United States District Court, D. Maryland
MEMORANDUM AND ORDER
J. Mark Coulson United States Magistrate Judge
This case has been referred to me for all discovery and related scheduling matters pursuant to 28 U.S.C. § 636 and Local Rule 301. (ECF No. 31.) Presently pending is Plaintiffs’ Motion to Compel Discovery (ECF No. 42-1). The Motion has been fully briefed (ECF Nos. 42-2, 42-3), and no hearing is necessary, Loc. R. 105.6 (D. Md. 2014). Plaintiffs’ Motion to Compel Discovery is GRANTED IN PART and DENIED IN PART.
This case involves allegations of (1) strict liability for a defect in manufacturing, (2) negligence, (3) negligent misrepresentation, (4) breach of implied warranty of merchantability, (5) breach of express warranty, and (6) negligent hiring, supervision, and retention brought by Plaintiffs, T.G., a minor, and her grandmother Virginia Callahan, against Toys “R” Us-Delaware, Inc. (“Toys R Us”), and Pacific Cycle, Inc. (“Pacific Cycle”). Plaintiffs’ allegations stem from a bicycle accident during which T.G. was riding a bicycle designed and manufactured by Pacific Cycle and sold and assembled by Toys R Us through its “Ready to Ride” program. (Am. Compl. ¶¶ 10-13.) Plaintiffs allege a failure in the final assembly process of the rear brake system resulting in the rear brake failing to function and causing the accident. (Am. Compl. ¶ 21.) Based on Plaintiffs’ expert disclosure, it appears as though the allegedly improper assembly involved the length of the brake cable and/or the routing of that cable between the rear brake and the brake control on the handlebars. (ECF No. 42-2, Exhibit G.)
Although Plaintiffs’ Motion initially set forth a large number of specific complaints related to Defendants’ responses to interrogatories and requests for production of documents, it appears from Defendants’ Opposition and Plaintiffs’ Reply that many of those issues have been resolved by the parties and do not require Court intervention. However, the parties continue to dispute whether three categories of information are discoverable: (1) information related to complaints Defendants have received related to the rear brake system assembly; (2) contact information of former Toys “R” Us employees and (3) information and documents concerning Toys “R” Us’ “Ready to Ride” program dated after the sale of the subject bicycle in this case. I will address each category in turn.
1.Information Related to Complaints Defendants Have Received Related to Rear Brake System Assembly
Plaintiffs first seek documentation of complaints Defendants have received related to improper rear brake system assembly. Specifically, Plaintiffs’ Request for Production Number 11 sought from both Pacific Cycle and Toys R Us:
All documentation of any complaints and/or adverse event reports regarding the rear system brakes that you have received about The Product and/or similar products with the same or similar rear brake system, including the date received and the person(s) who submitted the complaint.
(Pls.’ Mot. at 26-27, 30.) In response to the request, both Defendants objected to the request
As vague as to “similar products” or “similar rear brake system” and overly broad and seeking irrelevant information to the extent it is not limited to bicycles of the same design as Plaintiffs’ bicycle with the same alleged defect as Plaintiffs bicycle or seeks information from after the date of the accident. [Defendants] further object to producing documents protected by the attorney-client or work product doctrines.
(Id. at 27, 30.) Plaintiffs’ Motion to Compel clarified that the “alleged defects” for which it sought related documents were “defects in bicycles’ rear brake system assembly.” (Id. at 27, 31.) Plaintiffs assert that these documents will demonstrate that Defendants were on notice of prior instances of improperly assembled bicycles, which is relevant to their claim that Defendants negligently failed to adequately train and supervise Toys R Us employees who undertook the final assembly process for the subject bicycle. (Pls. Reply at 2.) Defendants object to this request, claiming that Plaintiffs seek complaints not related to the specific bicycle model at issue here, and that other bicycle models do not contain the same rear brake cable routing pathway, such that the complaints are not relevant and the request is not reasonably calculated to lead to the discovery of admissible evidence.
The most recent changes to Rule 26 of the Federal Rules of Civil Procedure emphasize that to fall within the scope of permissible discovery, the information sought must be both relevant and proportional to the needs of the case. Fed.R.Civ.P. 26(b)(1). As no specific arguments have been included on the issue of proportionality, the Court will focus on relevance. The burden is on the party resisting discovery to establish that the documents are not relevant. Desrosiers v. MAG Indus. Automation Systems, LLC, 675 F.Supp.2d 598, 601 (D. Md. 2009). Potentially, an incident involving the same or similar alleged defect or act of negligence involving the same or similar product occurring prior to the incident in question would be relevant on the issue of whether Defendants were on notice of potential training or instructions issues in the way bicycles were being assembled. A failure to act on that information in a timely fashion would be relevant to the issue of the failure of the final assembly process of the rear brake system alleged here. The main resistance from Defendants stems from the appropriate “same or similar” criteria to be used.
To determine whether documentation of other incidents is within the scope of discovery, this Court has applied a “relaxed substantial similarity” analysis, “viewing the relevance of the requested discovery liberally.” Id. at 602. The analysis compares the “salient characteristics” of the incidents, the circumstances giving rise to the incidents, and if the incidents involve different models, whether the models share “characteristics pertinent to the legal issues.” Id. (quoting Bryte v. Am. Household, Inc., 429 F.3d 469, 479 (4th Cir. 2005); Rye v. Black & Decker Mfr. Co., 889 F.2d 100, 102 (6th Cir. 1989); Fine v. Facet Aerospace Products Co., 133 F.R.D. 439, 441 (S.D.N.Y.1990)). I find that with respect to the same or similar bicycle model that employs the same or similar cable-controlled rear brake system, complaints concerning the assembly of that system received prior to the incident at issue are relevant to Plaintiffs’ theory that Defendants were on notice of prior instances of improperly assembled rear brakes.
Defendants argue that “similar models” with linear pull brake systems should not be included because “[t]he way the brake cable is routed on the model at issue and interacts with the brake system and the bicycle is unique to the subject model.” (Defs.’ Opp. at 5.) At the discovery stage, this is too fine of a distinction. For example, if the issue in this case resulted, hypothetically, from allowing too much cable length, how the cable is routed would be less important than what steps an assembler took after routing to ensure that the brake was cabled (and indeed worked) appropriately. Even if other incidents were unrelated to cable routing altogether, a failure to test the rear brake system after assembly to verify proper functioning might well by itself be relevant to Defendants’ assembly standard of care. Although Defendants’ argument may result in a different outcome under the more strict “substantial similarity” test that will later govern the admissibility of these incidents at trial, under the more relaxed analysis at this stage, incidents involving the same or similar bicycles with the same or similar rear brake systems are relevant. After reviewing Plaintiffs’ requests and interrogatories on this point, I am satisfied that Plaintiffs’ requests-for complaints related to the same or similar product with the same or similar rear brake system-paired with Plaintiffs’ clarification that they only seek documents specifically related to “defects in bicycles’ rear brake system assembly, ” are sufficiently tailored and within the proper scope of discovery. Given Defendants’ familiarity with their own products, I will leave it to Defendants to decide in light of the guidance above which models are functionally “the same or similar” and which rear brake systems fit the production criteria. I would note as a point of clarification, that a purely cosmetic difference does not render dissimilar a bicycle that is otherwise similar. Additionally, the same or similar rear brake system will be understood to encompass “linear pull brake systems, ” which is the term Defendants employed ...