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Feuerstein v. Home Depot, USA, Inc.

United States District Court, Ninth Circuit

August 23, 2013

Burt Feuerstein and Janet Shalwitz, Plaintiffs,
The Home Depot, U.S.A., Inc., et al., Defendants.


[Re: Motion at docket 58]

JOHN W. SEDWICK, District Judge.


At docket 58 defendants The Home Depot, U.S.A., Inc. ("HD") and Tricam Industries, Inc. ("TI") (collectively "Defendants") move pursuant to Federal Rule of Civil Procedure 37(a)(1) for an order compelling plaintiff Burt Feuerstein ("Burt") to appear for a further deposition and to provide certain deposition testimony, as well as for sanctions and costs associated with bringing the motion. Burt opposes at docket 59. Defendants reply at docket 61. A statement of personal consultation is at docket 57. Oral argument was not requested and would not be helpful to the court.


Burt and his co-plaintiff, Janet Shalwitz (collectively "Plaintiffs"), filed suit against Defendants and two other entities on May 21, 2012. Jurisdiction is based on 28 U.S.C. ยง 1332. According to his amended complaint, Burt was injured on May 8, 2011, when a ladder slipped from beneath him. Plaintiffs allege the ladder was manufactured by TI and sold by HD. They allege it slipped while set up on decking manufactured by defendant Trex Company, Inc., which was also sold by HD. Plaintiffs plead claims under Arizona law for strict liability, violation of statutory obligations, breach of an implied warranty, negligence, failure to warn, punitive damages, and Janet Shalwitz's loss of consortium. According to Plaintiffs, at the time of Burt's fall he was using the ladder in accordance with applicable instructions. The gravamen of all Plaintiffs' claims is that the ladder slipped due to a defective design of the ladder's feet, defective warnings or instructions, and a defective design of the surface of the Trex decking. Defendants' answers deny that the claims advanced by Plaintiffs have merit.


Federal Rule of Civil Procedure 37(a)(1) authorizes a party to move to compel discovery after conferring in good faith with the opposing party in an attempt to avoid motion practice. Rule 37 (a)(5)(A) provides generally that if the motion is granted, the court must order the opposing party to pay the reasonable expenses of making the motion. Rule 37 (a)(5)(C) provides that where the motion is denied the court must award reasonable expenses to the party opposing the motion.

Discovery rules are liberally construed to effect the just, speedy, and inexpensive resolution of litigation.[1] Discovery's scope is broad. The Federal Rules of Civil Procedure give parties the right to "obtain discovery regarding any nonprivileged matter that is relevant to any party's claim or defense...."[2] Furthermore, such "[r]elevant information need not be admissible at the trial if the discovery appears reasonably calculated to lead to the discovery of admissible evidence."[3] Professor Wright instructs that "[t]he rules... permit the broadest scope of discovery and leave it to the enlightened discretion of the district court to decide what restrictions may be necessary in a particular case."[4] The Ninth Circuit observes these principles and has emphasized that "wide access to relevant facts serves the integrity and fairness of the judicial process by promoting the search for truth."[5] However, discovery is not unfettered. All discovery requests are subject to limitations against discovery which is unreasonably cumulative, seeks information which the requesting party had ample opportunity to obtain in other litigation, or imposes a burden or expense which outweighs its likely benefit under the circumstances of the particular case.[6]

Rule 30 governs the conduct of depositions. It provides in pertinent part that one "may instruct a deponent not to answer only when necessary to preserve a privilege, to enforce a limitation ordered by the court, or to present a motion [to terminate the deposition] pursuant to Rule 30(d)(3)."[7]


A. Answering Particular Questions

Burt was deposed on May 6, 2013. Defendants contend that their efforts to obtain relevant testimony at the deposition were thwarted by the improper objections made and instructions given to Burt by Plaintiffs' counsel. Defendants assert that Plaintiffs' lawyer's conduct should be evaluated in light of the defense contentions that if the ladder slipped, this happened because Burt "set up the ladder at too shallow an angle, " and he failed "to follow the instructions and warnings on the ladder."[8] These contentions must have been known to ...

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