Tuvell et al v. Boy Scouts of America et al
Filing
243
MEMORANDUM DECISION granting 216 Motion to Compel Responses to Interrogatories and Production of Documents. Signed by Magistrate Judge Dustin B. Pead on 5/29/15. (jlw)
IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF UTAH, NORTHERN DIVISION
CHRISTOPHER JOSEPH TUVELL,
SHERRY LYNN TUVELL, individually and
as heirs of David Christopher Tuvell, and THE
ESTATE OF DAVID CHRISTOPHER
TUVELL
MEMORANDUM DECISION
Case No. 1:12-cv-00128-DB-DBP
District Judge Dee Benson
Plaintiffs,
Magistrate Judge Dustin B. Pead
v.
PROFESSIONAL ASSOCIATION OF DIVE
INSTRUCTORS (“PADI”), BLUE WATER
SCUBA, LOWELL HUBER, CORBETT
DOUGLAS,
Defendants.
INTRODUCTION
This matter was referred to the Court pursuant to 28 U.S.C. § 636(b)(1)(A). (Dkt. 213.) This
lawsuit arises from a July 2011 scuba diving accident that resulted in the death of David
Christopher Tuvell. Defendants Blue Water Scuba, Lowell Huber and Corbett Douglas
(collectively “Blue Water”) bring the present motion to compel discovery related to Defendant
Professional Association of Dive Instructors’ (“PADI”) expert, Al Hornsby. (Dkt. 216.)
ANALYSIS
Blue Water moves to compel responses to two of its interrogatories. 1 First Blue Water seeks
a response to interrogatory number seven, which calls for information related to prior litigation
involving PADI. Blue Water does not specifically address the relationship of the prior litigation
to Mr. Hornsby’s report, but appears to insinuate that the items are relevant to the portion of Mr.
Hornsby’s report addressing the safety of PADI’s DSD program. Blue Water also seeks a
response to interrogatory number eight, which seeks data underlying a study PADI published,
entitled “Training Scuba Divers: A Fatality and Risk Analysis.” Blue Water argues it is entitled
to the information because it will allow Blue Water to more effectively cross-examine Mr.
Hornsby on his opinions based on the study. Blue Water also claims they are entitled to the data
pursuant to Federal Rule of Evidence 1006.
PADI resists Blue Water’s attempt to compel a response to the interrogatories because Mr.
Hornsby does not comment or rely on prior litigation in his report. (Dkt. 222.) PADI suggests
that Blue Water’s interrogatories constitute nothing more than a tardy request for fact discovery.
PADI also argues that interrogatory seven is not reasonably calculated to lead to discoverable
information. Finally, PADI argues that the study at issue in interrogatory eight is not a summary
of information subject to Rule 1006.
I.
Expert discovery limits
Generally, “the scope of discovery under the federal rules is broad . . . .” Gomez v. Martin
Marietta Corp., 50 F.3d 1511, 1520 (10th Cir. 1995). PADI has not challenged Blue Water’s
ability to use interrogatories to discover information related to Mr. Hornsby’s report. Instead,
1
Blue Water initially sought a broader range of information, but PADI indicated in its opposition
that it provided, or will provide, the other information Blue Water identified in its motion. Blue
Water filed no reply, so the Court concludes that these issues are now moot, as PADI suggests.
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PADI argues that interrogatories seven and eight are only permissible to the extent they seek
information upon which Mr. Hornsby relied in forming his expert opinions. Otherwise, PADI
argues, the requests exceed the scope of expert discovery. PADI does not cite any authority to
support this argument. Presumably PADI relies on the expert disclosure requirements of Rule 26,
but such reliance is misplaced. While Rule 26 requires experts to disclose in their report “the
facts or data considered by the witness in forming them;” that provision does not restrict
discovery requests. See Fed. R. Civ. P. 26(a)(2)(B)(ii). Accordingly, the relevant discovery limits
are found, as Blue Water correctly notes, in Rule 26(b). PADI argues that interrogatory seven
suffers from such a deficiency.
a. Interrogatory seven
PADI argues that interrogatory seven (seeking evidence of prior claims) is outside the scope
of discovery because it is not reasonably calculated to lead to the discovery of admissible
evidence. PADI suggests that unless another lawsuit was almost identical to this one, then
Federal Rule of Evidence 404(b) bars evidence of other lawsuits. PADI concludes that because
Blue Water does not have any evidence that the other litigation was sufficiently similar to the
facts at bar, Blue Water is not entitled to the discovery.
The Court disagrees. First, it would be patently unfair to deny a party discovery on the basis
that the party cannot establish the relevance of information it does not yet possess. Additionally,
discovery sought must only be “reasonably calculated to lead to the discovery of admissible
evidence.” Fed. R. Civ. P. 26(b)(1) (emphasis added). Thus, even if the prior litigation is not
admissible by itself, it may nonetheless be reasonably calculated to lead to information that is
admissible. It is foreseeable that Blue Water could discover existence of some information used
in the prior litigation that could be helpful to its cross examination of Mr. Hornsby. Finally, the
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asserted inadmissibility is far from certain. PADI fails to acknowledge that evidence of other acts
is admissible for purposes other than establishing negligent behavior. See Fed. R. Evid.
404(b)(2). Based on the foregoing, PADI must provide a response to interrogatory seven.
a. Interrogatory eight
PADI does not argue that interrogatory eight (seeking information underlying PADI’s
published study) exceeds the scope of permissible discovery as outlined in Rule 26(b). 2
Likewise, the Court does not find any reason to act on its own to limit this discovery. See Rule
26(b)(C). Accordingly, PADI must produce the information sought by Blue Water because it
does not appear to fall outside the scope of permissible discovery.
ORDER
For the reasons set forth above, the Court:
GRANTS Blue Water’s Motion to Compel Responses to Interrogatories and Production of
Documents from Defendant PADI. (Dkt. 216.)
IT IS SO ORDERED.
Dated this 29th day of May, 2015.
By the Court:
Dustin B. Pead
United States Magistrate Judge
2
The Court agrees with PADI that Rule of Evidence 1006 does not require production of this
information because PADI has not attempted to introduce a summary of evidence. This does not;
however, alter the analysis under Rule 26.
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