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Manzo v. Stanley Black & Decker, Inc.

United States District Court, E.D. New York

March 30, 2017

CHARLES MANZO, Plaintiff,
v.
STANLEY BLACK & DECKER, INC., BLACK & DECKER U.S. INC., and WOLFE MACHINERY CO., Defendants. STANLEY BLACK & DECKER, INC. and BLACK & DECKER U.S. INC., Cross-claimants,
v.
WOLFE MACHINERY CO., Cross-defendant. WOLFE MACHINERY CO., Cross-claimant,
v.
STANLEY BLACK & DECKER, INC. and BLACK & DECKER U.S. INC., Cross-defendants. STANLEY BLACK & DECKER, INC., BLACK & DECKER U.S. INC., and WOLFE MACHINERY CO., Third Party Plaintiffs,
v.
CVD EQUIPMENT CORPORATION, Third Party Defendant. CVD EQUIPMENT CORPORATION, Counter-claimant,
v.
STANLEY BLACK & DECKER, INC., BLACK & DECKER U.S. INC., and WOLFE MACHINERY CO., Counter-defendants.

          MEMORANDUM AND ORDER

          STEVEN I. LOCKE UNITED STATES MAGISTRATE JUDGE

         Presently before the Court is Plaintiff Charles Manzo's (“Plaintiff” or “Manzo”) Motion to Compel non-party Department of Labor (“DOL”), Occupational Safety and Health Administration (“OSHA” or the “Non-Party”) to comply with a subpoena dated March 27, 2015 (the “Subpoena”) demanding the production of documents and a deposition of a Federal Rule of Civil Procedure (“Fed. R. Civ. P.”) 30(b)(6) witness in connection with OSHA's inspection of an accident that occurred when Plaintiff was injured by a radial arm saw. See Notice of Motion (“Notice of Motion”), Docket Entry (“DE”) [65]. OSHA, which has appeared in this matter as an interested party through the United States Attorney for the Eastern District of New York, opposes the Motion to Compel in its entirety and cross-moves to quash the Subpoena. See Memorandum of Law in Opposition to Plaintiff's Motion to Compel and In Support of Non-Party Department of Labor's Cross-Motion to Quash (“OSHA's Mem. Law”), DE [67].

         Defendants Stanley Black & Decker, Inc. (“Stanley Black & Decker”) and Black & Decker (U.S.) Inc. (“Black & Decker (U.S.)”) partially support Plaintiff's Motion to Compel and oppose OSHA's Cross-Motion to Quash, and Defendant Wolfe Machinery Co. (“Wolfe, ” and collectively “Defendants”) joins Plaintiff's motion only as to compelling an OSHA employee to testify at a deposition. See August 31, 2016 Wolfe Letter (“8/31/2016 Wolfe Letter”), DE [63]; September 26, 2016 Affidavit of Robert A. Calinoff (“9/26/2016 Calinoff Decl.”), DE [72]. For the reasons set forth herein, Manzo's Motion to Compel is denied without prejudice and with leave to renew, and OSHA's Cross-Motion to Quash is granted.

         I. BACKGROUND

         The Court accepts the following facts for the purpose of this motion.

         A. The Parties

         Plaintiff is a resident of Suffolk County who commenced this action in connection with injuries he suffered when he was operating a DeWalt 16” radial arm saw, Model Number 3526 Type 4 (the “DeWalt Saw”). See Amended Complaint (“Am. Compl.”), DE [18], ¶¶ 1, 10. Defendants Stanley Black & Decker, a Connecticut corporation, and Black & Decker (U.S.), a Maryland corporation, are designers, manufacturers, distributors, and sellers of power tools including DeWalt radial arm saws. Id. at ¶¶ 2-5. Defendant Wolfe, incorporated under the laws of Iowa, “remanufactures, refurbishes, reconditions, [and] distributes power tools, including radial arm saws under the DeWalt trademark.”[1] Id. at ¶¶ 6-7.

         B. Plaintiff's Claims

         This action stems from injuries Manzo sustained while he was operating the DeWalt Saw. Although the Amended Complaint does not state the nature of his work, on July 12, 2010, Plaintiff was operating the machine during the course of his employment when it “unexpectedly and rapidly pulled the woodwork and Manzo's guide hand into the activated saw blade.” Id. at ¶ 19. The malfunction resulted in the amputation of a significant portion of Manzo's index and middle fingers. Id. at ¶ 20.

         The day after the accident, an OSHA Compliance Safety Health Officer inspected the DeWalt Saw and the worksite where Manzo was injured (the “Inspection”). See Attorney Declaration (“Certain Decl.”), DE [66], at Ex. 4, U.S. Department of Labor OSHA Inspection Report (“Inspection Report”), DE [66-4]. In connection with that investigation, the OSHA officer completed an Inspection Report and took pictures of the DeWalt Saw, three of which are attached to the report. See id.[2]

         Three years later on July 12, 2013, Plaintiff commenced this action against Defendants, amending the Complaint six months later. See Complaint (“Compl.”), DE [1]; Am. Compl. Manzo alleges claims for negligence, breach of warranty, and strict products liability in connection with Defendants' purported designing, manufacturing, inspecting, testing, servicing, remanufacturing, supplying, selling, assembling and distributing of the DeWalt Saw. See generally Am. Compl. Plaintiff claims that his employer had purchased the DeWalt Saw which “bears labeling and commercial marks of defendants, ” and was “refurbished, reconditioned, distributed and sold” by Wolfe. See Id . at ¶¶ 11, 15. In support of his contention that Wolfe refurbished the machine, Manzo points to a Wolfe sticker located on the left side of the DeWalt Saw guard. See Certain Decl. at Ex. 3, Photograph of Subject Saw (the “Photograph”), DE [66-3]. Wolfe denies that it ever refurbished the machine. See Answer to Amended Complaint (“Wolfe Answer”), DE [19], ¶ 1. However, as none of the pictures taken by OSHA depict the left side of the DeWalt Saw, whether the sticker was placed on the machine before or after the accident remains unclear.

         C. The Current Dispute

         1. The Subpoena

         On April 9, 2015, Plaintiff served the Subpoena on OSHA demanding the production of documents and a Rule 30(b)(6) witness for a deposition in connection with the Inspection. See Certain Decl. at Ex. 5, Subpoena to Compel Non-Party Deposition(s) and Production of Documents and Things Pursuant to Rules 45, 30(b)(6) and 34(c), DE [66-5]. Manzo demanded testimony of a witness with knowledge of the identity, observations, and findings of the OSHA employee who conducted the Inspection, as well as familiarity with other general OSHA investigations, procedures, and retention policies. See Id . Plaintiff also sought the production of documents related to the Inspection and worksite, as well as documents regarding other DeWalt radial arm saws of the same model. Id. The Subpoena, which was unaccompanied by any other documents, was returnable on April 17, 2015. Id.

         OSHA did not respond to the Subpoena by the return date. Shortly thereafter, counsel for OSHA explained to Plaintiff's attorney via email that she was unable to review the request because Manzo failed to comply with regulatory prerequisites for when a party seeks discovery from a federal agency that is a non-party to a lawsuit. See Declaration of Diane C. Sherman (“Sherman Decl.”), DE [68], at Ex. B, Email dated April 14, 2015 (“4/14/2015 Email); Ex. C., Email dated April 24, 2015 (“4/24/2015 Email”). OSHA memorialized these requirements in a formal letter to Manzo's counsel dated May 19, 2015, where it explained that the prerequisites are lawful pursuant to United States ex rel. Touhy v. Ragen, 340 U.S. 462, 71 S.Ct. 416 (1951) and codified under 29 C.F.R. § 2.21 (hereinafter referred to as the “DOL Touhy Regulations.”). See Certain Decl. at Ex. 7, May 19, 2015 Letter (“5/19/2015 Letter”), DE [66-7]. OSHA's counsel explained that the DOL Touhy Regulations require that when discovery is requested from the DOL, the requesting party must provide a written summary demonstrating that “the information sought is both relevant and essential to the presentation of his or her case, there are not reasonable alternative means for acquiring the information sought, and that a significant injustice would ensue if the desired testimony or records were not to be made available.” See Id . (quoting Herr v. McCormick Grain-Heiman Co., No. 92-1321, 1994 WL 324558, at *2 (D. Kan. June 28, 1994)).

         OSHA claimed that Manzo failed to set forth a written statement summarizing this information. Id. As such, it objected to the production of a 30(b)(6) witness, noting, however, that it would reconsider the deposition request if Plaintiff “provide[s] the required information to this office.” Id. Regarding the production of documents, OSHA did agree to produce, as a “courtesy, ” the “entire unredacted case file.” Id. This includes the three pictures taken by OSHA, and its counsel indicated that these were the only three pictures in the agency's possession. See Certain Decl. at Ex. 8, May 19, 2015 E-mail (“5/19/2015 E-mail”), DE [66-8]. One month later, after Plaintiff requested digital versions of the pictures, OSHA sent Manzo color printed copies of the same three photographs. See August 22, 2016 Letter Motion (“8/22/2016 OSHA Motion”), DE [61], 2.

         2. Subsequent Motion Practice

         Over one year later in August 2016, Manzo filed a letter motion with this Court seeking to compel OSHA to comply with the portion of the Subpoena requesting that an employee be produced for a deposition. See Plaintiff's July 25, 2016 Letter Motion (“Pl.'s 7/25/2016 Letter Motion”), DE [57]. The Black & Decker Defendants joined in the motion, further asserting without citation or support that “the OSHA inspector's photographs have been spoliated by the agency, ” as they were previously “advised that many other photographs have been destroyed.” See Black & Decker Defendants' July 26, 2016 Letter (“Black & Decker Def.'s 7/26/2016 Letter”), DE [58]. No party, however, served a copy of the letter motion on OSHA, and, as a result, the Court declined to rule. See Minute Order (“7/27/2016 Minute Order”), DE [59]. Instead, the Court instructed Manzo to serve his motion, or a revised version thereof, on all interested parties including OSHA on or before August 17, 2016.[3] Id.

         Plaintiff thereafter served on OSHA his fully briefed Motion to Compel, which only addresses the failure to produce a witness for a deposition and not the production of documents. See Memorandum of Law in Support of Plaintiff's Motion to Compel Non-Party Occupational Safety and Health Administration (“Pl.'s Mem. Law”), DE [65-1]. In his motion, Manzo argues that he complied with the DOL Touhy Regulations, but that the Non-Party refused to produce an employee for a deposition and “apparently discarded additional photographs.” Id. at 2-3. Plaintiff explains that the deposition is necessary because the OSHA employee is potentially the only person who may know whether the DeWalt Saw was marked by the Wolfe sticker before the date of the accident, important to liability in this matter. See Id . at 3-4. The Black & Decker Defendants joined in this motion, again asserting that OSHA “spoliat[ed]” photographs.” See August 24, 2016 Affidavit of Robert A. Calinoff (“8/24/2016 Calinoff Decl.”), DE [62]; 9/26/2016 Calinoff Decl.

         Prior to serving any opposition, the United States Attorney, on behalf of OSHA, sent a letter to Plaintiff requesting that he withdraw his motion, again asserting that the Non-Party was unable to respond to his requests due to a lack of compliance with the DOL Touhy Regulations. See Declaration of Assistant U.S. Attorney Rukhsanah Singh ...


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