A Terex American HC165 boom crane collapsed at a construction site in Fredonia, Kansas after the boom hoist wire rope failed. Crossland Heavy Contractors, Inc. owned the crane insured by Atlantic Specialty Insurance Company. Atlantic reimbursed Crossland Heavy for damages to a building at the construction site, the Terex crane, equipment, and expenses. Atlantic and Crossland Heavy sought to recover from Midwest Crane Repair, LLC for its negligent inspection of the crane, which they argued caused the crane to collapse. In a second motion to compel, Midwest Crane sought to produce written statements its owner and employees or representatives gave to the Occupational Safety and Health Administration (OSHA) when OSHA investigated the crane collapse. In the second motion to compel, Midwest Crane sought to compel Crossland Heavy to produce documents related to a different crane Crossland Heavy owned, the Grose TMS 9000E (Grove crane). The U.S. District Court of Kansas heard the case on motions to compel discovery.

Legal Standard

According to the federal rules of civil procedure, parties may obtain discovery on matters relevant to any party’s claim or defense and proportional to the needs of the case. Relevance is construed broadly to encompass any matter that bears on or could bear on any issue in the case. A discovery party may file a motion to compel a responding party to make a disclosure or permit discovery. The party seeking discovery bears the burden to establish relevance of the evidence. When relevance is established, the party resisting discovery then bears the burden to establish why the discovery request is improper.

Midwest Crane’s Obligation to Produce OSHA Statements

OSHA obtained a written statement from Midwest Crane owner, Jonathan Henry during its investigation. Plaintiffs requested the court compel Midwest Crane to produce Mr. Henry’s statement and “any statements provided to OSHA by any other owners, employees or representatives of Midwest…” Midwest Crane stated Mr. Henry’s written statement made to OSHA was not in its possession, custody, or control. Midwest Crane’s counsel stated it would not produce it because it is protected by “OSHA privilege.”

The U.S. District Court stated it was unclear whether Mr. Henry’s OSHA statement was within Midwest Crane’s possession, custody, or control.   The court found it was “incumbent upon Midwest Crane to determine whether the OSHA statement was within its possession, custody, or control. The court ordered Midwest Crane must sign a discovery response that stated its counsel certifies the attorney has made a reasonable effort to assure that the clients have provided all responsive information and documents that are available to them.

OSHA Privilege

The Court found Midwest Crane’s argument its owner’s statement is privileged without merit. It noted Midwest Crane cited no authority to support its argument. The case Woods v. Amazon.com, LLC, No. 17 C 4339, 2019 WL 2323874, at *16 (N.D. Ill. May 30, 2019) stated only the government may invoke a privilege claim over OSHA materials. The U.S. District Court opined Midwest Crane confused the issue by intermingling its claim of OSHA privilege with FOIA request. FOIA “provides a public right of access, enforceable in federal court, to agency records.” The court indicated this was not a FOIA case where the plaintiffs sought records directly from OSHA. The U.S. District Court found Midwest Crane asserted no valid basis to withhold Mr. Henry’s statement if it were in Midwest Crane’s possession, custody, or control.

Midwest Crane’s Motion to Compel Production of the Grove Crane Documents

Midwest Crane stated six of the twenty-five cranes it inspected passed inspection. It asserted Crossland Heavy did not repair deficiencies identified. It served three RFPs seeking information. Atlantic objected on relevance grounds. It stated Grove crane was not involved in the incident. Midwest Crane filed a Motion to Compel production of the documents requested.

Midwest Crane argued the information sought in RFPs 21-23 were relevant to its position Crossland Heavy would not have repaired the Terex crane prior to the accident. It asserted Crossland Heavy would fail to “timely maintain and repair its cranes” while continuing to put them in service. It argued that information of whether Crossland Heavy failed to repair the Grove crane that had similar issues to the Terex crane is relevant to its defense. Plaintiffs stated discovery related to the Grove crane was not relevant. The court noted documents need not be relevant to be discoverable. It concluded the Plaintiffs did not meet their burden to support their relevance objection.

In evaluating the proportionality of the request for documents, the court considered the parties’ resources and importance of discovery on issues “at the very heart of litigation.” According to FED. R. CIV. P. 26(b)(1), “the burden of responding to discovery lies heavier on the party who has more information, and properly so.” The court noted Crossland Heavy is the party with access to documents related to its ownership, usage, correspondence, reports, and inspection, maintenance, and repair records. The court found Crossland Heavy’s access to this information weighed heavily in favor of Midwest Crane’s discovery. It also noted Midwest Crane’s discovery request was pertinent to issues in the case, causation and contributory negligence, which favored discovery. The burden or expenses of the proposed discovery is another factor evaluated in the proportionality analysis. The Plaintiffs argued producing documents related to the other cranes “vastly outweighed the proposed discovery’s potential benefit.” They did not produce any information to establish the burden and expense associated with producing such documents. The court noted discovery was only sought for the Grove crane between April 2017 and December 2018. The court found information on Grove crane relevant and proportional. The U.S. District Court granted Midwest Crane’s motion to compel discovery.

Conclusion

In August 2020, Atlantic and Crossland Heavy’s Motion to Compel Midwest Crane Repair’s Statement to OSHA was granted. The U.S. District Court of Kansas ordered Midwest Crane must produce the OSHA statements in its possession, custody, or control by September 16, 2020.