Recently someone asked the listserv for members of the Product Liability Advisory Council (“PLAC”) whether a plaintiff’s demand for the videotaping of a defense expert’s non-destructive examination of the components of an explanted medical device can be resisted. It seemed like an interesting question, and we like PLAC, so we decided to look for product liability cases where such demands had been made – recognizing, of course, that just as the other side might want to demand this of us, we might also wish, in certain cases, to require the same of the other side.

The brief answer to the question posed is “yes, it can be resisted.”

Competing concerns exist in product inspections.  The party in possession of the allegedly failed product (usually, but not always, the plaintiff) is worried about the condition of the product being altered.  This concern is often expressed using pejorative “spoliation” terminology, or after-the-fact seeking of sanctions.  Indeed, as we’ll show below, an inspecting party anticipating that an opponent might make spoliation allegations would be well-advised to consider videotaping its own inspection (we’d recommend no sound) as a prophylactic measure.  The tape should itself be work product shielded by discovery, but held in reserve to counteract a bogus spoliation claim.

The party seeking the inspection (usually, but not always, the defendant) needs equal access to the most important piece of evidence in a product liability case.  It is concerned with maintaining the confidentiality of its work product, which is what a litigation-driven product inspection is, no matter which side undertakes it.  See General Motors Corp. v. Gayle, 951 S.W.2d 469, 475-76 (Tex. 1997) (work product confidentiality required reversal of order that all of defendant’s litigation-related crash testing be videotaped).  Also in the mix is the same fairness principle that we’ve asserted in informal treater interview cases – the party in possession has been able to inspect the product in whatever (non-destructive) ways it sees fit, without notice to the other side.  The non-possessory side should likewise be able to inspect the product as it sees fit without interference.  A practical solution to such demands can be to inquire whether the party in possession videotaped its own product investigations (usually, they don’t), and perhaps to seek copies of those materials (on those rare occasions that they do).

The most informative case, Ramos v. Carter Express, Inc., 292 F.R.D. 406 (S.D. Tex. 2013), discussed these sorts of demands in some depth, concluding that “[t]here appears to be a rather clear distinction forming between cases involving destructive testing and those involving non-destructive testing.”  Id. at 409.  Destructive testing of a product entitles opposing counsel to attend, either in person or through requiring the testing to be videotaped.  Id. (citing Jeld-Wen, Inc. v. Nebula Glasslam International, Inc., 249 F.R.D. 390, 395-98 (S.D. Fla. 2008) (unclear whether videotaping at issue); Mirchandani v. Home Depot, U.S.A., Inc., 235 F.R.D. 611, 617 (D. Md. 2006) (allowing opposition videotape); Spell v. Kendall–Futuro Co., 155 F.R.D. 587, 588 (E. D. Tex. 1994) (same); Garcia v. Aartman Transportation Corp., 2011 WL 665451, at *4 (N.D. Ind. Feb. 14, 2011) (same); Bostic v. Ammar’s, Inc., 2011 WL 251009, at *5 (E.D. Ky. Jan. 26, 2011) (same); White v. Cooper Tools, Inc., 2010 WL 1418244, at *3-4 (D.S.D. April 6, 2010) (same); Conway v. Kaz Inc., 2009 WL 3698561, at *3 (E.D. Mich. Nov. 4, 2009) (same); Guerrero v. General Motors Corp., 2007 WL 3203014, at *5 (E.D. Cal. Oct. 29, 2007) (same).

On the other hand, when the expert product examination or testing contemplates only non-destructive means, courts “habitually refuse to allow the presence of an opposing party,” either in person or by compelled videotaping.  Ramos, 292 F.R.D. at 409 (agreeing that defendant “should be entitled to perform non-destructive testing on the [product] outside of Plaintiffs’ and their counsel’s presence”; rejecting videotaping).  For this proposition Ramos cited the following cases:  Shoemaker v. General Motors Corp., 154 F.R.D. 235, 236 (W.D. Mo. 1994) (videotaping not at issue); Fullone v. Goodyear Tire and Rubber Co., 107 F.R.D. 1, 2 (W.D.N.Y. 1985) (same); Blundon v. Goodyear Dunlop Tires. Ltd., 2012 WL 5473069, at *4 (W.D.N.Y. Nov. 9, 2012) (videotaping disallowed); Lopez v. Cooper Tire & Rubber Co., 2011 WL 3035086, at *2 (M.D. Fla. July 25, 2011) (same); Cottrell v. Dewalt Industrial Tool Co., 2009 WL 5213876, at *2 (N.D. Ill. Dec. 29, 2009) (same); Hajek v. Kumho Tire Co., 2009 WL 2229902, at *4 (D. Neb. July 23, 2009) (same); Diepenhorst v. City of Battle Creek, 2006 WL 1851243, at *1 (W.D. Mich. June 30, 2006) (videotaping not at issue).

Taking a slightly different approach, in Worrall v. Smith & Wesson Corp., 2009 WL 4800158 (S.D. Ind. Dec. 11, 2009), the plaintiff, claiming fear of spoliation, refused to turn over the allegedly defective product to the defendant for inspection unless the defendant provided plaintiff with a videotape of the inspection. The court split the baby – it ordered that the inspection be videotaped, but held that the tape was the defendant’s work product and the plaintiff would only be entitled to it if he could make a credible spoliation claim.  “The videotaping of the inspection will be considered a part of the attorney work product and will not be subject to disclosure unless some damage has been done or alteration has occurred to the [product] after the time it was shipped to the expert, as documented by photographs or other evidence taken by Plaintiff prior to shipment.”  Id. at *2.  See also Bates v. Michelin, Inc., 2011 WL 13802, at *2 (N.D. Ga. Jan. 3, 2011) (balancing spoliation and work product concerns by ordering inspecting party to videotape inspection “using a static-mount video camera without sound” and retain the tape; tape could only be produced in response to a credible spoliation claim).

Other cases seem to fall into the general framework described in Ramos.  In Sorrels v. NCL (Bahamas) Ltd., 2013 WL 4781759, at *2 (S.D. Fla. Sept. 9, 2013), defendants were allowed to attend the plaintiff’s non-destructive inspection of their vessel, but only “from a reasonable distance” with videotaping forbidden due to the threat to attorney work product. Likewise, in Huang v. Continental Tire, LLC, 2011 WL 1641883, at *2 (E.D. Mich. March 22, 2011), an attempt by a plaintiff to compel videotaping of defense non-destructive testing was rejected, in part because the plaintiff had not videotaped his own inspections. On the other hand, cases involving destructive product testing have required videotaping. USF Insurance Co. v. Smith’s Food & Drug Centers, Inc., 2011 WL 5007956, at *3 (D. Nev. Oct. 19, 2011); Ostrander v. Cone Mills, Inc., 119 F.R.D. 417, 419 (D. Minn. 1988); Pizza Hut, Inc. v. Midwest Mechanical, Inc., 1988 WL 8980, at *1 (N.D. Ill. Feb. 1, 1988); Delprete v. Senibaldi, 2014 WL 3511645, at *5 (Conn. Super. June 10, 2014); Sault v. Dometic Corp., 2011 WL 5120455, at *4 (Conn. Super. Oct. 6, 2011).  To some degree, the cases beg the question of what is “non-destructive” as opposed to “destructive” product testing/examination.  We will, too.  That distinction seems rather case-specific.  Tiny pieces of explanted medical device will require gentler handling and a more meticulously maintained storage environment than, say, tires or auto parts.

A party must also object.  Even if videotaping might have been refused before the fact, after the fact it’s too late. DuBois v. Ray, 339 S.E.2d 605, 607 (Ga. App. 1985) (affirming finding of waiver).  Thus, in Beauregard v. Continental Tire, Inc., 2009 WL 4649981 (M.D. Fla. Feb. 24, 2009), initially the defendant agreed to the plaintiff’s demand to videotape its expert’s examination, but then filed a motion demanding that the tape be turned over to it.  The court denied that request because the parties’ agreement hadn’t contemplated that result:

The negotiated terms of the parties’ own agreement . . . certainly fail to establish any entitlement to the desired materials. The agreement also provides no basis for an immediate return of the videotape depicting the inspection. Rather, it seems the parties contemplated Plaintiff’s retention of the recording.

Id. at *1. Cf. Galitski v. Samsung Telecommunications America, LLC, 2014 WL 3610789, at *7 (N.D. Tex. July 22, 2014) (discussing stipulated, non-destructive product testing protocol in which the party doing the testing voluntarily agreed to videotaping); Marolf v. AyA Aguirre & Aranzabal S.A., 2011 WL 6012203, at *1 (D. Neb. Dec. 1, 2011) (same); In re Orthopedic Bone Screw Products Liability Litigation, 1996 WL 900353, at *2 (E.D. Pa. Apr. 2, 1996) (stipulated MDL remand order allowing both sides to videotape all non-destructive testing of explanted medical devices).

Thus, this discovery question – for once – seems capable of a relatively definite answer. As long as the product testing being contemplated is non-destructive, the party undertaking the tests is under no obligation to videotape its work product for the benefit of its opponent, and motions demanding that such videotaping occur are typically denied.  The opposite is true if the proposed testing is destructive.