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Burrow v. Forjas Taurus S.A.

United States District Court, S.D. Florida

June 16, 2017



          EDWIN G. TORRES United States Magistrate Judge.

         This 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].[1] 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 GRANTED.

         I. BACKGROUND

         On 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. Id.

         On May 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.[2] Id. at ¶ 1. Forjas Taurus 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.

         Defendant 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 necessary.

[D.E. 31 at 2].

         Plaintiffs 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.

         II. ANALYSIS

         A. Standard of Review

         Federal 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) (collecting cases).

         To 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”).

         B. Timeliness of Plaintiff's Motion

         Local 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.

         C. Production will be Compelled

         When 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.

         Although 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). It ...

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