Archive for the ‘Discovery’ Category

Too Important – Court Denies Motion to Compel Deposition of “Apex” Executive of Defendant (CA)

October 27, 2015

Kormylo v. Forever Resorts, LLC (California)
(trial court disposition)

Plaintiff was injured while swimming at a Nevada Resort owned and operated by the defendant.  The cause of plaintiff’s injuries were disputed, but plaintiff alleged that he was struck by a chase boat operated by an employee of the defendant.  The boat in question was registered to the President and founder of the defendant, but he was not named as a defendant in the case.

Plaintiff sought to take the President’s deposition, arguing that his testimony was required to defeat the defendant’s twelfth affirmative defense under a Nevada maritime Limitation of Liability Act.  Plaintiff contended that the owner of a vessel who fails to adequately train its crew is not entitled to limit liability under the Act, and that the President’s deposition was needed to establish this lack of training and supervision of defendant’s employees.  Defendant refused to permit the deposition, and plaintiff filed a motion to compel.

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Up the Creek Without a Row Machine – Claim of Man Injured at Fitness Facility Barred by Membership Agreement (DE)

July 13, 2015

Ketler v. PFPA, LLC (Delaware)
(unpublished trial court disposition)

Plaintiff purchased a gym membership from Planet Fitness and agreed to the terms of the facility’s membership agreement.  Plaintiff thereafter sustained personal injuries at the defendant’s workout facility when a cable broke on a seated rowing machine that he was using.  He and his wife filed a lawsuit against Planet Fitness, alleging negligence, and Planet Fitness filed an answer asserting primary assumption of the risk as an affirmative defense based on the language of the membership agreement.  The defendant then filed a motion for a judgment on the pleadings.

The plaintiff did not dispute that he signed the membership agreement, but he argued that the agreement did not include a specific reference to the negligent wrongdoing alleged.  The court disagreed, noting that the agreement clearly provided that plaintiff could not hold the defendant liable for any injury even if the defendant’s own negligence caused the injury.  The court found the membership agreement to be “an unambiguous and express release.”

Plaintiff contended that he was entitled to factual discovery before the court cold resolve the issue.  However, the court stated that the language of the membership agreement was controlling and no further discovery was needed.  The court explained that “Delaware’s decisional law on contract interpretation permit the Court to give full force and effect to the Release.”

Shooting Blind

August 1, 2012

Blind Industries and Services of Md. v. Route 40 Paintball Park (Maryland)
(A legally blind individual was denied the chance to play paintball at the defendant’s facility, and the plaintiff advocate group filed a claim on his behalf alleging a violation of the Americans with Disabilities Act (“ADA”); the defendant failed to produce evidence regarding a prior personal injury civil suit and the plaintiff filed a motion to compel, which was denied.)

In its demand for production of documents as part of discovery in the litigation, the plaintiff advocate group requested “[a]ll Documents and Communications relating to complaints, grievances, citations, or claims made against the [defendant] by any person for . . . negligence of any type, or safety hazards of any type.”  After the defendant served its responses, the plaintiff noted that the defendant had failed to produce documents relating to a tort action it had discovered alleging unsafe conditions at the defendant’s paintball fields.  The defendant argued that the prior lawsuit was not relevant to the plaintiff’s ADA claim.

The District Court ruled that the defendant was required to only produce copies of any publicly filed documents pertaining to the prior lawsuit.  The Court explained that requiring the defendant to conduct an extensive review and production concerning prior cases “would violate the principles of proportionality.”  Although there is a relatively low standard of relevance required for discovery, the Court felt it was too much of a burden on the defense to produce more than what was part of the public record.  The defendant did contend the blind individual’s visual impairment “posed a safety concern,” but the connection of that allegation with prior claims of unsafe conditions was clearly limited.  The fact that the documents sought by the plaintiff also implicated the attorney-client privilege played a role in the Court’s decision.

As part of its motion to compel, the plaintiff also sought further responses from the defendant regarding the factual basis underlying the defendant’s affirmative defenses, asking that the affirmative defenses be stricken if additional information was not provided. However, the Court found the initial responses, “[t]aken in totality,” to be sufficient.

NOTE: This is certainly a positive decision from a defense perspective, considering the broad standard of “relevancy” in discovery.  Defendants are always concerned about a plaintiff’s ability to make their life unnecessarily difficult (and costly) via the discovery process.  It appears that a fair balance was reached in this instance.