Searching over 5,500,000 cases.

Buy This Entire Record For $7.95

Download the entire decision to receive the complete text, official citation,
docket number, dissents and concurrences, and footnotes for this case.

Learn more about what you receive with purchase of this case.

Kephart v. Abb, Inc.

United States District Court, W.D. Pennsylvania

April 14, 2014

ABB, INC., Defendant.


KIM R. GIBSON, District Judge.


Pending before the Court are four motions: (1) Plaintiffs' motion to compel discovery (ECF No. 44); (2) Defendant's motion to compel Plaintiffs' responses to lien interrogatories and requests for production of documents (ECF No. 49); (3) Defendant's motion to compel vocational examination of Howard Kephart (ECF No. 54); and (4) Defendant's motion for leave to join third-party defendants (ECF No. 72).

The parties have filed numerous briefs and exhibits related to each of the pending motions. The Court heard oral argument regarding the three discovery motions on January 10, 2014. All of the motions are now ripe for adjudication, and the Court will address each motion under a separate heading below.

For the reasons that follow, the Court will GRANT Plaintiffs' motion to compel discovery (ECF No. 44); GRANT Defendant's motion to compel Plaintiffs' responses (ECF No. 49); GRANT Defendant's motion to compel vocational examination (ECF No. 54); and GRANT Defendant's motion for leave to join third-party defendants (ECF No. 72).


The Court has diversity jurisdiction in this removal action pursuant to 28 U.S.C. §§ 1332(a) and 1441. Venue is proper under 28 U.S.C. § 1391(b)(2).


This case arises from personal injuries sustained by Howard Kephart when a boiler exploded at the State Correctional Institute at Houtzdale ("SCI Houtzdale") where he worked as a utility plant operator. (ECF No. 57, Am. Compl. ¶ 7, 17).

Plaintiffs allege the following facts in their amended complaint. In 1995, a boiler system was installed at SCI Houtzdale. ( Id. ¶ 8). This system included a Bailey Control Programmable Logic Controller System ("PLC control system"), which provided automated control of the boilers. ( Id. ¶ 8). The PLC control system was designed to display an error code in the event of a system error so that the boiler could be shut down and repaired. ( Id. ¶¶ 9-10).

On December 30, 2009, the PLC control system displayed an error code. ( Id. ¶ 11). Workers then shut down Boiler # 1, and a mechanic attempted to repair it. ( Id. ¶¶ 11-16). When workers tried to relight Boiler # 1, it exploded, causing injuries to Howard Kephart. ( Id. ¶ 17). Plaintiffs allege that the cause of the explosion was a "defect in the design and/or operation of the PLC Control System." ( Id. ¶¶ 18-20). The complaint further alleges that Bailey Controls, Inc. designed and manufactured the PLC control system, and that ABB, Inc. is liable as the successor to Bailey Controls, Inc. ( Id. ¶¶ 3-4).

Plaintiffs initiated this action by filing a complaint in the Court of Common Pleas of Allegheny County. After filing an answer, Defendant removed the matter to this Court. On December 30, 2013, Plaintiffs filed an amended complaint (ECF No. 57), which contains three counts: Count One alleges a strict liability claim; Count Two alleges a negligence claim; and Count Three alleges a loss of consortium claim. Defendant filed an answer to the amended complaint on January 21, 2014. (ECF No. 65).

On July 6, 2012, this Court held an Initial Rule 16 Conference and entered an initial scheduling order (ECF No. 15). The scheduling order set forth the deadlines for discovery, including a fact discovery deadline of April 30, 2013, and an expert discovery deadline of July 31, 2013. (Id. at ¶¶ 6, 7). However, discovery in this matter has progressed much slower than expected. Upon the parties' numerous motions, the Court has extended discovery and amended the scheduling order several times. ( See ECF Nos. 19, 26, 29, 43, 71). The Court's most recent amended scheduling order, dated January 31, 2014, set a new fact discovery deadline for April 30, 2014, and a new expert discovery deadline for July 30, 2014. (ECF No. 71).

Contributing to the protracted discovery period have been the parties' various discovery disputes and requests to amend the pleadings. Against this backdrop, the Court will separately evaluate the four pending motions.


Plaintiffs have filed a motion to compel discovery (ECF No. 44) under Rule 37(a)(1), seeking to compel production of a number of documents generated between February 3, 2010, and March 16, 2011. Defendant claims the documents are privileged.[1] The parties have established the following relevant background. ( See generally ECF Nos. 44, 47).

The boiler explosion at SCI Houtzdale that allegedly caused Mr. Kephart's injuries occurred on December 30, 2009. On February 3, 2010, the insurance company for SCI Houtzdale notified Defendant that it was contemplating a subrogation claim against Bailey Controls, to which Defendant was the successor. ( See ECF No. 48-1, at 17-19). The notice also explained that Defendant should immediately conduct an inspection because the site was scheduled for "clean up and demolition." ( Id. ). On March 4, 2010, Defendant sent a service technician, Joseph R. Lauck ("Lauck"), to SCI Houtzdale to conduct a post-explosion site inspection. Lauck visually inspected the explosion site, interviewed various prison personnel, photographed the explosion site and relevant equipment, collected pertinent documents, and prepared a written report. ( See Service Report, ECF No. 48-1, at 21-22). Defendant has produced to Plaintiffs the photographs, documents, and report drafted by Lauck resulting from his investigation.

Sometime after Lauck's inspection, but before Plaintiffs initiated their lawsuit, the prison remediated the explosion site. Plaintiffs assert that they are unable to conduct an investigation of the explosion site due to this remediation and rebuilding of the boiler. Thus, Plaintiffs argue that Defendant should produce, among other things, any documents containing factual findings from its post-explosion inspection.

After filing their complaint, Plaintiffs served Defendant with a request for production of documents in July 2012. ( See ECF No. 31). Defendant responded in January 2013, objecting to the production of certain documents based on the attorney-client and work-product privileges. ( See ECF No. 32). Thereafter, Plaintiffs filed their first motion to compel production of documents (ECF No. 27). The Court ordered Defendant to either produce the requested documents or provide a privilege log enumerating the documents for which Defendant asserts a privilege. (ECF No. 35). Pursuant to the Court's order, Defendant served a supplemental response to Plaintiffs' request for production and provided a privilege log on August 26, 2013. Defendant later supplemented its response with a consolidated privilege log on October 17, 2013.

On November 21, 2013, Plaintiffs filed a second motion to compel discovery (ECF No. 44) along with a brief in support (ECF No. 45), claiming Defendant's asserted privileges do not apply to the requested documents. Defendant filed a response to Plaintiffs' motion (ECF No. 47) and a brief in support (ECF No. 48). After reviewing the parties' briefs and hearing argument on the matter, the Court ordered Defendant to submit the disputed documents for an in camera review. Defendant provided the relevant documents to the Court in electronic format on January 30, 2014. Defendant also filed an abridged privilege log that contains only the documents at issue in the instant motion.[2]

A. Legal Standard

Generally, materials that are relevant to an issue in a case are discoverable unless they are privileged. Rule 26 explains the scope of discovery:

Unless 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-including the existence, description, nature, custody, condition, and location of any documents or other tangible things and the identity and location of persons who know of any discoverable matter. For good cause, the court may order discovery of any matter relevant to the subject matter involved in the action. Relevant information need not be admissible at the trial if the discovery appears reasonably calculated to lead to the discovery of admissible evidence.

Fed. R. Civ. P. 26(b)(1). While the scope of discovery under the Federal Rules is broad, "this right is not unlimited and may be circumscribed." Bayer AG v. Betachem, Inc., 173 F.3d 188, 191 (3d Cir. 1999). Indeed, Rule 26(b)(1) imposes "two content-based limitations upon the scope of discovery: privilege and relevance." Trask v. Olin Corp., No. 12-cv-340, 2014 WL 836154, *13 (W.D. Pa. Mar. 4, 2014).

Even relevant discovery may be limited by a court "if the burden or expense of the proposed discovery outweighs its likely benefit, considering the needs of the case, the amount in controversy, the parties' resources, the importance of the issues at stake in the action and the importance of the discovery in resolving the issues." Id. (citing Fed.R.Civ.P. 26(b)(2)(C)). "In evaluating whether a party is entitled to discovery, the trial court should not simply rule on some categorical imperative, but should consider all the circumstances of the pending action." Trask, 2014 WL 836154, at * 14. Here, Defendant has asserted both the work-product and attorney-client privilege over certain documents.

Work-Product Doctrine

The work-product doctrine is governed by federal law, even in diversity cases. Highland Tank & Mfg. Co. v. PS Int'l, Inc., 246 F.R.D. 239, 244 (W.D. Pa. 2007). In Hickman v. Taylor, the Supreme Court examined the work-product doctrine and adopted "the general policy against invading the privacy of an attorney's course of preparation." Hickman v. Taylor, 329 U.S. 495, 512 (1947). "At its core, the work-product doctrine shelters the mental processes of the attorney, providing a privileged area within which he can analyze and prepare his client's case." United States v. Nobles, 422 U.S. 225, 238 (1975). The doctrine recognizes the reality that attorneys must often "rely on the assistance of investigators and other agents in the compilation of materials in preparation for trial." Id. Thus, the doctrine also protects materials prepared by an attorney's agent. Serrano v. Chesapeake Appalachia, LLC, No. 2:12-cv-1678, 2014 WL 896634, at * 3 (W.D. Pa. Mar. 6, 2014).

Rule 26(b)(3) sets forth the work-product doctrine, which provides:

Ordinarily, a party may not discover documents and tangible things that are prepared in anticipation of litigation or for trial by or for another party or its representative (including the other party's attorney, consultant, surety, indemnitor, insurer, or agent).

Fed. R. Civ. P. 26(b)(3)(A). However, those materials may be discovered if (1) they are otherwise discoverable under Rule 26(b)(1); and (2) the party shows that it has substantial need for the materials to prepare its case and cannot, without undue hardship, obtain their substantial equivalent by other means. Fed.R.Civ.P. 26(b)(3)(A)(i)-(ii).

A document is considered to be prepared "in anticipation of litigation [when] in light of the nature of the document and the factual situation in the particular case, the document can be fairly said to have been prepared or obtained because of the prospect of litigation." In re Grand Jury Proceedings, 604 F.2d 798, 803 (3d Cir. 1979). Work product is discoverable only if the moving party makes a showing of substantial need and undue hardship. Frazier v. Se. Pennsylvania Transp. Auth., 161 F.R.D. 309, 318 (E.D. Pa. 1995).

Attorney-Client Privilege

The attorney-client privilege is one of the oldest privileges for confidential communications known to the law. Upjohn Co. v. United States, 449 U.S. 383, 389 (1981). "Its purpose is to encourage full and frank communication between attorneys and their clients and thereby promote broader public interests in the observance of law and administration of justice." Id. ; Nesselrotte v. Allegheny Energy, Inc., 242 F.R.D. 338, 340 (W.D. Pa. 2007).

Under Rule 501 of the Federal Rules of Evidence, a district court exercising diversity jurisdiction applies the law of privilege from the state in which it sits. Samuelson v. Susen, 576 F.2d 546, 549 (3d Cir. 1978). ...

Buy This Entire Record For $7.95

Download the entire decision to receive the complete text, official citation,
docket number, dissents and concurrences, and footnotes for this case.

Learn more about what you receive with purchase of this case.