The opinion
UNITED STATES DISTRICT COURT
NORTHERN DISTRICT OF ALABAMA
SOUTHERN DIVISION
NAUDIA MAINOR, )
)
Plaintiff, )
)
v. ) Civil Action No. 2:22-cv-1483-ACA
)
BOPPY COMPANY LLC, THE, )
)
Defendant. )
MEMORANDUM OPINION AND ORDER
Plaintiff Naudia Mainor filed this product liability action against Defendant
The Boppy Company after her infant died while allegedly using a Boppy pillow.
Eleven months after the infant’s death, Boppy recalled the pillow. Ms. Mainor seeks
discovery of the recall (1) from Boppy through interrogatories and document
requests and (2) from the U.S. Consumer Product Safety Commission (“CPSC”)
through a subpoena. Boppy objects to the discovery on numerous grounds and
requests the court enter a protective order sustaining its objections and quashing the
CPSC subpoena.
Because the court is not persuaded by any of Boppy’s arguments, the court
DENIES Boppy’s motion for protective order and to quash the CPSC subpoena.
(Doc. 40).
I. BACKGROUND
Ms. Mainor alleges that while her infant was laying on a Boppy pillow, he
suffocated and died. (Doc. 1-1 ¶¶ 30–33). Ms. Mainor’s son was one of eight infants
who died on a Boppy pillow. (See doc. 1-1 ¶ 51); Safety Recalls, BOPPY,
https://www.boppy.com/pages/product-recalls (last visited Feb. 6, 2024). About a
year after Ms. Mainor’s son’s death, in cooperation with the CPSC, Boppy recalled
the pillow. (Doc. 1-1 ¶ 51; doc. 40 at 4).
Ms. Mainor now seeks discovery of information regarding the recall from
Boppy (see doc. 40-5 at 11, 17; doc. 40-6 at 7, 19) and the CPSC (doc. 40-11). The
discovery requests of Boppy are as follows:
Interrogatory 10: Describe and list all correspondence with any
governmental agency with regard to inquiry or investigation into the Subject
Product or Similar Products, as described in the complaint. PRODUCE: All
documentation provided by or to all governmental agencies.
Interrogatory 17: State whether this Defendant or any representative of this
Defendant conducted any recall campaigns or similar activity involving the
Subject Product or Similar Products, or any component part thereof. If so,
PRODUCE: All documents that deal with said recall.
Request for production 6: All documentation of any type that in any way
mentions, describes or otherwise refers to any recalls or potential recalls the
Defendant has made or has contemplated making of the Subject Product or of
Similar Products.
Request for production 25: Each investigation report relating to the
occurrence, the Subject Product, or Similar Products prepared by any agency,
bureau or commission of the Federal Government or any state, local, or
municipal government.
(Doc. 40-5 at 11, 17; doc. 40-6 at 7, 19). Ms. Mainor’s CPSC subpoena similarly
seeks all communications and documents relating to the Boppy pillow. (See doc. 40-
11 at 8–11 ¶¶ 1–27).
II. DISCUSSION
The scope of discovery includes “any nonprivileged matter that is relevant to
any party’s claim or defense and proportional to the needs of the case.” Fed. R. Civ.
P. 26(b)(1). “Relevance in the context of discovery has been construed broadly 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.” Akridge v. Alfa Mut. Ins.
Co., 1 F.4th 1271, 1277 (11th Cir. 2021) (quotation marks omitted). The Federal
Rules of Civil Procedure “strongly favor full discovery whenever possible.” Id.
(quotation marks omitted). Indeed, information “need not be admissible in evidence
to be discoverable.” Fed. R. Civ. P. 26(b)(1); Akridge, 1 F.4th at 1276 (quotation
marks omitted).
Boppy objects to the discovery requests and the CPSC subpoena for two
reasons. First, Boppy argues that its conduct after the voluntary recall is not
discoverable because it was a subsequent remedial measure under Federal Rule of
Evidence 407 and would therefore be inadmissible as evidence. (Doc. 40 at 10).
Second, Boppy argues the requests are overbroad, unduly burdensome, and not
proportional to the needs of the case. (Id. at 11). Ms. Mainor responds to each of
those arguments and raises a new argument of her own: that Boppy does not have
standing to oppose the CPSC subpoena. (See doc. 42 at 14–15). The court will first
address the standing argument, then address the Rule 407 arguments, and finally
address the proportionality arguments.
1. Boppy Does Not Have Standing to Quash the CPSC Subpoena but
Can Move For a Protective Order over the Subpoena.
A party has standing to quash a third-party subpoena only if they allege a
“personal right or privilege with respect to the materials subpoenaed.” Brown v.
Braddick, 595 F.2d 961, 967 (5th Cir. 1979).1 Boppy makes neither argument;
instead, it argues only that the materials subpoenaed are not admissible evidence or
relevant to the litigation. (See doc. 40 at 13; see also id. at 10–12). Therefore, Boppy
has not satisfied its burden that it has standing to quash the subpoena. See Brown,
595 F.2d at 967.
But as a party to the litigation, Boppy can move for a protective order over
the subpoena if the subpoena seeks irrelevant information. Auto-Owners Ins. Co. v.
Se. Floating Docks, Inc., 231 F.R.D. 426, 429 (M.D. Fla. Sept. 28, 2005).2 And
because Boppy’s arguments in support of its motion to quash the CPSC subpoena
1 In Bonner v. City of Prichard, 661 F.2d 1206, 1209 (11th Cir. 1981) (en banc), the
Eleventh Circuit adopted as binding precedent all decisions of the former Fifth Circuit handed
down before October 1, 1981.
2 Although this case is not binding authority, see Am. Elec. Power Co., Inc. v. Connecticut,
564 U.S. 410, 428 (2011), the court finds it persuasive.
are identical to its reasons for a protective order over Ms. Mainor’s discovery
requests, the court will address the arguments together. (See doc. 40 at 13).
2. Federal Rule of Evidence 407 Does Not Bar the Requested
Discovery.
Eleven months after the death of Ms. Mainor’s son, Boppy recalled the pillow.
(See doc. 40 at 10; doc. 1-1 ¶¶ 30–33, 51). Ms. Mainor’s discovery requests (see doc.
40-5 at 11, 17; doc. 40-6 at 7, 19) and the CPSC subpoena (see doc. 40-11 at 8–11
¶¶ 1–27) generally seek all information related to that recall or any other potential
recall of the Boppy pillow. Boppy argues that none of that information is reasonably
calculated to lead to the discovery of admissible evidence because those materials
would be excluded as a subsequent remedial measure under Federal Rule of
Evidence 407. (Doc. 40 at 10; see also id. at 12–13); see Fed. R. Civ. P. 26(b)(1).
Rule 407 provides that “measures . . . taken that would have made an earlier
injury or harm less likely to occur . . . [are] not admissible to prove: negligence;
culpable conduct; a defect in a product or its design; or a need for a warning or
instruction.” Fed. R. Evid. 407. The rule, however, allows a court to admit that
evidence for another purpose, such as impeachment. Id. Boppy argues that because
they recalled the pillow eleven months after the death of Ms. Mainor’s son, “any
action taken by Boppy related to the voluntary recall . . . was a subsequent remedial
measure that would be inadmissible.” (Doc. 40 at 10; see also id. at 13).
That argument does not persuade the court for two reasons. First, the Federal
Rules of Civil Procedure expressly define the scope of discovery to include materials
that may not be admissible in evidence. Fed. R. Civ. P. 26(b)(1) (“Information within
this scope of discovery need not be admissible in evidence to be discoverable.”).
And second, assuming Boppy is correct that “any action” related to the recall is a
subsequent remedial measure, Rule 407 would not categorically bar the admissibility
of that evidence. (See doc. 40 at 10). The rule would permit Ms. Mainor, for
example, to proffer the evidence for impeachment or to demonstrate the feasibility
of precautionary measures. See Fed. R. Evid. 407.
3. The Discovery Requests Are Not Overbroad, Unduly Burdensome,
or Nonproportional to the Needs Of the Case.
Boppy also argues that the discovery requests and CPSC subpoena “should be
barred because they are overbroad, unduly burdensome, and not proportional to the
needs of the case.” (Doc. 40 at 11; see also id. at 13). But beyond referencing the
use of the words “all” and “any” in the discovery requests, Boppy makes no
argument as to why the requests are unduly burdensome or nonproportional. (See
doc. 40 at 12–13). It is Boppy’s burden to demonstrate good cause exists to enter a
protective order and it has not done so. See Fed. R. Civ. P. 26(c)(1).
III. CONCLUSION
Boppy’s motion for a protective order and to quash the CPSC subpoena is
DENIED. (Doc. 40).
DONE and ORDERED this February 6, 2024.
ANNEMARIE CARNEY AXON
UNITED STATES DISTRICT JUDGE