The opinion of the court was delivered by: Hugh B. Scott United States Magistrate Judge Western District of New York
Decision & Order and Amended Scheduling Order
Before the Court are the following motions: plaintiff's motions for leave to take additional depositions (Docket Nos. 117, 119); plaintiff's motion to compel certain non-party depositions and the production of documents (Docket No. 118); defendant Signature Truck Systems, Inc. ("Signature") motion to preclude the plaintiff's third response to Signature's First Set of Interrogatories (Docket No. 130); and plaintiff's motion to extend discovery and modify the scheduling order (Docket No. 132).
The plaintiff, David Lent ("Lent") brought this action in New York State Supreme Court, Erie County, against Signature, Muncie Power Products, Inc. ("Muncie") and Base Engineering, Inc. ("Base"). Lent alleges that on December 10, 2003, he was employed by Ferrellgas Partners, L.P. ("Ferrellgas").*fn1 The plaintiff alleges that he was severely injured while making a delivery of propane gas to a Ferrellgas customer on Ball Road in the Village of Forrestville, New York. Lent alleges that the power-take-off system ("PTO") engaged unexpectedly and entangled both of his arms. (Docket No. 1-2 at ¶ 4). The plaintiff alleges that the propane delivery vehicle Lent was operating was manufactured by Signature (Docket No. 1-2 at ¶ 5); the PTO system was designed and manufactured by Muncie (Docket No. 1-2 at ¶ 32); and a radio remote control unit used to engage the PTO was designed and manufactured by Base (Docket No. 1-2 at ¶ 57).
Motions To Take Additional Depositions & Other Discovery Issues
The plaintiff seeks to conduct five additional depositions, including depositions of non-party witnesses from Parker Hannefin, Chelsea Division (a manufacturer of PTO systems in competition with Muncie)(referred to herein as "Chelsea"). The individuals proposed to be deposed include Jason Swatek (the product manager of Chelsea PTO's); Brian Rang (chief engineer for Chelsea PTO's); the chief legal officer of Chelsea; and the risk manager for Chelsea. Lastly, Lent also seeks to depose Richard Fernandez, an engineer and former Muncie employee. (Docket No. 117 at ¶ 5). Lent also seeks to take the non-party depositions of Lee Ostrom (of Ostrom Enterprises, Inc. ["Ostrom"]); Chris Schutt (of R&W Truck Services, Inc. ["R&W"]); and Philip Hordusky (and employee of third-party defendant Ferrellgas). (Docket No. 119 at ¶ 5).
Lent alleges that he served subpoenas on Swatek and Rang on November 6, 2009, and Chelsea's Chief Legal Officer and Chelsea's Risk Manager on November 11, 2009, scheduling the depositions to take place on December 9, 2009 and December 14, 2009, respectively. (Docket No. 118 at ¶ 7). On November 24, 2009, Specialty Risk Services ("SRS"), third party claim administrator for Chelsea, faxed a letter to Lent objecting to the subpoenas on the grounds that they requested testimony and documents that allegedly encompassed matters that are proprietary and trade secret. (Docket No. 118 at ¶8).
The plaintiff asserts that the number of depositions taken in this case has already exceeded the limit proscribed in Rule 30(a)(2)(A). (Docket No. 119 at ¶ 7).*fn2 In any event, pursuant to Rules 26 and 30 of the Federal Rules of Civil Procedure, the factors to be considered when resolving a request to expand the ten-deposition limit imposed by Rule 30(a)(2)(A), include whether (1) the proposed discovery is "unreasonably cumulative or duplicative, or ... obtainable from some other source that is more convenient, less burdensome, or less expensive," (2) the party seeking the proposed discovery has not previously "had ample opportunity by discovery in the action to obtain the information sought," and (3) "the burden or expense of the proposed discovery [does not] outweigh[ ] its likely benefit, taking into account the needs of the case, the amount in controversy, the parties' resources, the importance of the issues at stake in the litigation, and the importance of the proposed discovery in resolving the issues." See Fed.R.Civ.P. 30(a)(2)(A), 26(b)(2)(C). Generally, "[p]arties may obtain discovery regarding any non-privileged matter that is relevant to any party's claim or defense [.]" Fed.R.Civ.P. 26(b)(1). "Although not unlimited, relevance, for purposes of discovery, is an extremely broad concept." Condit v. Dunne, 225 F.R.D. 100, 105 (S.D.N.Y.2004); see also Oppenheimer Fund, Inc. v. Sanders, 437 U.S. 340, 351 (1978); Convolve, Inc. v. Compaq Computer Corp., 223 F.R.D. 162, 167 (S.D.N.Y.2004); Melendez v. Greiner, 2003 WL 22434101, at *1 (S.D.N.Y. 2003). "Relevant information need not be admissible at the trial if the discovery appears reasonably calculated to lead to the discovery of admissible evidence." Fed.R.Civ.P. 26(b)(1). The burden of demonstrating relevance is on the party seeking discovery. See Mandell v. Maxon Co., 2007 WL 3022552, at *1 (S.D.N.Y. 2007).
The plaintiff asserts that the issues in this case are complex, involving three separate product liability claims against three corporate entities. Lent states that the proposed additional discovery would not result in duplicative discovery, but instead would focus on the fact that Chelsea included explicit warnings in its installation and owners manuals relating to unwanted shaft rotation; that Chelsea conducted testing on a PTO virtually identical to that produced by Muncie and found that the unwanted shaft rotation generated sufficient torque to cause serious injury and even death (Lent alleges that Muncie denies that sufficient torque would be generated); that prior to 2001, Chelsea was aware of numerous injuries caused by unguarded PTO shafts (Lent alleges that Muncie and Signature deny being aware of any such injuries). (Docket No. 117 at ¶ 13). The plaintiff asserts that the deposition of Fernandez will focus on the fact that while he was employed by Muncie, Fernandez obtained a patent for a drag brake which is an integral part of the Muncie PTO. Lent argues that Fernandez' testimony will clarify the extent to which the drag brake was successful in dealing with unwanted shaft rotation, and the amount of torque generated from such rotation. (Docket No. 117 at ¶¶ 14-16). The plaintiff asserts that the documents and depositions of Ostrom and Schutt are necessary to confirm material repairs and replacement parts made to the truck involved in the incident, and that such repairs did not materially change the physical condition or operation of the truck. (Docket No. 119 at ¶ 14). The plaintiff seeks to take a second deposition of Hordusky to confirm that all material repairs of the truck were made by Ostrom and R&W. (Docket No. 119 at ¶ 15).
Muncie argues that the depositions of the four Chelsea witnesses would not yield any relevant evidence. (Docket No. 127 at page 3). According to Muncie, the warning stickers Muncie used were adequate and similar to those used by Chelsea. (Docket No. 127 at ¶¶ 6-7). Moreover, Muncie asserts that the plaintiff testified that he did not remember seeing any warnings in the manuals he read about the Muncie PTO. (Docket No. 127 at ¶ 8). Muncie also argues that the plaintiff's theory of liability, based upon the concept of unwanted rotation of the PTO, occurs "vary rarely" and was contrary to the evidence. (Docket No. 127 at ¶ 9). Whether or not the plaintiff's theory of liability will suffice to meet its burden in this case is a question of fact for the jury. The adequacy of Muncie's warning stickers, their content, location and placement on the equipment and in the documentation are all questions to be resolved by the trier of fact. While making no findings regarding admissibility, what other PTO manufacturers were doing with respect to such warnings may be relevant to the reasonableness of Muncie's conduct in this case. Similarly, testimony by Chelsea employees regarding the awareness of injuries caused by unwanted rotation of the PTO may be relevant to what was commonly known to those in that industry. With respect to Fernandez, Muncie argues that the relevance of any testimony he might give does not justify the cost of the deposition. (Docket No. 127 at page 11). This assertion is based upon Muncie's argument that the unwanted shaft rotation theory is a "red herring" because the drag brake (apparently designed by Fernandez) was installed on the truck involved in this accident and would have prevented any unwanted rotation. (Docket No. 127 at ¶25). The plaintiff's theory disputes this assertion, and the plaintiff proposes to depose Fernandez for the very purpose of exploring the effectiveness of the drag brake in preventing unwanted rotation. The effectiveness of the drag brake in preventing rotation is a question that must be resolved by the trier of fact in this case. Again, making no findings as to admissibility at trial, Fernandez' testimony is relevant to that question. The defendants also object to the further deposition of Hordusky in this matter. The plaintiff acknowledges that Hordusky has been deposed previously in this matter,*fn3 but asserts that further testimony is necessary to confirm the records provided by Ferrellgas on November 19, 2009 and to document all repairs and maintenance on the truck from January 2007 to November 24, 2009. (Docket No. 128 at ¶ 34-35).*fn4 Once relevance has been shown, it is up to the responding party to justify curtailing discovery. Condit, 225 F.R.D. at 106; Melendez, 2003 WL 22434101, at *1. "[T]he court must limit the frequency or extent of discovery" when:
(i) the discovery sought is unreasonably cumulative or duplicative, or can be obtained from some other source that is more convenient, ...