The opinion of the court was delivered by: Thomas J. Rueter Chief United States Magistrate Judge
Presently before the court are plaintiff's motion to compel production of documents and interrogatory responses (the "Motion") (Doc. No. 27)*fn1 and defendants' opposition thereto (Doc. No. 30). The court held a hearing on the Motion on September 8, 2009, and also considered post-hearing letter briefs of the parties dated September 10 and 24, 2009 (plaintiff) and September 14, 2009 (defendants).
Defendants raise several objections to the plaintiff's discovery requests. Defendants object to discovery requests directed to a related foreign non-party entity. Defendants also object to the breadth and relevancy of some of the discovery requests.
1. Discovery From a Foreign Non-Party Entity
Plaintiff seeks information relating to, and the production of documents from, a Spanish non-party entity, Gamesa Eolica ("Eolica"). Eolica is a manufacturer of wind turbines worldwide. (Defs.' Letter Brief (9/14/09) at 1.) The turbine at issue in this lawsuit, Tower 19, was manufactured by Eolica. Tower 19 was installed and maintained by defendants. The discovery propounded by plaintiff includes interrogatories in which plaintiff seeks information about Eolica and/or its activities in Spain, and a request for production of documents in which plaintiff seeks documents from defendants and Eolica. At the hearing, defendants identified Eolica as their "parent." In their letter brief dated September 14, 2009, defendants informed the court that Eolica is a "related" corporation, sharing the same parent, Spanish entity Gamesa Corporacion Technologica, with defendants. This new information prompted plaintiff to submit an additional letter brief addressing discovery issues between "sister corporations."
The first issue before the court is whether defendants have the required "control" over the information in the hands of Eolica sought by plaintiff. Fed. R. Civ. P. 34(a) provides that a party may serve a request for production of documents that are "in the possession, custody or control of the party upon whom the request is served." The party seeking production of documents bears the burden of establishing the producing party's control over the documents. Camden Iron and Metal, Inc. v. Marubeni America Corp., 138 F.R.D. 438, 441 (D. N.J. 1991). "Control" has been defined as "the legal right, authority or ability to obtain documents upon demand." Id. See also U.S. Int'l Trade Comm'n v. ASAT, Inc., 411 F.3d 245, 254 (D.C. Cir. 2005) (same); Gerling Int'l Ins. Co. v. Comm'r of Internal Revenue, 839 F.2d 131, 140 (3d Cir. 1988) (same). The determination of whether an entity has "control" over documents under Fed. R. Civ. P. 34(a), is a "very fact specific" inquiry. Pitney Bowes, Inc. v. Kern Int'l, Inc., 239 F.R.D. 62, 66 (D. Conn. 2006) (citations omitted).
Where the litigating party is the subsidiary and the parent possesses the records, courts have found control to exist on the following grounds: (1) the alter ego doctrine which involved piercing the corporate veil; (2) the subsidiary was an agent of the parent in the transaction giving rise to the lawsuit; (3) the relationship is such that the agent-subsidiary can secure documents of the principal parent to meet its own business needs and documents helpful for use in litigation; (4) there is access to documents when the need arises in the ordinary course of business; and (5) the subsidiary was marketer and servicer of parent's product in the United States. Camden Iron, 138 F.R.D. at 441-42.
Cases "involving sister corporations under common control follow the same pattern as the cases involving a litigating subsidiary." Gerling, 839 F.2d at 141. Where sister corporations are involved, the "requisite control has been found only where the sister corporation was found to be the alter ego of the litigating entity, or where the litigating corporation has acted with its sister in effecting the transaction giving rise to the suit and is litigating on its behalf." Heraeus Electro-Nite Co. v. Midwest Instrument Co., Inc., 2006 WL 3004877, at *3 (E.D. Pa. Oct. 18, 2006) (citing Gerling, 839 F.2d at 141). Other courts have considered additional factors in determining whether to allow discovery against a non-litigating sister corporation. See Alimenta (U.S.A.), Inc. v. Anheuser-Busch Cos., Inc., 99 F.R.D. 309, 312-13 (N.D. Ga. 1983) (even though court did not pierce corporate veil or find sisters to be alter egos, court found corporations "acted as one" where plaintiff bought goods from sister and resold them, goods shipped under control of sister, President of sister corporation involved in discovery, sister corporations were in regular contact during course of transaction at issue in litigation, plaintiff's counsel participated with sister when sister involved in discovery); Perini America, Inc. v. Paper Converting Mach., Co., 559 F. Supp. 552, 553 (E.D. Wis. 1983) (court compelled discovery from plaintiff's foreign sister corporation where plaintiff marketed machine manufactured by sister and had common ownership). See also Heraeus Electro-Nite, 2006 WL 3004877, at *3 (defendant's request for discovery from plaintiff's foreign sister corporation denied where sisters' directors were not identical, sisters did not operate as one functional unit, and plaintiff did not use the documents to meet its own business needs); Pennwalt Corp. v. Plough, Inc., 85 F.R.D. 257, 263 (D. Del. 1979) (sister corporation need not respond to discovery where no evidence defendant and sister's business operations were so intertwined as to render meaningless their separate corporate identities).
Cases involving a litigating subsidiary and a foreign parent also are instructive. In Afros S.P.A. v. Krauss-Maffei Corp., 113 F.R.D. 127 (D. Del. 1986), a patent infringement case, the court concluded that the "intracorporate relationship balances in favor of finding that defendant has control of the requested documents." Id. at 132. In reaching this conclusion, the court considered various factors including that the foreign parent originally developed and patented the devices at issue and subsequently assigned the patent to the litigating subsidiary, the overlap of directors, officers and employees, and the financial relationship between the corporations. In Cooper Ind., Inc. v. British Aerospace, Inc., 102 F.R.D. 918 (S.D. N.Y. 1984) the court ordered the defendant to produce documents in the hands of its non-party British parent where the parent manufactured the planes that defendant sold and serviced and the documents sought related to the planes that defendants worked on daily. The court found it "inconceivable" that the defendant would not have access to the requested documents and the ability to obtain them for its usual and normal course of business. Id. at 919-20.
In Platypus Wear, Inc. v. Clarke Modet & Co., Inc., 2007 WL 4557158 (S.D. Fla. Dec. 21, 2007), the parent corporation was the litigating party and the opposing party sought documents in the possession of a wholly owned foreign subsidiary. The court ordered the documents produced after considering the corporate structure of the entities, the connection of the entities to the transaction at issue, and whether the entity resisting discovery (the non-party subsidiary) would benefit from a favorable outcome to the litigation. Id. at *4-5. The court also noted that in the past, the party parent had obtained documents from the subsidiary without difficulty. Id. at *4.
The determination in this case is whether plaintiff has established that, considering the intracorporate relationship between Eolica and defendants, defendants have the "legal right, authority or ability to obtain" the requested documents upon demand. Defendants contend that Eolica has no involvement with the American corporations. At the hearing, plaintiff submitted documents to the court that are relevant to determining the intracorporate relationship between defendants and Eolica.
Plaintiff submitted Exhibit P-1 (Bates No. 00484) at the hearing, which is an Incident Investigation Report, completed by an employee of one of the defendants, on Eolica letterhead regarding an incident involving a chain hoist that occurred on May 2, 2006, in Bear Creek, Pennsylvania. On the exhibit, the party identified as responsible for revising the "chain hoist bag design" is "GEol," or Eolica. (Exhibit P-1 at Bates No. 00484.) Exhibit P-2 (Bates No. 00465) is an email from Eloy Jauregi Martin, identified by plaintiff as an employee of Eolica, in which Mr. Martin describes an incident similar to that which occurred at Bear Creek, that occurred in Spain and the solutions the Spanish entity implemented. Mr. Eloy emphasized the following: "One important point is that it is obvious that the employee was not watching the process, so please reinforce the communication of this incident through your people." (Exhibit P-2 at Bates No. 00465.)
Exhibit P-3 (Bates Nos. 00358-00360) is a three page "PRL Procedure" report on Eolica letterhead regarding a November 15, 2006 incident involving the chain hoist system, which occurred at Locust Ridge, Pennsylvania. In this Eolica document, the writer proposes that "all employees will be made aware of incident and will also be instructed to stay clear of area while hoisting in progress." (Exhibit P-3 at Bates No. 00358.) On the attached Incident Report, the unidentified drafter states as follows: "We had an equipment incident...." (Exhibit P-3 at Bates No. 00359 (emphasis added).) The drafter did not state that only the defendant American corporations had an incident. Exhibit P-4 (Bates Nos. 00491-00494) is a chain of emails exchanged after the December 2006 incident at issue in this lawsuit. In the email dated January 26, 2007, the sender, Miguel Fabo, is identified on the email as an employee of Eolica's International Construction Department. Mr. Fabo stated as follows: "In Allegheny we have 40 Turbines, so we need the necessary materials for those turbines. By the time those materials arrived erection and comissioining [sic] works will already [sic] finish so Maintenance people should install them, or we should subcontract people to perform that work." (Exhibit P-4 at Bates No. 00491 (emphasis added).)
Exhibit P-5 (Bates Nos. 00729-00730) is an email chain from December 22, 2006, after the incident involving plaintiff. In the first email, Enrique Val, identified in the email as "Gamesa Eolica, ...