United States District Court, D. South Carolina, Aiken Division
Maria Davenport, Arnold Davenport, and Demorio Davenport, Plaintiffs,
Goodyear Dunlop Tires North America, LTD, and The Goodyear Tire & Rubber Company, Defendants.
The Goodyear Tire & Rubber Company
(“Defendant”), filed the instant action against
Plaintiffs Maria, Arnold, and Demorio Davenport (collectively
“Plaintiffs”) to compel Plaintiffs to produce the
left rear tire, along with the tire's rim/wheel portion,
and the tread/belt package (referred to hereinafter
collectively as “Tire at Issue”), of Maria
Davenport's 1996 Ford Explorer.
matter is before the court on Defendant's Motion to
Compel (ECF No. 28), to which Plaintiff filed a Response in
Opposition. (ECF No. 31.) Defendant filed a Reply to
Plaintiff's Response. (ECF No. 35.)
FACTUAL AND PROCEDURAL BACKGROUND
action arises out of an accident that allegedly occurred on
October 5, 2012. (Pls.' Compl. ¶ 5, ECF No. 1.)
While Maria Davenport (“Maria”) was driving her
1996 Ford Explorer on I-20, it is alleged that the Tire at
Issue separated from the vehicle, causing the car to
overturn. (Id.) On March 20, 2014, Maria initiated a
products liability action in state court against Defendant.
(ECF. No. 28, ¶ 1.) During the course of the state court
proceedings, Defendant requested the Tire at Issue for
inspection. (Ex. A, Req. for Produc. to Pl., ECF No. 28-1 at
6.) Maria consented to Defendant's inspection request.
(Ex. B, Resp. to Req. for Produc., ECF No. 28-2 at 6-7.)
Defendant received the Tire at Issue on October 8, 2014, and
returned the Tire at Issue to Maria's counsel on April
21, 2015. (ECF. No. 28 ¶ 4.) On April 30, 2015,
Defendant deposed Maria's tire expert, Dennis Carlson
(“Carlson”), who suggested inadequate adhesion as
a defect theory (“adhesion defect theory”) for
why the tire separated. (Id. at ¶ 6.) On May
18, 2015, Defendant requested the Tire at Issue be shipped
back to Defendant for an additional inspection. (Id.
at ¶ 6.) On September 10, 2015 the state court action
was voluntarily dismissed. (Id. at ¶ 8.) On
September 18, 2015, Maria Davenport joined with Arnold and
Demorio Davenport to re-file the Complaint (ECF No. 1) in
federal court. (ECF No. 28 ¶ 1)
April 25, 2016, Defendant filed a Motion to Compel (ECF No.
28) seeking the production of the Tire at Issue. (ECF No. 28
¶ 9, Ex. G, Req. for Produc. No 20-23.) Plaintiffs filed
a Response in Opposition (ECF. No. 31) on May 12, 2016.
Defendant filed a Reply to Plaintiff's Response (ECF No.
35) on May 23, 2016.
amended Fed.R.Civ.P. 26 provides that “[p]arties may
obtain discovery regarding any nonprivileged matter that is
relevant to any party's claim or defense and proportional
to the needs of the case, ” considering the importance
of the issues, the parties' access to information, the
parties' resources, and the importance of the discovery.
Fed.R.Civ.P. 26(b)(1). The scope of discovery permitted by
Fed.R.Civ.P. 26 is designed to provide a party with
information reasonably necessary to afford a fair opportunity
to develop its case. Nat'l Union Fire Ins. Co.
of Pittsburgh, P.A. v. Murray Sheet Metal Co.,
Inc., 967 F.2d 980, 983 (4th Cir. 1992). Generally,
parties in civil litigation are permitted broad
discovery. Id. Nevertheless, discovery is not
limitless and the court has the discretion to protect a party
from “oppression” or “undue burden or
expense.” Fed.R.Civ.P. 26(c)(1). Furthermore, a court
“must limit the frequency or extent of discovery
otherwise allowed by these rules [Fed. R. Civ. P.], if it
determines that: “the discovery sought is unreasonably
cumulative or duplicative;” or “the party seeking
discovery has had ample opportunity to obtain the information
by discovery in the action.” Fed.R.Civ.P. 26
party may serve on any other party a request within the scope
of Rule 26(b)” to produce “any designated
tangible things.” Fed.R.Civ.P. 34(a)-(a)(1)(B).
“If a party fails to make a disclosure” required
by Fed.R.Civ.P. 26, “any other party may move to compel
disclosure and for appropriate sanctions, ” [after it
has] “in good faith conferred or attempted to confer
with the person or party failing to make disclosure or
discovery in an effort to obtain it without court
action.” Fed.R.Civ.P. 37(a)(1)-(3)(A). Specifically, a
party “may move for an order compelling an answer,
designation, production, or inspection.” Fed.R.Civ.P.
37(a)(3)(B). Broad discretion is afforded to a district
court's decision to grant or deny a motion to compel.
See, e.g., Lone Star Steakhouse & Saloon,
Inc. v. Alpha of Va., Inc., 43 F.3d 922, 929 (4th Cir.
claims that it is entitled to re-inspect the Tire at Issue,
and that without re-inspection, Defendant can neither fully
investigate nor defend against Plaintiffs expert's
(Carlson) adhesion defect theory. (ECF No. 28 at 6-7, ¶
22.) Specifically, Defendant argues that the discovery sought
falls under the scope of Rule 26(b)(1) and “is not
unreasonably cumulative or duplicative, because [Defendant]
has never had the opportunity to inspect the tire based on
Plaintiffs' adhesion defect theory.” (Id.
at 7, ¶ 23.)
citing to Hajek v. Kumho Tire Co., Inc., No.
4:08CV3157, 2009 WL 2229902, at *13 (D. Neb. July, 23, 2009),
asserts that the Tire at Issue is “crucial evidence in
the case, to which all parties are entitle[d] to equal
access.” (ECF No. 28 at 8, ¶ 27.) Defendant also
cites to Griffith v. Goodyear Dunlop Tires N. Am.
LTD., No. 11CV761S, 2012 WL 5473494 (W.D.N.Y. Nov. 9,
2012) (permitting the defendant in the case to conduct
non-destructive and non-invasive testing on the tires and
rims before returning the tires to the plaintiff), to claim
that Plaintiff should be compelled to produce the Tire at
Issue. Moreover, Defendant asserts that the request would not
be burdensome on Plaintiffs because Defendant has offered to
pay for all the costs associated with shipping the Tire at
Issue. (ECF No. 28 at 8-9, ¶ 27.)
Response to Defendant's (second) Request for Production
Nos. 20-23, Plaintiff stated that “[Defendant] was in
possession of the subject tire from October 8, 2014 until
April 21, 2015.” (Ex. K, Resp. to Req. for Produc., ECF
No. 28-11 at 6-7.) In their Response in Opposition,
Plaintiffs emphasized how the Tire at Issue was in the
possession of Defendant and its experts for over six months,
before it was shipped back to Plaintiffs' counsel on
April 22, 2015. (ECF No. 31 at 2.) Plaintiffs reject the
notion that Defendant will be prejudiced, arguing that a
thorough examination should have been done the first time.
(ECF No. 31 at 4.) Plaintiffs further argue that neither
Hajek nor Griffith are applicable because
the defendants in both cases had not previously examined the
tire. (ECF No. 31 at 4.)
regard to the case law cited by Defendant, the court agrees
with Plaintiffs that Hajek and Griffith are
not directly applicable. The central aspect of this action is
that Defendant wants to re-examine the Tire at
Issue. The defendants in both Hajek and
Griffith had not yet been able to examine the tires
when they filed motions to compel. Furthermore, though the
court in Hajek held that the tires and rims were
“pivotal evidence, ” and thus both parties were
equally entitled to perform testing and inspection,
Hajek, 2009 WL 2229902 at *4, there is no language
in either Hajek's or Griffith's
opinions that says the parties were entitled to equal
though Defendant may not be entitled to equal access of the
Tire at Issue, the court is persuaded that Defendant's
request for re-examination of the Tire at Issue is
proportional to the needs of the case. The court also
believes that allowing such a request would not be unduly
burdensome on Plaintiffs. The Tire at Issue is central to
Plaintiffs' case against Defendant, and because Defendant
has offered to pay the costs ...