Nationwide Agribusiness Insurance Company et al v. Meller Anlagenbau GMBH

Filing 67

ORDER signed by Judge Rudolph T. Randa on 6/18/2014. Plaintiff's MOTIONS to Quash 47 52 56 DENIED; Plaintiff's MOTION for Extension of Fact Discovery Deadline 51 DENIED; Defendant's MOTION to Quash Subpoena Served upon Henning Co nstruction 55 DENIED as Moot; Defendant's MOTON for Enlargement and to Extend Case Management Dates 62 GRANTED; S&R Egg Farm must comply with subpoenas and permit inspection of barn within 30 days of the date of this Order; Deadline for Defe ndant's expert disclosures is 30 days after date of inspection; Deadline for all expert discovery is 60 days after date of inspection; Dispositive motions due 90 days after date of inspection; Final pre-trial conference and jury trial are ADJOURNED subject to re-scheduling after the Court issues a ruling on dispositive motions. (cc: all counsel)(cb)

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF WISCONSIN

NATIONWIDE AGRIBUSINESS
INSURANCE COMPANY,
Plaintiff,

FRANSISCO ALCALA,
Involuntary Plaintiff,

Case No. 12-C-1227

-vsMELLER POULTRY EQUIPMENT, Inc. and
MELLER ANLAGENBAU GMBH,
Defendants.

DECISION AND ORDER

This is a product liability suit arising from an injury that occurred at the S&R Egg
Farm facility in Palmyra, Wisconsin. Fransisco Alcala, the involuntary plaintiff, fell
through a platform manufactured by the defendants, foreign corporations collectively
known as “Meller.” The litigants, unfortunately, cannot and have not been able to agree
on a multitude of discovery-related issues. Several motions are addressed herein.
First, the plaintiff, Nationwide Agribusiness Insurance Company, moves to
modify subpoenas served upon S&R Egg Farm, Inc. and Cold Spring Egg Farms.
Counsel for Nationwide represents these entities for the “limited and specific purpose of
responding to the subpoenas that are the subject of this motion and does not directly
represent said entities generally or for any other purpose.” Accordingly, this is a proper

motion to quash. ECF No. 46, January 15, 2014 Order Denying Motion to Compel
(explaining that when a “nonparty receives a subpoena to which it objects,” it may “file a
motion to quash or modify the subpoena . . .”).
Meller requests disclosure of the social security number for Jesus Rivera, a former
S&R employee and the sole eyewitness to Mr. Alcala’s accident. Nationwide objects that
Meller is “overreaching,” but doesn’t provide any reasoned explanation as to why this
information is privileged or otherwise not discoverable. Indeed it is discoverable, as
Federal Rule of Civil Procedure 26(b)(1) provides that parties may obtain discovery of
any non-privileged matter that is “relevant to the party’s claim or defense,” including “the
identity and location of persons who know of any discoverable matter.” The only witness
to an accident giving rise to a lawsuit easily meets this standard. While Meller might
otherwise be able to locate Mr. Rivera, having his social security number will make the
endeavor quicker and cheaper, and Rivera’s privacy interests can be protected with an
appropriate confidentiality order. See generally EEOC v. Univ. of Phoenix, Inc., No. CIV05-1048 JB/WPL, 2007 WL 1302578, at *7 (D.N.M. Apr. 10, 2007) (objection to
disclosure of employees’ social security numbers failed to “specifically demonstrate how
disclosure of this relevant information to the EEOC will adversely affect employees”).
The remaining motions are interrelated, so the Court will attempt to provide
context. On April 3, the Court approved a stipulation extending the deadlines for expert
disclosures, expert discovery, and the filing of dispositive motions.

The next day,

Nationwide moved for an extension of the fact discovery deadline to afford an opportunity

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to depose the corporate representative for Henning Construction, LLC.1 On April 8 and
April 21, Nationwide moved to quash a subpoena for the inspection of S&R’s egg-laying
facility.
The deadline for fact discovery expired on February 28, 2014, so in order to
depose Henning Construction, Nationwide must establish that it has good cause to modify
the Court’s scheduling order. Fed. R. Civ. P. 16(b)(4); ECF No. 33, August 29, 2013
Decision and Order at 2.

Nationwide argues that it has a substantial need for the

deposition, and that Meller will suffer no prejudice therefrom. Conspicuously absent is
any reference to the actual good cause standard, which “primarily considers the diligence
of the party seeking the amendment,” Trustmark Ins. Co. v. Gen. & Cologne Life Re of
Am., 424 F.3d 542, 553 (7th Cir. 2005), and requires parties to “show that despite their
diligence the time table could not have reasonably been met.” Tschantz v. McCann, 160
F.R.D. 568, 571 (N.D. Ind. 1995). As Meller explains, Nationwide has known that
Henning designed and constructed the barn since at least mid-December, two full months
before the expiration of the fact discovery deadline.
As for the inspection, Nationwide initially argues that Meller is attempting to
engage in unauthorized, post-deadline fact discovery.

This argument is incredibly

disingenuous in light of the stipulation, referenced above, which extended the deadline for
expert discovery for the explicit purpose of allowing additional time for the inspection.

1

In a corresponding motion, Meller moved to quash the subpoena served upon Henning
Construction. As with Nationwide’s motion to quash on behalf of S&R, the Court will presume that
Meller is acting on behalf of Henning Construction, although the motion seems unnecessary and
duplicative in any event.

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ECF No. 50 at 2 (“WHEREAS, the parties have been and are in the process of scheduling
an inspection for Meller’s experts to inspect the location of the underlying incident and
anticipate doing so within the month of April, 2014”).
Perhaps realizing that this argument was a loser, Nationwide shifted its focus,
filing a more extensive brief outlining the potential dangers of allowing outsiders to
inspect the egg farm.

Fed. R. Civ. P. 45(d)(3)(iv) (courts must modify or quash a

subpoena that imposes an undue burden). As a result, the Court has learned a great deal
regarding the inner workings of an egg-laying facility. For example, the barns in the S&R
facility are populated with many thousands of birds. Those birds are susceptible to illness
and injury, including cannibalism and disease, if startled, and the presence of untrained
humans, loud or sudden noises or movements, excessive lighting and other factors will
injure the birds. The problem is so severe that if the birds become stressed, it can have a
cascading effect, leading to the eradication of the entire bird population. Moreover, S&R
is subject to strict regulatory requirements which, if violated, would threaten S&R’s
relationship with over 95% of its customers. According to D. Lee Borneman, S&R’s
Director of Quality and Safety, Meller’s proposed inspection “threaten[s] the very
existence of S&R.” “It is our prayer that the Court sees the injustice in that approach and
bars Meller from conducting any inspection, or if an inspection is required, that Meller be
required to adhere to S&R’s operating, safety and quality requirements so that S&R may
continue as a going concern.” Borneman Affidavit, ECF No. 57.
The Court is sympathetic to S&R’s concerns, but it begs the question as to why
Nationwide’s experts were given unfettered access to the facility at a time when it was in

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production (barns are taken out of production every two years, a period which coincides
with the productive life cycle of the hens; the barn at issue in this case, “Barn 10,” will not
be “depopulated” again until March, 2015). Moreover, the parties actually were working
towards a mutual resolution regarding the various safety and regulatory requirements, at
least until Nationwide suddenly reversed course and moved to quash the subpoenas.2 The
Court will not wade into the back-and-forth regarding the various restrictions that S&R
via Nationwide seeks to impose upon Meller’s inspection. Suffice it to say that a renewed
motion to quash will be viewed with extreme skepticism. Ultimately, the Court cannot
countenance an approach that allows one party to have unrestricted access to the site of
the injury, while at the same time allowing the opposing party to have less access, or none
at all.
NOW, THEREFORE, BASED ON THE FOREGOING, IT IS HEREBY
ORDERED THAT:
1.

Nationwide’s motions to quash [ECF Nos. 47, 52, 56] are DENIED;

2.

Nationwide’s motion for an extension of the fact discovery deadline [ECF

No. 51] is DENIED;
3.

Meller’s motion to quash the subpoena served upon Henning Construction

[ECF No. 55] is DENIED as moot;
2

When Meller objected to Nationwide’s attempt to depose Henning Construction, Counsel
for Nationwide indicated that S&R was “off limits” unless and until Meller agreed to an extension on
fact discovery. ECF No. 53, Ex. A-17 (April 3 e-mail exchange) (“Either we all continue with this
discovery or none of us do. . . . I will have no further response. In thirty minutes, I will file my
opposition, along with a motion for leave to take the Henning deposition. The inspection is off. You
hold the keys to putting everything back on track. The choice is yours. You have thirty minutes”).

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4.

Meller’s motion for enlargement and to extend case management dates

[ECF No. 62] is GRANTED;
4.

S&R Egg Farm must comply with the subpoenas and permit an inspection

of the barn within thirty (30) days of the date of this Order;
5.

The deadline for Meller’s expert disclosures are due thirty (30) days after

the date of the inspection;
6.

The deadline for all expert discovery is sixty (60) days after the date of the

inspection;
7.

Dispositive motions are due ninety (90) days after the date of the

inspection; and
8.

The final pre-trial conference and trial dates are both ADJOURNED,

subject to re-scheduling after the Court issues a ruling on dispositive motions.

Dated at Milwaukee, Wisconsin, this 18th day of June, 2014.
BY THE COURT:

__________________________
HON. RUDOLPH T. RANDA
U.S. District Judge

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