Newsome Melton Obtains $25.9 Million Verdict against Ford and The Baptist Church of New Port Richey for Single Wrongful Death

Combatting Stonewalling

Often in a products liability case, the most critical evidence in a plaintiff’s case will be the documents produced by the defendant manufacturer. Obviously, this presents a huge temptation to product manufacturers to conceal evidence during the discovery process. The system creates a quandary for corporate employees facing discovery requests: either follow the rules, or disclose the “smoking gun” document that will damage your employer. This quandary results in a predictable pattern of objections and stonewalling which are designed to prevent disclosure of critical information to plaintiffs.

The “General Objection” Tactic

This article begins to discuss one such tactic: so called “general objections” to interrogatories and requests for production of documents. In a typical product liability case, after the complaint is filed, the plaintiff will usually propound interrogatories and requests for production of documents. Most of the time these initial requests are met with a plethora of objections with little, or no substantive response. Moreover, before the defendant even answers a single interrogatory or request for production, they usually begin their response with litany of “general objections,” often styled under the guise of a “preliminary statement” – neither of which are either proper or contemplated by the Rules of Civil Procedure. The “general objections” are unconnected with any specific discovery request and purport to relate to each and every request. This tactic is particularly predictable from certain law firms that specialize in products liability defense. If one of the “regular” defense firms shows up in the case you can be almost certain that you will see this tactic.

These “general objections” generally include claims that the discovery requests are: 1) overbroad; 2) burdensome; 3) not relevant nor likely to lead to the discovery of admissible evidence; 4) not appropriately limited in time; 5) seek information protected by the attorney client and/or work product privilege; and 6) not limited to products or issues which are substantially similar to the subject product or incident. The defendant will then unilaterally state that they are limiting their discovery responses subject to the foregoing objections.

If the plaintiff does not address this tactic head on, the defendant has effectively shielded each and every one of their discovery responses behind these blanket objections, making the responses meaningless. Thus, it is imperative to have the court address these objections as soon as practicable after receiving the response.

Often courts are hesitant to wade into discovery fights. It’s ugly, tedious, and, from the court’s perspective, often a “he said, she said” contest between opposing counsel. Therefore, it is often best to set up multiple smaller hearings so that the court can address the discovery issues in “bite sized” hearing slots.

Because of the importance of having the court address the “general objections,” it makes sense to have this issue addressed in your first discovery hearing. Check your local rules; many jurisdictions forbid general objections. Likewise, courts have often criticized the use of general and unsupported objections.1 As one court said,

To voice a successful objection to an interrogatory, [defendant] must show specifically how, despite the broad and liberal construction afforded the federal discovery rules, each interrogatory is not relevant or how each question is overly broad, burdensome or oppressive….2

Broad objections based on general and unsupported objections are improper, insufficient, and must be raised in a motion to have the court overrule the objections.

Substantial Similarity

One of the general objections manufacturers routinely employ is to unilaterally limit their responses to discovery that the manufacturer deems, in its own judgment, to be “substantially similar.” There are three basic “substantial similarity” arguments that manufacturers use to avoid disclosure. These are:

1. discovery should be limited to substantially similar products – specifically – the identical make and model product which is the subject of the litigation;
2. discovery should be limited to the same model year as the subject product; and
3. discovery should be limited based on the defendant’s narrow view of what it deems to be the circumstances of the subject incident.

All of these objections must be raised in a motion to compel. The motion should set forth the law on discovery, and the law’s distinction between discovery and admissibility.3 As one court noted, the central notion of modern discovery practice is that the right to obtain production and statements from the defendant must be kept “entirely distinct” from the right to use such statements as evidence in trial. As the Saunders court said,

. . . discovery at the pretrial stage is not fettered with the rules of admissibility that apply at a trial, and the utmost freedom is here allowed, but restrictions are imposed on the use of the products of discovery that preserve traditional methods of trial. Jones v. Seaboard Coast Line Railroad Co., 297 So.2d 861, 863 (Fla. 2d DCA 1974) (quoting 8 C. Wright and A. Miller, Federal Practice and Procedure § 2001, at 16 (1970) (emphasis supplied by the court).

These “substantial similarity” objections are, in essence, objections based on relevance – or precisely, the lack of relevance. Courts and legal scholars have rejected the notion that a party can properly restrict production based on its unilateral determination of relevance.4

As with other objections, when it raises a substantial similarity objection, the defendant has the burden of providing the court with specific factual allegations supporting its objection. The defendant must show the court that the discovery being sought is “clearly irrelevant” or having “no possible bearing on the subject matter.”5 In the typical products case, the manufacturer makes objections, relies on its own subjective and self-serving determination of relevance, and limits disclosure accordingly. This is improper and must be raised in a motion to compel.

As the U.S. Supreme Court recognized in Hickman v. Taylor, modern discovery practice demands that courts give the discovery rules a liberal construction. Federal courts have uniformly followed this principle by holding that the scope of discovery contemplated by the rules should be broadly and liberally construed to achieve full disclosure of all potentially relevant information.6 As the U. S. Supreme Court held in Hickman v. Taylor,

We agree, of course that the deposition-discovery rules are to be accorded a broad and liberal treatment. No longer can the time-honored cry of “fishing expedition” serve to preclude a party from inquiring into the facts underlying his opponent’s case…. To that end, either party may compel the other to disgorge whatever facts he has in his possession.7

Although Florida courts generally follow these principles of liberal discovery, unfortunately there have been some decisions handed down in recent years which are somewhat inconsistent with these notions of full disclosure.8 The Florida practitioner must be aware of this body of law, which, if not addressed, might impede attempts to obtain meaningful discovery. These cases, which began with the Fifth District’s decision in Caterpillar v. Keskes, requires a plaintiff to present the court with some evidence that the discovery being sought is substantially similar to the subject product and subject incident. Based on these cases, plaintiffs in at least the Second, Fourth and Fifth District Courts should prepare their discovery with an eye towards making an evidentiary showing in support of their discovery requests.

This line of Florida cases began with the Fifth District’s decision in Caterpillar which overruled the trial courts’ discovery order requiring production of documents relating to 89 different forklift models. The court found that these other model forklifts were not substantially similar to the forklift at issue. In making this finding, the court made an astonishing statement, when it said, “Florida has established a rule that before similar accidents or incidents are either discoverable or admissible the plaintiff must establish that the incidents are “substantially similar.”9 Although previous decisions, of course, required that a plaintiff establish substantial similarity before introducing evidence of a prior accident during trial, prior to this statement by the Fifth District there was no rule placing the initial burden on the plaintiff for discovery purposes.

The Caterpillar court referenced two cases in support of its conclusion that the plaintiff must establish similarity before a prior accident is discoverable – Perret v. Seaboard Coast Line R.R. Co. 10 and Goodyear Tire & Rubber Co. v. Cooey 11. In Peret, which the Caterpillar court claimed was the “leading case on this issue,” the issue before the court had absolutely nothing to do with discovery. The Peret decision solely involved the issue of the admissibility of evidence of prior accidents at trial. The second Florida decision apparently relied upon by the Caterpillar court was the Fourth DCA’s Goodyear decision. In Goodyear, the court referenced the requirements of Rule 1.280(c), and properly recognized,

It is clear therefore that while there is no initial burden upon the party seeking discovery to demonstrate the need therefor, a resisting party or a party seeking a protective order has the burden of showing “good cause”. However, the matter does not end there. Once the party seeking a protective order has shown good cause therefore the party seeking the discovery then has the burden, if discovery is to be nevertheless allowed, of demonstrating reasonable necessity.

Thus, neither the Peret nor the Goodyear decision changed the well recognized rule that if a manufacturer objects to production based on claims that the requested information is not substantially similar; the manufacturer – not the plaintiff – has the burden of making a showing of same.

Following these two decisions however, the Fifth District’s ruling in Caterpillar, that “Florida has established a rule that before similar accidents or incidents are either discoverable or admissible the plaintiff must establish that the incidents are ‘substantially similar,’” appears to have been created by the court of whole cloth. Unfortunately, this rule appears to have been followed by at least a few other Districts. In both American Medical Systems, Inc. v. Osborne 12 and in Nissan Motors Corporation v. Espinosa,13 the Second and Fourth Districts overturned orders granting plaintiffs’ motions to compel because the plaintiffs had not established that the discovery being sought met the “substantial similarity” requirement.

The lesson for plaintiff attorneys is simple: make your record. Upon receipt of “general objections” from the manufacturer, there will likely be a unilateral limitation of the discovery responses by the manufacturer based on substantial similarity objections. The responses will likely be limited to the identical make and model, the same model year, and the defendant’s interpretation of identical other incidences. Address this immediately by filing a motion to compel. In all likelihood the defendant will NOT have made any record showing or provided any proof of its objections other than bald allegations. Raise this issue with the court. Cite to the Rule and the cases that recognize that it is the Defendant’s initial burden to show that the discovery being requested is not substantially similar.

Beware however, that another tactic that the “usual” defense firms commonly employ will be to arrive at the hearing with a sworn affidavit from a corporate employee. This affidavit will typically be a self-serving statement which gives – on its face – factual support for the “general objections.” As to the issue of substantial similarity, the affidavit will give a litany of reasons why the discovery being sought is not substantially similar to the subject product or incident, and to the contrary, will claim that the discovery being sought is entirely irrelevant.

There are two effective ways to deal with this. First, have your own affidavit prepared in advance. With an eye towards the case law, have your expert address each of the “general objections” based on his experience. Often, being careful not to disclose any protected information, your expert can include in his affidavit reasons why the objections should be overruled based on documents and production he has seen from other cases.

Second, especially when the defendant manufacturer produces an affidavit in support of their objections at the last minute before the motion to compel hearing, ask the court to order the defendant to produce their corporate representative affiant for deposition. Better yet, show up with a proposed order continuing the hearing until you have taken the deposition. Further, ask the court permission to continue the hearing until you have had the chance to present your own evidence since, under the case law, the burden may have now shifted to you. The court will usually grant this request especially if the defense dumped the affidavit on you a day or two prior to the hearing.

In conclusion, don’t take “general objections” sitting down. Your client deserves fair discovery, and the law requires it. However, unless you address these issues up front and early in the discovery process, it will make your job of obtaining meaningful discovery extremely difficult.

[1] R.B. v. Ford Motor Co., Case No. 4:05cv481-SPM/WCS (N.D. Fl. 2006); Roesberg v. Johns-Manville Corp., 85 F.R.D. 292 (E.D. Pa 1980); Dollar v. Long Mfg., N.C., 561 F.2d 613 (5th Cir. 1977).
[2] Roesberg, Id. at 296.
[3] Saunders v. Florida Keys Electric, 471 So.2d. 88, (Fla. 4th DCA).
[4] See generally, Full Disclosure, Hare, Gilbert & Ollanik, ATLA Press, chapter 2, section V.A. (1995); 8 Charles Alan Wright & Arthur R. Miller, Federal Practice and Procedure, Section 2173, at 542 n.63.
[5] See, eg., Roesberg v. Johns-Manville Corp., 85 F.R.D. 292, 2965-97 (E.D. Pa. 1980); Independent Prods. Corp. v. Loew’s, Inc., 22 F.R.D. 266, 271 (S.D.N.Y. 1958); La Chemise Lacoste v. Alligator Co., Inc., 60 F.R.D. 164, 171 (D. Del. 1973); see 8 Wright & Miller, supra note 2, Section 2008, at 46 n.22.
[6] 8 Wright & Miller, supra note 3, Section 2001, at 17 n.15, Section 2007, at 37 n.94, Section 2008, at 45-46 n.21, Sections 2165-2167, 2206, 2254-56.
[7] 329 U.S. 495, 507 (1947).
[8] Caterpillar Industrial, Inc. v. Keskes, 639 So.2d 1129 (Fla. 5th DCA 1994); Nissan Motors Corp. v. Espinosa, 716 So.2d 279 (Fla. 4th DCA 1998); American Medical Systems, Inc. v. Osborne, 651 So.2d 209 (Fla. 2d DCA 1995).
[9] Caterpillar, Id. at 1129.
[10] 299 So.2d 590 (Fla. 1974).
[11] 359 So.2d 1200 (Fla. 1st DCA 1978).
[12] 651 So.2d 209 (Fla. 2d DCA 1995).
[13] 716 So.2d 279 (Fla. 4th DCA 1998)

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