G'Fransisco v. GoFit, LLC et al

Filing 79

MEMORANDUM AND ORDER: Plaintiff G'Francisco has filed his motion to compel, for sanctions, and to modify the initial case management order (Docket Entry No. 49 ). Defendant GoFit, LLC has filed a response in opposition (Docket Entry No. 57), and Plaintiff has filed a reply (Docket Entry No. 60 ). For the reasons stated below, Plaintiff's motion is GRANTED in part and DENIED in part. Signed by Magistrate Judge John S. Bryant on 1/20/2015. (DOCKET TEXT SUMMARY ONLY-ATTORNEYS MUST OPEN THE PDF AND READ THE ORDER.)(hb)

UNITED STATES DISTRICT COURT
MIDDLE DISTRICT OF TENNESSEE
NASHVILLE DIVISION
MARK A. G’FRANCISCO,

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Plaintiff
v.
GOFIT, LLC, et al.,
Defendants

No. 3:13-1084
Judge Campbell/Bryant
Jury Demand

MEMORANDUM AND ORDER
Plaintiff G’Francisco has filed his motion to compel, for
sanctions, and to modify the initial case management order (Docket
Entry No. 49). Defendant GoFit, LLC has filed a response in
opposition (Docket Entry No. 57), and Plaintiff has filed a reply
(Docket Entry No. 60).
For the reasons stated below, Plaintiff’s motion is
GRANTED in part and DENIED in part.
STATEMENT OF THE CASE
Plaintiff G’Francisco has filed this product liability
action seeking damages for personal injuries that he allegedly
sustained while using a home exercise product sold by Defendant
GoFit,

LLC.

negligence,

Plaintiff
and

breach

asserts
of

claims

warranty

of

strict

(Docket

Entry

liability,
No.

40).

Defendants GoFit and Bob Harper Enterprises have filed answers
denying liability and asserting affirmative defenses (Docket Entry
Nos. 45 and 46).

SUMMARY OF PERTINENT FACTUAL ALLEGATIONS
Plaintiff alleges that on October 4, 2012, he received
personal injuries while using a Bob Harper 15-30 Pound Resistance
Powerband

device

sold

by

Defendant

Go-Fit,

LLC.

This

device

consists of two rubber resistance bands that are attached to a door
anchor component. G’Francisco alleges that he placed the door
anchor underneath the closet door in his bedroom and then closed
the door and began exercising using the device. He claims that
after several repetitions of exercise the door anchor suddenly
became dislodged from underneath the closet door and recoiled in
slingshot fashion causing the door anchor to strike him violently
in the left eye. As a result, G’Francisco alleges that he has
permanently

lost

sight

in

his

left

eye.

He

claims

that

the

Powerband exercise device sold by Defendants, and particularly its
door anchor component, was defective and unreasonably dangerous,
and that the warnings provided with this product were inadequate
and insufficient.
Defendants deny these claims and assert that G’Francisco
used the device improperly and contrary to warnings provided with
the product.
ANALYSIS
Rule 26(b)(1) of the Federal Rules of Civil Procedure
provides generally that parties may obtain discovery regarding any
nonprivileged matter that is relevant to any party’s claim or
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defense, and that relevant information need not be admissible at
the trial if the discovery appears reasonably calculated to lead to
the discovery of admissible evidence. G’Francisco in his motion to
compel asserts multiple shortcomings in Defendants’ responses to
his interrogatories and requests for production of documents. The
undersigned will address these complaints in the sequence in which
they appear in Plaintiff’s motion (Docket Entry No. 49).
“Overly broad and unduly burdensome” objections. G’Francisco

complains that in almost every response to his interrogatories or
requests for production Defendants objected on grounds that the
interrogatory or request was “overly broad and unduly burdensome.”
Some responses also included the additional objections that the
interrogatory was “vague” or “exceeds the scope of permissible
discovery under Rule 26 of the Federal Rules of Civil Procedure.”
These

objections

were

accompanied

by

little

or

no

factual

explanation to support the objections of overbreadth or undue
burden.1
In the absence of any factual explanation to support
Defendants’

conclusions

of

overbreadth

or

undue

burden,

the

undersigned finds that Defendants’ have failed to carry their
burden to establish the merit of these objections. For this reason,

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The parties’ motion papers establish that Defendant GoFit is a
relatively small company with approximately fifteen employees. This
suggests that locating and producing responsive information and documents
should not be difficult or particularly expensive.

3

Defendants’ general objections of overbreadth and undue burden are
overruled.
Responses “notwithstanding and without waiving” objections.

Plaintiff G’Francisco also complains that Defendants’ responses
“notwithstanding and without waiving” objections are confusing and
ambiguous.

In

their

responses

to

a

multitude

of

Plaintiff’s

interrogatories and requests for production, Defendants state
initial objections and then state that “notwithstanding and without
waiving

said

objections,”

they

provide

certain

responsive

information. What remains unclear, according to the Plaintiff, is
whether Defendants’ responsive information is complete or merely
part of the responsive information in their possession with the
rest being withheld pursuant to their objections. Thus the phrase
“notwithstanding and without waiving said objections” raises a
question that the remainder of the response fails to answer: What
additional responsive information, if any, is being withheld based
upon the stated objection?
The undersigned Magistrate Judge finds that, in order to
clear up this uncertainty, Defendants shall serve a supplemental
response to each interrogatory or request for production for which
their initial response contained the phrase “Notwithstanding and
without waiving said objections.” In such supplemental responses,
Defendants

shall

state

previously

provided

was

whether
complete

4

the
or,

responsive

information

alternatively,

whether

Defendants

are

withholding

additional

responsive

information

subject to their objections.
Proper scope of permissible discovery. Plaintiff G’Francisco

asserts that certain of Defendants’ objections and responses lack
merit because they are based upon an incorrect statement of the
scope of discovery. Specifically, Defendants have objected in some
instances on the ground that responsive information would be
inadmissible at trial. As stated above, this is not the correct
standard for discovery. Rule 26(b)(1) provides that discoverable
information

need

not

be

admissible

at

trial

if

it

appears

reasonably calculated to lead to the discovery of admissible
evidence.

Further,

Defendants

apparently

seek

to

limit

their

discovery responses to the specific exercise device at issue in
this case: the GoFit Bob Harper 15-30 Pound Resistance Powerband.
However, the record indicates that this specific device was one of
several substantially similar devices sold by Defendant GoFit that
possessed in common (1) rubber tubes or bands designed to provide
resistance, and (2) a door anchor. (Docket Entry No. 57-2 at 2-4).
Accordingly,

given

the

factual

allegations

in

this

case,

interrogatories and requests for production of documents that
include not only the subject product model used by Plaintiff but
also other substantially similar products is fair game. To the
extent that Plaintiff’s interrogatories or requests for production
seek

information

regarding

substantially

5

similar

products,

Defendants’ objections based on overbreadth or scope of discovery
are overruled.
Objections based on privilege or work product doctrine.
Defendants

have

asserted

certain

objections

based

upon

the

attorney-client privilege, attorney work product doctrine, and the
attorney-private detective privilege. Plaintiff complains that
Defendants have failed to serve the required privilege log. Rule
26(b)(5)(A)
otherwise

provides

that

discoverable

when

by

a

party

claiming

withholds

that

the

information

information

is

privileged, the party must describe the nature of the documents,
communications, or tangible things not produced in a manner that,
without revealing information itself privileged or protected, will
enable

other

parties

to

assess

the

claim.

This

description

ordinarily is included in a privilege log. The undersigned finds
that, to the extent they have not already done so, Defendants shall
serve upon Plaintiff’s counsel a privilege log describing any
information or document responsive to discovery that are being
withheld based upon a claim of privilege.
Request for fees and expenses. Plaintiff G’Francisco by
his motion seeks an award of expenses and fees allegedly incurred
due to Defendants’ shortcomings in their discovery responses.
Following a thorough review of the motion papers of the parties,
the

undersigned

Magistrate

Judge

is

unpersuaded

that

the

circumstances of this matter make an award of expenses and fees
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justified, and, to this extent, Plaintiff’s motion is DENIED.
To the extent that the rulings in this order require
supplemental responses by Defendants and the service of a privilege
log, such supplemental responses and privilege log shall be served
on or before February 3, 30215. Plaintiff shall thereafter serve
any supplement to his Rule 26(a)(2) expert witness disclosure by
February 24, 2015.
It is so ORDERED.
/s/ John S. Bryant
JOHN S. BRYANT
United States Magistrate Judge

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