A federal judge from the District of New Hampshire has granted a golf cart manufacturer’s motion to compel discovery of past reports developed by an expert for a plaintiff, who is suing the manufacturer as well as the track where the accident occurred.
Melissa Jenks, the wife of the late Roderick Jenks, sued New Hampshire Motor Speedway, Breann Thompson, and Textron, Inc., alleging claims of negligence and product liability.
During the discovery process, Jenks retained an expert witness, William J. Vigilante, Ph.D., to provide his opinion about the adequacy of warnings on the golf cart.
On May 20, 2011, counsel for Textron deposed Dr. Vigilante. Specifically, the attorneys asked him if he had ever testified or consulted in a case involving the adequacy of warnings on golf carts. Dr. Vigilante responded that he did not recall that he had, according to the court. When asked whether he had been retained or involved in any “ATV-related” cases, he said he had been involved in about six ATV cases and most of them involved the adequacy of warnings.
“Textron’s counsel then asked Dr. Vigilante if he could find the names of the ATV cases, and Dr. Vigilante said he would have to search his database which is organized by key words,” wrote the court. “Counsel asked that Dr. Vigilante make a word search of his database for ‘ATV’ and ‘all terrain vehicle.’
On June 3, 2011, Textron’s counsel sent a letter to Jenks’s counsel asking for certain documents and for the “names of all cases and copies of all reports by Dr. Vigilante relating to All Terrain Vehicles in Dr. Vigilante’s database.”
Ten days later, Jenks’s counsel responded in a letter, asking opposing counsel to send a formal request for production of documents. Upon receipt of that letter, “Dr. Vigilante would search his database for pertinent expert reports, and that Dr. Vigilante would ask his other clients to agree to allow him to release the reports he had prepared in other cases,” wrote the court.
On June 20, 2011, Textron sent a Rule 34 request for production of documents, asking Jenks to produce the article, “a complete copy of Dr. Vigilante’s prior case database reflecting (but not limited to) those fields that identify the names of the parties retaining him, case caption, venue, case description and/or product at issue, date of accident, and whether a written report was prepared, as described by Dr. Vigilante during his deposition,” and reports from two other cases. Textron’s counsel also disagreed that Dr. Vigilante’s expert reports in other cases were subject to privilege, which required him to ask permission to disclose them.
In response, Jenks’s counsel objecting, arguing that “the request for the database was overly broad and burdensome, that it was not sufficiently calculated to lead to admissible evidence, and that Dr. Vigilante did not have a database as described in the request.”
On August 31, Textron’s attorneys formally moved to compel Jenks to produce an article and expert reports that Dr. Vigilante has prepared in other cases.
Jenks objects to the motion on the grounds that Textron failed to include a certification that it attempted to resolve the dispute before filing the motion, that the discovery request is overly broad and burdensome, and that the request seeks privileged material.
Federal Rule of Civil Procedure 37(a)(1) requires that a motion to compel “must include a certification that the movant has in good faith conferred or attempted to confer with the person or party failing to make disclosure or discovery in an effort to obtain it without court action.”
Textron did not include a specific certification that the parties had conferred or that it had made a good faith effort to confer about the discovery dispute as required by Rule 37(a)(1). Textron did provide a history of the parties’ interaction about the discovery issue, including copies of letters sent between counsel. In the motion Textron states: “Undersigned counsel attempted but was unable to obtain the assent of Plaintiffs’ counsel to this motion.”
While the court appreciated the plaintiff’s argument that the defendant did “not appear to meet the Rule 37(a)(1) requirement that the moving party confer or attempt to confer with the opposing party about the dispute, … Jenks’s objection to the motion to compel demonstrates a lack of interest in resolving the dispute between the parties.”
The court also found the plaintiff’s argument of privilege unavailing.
“Jenks’s assertion of privilege is not sufficiently supported,” wrote the court. Since the expert reports “are sufficiently related to the warning issue in this case, (they fall) within the scope of Federal Rule of Civil Procedure 26(b)(1).”
Melissa Jenks, G/N/F of Roderick Jenks v. New Hampshire Motor Speedway, Inc., F/K/A New Hampshire Speedway, et al. v. ADL Leasing and Textron Financial, Inc.; D.N.H.; Civil No. 09-cv-205-JD, 2011 DNH 159; 2011 U.S. Dist. LEXIS 113988; 10/3/11.
Attorneys of Record: (for plaintiff) R. Peter Decato, William A. Whitten, LEAD ATTORNEYS, Decato Law Office, Lebanon, NH; Daniel R. Mawhinney, PRO HAC VICE, Mark V. Franco, Thompson & Bowie, Portland, ME. (for defendant New Hampshire Motor Speedway, Inc.) Christopher B. Parkerson, PRO HAC VICE, James M. Campbell, John A.K. Grunert, Campbell Campbell Edwards & Conroy PC (MA), Boston, MA. (for defendant Breann M. Thompson) James M. Campbell, John A.K. Grunert, Campbell Campbell Edwards & Conroy PC (MA), Boston, MA. (for defendant Textron, Inc.) Michael D. Shalhoub, LEAD ATTORNEY, PRO HAC VICE, Goldberg Segalla LLP, White Plains, NY; Neil A. Goldberg, LEAD ATTORNEY, PRO HAC VICE, Goldberg Segalla LLP (Buffalo), Buffalo, NY; R. Matthew Cairns, LEAD ATTORNEY, Gallagher Callahan & Gartrell PC, Concord, NH; David S. Osterman, PRO HAC VICE, Goldberg Segalla LLP (NJ), Princeton, NJ.
