Plaintiffs, * CIRCUIT COURT

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1 RUSSELL WILLIAMS, SR. et al., * IN THE Plaintiffs, * CIRCUIT COURT v. * FOR CONTINENTAL TIRE THE AMERICAS, * BALTIMORE CITY, PART 23 LLC, et al., * Case No.: 24-C Defendants. * * * * * * * * * * * * MEMORANDUM OPINION The instant product liability action arises from Plaintiffs, Russell Williams, Sr., Personal Representative of the Estate of Myrna Felicia Williams, deceased and Individually, as surviving son of Myrna Felicia Williams; Arthur Williams, as surviving son of Myrna Felicia Williams; Michael Williams, as surviving son of Myrna Felicia Williams; Sharon Majeed, as surviving daughter of Myrna Felicia Williams; Annette Williams, as surviving daughter of Myrna Felicia Williams; Lakeisha Felicia Dyer, Personal Representative of the Estate of Jocelyn Williams, deceased, surviving daughter of Myrna Felicia Williams; Lakeisha Felicia Dyer, Personal Representative of the Estate of Dai-Jah Armani Dyer, deceased minor, and Individually, as surviving mother of Dai-Jah Armani Dyer; Lincoln Dyer, Individually, as surviving father of Dai- Jah Armani Dyer; Lakeisha Felicia Dyer and Lincoln Dyer, as parents and natural guardians of Desteni Dyer; Vanessa E. Harrison, Personal Representative of the Estate of Kaylin S. Harrison, deceased minor, Individually, on her own behalf, and as surviving mother of Kaylin S. Harrison; Gregory Harrison, Individually, on his own behalf, and as surviving father of Kaylin S. Harrison; and Vanessa E. Harrison and Gregory Harrison as parents and natural guardians of Kayla Harrison, deceased s request for damages related to a fatal, one-car accident that occurred on or 1

2 about August 9, Defendant Continental Tire The Americas, LLC requests this Court to compel production of the subject, companion and spare tires and rims for unsupervised testing and inspection (docket # ). Plaintiffs do not object to producing the requested tangible items, but argue that a representative must be present to ensure the integrity of this critical evidence (docket # ). 1 Defendant replies that many of the cases Plaintiffs cited to support their response are unreported and should not be given weight by this Court pursuant to Maryland Rule 1-104(a). 2 Defendant also maintains that the remaining persuasive authority cited by Plaintiffs is distinguishable from the case sub judice. For the reasons stated herein, Defendant s Motion to Compel is granted in part and denied in part. Plaintiff s Motion for Protective Order is denied. Facts On or about August 9, 2007, Plaintiffs were involved in a single vehicle automobile accident that resulted in fatalities to multiple passengers. Plaintiffs allege that one of the rear tires on the subject vehicle caused or contributed to the accident and that Defendant negligently designed and/or manufactured this tire. Plaintiffs proffer that prior to the instant dispute over access to the subject, companion and spare tires and rims Defendant had possession of those items for approximately seven months beginning in November Plaintiffs contend that an unsupervised inspection is unreasonable as they bear the burden of persuasion and resist relinquishing critical evidence for further testing without supervision. It is Defendant s position that fairness dictates that it should have the same opportunity that 1 This pleading is also docketed at # Defendant s Reply in Support of Motion to Compel Production of the Subject, Companion and Spare Tires and Rims and Opposition to Plaintiffs Motion for Protective Order was properly filed on December 28, 2011, but has not yet been docketed. 2

3 Plaintiffs had to conduct unsupervised testing and that permitting Plaintiffs representative to be present during testing may result in the divulgence of attorney work-product. Analysis The purpose of the [discovery] rules is to expedite the disposition of cases by eliminating, as far as possible, the necessity of any party to litigation going to trial in a confused or muddled state of mind, concerning the facts that gave rise to litigation. Ehrlich v. Grove, 396 Md. 550, 560 (2007) (internal citations omitted). However, Maryland has not addressed the issue of whether a party may have a representative present during the opposition s non-destructive testing of tangible evidence. Maryland s discovery rules are closely patterned after the Federal discovery rules and it is appropriate to look to those rules for guidance in interpreting the Maryland Rules. Gonzales v. Boas, 162 Md. App. 344, 359 n. 11 (Md. Ct. Spec. App. 2005). See also Bartell v. Bartell, 278 Md. 12, 18 (1976). Both Maryland Rule 2-422(b) and Federal Rule of Civil Procedure 34(b)(1) state that a request for tangible evidence must specify a reasonable time, place, and manner for the inspection and for performing the related acts. See also Pleasant v. Pleasant, 97 Md. App. 711, 732 (1993) ( [Maryland Rule 2-422] is derived in part from Rule 34 of the Federal Rules of Civil Procedure. ). Thus, federal court decisions interpreting F. R. Civ. Proc. 34(b)(1) provide guidance to this Court. Parameters and limitations for discovery may be imposed. Maryland Rule Protective orders may be issued to protect a party from annoyance, embarrassment, oppression, or undue burden or expense. Tanis v. Crocker, 110 Md. App. 559 (Md. Ct. Spec. App. 1996). Conclusory statements alone are insufficient to mandate the issuance of a protective order; the moving party must show injustice, prejudice, or consequential harm that will result if protection 3

4 is denied. Id. at 576. Conversely, a motion to compel may be granted where there has been a failure of discovery. Maryland Rule 2-432(b). Discovery disputes are generally fact specific and this Court is vested with wide discretion in applying and interpreting the discovery rules. Baltimore Transit Co. v. Mezzanotti, 227 Md. 8 (1961); Kelch v. Mass Transit Admin., 287 Md. 223 (1980). See also Pro Billiards Tour Ass'n v. R.J. Reynolds Tobacco Co., 187 F.R.D. 229, 230 (M.D.N.C. 1999) ( Protective orders sought under [the corresponding federal rule] which seek to regulate the terms, conditions, time or place of discovery are wholly within the court's discretion. ). Plaintiffs have not shown that they are entitled to a protective order. Defendant must have the same opportunity to prepare for trial that Plaintiffs had, including the right to conduct unsupervised tests on the evidence at issue. The federal courts agree. In Hajek v. Kumho Tire, Co., 2009 WL (D. Ned. 2009), a case nearly identical to this, the court held that Plaintiffs experts performed their work outside the presence of defendants counsel or their experts. The plaintiffs have submitted no evidence to justify requiring defendants experts to obtain plaintiffs prior approval of any contemplated nondestructive testing and to perform such testing under plaintiffs direct supervision and recording, while plaintiffs experts were not subject to such scrutiny. The plaintiffs may own the tires and rims at issue, but upon filing this lawsuit, the tires and rims became pivotal evidence upon which all parties are equally entitled to perform testing and inspection. Id. at *4-5. Here too, the tires and rims have become pivotal evidence that Plaintiffs were free to examine without supervision. Contrary to Plaintiffs request, Defendant should not be subject to scrutiny that did not apply to them. Plaintiffs argue that where the disputed evidence is the basis of the claim, they have a right to be present to ensure that the evidence is not damaged or lost. See Klick v. R.D. Werner 4

5 Co., 38 Ill.App.3d 575, 578, 348 N.E.2d 314, (Ill. App. Ct. 1976). In Klick, a products liability action, the court granted the plaintiff s request to have a representative present during the defendant s non-destructive testing of evidence at the core of the plaintiff s case. The court reasoned that the disputed evidence belonged to the plaintiff and that the attorney in that case had the right and duty to his client to control it so it will not be damaged or tampered with in any way. Id. Although Klick also has similar facts to the present dispute, the reasoning of the federal court in Hajek is persuasive. Upon filing the instant action, Plaintiffs relinquished exclusive control of the tires and rims at issue. These items may be essential for Plaintiffs to prove their case, but Defendant has an equal right to conduct unsupervised tests. Indeed, [i]n general, each party should be free to engage in its own trial preparation unhampered by the intrusive supervision of the opposing party. Diepenhorst v. City of Battle Creek, 2006 WL , 1 (W.D. Mich. 2006). Plaintiffs are understandably concerned about the integrity of the tires and rims at issue herein; their case is centered on this evidence. However, there are less burdensome methods to ensure the safety of these items than permitting a representative to be present during Defendant s testing. The tests and examinations proposed by Defendant are non-destructive, leaving these items unchanged and in their current state. It is undisputed that the examination and photography will not alter the physical condition of the tire or related parts. Def. s Motion to Compel Production of the Subject, Companion and Spare Tires and Rims, Ex. G, Supp. Aff. of Dennis Bible, 8. (hereinafter, Def. s Motion) Among other techniques, Defendant contemplates using specialized equipment to measure and photograph the tires and related parts, as well as dismounting the subject tire from its rim as Plaintiffs expert did. Def. s Motion, 5. 5

6 Plaintiffs make conclusory statements regarding potential damage or alteration that may result from Defendant s testing, but the procedural safeguards implemented by the accompanying Order are sufficient to placate their trepidations and protect the evidence at issue. Defendant s experts testing is also protected work-product, which cannot be divulged absent a showing of substantial need for the materials and undue hardship to obtain the substantial equivalent of the materials by other means. Maryland Rule In Shoemaker v. General Motors Corp., the plaintiff also claimed entitlement to be present during defendant s experts testing in preparation for litigation. Disagreeing with plaintiff s assertion, the court stated The decision of what to test and how is essentially a working-out of the defendant s interpretation of facts and testing of its defenses. Those processes involve either the attorney s mental processes or the opinions of consulting experts. Both are protected. Shoemaker v. General Motors Corp., 154 F.R.D. 235, 236 (W.D.Mo. 1994). Plaintiffs have not made the requisite showing to mandate their representative s presence at Defendant s testing. For the foregoing reasons, Defendant s Motion to Compel is GRANTED IN PART AND DENIED IN PART. Plaintiff s Motion for Protective Order is DENIED. Ordered this 3 rd day of January Judge Audrey J.S. Carrion Case No.: 24-C cc: Michael J. Halaiko, Esquire Timothy L. Mullin, Jr., Esquire Brian W. Casto, Esquire Miles & Stockbridge P.C. 6

7 10 Light Street Baltimore, Maryland Counsel for Defendants, Continental Tire The Americas, LLC; Continental Tire North America, Inc.; Continental General Tire, Inc.; General Tire, Inc.; Gen Corp, Inc.; and General Tire International Co. Daniel B. Weiss, Esquire Thorton Davis & Fein, P.A. Crickell Bayview Centre 80 SW 8 th Street, Suite 2900 Miami, Florida Counsel for Defendants, Continental Tire The Americas, LLC; Continental Tire North America, Inc.; and Gencorp, Inc. Jeffrey S. Goldstein, Esquire Bertram M. Goldstein, Esquire Jeffrey S. Goldstein, P.A Little Patuxent Parkway, Suite 332 Columbia, Maryland Counsel for Plaintiffs Skip E. Lynch, Esquire Bruce R. Kaster, Esquire Kaster & Lynch, P.A. 125 NE 1 st Avenue, Suite 3 Ocala, Florida Counsel for Plaintiffs John Solter, Jr., Esquire Jonathon A. Azrael, Esquire Azrael Gann & Franz, LLP 101 East Chesapeake Avenue, 5 th Floor Towson, Maryland Counsel for Defendants, Norman J. Emanuel; Emanuel Tire Company, LLC; Emanuel Tire Collection of Maryland, LLC; Emanuel Tire Management Company of Maryland, LLC; Emanuel Tire Company of Pennsylvania, Inc.; Emanuel Tire Transportation, LLC; Emanuel Tire Wholesale of Maryland, LLC; and Emanuel Tire at Hollins Ferry, LLC John P. Stabile, Esquire 6 St. Paul Street, Suite 2201 Baltimore, Maryland Counsel for Defendants, Norman J. Emanuel; Emanuel Tire Company, LLC; Emanuel Tire Collection of Maryland, LLC; Emanuel Tire Management Company of Maryland, LLC; Emanuel Tire Company of Pennsylvania, Inc.; Emanuel Tire Transportation, LLC; Emanuel Tire Wholesale of Maryland, LLC; and Emanuel Tire at Hollins Ferry, LLC David W. Spicer, Esquire 1100 Prosperity Farms Road, Suite 104 Palm Beach Gardens, Florida Counsel for Plaintiffs Stephen K Miller, Esquire 101 Northwest 75 th Street, Suite # 1 Gainesville, Florida

8 Counsel for Plaintiffs Via facsimile and U.S. mail 8