Hernandez v. Bobst, North America, Inc. ( 2021 )

1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 EASTERN DISTRICT OF CALIFORNIA 10 11 MICHAEL HERNANDEZ and BECKY Case No. 1:19-cv-00882-NONE-SKO HERNANDEZ, 12 Plaintiffs, ORDER DENYING DEFENDANT’S 13 MOTION TO BAR EX PARTE DECEMBER 1, 2020 EXPERIMENT 14 v. (Doc. 37) 15 BOBST GROUP NORTH AMERICA, INC., 16 Defendant. 17 _____________________________________/ 18 19 This matter is before the Court on Defendant Bobst Group North America, Inc.’s “Motion 20 to Bar Ex Parte December 1, 2020 Experiment” under Fed. R. Civ. P. 37, which was filed January 21 18, 2021 (the “Motion”). (Doc. 37.) Plaintiffs timely filed an opposition to the Motion on January 22 27, 2021. (Doc. 43.) No reply brief was filed. The Court reviewed the parties’ papers and all 23 supporting material and found the matter suitable for decision without oral argument. The hearing 24 set for February 3, 2021, was therefore vacated. (Doc. 44.) 25 Having considered the parties’ briefing, and for the reasons set forth below, the Motion 26 will be denied. 27 /// 28 /// 1 2 On June 27, 2019, Plaintiffs Michael Hernandez and Becky Hernandez (collectively, 3 “Plaintiffs”) filed a complaint against Defendant Bobst Group North America, Inc. (“Defendant”) 4 for injuries Mr. Hernandez allegedly sustained when his right hand was pulled into, crushed, and 5 de-gloved by a machine that folds and glues carboard boxes—the Martin Midline 924 Flexo-Folder 6 Gluer machine (the “Subject Machine”)—while he was working for his employer Pacific Southwest 7 Container (“PSC”) in November 2017. (See Doc. 1-1 (“Compl.”) ¶¶ 1, 2.) Plaintiffs allege that the 8 Subject Machine was defectively designed because the feed roller guard did not prevent fingers and 9 gloves from being pulled into the machine. (See id. ¶¶ 2, 19.) Defendant sold the Subject Machine 10 to PSC and serviced it in the years leading up to the November 2017 incident. (See id. ¶ 7.) Plaintiffs 11 allege Defendant knew of the Subject Machine’s defective design because of prior similar injuries, 12 but neither fixed the product nor warned of the danger. (See id. ¶ 24–27.) They assert claims for 13 strict products liability, negligence, and loss of consortium against Defendant. (See id.) 14 On October 25, 2019, the Court entered a Scheduling Order that set deadlines for non- 15 expert, expert disclosures, and expert discovery. (Doc. 18.) The parties twice-stipulated to continue 16 the case deadlines (see Docs. 20 & 32), which the Court granted (see Docs. 22 & 33). The deadline 17 to complete non-expert discovery expired on December 8, 2020, and the deadline to disclose experts 18 expired on December 15, 2020. (See Doc. 33.) 19 Prior to the close of non-expert discovery, on December 1, 2020, Plaintiffs’ experts 20 performed a “non-destructive inspection” of the Subject Machine while it was located at PSC, with 21 PSC’s consent (the “December 1, 2020 Experiment”). (Doc. 43 at 2; see also Doc. 37 at 3–4; Doc. 22 43-1 ¶ 5.) Defendant was not provided notice in advance of the December 1, 2020 Experiment, and 23 did not learn that it had been performed until December 8, 2020, when Plaintiffs produced 24 photographs and video taken during the Experiment. (Doc. 43 at 2; see also Doc. 37 at 4; Doc. 43- 25 1 ¶ 6.) 26 II. DISCUSSION 27 Defendant moves for an order “barring any use of experimental data or other information 28 obtained” from the December 1, 2020 Experiment, on grounds that the performance of the 1 Experiment without prior notice to Defendant was “inconsistent with the requirements of [Fed. R. 2 Civ. P.] 34 and 45.” (Doc. 37 at 3–4.) It seeks this evidentiary sanction under Federal Rules of 3 Civil Procedure 37(b)(2), which governs the “fail[ure] to obey an order to provide or permit 4 discovery,” and 37(c)(1), which governs the “fail[ure] to provide information or identify a witness 5 as required by Rule 26(a) or (e).” (See id. (citing Fed. R. Civ. P. 37(b)(2), (c)(1))). 6 Plaintiffs contend that Rule 37 does not apply because the December 1, 2020 Experiment 7 was neither performed pursuant to a court order nor withheld in violation of their disclosure 8 requirements. (See Doc. 43 at 3–4.) The Court agrees. In Unigard Sec. Ins. Co. v. Lakewood 9 Engineering & Mfg. Corp., 982 F.2d 363 (9th Cir. 1992), the Ninth Circuit “foreclosed the 10 application of Rule 37 sanctions in cases . . . where a party’s alleged discovery-related misconduct 11 is not encompassed by the language of the rule.” Id. at 368. 12 Here, there is no Court order that Plaintiffs have disobeyed. Defendant makes reference to 13 the Scheduling Order, but Plaintiffs complied with that Order, as they timely supplemented their 14 discovery responses with the photographs and video of the Experiment on December 8, 2020, the 15 deadline for non-expert discovery. There is also nothing to suggest that Plaintiffs withheld from 16 that production any information required to be disclosed under Rules 26(a) or (e). Under Unigard, 17 Rule 37 sanctions are thus unavailable.1 See Montoya v. Orange Cty. Sheriff’s Dep’t, No. SACV 18 11–1922 JGB (RNBx), 2013 WL 6705992, at *5 (C.D. Cal. Dec. 18, 2013) (Sanctions under Rule 19 37(c)(1) “inappropriate” where Rules 26(a) and (e) did not apply to the facts presented); AmeriPride 20 Servs., Inc. v. Valley Indus. Serv., Inc., No. CIV S-00-113 LKK/JFM, 2006 WL 2308442, at *4 n.5 21 (E.D. Cal. Aug. 9, 2006) (Sanctions under Rule 37(b)(2) “inapplicable” where no outstanding court 22 order violated). 23 III. ORDER 24 For the foregoing reasons, Defendant Bobst Group North America, Inc.’s “Motion to Bar 25 Ex Parte December 1, 2020 Experiment” under Fed. R. Civ. P. 37 is DENIED. 26 IT IS SO ORDERED. 27 28 1 The Court further declines to impose the requested evidentiary sanction pursuant to its inherent authority. See 1 Dated: February 10, 2021 /s/ Sheila K. Oberto . 2 UNITED STATES MAGISTRATE JUDGE 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28