IN THE UNITED STATES DISTRICT COURT FOR THE EASTERN DISTRICT OF CALIFORNIA
July 19, 2010
RICHARD ADAMS, PLAINTIFF,
THYSSENKRUPP SAFEWAY, INC., AND DOES 1 THROUGH 60, INCLUSIVE, DEFENDANTS.
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 it must consist of non-destructive testing. (Id., Ex. K.) Plaintiff also referenced defendant's alleged prior attempts to take the evidence at issue.
On June 3, 2010, plaintiff sent a letter to J.L. Bray referencing the subpoena, asserting that plaintiff would be filing a motion for a protective order seeking to prevent the removal and transport of the plank pieces, and stating: "In the meantime, you are not authorized to release this evidence, nor do the attorneys or representatives of Thyssenkrupp Safeway have the authorization to remove this evidence from your possession." (Joint Statement, Ex. E.) In response to this letter, defendant contacted plaintiff and reasserted its position regarding custody of the pieces of plank and its suggestion of a stipulated transfer. (Id., Ex. H.)
Plaintiff filed his motion for a protective order on June 9, 2010.*fn4 (Dkt. No. 13.) In light of the pending motion, it appears no stipulation was ever agreed to by the parties.
On June 17, 2010, defendant issued a Second Amended Subpoena in a Civil Case with reference to the pieces of plank, which noticed a production date of July 7, 2010, again at defendant's Benicia location. (Joint Statement, Ex. D.) The amended subpoena contained the same or similar statement contained in the original subpoena regarding production, nondestructive testing, and custody of the pieces of plank. (Id.)
Also on July 17, 2010, defendant transmitted a letter to plaintiff summarizing its position for the purpose of preparing the parties' joint statement. (Joint Statement, Ex. I.) On July 15, 2010, the parties filed a timely joint statement re discovery disagreement. (Dkt. No. 15.)
A. Plaintiff's Motion for Protective Order
Federal Rule of Civil Procedure 26(b) states that "[p]arties may obtain discovery regarding any non-privileged matter that is relevant to any party's claims or defense." It further provides that "[r]elevant information need not be admissible at the trial if the discovery appears reasonably calculated to lead to the discovery of admissible evidence." Id. However, there are some limits to these general discovery principles. Pursuant to Federal Rule of Civil Procedure 26(c)(1), "[t]he court may, for good cause, issue an order to protect a party or person from annoyance, embarrassment, oppression, or undue burden or expense."*fn5 The party seeking the protective order has the burden "to 'show good cause' by demonstrating harm or prejudice that will result from the discovery." Rivera v. NIBCO, Inc., 364 F.3d 1057, 1063 (9th Cir. 2004) (citation omitted); see also Beckman Indus., Inc. v. Int'l Ins. Co., 966 F.2d 470, 476 (9th Cir. 1992) ("Broad allegations of harm, unsubstantiated by specific examples or articulated reasoning, do not satisfy the Rule 26(c) test" (citation and quotation marks omitted)). "'If a court finds particularized harm will result from disclosure of information to the public, then it balances the public and private interests to decide whether a protective order is necessary.'" Rivera, 364 F.3d at 1063-64 (quoting Phillips ex rel. Estates of Byrd v. Gen. Motors Corp., 307 F.3d 1206, 1211 (9th Cir. 2002)).
Federal Rule of Civil Procedure Rule 26(c) "confers broad discretion on the trial court to decide when a protective order is appropriate and what degree of protection is required."
Seattle Times Co. v. Rhinehart, 467 U.S. 20, 36 (1984) (stating also that the "[t]he unique character of the discovery process requires that the trial court have substantial latitude to fashion protective orders"); see also Unigard Sec. Ins. Co. v. Lakewood Eng'g & Mfg. Corp., 982 F.2d 363, 368 (9th Cir. 1992) ("This circuit has recognized as part of a district court's inherent powers the broad discretion to make discovery and evidentiary rulings conducive to the conduct of a fair and orderly trial" (citation and quotation marks omitted).). Although the protective order sought by plaintiff does not fit squarely within the language of the rule, district courts have entered protective orders in order to preserve physical evidence that might be needed for trial.*fn6 See, e.g., Jeld-Wen, Inc. v. Nebula Glasslam Int'l, Inc., 248 F.R.D. 632, 641-42 (S.D. Fla. 2008) (entering a protective order to preserve physical evidence in the form of windows relevant to the litigation); Pitts v. Bridgestone Americas Holdings, Inc., No. Civ.A. 206CV1008-MEF, 2007 WL 1040510, at *1 (M.D. Ala. Mar. 30, 2007) (unpublished) (entering a protective order prohibiting parties from "disposing of, selling, materially altering or changing, or conducting destructive testing on the vehicle or the tires, rims, hubs, and valve stems that were on the vehicle at the time of the accident . . . ."); Wilson v. Lee, No. 01 C 5773, 2001 WL 1135900, at *7 (N.D. Ill. Sept. 24, 2001) (unpublished) (entering a protective order directing that prison officials preserve videotape and photographic evidence until the final disposition of the case).
Here, plaintiff has made a showing of good cause sufficient to warrant the entry of a protective order to preserve the pieces of plank for trial and to preclude the transport of that evidence outside the State of California. The pieces of plank are central to this case, and plaintiff would suffer particularized prejudice if the planks were lost, damaged, destroyed, or otherwise materially altered while being transported out of state by defendant. Additionally, it appears that both parties require access to the pieces of plank to conduct further non-destructive and destructive testing, and that neither party has yet completed efforts in this regard. Again, damage or destruction of the pieces of plank during transport would thwart these efforts. Furthermore, defendant has provided no explanation regarding why the evidence must be transported out of state or why any non-destructive or destructive testing could not be sufficiently completed in California. Accordingly, the undersigned will enter a protective order prohibiting defendant from transporting the pieces of scaffolding plank at issue outside of the State of California.
However, plaintiff has not provided the court with a persuasive reason regarding why this evidence should remain with J.L. Bray, a third party and potential witness in this case. Defendant is the undisputed owner of this evidence and is entitled to its possession. In addition, defendant has offered to maintain a record of the chain of custody with respect to the pieces of plank. Accordingly, the protective order will further require that the parties arrange for the transfer of the pieces of scaffolding plank from J.L. Bray to defendant. Defendant will be required to store the pieces of plank at its Benicia, California, location or another location within the State of California that is agreeable to both parties. Defendant will also be required to store the pieces of plank in a manner conducive to the preservation of the condition of those pieces of plank for trial. Finally, defendant must maintain a record of the chain of custody of the pieces of plank and provide plaintiff with reasonable access to the evidence for visual inspection or nondestructive testing, and any destructive testing to which the parties agree.
The undersigned shares plaintiff's concerns regarding defendant's prior attempts to remove the pieces of plank, although not to the same degree as plaintiff. The undersigned is also concerned about any possible damage to the evidence prior to trial. However, plaintiff has a recourse should defendant lose, destroy, damage, or otherwise materially alter the pieces of scaffolding plank. Plaintiff may request that the court impose evidentiary sanctions for the destruction or spoliation of evidence. See, e.g, Cont'l Cas. Co. v. St. Paul Surplus Lines Ins. Co., 265 F.R.D. 510, 533 (E.D. Cal. 2010) ("The court has the inherent authority to impose evidentiary sanctions based on destruction or spoliation of evidence."). Although this might not be a perfect remedy for plaintiff, it should provide sufficient motivation for defendant to properly and adequately preserve the pieces of scaffolding plank at issue.
B. Plaintiff's Request for Fees and Costs
Plaintiff's counsel seeks $4,700.00 in attorneys' fees and costs pursuant to Federal Rule of Civil Procedure 37(a)(5). (Mot. for Protective Order at 9-10; Right-hand Decl. ¶ 17.) Defendant did not respond to this request for an award of fees and costs in the parties' Joint Statement.
Federal Rule of Civil Procedure 37(a)(5) provides:
(5) Payment of Expenses; Protective Orders.
(A) If the Motion Is Granted (or Disclosure or Discovery Is Provided After Filing). If the motion is granted--or if the disclosure or requested discovery is provided after the motion was filed--the court must, after giving an opportunity to be heard, require the party or deponent whose conduct necessitated the motion, the party or attorney advising that conduct, or both to pay the movant's reasonable expenses incurred in making the motion, including attorney's fees. But the court must not order this payment if:
(i) the movant filed the motion before attempting in good faith to obtain the disclosure or discovery without court action;
(ii) the opposing party's nondisclosure, response, or objection was substantially justified; or
(iii) other circumstances make an award of expenses unjust.
The undersigned concludes that the award of reasonable expenses to plaintiff is not warranted in this case. First, plaintiff's motion does not involve a refusal of discovery by defendant, and defendant made legitimate efforts to resolve this dispute outside of court. Second, the court will only grant plaintiff's motion in part, and defendant will be permitted to retain possession of the evidence. Moreover, the protective order will include a provision regarding a documented chain of custody that defendant had offered at the outset of this dispute. Thus, defendant's position was in most respects substantially justified. Finally, the award of reasonable expenses would be unjust here. First, plaintiff's counsel needlessly duplicated his efforts. A substantial amount of plaintiff's counsel's time appears to have been devoted to preparing an initial memorandum of points and authorities in support of plaintiff's motion, but this court clearly requires a Joint Statement Re Discovery Dispute, see Local Rule 251, which the parties subsequently prepared. Second, plaintiff's initial memorandum and the Joint Statement were largely devoid of legal authorities that would have assisted the court in assessing the propriety of the protective order sought. Under these circumstances, it would be unjust to award plaintiff with attorney's fees or costs. Accordingly, plaintiff's request for attorney's fees and costs will be denied.
For the foregoing reasons, IT IS HEREBY ORDERED that:
1. Plaintiff's motion for a protective order (Dkt. No. 13) is granted in part.
2. Plaintiff and defendant, in consultation with J.L. Bray & Son, Inc., shall arrange for the transfer of the two pieces of scaffolding plank at issue from J.L. Bray & Son, Inc. to defendant on or before July 30, 2010, which is the date of the parties' discovery completion deadline.
3. Defendant may not transport the pieces of scaffolding plank outside of the State of California, except with prior approval from plaintiff or an order of this court.
4. Defendant shall store the pieces of scaffolding plank at its Benicia, California, location, or another location in the State of California agreed to by both parties.
5. Defendant shall store the pieces of scaffolding plank in a manner conducive to the preservation of the condition of those pieces of scaffolding plank for trial.
6. Defendant shall maintain a record of the chain of custody of the pieces of scaffolding plank and provide plaintiff with reasonable access to this evidence for visual inspection or non-destructive testing, and mutually agreed upon destructive testing.
7. This protective order shall remain in effect until the conclusion of this litigation, including termination of any appeal.
8. Plaintiffs' request for attorney's fees and costs is denied.
IT IS SO ORDERED.