““Gamesmanship in the form of non-responsive answers, vague promises of a future response, or quibbling objections can result in the request being deemed admitted.”’
How later courts described this case
- ““Gamesmanship in the form of non-responsive answers, vague promises of a future response, or quibbling objections can result in the request being deemed admitted.”’
- “During discovery, relevance is broadly construed ‘to encompass any matter that bears on, or that reasonably could lead to other matter that could bear on, any issue that is or may be in the case.””
Written by the judges who cited it.
The opinion
IN THE UNITED STATES DISTRICT COURT
FOR THE EASTERN DISTRICT OF NORTH CAROLINA
WESTERN DIVISION
No. 5:23-CV-87-D
DAN WAGNER and PHYLLIS )
CHEESEMAN, )
Plaintiffs,
v. ORDER
NORCOLD, INC., et al.,
Defendants.
This matter is before the court on Plaintiffs’ motions to compel written discovery, a Rule
30(b)(6) deposition, and the deposition of Defendants’ expert Kim May, [DE-37, -40, -50];
Plaintiffs’ unopposed motion for an expedited status conference, [DE-54]; and Defendants’
unopposed motion for leave to file exhibits to Norcold’s response in opposition to Plaintiffs’
motion to compel a Rule 30(b)(6) deposition, [DE-45]. Defendants filed responses in opposition
to Plaintiffs’ motions to compel. [DE-43, -44, -53]. For the reasons that follow, Defendants’
motion for leave to file exhibits is allowed, Plaintiffs’ motion to compel written discovery is
allowed in part and denied in part, Plaintiffs’ motion to compel a Rule 30(b)(6) deposition is
allowed in part and denied in part, Plaintiffs’ motion to compel the deposition of Defendants’
expert Kim May is allowed, and Plaintiffs’ motion for an expedited status conference is denied.
I. BACKGROUND
Plaintiffs Dan Wagner and Phyllis Cheéseman (“Wagner” and “Cheeseman” or
collectively, “Plaintiffs”) brought this action against Defendants Norcold, Inc. (“Norcold”),
Thetford Corporation (“Thetford”), and Dyson-Kissner-Moran Corporation (“DKM”) -
(collectively, “Defendants”) for defective design and negligence after a Series 1210 Norcold
refrigerator (the “subject refrigerator”), which was installed in a 2003 Fleetwood Discovery RV
parked on Cheeseman’s property, allegedly caught fire on November 24, 2022, destroying
Wagner’s motorcycle repair shop, which was located inside of one of Cheeseman’s outbuildings.
Compl. [DE-1] Jf 11-19. Plaintiffs contend that the subject refrigerator is one of many allegedly
defective gas absorption refrigerators that Defendants have sold since 1996 (namely, the N6, N8,
and 1200 Series refrigerators), all of which share common cooling unit technology that is prone to
catching fire. Jd. 20-32. ecorine to Plaintiffs, Norcold issued several voluntary recalls for its
various refrigerator models because of this shared technology, and its fire risk between 2000 and
2010, and over 3,000 Norcold refrigerator-related fires have been reported in the past fifteen years.
Id. {§ 22-28. Notably, the subject refrigerator was not under recall at the time of the fire and
Plaintiffs assert that all previous cooling unit recall work was completed in 2011. Jd. JJ 14-16.
However, Plaintiffs contend that fires involving Norcold refrigerators are “still occurring even
though recall work has been performed, including recall work associated with the High
Temperature Sensor (HTS) installation [which was performed on the subject refrigerator in 2011].”
Id.
It is unclear from the briefings and exhibits when Plaintiffs initially served discovery in
this case, but Defendants served their responses to Plaintiffs’ first set of discovery on August 11,
2023. Pls.” Mem. [DE-38] at 3. The parties exchanged several emails regarding Defendants’
responses, and on November 2, 2023, Plaintiffs filed their first motion to compel discovery from
Defendants, requesting that the court order Defendants to produce relevant documents concerning
Thetford and DKM’s net worth and a privilege log, or in the alternative, find that all privileges
have been eed and order Defendants to schedule a Rule 30(b)(6) deposition. Pls.’ Mot. [DE-
□
26] at 1. The court denied the motion on January 11, 2024, in part because the parties failed to
comply with Local Civ. R. 7.1(c)(2), which requires counsel to confer in a good faith attempt to
resolve a discovery dispute prior to filing any discovery motion. [DE-36] at 4—5. In the order, the
court permitted Plaintiffs to renew their motion to compel if counsel failed to resolve the relevant _
discovery issues. Ia.
On February 2, 2024, Plaintiffs filed the instant motions to compel written discovery and
a Rule 30(b)(6) deposition, and on March 1, 2024, they filed the motion to compel the deposition
of Defendants’ expert Kim May. [DE-37, -40, -50]. Plaintiffs have also separately filed
declarations in support of the earlier motions to compel. [DE-39, -42]. Defendants oppose the
motions, [DE-43, -44, -53], and filed an unopposed motion for leave to file exhibits to Norcold’s
response in opposition to Plaintiffs’ motion to compel a Rule 30(b)(6) deposition, [DE-45], as well
as a declaration supporting the same, [DE-46]. The discovery period is currently set to conclude
on June 21, 2024, [DE-49], and Plaintiffs filed an unopposed motion for an expedited status
conference on May 15, 2024, [DE-54].
Il. ANALYSIS
i. Plaintiffs’ Motions to Compel
Rule 26 provides the general rule regarding the scope of discovery:
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). “Relevancy under this rule has been broadly construed to encompass any
possibility that the information sought may be relevant to the claim or defense of any party.”
3 .
Prasad v. Nallapati, 597 F. Supp. 3d 842, 846 (E.D.N.C. 2022) (first quoting Equal Emp’t
Opportunity Comm’n v. Sheffield Fin. LLC, No. 1:06-CV-889, 2007 WL 1726560, at *3 (M.D.N.C.
June 13, 2007); then citing Mainstreet Collection, Inc. v. Kirkland’s, Inc., 270 F.R.D. 238, 240
(E.D.N.C. 2010) (“During discovery, relevance is broadly construed ‘to encompass any matter that
bears on, or that reasonably could lead to other matter that could bear on, any issue that is or may
be in the case.””) (quoting Oppenheimer Fund., Inc. v. Sanders, 437 U.S. 340, 351 (1978))). “A
party seeking discovery may move for an order compelling an answer, designation, production, or
inspection” if a party fails to answer an interrogatory or to produce or make available for inspection
requested documents. Fed. R. Civ. P. 37(a)(3)(B)(iii), (iv).
For purposes of a motion to compel, “an evasive or incomplete disclosure, answer, or .
response must be treated as a failure to disclose, answer, or respond.” Fed. R. Civ. P. 37(a)(4).
However, the Federal Rules also provide that the court must limit the frequency or extent of
discovery otherwise allowed by these rules or by local rule if it determines that: (i) the discovery
sought is unreasonably cumulative or duplicative, or can be obtained from some other source that
is more convenient, less burdensome, or less expensive; (ii) the party seeking discovery has had
ample opportunity to obtain the information by discovery in the action; or (iii) the proposed
discovery is outside the scope permitted by Rule 26(b)(1). Fed. R. Civ. P. 26(b)(2)(C).
“Additionally, the court has ‘substantial discretion’ to grant or deny motions to compel discovery.”
English v. Johns, No. 5:11-CT-3206-D, 2014 WL 555661, at *4 (E.D.N.C. Feb. 11, 2014) (quoting
Lone Star Steakhouse & Saloon, Inc. v. Alpha of Va., Inc., 43 F.3d 922, 929 (4th Cir. 1995)).
Finally, the party seeking the court’s protection from responding to discovery “must make a
particularized showing of why discovery should be denied, and conclusory or generalized
statements fail to satisfy this burden as a matter of law.” Prasad, 597 F.3d at 846 (quoting
Mainstreet Collection, 270 F.R.D. at 240).
A. Plaintiffs’ Motion to Compel Written Discovery
Plaintiffs seek an order from the court compelling Defendants to fully respond to written
discovery, deeming Defendants’ asserted privileges waived in the absence of a privilege log, and
awarding Plaintiffs their fees and costs associated with bringing the motion. Pls.’ Mot. [DE-37] at
1.In support, Plaintiffs identify several perceived deficiencies in Defendants’ discovery responses,
including Defendants’ responses to certain interrogatories, requests for admission, and requests
for production of documents, and Defendants’ failure to produce a privilege log. Pls.” Mem. [DE-
38] at 7-11. Plaintiffs attached several exhibits, including, inter alia, email correspondence
between counsel, Defendants’ discovery responses, and an unfiled stipulated protective order.
[DE-39-1 to -23]. Defendants oppose the motion and attached several exhibits of their own,
including Wagner’s responses to Defendants’ requests for production of documents, email
correspondence between counsel, and a declaration of Defendants’ counsel, Todd Foss. [DE-43].
For the following reasons, the motion is allowed in part and denied in part, and Plaintiffs’ request
for an award of their fees and costs is denied.
1. Privilege Log
Plaintiffs contend that Defendants are required by Federal Rule of Civil Procedure
26(b)(5)(A) to produce a privilege log, that Defendants have failed to produce a privilege log
despite Plaintiffs’ previous requests to do so, and that as a result, the court should deem all
privileges waived. Pls.” Mem. [DE-38] at 10. Defendants claim that Plaintiffs never requested a
privilege log prior to filing their first motion to compel, and that after the court issued its January
11, 2024 order denying the requested relief, Plaintiffs first sought production of a privilege log via
email on that same date. Defs.’ Resp. [DE-43] at 3. According to Defendants, while the parties
conducted multiple telephone conferences thereafter regarding Plaintiffs’ complaints as to
Defendants’ discovery responses, the privilege log issue was never raised. Jd. Defendants state that
they have never refused to produce a privilege log, but at this juncture, creating one is “wholly
unreasonable and impractical” because of the scope of Plaintiffs’ discovery requests. Jd. at 4.
Anticipating Defendants’ argument, Plaintiffs’ motion specifically addresses the latter, contending
that Defendants’ other objections “should not function as an excuse for Defendants to avoid
producing a privilege log and deprive Plaintiffs the opportunity to evaluate the claims.” Pls.’ Mem.
[DE-38] at 10-11.
The parties’ joint Rule 26(f) report provides that,
If a privilege log is deemed necessary, the party claiming privilege and/or attorney
work product will prepare a privilege log in accordance with Federal Rule of Civil
Procedure 26(b)(5). In the event that privileged information is unintentionally or
inadvertently produced, the parties agree to employ a ‘clawback’ provision in
accordance with Federal Rule of Civil Procedure 26(b)(5)(B).
[DE-19] at 3. The court finds that a privilege log is necessary to address any privilege concerns
that may remain after entry of this order and denies Plaintiffs’ request to deem any of Defendants’
asserted privileges waived. Thus, to the extent that Defendants still claim that documents or other
information requested by Plaintiffs in the instant motion to compel are protected by the attorney-
client privilege, work-product doctrine, or any other applicable privilege, they should so indicate
in a privilege log that comports with Fed. R. Civ. P. 26(b)(5).
2. Interrogatories
Plaintiffs ask the court to strike Thetford and DKM’s objections to Plaintiffs’ Interrogatory
Nos. 1—2 and Norcold’s objections to Interrogatory Nos. 1, 3-6, and 14, and compel Defendants
to provide meaningful responses to these interrogatories prior to Norcold’s as-yet unscheduled
. 6
Rule 30(b)(6) deposition. Pls.” Mem. [DE-38] at 8. Plaintiffs contend that Defendants’ existing
responses are rife with boilerplate and unwarranted objections as “[a]ll these interrogatories relate
to the boiler tube defect at issue in this case and as such are limited in number and limited in
scope.” Id. at 7-8.
Defendants aver that the above-quoted language from Plaintiffs’ motion is a “clear
misrepresentation to the Court [of the interrogatories’ content]” and Defendants’ objections are
neither boilerplate nor without merit. Defs.’ Resp. [DE-43] at 9-11. Further, Defendants argue that
because Plaintiffs have mischaracterized the relevant interrogatories, failed to provide a basis as
to why Defendants’ limited objections to each interrogatory should be stricken, and failed to
explain why the Defendants should be ordered to provide any further answers, Plaintiffs have
violated Local Rule 7.1(c)(2) and their request for relief should be denied. Id.
Turning first to Defendants’ contentions regarding the Local Rules, Local. Civ. R. 7.1(c)(2)
provides that,
No discovery motion will be considered by the court unless the motion sets forth
or has attached thereto, by item, the specific question, interrogatory, etc., with
respect to which the motion is filed and any objection made along with the grounds
supporting or in opposition to the objection. The movant must also certify that there
has been a good faith effort to resolve discovery disputes prior to the filing of any
discovery motions.
When a party fails to comply with Local Rule 7.1, a court may deny its motion. Higgins v. Spence
& Spence, PA, No. 5:07-CV-33-D(1), 2009 WL 536069, at *2 (E.D.N.C. Mar. 3, 2009) (collecting
cases); see Laschkewitsch v. Legal & Gen. Am., Inc., d/b/a Banner Life Ins. Co., No. 5:15-CV-
251-D, 2017 WL 1012996, at *2 (E.D.N.C. Mar. 14, 2017). However, “the plain language of the
rule requires an itemized list of challenged discovery responses,” United States v. $307,910.00 in
U.S. Currency, 156 F. Supp. 3d 708, 722 (E.D.N.C. 2016), and in the instant case, Plaintiffs have
specifically identified the interrogatory responses they find objectionable, explained their reasons
for objecting to Defendants’ responses, and attached those responses as exhibits, Pls.” Mem. [DE-
38] at 7-8; [DE-39-2 to.-4]. Thus, the court finds that Plaintiffs have not violated Local Rule
7.1(c)(2) and denying the instant motion on this basis is inappropriate.
a. Thetford and DKM’s Responses to Interrogatory Nos. 1 and 2
Interrogatory No. 1 asks Thetford and DKM to “[i]dentify every person who was consulted,
provided information for, or assisted in answering any of the following interrogatories and, for
each person, identify the interrogatory upon which he/she consulted or assisted in answering.” Pls.’
Mot. Ex. 2 [DE-39-2] at 3; Pls.” Mot. Ex. 3 [DE-39-3] at 3.! Thetford and DKM provided the same
response but for the relevant company name:
Objection. These discovery requests are addressed to a legal entity, not to an
individual, and the responses of Thetford herein do not constitute, nor are they
derived from, the personal knowledge of any single individual. The responses
herein are made on behalf of Thetford, and the identity of the person(s) who assisted
in the preparation of the responses to these discovery requests is not relevant.
Thetford’s responses include record information, the contents of which may be
provided by numerous individuals, departments and/or various other sources and
which may not be attributable or traceable to any particular individual at all, as well
as other information that represents Thetford’s corporate knowledge. Thetford also
objects to this interrogatory because it calls for information that is protected from
disclosure by the attorney-client privilege, work product doctrine, and/or consulting
expert privilege and potentially calls for private and personal information about
individuals that is not subject to disclosure. Thetford further objects to this
interrogatory because it improperly seeks to force Thetford to prematurely disclose
information about its expert witnesses prior to the Court-ordered deadline for expert
witness disclosures. Subject to and without waiving these objections, Thetford
answers as follows: The answers to these interrogatories are the corporate responses
of Thetford derived from multiple sources of information and compiled into these
answers with the assistance of counsel for Thetford.
Id.
The undersigned finds Defendants’ responses to Interrogatory No. 1 inadequate. See Pajak
v. Under Armour, Inc., No. 1:19-CV-160, 2020 WL 265205, at *5 (N.D.W. Va. Jan. 17, 2020)
1 This order refers to the page number given in the CM/ECF footer where, as here, that number differs from the relevant
document’s internal pagination.
(finding such discovery requests are “standard and necessary for the progress of the case’’);
McBride v. Medicalodges, Inc., Nos. 06-2535-JWL-GLR, 06-2536-JWL-GLR, 06-2538-JWL-
GLR, 2008 WL 650336, at *5 (D. Kan. Mar. 6, 2008) (“If no one other than defense counsel
provided information to answer these interrogatories, then Defendant should state that in its
supplemental answer”); Searcy v. eFunds Corp., No. 08 C 985, 2010 WL 2921636, at *10 (N.D.
Ill. July 22, 2010); Smith v. State Farm Lloyds, Inc., No. 4:21-CV-837, 2023 WL 123502, at *4
(E.D. Tex. Jan. 6, 2023); E.E.O.C. v. Sterling Jewelers Inc., No. 08-CV-00706(A)(M), 2012 WL
1680811, at *4—5 (W.D.N.Y. May 14, 2012). Accordingly, Plaintiffs’ motion to compel is allowed
with respect to Interrogatory No. 1 as served on Defendants DKM and Thetford, and DKM and
Thetford are directed to provide a responsive answer by no later than June 21, 2024.
Interrogatory No. 2 requests that Defendants Thetford and DKM “[d]escribe the corporate
structure of DKM [or Thetford] and the nature and relationship of all of the corporate entities,
Norcold, Thetford, and DKM.” Pls.’ Mot. Ex. 2 [.DE-39-2] at 3; Pls.” Mot. Ex. 3 [DE-39-3] at 3.
DKM responded with the following:
DKM objects to this interrogatory because it is vague and ambiguous as worded
and because it assumes facts not in evidence. Subject to and without waiving these
objections, DKM answers as follows: DKM is a corporation organized under the
laws of Delaware, with its principal place of business in Poughkeepsie, New York.
DKM is a privately-owned holding company. DKM does not develop, design,
manufacture, assemble, inspect, test, label, supply, distribute, or install Norcold
refrigerators, including the Norcold refrigerator that is alleged to be at issue in this
lawsuit. Thetford is a limited liability company organized under the laws of
Delaware with its principal place of business in Ann Arbor, Michigan. Thetford
manufactures toilets and related sanitation products for recreational vehicles and
boats. Thetford does not develop, design, manufacture, assemble, inspect, label,
sell, distribute, or lease Norcold refrigerators, including the Norcold refrigerator
that is alleged to be at issue in this lawsuit. In 1988, DKM acquired Thetford, and
Thetford became a subsidiary of DKM. In 1997, Thetford acquired Norcold.
Norcold is a subsidiary of Thetford. In December 2021, DKM sold Thetford.
Norcold, Thetford, and DKM are all distinct legal entities.
Pls.’ Mot. Ex. 2 [DE-39-2] at 3-4. Thetford’s response is substantively identical. Pls.’ Mot. Ex. 3
[DE-39-3] at 3-4.
Boilerplate objections without support are disfavored and may be stricken by the court.
Daniels v. Hyster-Yale Grp., Inc., No. 5:19-CV-00531-FL, 2020 WL 2334088 at *4 (E.D.N.C.
May 11, 2020) (emphasis added) (citing Kinetic Concepts, Inc. v. ConvaTec, Inc., 268 ERD. 226,
241 (M.D.N.C. 2010) (“[Ml]agistrate judges in at least five district courts in the Fourth Circuit have
declared boilerplate objections to discovery requests . . . invalid.”); Hy-Ko Prods. Co. v. Hillman
Grp., Inc., No. 5:09-MC-00032, 2009 WL 3258603, at *2 (E.D.N.C. Oct. 8, 2009) (“Generally,
the mere cry of burdensomeness or irrelevance without any statement in support of these objections
is disfavored by the court.”); Silicon Knights, Inc. v. Epic Games, Inc., 917 F. Supp. 2d 503, 533
(E.D.N.C. 2012) (granting motion to compel where plaintiff’s responses to defendant’s
interrogatories and requests for production “comprise[d] nothing but a laundry list of boilerplate
objections” and “failed to articulate any specific objection to any particular interrogatory or request
for production”)).
Here, DKM and Thetford contend that Interrogatory No. 2 is vague, ambiguous, and
assumes facts not in evidence without making any attempt to identify the specific language in
Interrogatory No. 2 that is vague, ambiguous, or assumes facts not in evidence. The undersigned
finds that this language is boilerplate, Hy-Ko Prods. Co., WL 3258603, at *2, but that DKM and
Thetford have sufficiently responded notwithstanding their objections, Pls.” Mot. Ex. 2 [DE-39-2]
at 3-4; Pls.’ Mot. Ex. 3 [DE-39-3] at 3-4. Accordingly, Plaintiffs’ motion to compel is overruled
with respect to Interrogatory No. 2 as served on Defendants DKM and Thetford.
10
b. Norcold’s Responses to Interrogatory Nos. 1, 3-6, and 14
Interrogatory No. 1, as served on Norcold, is identical to Interrogatory No. 1 as served on
DKM and Thetford. Pls.’ Mot. Ex. 4 [DE-39-4] at 3. Norcold’s-response is also nearly identical to
the answers given by DKM and Thetford, id., and as such, Plaintiffs’ motion to compel is allowed
with respect to Interrogatory No. 1 as served on Defendant Norcold and Norcold is directed to
provide a responsive answer by no later than June 21, 2024.
Interrogatory No. 3 asks Norcold to “[iJdentify and describe, in reasonable detail, every
mistake, misuse, abuse, lack of care, negligence, and improper or inadequate act, whether by act
or omission, that was committed by any person, entity, or party (including, without limitation, the
Plaintiffs), whether or not a party to this lawsuit, that you contend contributed, directly or
indirectly, to cause the incident and/or the damages alleged to be suffered pursuant to the claims
asserted in this lawsuit including, without limitation, the identity of the person who committed the
respective act; and the date and place where each act was committed.” Pls.’ Mot. Ex. 4 [DE-39-4]
at 4. Norcold responded with the following:
Norcold objects to this interrogatory because it improperly seeks to force Norcold
to marshal its evidence in response to a discovery request. Norcold further objects
to this interrogatory because it improperly seeks to force Norcold to prematurely
disclose the findings, observations, mental impressions, opinions, and conclusions
of its expert witnesses before the Court-ordered deadline for expert witness
disclosures. Norcold further objects to this interrogatory because it seeks to invade
the work product doctrine and force Norcold to disclose its trial strategy. Norcold
also objects to this interrogatory because it is premature. Subject to and without
waiving these objections, Norcold answers as follows: This interrogatory is
premature, as investigation into the origin and cause of the subject fire is currently
ongoing and discovery is still in its early stages. Norcold will supplement this
answer at a later date as appropriate, after discovery has progressed and Norcold
has made its expert disclosures.
Id.
11
The Federal Rules allow parties to serve interrogatories that “ask[] for an opinion or
contention that relates to fact or the application of law to fact[.]” Fed. R. Civ. P. 33(a)(2). This
type of request, known as a contention interrogatory, asks a party to do one or more of the
following: “(1) state its contentions or clarify whether it is making a contention, (2) articulate the
facts underlying a contention, (3) assert a position or explain that position in relation to how the
law applies to the facts, and (4) explain the legal or theoretical basis behind a contention.” Johnson
v. N.C. Dep’t of Justice, No. 5:16-CV-00679-FL, 2018 WL 5831997, at *7 (E.D.N.C. Nov. 7,
2018) (quoting Capacchione v. Charlotte-Mecklenburg Schs., 182 F.R.D. 486, 489 (W.D.N.C.
1998)). Interrogatory No. 3 clearly falls within this category as it seeks information from Norcold
regarding, infer alia, negligence that contributed to the fire that forms the basis of this action, Pls.’
Mot. Ex. 4 [DE-39-4] at 4, and Norcold affirmatively pleaded contributory negligence in its answer
to the complaint and asserted that it is not legally responsible for the acts, omissions, fault,
negligence, and/or other conduct that caused the fire, Answer [DE-10] at 9-12. See id.
Presuming that Norcold’s counsel complied with Rule 11, there must be some factual
support for the denials and defenses raised in Norcold’s answer. When an attorney signs an answer
denying a complaint’s factual allegations and asserting defenses, the attorney is certifying, among
other things, that “to the best of the [attorney’s] knowledge, information, and belief, formed after
an inquiry reasonable under the circumstances . . . the claims, defenses, and other legal contentions
are warranted by existing law or by a nonfrivolous argument for extending, modifying, or reversing
existing law or for establishing new law.” Fed. R. Civ. P. 11(b)(4). Thus, Norcold’s implication
that it does not currently possess any of the information requested in Interrogatory No. 3 cannot
be correct. See Johnson, 2018 WL 5831997, at *7—-8. Accordingly, Plaintiffs’ motion to compel is
12
allowed with respect to Interrogatory No. 3 and Norcold is directed to provide a responsive answer □
by no later than June 21, 2024.
Interrogatory No. 4 states, “If you have any knowledge of the existence of any hazard,
danger, alleged defect or defective condition (including any deficiency or defect in warnings or
instructions) regarding the refrigerator and/or its component parts which may be related to
refrigerator fires, please describe it and, in so doing, state when you or your representatives,
predecessors or successors first learned of the existence of such alleged hazards or defective
conditions giving the date and time, if possible; what action or actions, if any, you or your
representatives, predecessors or successors took to remove, repair or correct such hazard, defect
or defective condition so as to safeguard the Plaintiffs or any other users of the refrigerator; and
the identity of the persons with knowledge of the events, process, conduct and/or decisions
described above.” Pls.’ Mot. Ex. 4 [DE-39-4] at 4. Norcold responded with the following:
Norcold objects to this interrogatory because it is vague and ambiguous as worded,
assumes facts not in evidence, and is improperly argumentative. Norcold further
objects to this interrogatory because it is not properly limited in scope as to either
time or subject matter. Norcold also objects to this interrogatory as improperly
multifarious and compound in nature. Subject to and without waiving these
objections, Norcold answers as follows: Norcold 1200 Series gas absorption
refrigerators with properly installed High Temperature Sensor (HTS) devices are
not defective.
Id. Notably, Norcold provided no reasoning for its assertion that Interrogatory No. 4 is vague,
ambiguous as worded, improperly argumentative, or assumes facts not in evidence, rendering these
objections boilerplate. See Hy-Ko Prods. Co., WL 3258603, at *2. However, the undersigned finds
that, in the absence of a more specific argument to the contrary from Plaintiffs, Norcold has
sufficiently responded notwithstanding its objections. Accordingly, Plaintiffs’ motion to compel
is overruled with respect to Interrogatory No. 4.
13
Interrogatory No. 5 instructs Norcold to “[iJdentify and describe any changes in the design
or manufacturing of Norcold refrigerators since production of the Refrigerator in Question, which
in any way relate to the cooling unit or the safety fuse.” Pls.” Mot. Ex. 4 [DE-39-4] at 5. Norcold
responded with:
Norcold objects to this interrogatory because it is vague and ambiguous as worded.
Norcold also objects to this interrogatory because it is overly broad, not properly
limited in scope as to either time or subject matter, and seeks information not
relevant to this lawsuit. See Fed. R. Civ. P. 26(b)(1). Subject to and without waiving
these objections, Norcold answers as follows: This interrogatory improperly calls
for a detailed narrative description of technical information relating to Norcold
refrigerators. Information relating to the design and manufacture of the subject
Norcold refrigerator may be obtained through the deposition of Norcold.
Id. Interrogatory No. 6 asks Norcold to “[i]dentify and describe all features you contend are
designed and/or manufactured into the Model Refrigerator in Question and its component parts to
prevent cooling unit leaks from occurring and containing a fire that does occur. Jd Norcold
responded:
Norcold objects to this interrogatory because it is vague and ambiguous as worded,
assumes facts not in evidence, sets forth an improper and incomplete hypothetical,
is improperly compound in nature, and is improperly argumentative. Subject to and
without waiving these objections, Norcold answers as follows: Because this
interrogatory is vague and ambiguous, assumes facts not in evidence, sets forth an
improper and incomplete hypothetical, is improperly compound in nature, and is
improperly argumentative, Norcold is unable to answer the interrogatory as
worded.
Id.
The court finds that Norcold’s responses to Interrogatory Nos. 5 and 6 are comprised of
nothing but boilerplate objections, see Hy-Ko Prods. Co., WL 3258603, at *2, and that several of
these objections have a questionable legal basis at best, see, e.g, Brock v. Hooker Chemical &
Plastics Corp., No. 83 C 8383, 1985 WL 2120, at *1 (N.D. Ill. July 24, 1985) (“an answer to an
interrogatory is improper if it merely refers to answers to other interrogatories, and an answer
which states that the information may be obtained by deposition is insufficient”). Thus, Plaintiffs’
14
motion to compel is sustained with respect to Interrogatory Nos. 5 and 6, and Norcold is directed
to provide responsive answers by no later than June 21, 2024.
Finally, Interrogatory No. 14 asks Norcold to identify all “employee(s), agent(s) or
representatives of Norcold” who were involved in designing, manufacturing, and selling the
subject refrigerator; testing, inspecting, and investigating the subject refrigerator before and after
the fire that allegedly damaged Plaintiffs’ property; changing the design and/or manufacturing
process of Norcold refrigerators since production of the subject refrigerator; investigating,
researching, and responding to fire claims, notices, demands, and consumer complaints since 2003;
investigating, researching, and responding to recalls, claims, notices, demands, complaints or
inquiries received from any subdivision of the federal government in the past ten years; selling or
purchasing the subject refrigerator; and performing work on, repairs to, or modifications of the
subject refrigerator. Pls.’ Mot. Ex. 4 [DE-39-4] at 8-11.
Given the composite nature of Interrogatory No. 14, Norcold provided several objections
and responses to each subpart. Jd. For the sake of brevity, the court summarizes Norcold’s response
as follows: Norcold generally objects, inter alia, to the scope of Interrogatory No. 14 and responds
to subparts 1, 2, 3, and 5 by stating that Plaintiffs may obtain additional information through the
30(6)(6) deposition of Norcold, to subpart 4 by stating that it will supplement its answer after
disclosing its experts, and to subparts 8 and 9 by answering “None.” Jd. Norcold provided no
substantive response to subparts 6 and 7. Id. at 10.
Turning first to subparts 1, 2, 3, and 5, the court finds that Norcold failed to provide any
factual support for its repeated assertion that Interrogatory No. 14 is, inter alia, overly broad and
not reasonably limited in scope, and as a result, these objections are boilerplate. See Hy-Ko Prods.
Co., WL 3258603, at *2. Additionally, the undersigned finds that Norcold’s general response that
15
Plaintiffs may obtain more specific information by deposing Norcold is inadequate. See Brock,
1985 WL 2120, at *1; Matalavage v. Sheriff of Niagara Cnty., 20-CV-1254Sk(F), 2023 WL
2043865, at *8 (W.D.N.Y. Feb. 13, 2023). Thus, Plaintiffs’ motion to compel is allowed with
respect to Interrogatory No. 14 subparts 1, 2, 3, and 5, and Norcold is directed to provide a
responsive answer by no later than June 21, 2024.
Plaintiffs’ motion to compel is also allowed with respect to Interrogatory No. 14, subpart
4, as the deadline for expert disclosures has passed. [DE-31]. Norcold is directed to provide a
responsive answer by no later than June 21, 2024.
Norcold’s responses to subparts 6 and 7 are solely comprised of almost identical objections
to breadth, scope, and relevance. Pls.” Mot. Ex. 4 [DE-39-4] at 10. However, the court finds that
these objections do not constitute waivable boilerplate, as Norcold justifies its objections by
qualifying in subpart 6 that the interrogatory “seeks information covering a 20-year period
pertaining to claims, notices, demands, and complaints that are completely unrelated to the
occurrence made the basis of this lawsuit,” and in subpart 7 that the same is true for the 10-year
period preceding this lawsuit. Jd. In a previous case involving a fire allegedly caused by a Norcold
refrigerator, the court elected to limit discovery of past claims, complaints, and lawsuits against
Norcold to the three years prior to the alleged incident. See Cohen v. Norcold, No. 5:20-CV-170-
BO, 2022 WL 17365231, at *4-12 (E.D.N.C. Dec. 1, 2022). Given the scale of Norcold fire
litigation, the undersigned finds that such a limitation is appropriate here. Accordingly, Plaintiffs’
motion to compel is allowed with respect to Interrogatory No. 14, subparts 6 and 7, but Norcold’s
response shall be limited to the three years prior to the alleged incident that occurred in this case.
Norcold is directed to provide a responsive answer by no later than June 21, 2024.
16
Finally, with respect to subparts 8 and 9, the court finds that, notwithstanding the
boilerplate “assumes facts not in evidence” objection, Norcold has sufficiently responded by
stating “None.” Therefore, Plaintiffs’ motion to compel is overruled as to Interrogatory No.
subparts 8 and 9.
3. Requests for Admission
Plaintiffs move to overrule Norcold’s objections in response to their to Requests for
Admission (“RFA”) Nos. 2-8, 10-12, 14-23, 26-27, 29-38, 43, 45-47, 49, 52-54, 56, 58-61, 65—
68, 71-72, 76, 78-85, and 88-94. Pls.’ Mot. [DE-38] at 8-9. According to Plaintiffs, “Norcold
asserted five (5) general objections incorporated by reference to all [of the indicated] RFAs and a
variety of additional boiler plate objections in all [indicated] responses.” Jd. at 8. As a result,
Plaintiffs argue that Norcold’s responses are “clearly improper and not in compliance with the
spirit of the Federal Rules,” as highlighted by the out-of-circuit cases Marchland v. Mercy Med.
Ctr., 22 F.3d 933, 936 (9th Cir. 1994) and Taylor v. Cnty. of Calaveras, No. 18-CV-00760-BAM,
2019 WL 6341131, at *3 (E.D. Cal. Nov. 27, 2019). Id.
Norcold responds by highlighting that Plaintiffs’ motion only addresses RFA Nos. 33 and
72 and fails to argue why any of the other challenged responses should be overruled. Defs.’ Mot.
[DE-43] at 7-8. Consequently, Norcold contends that Plaintiffs’ motion violates Local Rule
7.1(c)(2) and that Plaintiffs’ request for relief should be denied with respect to the remaining RFAs.
Id. Norcold also avers that its objections to RFA Nos. 33 and 72 are proper. Id.
Turning first to Norcold’s Local Rule 7.1(c)(2) contentions, the court finds that, while
Plaintiffs have not laid out their objections to Norcold’s responses request by request, they have
specifically identified the responses they find objectionable, explained their reasons for objecting
to Norcold’s responses, and attached those responses as exhibits. Pls.” Mem. [DE-38] at 8—9; [DE-
17
39-5]. Thus, the court finds that Plaintiffs have not violated Local Rule 7.1(c)(2) and denying the
instant motion on this basis is inappropriate.
Looking to the substance of Norcold’s responses to Plaintiffs’ RFAs, Plaintiffs have
identified sixty-seven responses as deficient, though they have only described Norcold’s responses
to RFA Nos. 33 and 72 in detail. Pls.” Mem. [DE-38] at 8-9. In RFA No. 33, Plaintiffs asked
Norcold to “[a]dmit that a perfectly installed High Temperature Sensor will not prevent failure of
the boiler tube.” Pls.’ Mot. Ex. 5 [DE-39-5] at 10. Norcold responded with the following:
Norcold incorporates by reference the foregoing general objections. Norcold also
objects to this request because it is vague and ambiguous as worded, assumes facts
not in evidence, and presents an incomplete hypothetical. Subject to and without
waiving these objections, Norcold responds as follows: Because the term ‘failure’
is not defined, the meaning of the request is vague, ambiguous, and uncertain, and
Norcold is therefore unable to admit or deny the request as worded; however, out
of an abundance of caution, the request is denied as worded.
Id. RFA No. 72 asked Norcold to “[a]dmit that hydrogen is combustible.” Jd. at 18. Norcold
responded by stating that,
Norcold incorporates by reference the foregoing general objections. Norcold also
objects to this request because it is vague and ambiguous as worded, assumes facts
not in evidence, and presents an incomplete hypothetical. Subject to and without
waiving these objections, Norcold responds as follows: Because this request poses
an incomplete and unrestrained hypothetical, Norcold is unable to admit or deny
the request as worded; however, out of an abundance of caution, the request is
denied as worded.
Id. .
A review of the remaining sixty-five flagged responses reveals the same general formula:
Norcold asserts a variety of boilerplate objections, then proceeds to deny the Request (RFA Nos.
8, 26, and 88), deny the Request as worded (RFA Nos. 2-4, 10-12, 17, 27, 38, 45, 49, 54, 58, 67,
78-80, 82-85, 90, and 92), admit part of the Request but deny the remainder outright or as worded
(RFA Nos. 6-7, 15—16, and 29-31), or state that it is unable to admit or deny the Request, but out
18
of an abundance of caution, denies the Request as worded (RFA Nos. 5, 14, 18—23, 32-37, 43, 46-
47, 52-53, 56, 59-61, 65-66, 68, 71-72, 76, 81, 89, 91, and 93-94). Id. at 3-24. Since Norcold
has failed to provide any factual support for its repeated assertion that Plaintiffs’ RFAs are, inter
alia, vague and ambiguous as worded, the undersigned finds that Norcold has waived these
objections and will not consider them in evaluating the substance of Norcold’s responses. See
Daniels, 2020 WL 2334088 at *4.
The Federal Rules of Civil Procedure provide as follows:
[i]f a matter is not admitted, the answer must specifically deny it or state in detail
why the answering party cannot truthfully admit or.deny it. A denial must fairly
respond to the substance of the matter; and when good faith requires that a party
qualify an answer or deny only a part of a matter, the answer must specify the part
admitted and qualify or deny the rest. The answering party may assert lack of
knowledge or information as a reason for failing to admit or deny only if the party
states that it has made reasonable inquiry and that the information it knows or can
readily obtain is insufficient to enable it to admit or deny.
Fed. R. Civ. P. 36(a)(4). Ifthe court finds “that an answer does not comply with this rule, the court
may order either that the matter is admitted or that an amended answer be served.” Fed. R. Civ.
P. 36(a)(6). “Courts most often declare a matter admitted when a responding party answers a Rule
36 request evasively or in bad faith.” Jones v. Crum & Forster Specialty Ins. Co., No. 7:22-CV-
00025-FL, 2023 WL 363745, at *2 (E.D.N.C. Jan. 23, 2023) (citing House v. Giant of Md., LLC,
232 F.R.D. 257, 262 (E.D. Va. 2005) (““Gamesmanship in the form of non-responsive answers,
vague promises of a future response, or quibbling objections can result in the request being deemed
admitted.”’)).
Applying Fed. R. Civ. P. 36(a)(4) to Norcold’s responses, the court overrules Plaintiffs’
motion to compel with respect to RFA Nos. 2-4, 6-8, 10-12, 15-17, 26-27, 29-31, 38, 45, 49, 54,
58, 67, 78-80, 82-85, 88, 90, and 92. A denial is a sufficient response under the rule, as is a partial
admission paired with a denial. A determination that Norcold’s denials are unsupported would be
19
premature, as Fed. R. Civ. P. 37(c)(2) addresses the consequences of a failure to admit “if the
requesting party later proves . . . the matter true... .” (emphasis added). Accordingly, Norcold’s
responses to RFA Nos. 2-4, 6-8, 10-12, 15-17, 26-27, 29-31, 38, 45, 49, 54, 58, 67, 78-80, 82—
85, 88, 90, and 92 are sufficient.
Norcold’s responses to RFA Nos. 5, 14, 18-23, 32-37, 43, 46-47, 52-53, 56, 59-61, 65—
66, 68, 71-72, 76, 81, 89, 91, and 93—94 all contain the statement that “Norcold is unable to admit
or deny the request as worded; however, out of an abundance of caution, the request is denied as
worded.” Pls.’ Mot. Ex. 5 [DE-39-5] at 3-24. Fed. R. Civ. P. 36(a)(4) provides that “[i]f a matter
is not admitted, the answer must specifically deny it or state in detail why the answering party
cannot truthfully admit or deny it.” The undersigned finds that Norcold’s above-listed response
does not constitute a specific denial, as it contains both a denial and an explicit statement that
Norcold is unable to respond, and further finds that Norcold has not stated in detail why the
answering party cannot truthfully admit or deny the indicated RFAs. See Fed. R. Civ. P. 36(a)(4).
Accordingly, Plaintiffs’ motion to compel is allowed with respect to RFA Nos. 5, 14, 18-23, 32-
37, 43, 46-47, 52-53, 56, 59-61, 65-66, 68, 71-72, 76, 81, 89, 91, and 93-94, and Norcold is
directed to provide amended answers to these Requests by no later than June 21, 2024. See id.
4. Requests for Production
_ Plaintiffs move to compel the production of documents requested from Norcold in
Requests for Production (“RFP”) Nos. 9, 42, 46-49, 55, 62, 69, 76, 84, 91, 98, 105-07, 110-12,
114. Pls.’ Mot. [DE-38] at 9. Plaintiffs contend that Norcold has asserted boilerplate objections to
the indicated requests and has not stated whether it withheld any responsive materials because of
its objections. Jd at 10. Defendants counter that Plaintiffs have failed to “make any argument
whatsoever” related to RFP Nos. 105-07, 110-12, and 114, in violation of Local Rule 7.1(c)(2);
20
and that with respect to the remaining RFPs, the Plaintiffs “do not give an accurate representation
as to what those particular requests seek,” and only address Defendants’ relevance objection.
Defs.’ Resp. [DE-43] at 6. Defendants argue that their objections, including the relevance
objection, are proper because while Plaintiffs claim that their RFPs are limited to specific
refrigerator models and recall timeframes the RFPs seek documents relating to claims, complaints,
and lawsuits against Norcold, as well as prior voluntary recalls, spanning the company’s entire
decades-long history. Jd. at 6—7.
Turning first to Defendants’ Local Rule 7.1(c)(2) contentions, the court finds that, while
Plaintiffs have not laid out their objections to Norcold’s responses request by request, they have
specifically identified the responses they find objectionable, explained their reasons for objecting
to Norcold’s responses, and attached those responses as exhibits. Pls.” Mem. [DE-38] at 9-10;
[DE-39-6]. Thus, the court finds that Plaintiffs have not violated Local Rule 7.1(c)(2) and denying
the instant motion on this basis is inappropriate.
Objections to requests for production of documents must “state with specificity the grounds
for objecting to the request, including the reasons.” Fed. R. Civ. P. 34(b)(2)(B). An objecting party
must also “state whether any responsive materials are being withheld on the basis of that
objection,” and any ground not stated in an objection is considered waived. Id. 34(b)(2)(C). To
- summarize the RFPs before the court, RFP No. 9 seeks copies of any complaint, petition, or similar
notification that Norcold has received arising out of any event in which it is alleged a Series 1210
refrigerator caught fire and injured a person or property; RFP Nos. 42 and 46-48 request
documents, Incident Files, source data for Incident Logs, and source data for Incident Files
pertaining to alleged Notcold refrigerator fires; RFP Nos. 49, 55, 62, 69, 76, 84, 91, and 98 seek
documents concerning the decision to implement various Norcold refrigerator recalls, including
21
communications regarding those recalls; RFP No. 105 requests documents concerning the
purchase of Norcold by Thetford; RFP No. 106 seeks production of all documents and databases
which track Norcold’s fire claim history before and after product safety recalls and retrofits; RFP.
No. 107 seeks documents and communications with existing owners of Norcold 1200 Series
refrigerators informing them of the redesigned Norcold 1200 Series which Norcold began selling
after October 2012; RFP Nos. 110-11 seeks documents relating to any customer complaints or
claims alleging failure of the high temperature sensor recall kit and failure of high Soneerre
sensors sold by Norcold for to repair the model refrigerator at issue; RFP No. 112 requests
documents relating to any corrective or remedial measures taken by Norcold to prevent potential
refrigerator fires in the model refrigerator at issue; and RFP No. 114 seeks production of
documents relating to customer complaints, claims, and lawsuits alleging that a fire originated in _
the model refrigerator at issue. Pls.’ Mot. Ex. 6 [DE-39-6] at 7, 21, 23-26, 28, 33, 37-38, 42-43,
47-48, 52-53, 57, 61-65.
Norcold raises a litany of objections to each of the indicated RFPs, some of which are
boilerplate. Jd. However, as relevant here, Norcold’s most pertinent commonly raised objections
are that Plaintiffs’ RFPs are overbroad in scope because they seek documents spanning over a
decade-long period at best, and an unlimited time period at worst; Plaintiffs’ RFPs are overbroad
because they seek information regarding other refrigerator models not at issue in the present
lawsuit; Plaintiffs’ RFPs impose a significant and undue burden and expense on Norcold to
respond given the thousands of refrigerator fire claims the company has fielded for over twenty
years; and Plaintiffs’ RFPs seek confidential and/or proprietary business information. Jd. Notably,
Norcold does not indicate in any of the flagged responses which documents it is withholding based
on its objections. Jd.
22
Given Norcold’s extensive litigation history, the undersigned finds it appropriate to curtail
the scope of Plaintiffs’ RFPs. In Cohen, for example, the court limited discovery of past claims,
complaints, and lawsuits against Norcold to the three years prior to the alleged incident. See 2022
WL 17365231, at *4-12. The court also held that “[k]nowledge of other fire claims regarding
Defendants’ gas absorption refrigerator is relevant to Plaintiffs’ claims of [defective design and
negligence] for purposes of discovery.” Jd. at *4 (citing Hershberger v. Ethicon Endo-Surgery,
Inc., No. 2:10-CV-00837, 2012 WL 1113955, at *2 (S.D. W. Va. Mar. 30, 2012) (“It is fairly well-
established that evidence of similar incidents may be relevant as direct proof of negligence, a
design defect, notice of a defect, or causation.”)).
Here, Plaintiffs have alleged that Norcold’s N6, N8, and 1200 Series refrigerators are
similarly designed and were recalled because of shared design defects. Compl. [DE-1] 9] 21-27.
Thus, the court finds that information regarding the design, manufacture, testing, and recall of
Norcold N6, N8, and 1200 Series refrigerators is discoverable. See Cohen, 2022 WL 1736523], at
*4, However, the court will adopt the three-year limitation established in Cohen where appropriate,
particularly with respect to RFP Nos. 9, 42, 46, 47-48, 110-12, and 114. To the extent that
confidentiality and proportionality concerns persist despite the three-year limitation, the court, in
its discretion, will allow Defendants fourteen (14) days to file a motion for a protective order to
-govern the disclosure of any confidential information and/or mitigate the burden of production
prior to producing responsive documents.” Accordingly, Plaintiffs’ motion to compel is allowed
? See Revak v. Miller, No. 7:18-CV-206-FL, 2020 WL 3513239, at *4 (E.D.N.C. June 29, 2020) (citing Wilson v.
Wexford Med., No. 3:18-CV-00890, 2020 WL 930112, at *3 (S.D. W. Va. Feb. 26, 2020) (“The ‘party claiming that :
a discovery request is unduly burdensome must allege specific facts that indicate the nature and extent of the burden,
usually by affidavits or other reliable evidence.””) (quoting Tucker v. Ohtsu Tire & Rubber Co., 191 F.R.D. 495, 498
(D. Md. 2000)); Nat’) R.R. Passenger Corp. v. Turner, No, 4:15-CV-68-BO, 2016 WL 2659546, at *3 (E.D.N.C. May
9, 2016) (finding conclusory assertion that responding to discovery request was unduly burdensome was insufficient
to sustain the objection and collecting cases).
23
with respect to the indicated RFPs, subject to the above-listed Norcold shall amend
- its responses by no later than June 21, 2024.
B. Plaintiffs’ Motion to Compel a Rule 30(b)(6) Deposition
Plaintiffs seek an order from the court compelling Norcold to schedule a Rule 30(b)(6)
deposition on all of Plaintiffs’ requested topics within the next thirty days. Pls.” Mot. [DE-40] at
1. Plaintiffs contend that Defendants have continued to obstruct and delay the discovery process
since the court entered its January 11, 2024 order instructing the parties to meet and confer
regarding Norcold’s Rule 30(b)(6) deposition and have improperly objected to Plaintiffs’ proposed
deposition topics. Pls.’ Mem. [DE-41] at 7-11.
Defendants argue that Plaintiffs have failed to meaningfully engage in the conferral process
and that the amended deposition notice, [DE-45-7], is objectionable “in its entirety” because “the
number of proposed categories of examination, and the scope of information they collectively
request, is overly broad, unduly burdensome, excessive, disproportional to the needs of the case,
harassing, unworkable as currently drafted, and constitutes an abuse of the discovery process.”
Defs.’ Mem. [DE-44] at 2-11. Defendants also identify several specific topics as objectionable:
Topics 7, 8, 16, 25—26, and 29, which generally seek information related to past lawsuits and
claims concerning fires allegedly caused by Norcold products; Topic 9, which seeks
“{cJommunications between or among any combination of Norcold, its Dealers, NHTSA [National
Highway Traffic Safety Administration], including but not limited to any enone relating
to any iesieanions or discussions” concerning various Norcold safety recalls; Topies 9-12 and
18-21, which generally seek information eerainiog to seven separate Norcold voluntary recalls of
refrigerators issued between 2000 and 2010; Topics 13, 22—23, and 27, which generally seek □
details regarding the design, manufacture, sales, and testing of Norcold N6 and N§8 refrigerators;
24
and Topic 27, which seeks information concerning warranty claims regarding Norcold N6, N8 and
Series 2000 refrigerators and their cooling units. Jd.
Turning first to the parties’ Local Rule 7.1(c)(2) contentions, in reviewing the briefs and
exhibits, it is evident that the communication issues addressed in the court’s January 11, 2024
order have not been resolved. The court reminds counsel that the meet and confer requirement is
not optional, and that the obligation is not satisfied by an exchange of written correspondence
(including email messages). However, the undersigned finds that the parties’ sustained failure to
communicate warrants judicial intervention at this juncture, thus the court will not deny the instant
motion on this basis.
The Federal Rules of Civil Procedure allow a party to name a corporation as a deponent.
Fed. R. Civ. P. 30(b)(6). “The named corporation must then designate a witness or witnesses to
testify on its behalf, and those witnesses must testify about information ‘known or reasonably
available to the organization.’” Beach Mart, Inc. v. L& L Wings, Inc., 302 F.R.D. 396, 406
(E.D.N.C. 2014) (quoting Fed. R. Civ. P. 30(b)(6)). Importantly, “[t]he proper procedure to object
to a Rule 30(b)(6) deposition notice is not to serve objections on the opposing party, but to move
for a protective order. Jd. (citing Robinson v. Quicken Loans, Inc., No. 3:12—CV—00981, 2013 WL
1776100, at *3 (S.D.W. Va. Apr. 25, 2013)). It is not entirely clear why Defendants have not
moved for a protective order at this advanced stage of the discovery process, but for the sake of
efficiency, the court will briefly address Defendants’ objections to Plaintiffs’ twenty-nine Rule
30(b)(6) deposition topics.
Pursuant to Rule 30(b)(6), Norcold must designate a witness to testify on its behalf.
However, while an organizational representative must be reasonably and adequately prepared to
answer questions about the relevant forester topics, they are not expected to be a corporate
25
fenevelonedia Runnels v. Norcold, Inc., No. 1:16-cv-713, 2017 WL 3026915, at *1 (E.D. Va. Mar.
. 30, 2017) (citing Fed. R. Civ. P. 30(b)(6)). To that end, Defendants have proposed producing a
representative “‘to testify generally regarding claims, complaints, and lawsuits made on Norcold
for [the three]-year period immediately preceding the fire [that forms] the basis of this [law]suit,
without going into the details of the claims, complaints, and lawsuits”; and producing a □
representative “to testify generally regarding the maintaining of a warranty claim database limited
to [the three]-year period immediately prior to the fire [that forms] the basis of this lawsuit, but
not regarding any details of the warranty claim database including any details of any warranty
claims made.” Defs.” Mem. [DE-44] at 8-11. Plaintiffs have not responded to Defendants’
suggested limitations, id., and in the absence of an argument to the contrary, the court finds that
the three-year limitation is appropriate as applied to Topics 7, 8, 10, 16, 25-27, and 29, and that it
- 1s appropriate for Norcold’s chosen representative to testify generally regarding the relevant
claims, complaints, and lawsuits against Norcold, as well as the warranty claims and warranty
claim database. See Cohen, 2022 WL 17365231, at *4.
As in their response to Plaintiffs’ motion to compel written discovery, Defendants object
to Plaintiffs seeking information regarding the design, manufacture, testing, and recall of Norcold
N6, N8, and 1200 Series refrigerators. Defs.’ Mem. [DE-44] at 9-11. For the reasons explicated
supra, the court finds that information regarding the design, manufacture, testing, and recall of
Norcold N6, N8, and 1200 Series refrigerators is discoverable, provided that Plaintiffs’ topics are
sufficiently narrowed to eerely with the limitations imposed by this order. See IL.i.A.4.
With respect to Topic 9, which seeks “[c]ommunications between or among any
combination of Norcold, its Dealers, NHTSA, including but not limited to any communications
relating to any investigations or discussions concerning NHTSA safety recalls No. 00E-031
26
(2000), NHTSA No. 02E-019 (2002), NHTSA 02E-045 (2002), NHTSA No. 08E-030 (2008),
NHTSA Nos. 09E-026 (2009), NHTSA No. 09E-027 (2009), and NHTSA No. 10E-049 (2010),”
Defendants argue that the topic improperly calls for Norcold to testify about communications to
which it was not a party and “is so vast and open-ended and calls for such a large volume of □
information that it would be impossible for Norcold to prepare a representative on.” Defs.’ Mot.
Ex. 7 [DE-45-7] at 5—6, Defs.” Mem. [DE-44] at 9. Defendants’ objection is sustained in part, and
Norcold is directed to produce a representative who can testify generally about communications
_between Norcold, its Dealers, and/or the NHTSA relating to investigations or discussions
. concerning NHTSA safety recalls.
Finally, to the extent that Defendants contend it is impossible for Norcold to prepare a
single representative to testify on every noticed topic, Defs.” Mem. [DE-44] at 9-10, the court
notes that Norcold may designate more than one agent or representative to testify as to the various
topics, Fed. R. Evid. 30(b)(6) (“The named organization must then designate one or more officers,
who consent to testify on its behalf; and it may set out the matters on which each person
designated will testify”). Accordingly, the court disagrees with Defendants’ characterization that
preparation of. “a representative” to testify regarding a wide array of information is unduly
burdensome or “nearly impossible,” particularly given the topic limitations discussed above,
because Norcold is allowed to designate multiple witnesses to testify to as few or as many of the
provided topics as they choose. Defs.’ Mem. [DE-44] at 8-10. ©
In sum, Plaintiffs’ motion to compel a Rule 30(b)(6) deposition is granted in part and
denied in part, subject to the limitations detailed herein, and Plaintiffs’ request for an award of
their fees and costs is denied. Counsel for Norcold will work cooperatively with Plaintiffs’ counsel
to schedule a Rule 30(b)(6) deposition by no later than July 22, 2024.
7 □
C. Plaintiffs’ Motion to Compel the Deposition of Defendants’ Expert Kim May
Plaintiffs seek an order from the court compelling Defendants to produce Norcold’s
retained expert, Kim May, for deposition within twenty days. Pls.’ Mot. [DE-50] 1. Plaintiffs
contend that Defendants have refused to provide dates for May’s deposition, Pls.” Mem. [DE-51]
at 4, and have attached several exhibits in support of this claim, including May’s expert report,
Norcold’s original and supplemental expert disclosures, and correspondence between Defendants’
counsel and Plaintiffs’ counsel regarding May’s pending deposition, [DE-51-1 to -6]. Defendants
aver that Plaintiffs have embarked on a “quest to harass Defendants” via the discovery process
have failed to meaningfully meet and confer with Defendants despite the court’s previous directive
to do so. In support, Defendants attached several exhibits, including a declaration made by counsel
for Defendants, Todd Foss; Plaintiffs’ first and amended objections and responses to Norcold’s
first request for production of documents. [DE-53-1 to -6].
After reviewing the correspondence provided by the parties regarding their attempts to
meet and confer, as well as the declaration submitted by Mr. Foss, the court finds that the parties _
have, yet again, failed to comply with Local Civ. R. 7.1(c)(2). However, given the stage of the
case and the history of unsuccessful communication between the parties, the court in its discretion
will not deny the instant motion on this basis. Instead, the court directs Defendants’ counsel to
work cooperatively with Plaintiffs’ counsel to schedule a deposition of Defendants’ expert Kim
May by no later than July 22, 2024. Accordingly, Plaintifts’ motion to compel is allowed, and their
request for an award of fer and costs is denied.
. ii. Norcold’s Motion for Leave to File Exhibits
Norcold requests leave of court to file exhibits in support of its response in opposition to
Plaintiffs’ motion to compel a Rule 30(b)(6) deposition. [DE-45]. In support, Norcold states that
28
counsel experienced technological difficulties of unknown origin when attempting to upload and
submit the exhibits that Noteold cites throughout its response. Id. at 2. Counsel proceeded to file
Norcold’s oronee omitting the exhibits, without issue. Jd. The response was timely filed, [DE-
44], and the corresponding exhibits were filed as attachments to the instant motion four days later,
along with a declaration of Defendants’ counsel, Mitchell Powell, [DE-46].
Federal Rule of Civil Procedure 6(b) states that “[w]hen an act may or must be done within
a specified time, the court may, for good cause, extend the time . . . on motion made after the time
has expired if the party failed to act because of excusable neglect.” Fed. R. Civ. P. 6(6)(1)(B).
“Excusable neglect” is an elastic concept, “not limited strictly to omissions caused by
circumstances beyond the control of the movant,” and courts have discretion to allow late filings
even where the delay was the result of inadvertence. Pioneer Invs. Serv. Co. v. Brunswick Assoc.
Ltd. P’ship, 507 U.S. 380, 392 (1993) (citation omitted). Here, Defendants have demonstrated
excusable neglect for the delay in uploading the relevant exhibits and Plaintiffs do not oppose the
instant motion. Thus, for good cause shown, Defendants’ motion is allowed, and the exhibits
submitted as attachments to [DE-45] are deemed to have been timely filed on February 16, 2024
as part of Norcold’s response in opposition to Plaintiffs’ motion to compel a Rule 30(b)(6)
ferosiion
iii. Plaintiffs’ Motion for an Expedited Status Conference
Plaintiffs request that the court set this case for an expedited status conference. [DE-54].
In support, Plaintiffs aver that the discovery period is currently set to conclude on June 1, 2024,
and that Plaintiffs’ three pending motions to compel are as-yet unresolved. Jd. at 1-2. The motion
is denied.
3 The discovery period is actually set to conclude on June 21, 2024. [DE-49].
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IIL CONCLUSION
For the reasons stated above, Defendants’ motion for leave to file exhibits, [DE-45] is
allowed; Plaintiffs’ motion to compel written discovery, [DE-37], is allowed in part and denied in
part; Plaintiffs motion to compel a Rule 30(b)(6) deposition, [DE-40], is allowed in part and
denied in part; Plaintiffs’ motion to compel the deposition of Defendants’ expert Kim May, [DE-
50] is allowed; and Plaintiffs’ motion for expedited status conference, [DE-54], is denied. In light
of the court’s order, the parties will need more time to complete discovery. Accordingly, case
deadlines are extended as follows: all discovery shall be completed by no later than July 22, 2024,
and all potentially dispositive motions, except those relating to the admissibility of evidence of
trial, shall be filed by no later than August 22, 2024.
SO ORDERED, the 24th day of May 2024.
United States Magistrate Judge
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