Santella v. Grizzly Industrial, Inc.

286 F.R.D. 478, 2012 WL 4482344, 2012 U.S. Dist. LEXIS 138118
CourtDistrict Court, D. Oregon
DecidedSeptember 26, 2012
DocketNo. 3:12-MC-00131-SI
StatusPublished

This text of 286 F.R.D. 478 (Santella v. Grizzly Industrial, Inc.) is published on Counsel Stack Legal Research, covering District Court, D. Oregon primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Santella v. Grizzly Industrial, Inc., 286 F.R.D. 478, 2012 WL 4482344, 2012 U.S. Dist. LEXIS 138118 (D. Or. 2012).

Opinion

AMENDED OPINION AND ORDER

MICHAEL H. SIMON, District Judge.

This Amended Opinion and Order supersedes and replaces the Opinion and Order dated September 17, 2012. (Dkt. 27.)

This action involves discovery disputes arising out of third-party subpoenas served on three related entities in Oregon by the defendant in a federal court lawsuit in Texas. I previously granted in part and denied in part a motion to compel brought by the defendant against these subpoenaed entities. There are currently four additional discovery disputes pending before this court. This Opinion and Order addresses the first three. First, in connection with the defendant’s original motion to compel (Dkt. 3), the court received and reviewed in camera unredacted copies of several documents that the subpoenaed entities have made available to the defendant only in redacted form. In Section 11(A) below, I rule on which of those documents must be provided to the defendant without redaction and which may remain in redacted form. Second, in preparation for an evidentiary hearing currently scheduled for September 24, 2012 (Dkt. 18), the subpoenaed entities ask for certain documentary discovery from the defendant. Dkt. 19. I rule on that motion in Section 11(B) below. Third, the plaintiff has moved for leave to provide certain documents to the court for in camera review as part of the court’s consideration of the issue that will be considered at the September 24th hearing. Dkt. 26. I rule on that motion in Section III(C) below. Finally, the fourth pending discovery dispute will be resolved after the September 24th evidentiary hearing.

[481]*481I. BACKGROUND

Plaintiffs Steven and Sonya Santella (“Plaintiffs”) sued Defendant Grizzly Industrial, Inc. (“Grizzly” or “Defendant”) in a products liability action in federal court in Austin, Texas (the “Texas Lawsuit”). The Texas Lawsuit is styled Steven and Sonya Santella v. Grizzly Industrial, Inc. f/k/a Grizzly Imports, Inc., Civil Action No. 1—11— CV-00181-LY (W.D.Tx.). In the Texas Lawsuit, Grizzly caused subpoenas to be issued by the federal court in Oregon and served on three related non-parties, SawStop, LLC (“SawStop”), SD3, LLC (“SD3”), and Stephen F. Gass, Ph.D. (“Dr. Gass”) (collectively “the Subpoenaed Entities” or, on occasion, simply as “SawStop”). Plaintiffs, Grizzly, and the Subpoenaed Entities are collectively referred to as the “Parties.” Grizzly’s subpoenas required the production or inspection of responsive documents in Oregon, where all three Subpoenaed Entities reside. The Subpoenaed Entities objected to certain requests contained in Grizzly’s subpoenas. Grizzly then commenced this miscellaneous action under Fed.R.Civ.P. 45(c)(2)(B)(i), seeking an order compelling discovery. Dkt. 1. After reviewing legal memoranda and related material, the court held a hearing. The court granted in part and denied in part Grizzly’s motion to compel. Dkt. 13. As stated on the record, the court also agreed to receive for in camera review unredacted copies of several documents that the Subpoenaed Entities have only produced to Grizzly in redacted form. The court has completed its review, and the court’s ruling is presented below in Section 11(A).

The court also entered a protective order to restrict the disclosure of confidential and trade secret information. Dkt. 16. Thereafter, additional discovery took place. The Parties, however, continue to have discovery disputes. Before discussing the specifies of these disputes, further background concerning the Texas Lawsuit and the relationship of the non-party Subpoenaed Entities to that lawsuit will be helpful.

Dr. Gass invented and patented “flesh detection” safety technology for power saws and other similar woodworking equipment. That technology is sometimes referred to as the “SawStop technology.” Dr. Gass is president of SawStop and holds both a Ph.D. in physics and a law degree. He has worked as a patent attorney and is a lifelong “woodworker.” The SawStop technology “includes a safety system that detects accidental contact between a person and the spinning blade of a saw, and then reacts to minimize any injury.” Dkt. 2, at page 13 of 103 (¶¶ 2-3). Dr. Gass filed the first patent application describing the SawStop technology in 1999, and since then the U.S. Patent and Trademark Office has issued numerous patents “disclosing various implementations, features and improvements related to the technology.” Id. at 14 (¶ 8). According to Grizzly, Dr. Gass brought the first SawStop table saw on the market in 2004. Id. at 1. Grizzly also states that Dr. Gass, along with his law partners, formed SD3 to hold the SawStop patents. Id. at 1-2.

Grizzly manufactures table saws that do not incorporate the SawStop Technology. According to Grizzly, Plaintiff Steven Santella “was injured when his left hand contacted the unguarded blade on the Grizzly table saw as he reached his hand into the blade to remove scrap pieces he had already cut.” Id. at 2. Plaintiffs sued Grizzly in the Texas Lawsuit for negligence and strict liability, seeking compensatory and punitive damages. Plaintiffs allege that Grizzly’s table saw was “defectively designed because it lacks the flesh-detection technology.” Id. at 2-3.

In the Texas Lawsuit, Dr. Gass has provided a report in which he opines: “It is both economically and technically feasible to redesign the [Grizzly] saw at issue to incorporate the SawStop technology.” Id. at 38 (¶ 66). Dr. Gass also opines in his report that the SawStop technology was feasible when the Grizzly table saw at issue in the Texas Lawsuit was manufactured in approximately 2004 and that Plaintiff Steven Santella’s injury would have been minor if Grizzly had incorporated the SawStop technology. Id. at 36-38 (¶¶ 64-66).

Dr. Gass begins his report submitted in the Texas Lawsuit by noting that he has been asked by Plaintiffs’ attorneys to “provide fact and expert testimony” in the Texas Lawsuit and is “willing to do so.” Id. at 12. [482]*482Dr. Gass then adds: “However, I am neither retained nor specially employed to provide expert testimony, and therefore, I understand a written report of my opinion is not required.” Id. at 12. Presumably, this is why Grizzly sought discovery relating to the Subpoenaed Entities through a Rule 45 subpoena to non-parties, rather than under Rule 26(a)(2)(B) of the Federal Rules of Civil Procedure (relating to discovery from expert witnesses who have been “retained or specially employed to provide expert testimony in the case”).

In his report, Dr. Gass also states that by 2007, the “SawStop saws had become the best-selling industrial table saws in the market.” Id. at 36 (¶ 63). Grizzly asserts that Dr. Gass “has repeatedly refused to license the patented SawStop technology to Grizzly since 2007.” Id. at 2. Grizzly states that it has subpoenaed the production of documents relevant to the SawStop technology and other documents “in order to show bias on the part of Gass” and because they are “relevant to Plaintiffs claims and Grizzly’s defenses, and are crucial to Grizzly’s ability to effectively cross-examine Gass” in the Texas Lawsuit. Id.

Because SawStop and Grizzly compete in the manufacture and sale of table saws, this court entered a two-tier protective order. Dkt. 16.

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286 F.R.D. 478, 2012 WL 4482344, 2012 U.S. Dist. LEXIS 138118, Counsel Stack Legal Research, https://law.counselstack.com/opinion/santella-v-grizzly-industrial-inc-ord-2012.