In Linhares v. Woods Hole, No. 1:20-cv-12035-IT (D. Mass. Dec. 16, 2022), Massachusetts District Judge Indira Talwani rejected defendant Steamship Authority’s objection to produce documents in the possession of a third-party vendor, ruling that the third-party vendor records must be produced by Steamship Authority instead of requiring the plaintiff to request them.
This personal injury case involved claims from injuries allegedly sustained by the plaintiff on defendants’ vessel when he slipped on stairs he contended were not properly constructed of and/or treated with a sufficiently maintained non-skid surface. The plaintiff’s September 2022 letter requested that Steamship Authority produce documents, including records of the order, purchase, acquisition, installation, modification, replacement, and/or repairs, related to the Tread identified in the Answers to Interrogatories. During discovery conferences, the Steamship Authority refused to produce the documents on the ground that they are in the possession of a third-party vendor.
In his motion to compel, the plaintiff contended that even if such records are in the possession of a third-party vendor that the Steamship Authority uses to perform periodic refurbishments of the Vessel, those records are in the Steamship Authority’s “possession, custody, or control” under Rule 34(a) and that these documents were “crucial” to his understanding of the Tread in question. The Steamship Authority contended that while it can make a demand for the Tread records from the third-party vendor, such a demand does not constitute control under Rule 34(a) and also contended that because the plaintiff could subpoena the documents from the third-party vendor, the Steamship Authority was under no obligation to produce them.
Judge Talwani began her analysis of the issue by stating: “As an initial matter, the Steamship Authority has not properly objected to Linhares’s Rule 34 request for the Tread-related documents where on the record before the court it appears that the Steamship Authority has made its written objections for the first time in its opposition to the motion to compel.”
Continuing, she stated: “Nor are the objections warranted. For purposes of Fed. R. Civ. P. Rule 34(a)(1)(A),’“[t]he concept of ‘control’ has been construed broadly.’…’[A] document is ‘under a party’s ‘control’ when that party has the right, authority or ability to obtain [the] document[ ] upon demand.’…While the Steamship Authority refutes Linhares’s contention that the Steamship Authority has the “right” to demand the records at issue,…nothing in the record suggests that the Steamship Authority—as a customer of the third-party shipyard servicing the Vessel—does not have the practical ability to obtain the service-related records…The Steamship Authority’s second argument that it is under no obligation to produce the records because Linhares could subpoena the documents from the shipyard himself is unavailing. In Shcherbakovskiy v. Da Capo Al Fine, Ltd., the Second Circuit case that Steamship Authority cites for this proposition continues on to note that ‘if a party has access and the practical ability to possess documents not available to the party seeking them, production may be required.’”
Ruling that the third-party vendor records must be produced by Steamship Authority instead of requiring the plaintiff to request them, Judge Talwani stated: “To the extent that Linhares’s motion seeks to compel the Steamship Authority to produce documents related to the Tread, the motion is granted. As Linhares contends that he needs to review the documents in order to adequately prepare for depositions of the Steamship Authority’s representatives, the Steamship Authority shall produce the documents, including records of the order, purchase, acquisition, installation, modification, replacement, and/or repairs, related to the Tread no later than January 3, 2023.”
So, what do you think? Are you surprised that the Court ordered the defendant to produce the third-party vendor records? Please share any comments you might have or if you’d like to know more about a particular topic.
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