Scott et al v. Abernathy Motorcycle Sales, Inc.
Filing
82
ORDER GRANTING DEFENDANT'S 78 MOTION FOR LEAVE TO CONDUCT SUPPLEMENTAL DEPOSITION. Signed by Chief Judge S. Thomas Anderson on 4/3/2020. (mbm)
IN THE UNITED STATES DISTRICT COURT
FOR THE WESTERN DISTRICT OF TENNESSEE
EASTERN DIVISION
______________________________________________________________________________
WILSON SCOTT; NOEL SCOTT;
WILSON SCOTT, as father and next
friend of his minor son, JOHN-DAVID
SCOTT; WILSON SCOTT, as father
and next friend of his minor son,
WALKER SCOTT; and STATE AUTO
PROPERTY AND CASUALTY
INSURANCE COMPANY,
Plaintiffs,
v.
ABERNATHY MOTORCYCLE
SALES, INC.,
Defendant.
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No. 1:18-cv-01077-STA-jay
ORDER GRANTING DEFENDANT’S MOTION FOR LEAVE TO CONDUCT
SUPPLEMENTAL DEPOSITION
Before the Court is Defendant Abernathy Motorcycle Sales, Inc.’s Motion for Leave to
Conduct Supplemental Deposition (ECF No. 78) filed on March 3, 2020. Plaintiffs Wilson Scott,
Noel Scot, and State Auto Property and Casualty Insurance Company have responded in
opposition. For the reasons set forth below, the Motion is GRANTED.
BACKGROUND
Plaintiffs Wilson and Noel Scott filed this action for property damage they sustained as a
result of allegedly faulty wiring on a Polaris ATV Plaintiffs purchased from Defendant Abernathy
Motorcycle Sales, Inc. In their initial Complaint (ECF No. 1), Plaintiffs alleged that Defendant
had installed a Bluetooth soundbar accessory on the ATV and improperly wired the soundbar to
the ATV’s starter solenoid. Plaintiffs further alleged that the fault in the soundbar wiring caused
electrical arcing, which in turn caused the ATV to catch fire. Defendant denied the allegations.
The Court entered a Rule 16(b) scheduling order on August 17, 2018, and the parties proceeded
with discovery. During the course of the initial phase of discovery, the parties disclosed expert
opinions about the cause of the fire. Plaintiffs disclosed the opinions of two witnesses, Jeff Morrill
and Perry Hopkins, both of whom opined that the fire resulted from a wire from the soundbar
attached to the starter solenoid. Defendant’s experts, however, opined that the wiring in question
could not have come from the soundbar; the wire did not match the wire used in the manufacture
and production of the accessory. Hopkins sat for a deposition on March 11, 2019, and admitted in
his testimony that the wire he had identified as the cause of the fire was not from the soundbar.
Having gained this concession, Defendant questioned Hopkins for approximately 30 minutes
before concluding the deposition.
After Plaintiffs’ opinion witnesses conceded that the wire did not match the wiring for the
soundbar, Plaintiffs amended their pleadings and sought an extension of the schedule to develop a
new theory about the source of the wiring. According to Plaintiffs’ Second Amended Complaint
(ECF No. 60) 1, the wiring was associated with a manufacturer’s recall to replace the ATV’s
voltage regulator, a repair performed by Defendant.
Plaintiffs obtained evidence from the
manufacturer during this second discovery phase to show that the wiring was from the voltage
regulator. 2 Plaintiffs also supplemented Morrill’s expert disclosure to reflect his revised opinion
about the voltage regulator wiring and served Defendant with the supplement on April 22, 2019.
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Plaintiffs had filed a First Amended Complaint on October 16, 2018, just to correct a
date in the pleading. The amendment did not alter the substance of Plaintiffs’ claims about the
wiring of the soundbar being the cause of the fire and their property damage.
2
As part of this second phase of the case, the Court granted Defendant leave to file a
third-party complaint against the manufacturer. Order Granting Mot. for Leave to File ThirdParty Compl. (ECF No. 67), July 29, 2019. Defendant ultimately elected not to amend its
pleadings.
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To date Plaintiffs have not supplemented Hopkins’ report.
Under the latest schedule for
completing discovery, the parties had until March 24, 2020, in which to complete all discovery
and supplement any their discovery responses.
In the Motion now before the Court, Defendant seeks leave to depose Hopkins a second
time and question him about the voltage regulator wiring. Defendant argues that since the first
deposition of Hopkins, Plaintiffs have amended their pleadings and altered their theory of the case.
Granting Defendant an opportunity to question Hopkins about Plaintiffs’ new theory is consistent
with Rule 26 of the Federal Rules of Civil Procedure and equitable under the circumstances.
Plaintiffs oppose a second deposition. Plaintiffs argue that Hopkins has not supplemented his
initial report and that Defendant had a fair opportunity to ask Hopkins about his opinion concerning
how the wiring caused arcing and resulted in the ATV catching fire. Defendant chose only to ask
Hopkins about the origin of the wire itself, and not any of the other opinions contained in Hopkins’
report.
STANDARD OF REVIEW
Federal Rule of Civil Procedure 30(a) requires a party to obtain leave of court before
noticing a deposition if the parties to the case have not stipulated to the deposition and “the
deponent has already been deposed in the case.” Fed. R. Civ. P. 30(a)(2)(A)(ii). 3 “Generally,
courts disfavor repeat depositions absent a showing of a need or good reason.” Bilderback v.
Barnhart Crane and Rigging, No. 04-2951-BBD, 2007 WL 9711096, at *1 (W.D. Tenn. Nov. 14,
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According to the Advisory Committee Notes to the 1993 amendments to Rule 26, the
limitation on second depositions “does not apply when a deposition is temporarily recessed for
convenience of counsel or the deponent or to enable additional materials to be gathered before
resuming the deposition.” Adv. Comm. Notes to 1993 am., Fed. R. Civ. P. 26. There is no
indication that the parties suspected or recessed the first Hopkins deposition for any of these
reasons.
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2007) (citing Dixon v. Certainteed Corp., 164 F.R.D. 685, 690 (D. Kan. 1996)). Nevertheless,
Rule 30(a) requires a court to grant leave to conduct a second deposition, as long as doing so is
consistent with Federal Rule of Civil Procedure 26(b)(1) and (2). Fed. R. Civ. P. 30(a)(2)(A)(ii).
Rule 26(b)(1) allows parties to “obtain discovery regarding any nonprivileged matter that is
relevant to any party’s claim or defense and proportional to the needs of the case . . . .” Fed. R.
Civ. P. 26(b)(1). Rule 26(b)(2) grants district courts the “discretion to limit the scope of discovery
where the information sought is overly broad or would prove unduly burdensome to produce.”
Anwar v. Dow Chem. Co., 876 F.3d 841, 854 (6th Cir. 2017) (citing Surles ex rel. Johnson v.
Greyhound Lines, Inc., 474 F.3d 288, 305 (6th Cir. 2007). Under Rule 26(b)(2)(C), a district court
must limit the scope of discovery, including the second deposition of a witness, if it determines
that:
(i) the discovery sought is unreasonably cumulative or duplicative, or can be obtained from
some other source that is more convenient, less burdensome, or less expensive;
(ii) the party seeking discovery has had ample opportunity to obtain the information by
discovery in the action; or
(iii) the proposed discovery is outside the scope permitted by Rule 26(b)(1).
Fed. R. Civ. P. 26(b)(2)(C).
In the final analysis, “[l]ike most discovery disputes, the availability of a second deposition is left
to the discretion of the trial court.” Graves v. Shelby Cnty. Bd. of Ed., No 2:14-cv-2992-dkv, 2015
WL 13116991, at *2 (W.D. Tenn. Sept. 11, 2015) (citing Nellcor Puritan Bennett LLC v. CAS
Med. Sys., Inc., No. 2:11-CV-15697, 2013 WL 3242960, at *3 (E.D. Mich. June 26, 2013)).
ANALYSIS
The Court finds good cause to grant Defendant the opportunity to depose Perry Hopkins a
second time. For purposes of Rule 26(b)(2)(C)(i), deposing Hopkins again will not be unduly
cumulative or duplicative, and his testimony cannot be obtained from another source. It is true
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that Defendant has already deposed Hopkins and chose not to question him about all of the
opinions found in his expert report. It is also true that Hopkins has not supplemented his initial
report. In fact, Defendant questions whether Plaintiffs still intend to call Hopkins at trial. And yet
it is also true that Plaintiffs have materially altered the nature of their claims and their allegations
about the origin of the wiring on the starter solenoid. Plaintiffs have filed an amended pleading to
state their new theory of the case that the wiring originated with recall work to repair the ATV’s
voltage regulator. The parties have now engaged in another round of fact discovery based on these
new allegations. All of this has occurred since the first Hopkins deposition. The Court cannot say
then that it would be cumulative or duplicative to permit Defendant to depose Hopkins a second
time. For similar reasons, the Court cannot say for purposes of Rule 26(b)(2)(C)(ii) that Defendant
already had the opportunity to question Hopkins about the voltage regulator wiring. Finally, the
second deposition appears to be relevant and within the scope of Rule 26(b)(1). None of the factors
for limiting discovery under Rule 26(b)(2) are met here. Therefore, Defendant has shown good
cause for a second chance to depose Hopkins.
Plaintiffs object that some of Defendant’s own litigation strategy occasioned the
circumstances the parties now confront and that Defendant should not be allowed to re-depose
Hopkins on matters that were already covered in the first deposition. Plaintiffs describe in some
detail a discovery dispute from the first phase of discovery in the case. The Court finds it
unnecessary to revisit the parties’ dispute from late 2018, when so much has changed in the
intervening months to alter the complexion of the case. Following the first Hopkins deposition,
Plaintiffs discovered new evidence that the wiring attached to starter solenoid originated with a
voltage regulator, and not a soundbar. This newly discovered evidence resulted in a significant
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amendment to Plaintiffs’ pleadings and required a second discovery phase. All of this justifies
allowing Defendant to re-depose Hopkins now.
The Court does agree that Defendant should not engage in a line of questioning in the
second deposition that simply duplicates questioning from the first deposition. “When they allow
a second deposition, courts often limit the scope of the second deposition to issues not covered in
the first deposition.” Bilderback, 2007 WL 9711096, at *1 (citing See e.g., Perry v. KellySpringfield Tire Co., 117 F.R.D. 425, 426 (N.D. Ind. 1987)). The Court need not decide the precise
scope of the questioning to be allowed during a second deposition. It appears to be undisputed
that Hopkins’ first deposition was relatively brief and focused on ruling out the soundbar as the
source of the wiring. Defendant is cautioned that counsel’s questioning during a second deposition
should avoid questions that were already asked by Defendant and answered by Hopkins during the
first deposition.
CONCLUSION
Defendant’s Motion for Leave to Conduct a Supplemental Deposition of Plaintiff’s expert
Perry Hopkins is GRANTED. Defendant has requested leave to depose Hopkins within fourteen
days from the entry of this order. In light of the current public health crisis concerning Covid-19,
counsel are ordered to confer about a mutually agreeable date for taking the deposition as well as
any and all alternative means of safely conducting and recording the deposition. The parties should
file a status report on these matters with the Court within seven days of the entry of this order.
IT IS SO ORDERED.
s/ S. Thomas Anderson
S. THOMAS ANDERSON
CHIEF UNITED STATES DISTRICT JUDGE
Date: April 3, 2020
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