ALLEN
v.
PRIMAL VANTAGE COMPANY, INC.
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The court held that product identification is not a prerequisite for discovery relevance, and other objections were waived.
Plaintiff sued for injuries from a broken ladder, seeking discovery from the manufacturer. The manufacturer objected, claiming discovery was premature…
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SANCTIONS (Doc. No. 43) FILED: November 7, 2023
THEREON it is ORDERED that the motion is GRANTED in part and DENIED in part. This case concerns Plaintiff’s alleged use of an “Ameristep” model ASSL-125 20-foot stick ladder, purchased from Walmart in 2019, to climb a tree in order to reach a hunting tree stand, during which climb the stick ladder broke, causing Plaintiff to fall and suffer injuries. Doc. No. 46 ¶¶ 18–22. By the above-styled motion, Plaintiff moves to compel Defendant Primal Vantage Company Inc. (“PVC”) to respond to several discovery requests relating to the subject stick ladder, and several as it relates generally to the “Ameristep” model ASSL-125. Doc. No. 43; see also Doc. No. 43-1 (first requests for production); Doc. No. 43-2 (second requests for production); Doc. No. 43-3 (interrogatories). PVC responded to all requests related to the subject stick ladder and the “Ameristep” model ASSL-125 in general with the same objection: Defendant objects on the basis that the request is premature and discovery is in its infancy. Defendant further objects on the basis that it has not had an opportunity to inspect the subject product to confirm the correct model and year and has insufficient information to respond to this request.
See Doc. Nos. 43-1, 43-2, 43-3. PVC opposes Plaintiff’s motion to compel, maintaining that the discovery requests are improper until PVC inspects the stick ladder and confirms its identity. Doc. No. 44.1
(1) Whether confirmation of the “identity of the product” is required prior to permitting discovery into the allegations of the complaint, or alternatively, whether the allegations in the complaint that Plaintiff’s injuries were caused by an “‘Ameristep’ model ASSL-125 20-foot stick ladder” purchased in 2019 are sufficient to support the discovery sought without “identity of the product” first.
(2) Assuming inspection/identification is required prior to permitting discovery, who bears the burden of ensuring the inspection/identification is complete.
(3) What efforts the parties have undertaken since the last email communication provided to the Court from September 11, 2023 (see Doc. No. 44-5), to identify the make and model of the subject stick ladder. (4) Why inspection/identification would be required as to the discovery requests that are not directly targeted to the specific “Ameristep” model ASSL-125 20-foot stick ladder purchased by Plaintiff in 2019.
Doc. No. 45. Both parties timely submitted their supplemental briefing. Doc. Nos. 47–48. In its briefing, PVC submits that until Plaintiff establishes that the subject stick ladder was manufactured by PVC, relevance of the discovery requests has not
Accordingly, the “discovery is in its infancy” objection is not further addressed herein. been established. Doc. No. 47, at 3–5. However, other than citing to the general standards governing relevancy, PVC cites no legal authority supporting its proposition. See id. Further, PVC argues that “Plaintiff cannot rely on the allegations of the Complaint solely to establish that the product at issue is an ASSL- 125 20-foot stick ladder,” again without citation to legal authority in support. Id. at 6. PVC also says that it still has not conducted an inspection of the subject stick ladder,2 but that it is “currently working with Plaintiff on scheduling an inspection.” Id. And despite several of the discovery requests seeking discovery generally into the “Ameristep” model ASSL-125 20-foot stick ladder and not the specific stick ladder from which Plaintiff allegedly fell, see, e.g., Doc. No. 43-1 ¶¶ 8–
10, 13, 15, 17, 21–25, 27–28, 30, 33–34; Doc. No. 43-2 ¶¶ 1–5; Doc. No. 43-3 ¶¶ 5–6, 9– 10, 13–15, PVC also maintains that almost all of the discovery requests relate to the specific stick ladder at issue. Doc. No. 47, at 7. For his part, Plaintiff candidly admits that there is a lack of legal authority regarding whether inspection of the product is required before discovery may
2023), and Plaintiff has informed PVC that the subject stick ladder can be made available for inspection at counsel’s office “at any time.” Id. at 6. Even so, Plaintiff argues that identification of the stick ladder has no bearing on the scope of discovery, as the discovery sought is still relevant. Id. at 7–9.
Upon review, the Court is not convinced that inspection/identification of the subject stick ladder is required to render the discovery sought by Plaintiff relevant, particularly given PVC’s failure to cite any legal authority in support of this argument. See Doc. Nos. 44, 47. In essence, PVC wishes to require Plaintiff to prove his case and/or negate PVC’s affirmative defenses prior to commencing discovery in this case, which is not the standard. See id.; see also Oppenheimer Fund, Inc. v. Sanders, 437 U.S. 340, 351 (1978) (relevancy is “construed broadly to encompass any matter that bears on, or that reasonably could lead to another matter that could bear on, any issue that is or may be in the case”); cf. Zamperla, Inc. v. I.E.
Park SrL, No. 6:13-cv-1807-Orl-37KRS, 2014 WL 12614505, at *12 (M.D. Fla. Nov. 3, 2014) (rejecting objection, which, if sustained, would have required the plaintiff to prove its Lanham Act claim before conducting discovery regarding that claim, “which is contrary to the procedures for discovery in the Federal Rules of Civil
Procedure”). Inspection/product identification is the only objection PVC addresses in response to the discovery. See Doc. Nos. 44, 47; see also Doc. Nos. 43-1, 43-2, 43-3.
Thus, all other objections have been waived. See Abruscato v. GEICO Gen. Ins. Co., No. 3:13-cv-962-J-39JBT, 2014 WL 12617735, at *1 (M.D. Fla. May 7, 2014) (“In general, objections not made in responses to discovery requests are normally waived.” (citing Morock v. Chautauqua Airlines, Inc., No. 8:07–cv–210–T–17MAP,
2007 WL 4247767, at *4 (M.D. Fla. Dec. 3, 2007)); see also Jackson v. Geometrica, Inc., No. 3:04-cv-640-J-20HTS, 2006 WL 213860, at *1 (M.D. Fla. Jan. 27, 2006) (objections not addressed in response to a motion to compel are deemed abandoned). And as discussed above, PVC has now requested inspection, see Doc. No. 47, at 6, which Plaintiff will facilitate, see Doc. No. 48, at 6. So, Plaintiff’s motion will be granted for the most part, as set forth below. However, the Court declines to award Plaintiff fees and costs in this instance. See Doc. No. 43, at 3; Fed. R. Civ. P. 37(a)(5)(A) (iii). Accordingly, it is ORDERED as follows: 1. Plaintiff's Short-Form Motion to Compel Discovery from Defendant Primal Vantage Company, Inc. and Motion for Sanctions (Doc. No. 43) is GRANTED in part and DENIED in part. 2. PVC shall have fourteen (14) days from the date of this Order, should it choose to do so, to complete an inspection of the subject stick ladder at the office of counsel for Plaintiff, the date and time of said inspection to be coordinated with counsel for Plaintiff. 3. Within twenty-one (21) days from the date of this Order, PVC shall respond to Plaintiff's discovery requests (Doc. Nos. 43-1, 43-2, 43-3) in full. All objections, besides the identity of the product, have been waived. See Abruscato, 2014 WL 12617735, at *1; Jackson, 2006 WL 213860, at *1.
4. Plaintiff's request for fees and costs is DENIED.
DONE and ORDERED in Orlando, Florida on November 21, 2023.
LESLIE NOFFMAN PRICE
UNITED STATES MAGISTRATE JUDGE
Copies furnished to:
Counsel of Record Unrepresented Parties