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Wells v. Kawasaki Motors Corp., U.S.A.

United States District Court, D. Utah

June 24, 2019

NICOLE WELLS, Plaintiff,
v.
KAWASAKI MOTORS CORP., U.S.A., KAWASAKI HEAVY INDUSTRIES LTD., H2O ZONE LLC, Defendants.

          Evelyn J. Furse, Magistrate Judge

          MEMORANDUM DECISION AND ORDER OVERRULING [134] DEFENDANT KAWASAKI HEAVY INDUSTRIES LTD'S OBJECTION TO MAGISTRATE JUDGE FURSE'S ORDER [ECF NO. 131] DENYING IN PART AND GRANTING IN PART DEFENDANT'S MOTION FOR PROTECTIVE ORDER

          David Nuffer, United States District Judge

         Defendant Kawasaki Heavy Industries Ltd (“KHI”) objected (the “Objection”)[1] under Federal Rule of Civil Procedure 72(a) to Magistrate Judge Evelyn J. Furse's July 11, 2018 order (the “Corrected Order”)[2] that vacated and replaced a prior order (the “Prior Order”)[3] entered on July 9, 2018. Both orders memorialized the decisions Judge Furse announced at a hearing held on April 25, 2018 (the “Hearing”)[4] and granted in part and denied in part the Defendants' motions for a protective order. Judge Furse entered the Corrected Order to address Plaintiffs' Objection[5] to the proposed order that KHI submitted following the Hearing and that was later used as a basis for the Prior Order.[6]

         In the Objection, KHI argues that a specific portion of the Corrected Order is erroneous because it is inconsistent with Judge Furse's ruling at the Hearing.[7] Plaintiff Nicole Wells responded to the Objection.[8] Because the Corrected Order more accurately reflects Judge Furse's ruling at the Hearing, the Objection is OVERRULED and the Corrected Order is AFFIRMED.

         Federal Rule of Civil Procedure 72(a) provides that “The district judge must consider timely objections [to a magistrate judge's nondispositive order] and modify or set aside any part of the order that is contrary to law or clearly erroneous.”[9] Under Rule 72, “a district court is required to defer to the magistrate judge's ruling unless it [is] clearly erroneous or contrary to law.”[10] When an objection asserts that an order is in error, “[t]he clearly erroneous standard . . . requires an affirmation of the magistrate judge's decision unless on the entire evidence [the district judge] is left with the definite and firm conviction that a mistake has been committed.”[11]

         KHI's Objection focuses on the final paragraph of the Corrected Order. KHI argues that the final paragraph of the Prior Order more accurately reflects Judge Furse's ruling at the hearing.[12] KHI requests that the Corrected Order be vacated and the Prior Order reentered.[13]

         The final paragraph of the Prior Order, which came from a proposed order prepared by KHI, [14] reads as follows:

As to the discovery related to the EU pictograms, the dispute is over topics 5, 6 and 7 of the KHI Notice. The motion for a protective order is granted, provided however, that discovery regarding any KHI “evaluation” of its EU orifice injury pictogram (for either comprehension or compliance similar to the evaluation that was performed for the 2001 U.S. Uniform Label) will be allowed. Evaluations performed during the development of the EU pictogram will not be allowed.[15]

         For comparison, the final paragraph of the Corrected Order reads as follows:

As to the discovery related to the development and evaluation of warnings, the dispute is over topics 5, 6 and 7 of the KHI Notice. The motion for a protective order is granted, provided however, that discovery regarding any KHI evaluation of its warnings (for either comprehension or compliance similar to the evaluation that was performed for the 2001 U.S. Uniform Label) will be allowed.[16]

         Despite KHI's argument that the language used in the Prior Order-specifically the limitation to EU pictograms-accurately reflects Judge Furse's ruling and the discovery requests that were filed, [17] a review of the transcript of the Hearing, [18] KHI's Motion for Protective Order that was the subject of the Hearing, [19] and Plaintiff's Notice of Depositions that were the focus of that Motion for Protective Order[20] shows that KHI is incorrect.

         In an amended notice of depositions provided to KHI, Plaintiff sought information on the following topics, specifically as to warnings labels used on personal watercraft sold in countries other than the United States:

5. KHI's development and evaluation of alternative warnings to avoid or reduce orifice injuries. This topic includes the development and evaluation of warning labels used on Kawasaki PWCs in other countries.
6. KHI's development and evaluation of pictorial illustrations used on its orifice injury warnings.
7. KHI's evaluation of alternative pictorial illustrations. This includes evaluations of warnings used on Kawasaki PWCs for sale in other countries.[21]

         In KHI's Motion for Protective Order, it appears that KHI introduced the limitation on this discovery to pictograms used on watercraft sold in the European Union. In describing the topics of Plaintiff's notice of depositions, KHI stated:

Topics 5, 6, and 7 of the Notice seek discovery regarding KHI warnings used in other countries. Other countries have regulations that are different than the U.S. KHI objects; this is not pertinent. The effort involved outweighs its value. Fed.R.Civ.P. 26(b) and 26(c).5 EU regulators like pictograms, but that evidence is not meaningful, here. KHI asks the Court to preclude the discovery of non-U.S. warnings.[22]

         At the Hearing, KHI's counsel sought to reiterate this limitation when describing the ...


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