United States District Court, S.D. Florida
ORDER GRANTING PLAINTIFFS' MOTION TO COMPEL
G. TORRES United States Magistrate Judge.
matter is before the Court on Plaintiffs' Motion to
Compel Responses to Plaintiff's' First Request for
Production to Forjas Taurus S.A. [D.E. 31], to which
Defendant Taurus responded in opposition [D.E. 36] and
Plaintiffs replied [D.E. 37]. The issues raised in the motion
are ripe for adjudication. After careful consideration of the
motion, response, reply, and relevant authority, and for the
reasons discussed below, Plaintiff's Motion to Compel is
October 26, 2012, William and Oma Louise Burrow
(“Plaintiffs”) purchased a Rossi model R35102
revolver, S/N EX43410 from Academy Sports Outdoors for
$259.99. [D.E. 1 at ¶ 43]. Plaintiffs are said to have
purchased the revolver for protection against coyotes present
on their farm. Id. In February 2014, after a day of
working on their farm, Plaintiffs returned to their primary
residence. Id. at ¶ 45. It was as Plaintiffs
were removing items from their vehicle that Mrs. Burrow
accidentally dropped the revolver. Id. The revolver
fired upon hitting the ground and a bullet struck Mrs. Burrow
in the knee. Id. Plaintiffs maintain that the safety
was on and the revolver was properly holstered when dropped.
5, 2016, Plaintiffs filed a class action suit against
Defendants Forjas Taurus S.A. and Braztech International,
L.C. alleging both companies knowingly and negligently
designed, manufactured, distributed, and sold a class of
revolvers with safety mechanisms that were
defective. Id. at ¶ 1. Forjas Taurus
S.A.is the manufacturer of the revolvers and is based in
Brazil while Braztech International, L.C. is the distributor
and seller of the revolvers and is based in Florida.
Id. It is argued that all of the revolvers contain
at least one defect in the alignment of the hammer's
rebound slide seat and that some the revolvers also contain
another defect in a separate hammer block component.
Id. at ¶ 28. These safety mechanisms are
designed to prevent “drop-fire” incidents like
the one Plaintiffs alleged happen. Id.
Braztech International, L.C. answered the Complaint on June
27, 2016 [D.E. 9] and Defendant Forjas Taurus S.A. answered
the Complaint on January 6, 2017 [D.E. 27]. At the
commencement of discovery, Plaintiffs sent their first
request for production to Defendant Forjas Taurus S.A.
(“Defendant”) on January 24, 2017. Defendant
timely responded on February 23, 2017. [D.E. 31 at 2]. In
response to each of the Plaintiffs' thirty-four requests
to production, Defendant stated:
Forjas Taurus objects to Request for Production No. [ ]
because it seeks documents located in the Federative Republic
of Brazil and there is currently no treaty in place between
the United States and Brazil that authorizes and regulates
the taking of evidence abroad. Rather, the taking of evidence
located in Brazil for use in litigation pending in EXHIBIT
"B" Case 1:16-cv-21606-EGT Document 31-2 Entered on
FLSD Docket 04/11/2017 Page 1 of 32 2 U.S. courts is informed
by Article 5(j) of the Vienna Convention on Consular
Relations, 21 U.S.T. 77, which holds that any such evidence
taking must comply with the laws of Brazil. According to the
U.S. Department of State's Bureau of Consular Affairs,
Brazilian law requires that evidence collection in a civil
matter such as this case “be taken before a Brazilian
court pursuant to letters rogatory.” Because the laws
of Brazil do not recognize the authority of foreign persons,
such as U.S. attorneys, to take evidence in any form other
than letters rogatory, Forjas Taurus further objects that
Request No. [ ] violates Brazilian sovereignty, international
comity, Brazil's judicial sovereignty, and Brazilian
procedural law. The application of the Vienna Convention puts
the parties in a situation where the Plaintiffs' requests
were effectively “not served” on the Forjas
Taurus. Forjas Taurus, in an abundance of caution, files and
serves these Vienna Convention based objections now, and
reserves the right to file additional objections, if
[D.E. 31 at 2].
conferred with Defendant after receiving the response and
Defendant maintained its objection while also declining to
supplement any additional objections pursuant to the Federal
Rules when Plaintiffs gave the opportunity to do so. [D.E. at
3]. As such, Plaintiffs filed this Motion.
Standard of Review
Rules of Civil Procedure (“The Federal Rules”)
defines the scope of discovery as including “any
matter, not privileged, that is relevant to the claim or
defense of any party.” Fed.R.Civ.P. 26(b). “The
Federal Rules of Civil Procedure strongly favor full
discovery whenever possible.” Farnsworth v. Procter
& Gamble Co., 758 F.2d 1545, 1547 (11th Cir. 1985).
Courts must consequently employ a liberal and broad scope of
discovery in keeping with the spirit and purpose of these
discovery rules. Rosenbaum v. Becker & Poliakoff,
P.A., 708 F.Supp.2d 1304, 1306 (S.D. Fla. 2010)
sustain a discovery objection, the party opposing production
must show that the requested discovery has no possible
bearing on the claims and defenses raised in the case. See,
e.g., Wrangen v. Pennsylvania Lumbermans Mut. Ins.
Co., 593 F.Supp.2d 1273, 1278 (S.D. Fla. 2008). This
means that the party must demonstrate either that the
requested discovery (1) does not come within the broad scope
of relevance as defined under Rule 26 or (2) is of such
marginal relevance that the potential harm occasioned by
discovery would far outweigh the ordinary presumption in
favor of broad disclosures. Milinazzo v. State Farm Ins.
Co., 247 F.R.D. 691, 695 (S.D. Fla. 2007). And to show
that the requested discovery is otherwise objectionable, the
onus is on that party to demonstrate with specificity how the
objected-to request is unreasonable or otherwise unduly
burdensome. Rossbach v. Rundle, 128 F.Supp.2d 1348,
1354 (S.D. Fla. 2000) (citing in part Panola Land Buyers
Ass'n v. Shuman, 762 F.2d 1550, 1559 (11th Cir.
1985) (objections must be “plain and specific enough so
that the court can understand in what way the [requested
discovery] are alleged to be objectionable”).
Timeliness of Plaintiff's Motion
Rule 26.1(g)(1) provides in material part that “[a]ll
motions related to discovery, including but not limited to
motions to compel discovery ... shall be filed within thirty
(30) days of the occurrence of grounds for the motion.
Failure to file a discovery motion within thirty (30) days,
absent a showing of reasonable cause for a later filing, may
constitute a waiver of the relief sought.” The Court
finds that this Motion was timely filed.
Production will be Compelled
analyzing disputes that arise from conflicting international
law on the rules of discovery, the United States Supreme
Court's decision in Societe Nationale Industrielle
Aerospatiale v. U.S. Dist. Ct. for the S. Dist. of Iowa,
482 U.S. 522 (1987) primarily governs. The case involved
plaintiffs in a personal injury action against defendants,
the manufacturers of a crashed airplane made in France.
Id. at 522. Plaintiffs served a discovery request
under the Federal Rules, to which defendants filed a motion
for a protective order, “alleging that the [Hague]
Convention dictated the exclusive procedures that must be
followed since [defendants] are French and the discovery
sought could only be had in France.” Id. at
522. The district court denied defendant's motion, and
the Court of Appeals denied petitioners' mandamus
petition. Defendants then appealed to the Supreme Court. The
Court recognized that while both the discovery rules in The
Hague Convention and Federal Rules of Civil Procedure are the
law of the United States, it is necessary to “analyze
the interaction between [the] two bodies of law.”
Id. The Court held that the Convention's plain
language did not explicitly impart mandatory or exclusive
procedures for discovery. Id. As such, the
Convention did not divest the district court of its
jurisdiction to order, under the Federal Rules, a foreign
national party to produce evidence physically located within
a signatory nation. Id.
the Aerospatiale Court was evaluating The Hague Convention,
its reasoning has been applied in other cases dealing with
different international laws on the rules of discovery.
U.S. v. Billie, 611 F. App'x 608, 610 (11th Cir.
2015) (citing Aerospatiale when analyzing the district
court's authority to order a party under its jurisdiction
to produce documents, though the party alleges that the order
would violate Native American tribal law); Consejo de
Defensa Del Estado de la Republica de Chile v. Espirito Santo
Bank, No. 09-20613-CIV, 2010 WL 2162868 (S.D. Fla. May
26, 2010) (citing Aerospatiale when analyzing privileges
under Chilean law for discovery procedures and applying
five-factor test found in the Supreme Court's decision).