Pickard v. Amazon.com
Pickard v. Amazon.com
2022 WL 20717272 (W.D. La. 2022)
October 12, 2022
McClusky, Kayla D., United States Magistrate Judge
Summary
The court granted the plaintiffs' motion to compel Amazon to produce documents related to similar battery chargers sold on its website before December 21, 2019. The court found that the requested documents were relevant to the plaintiffs' claims and were proportional to the needs of the case. The court also noted the importance of ESI in modern legal disputes.
ANGELA PICKARD, ET AL.
v.
AMAZON.COM, INC., ET AL
v.
AMAZON.COM, INC., ET AL
CIV. ACTION NO. 5:20-01448
United States District Court, W.D. Louisiana
Filed October 12, 2022
Counsel
Charles E. Tabor, Law Office of Charles E. Tabor, Shreveport, LA, Janie L. Jordan, Pro Hac Vice, Richard W. Mithoff, Pro Hac Vice, Mithoff Law Firm, Houston, TX, Nicholas M. Bruno, Pro Hac Vice, Beck Redden, Houston, TX, for Angela Pickard, Dustin Pickard, Wendy Elmore, Joni Thompson, Wayne Pickard, Stacey Coale.Douglas J. Cochran, Stone Pigman et al., Baton Rouge, LA, Jacob Logan Speckhard, Pro Hac Vice, Perkins Coie, San Diego, CA, Walter Frederick Metzinger, III, Stone Pigman et al., New Orleans, LA, William Brendan Murphy, Pro Hac Vice, Perkins Coie, Seattle, WA, for Amazon.com Inc.
McClusky, Kayla D., United States Magistrate Judge
MEMORANDUM ORDER
*1 Before the undersigned Magistrate Judge, on reference from the District Court, are the following motions: (1) motion to compel discovery responses [doc. # 35] filed by Plaintiffs Angela Pickard, et al.; (2) cross-motion for protective order [doc. # 37] filed by Defendant, Amazon.com, Inc.; and (3) motion for oral argument [doc. # 43] filed by Defendant, Amazon.com, Inc. For reasons assigned below, Plaintiffs' motion to compel is GRANTED, and Defendant's motions are DENIED.[1]
Background
On November 10, 2020, Plaintiffs Angela Pickard, Dustin Pickard, Wendy Elmore, Joni Thompson, and Wayne Pickard (collectively, the “Pickards”), filed the instant complaint against Defendant, Amazon.com, Inc. (“Amazon”) and various other Amazon entities. (Compl.). The Pickards have amended their complaint twice since its inception, and, consequently, the second amended complaint (“SAC”) is the operative pleading in the matter.[2] See SAC [doc. # 17]. The SAC effectively dismissed the other Amazon entities. Id.
According to the SAC, the Pickards are the children of decedent, Archie Pickard (“Archie”), and bring this wrongful death and survival action to recover damages following Archie's death from severe burns that he suffered in a fire that purportedly was started by an “18650 Rechargeable Li-ion Battery Charger 4 Slot Universal Smart Li-ion Battery Charger” (hereinafter, “battery charger”) that Archie bought from an Amazon third-party seller, Jisell, using Amazon's website. (SAC). The SAC asserted facts to support claims for products liability, negligent undertaking, and non-manufacturing seller liability. Id.
Although tedious, it is instructive for purposes of the present discovery dispute to recite the following non-exhaustive allegations from the SAC:
16. Amazon promises to protect its customers, like Archie Pickard, from dangerous items sold by third-party sellers on Amazon's website. Specifically, Amazon promises to (1) remove items that do not comply with its safety policies, (2) directly notify consumers if there is a safety issue with a product, (3) monitor safety documentation for products, (4) continuously improve its tools to prevent unsafe products from being listed, and (5) vet new sellers.
*2 17. Amazon promises to remove items sold by third-party sellers on its website that are unsafe ...
* * *
20. Amazon also promises its customers that it monitors safety documentation of products sold by third-party sellers on its website. Amazon's “Product Safety and Compliance” document states that “[w]e have a dedicated global team of compliance specialists that review submitted safety documentation, and we have additional qualification requirements that sellers must meet to offer products.” That same document, again, promises that “[o]nce a product is available in our store, we continuously scan our product listings and updates to find products that might present a concern.”
* * *
22. Finally, Amazon represents that it “continuously scans our product listings and updates to find products that might be of concern. Amazon's “Product Safety and Compliance” document promises that “Every few minutes, our tools review the hundreds of millions of products, scan the more than five billion attempted daily changes to product detail pages, and analyze the tens of millions of customer reviews that are submitted weekly for signs of a concern and investigate accordingly.”
23. Amazon did not perform any of these tasks with regard to the battery charger.
* * *
29. Jisell, the third-party seller, manufactured the battery charger. Jisell is an alien manufacturer because it is a Chinese company, based in Shang Hai. According to the “Detailed Seller Information” on Amazon's website, Jisell is the fictious or “friendly” name for Shang Hai Ji Xiao Dian Zi Ke Ji You Xian Gong Si, a Chinese company ...
* * *
32. Amazon knew, or reasonably should have known, that the battery charger was unreasonably dangerous to its customers.
33. Amazon's website allows purchasers of products to leave reviews of products purchased on Amazon's website, including a description of problems that a customer encountered with the product.
34. Jisell, the third-party seller of the battery charger, sells a substantively similar six-slot battery charger (“substantively similar battery charger”) on Amazon's website. This substantively similar battery charger is identical in all respects to the battery charger that Archie Pickard purchased, with one exception. The substantively similar battery charger can charge six batteries at a time, while the battery charger at issue can only charge four batteries at a time. This slight difference makes no difference as to the safety issues with the battery charger and the substantively similar battery charger.
35. This substantively similar battery charger had several reviews indicating that the battery charger had safety issues. Over the course of several months, several reviews of a substantively similar battery charger state that the item is “dangerous.”
36. An October 13, 2019 review noted that the substantively similar battery charger is “dangerous” and a “fire hazard.” This review stated that the substantively similar battery charger “[s]parked like crazy when first plugged in.”
* * *
40. In addition to Amazon's general promises to review safety information for products ... Amazon specifically monitored reviews of the substantively similar battery charger. For example, Amazon removed an April 6, 2018 review of the substantively similar battery charger. Additionally, Amazon removed similar reviews of the substantively similar battery charger posted on May 1, 2019, in July 2018, and in August 2018. These actions demonstrate that Amazon was actively monitoring the reviews on the substantively similar battery charger.
*3 41. If Amazon's undertakings ... were performed with due care, both the substantively similar battery charger and the battery charger purchased by Archie Pickard would have been removed from Amazon's website.
42. At a minimum, Amazon's undertakings ... should have determined that these reviews from the substantively similar battery charger indicated that the battery charger that Archie Pickard purchased was defective.
(SAC).
Amazon neither challenged the sufficiency of the Pickards' factual allegations, nor the viability of their asserted theories of recovery via Rule 12 motion. Instead, Amazon filed responsive pleadings to the complaint, as twice amended, wherein it disputed many of the foregoing allegations. See Answers [doc. #s 15 & 20].
Once issue was joined and discovery commenced, the Pickards sought discovery from Amazon pertaining to Amazon's safety investigation of customer complaints, defect reports, or other reports of defects, malfunctions, or failures relating to battery chargers that were similar to the subject battery charger. In response to Amazon's various objections to the scope of the discovery requests, the Pickards ultimately refined their requests for production to documents related to four-and six-slot battery chargers sold on Amazon's website before December 21, 2019 and that were either (1) sold by Jisell; (2) sold under ASIN[3] B079GTHXCT by other sellers; (3) branded or stamped with the name “Garberiel” or “HZMLBC” or sold under the name “Garberiel” or “HZMLBC”; or (4) manufactured by Guangzhou Shangtuomaoyi Co Ltd. Nonetheless, Amazon made it clear that it
will not be providing information regarding products other than the battery charger at issue in this case (ASIN B07PGTHXCT), as such information is neither relevant nor proportional to the needs of the case. It is also unduly burdensome and not reasonably calculated to lead to the discovery of admissible evidence.
(July 26, 2022 letter from D. Cochran to J. Jordan, et al.; M/Compel, Exh. K).
Accordingly, on August 10, 2022, the Pickards filed, under seal,[4] the instant motion to compel Amazon to produce documents regarding similar battery chargers, as described above. The motion also seeks entry of an order requiring Amazon to produce a corporate representative who may testify about the battery chargers that are the subject of the motion to compel production of documents.
On September 1, 2022, Amazon filed, under seal, its opposition to the motion to compel and an incorporated cross-motion for entry of a protective order declaring that Amazon need not furnish responses to the categories of information sought by the Pickards or prepare its corporate representative to answer questions “regarding products not at issue.” (Amazon Opp. Brief and Cross-Motion for Prot. Order [doc. # 37]).
On September 8, 2022, the Pickards filed their reply brief, under seal. (Pl. Reply [doc. # 40]).
On September 9, 2022, Amazon filed the instant motion for oral argument on the pending discovery motions “given the technical nature of the discussion regarding Amazon's policies and procedures (which are central to plaintiffs' motion), as well as the considerable volume of information and documents submitted with the parties' respective briefs ...” [doc. # 43]. The matter is ripe.
Analysis
I. The Sealed Documents
*4 The parties filed the instant motion and memoranda under seal presumably pursuant to the stipulated protective order entered in this matter. See Protective Order [doc. # 27]. Prior to signing the protective order, however, the undersigned modified its terms to make it clear that “nothing in this order shall be construed as delegating to the parties ‘the judiciary's solemn duty to promote judicial transparency.’ ” Id., pg. 9 (quoting Binh Hoa Le v. Exeter Fin. Corp., 990 F.3d 410, 420 (5th Cir. 2021)).
Upon a plain and unassisted review of the sealed filings, the undersigned discerns no obvious trade secrets or material confidential information that would warrant departure from the default rule that judicial records should remain unsealed. See Le, supra. In fact, at least some of the information already is set forth in the pleadings or otherwise appears in another published case. See Skaggs v. Amazon.com, Inc., 334 So.3d 780 (La. App. 1st Cir. 2021), writ denied, 333 So.3d 1243 (La. 2022).
Accordingly, the court will refrain from sealing this order and also intends to unseal the associated motions and filings unless, within the next seven (7) days from the date of this order, the parties establish good cause to overcome the default rule.
II. The Discovery Motions
a) Law
The Federal Rules of Civil Procedure provide that,
[u]nless otherwise limited by court order, the scope of discovery is as follows: Parties may obtain discovery regarding any nonprivileged matter that is relevant to any party's claim or defense and proportional to the needs of the case, considering the importance of the issues at stake in the action, the amount in controversy, the parties' relative access to relevant information, the parties' resources, the importance of the discovery in resolving the issues, and whether the burden or expense of the proposed discovery outweighs its likely benefit. Information within this scope of discovery need not be admissible in evidence to be discoverable.
FED. R. CIV. P. 26(b)(1).
The 2015 amendments to Rule 26 deleted “from the definition of relevance information that appears ‘reasonably calculated to lead to the discovery of admissible evidence’ because ‘[t]he phrase has been used by some, incorrectly, to define the scope of discovery’ and ‘has continued to create problems’ given its ability to ‘swallow any other limitation on the scope of discovery.’ ” Robroy Indus.-Tex., LLC v. Thomas & Betts Corp., No. 2:15-CV-512-WCB, 2017 WL 319064, at *4 (E.D. Tex. Jan. 23, 2017) (quoting FED. R. CIV. P. 26, 2015 comm. note).
State Auto. Mut. Ins. Co. v. Freehold Mgmt., Inc., No. 3:16-CV-2255-L, 2018 WL 3548866, at *2 (N.D. Tex. July 24, 2018). “To find the boundaries of discovery, a court must consider two issues: relevance and proportionality. And the two issues must be considered in tandem, as ‘[a]ny information sought that is not relevant to a party's claim or defense is not discoverable, regardless of proportionality.’ ” Dixon v. Spurlin, No. 1:18-CV-00133, 2020 WL 6707325, at *8 (W.D. La. Nov. 13, 2020) (quoting Firefighters' Ret. Sys. v. Citco Grp. Ltd., No. CV 13-373-SDD-EWD, 2018 WL 276941, at *4 (M.D. La. Jan. 3, 2018)).
“A party may serve on any other party a request within the scope of Rule 26(b) ... to produce ... any designated documents or electronically stored information ... or any designated tangible things” that are within the “party's possession, custody, or control ...” FED. R. CIV. P. 34(a)(1)(A) & (B). Rule 34's definition of “possession, custody, or control,” includes more than actual possession or control of the materials; it also contemplates a party's “legal right or practical ability to obtain the materials from a nonparty to the action.” White v. State Farm Mut. Auto. Ins. Co., 2011 WL 3423388 (M.D. La. Aug. 4, 2011 (citations omitted). A party must “make a reasonable search of all sources reasonably likely to contain responsive documents.” Id. A party also is “charged with knowledge of what its agents know or what is in records available to it.” Autery v. SmithKline Beecham Corp., 2010 WL 1489968 (W.D. La. Aug. 4, 2011) (citation omitted).
*5 A party objecting to discovery “must state with specificity the objection and how it relates to the particular request being opposed ...” Reyes v. Red Gold, Inc. 2006 WL 2729412 (S.D. Tex. Sept. 25, 2006) (citations omitted). In other words, to escape the production requirement, a responding party must interpose a valid objection to each contested discovery request. McLeod, Alexander, Powel & Apffel, P.C. v. Quarles, 894 F.2d 1482, 1485 (5th Cir. 1990) (citation omitted). Conclusory objections that the requested discovery is “overly broad,” “burdensome,” “oppressive,” and “irrelevant,” do not suffice. Id. Furthermore, in the absence of good cause, when a party fails to object timely to interrogatories, production requests, or other discovery efforts, then any objections thereto are waived. In re: United States of America, 864 F.2d 1153, 1156 (5th Cir.1989); see also FED. R. CIV. P. 33(b)(4). An evasive or incomplete answer or response is treated as a failure to answer or respond. FED. R. CIV. P. 37(a)(4).
In addition, a party may name an entity as a deponent so long as the party also describes with reasonable particularity the matters for examination. FED. R. CIV. P. 30(b)(6). The named entity/deponent then must designate one or more persons or officials and the matters upon which each will testify. Id.
A party seeking discovery may move for an order compelling an answer, designation, production, or inspection if a party, inter alia, fails to produce requested documents, or if a corporation fails to make a designation under Rule 30(b)(6). FED. R. CIV. P. 37(a)(3)(B)(ii), (iv). If the motion to compel is denied, then the court may issue any protective order authorized under Rule 26(c). FED. R. CIV. P. 37(a)(5)(B).
Upon a showing of good cause, a court may issue an order to “protect a party or person from annoyance, embarrassment, oppression, or undue burden or expense, including [an order] ... forbidding the disclosure or discovery ... [or] forbidding inquiry into certain matters, or limiting the scope of disclosure or discovery to certain matters ...” FED. R. CIV. P. 26(c)(1)(A) & (D). The party seeking the protective order must establish good cause for the entry of the order by making a “particular and specific demonstration of fact, as distinguished from stereotyped and conclusory statements.” Gulf Oil Co. v. Bernard, 452 U.S. 89, 102, 101 S.Ct. 2193 n.16, (1981); see also In re Terra Int'l, Inc., 134 F.3d 302, 306 (5th Cir. 1998). Furthermore, “Rule 26(c) confers broad discretion on the trial court to decide when a protective order is appropriate and what degree of protection is required.” Seattle Times Co. v. Rhinehart, 467 U.S. 20, 36, 104 S.Ct. 2199 (1984).
b) Discussion
Amazon contends that the Pickards' claims are limited to a single model battery charger that their decedent purchased from a third-party seller, Jisell, on Amazon's store on December 15, 2019. Amazon maintains that it already has produced information and documents pertaining to the third-party seller and product at issue, including Amazon's investigation and actions relating to potential safety reports associated with the at-issue charger. Nevertheless, the documents produced show that there were no reported safety issues prior to the December 2019 incident.
Conversely, the Pickards assert that documents from investigations of similar battery chargers are relevant to (1) their non-manufacturing seller claim because they will show what Amazon knew, or should have known, of the risks associated with the subject battery charger; and (2) their negligent undertaking claim because the documents show both the scope of Amazon's undertaking and whether Amazon performed its undertaking responsibly.
In support of their motion, the Pickards adduced a copy of Amazon's Product Safety and Compliance – Investigations Procedure – Global (“PS&C Policy”) which states, in pertinent part, that,
*6 Customers' safety is our number one priority. The Product Safety team's goal is to minimize risk to Amazon's customers by investigating potentially unsafe products and removing them from sale if appropriate and necessary. We treat seriously any risk of injury to customer health and investigate each safety issue raised by customers.
* * *
When a customer comments on the safety of a product, either verbally/by chat to CS, via email, or website review, we must do our due diligence and learn more about the potential for concern in order to identify the best course of action.
* * *
Once you have determined that raised concern is within the scope of Product Safety, review case information in detail to gather the following information ... [d]o we have any previous similar or identical reports of the same issue, i.e., is there a “trend”?
* * *
Check Previous Investigations tab and Remedy TT system or local tools to review any past tickets and Andon Cords and their resolution outcome ... You can also do a search by Merchant ID and brand name ... This step will help to determine the following ... [w]hether prior concerns are associated with the same seller.
* * *
Check reviews on related ASINs ... Also, check reviews on the products with the same name and brand, but listed for sale in a different quantities/bundles ...
* * *
In order to make your decision regarding the product, analyze all data points and information collected during the investigation ... Most common data points collected by Product Safety team are the following ... [p]roduct safety concerns on similar products sold by other sellers of the same brand or seller on our website...
(“PS&C Policy”; M/Compel, Exh. A [doc. #35-2] (emphasis added)).
The Pickards also submitted a copy of Amazon's Product Safety Recalls NA/LATAM – SOP (“Recalls Policy”), which sets forth the “Public Recall process to perform the catalog research, identify and remove affected products in the North America and Latin America marketplaces.” (Recalls Policy; M/Compel, Exh. B). The Recalls Policy requires Amazon employees to search for the affected product using the product name, brand and manufacturer listed in the notice. Id. Furthermore, the investigating employee must create queries using all the brands, manufacturers, product names, part/model numbers and SKUs listed in the notice. Id.
In addition, the Pickards' expert, Richard Meier, determined, more likely than not, that the ignition source for the fire was arcing on the electrical cord of the subject battery charger, which is the same cord used on other battery chargers. (Affidavit of Richard Meier; Pl. M/Compel, Exh. C). For instance, Meier compared exemplar 4-slot and 6-slot battery chargers with the subject battery charger and determined that the only functional difference between them was the number of batteries that could be charged at one time (four versus six). Id. The exemplar 4-slot battery charger was purchased from Amazon's website and sold by Garberiel Direct. Id. The subject and exemplar 4-slot battery chargers were identical. Id.
Meier also compared the exemplar 4-slot battery charger with an exemplar 6-slot battery charger (that had “HZMLBC”) on its front and back covers), which he understood were purchased from Amazon's website and sold by Jisell. Id. Meier opined that the battery chargers were similar in design and that any differences related to minor component variances. Id.
*7 Finally, Meier compared the electrical cords on all three battery chargers and found them to be the same. Id. Indeed, all three electrical cords were imprinted with the same manufacturer name, Zhong Shan XinXin Electric Co., Ltd. Id. Meier added that, although “the load end electrical cord on the exemplar 6-slot battery charger is integrated into the battery charge[r]'s circuit board rather than a separate plug-in cord as seen on the incident and exemplar 4-slot battery chargers, all three electrical cords were otherwise identical.” Id. Meier concluded that
[c]ustomer reviews for the exemplar 6-slot battery charger indicate that it had safety issues and customers stated it was dangerous and a fire hazard. Investigation of these complaints for the exemplar 6-slot battery charger should have alerted Amazon to the potential safety hazard for the incident 4-slot battery charger Archie Pickard purchased, especially since the battery chargers have the same electrical cord.
In sum, the Pickards seek production of documents related to four discrete categories of battery chargers that have similar qualities to the subject battery charger, and potentially including electrical cords that were made by the same manufacturer as the cord used in the subject charger. According to the Pickards, the requested discovery is relevant to show whether there was a safety issue with the similar battery charger, and whether the investigation of the similar battery charger led Amazon to actually know or, alternatively, that Amazon should have known, that the battery charger purchased by Archie Pickard suffered from the same defect.
Amazon interposed various objections to the relevancy of the requested discovery. First, Amazon argues that its Recalls Policy only applies to public recalls and has nothing to do with responding to isolated complaints. However, as the Pickards point out, the Recalls Policy shows the actions Amazon can take if called upon to do so. Moreover, Amazon's PS&C Policy contemplates searches, at minimum, for similar products by other sellers of the same brand. In fact, in Skaggs v. Amazon.com, Inc., the court documented efforts undertaken by Amazon to uncover safety issues with similar products:
Ms. Harvey attested that the Amazon Product Safety Team monitors customer reviews and other data sources to identify potential product safety issues, regardless whether the product was sold by Amazon or a third-party seller, and that if an issue is identified, Amazon may remove a product from the store or suspend the seller. She further explained that in September of 2016, several months after Ms. Skaggs's purchase, Amazon's Product Safety Team identified safety issues with certain battery models sold by four third-party sellers, one of which was T&G. Eventually, Amazon's Product Safety Team identified safety issues with certain battery models sold by four third party sellers, one of which was T&G. Eventually, Amazon's Product Safety Team identified approximately sixty safety reports for batteries sold by those sellers, which were spread across fifty ASINs. Ms. Harvey stated that Amazon emailed the buyers of those specific battery models to advise them that the product may present a fire hazard and to provide a refund, but did not send a message to Ms. Skaggs because there were no safety reports associated with the product that she purchased.
Skaggs, 334 So.3d at 790–91.
Amazon contends that Skaggs is not pertinent here because the product safety action in that case involved products sold by a few identified sellers, not products “similar” to some other product. This argument, however, is belied by the discrete category of sellers, brand names, and manufacturers for which the Pickards seek responsive documents. Amazon further argues that in Skaggs, the court ultimately held that information pertaining to other products and sellers did not provide factual support to establish that Amazon undertook any duty with respect to the product at issue. See Skaggs, supra. However, the Skaggs court stated that even if “Amazon voluntarily assumed a duty to protect Ms. Skaggs and breached that duty, we find that Ms. Skaggs failed to present sufficient evidence to establish that Amazon's actions either increased the risk of harm to Ms. Skaggs or that her reliance on the undertaking caused her injury.” Skaggs, 334 So.3d at 791. Needless to say, no determination regarding an increased risk of harm or reliance on Amazon's undertaking has been made in this case, and, consequently, evidence pertaining to whether Amazon breached a duty that it undertook remains relevant.
*8 Amazon further argues that, under Louisiana law, it is not considered a seller of the subject battery charger, but even if were a non-manufacturing seller of a defective product, it had no duty to inspect the product prior to sale to determine the possibility of inherent vices or defects. See Jackson v. Sears Authorized Retail Dealer Store, 821 So.2d 590, 593 (La. App. 2d Cir. 2002). The Pickards concede that Amazon had no duty to inspect battery chargers, but seek to discover what Amazon knew, or should have known, based on the investigations that it chose to undertake.
In its brief, Amazon stresses the differences between the subject battery charger and the other battery chargers identified by the Pickards. Amazon notes that the Pickards identified only seven allegedly “similar” battery chargers that were offered for sale by Amazon, four of which were not even sold on Amazon's site until after the date of the incident at issue. See Comparison of Battery Chargers; M/Compel, Exh. M.[5] For the three remaining chargers, Amazon observes that two of them are 6-slot chargers. Furthermore, the 4-slot charger is facially distinct from the charger at issue. See Amazon Opp. Memo., pg. 11. Moreover, before Meier could conclude that the 4-slot charger at issue was materially similar to the 6-slot chargers, he had to take them apart – a duty not owed or assumed by Amazon.
Amazon also adduced evidence from licensed professional electrical engineer, Michael Custer, to show that there were a number of obvious and material differences between the chargers discussed in Meier's affidavit that impacted both functionality and performance. (Affidavit of Michael Custer, P.E., Amazon Opp. Brief, Exh. 3). For example, the 4-slot charger employs a removable two-conductor cord, whereas the 6-slot charger has a fixed two-conductor cord. Id. The internal circuit boards also differ in varying ways. Id. In short, Custer opined that it was not possible to determine whether two electrical appliances are both susceptible to the same failure modes from a simple visual inspection. Id.
Amazon cites Piacenti v. General Motors Corp., for the proposition that, in the products liability context, discovery pertaining to a different product model should not be permitted unless it is shown that it is substantially similar to the model at issue. Piacenti v. Gen. Motors Corp., 173 F.R.D. 221, 225 (N.D. Ill. 1997). Otherwise, one is “comparing apples and oranges.” Id. Nevertheless, discovery of other models may be permitted where they share the same component parts or structural defects as the model at issue. See Schaap v. Executive Indus., Inc., 130 F.R.D. 384, 387 (N.D. Ill. 1990).
The court certainly recognizes Amazon's arguments regarding the differences between the battery chargers identified by the Pickards' expert and the charger at issue. However, the chargers do appear to use a version[6] of the same electrical cord that is alleged to be the source of the fire at issue. The alleged differences between the products present fact-dependent issues that are better suited for a summary judgment motion or a motion in limine, as opposed to a means to truncate potentially relevant discovery. In fact, unless and until the documents for the purportedly similar chargers are produced, the materiality of any differences remains ill-defined and speculative. Moreover, where, as here, the Pickards' claims for negligent undertaking and “seller” liability remain pending, they should be accorded the opportunity to discover facts to support those claims. See FED. R. CIV. P. 26(b)(1).
*9 Of course, an additional consideration is that Amazon has not adduced evidence to show that it will suffer undue burden or expense in responding to the disputed discovery requests. Moreover, the requested discovery is potentially vital to the Pickards' case, which is a wrongful death and survival action. Amazon also has significantly greater resources and ready means to access the information. Accordingly, the court concludes that the requested discovery is relevant to the Pickards' present claims and proportional to the needs of the case. Further, Amazon has not demonstrated good cause for entry of a protective order.
Having determined that Amazon must produce the disputed discovery documents, the court further finds that Amazon's corporate representative, and its other fact witnesses (but only insofar as the fact witnesses have any personal knowledge about the matter), should be prepared to testify about the similar battery chargers, and associated information, that formed the basis for the associated motion to compel production of documents.
III. Oral Argument
The court's having resolved the pending discovery motions on the written record, Amazon's motion for oral argument is moot and is denied as such.
Conclusion
For the above-assigned reasons,
IT IS ORDERED that the Pickards' motion to compel [doc. # 35] is GRANTED. Within the next fourteen (14) days from the date of this order, Amazon shall respond to the Pickards' requests for the production of documents for four and six-slot battery chargers sold on Amazon's website before December 21, 2019 and that were either (1) sold by Jisell; (2) sold under ASIN B079GTHXCT by other sellers; (3) branded or stamped with the name “Garberiel” or “HZMLBC” or sold under the name “Garberiel” or “HZMLBC”; or (4) manufactured by Guangzhou Shangtuomaoyi Co Ltd.[7] In addition, the scope of the deposition of Amazon's corporate representative (and other related fact witnesses, insofar as the fact witnesses have any personal knowledge about the matter) will include testimony about the similar battery chargers and other information compelled herein.
IT IS FURTHER ORDERED that Amazon's cross-motion for protective order [doc. # 37] and motion for oral argument [doc. # 43] are DENIED.
In Chambers, at Monroe, Louisiana, on this 12th day of October, 2022.
Footnotes
As these motions are not excepted in 28 U.S.C. § 636(b)(1)(A), nor dispositive of any claim on the merits within the meaning of Rule 72 of the Federal Rules of Civil Procedure, this ruling is issued under the authority thereof, and in accordance with the standing order of this court. Any appeal must be made to the district judge in accordance with Rule 72(a) and L.R. 74.1(W).
An “amended complaint supersedes the original complaint and renders it of no legal effect, unless the amended complaint specifically refers to and adopts or incorporates by reference the earlier pleading.” King v. Dogan, 31 F.3d 344, 346 (5th Cir. 1994) (citing Boelens v. Redman Homes, Inc., 759 F.2d 504, 508 (5th Cir. 1985)). Here, the SAC does not adopt or incorporate earlier iterations of the complaint.
“ASIN” means Amazon Standard Identification Number and is a unique ten-digit alphanumeric identifier for a product listed for sale in Amazon's store.
In their reply, the Pickards point out that they only seek documents related to chargers “sold on Amazon's website before December 21, 2019.” (Pickards Reply Brief, pg. 10). Therefore, if some of the similar battery chargers identified by the Pickards were not sold on Amazon's website prior to December 21, 2019, then they are not subject to the Pickards' discovery requests or this court's order. Id.
At least one of the chargers had a fixed cord, rather than a detachable cord.
For purposes of clarity, the requests include the similar six-slot battery charger sold by Jisell which has the same electrical cord as the incident battery charger.