The opinion of the court was delivered by: Kendall J. Newman United States Magistrate Judge
Presently before the court is plaintiff's motion for a protective order seeking to prevent defendant from: (1) removing certain physical evidence, a scaffolding plank broken in two pieces, from the possession of a third party; (2) transporting the pieces of plank outside of the State of California, as defendant has suggested it would do; and (3) conducting any destructive testing of the pieces of plank.*fn1 (See Dkt. Nos. 13, 15.) Plaintiff also seeks $4,700.00 in attorneys' fees and costs.
Having concluded that oral argument would not assist the court, the undersigned hereby submits plaintiff's motion on the briefs and record on file. The undersigned has fully considered the parties' briefs and the record in this case and, for the reasons that follow, grants plaintiff's motion for a protective order and denies plaintiff's request for attorneys' fees and costs.
Plaintiff alleges that he was employed as a plasterer for W.F. Hayward Company and that, on or around March 1, 2007, he suffered personal injuries at a job site when he stepped on a scaffolding plank and it snapped into two pieces. The two pieces of scaffolding plank involved in the incident are the subject of plaintiff's motion. Defendant is alleged to have provided and installed the scaffolding at the job site, and it is undisputed that defendant owns the pieces of plank at issue.
J.L. Bray & Son, Inc. ("J.L. Bray"), a non-party that was the general contractor on the subject job, currently possesses the pieces of the plank. J.L. Bray is located in Salida, California, and both parties appear to have unfettered access to the evidence. Plaintiff represents that defendant intends to transfer the pieces of plank to Wisconsin for visual inspection and nondestructive testing if it is permitted custody of that evidence. (Right-hand Decl. ¶ 16 & Ex. E.)*fn2
It appears that defendant attempted to remove the pieces of plank at issue on the day plaintiff was allegedly injured. According to deposition testimony submitted by the parties, an individual believed to be defendant's representative, a superintendent, attempted to remove the plank pieces but was stopped by Bruce Cole, an employee or agent of J.L. Bray. (Joint Statement re Discovery Dispute ("Joint Statement"), Exs. L, M, Dkt. No. 15.) Mr. Cole placed the evidence in J.L. Bray's trailer at the job site. (Id., Ex. L.)
On February 24, 2009, plaintiff filed a complaint in Sacramento Superior Court. Defendant subsequently removed this action to federal court. (Dkt. No. 1.)
Jack Bray, of J.L. Bray, was deposed in this case on March 26, 2010. (See Joint Statement, Ex. B.) He brought the subject plank pieces to his deposition and offered to release them to one of the parties. (Id.) Neither party left the deposition with the evidence. In the parties' Joint Statement, defendant asserts, unsupported by documents or declarations, that Mr. Bray would like to release the evidence to defendant. (Joint Statement at 4:2-3.) Plaintiff's portion of the Joint Statement states that "Mr. Bray has not objected to retaining custody of the subject planks." (Id. at 7:23.)
According to a letter from plaintiff, defendant allegedly noticed an inspection of the pieces of scaffolding plank for May 24, 2010, at J.L. Bray's location. Plaintiff alleges that defendant again attempted to remove the plank pieces during this scheduled inspection, and that Mr. Bray prevented defendant from doing so. (Joint Statement, Ex. J.)
On May 27, 2010, defendant issued a subpoena to J.L. Bray seeking the production for inspection of the two pieces of scaffolding plank on June 16, 2010, at what the parties appear to agree is defendant's site in Benicia, California. (Joint Statement, Ex. C.) With regard to the command for production, the subpoena included the following: "The two pieces of plank which are the subject of this litigation and owned by ThyssenKrupp Safeway, Inc., previously marked as Exhibits 6A and 6B at your deposition on March 26, 2010. Nondestructive testing will be completed by employees of ThyssenKrupp Safeway, Inc., at a different location. Custody of the plank will remain with ThyssenKrupp." (Id.)
Also on May 27, 2010, defendant sent a letter to plaintiff wherein it asserted ownership of the plank pieces and notified plaintiff that it intended to take custody of the plank pieces, conduct non-destructive testing similar to that conducted by plaintiff,*fn3 and retain custody of the pieces of plank and maintain a record of the chain of custody. (Joint Statement, Ex. F.)
Defendant also offered to effectuate this transfer of the physical evidence by stipulation. (Id., Exs. F, G.)
On May 28, 2010, plaintiff sent a letter to defendant asserting that he "was unwilling to allow anyone to take possession of the evidence . . . for reasons pertaining to both chain of custody and evidence tampering." (Joint Statement, Ex. J.) This letter also references the inspection alleged to have been noticed by defendant for May 24, 2010. (Id.) Plaintiff sent another meet-and-confer letter to defendant on June 2, 2010, wherein plaintiff stated that he was "receptive to [defendant's] efforts to inspect the boards," but that the inspection must occur at J.L. Bray's location and ...