Amick et al v. Allied Glove Corporation et al

Filing 70

MEMORANDUM OPINION AND ORDER granting in part and denying in part Defendant Ohio Power Company's 61 MOTION for Protective Order, as directed and set forth more fully herein. Signed by Magistrate Judge Cheryl A. Eifert on 2/5/2014. (cc: attys; any unrepresented party) (taq)

IN THE UNITED STATES DISTRICT COURT
FOR THE SOUTHERN DISTRICT OF WEST VIRGINIA
CHARLESTON DIVISION
ELDON AMICK, Individually and
as Personal Representative her of
the Estate of BARBARA E. AMICK,
deceased,
Plaintiff,
v.

Case No.: 2:13-cv-06593

OHIO POWER COMPANY, et al.,
Defendants.

MEMORANDUM OPINION AND ORDER
Pending before the court is the Motion for Protective Order of Defendant Ohio
Power Company (“OPC”). (ECF No. 61). Plaintiff has filed a response in opposition to
the motion, (ECF No. 67), and OPC has filed a reply memorandum. (ECF No. 69). The
issues are clear; therefore, oral argument is unnecessary, and this matter is ready for
disposition. As set forth below, the court GRANTS, in part, and DENIES, in part,
OPC’s motion.
I.

Relevant Facts
This action arises from the asbestos-related death of Barbara Amick. According to

Plaintiff, he worked as a bookkeeper for American Gas & Electric at OPC’s Muskingum
River Power Plant in 1953 and 1954, where he was exposed to asbestos that deposited on
his clothing. (ECF No. 50 at 3). His wife, Barbara Amick, allegedly inhaled asbestos
fibers in the course of laundering her husband’s work clothes. Mrs. Amick eventually
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developed mesothelioma from her exposure to asbestos fibers and died from that
disease.
On December 9, 2013, Plaintiff filed a Notice of Deposition Duces Tecum seeking
testimony from a corporate designee of OPC pursuant to Federal Rule of Civil Procedure
30(b)(6). (ECF No. 53). On January 7, 2014, OPC filed objections to certain topics of
inquiry outlined in the Notice of Deposition. (ECF No. 60). After attempting,
unsuccessfully, to resolve the parties’ differences over the topics, OPC filed the instant
Motion for Protective Order pursuant to Fed. R. Civ. P. 26(c).
II.

Discussion
Rule 26(b)(1) permits a party to obtain discovery regarding any nonprivileged

matter that is relevant to any party’s claim or defense. “While the Federal Rules of Civil
Procedure do not define ‘relevant information,’ the Federal Rules of Evidence define it
as ‘evidence having any tendency to make the existence of any fact that is of
consequence to the determination of the action more probable or less probable than it
would be without the evidence.’” Boykin Anchor Co., Inc. v. Wong, No. 5:10–CV–591–
FL, 2011 WL 5599283, * 2 (E.D.N.C. November 17, 2011), citing United Oil Co., v. Parts
Assocs., Inc, 227 F.R.D. 404, 409 (D.Md. 2005). Still, admissibility under the Federal
Rules of Evidence is not the guideline for relevancy in the context of discovery.
Relevancy in discovery is broad in scope, because “[d]iscovery is of broader scope than
admissibility, and discovery may be had of inadmissible matters.” King v. Conde, 121
F.R.D. 180, 194 (E.D.N.Y. 1988); See also Carr v. Double T Diner, 272 F.R.D.431, 433
(D.Md.) (“The scope of relevancy under discovery rules is broad, such that relevancy
encompasses any matter that bears or may bear on any issue that is or may be in the
case”). For purposes of discovery, then, information is relevant, and thus discoverable, if
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it ‘“bears on, or ... reasonably could lead to other matter[s] that could bear on, any issue
that is or may be in the case. Although ‘the pleadings are the starting point from which
relevancy and discovery are determined ... [r]elevancy is not limited by the exact issues
identified in the pleadings, the merits of the case, or the admissibility of discovered
information.’ Rather, the general subject matter of the litigation governs the scope of
relevant information for discovery purposes. Therefore, courts broadly construe
relevancy in the context of discovery.” Kidwiler v. Progressive Paloverde Ins. Co., 192
F.R.D. 193, 199 (N.D.W.Va. 2000) (internal citations omitted).
Discovery that seeks relevant information may nevertheless be restricted or
prohibited if necessary to protect a person or party from annoyance, embarrassment,
oppression, or undue burden or expense. Fed. R. Civ. P. 26(c). Likewise, on motion or
sua sponte, the court may limit the frequency and extent of discovery when the “burden
or expense of the proposed discovery outweighs its likely benefit, considering the needs
of the case, the amount in controversy, the parties’ resources, the importance of the
issues at stake in the action, and the importance of the discovery in resolving the issues.”
Fed. R. Civ. P. 26(b)(2)(C)(iii). The party opposing discovery has the obligation to
submit evidence supporting its claims that the requests are unduly burdensome,
oppressive, or improperly invasive. To prevail on the grounds of burdensomeness or
breadth, the objecting party must do more to carry its burden than make conclusory and
unsubstantiated arguments. Convertino v. United States Department of Justice, 565 F.
Supp.2d 10, 14 (D.D.C. 2008) (the court will only consider an unduly burdensome
objection when the objecting party demonstrates how discovery is overly broad,
burdensome, and oppressive by submitting affidavits or other evidence revealing the
nature of the burden); Cory v. Aztec Steel Building, Inc., 225 F.R.D. 667, 672 (D.Kan.
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2005) (the party opposing discovery on the ground of burdensomeness must submit
detailed facts regarding the anticipated time and expense involved in responding to the
discovery which justifies the objection); Bank of Mongolia v. M & P Global Financial
Services, Inc., 258 F.R.D. 514, 519 (S.D. Fla.2009) (“A party objecting must explain the
specific and particular way in which a request is vague, overly broad, or unduly
burdensome. In addition, claims of undue burden should be supported by a statement
(generally an affidavit) with specific information demonstrating how the request is
overly burdensome”).
OPC objects to the scope of seven topics of inquiry set forth in the notice of Rule
30(b)(6) deposition on the basis that the topics are not limited to the time frame before
1955, or otherwise seek irrelevant information. OPC argues that Plaintiff last worked at
the power plant in question in 1954. As his complaint against OPC alleges negligence
and premises liability related to his exposure to asbestos at that power plant, the
corporate designee should only be required to prepare and provide testimony relating to
the time period before 1955. According to OPC, discovery of information pertaining to
the years after 1954 is not relevant to the claims and defenses, and is annoying,
burdensome and oppressive. Although OPC has not supplied specific information
supporting its claims of burdensomeness and oppression, the undersigned appreciates
that preparing a corporate witness to testify regarding a variety of topics for a time span
that covers eighty-four (84) years—rather than the twenty-four (24) years acceptable to
OPC—undoubtedly increases the burdens on OPC.
In response, Plaintiff contends that lengthening the time frame applicable to the
seven disputed topics is necessary in order for Plaintiff to obtain information highly
relevant to his claims. Plaintiff does not address the additional burdens that would be
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placed on OPC in order to adequately prepare a corporate representative to discuss sixty
additional years, but implies that the need for this information outweighs the difficulties
to OPC in providing it.
The first two disputed topics, found at paragraphs 2 and 3 of the notice, request
the names and addresses of all OPC1 employees engaged in medicine, industrial hygiene,
and safety since 1930, as well as information regarding the corporate structure,
reporting responsibilities, hiring decisions, and retention of documents involving
employees in these fields. Plaintiff asserts that this information will help him identify
key employees who may have “historical knowledge” relevant to the period before 1955.
The court finds that the anticipated benefits associated with the additional 60 years of
information on these topics is far outweighed by the burden to OPC. It is probable that
this data will be time-consuming to collect and will yield only minimally useful
information. Therefore, OPC’s motion for protective order is GRANTED in regard to
the topics outlined in paragraphs 2 and 3. Plaintiff shall limit questioning on these two
topics to the time period including 1930 through the end of 1954.
The next two topics, found at paragraphs 5 and 6 of the notice, request
information regarding OPC’s involvement or membership in various organizations and
associations since 1930. OPC objects on the basis that Plaintiff has not limited the type
of association or organization to those focusing on asbestos and has not confined the
relevant time period to the years prior to 1955. Plaintiff has agreed to limit the time
frame to 1930 through the end of 1954, but argues that it is entitled to know OPC’s
involvement in all trade organizations and associations given that some of the

The notice of deposition asks for information regarding OPC “and its predecessors.” (ECF No. 53). Thus,
the court’s reference to OPC herein is intended to include its predecessors.
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organizations and associations may have issued materials relevant to the hazards of
asbestos even though the organizations and associations were not specifically focused on
or limited to asbestos-related issues. Plaintiff adds that OPC’s knowledge of the risks
associated with asbestos is central to Plaintiff’s case; therefore, he should be allowed to
conduct this discovery. The court agrees with Plaintiff, and DENIES OPC’s motion for a
protective order regarding the topics outlined in paragraphs 5 and 6 of the notice, with
the caveat that the questioning be limited to the time frame of 1930 through the end of
1954.
The next two topics in dispute, located at paragraphs 9 and 19 of the notice of
deposition, cover OPC’s knowledge of the hazards of asbestos and its knowledge of
asbestos substitutes. Again, these topics are not limited to the period before 1955. OPC
claims that its knowledge regarding asbestos substitutes and the hazards of asbestos
after 1954 is irrelevant, because Plaintiff was not exposed to asbestos at any OPC facility
after 1954. In response, Plaintiff states that OPC, in defense of the claims against it, has
represented that it was unaware of the hazards of asbestos until 1972. Accordingly,
Plaintiff has the right to explore the veracity of that representation. Moreover, the
undersigned notes that Plaintiff has made a claim in his complaint that OPC should have
alerted Plaintiff and his wife of the dangers associated with asbestos when OPC learned
of them, so that Plaintiff and his wife could receive medical monitoring.
Considering the arguments of the parties, the undersigned concludes that OPC’s
knowledge after 1954 is relevant to the claims and defenses in this case. However, no
persuasive reason has been articulated as to how OPC’s knowledge of dangers and
substitutes is relevant for the period after 1972, when OPC concedes it learned of
problems with asbestos. Accordingly, the court GRANTS, in part, and DENIES, in
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part, OPC’s motion for protective order regarding the topics outlined in paragraphs 9
and 19 of the notice of deposition. Plaintiff shall be permitted to explore these topics,
but shall be limited to the years before 1973.
Finally, OPC objects to the topic contained in paragraph 20 of the notice of
deposition, which asks for testimony regarding, “[w]hether it was foreseeable to the
defendant and/or its predecessor that asbestos and/or asbestos-containing products
would have to be removed and/or replaced in the ordinary course of maintenance and
repair of its facility and related equipment, including, but not limited to, piping,
turbines, boilers, valves, and pumps.” OPC finds this topic objectionable because it seeks
a legal conclusion as to whether or not something was “foreseeable.” The undersigned
agrees that the topic, as framed, is objectionable. Therefore, OPC’s motion for protective
order regarding paragraph 20 is GRANTED. Nonetheless, Plaintiff is free to ask factual
questions relating to repairs, replacement, maintenance schedules, and the like.
It is so ORDERED.
The Clerk is instructed to provide a copy of this Order to counsel of record and
any unrepresented party.
ENTERED: February 5, 2014.

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