attorney Michael E. Douglas Attorney at Law
  Personal Injury Attorney
  St. Paul Workers Compensation Lawyer work comp attorney
 > About Me
   :: My Commitment
   :: Our Community
 > Legal Practice Areas
  twin cities comsumer lawPersonal Injury
   :: Traffic Accidents
   :: Medical Malpractice
   :: Social Security Disability
   :: Premises Liability
   :: Wrongful Death
   :: Dog Bite
   :: Back/Spinal/Neck Injuries
   :: Whiplash
   :: Defective Medical Devices
   :: Defective Drugs
  Minnesota Personal InjuryWorkers Compensation
  St. Paul personal injuryConsumer Law
   :: Debt Collection
   :: Repossessions
   :: Foreclosures
   :: Loan, Credit, Banking
   :: Arbitration Agreements
   :: Deception and Fraud
   :: Auto Fraud / Lemon Law
   :: Warranties
   :: Predatory Lending
 > Contact Us
   :: Contact Us

Law Offices of Michael E. Douglas
P.O. Box 251551
Woodbury, Minnesota 55125-6551

 Saint Paul Lawyer


In re; Zurn Pex Plumbing Products Liability Litigation: US District Court : CIVIL PROCEDURE - discovery; 30(b)(6) regarding possible inadvertent spoliation

In re:
Zurn Pex Plumbing Products MEMORANDUM OPINION
Liability Litigation AND ORDER
MDL No. 08-1958 ADM/RLE
Shawn M. Raiter, Esq., Larson King, LLP, St. Paul, MN, appeared for and on behalf of the
James A. ONeal, Esq., Faegre & Benson LLP, Minneapolis, MN, appeared for and on behalf of
the Defendants.
On November 19, 2008, the undersigned United States District Judge heard oral
argument on Plaintiffs Motion to Compel 30(b)(6) Deposition and Identity of 30(b)(1)
Deponent [Docket No. 15]. Defendants Zurn Pex, Inc. and Zurn Industries, Inc. (collectively
Zurn) argue that Plaintiffs have failed to demonstrate how the deposition would lead to
relevant discoverable evidence and that the discovery sought contravenes prior discovery orders.
For the reasons set forth below, Plaintiffs motion is granted.
This litigation alleges that Zurns design and choice of materials for use in brass
plumbing fittings caused damage to Plaintiffs property. This discovery dispute involves two
separate requests for production by the Plaintiffs. The first is a request to compel Zurn to
produce a designee to be deposed on the subject of whether it preserved evidence and whether
evidence has been destroyed since the time that Zurn anticipated litigation in 2004. The second
seeks to compel Zurn to identify the author of an email which describes the selling of Zurn
fittings as playing Russian roulette.
A. Rule 30(b)(6) Deposition Notice on 2004 Evidence Retention
In 2004, Zurns General Counsel, Lillian Macia (Macia), counseled Zurn that the
increased frequency of warranty claims on Zurns brass fittings was creating an identifiable risk
of litigation regarding these fittings. Raiter Aff. [Docket No. 18] Ex. A (Macia Aff.) 8, 9.
She advised Zurn to retain IMR, an independent metallurgical laboratory, to analyze selected
brass fittings that had been submitted with warranty claims. Id. at 10. The privilege log
submitted by Zurn indicates that this process began in the fall of 2004. Raiter Aff. Ex. B
(privilege log).
The initial case in this MDL was Cox v. Zurn Pex, Inc., case no. 07-3652, filed as a
putative class action in August 2007. Magistrate Judge Raymond L. Erickson ordered the parties
to engage in focused discovery on the issue of class certification. October 26, 2007 Order [Cox
Docket No. 22] at 8. Zurn provided Plaintiffs with a letter confirming that Zurn issued a
document preservation notice once the Cox case had commenced, and it described Zurns
general practice of backing up electronically stored information. Connolly Aff. [Docket No. 28]
Ex. A at 3-10. Zurn did not, however, issue a company wide document retention notice at the
time it retained IMR in 2004. Raiter Aff. Ex. D. Plaintiffs now seek to depose a corporate
representative regarding document retention practices and potential spoliation issues surrounding
the lack of a document retention notice in 2004.
B. Rule 30(b)(1) Disclosure of Russian Roulette Email Author
On February 2, 2006, Zurns Vice President of Sales, Patrick Sauer (Sauer), received
an email from a distributor regarding the failure of Zurns brass plumbing fittings. Raiter Aff.
Ex. E. The author of the email expresses his opinion that Zurn should focus its investigation on
metallurgical properties of the fittings as opposed to water quality issues. Id. Plaintiffs
requested that Zurn provide them with the name of the author so that they could depose him. Id.
Ex. D. Sauer contacted the author of the email who told Sauer that he did not want his name
disclosed to Plaintiffs. Sauer Aff. [Docket No. 29] 2, 3. Accordingly, Zurn has not provided
Plaintiffs with the identity of the author.
Federal Rule of Civil Procedure 26(b)(1) provides that [p]arties may obtain discovery
regarding any nonprivileged matter that is relevant to any partys claim or defense. Plaintiffs
seek to depose a corporate representative regarding document preservation practices and
potential evidence spoliation following the retention of IMR in 2004 and the identity of author of
the Russian roulette email. Zurn argues that (1) Plaintiffs have no reason to believe evidence
has been destroyed, (2) the requests are not reasonably calculated to lead to the discovery of
relevant evidence, (3) the requests are unreasonably burdensome, and (4) the requests violate
prior discovery orders.
A. Rule 30(b)(6) Deposition Notice on 2004 Evidence Retention
Plaintiffs seek to depose a witness to determine whether any discoverable evidence has
been destroyed as a result of Zurn not issuing a preservation of evidence notice in 2004. They
refer to the spoliation standard for the proposition that the destruction or significant alteration
of evidence, or the failure to preserve property for anothers use as evidence in pending or
reasonably foreseeable litigation creates a duty to preserve evidence. E*Trade Securities LLC
v. Deutsche Bank, 230 F.R.D. 582, 587 (D. Minn. 2005) (quotation omitted). Zurn counters
Plaintiffs have made no showing that evidence has actually been destroyed, and it is premature to
raise spoliation given the high standard of intentional destruction and bad faith necessary to
prove such an accusation. See Stevenson v. Union Pacific R. Co., 354 F.3d 739, 746 (8th Cir.
2004). Nevertheless, Plaintiffs reasonably seek to depose a Zurn representative to determine if
discoverable evidence has been inadvertently destroyed and attempt to open avenues to address
any potential damage. A deposition limited in scope could uncover other relevant and
discoverable evidence.
The Court is mindful of the potential that a deposition could become burdensome. In
light of this concern, Plaintiffs are required to designate, with painstaking specificity, the
particular subject areas that are intended to be questioned, and that are relevant to the issues in
dispute. Prokosch v. Catalina Lighting, Inc., 193 F.R.D. 633, 638 (D. Minn. 2000). Contrary to
the representations in Zurns brief, Plaintiffs have circumscribed their request to information
concerning the identified risk of litigation for Zurn Pex, Inc. with respect to its brass fittings.
Raiter Aff. Ex. C. The Court will allow this deposition to the extent Plaintiffs confine their
inquiries to the litigation threat identified in 2004 as it relates to Zurns brass fittings.
Finally, Zurn argues that because the deposition topics include testimony about electronic
documents and electronically stored information, allowing the requested deposition would
contravene Judge Ericksons October 26, 2007 Order. In that order, Judge Erickson determined
that the parties are not foreclosed from discovering relevant, electronically stored information
but, in the first instance, and absent a showing of easy accessibility at an affordable cost, the first
focus should be upon non-electronically stored information. October 26, 2007 Order at 9. A
30(b)(6) deposition is the proper approach to address the concerns raised in the October 26, 2007
Order. Instead of requiring Zurn to engage in a massive electronic information dump, Plaintiffs
can narrow the scope of discoverable evidence by deposing a decidedly non-electronic human.
For these reasons, Plaintiffs Motion to Compel 30(b)(6) Deposition is granted.
B. Rule 30(b)(1) Disclosure of Russian Roulette Email Author
Zurn argues that the identity of the author of the Russian roulette email is protected by
a prior order of the Court because he is a warranty claimant. March 21, 2008 Order [Cox Docket
No. 65]. But that order, as well as the Report and Recommendation [Cox Docket No. 64] which
it adopted, only barred the disclosure of the names for all of the warranty claimants. (Emphasis
in original). The question before the Court is not whether Plaintiffs are entitled to the names of
every warranty claimant as was the issue in the March 21, 2008 Order, but rather whether
Plaintiffs can depose one Zurn distributor to discover evidence about Zurns water defense. This
request is both relevant, reasonable, and does not contravene the March 21, 2008 Order, which
only prevented Plaintiffs from obtaining the names of all the warranty claimants. For these
reasons, Plaintiffs Motion to Compel the Identity of 30(b)(1) Deponent is granted.
Based upon the foregoing, and all of the files, records and proceedings herein, IT IS
HEREBY ORDERED that Plaintiffs Motion to Compel 30(b)(6) Deposition and Identity of
30(b)(1) Deponent [Docket No. 15] is GRANTED.
s/Ann D. Montgomery
Dated: November 26, 2008.


  What day were you injured?

  / /

  What caused your injuries?
Traffic/Bicycle Accident
Work-Related Injury
Wrongful Death
Dog Bite
Slip and Fall

  How have your injuries affected

  your life?


  What kinds of medical care
  professionals have you seen?


  What has your treatment cost?


  Is Insurance Involved?
My insurance may cover

Someone else's insurance
        may cover this.

I already filed a claim.
I rejected a settlement

I accepted a settlement

  Were there any witnesses?
Bystanders Witnessed This.
Police Responded and Filed
        a Police Report

Police Responded but Did
        Not File a Police Report



          By visiting this page or clicking the
  "submit" button above, you agree
  that you have read and accept this   "disclaimer".
Copyright © Michael E. Douglas, Attorney at Law, Saint Paul MN. All Rights Reserved.
Minnesota Law Firm representing Personal Injury, Car / Auto Accident, Workers Compensation, Medical Malpractice, Social Security Disability claims.
Dedicated to Injured Workers, Victims of Negligence, Car Accidents, Victims of Fraud, and those in need of legal assistance.