United States District Court, M.D. Florida, Fort Myers Division
McCOY, UNITED STATES MAGISTRATE JUDGE
before the Court is Defendants' Motion to Determine
Protocol to Disassemble the Subject Miter Saw, filed on
February 8, 2018. (Doc. 26). Plaintiffs filed a Response
opposing the saw's disassembly on March 14, 2018. (Doc.
32). Defendants filed a Reply to Plaintiffs' Response on
April 11, 2018. (Doc. 36). This matter is ripe for review.
originally brought this action in state court, but Defendants
removed it to federal court on December 19, 2017. (Doc. 1).
Plaintiffs' Amended Complaint seeks damages for alleged
injuries resulting from a miter saw severing Plaintiff John
Landi's arm. (Doc. 2 at ¶¶ 1, 17). Plaintiffs
allege that Defendant Makita USA, Inc. designed and
manufactured the saw and that Defendant Home Depot USA, Inc.
marketed, advertised, distributed, and sold the saw.
(Id. at 2). Plaintiffs allege that the saw blade
contained manufacturing and design defects that caused it not
to function as safely as expected. (Id. at 4).
Plaintiffs allege that the saw's defects are the direct
and proximate causes of John's alleged injury.
(Id. at 4-5, 10-11).
contest Plaintiffs' allegations and assert various
defenses. (Doc. 6 at 11-12; Doc. 7 at 11-12). In pertinent
part, Defendants assert affirmative defenses that the alleged
injury and loss resulted from misuse of the saw and/or that
the saw was substantially changed after it left
Defendants' control. (Doc. 6 at 12; Doc. 7 at 11-12).
support of these defenses, Defendants contend that
disassembly of the subject saw should be permitted. (Doc. 26
at 2-3). Defendants argue that such testing is necessary
“to inspect areas that cannot be seen while the saw is
fully assembled by the naked eye and to document the inner
components of the subject saw.” (Id. at 3).
support of this argument, Defendants note that in addition to
the saw blade, “which is designed to retract and cover
the blade as the blade is raised, ” the subject saw
also has an adjustable laser beam. (Id. at 2). When
properly aligned, Defendants state that the laser beam
creates a line where the blade will cut the material to
assist with accuracy. (Id.). When Defendants
previously performed a non-destructive inspection of the
saw's exterior, however, Defendants noted that (1) the
blade guard appeared to be obstructed, (2) a new blade was on
the saw, (3) white debris covered portions of saw, and (4)
the laser beam appeared to be out of position. (Id.
at 2-3). As a result of these findings, Defendants contend
that additional testing is needed. (See id.).
their part, Plaintiffs oppose the testing proposed by
Defendants. (See Doc. 32 at 1). Indeed, Plaintiffs
seek an Order preserving the saw in its current condition.
parties' disagreements regarding the need for disassembly
first arose in state court prior to removal. (See
Doc. 32 at 2; see also Doc. 32-2). There, the court
granted Defendants' Motion to Preserve Evidence. (See
id.). In pertinent part, the state court order provided
that the saw would be maintained in as close to the current
condition as possible and laid out basic guidelines for
inspections and testing. (Doc. 32-2). Additionally, however,
the state court allowed a hand-written modification to the
order based on Plaintiffs' insistence, which modification
states that the order “shall not be interpreted to be
an agreement to allow for disassembly but shall not bar
it.” (Doc. 32 at 2 (quoting Doc. 32-2 at 2)).
the case was removed to federal court, the parties completed
a joint Case Management Report. (Doc. 24). In the Case
Management Report, the parties stipulated that the state
court order would be maintained. (Id. at 9).
Nevertheless, the parties also stipulated that some
disassembly is necessary to document and inspect the parts of
the saw that are not visible. (Id.). Specifically,
the parties stipulated:
The parties agree that each party shall have an equal access
to inspect and conduct nondestructive testing of the subject
saw, and that no party will be charged an access fee in order
to inspect the saw. The parties will continue to abide by the
Order Preserving Evidence entered by the state court judge on
September 26, 2017.
The parties agree that the subject saw needs to be
disassembled to some degree to inspect and document the parts
that are not visible. The parties will endeavor to agree to a
protocol governing the disassembly procedure. The parties
agree that all parties will be present during any disassemble
or destructive testing of the subject saw unless otherwise
agreed to or waived in writing by a party. If the parties
reach an impasse in determining a protocol then either party
may bring a motion before the Court to determine an
appropriate protocol to disassemble the saw.
(Doc. 24 at 9).
with the parties' stipulation, Defendants sent
Plaintiffs' counsel a proposed protocol. (Doc. 26 at 4).
To this point, however, Plaintiffs have not agreed to
Defendants' proposed protocol. (Id.). This
prompted the current Motion by which Defendants request that
the Court enter an Order determining a protocol for
disassembly of the subject saw. (Id. at 1).
reviewing Defendants' request, the Court notes that Fed.
R. of Civ. P. 26(b)(1) permits parties to obtain discovery of
“any nonprivileged matter that is relevant to any
party's claim or defense and proportional to the needs of
the case.” Additionally, Fed. R. of Civ. P. 34(a)(1)(B)
permits the testing of any “tangible things”
within the scope of Rule 26(b). In the instant Motion,
however, Defendants seek to conduct testing that requires
disassembly of the subject miter saw. (See Doc. 26
at 3; see also Doc. 26-1). One potential side effect
of such testing is that the saw may be irreversibly altered.
(See id.). Consequently, the proposed testing may
constitute “destructive testing.” See
Mirchandani v. Home Depot, U.S.A., Inc., 235 F.R.D. 611,
612 (D. Md. 2006).
testing occurs when the testing will “irreversibly
alter” a piece of evidence. Id. Even so,
destructive testing falls under the scope of Rule 34.
See, e.g., Jeld-Wen, Inc. v. Nebula Glasslam
Int'l, Inc., 249 F.R.D. 390, 392 (S.D. Fla. 2008);
see also Mirchandani, 235 F.R.D. at 613. As with all
discovery matters, district courts have wide discretion in
ruling on discovery motions. See Harris v. Chapman,
97 F.3d 499, 506 (11th Cir. 1996); see also Dabney v.
Montgomery Ward & Co., Inc., 761 F.2d 494, 498 (8th
Cir. 1985) (holding that the decision to permit destructive
testing lies solely in the court's discretion).
parties do not cite, and the Court has not found, any
controlling authority on the issue of destructive testing by
or within the Eleventh Circuit. Nonetheless, Defendants cite
to an illustrative case from the United States District Court
for the District of Maryland, Mirchandani v. Home Depot,
U.S.A., Inc. (Doc. 26 at 5).
Mirchandani, the court granted the plaintiffs'
motion to conduct inspection and testing, holding that
destructive testing should be permitted so as to allow the
plaintiffs to substantiate their claim. Mirchandani,
235 F.R.D. at 617. There, the plaintiffs sought damages
arising from an allegedly defective ladder after it collapsed
while one plaintiff was climbing on it. Id. at 612.
According to the plaintiffs, the defect was due to the
composition of the ladder's locking bolts, which
allegedly allowed the ladder to move from the locked to
unlocked position. Id. To support their argument,
the plaintiffs moved to conduct “destructive
testing” that would “irreversibly alter”
the bolt. Id. Upon completing the tests, the ladder
was to be reassembled using a new bolt. Id. at 616.
The defendants opposed the testing because they intended to
present the ladder as evidence to the jury at trial in the
same condition it was at the time of the accident. See
deciding this issue, the court laid out four factors to
balance the importance of preserving evidence against
permitting the tests. Id. The factors included:
(1) [w]hether the proposed testing is reasonable, necessary,
and relevant to proving the movant's case; (2) [w]hether
the non-movant's ability to present evidence at trial
will be hindered, or whether the non-movant will be
prejudiced in some other way; (3) [w]hether there are any
less prejudicial alternative methods of obtaining the
evidence sought; and (4) [w]hether there are adequate
safeguards to minimize prejudice to the non-movant,
particularly the non-movant's ability to present evidence
Id. at 614 (citing Cameron v. District Court In
& For First Judicial Dist., 565 P.2d 925 (Colo.
1977)). Ultimately, the court held that the factors weighed
in favor of the plaintiffs' need to substantiate their
claim. Id. at 617. The court, therefore, permitted
the destructive testing. Id.
the Court has not found any controlling authority, trial
courts within the Eleventh Circuit have previously found
Mirchandani persuasive. See Penny v. AT&T
Corp., No. 6:15-CV-557-ORL-31KRS, 2015 WL 12859342, at
*3 n.2 (M.D. Fla. Aug. 19, 2015) (citing
Mirchandani, 235 F.R.D. at 614-17); see also
Campbell v. Pirelli Tire, LLC, No. 12-21153-CV, 2013 WL
12092518 (S.D. Fla. Feb. 1, 2013) (citing
Mirchandani, 235 F.R.D. at 612). In Campbell v.
Pirelli Tire, LLC, for instance, the United States
District Court for the Southern District of Florida followed
Mirchandani in denying the plaintiffs' motion
seeking to conduct destructive testing. Campbell,
2013 WL 12092518, at *2-3. Similarly, in Pe ...