Charles W. Walker, Jr. and Janette Walker
JOSEPH A. DiCLERICO, Jr., District Judge.
Charles W. Walker, Jr. and Janette Walker, who are husband and wife, bring product liability claims against Segway Inc. that arose from injuries Charles Walker sustained when he fell while riding a Segway Human Transporter ("Segway HT"). The Walkers move to compel Segway to produce documents pertaining to complaints, claims, accidents, and injuries involving Segway HTs. Segway objects to the motion.
Standard of Review
"A party may serve on any other party a request within the scope of Rule 26(b): (1) to produce and permit the requesting party or its representative to inspect, copy, test, or sample... items in the responding party's possession, custody, or control, " including documents, data, and data compilations. Fed.R.Civ.P. 34(a)(1)(A). "Unless otherwise limited by court order, ... [p]arties may obtain discovery regarding any nonprivileged matter that is relevant to any party's claim or defense-including the existence, description, nature, custody, condition, and location of any documents or other tangible things...." Fed.R.Civ.P. 26(b)(1). "Relevant information need not be admissible at the trial if the discovery appears reasonably calculated to lead to the discovery of admissible evidence." Id.
The response to a Rule 34 request must address each item or category of items requested and state either that the items will be produced or state an objection, including the reasons. Fed.R.Civ.P. 34(b)(2). "[G]eneral or boilerplate objections, offered without explanation, may constitute a waiver of the responding party's right to object." Howard v. Segway, Inc., 2013 WL 869955, at *3 (N.D. Okla. Mar. 7, 2013) (citing cases). Therefore, an appropriate objection to a Rule 34 request must state the objection with specificity and explain how that objection relates to the requested documents. D.J.'s Diamond Imports, LLC v. Brown, 2013 WL 1345082, at *6 (D. Md. Apr. 1, 2013); Powerhouse Licensing, LLC v. CheckFree Servs. Corp., 2013 WL 1209971, at *3 (E.D. Mich. Mar. 25, 2013); Silicon Knights, Inc. v. Epic Games, Inc., ___ F.Supp.2d ___, 2012 WL 6809721, at *26 (E.D. N.C. Nov. 7, 2012); Dolarian Capital, Inc. v. SOC, LLC, 2012 WL 4026818, at *2 (E.D. Cal. Sept. 12, 2012); Kelley v. Bd. of Educ. of City of Chicago, 2012 WL 1108135, at *2 (N.D. Ill. Apr. 2, 2012).
"[A] party may move for an order compelling disclosure or discovery..." when an opposing party provides an "evasive or incomplete disclosure" in response to a request to produce documents. Fed.R.Civ.P. 37(a)(1); 37(a)(3)(B); & 37(a)(4). In this district, the party moving to compel production of requested documents bears the burden of showing that the information he or she seeks is relevant for purposes of discovery. See Caouette v. OfficeMax, Inc. , 352 F.Supp.2d 134, 136 (D.N.H. 2005). In response, the party opposing disclosure based on privilege bears the burden of showing that the privilege applies. See Vicor Corp. v. Vigilant Ins. Co. , 674 F.3d 1, 17 (1st Cir. 2012). If that burden is met, the party moving to compel must show that an exception to the privilege applies. Id.
Charles Walker purchased a Segway HT, series I-167, in 2003. On July 8, 2006, Walker was riding the Segway when it stopped suddenly, throwing Walker over the handlebars. He struck his head, face, and hand on the pavement which caused permanent injury to his hand and a closed head injury. Walker has a permanent disability because of his injuries.
The Walkers brought suit on August 3, 2011. They allege that Segway negligently designed, manufactured, and sold the Segway HT that Charles Walker was riding at the time of the accident. They also allege a strict product liability claim, which includes an allegation that the Segway HT lacked an adequate warning. Their third claim is that Segway breached the implied warranty of fitness because the Segway HT was not fit for its ordinary use or its intended use.
Segway maintains an "incident response team" that is responsible for "tracking and coordinating investigation of reported injuries." Def. Obj. at 5. Segway's legal department also keeps information about complaints that is entered onto a spreadsheet from incident intake forms. Additional documents and information about each incident are kept in subfolders. Since 2008, Segway has also kept records of "service anomalies" which are reported incidents or complaints that do not involve injuries.
A paralegal at Segway, Roxanne Lamonde, is part of the incident response team. During her deposition, Lamonde described the file that she maintains of incidents that have occurred on a Segway device. Counsel for the Walkers represents that Lamonde testified during her deposition that Segway has 500 to 550 reports of prior accidents on Segway HTs and that it would not be difficult for her to obtain a copy of the document with those reports which include the person's name, the serial number and model of the machine, and a description of the incident.
The Walkers propounded requests for production of documents dated May 18, 2012. Segway objected to many of them in its responses on June 28, 2012. Requests numbered 8, 9, 10, 11, 12, 13, 14, and 15 asked, among other things, for "all documents relating to or that otherwise document" accidents, claims, injuries, suits, loss of control by the rider, and other problems while riding a Segway HT, of which Segway was aware, that occurred between January 1, 2004, and the present. Segway objected to Request 8, which asked for documents relating to accidents, claims, and injuries after January 1, 2004, on the grounds that the request was "vague and ambiguous, overly broad, unduly burdensome, unlimited in time and scope and not likely to lead to the discovery of admissible evidence." As to Requests 9, 10, 11, 12, 13, 14, and 15, Segway objected on the same grounds and added in boilerplate fashion that each request is "not reasonably particularized or defined, " "assumes facts that have not been established and therefore lacks foundation, " and "seeks information protected by the attorney-client privilege and/or work-product doctrine."
Requests 39, 50, and 51 ask for documents related to Segway's procedures and methods for handling complaints about the Segway HT. The Walkers omitted the page with Segway's response to Request 39. Segway objected to Requests 50 and 51 on the same grounds: "The request is overly broad, vague and ambiguous, and unlimited in time and scope. The request seeks information that has been prepared in anticipation of litigation, is subject to the attorney-client privilege, and not discoverable." In response to Request 50, Segway added: "Consistent with this objection and privilege, Segway is withholding documents Bate stamped Segway-Walker-042612-052628." Segway also produced a privilege log that identifies four categories of documents that were withheld based on the work product doctrine.
The Walkers' counsel contacted Segway's counsel in September of 2012 to address Segway's responses and failure to produce many of the requested documents. Segway continued to assert its objections. Counsel exchanged letters in October and November of 2012 that did not resolve the discovery dispute, although Segway provided a privilege log ...