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In Admiralty Paul G. Fleisher v. A 1990 53' Viking Sport Fishing Vessel Named F-Troop

November 30, 2011

IN ADMIRALTY PAUL G. FLEISHER, PLAINTIFF,
v.
A 1990 53' VIKING SPORT FISHING VESSEL NAMED F-TROOP, USCG NO. 1077134 IN REM, AND S & S DIESEL MARINE SERVICES, INC., IN PERSONAM, DEFENDANTS. S & S DIESEL MARINE SERVS., INC., PLAINTIFF/COUNTER-DEFENDANT,
v.
M/V F-TROOP, THAT CERTAIN 1991 53-FOOT VIKING MOTOR VESSEL, BEARING HULL IDENTIFICATION NUMBER VKY53135B191, AND PAUL FLEISHER, DEFENDANTS/COUNTER-CLAIMANT.



The opinion of the court was delivered by: Robin S. Rosenbaum United States Magistrate Judge

ORDER

This matter is before the Court on Defendant S & S Diesel Marine Services, Inc.'s Motion for Order to Compel Inspection for the Purpose of Discovery [D.E. 37], upon referral by the Honorable William J. Zloch. See D.E. 76. The Court has reviewed Defendant's Motion, all filings in support thereof and in opposition thereto, and the record in this matter and is otherwise duly advised in the premises. After careful consideration, the Court now grants in part and denies in part Defendant's Motion for the reasons set forth below.

I. Background

This case arises out of a dispute over work to the engines of Plaintiff Paul Fleisher's ("Fleisher") boat, the M/V F-Troop. Fleisher contracted with S & S Diesel Marine Services, Inc., ("S & S") to rebuild the starboard and port engines of the F-Troop. Essentially, S & S complains that it performed the necessary work, but Fleisher refused to pay the outstanding balance, while Fleisher objects that S & S never completed the promised work, and the work that S & S did perform was deficient. Fleisher sued S & S for possession of the F-Troop and for breach of warranty, and, in a related action later consolidated with the instant matter, S & S filed suit to foreclose on a maritime lien on the F-Troop, and S & S proceeded against Fleisher in personam, alleging breach of contract and quantum meruit. In response, Fleisher filed a Counterclaim, setting forth claims for breach of contract and breach of implied warranty relating to S & S's work on the F-Troop's engines.

In the pending Motion, S & S seeks an order compelling Fleisher to allow S & S to inspect the hull of the F-Troop. According to the pending Motion and Fleisher's Response to it [D.E. 39], Fleisher conducted a sea trial of the F-Troop on September 14, 2011, to test and record the performance of the vessel's two main engines that are the subject of the dispute between the parties. See D.E. 37 at ¶ 2; D.E. 39 at ¶ 5. Fleisher described the sea trial as having "failed." D.E. 39 at ¶ 5. Because, S & S argues, the condition of the hull at the time of the sea trial could have significantly affected the performance of the F-Troop's engines, S & S should be permitted to inspect the hull to ascertain any impact that its condition might have had on the sea trial. See D.E. 37 at ¶¶ 12-13.

Fleisher disagrees and asserts that he had the hull bottom and running gear of the boat cleaned before the sea trial, so the hull and running gear's condition should not have affected the results of the sea trial. Moreover, Fleisher reasons, S & S's counsel and expert attended the September 14, 2011, sea trial and did not request an inspection of the hull or running gear before or immediately after the sea trial. Because of the passage of time since September 14, 2011, Fleisher further argues, sea growth has undoubtedly developed on the hull, so the hull is no longer in the condition that it was at the time that the sea trial was conducted, and the current condition of the hull is not relevant to the efficacy of the sea trial. Finally, Fleisher contends that S & S is not entitled to an order compelling inspection of the hull because Fleisher has never served a formal request pursuant to Rule 34, Fed. R. Civ. P., to inspect the hull.

S & S replies that although it may not have served a formal request under Rule 34, it nonetheless "met . . . the spirit and intent" of Rule 34. D.E. 41 at ¶ 6. In this regard, S & S points out that on September 20, 2011, its counsel sent an e-mail to Fleisher's counsel requesting permission "to have a diver inspect the bottom of the vessel so we all know whether any conditions existed that may have affected the sea trial. . . . The bottom survey should be done as soon as possible." D.E. 41-1. Fleisher's counsel denied permission, stating that Fleisher had the hull cleaned two days before the sea trial and that he would provide S & S with a copy of the invoice for the cleaning.*fn1 D.E. 41-2.

Then, on September 23, 2011, counsel for S & S sent Fleisher's attorney a letter insisting that an inspection of the hull and the running gear was essential and that production of the cleaning invoice would not suffice. See D.E. 41-4. Consequently, S & S explained, it "require[d] the inspection and . . . ask[ed] that [it] be given permission to perform [the inspection] as soon as today." Id. Once again, Fleisher denied authorization. See D.E. 37 at ¶¶ 17.

S & S then filed the pending Motion. On November 29, 2011, the Honorable William J. Zloch referred the Motion to me. The Motion is now ripe for disposition.

II. Discussion

Rule 34, Fed. R. Civ. P., governs inspections of "tangible things" and the "entry onto designated land . . . controlled by the responding party, so that the requesting party may inspect, . . . [or] photograph . . . the property . . . ." Under Rule 34, requests for such inspections must fall within the scope of discovery that Rule 26(b), Fed. R. Civ. P., authorizes.

Rule 26(b) of the Federal Rules of Civil Procedure defines the parameters of permissible discovery. That rule provides, in relevant part, that "[p]arties may obtain discovery regarding any non-privileged matter that is relevant to any party's claim or defense . . . . 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). The Advisory Committee Notes to Rule 26 indicate that "[t]he purpose of discovery is to allow a broad search for facts, the names of witnesses, or any other matters which may aid a party in the preparation or presentation of his case." Fed. R. Civ. P. 26(b) advisory committee notes (1946). Indeed, the Advisory Committee Notes approvingly cite language from a case stating that "the Rules . . . permit 'fishing' for evidence as they should." Id. (alteration in original) (citation omitted); see also Hickman v. Taylor, 329 U.S. 495, 507 (1947) ("No longer can the time-honored cry of 'fishing expedition' serve to preclude a party from inquiring into the facts underlying his opponent's case.").

The courts have long recognized the wide scope of discovery allowed under the Federal Rules of Civil Procedure. As the Eleventh Circuit's predecessor court noted,

The discovery provisions of the Federal Rules of Civil Procedure allow the parties to develop fully and crystalize concise factual issues for trial. Properly used, they prevent prejudicial surprises and conserve precious judicial energies. The United States Supreme ...


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