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In Re Lonnie Everett Owen, Sr. v. Western Outdoor News

October 9, 2012


The opinion of the court was delivered by: Gregory G. Hollows United States Magistrate Judge



Pending before the Court is cross-defendant Buchholz's ("Buchholz") motion for protective order regarding cross-plaintiff Hedrick's (Hedrick) discovery requests, filed on August 23, 2012. Dkt. 89. The deadline by which all discovery must be completed in this matter is December 14, 2012. Dkt. 72.

This personal-injury lawsuit arises from a boating accident on August1, 2009 in which cross-plaintiff Richard Hedrick's ("Hedrick") boat collided with plaintiff-in-limitation Lonnie Owen's ("Owen") boat.*fn1 Dkt. 90. At the time of the incident, Owen was participating in a fishing tournament ("the tournament") sponsored by cross-defendant Snagproof. Id. Cross-defendant Gene Buchholz ("Buchholz") asserts that he participated in the tournament only as a "starter," announcing when the boats would begin the tournament. Id. Buchholz also operates a bait and tackle shop - Hook, Line & Sinker - at the organizational or operational site of the fishing tournament. The property, which Buchholz runs his shop from, is leased from cross-defendant Russo's Marina, Inc. ("Russo"). Cross-plaintiff Hedrick alleges claims of negligence against Buchholz.

In connection with these claims, Hedrick served written discovery upon cross-defendant in the form of requests for production ("RFPs") and for admission ("RFAs"). RFAs were served on June 12, 2012 and cross-defendants responded on July 12, 2012. Dkt. 90. On June 3, 2012, Hedrick noticed Buchholz's deposition and served cross-defendant with RFPs. Id. Counsel met and conferred by telephone on July 27, 2012 regarding the subject of the RFAs and the RFPs but were unable to reach a compromise on either. Id. In compliance with the Local Rules, the parties filed a joint statement setting forth the basis and precise issues of their discovery dispute. Dkt. 90. On September 20, 2012, the court conducted a hearing on this matter in which Arnold Berschler appeared telephonically for cross-plaintiff Hedrick and Marilyn Raia appeared in person for cross-defendant Buchholz. After conducting oral argument and review of the parties' briefs, the court orders as follows.


Before turning to the disputed discovery, it is necessary to address one procedural issue in this case that is pertinent to the scope of discovery. On October 3, 2012, the District Judge denied cross-defendant Russo's motion for summary judgment in which Russo argued that it owed no duty to cross-complainants because of its limited involvement in the fishing tournament. Dkt. 99 (denying motion with prejudice). Cross-defendant Buchholz maintains the same position with respect to cross-plaintiff Hedrick. At hearing, discussion was held over what was meant by denying the motion; particularly, whether Weiram v. RKO General, Inc., 15 Cal.3d 40 (1975) would apply to the facts of this case. Sept. 20, 2012 Hr'g at 10:00am. Weiram is a case which Hedrick cites in support of the argument that a legal duty may be imposed upon cross-defendants in light of their role in the fishing tournament. See Dkt. 76. Weiram stands for the general proposition that contest sponsors or managers may be held liable for setting in motion a scenario where persons competing in the contest may foreseeably perform negligent acts. Cross-defendants Russo and Buchholz seek to distinguish that case from the facts presented here, arguing that the duty imposed by the Weiram court would be misapplied to the instant litigation. That is, cross defendants believe that their role in the contest was so de minimis in contrast to the radio station in Weirum that it would be unfair to permit broad discovery based on that case. Hedrick, on the other hand, desires, among other things, discovery directed to the benefits which were received by cross-defendants -- the more benefits, the greater the potential role of "sponsor," or "manager," and hence the more likely the application of Weirum.

The district judge's order (Docket # 99) denying Russo's summary judgment motion did not discuss Weiram or any of the legal theories introduced by any party in support of its position. It merely found that material issues of fact exist which did not permit summary adjudication. Therefore, whether Russo's or Buchholz owed a duty to cross-plaintiffs is an issue still at play in this case, and is ultimately dependent on the facts set forth at trial. On the other hand, Fed. R. Civ. P 26(b)(2)(C) requires that the discovery judge engage in some weighing of the benefits vis-a-vis burdens of discovery, and this cannot be done without taking a peek at the merits, despite the protestations of Hedrick's counsel that the undersigned would be exceeding his authority if such a peek were made.

At this stage of the case, given the competing assertions of the parties, and after taking the requisite peek, the undersigned is bound to allow some discovery on the Weirum theory, although it is clear that the present cross-defendants are hardly in the same position of the Weirum radio station defendant which created, sponsored, and managed the contest involved therein. Accordingly, Hedrick is entitled to non-overly burdensome discovery on his side of this claim.

Requests for Production

Nineteen RFPs remain in dispute. They relate, generally, to two categories of information which cross-plaintiffs seek to discover: (1) business records, including sales transactions, from Buchholz's bait shop at Russo's Marina and (2) documents relating to Buchholz's participation in fishing tournaments unrelated to the one giving rise to the instant litigation. Cross-defendant Buccholz objects that these requests seek information entirely irrelevant to whether Buccholz was personally negligent.

Fed. Rule Civ. Pro. 26(b)(1) allows discovery of any non-privileged matter that is relevant to any party's claim or defense. The discovery rules are to be accorded a broad and liberal treatment allowing a party to inquire into the facts underlying its opponent's case. See Hickman v. Taylor, 329 U.S. 495, 507, 67 S.Ct. 385, 392 (1947) (a chief argument against the 'fishing expedition' objection is the idea that discovery is mutual). Evidence is relevant if it has any tendency to make a fact of consequence more or less probable than it would be without the evidence. Fed. R. Evi. 401(emphasis added). Determining which facts and matters are 'of consequence' depends upon the claims alleged. See Moore v. Donahoe, 460 Fed. Appx. 661, 663 (9th Cir. 2011) (upholding district court's determination, after conducting a fact-intensive inquiry under Fed. R. Evid. 401, that evidence was not relevant to plaintiff's claim).

However, as previously stated, acting as a backstop to the scope and extent of discoverable information is Fed. R. of Civ. Pro. 26(b)(2)(C), which requires the court to limit the frequency or extent of discovery upon determining that the burden or expense of the proposed discovery outweighs its likely benefit, considering the needs of the case, the importance of the issues at stake and of discovery in resolving those issues. See Fed. R. Civ. P. 26(b)(2)(C)(iii).

RFPs No. 7-18; 21

RFPs 7-16 call for documents and communications reflecting all sales transactions at Hedrick's bait shop between July 20, 2009 and through August 2, 2009. Dkt. 90 at 9. Cross-plaintiff claims this information will be used to compare the amount of business Hedrick's bait shop conducted on the tournament day as opposed to a non-tournament day; and, also, as compared to the amount of sales transacted on the "practice" days leading up to the tournament. Since Buchholz's level of involvement in the fishing tournament is at issue, the extent to which he was invested in and benefitted financially from the tournament is probative on this issue. Buchholz claims that producing this information would be extremely burdensome. But while the undersigned is mindful of the need to balance the hardships of discovery with its likely benefit, Buchholz has not provided any factual basis showing what, exactly, is so burdensome about producing sales records for this period. At hearing, counsel acknowledged that she didn't know how it would be done; if it could be done by Mr. Buchholz himself or if his accounting department could manage this task and how much time or expense this would consume. Sept. 20, 2012 Hr'g at 10:00am. Without more, the undersigned finds these requests reasonable and cross-defendant Buccholz will produce all such responsive documents.

RFP 21 similarly requests information of deposits into the business operating accounts of Buchholz's bait shop for the time period covering July 1, 2009 through August 31, 2009. This request will be limited to the sales transactions conducted at Buchholz's bait shop located at Russo's Dock for the period of time specified.

By contrast, RFPs 17 and 18 request information too remote from the events at issue to warrant the burdens of compelling its discovery. Seeking sales transactions from both of Buchholz's bait shops during any fishing tournament in 2009 where he acted as a director is not sufficiently probative of cross-defendant's financial investment in this fishing ...

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