United States District Court, D. Nebraska
M. Bazis United States Magistrate Judge.
matter is before the Court on Rodney Benson's Motion to
Quash, or in the Alternative, for a Protective Order.
(Filing No. 1.) The motion will be granted, in part.
December 20, 2017, Plaintiff served a subpoena for Rodney
Benson (“Benson”) to appear for a deposition in a
products liability action pending in the United States
District Court for the District of Massachusetts. See
Juarez v. Walker Manufacturing Company, Civil Action No.
1:16-cv-11633 (D. Mass. 2016). The Massachusetts action
involves a commercial lawnmower produced by Defendant Walker
Manufacturing Company. In that action, Plaintiff alleges he
was injured while using a Walker lawnmower and sustained
permanent injuries. Plaintiff maintains that the Walker
lawnmower was defective due in part to the lack of a roll
over protective system (“ROPS”).
seeks Benson's testimony because Defendant's
employee, Ted Walker, mentioned Benson during his deposition.
(Filing No. 3.) Specifically, Plaintiff asked Mr.
Walker about the American National Standard Institute's
(“ANSI”) standard No. B71.4, which addresses
Commercial Turf Care Equipment including zero-turn riding
lawnmowers. The 2012 version of ANSI B71.4 supposedly
requires rollover protection systems on zero-turn riding
lawnmowers with front-mounted decks and dedicated baggers.
However, the 2017 version of ANSI B71.4 removed that
requirement. Mr. Walker testified that he attended a meeting
of the Outdoor Power Equipment Institute (“OPEI”)
with Benson, and that Benson suggested changes to the
language of the 2017 standard. Benson and his employer,
Exmark Manufacturing Co., Inc. (“Exmark”), are
not parties to the Massachusetts action.
contends that anything he might have to say about a 2017 ANSI
standard is irrelevant to the claims or defenses in the
Massachusetts action because that suit involves a lawnmower
manufactured before 2017. Benson further argues that Defendant is
a direct competitor of his employer, Exmark. Benson claims
that he has access to trade secret and confidential
proprietary information which, if disclosed, would be
detrimental to Exmark's business. Benson also asserts
that a deposition would be burdensome because it would take
him away from his work at Exmark. Benson asks, in the
alternative, that if the deposition is allowed, that its
scope be limited to questions regarding Benson's
statements at the OPEI meeting, and that Plaintiff be
prohibited from asking any questions concerning Exmark or
Benson's work at Exmark.
argues that Benson's deposition is necessary to discover
Benson's rationale for introducing a 2017 revised
standard for front-mounted mowers with integral grass
catchers. Plaintiff also wants to ask Benson why this change
was made. Plaintiff claims that this information is necessary
because Defendant has taken the position that its lawnmower
does not need a ROPS because it is front-mounted and has
greater stability. Plaintiff contends that Defendant may
argue that the 2017 ANSI amendment justifies its position.
Plaintiff points out that Defendant has refused to stipulate
that the 2017 ANSI standard is inadmissible evidence. Given
this, Plaintiff maintains that he needs to prepare for the
2017 standard being admitted and, to do so, he should be
allowed to ask the alleged proponent of the change (Benson)
why the change was made and the rationale behind it.
Plaintiff has agreed to limit the scope of Benson's
deposition to exclude any discussion of Exmark's
confidential business information that is unrelated to the
ANSI standards or ANSI testing. Plaintiff has also agreed to
depose Benson in Nebraska, at a location within easy driving
distance of Benson's workplace.
to Federal Rule of Civil Procedure 26(b)(1), as amended,
“[p]arties may obtain discovery regarding 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). Rule 26 “is to be
construed broadly and encompasses 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.”
Hodges v. Pfizer, Inc., Civ. No. 14-4855-ADM/TNL,
2016 WL 1222229, *2 (D. Minn. March 28, 2016) (internal
quotation omitted). Nevertheless, the scope of discovery is
not unlimited. Courts must limit the frequency or extent of
discovery if it determines that “the discovery sought
is unreasonably cumulative or duplicative, or can be obtained
from some other source that is more convenient, less
burdensome, or less expensive.” Fed.R.Civ.P. 26(b).
Further, under Rule 26(c), “[t]he court may, for good
cause, issue an order to protect a party or person from
annoyance, embarrassment, oppression, or undue burden or
Rule of Civil Procedure 45 governs discovery from nonparties
through the issuance of subpoenas. Rule 45 provides that
nonparties may be commanded to “attend and testify;
produce designated documents, electronically stored
information, or tangible things in that person's
possession, custody, or control; or permit the inspection of
premises.” Fed. R. Civ. P. 45.
However, Rule 45 requires a court to quash or modify a
subpoena if the subpoena requires the disclosure of
privileged matter or subjects a person to undue burden.
“The court need not reach the issue of privilege or
burden, however, unless the information sought is
discoverable pursuant to Fed.R.Civ.P. 26.” Sampson
v. Schenck, No. 8:07CV155, 2009 WL 484224, *3 (D. Neb.
Feb. 23, 2009). Thus, a subpoena must seek relevant
information. Phelps-Roper v. Heineman, No.
4:09CV3268, 2014 WL 562843, *1 (D. Neb. Fed. 11, 2014).
Court finds that the subpoena seeks relevant information. The
Court agrees that Plaintiff should be able to inquire as to
why the ANSI standard was modified and the purpose of the
amendment. Further, the Court concludes that it would not be
unduly burdensome for Benson to appear for a deposition in
Nebraska, at a location near his place of employment.
has agreed to limit the scope of Benson's deposition to
exclude any discussion of Exmark's confidential business
information which is unrelated to ANSI standards or ANSI
testing. Benson requests that any questioning be limited even
further, to include only questions regarding Benson's
participation at the OPEI meeting. Benson also asks that
Plaintiff be prohibited from asking questions concerning
Exmark or Benson's work at Exmark. Given the stated
purpose of the deposition, and Benson's and Exmark's
status as a nonparties to the Massachusetts action, the Court
finds that questioning should be limited to exclude any
discussion of Exmark's confidential business information.
Questioning should be limited to Benson's participation
at the OPEI meeting and his rationale for suggesting the
amendment to the ANSI standard and/or the purpose of the
IT IS ORDERED that Rodney Benson's
Motion to Quash, or in the Alternative, for a Protective
Order (Filing No. 1) is granted, in part. Plaintiff
shall be permitted to depose Benson in Nebraska, near his
place of employment. The deposition shall be conducted at a
mutually-convenient time and location. Questioning during the
deposition shall be limited to Benson's
participation/statements at the OPEI meeting and Benson's
rationale for suggesting the amendment to the ANSI standard
and/or the purpose of the amendment. Plaintiff may not
question Benson regarding Exmark's confidential business
information, including, but not limited to, ...