiality agreement which would
allow this discovery to take place.
Accordingly, the Court will
consider the motion to compel upon receipt of plaintiffs response.
IV.
Conclusion
For the reasons articulated above, plaintiff’s motion to
compel is GRANTED as to information and documents regarding “other
claims;” and DENIED as to information and documents regarding
indemnification agreements.
Civil No. 13-1259 (FAB)
9
IT IS SO ORDERED.
San Juan, Puerto Rico, July 2, 2013.
s/ Francisco A. Besosa
FRANCISCO A. BESOSA
UNITED STATES DISTRICT JUDGE
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