At the time of the hearing, counsel for the Parties advised this Court that they had resolved all but four issues set forth in the Motion to Compel: (1) the production of a deposition transcript in the “Torres” case, in which Defendant was a party in the U.S. District Court for the Southern District of Texas; (2) whether documents that Defendant produced were appropriately redacted; (3) whether drawings or specifications of alleged alterations to the Sleeper are discoverable; and (4) whether incidents taking place after the purported injury in question were discoverable under the Fed. R. Civ. P. 26(b)(1). Counsel for plaintiff further advised the court that an extension of the current discovery period may be required as a result of the production of additional information. This Court will address these issues ad seriatim.[1]

First, the Court directs Defendant to produce a copy of the deposition transcript at issue in Torres, assuming (1) Defendant has a copy of the deposition in question or can easily obtain a copy, and (2) there is no court order prohibiting Defendant from disclosing the deposition transcript to Plaintiffs. As this Court explained to Plaintiffs' counsel, to the extent that this deposition transcript is sealed in the Texas court, this Court has no authority to unseal this document.

Second, this Court reviewed in camera what the Parties agreed was a representative sampling of the redacted documents in question and finds that the redactions are appropriate because those portions clearly contain attorney work product and/or attorney-client communications. This Court therefore denies the Motion to Compel on this issue.

Third, Plaintiffs argue that changes to the plastic insert of the subject Rock ‘N Play sleeper (“Sleeper”) are discoverable to prove subsequent remedial measures under Fed. R. Evid. 407. Plaintiffs contend that Defendant redesigned the Sleeper three times, and that one or more of these redesigns involved changing the “lip” of the Sleeper to prevent positional asphyxia. Defendant counters that it has made available relevant CAD and other drawings and that there has been no relevant or material redesign of the plastic insert or the Sleeper. This Court denies Plaintiffs' request for an electronic discovery search of all of the internal correspondence and other electronically stored information requested but directs Defendant to produce easily-obtained drawings, specifications, or design documents of the Sleeper from the time of its first production through the present. This Court holds that these documents are within the scope of discovery under Fed. R. Civ. P. 26(b)(1), and makes no representation as to the ultimate admissibility of these documents.

*2 Fourth, Plaintiffs seek discovery of incidents involving infants suffering injury or death in the Sleeper for the period 2007-2017, including incidents that post-date the incident in question here (July 25, 2014). Plaintiffs' theorize that these incidents may be relevant to this case as “substantially similar” incidents that support their theory of medical causation. Plaintiffs support this proposed discovery by citing to Dollar v. Long, 561 F.2d 613, 617 (5th Cir. 1977), which holds that post-incident events may be “relevant to causation,” but not “to show defendant's prior knowledge or notice of a product defect.” Plaintiffs rely upon Dollar to support their argument that events, including subsequent events, may be substantially similar to the incident in question, and therefore admissible in evidence.

Defendant responds that Plaintiffs' proposed discovery is neither “relevant to any party's claim or defense [nor] proportional to the needs of the case.” Fed. R. Civ. P. 26(b)(1). For support, Defendant relies on Gibson v. Ford Motor Company, 510 F. Supp. 2d 1116, 1121 (N.D. Ga. 2007) (Duffey, J.), in which the Court held that “allowing discovery [to show substantial similarity] based on ... unsupported conclusory statements would be a fishing expedition ....” The Court explained that for discovery purposes, “conclusory generalities ... simply ignore the substantial similarity requirement of relevance.” Id. On this ground, the Court held that “[d]iscovery ... is precluded.” Id. Defendant contends that Plaintiffs' justifications for discovery of these and other events are no less “conclusory” than those at issue in Gibson. In particular, Defendant argues that Plaintiffs' experts admit that there is no medical literature to support their theory of medical causation on positional asphyxia.

Defendant also argues that in addition to not being relevant for purposes of Rule 26(b)(1), discovery of this nature would not be proportional to the needs of the case. Defendant relies on the fact that there are only approximately $14,000 in medical expenses at issue in this case, and that Plaintiffs at one point argued that the amount in controversy did not exceed $75,000. [See ECF 4, 9, 11.] Defendant also contends that the proposed discovery will not resolve the issues in the case because they will be insufficient to satisfy Plaintiffs' burden of proving medical causation. Defendant also points to the expense of taking additional discovery that would be required to try to prove that these incidents are substantially similar.

This Court holds that Plaintiffs have met their burden to show that these post-incident events are at least discoverable, although this Court expressly reserves judgment on the ultimate admissibility of this information. This Court therefore directs Defendant to produce incident information for the post-incident events in the same manner it previously produced pre-incident information. Under the circumstances of this case, however, the broader electronic discovery sought by Plaintiffs on these other incidents would violate the proportionality principle under revised Fed. R. Civ. P. 26(b)(1).

IT IS SO ORDERED this 19 day of March, 2018.

Jointly submitted by: