Opinion
Case No. A1-02-43
September 9, 2003
ORDER GRANTING THE DEFENDANTS' MOTION FOR A PROTECTIVE ORDER
Before the Court is the Defendants' Motion for a Protective Order filed on August 7, 2003. The Defendants seek an order which excuses them from contacting outside attorneys, claims adjusters, and investigators to aid in the search for documents regarding claims and lawsuits involving three-wheeled all-terrain vehicle (ATV) accidents. For the reasons outlined below, the Defendants' motion is granted.
I. BACKGROUND
On July 2003, the Court granted the Plaintiff's Motion to Compel Production of Documents as to the following:
REQUEST FOR PRODUCTION NO. 16 [same for all three defendants]: All documents relating to hazard or safety analysis of Kawasaki all-terrain vehicles prepared by or for the Kawasaki defendants.
REQUEST FOR PRODUCTION NO. 19 [same for all three defendants]: All documents relating to reports received or compiled by defendant of ATV accidents, ATV safety-related complaints, ATV associated injuries or ATV associated deaths involving Kawasaki all-terrain vehicle products and/or competitive products. Documents may include customer complaints, private investigative agency reports, Kawasaki employee reports, workers' compensation filings, IDI reports and/or memoranda by the Consumer Products Safety Commission or any other federal agency or committee.
On August 7, 2003, the Defendants filed a Motion for a Protective Order. The Defendants state that, due to the passage of time, they no longer have files for most claims or lawsuits stemming from accidents involving three-wheeled ATVs. However, the Defendants state that they can provide the Plaintiff with the names and addresses of claimants and their attorneys as well as information regarding the courts where these lawsuits were filed along with case captions and docket numbers. The Defendants have balked at the Plaintiff's demand that they contact outside attorneys, claims adjusters, and investigators who represented them on previous claims or lawsuits in an effort to locate the requested documentation. The Defendants contend that Rule 34 of the Federal Rules of Civil Procedure should not be construed so broadly and unreasonably as to require them to contact outside persons to search for documents, and that it would be unduly burdensome to engage in such a search.
II. LEGAL ANALYSIS
Parties may discover any relevant, unprivileged information that is admissible at trial or is reasonably calculated to lead to the discovery of admissible evidence. See Fed.R.Civ.P. 26(b)(1). However, the Court may, in its discretion, issue a protective order to prevent discovery where "justice requires to protect a party or person from annoyance, embarrassment, oppression or undue burden or expense." Fed.R.Civ.P. 26(c); see Schoffstall v. Henderson, 223 F.3d 818, 823 (8th Cir. 2000); Miscellaneous Docket Matter No. 1 v. Miscellaneous Docket Matter No. 2, 197 F.3d 922, 925 (8th Cir. 1999) (conferring broad discretion on the district court to decide when a protective order is appropriate and what degree of protection is required); General Dynamics Corp. v. Selb Mfg. Co., 481 F.2d 1204, 1212 (8th Cir. 1973) (stating that the issuance of a protective order is generally left to the district court's discretion); Phillips ex rel. Estates of Byrd v. General Motors Corp., 307 F.3d 1206, 1212 (9th Cir. 2002) (recognizing that trial courts are conferred with broad discretion when deciding whether a protective order is appropriate and what degree of protection is required).
Parties seeking a protective order carry the burden of showing that good cause exists to justify the issuance of such an order. See Fed.R.Civ.P. 26(c). A showing of good cause contemplates "a particular and specific demonstration of fact, as distinguished from stereotyped and conclusory statements." General Dynamics Corp. v. Selb Mfg. Co., 481 F.2d 1204, 1212; see also Phillips ex rel Estates of Byrd v. General Motors Corp., 307 F.3d 1206, 1210-11 (9th Cir. 2002). Thus, for good cause to exist, the parties seeking protection must show that specific prejudice or harm will result if no protective order is granted. See Phillips ex rel Estates of Byrd v. General Motors Corp., 307 F.3d 1206, 1210-11 (9th Cir. 2002); see also Beckman Indus., Inc. v. International Ins. Co., 966 F.2d 470, 476 (9th Cir. 1992) (holding that broad allegations of harm, unsubstantiated by specific examples or articulated reasoning, do not satisfy the Rule 26(c) test).
Rule 34 of the Federal Rules of Civil Procedure provides for the production of documents and things that are in the "possession, custody, or control" of the party whom a request for discovery is served. Fed.R.Civ.P. 34(a). The Defendants assert that the phrase "possession, custody, or control" as used by Rule 34 should not be construed broadly so as to require them to contact a multitude of outside sources in an attempt to acquire the information sought by the Plaintiff. The Defendants also contend that it would be unduly burdensome if they were required to ask outside persons to assist in the search of documents for the Plaintiff when the information is as easily obtainable by the Plaintiff as it is by the Defendants. The Defendants hypothesize that the outside persons may no longer have the requested information on file and would most likely demand compensation for their efforts. Finally, the Defendants assert that the Plaintiff should first try to obtain the information sought by contacting other claimant's or the plaintiff's attorneys, or the courts involved in litigation arising out of other three-wheeled all-terrain ATV accidents. The Court agrees.
The Defendants have informed the Court that they can identify the name(s) of prior claimants or plaintiffs; the names and addresses of the claimants or the plaintiffs' attorneys; and the court, caption, and docket numbers of all prior ATV lawsuits. The Court will require that this information be produced by the Defendants as offered. The Plaintiff can then conduct his own search for the requested information, at his expense, by simply contacting claimants or the plaintiffs' attorneys, or by contacting the clerks of the respective courts where previous actions were filed. Rule 26(b)(2)(i) provides that the Court may limit discovery when the discovery "is obtainable from some other source that is more convenient, less burdensome, or less expensive." By conducting his own search, the Plaintiff will have equal access to the requested information sought through discovery.
The Plaintiff should first contact the claimants or the plaintiffs' attorneys as well as the courts involved in other ATV accident litigation to obtain the requested discovery. It has been the Court's experience that plaintiff's attorneys who have handled similar litigation are generally willing to be of significant assistance to other plaintiff's attorneys in providing relevant documentation and information against a former adversary, and particularly a product manufacturer. Only after the Plaintiff has certified that he has contacted those sources provided by the Defendants and has been unable to find a demand letter or a complaint for a particular claim or lawsuit will the Court consider whether to require the Defendants to engage in the expansive search insisted upon.
III. CONCLUSION
The Defendant's Motion for a Protective Order (Docket No. 55) is GRANTED. The Defendants need not engage in the search insisted upon by the Plaintiff. The information the Plaintiff seeks is obtainable from other sources that are more convenient, less burdensome, and less expensive. All information regarding the identity of each claimant or plaintiff; the names and addresses of the claimants or the plaintiffs' attorneys; and the court, caption, and docket numbers of all prior ATV litigation shall be produced by the Defendants as offered.
IT IS SO ORDERED.