The opinion of the court was delivered by: Hon. Hugh B. Scott
Before the Court are the parties' discovery motions in two related personal injury actions, Blundon v. Goodyear Dunlop Tires North America Ltd., No. 11CV990 (hereinafter "Blundon"), and Griffith v. Goodyear Dunlop Tires North America Ltd, No. 09CV761S ("Griffith"). Both sets of plaintiffs retained the same counsel and the motions and responses filed are virtually identical. For judicial efficiency, this Court will consider the motions in both cases in this Order. Where a docket number for an item is given without a case name, the item is from the Blundon case.
First is plaintiffs' motion to compel inspection of defendant's Tonawanda, New York, tire plant (Blundon, Docket No. 22)*fn1 . Then defendant filed a series of motions, either to compel production from plaintiffs of the tire and rims in the accident at issue (Blundon, Docket No. 24)*fn2 , or for Protective Orders against disclosing confidential documents (Blundon, Docket No. 25)*fn3 , or against inspection of its plant (Blundon, Docket No. 26)*fn4 . A similar set of motions were filed in Griffith (Docket Nos. 14 (plaintiffs' motion to compel), 16 (defendant's. motion to compel production of tires, rims), 17 (defendant's motion for Protective Order re documents), 19 (defendant's second motion for Protective Order re plant inspection)) by the same counsel as in Blundon.
Responses to the first motion initially were due by June 18, 2012 (Blundon, Docket No. 23), but were rescheduled as the other motions were filed in both cases. Responses to all motions then were due by June 22, 2012, with any replies due by June 29, 2012, and the motions in both cases submitted as of June 29, 2012 (Blundon, Docket No. 27; Griffith, Docket No. 20).
Both cases are removed diversity product liability actions arising from automobile accidents where defendant's tires allegedly failed. In Blundon, plaintiff Leslie Blundon was driving a Harley Davidson motorcycle with Laura Heinen as a passenger (see Blundon, Docket No. 24, Def. Memo. at 2). A Dunlop D402 tire manufactured by defendant was on the rear wheel of that motorcycle (see id.). Plaintiffs contend that the rear tire deflated without warning, causing loss of control and the motorcycle crashed, injuring plaintiffs (id.).
In Griffith, on or about April 24, 2005, plaintiff Daniel Griffith purchased a 2005 Harley Davidson motorcycle with a Dunlop D402 rear tire and purchased a new D402 rear tire on October 4, 2007 (Griffith, 11CV761, Docket No. 1, Notice of Removal, Ex. 1, Compl. ¶¶ 7, 8). On or about July 29, 2009, the Griffiths were riding on that motorcycle in California when the rear tire suddenly deflated causing loss of control and crashing the motorcycle (id. ¶ 9).
On March 15, 2012, a joint Scheduling Conference was held for both cases (Blundon, Docket No. 16; Griffith, Docket No. 8) and Scheduling Orders were entered with common deadlines (Blundon, Docket No. 17; Griffith, Docket No. 9). According to the Scheduling Orders, plaintiffs' expert disclosure is due by February 1, 2013; defense expert disclosure by March 15, 2013; discovery concludes by March 29, 2013; and dispositive motions are due by June 28, 2013 (Blundon, Docket No. 17; Griffith, Docket No. 9).
Plaintiffs' Motion to Compel and Defense Motion for Protective Order and Defendant's Plant Plaintiffs in both cases seek to inspect defendant's North Tonawanda, New York, plant pursuant to Federal Rule of Civil Procedure 37(a)(3(B)(iv) (Blundon, Docket No. 22; Griffith, Docket No. 14), while defendant cross moves for a Protective Order against such an inspection without conditions (Blundon, Docket No. 26; Griffith, Docket No. 19). Plaintiff served their request for discovery and inspection on or about March 21, 2012, to be held on a mutually convenient date by April 30, 2012 (Blundon, Docket No. 22, Pls. Memo. at 1). Defendant had not responded to this request (id.). Plaintiffs first argue that defendant waived any objection because it failed to respond to the request (id. at 1-2). They contend that the inspection of the plant is material and relevant to their claims (id. at 2-4). They argue that defendant's proposed "blanket Protective Order" as a precondition to conducting this inspection is unwarranted (id. at 4-5). In response to the crossing motion for a Protective Order against this inspection, plaintiffs cite CPLR 3101(a) to justify their need to inspect defendant's plant, where a defective design, manufacture, testing, and construction action makes inspection of the place and process of manufacture material and necessary to plaintiffs' claims (Blundon, Docket No. 31, Pls. Memo. at 4-5).
In its motion for a Protective Order against the inspection of its plant, defendant argues that an inspection of the plant is unwarranted and unnecessary, potentially revealing defendant's trade secrets and other confidential and proprietary information (Blundon, Docket No. 26, Def. Memo. at 1).
Defense Motion for Second Protective Order
Defendant also moves for a Protective Order against disclosure of confidential and proprietary documents (Blundon, Docket No. 25; Griffith, Docket No. 17). Defendant has successfully obtained similar Protective Orders in 34 different cases in seven other federal courts (Blundon, Docket No. 25, Def. Memo. at 1).
Plaintiffs concede that some information is confidential but argue that defendant's proposed Protective Order here is "draconian" and unacceptable ...