Ramos v. Carter Express Inc.
2013 U.S. Dist. LEXIS 100763
S.D. Tex.2013Background
- Pre-dawn bicycle collision in Webb County, Texas: defendant Higley’s tractor struck plaintiff Augusto Ramos Jr.’s bicycle; visibility/reflectivity of bike, equipment, and clothing is a pivotal issue.
- Defendants (Carter Express and Higley) moved to compel production for temporary possession to perform non‑destructive testing and inspection by their experts; they offered 30‑day return and to pay shipping/costs.
- Plaintiffs oppose, arguing the discovery deadline (July 12, 2013) makes late testing prejudicial and may require additional/rebuttal experts and reopening discovery.
- Court analyzes under Rule 34/26 balancing test and four‑factor framework used for destructive testing, but recognizes non‑destructive testing is less risky.
- Court finds testing relevant and valuable to truth‑seeking, permits non‑destructive testing outside plaintiffs’ presence, but limits location to Laredo absent compelling reasons and imposes custodial responsibilities on defendants.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether defendants may take temporary possession and perform non‑destructive testing of bicycle and gear | Testing now is prejudicial given impending discovery deadline; may require plaintiffs to retain new experts and reopen discovery | Testing is needed to evaluate reflectivity/visibility and defendants’ experts must be able to test with their own equipment | Allowed in part: defendants may conduct non‑destructive testing outside plaintiffs’ presence; items to be made available in Laredo unless defendants show need to go elsewhere by a deadline |
| Whether plaintiffs/counsel must be present during non‑destructive testing | Presence necessary to prevent prejudice and preserve ability to present trial evidence | Opposing presence is appropriate; parties may prepare privately and testing may be work product | Plaintiffs not permitted to attend testing; defendants may test without plaintiffs present |
| Location of testing (local vs. defendants’ facility) | Prefer local testing to avoid transport risk and potential loss/damage that could prejudice plaintiffs | Defendants implicitly seek to use their chosen facility (may require specialized equipment) | Testing to occur in Laredo; defendants must show compelling reasons by set date to conduct testing elsewhere |
| Safeguards / chain of custody / consequences for loss or damage | Need documented condition, chain of custody, and remedial sanctions to minimize prejudice if items lost/damaged | Defendants accept responsibility and costs but provided no specific safeguards | Court requires defendants to be fully responsible for items, bear reasonable costs, and encourages plaintiffs to document condition pre‑turnover; parties may seek scheduling modifications if expert disclosures require it |
Key Cases Cited
- Ostrander v. Cone Mills, 119 F.R.D. 417 (D. Minn. 1988) (court has discretion to permit testing; balancing test applies)
- Mirchandani v. Home Depot, U.S.A., Inc., 235 F.R.D. 611 (D. Md. 2006) (four‑factor test for destructive testing; safeguards and prejudice considerations)
- Jeld‑Wen, Inc. v. Nebula Glasslam Int’l, Inc., 249 F.R.D. 390 (S.D. Fla. 2008) (destructive testing usually requires good cause to exclude opponent’s presence; detailed analysis of safeguards)
- Spell v. Kendall‑Futuro Co., 155 F.R.D. 587 (E.D. Tex. 1994) (allowing opposing party and counsel to observe and photograph testing)
- Shoemaker v. Gen. Motors Corp., 154 F.R.D. 235 (W.D. Mo. 1994) (presence of opposing counsel at testing may reveal work product; refusal to allow attendance justified)