Zeigler v. Fisher-Price, Inc., No. C-01-3089-PAZ (N.D. Iowa 3/13/2003)
| Decision Date | 13 March 2003 |
| Docket Number | No. C-01-3089-PAZ.,C-01-3089-PAZ. |
| Parties | THERESA M. ZEIGLER, INDIVIDUALLY; AND THERESA M. ZEIGLER, AS MOTHER AND NEXT FRIEND OF MADISEN ZEIGLER, Plaintiff, v. FISHER-PRICE, INC., Defendant. |
| Court | U.S. District Court — Northern District of Iowa |
This matter is before the court for further consideration of the motion to compel discovery (Doc. No. 27) filed by the plaintiff Theresa M. Zeigler ("Zeigler"). In a previous order of October 30, 2002 (Doc. No. 19), the court directed the defendant Fisher-Price, Inc. to produce to Zeigler copies of interoffice memoranda, e-mails, and other electronically-produced or paper-recorded documents relating to all electrical problems with Power Wheels toys that have been identified as potentially leading to fires, or are known to have caused fires, that were sent to or from the Engineering Department or the Product Integrity Department at Fisher-Price. From deposition testimony, Zeigler later learned of certain "cage" meetings during which Fisher-Price employees discussed Power Wheels toys that had been returned with fire complaints. Zeigler sought production of records from those cage meetings. In response, Fisher-Price explained that no paper notes or records were maintained, and all existing information from the cage meetings had been entered into computer databases maintained by the Risk Management and Consumer Relations departments at Fisher-Price.
On February 10, 2003, the court directed Fisher-Price to query those databases to locate "all entries that relate in any way to an actual, potential, possible, or alleged electrical problem with a Power Wheels toy where a fire resulted." (Doc. No. 37) Fisher-Price was directed to produce those documents to Zeigler, or to prepare a privilege log listing documents as to which Fisher-Price claims privilege. In response, Fisher-Price produced no documents to Zeigler, and produced a privilege log listing over 250 documents which Fisher-Price claims are "Materials prepared at the request of legal department exlusively [sic] for use in and in anticipation of property damage litigation."
Pursuant to the court's February 10th order, Fisher-Price then provided to the court a copy of each document listed on the privilege log, for in camera review. The court then held an ex parte hearing with Fisher-Price's counsel to obtain additional information regarding the materials that were produced. Having completed its review of the documents, considered Fisher-Price's arguments relating to privilege and Zeigler's response to the privilege log (Doc. No. 42), and reviewed the applicable law, the court is now prepared to rule on whether the documents listed in the privilege log must be produced to Zeigler.
Each document listed in the privilege log is entitled "Consumer Return Evaluation Form." The forms date from October 1997, to February 2003. Each form contains a product number, product name, reference number, consumer name and number, and description of the consumer complaint. The form also indicates whether the product met Fisher-Price's specifications, and whether the product has had previous corrective action (i.e., has been fixed previously), and states whether the product showed signs of abuse, or extreme or unusual wear. All of the products described in these forms are products that were returned to Fisher-Price, and then were evaluated at the request of the Risk Management Legal Department. (No such form exists for the Zeigler toy because Fisher-Price does not have possession of the toy.)
All of the forms are addressed to Ronda Strauss, a non-lawyer manager in the Risk Management Legal Department whose function is similar to an adjuster. The forms all are authored by Eric Warner of the Product Integrity Department. Warner is the person who performs the product evaluation, and then writes up the form explaining what he found. Warner also attends the cage meetings. Copies of the forms also may be sent electronically to a secretary or manager in the Product Integrity Department for purposes of scheduling the product evaluations, keeping track of the product's location, and for other administrative purposes. Information on the forms also may be provided to an outside forensics expert when further investigation is requested.
Defense counsel explained that in any case where a consumer complaint involves a fire, the case is handled from the outset by the Risk Management Legal Department because of the inherent potential for a legal claim. These types of cases are not handled the same as other routine types of complaints, such as when a wheel falls off a toy or something fails to work as expected. The latter type of complaint would go through a routine cage meeting, but the fire-related complaints would not. Because the Risk Management Legal Department perceives there is a likelihood of litigation in cases involving fires, the department will request a written evaluation of the product by a Product Integrity design engineer. The evaluation results in a written report, which takes the form of the Consumer Return Evaluation Forms listed in the privilege log. These forms are the only record of what happened at the cage meetings regarding evaluations of products returned by consumers where a fire is involved. The forms are not prepared for every product returned to Fisher-Price, or for every product reviewed at a cage meeting, but only for those products where the Risk Management Legal Department is handling the case and has requested a written evaluation.
Therefore, when Fisher-Price, pursuant to the court's prior order, formulated a computer search for all cage meeting "notes," none were found, because the only record of cage meetings regarding evaluations of product complaints involving fire is the Consumer Return Evaluation Forms.
Fisher-Price argues these documents are privileged because they were prepared at the request of the Risk Management Legal Department "exclusively for use in and in anticipation of property damage litigation." Fisher-Price argues the sole purpose of these product evaluations and the resulting written reports was to help the Risk Management Legal Department in relation to potential claims.
The court first notes that in the absence of the privilege issue, the information in the Consumer Return Evaluation Forms clearly is relevant to Zeigler's claims, and responsive to Zeigler's discovery requests. The court, in its prior order, attempted to limit Fisher-Price's burden in responding to discovery while still giving Zeigler information relevant to her claims in this case. To the extent the documents in the privilege log were not disclosed, even on a privilege log, in response to the court's prior order, it appears Fisher-Price's interpretation of the order was overly restrictive.
Before turning to the privilege issue, the court first must address the question of what law applies to Fisher-Price's claim of privilege. Zeigler asserts both diversity jurisdiction pursuant to 28 U.S.C. § 1332, and federal question jurisdiction under the Consumer Product Safety Act, 15 U.S.C. § 2072 ("CPSA"). (See Doc. No. 1, ¶¶ 4, 5) Fisher-Price admits diversity jurisdiction in its Answer (id., ¶ 4), but then denies diversity jurisdiction exists in its Affirmative Defenses (id., Affirmative Defense ¶ 4). Fisher-Price denies Zeigler has a private right of action under the CPSA on the facts of this case, and therefore denies that this court has jurisdiction under the CPSA. (See Doc. No. 4, ¶ 5 & Affirmative Defense ¶ 5)
If only diversity jurisdiction exists, then the privilege issue must be decided pursuant to the State law supplying the rule of decision. Fed.R.Evid. 501. In this case, the applicable state law is that of Iowa, the state with the most significant relationship to this action. See, e.g., Restatement(Second), Conflict of Laws § 145; Christie v. Rolscreen Co., 448 N.W.2d 447, 450 (Iowa 1989); Zeman v. Canton State Bank, 211 N.W.2d 346, 348-49 (Iowa 1973); Berghammer v. Smith, 185 N.W.2d 226 (Iowa 1971); Tice v. Wilmington Chemical Corp., 259 Iowa 27, 45, 141 N.W.2d 616, 627 (1966) () See also Simon v. G.D. Searle & Co., 816 F.2d 397, 402 (8th Cir. 1987) (); Dethmers Mfg. Co. v. Automatic Equip. Mfg. Co., 23 F. Supp.2d 974, 1002 (N.D.Iowa 1998) (recognizing the Iowa rule).
If federal question jurisdiction also exists, then the privilege issue is governed by "the principles of the common law, as they may be interpreted by the courts of the United States in the light of reason and experience." Fed.R.Evid. 501.
To determine whether federal question jurisdiction exists in this case, the court must consider sua sponte whether Zeigler can maintain a private action for damages under the CPSA. One court has explained the Act's purview as follows:
CPSA was enacted by the 92nd Congress on October 27, 1972, along with explicit Congressional findings of fact and statements of purpose. Briefly, the Act is intended for the protection of the public against unreasonable risks of injury associated with `consumer products', a term which is to be liberally construed in accordance with the statute's patently remedial purpose. United States v. One Hazardous Product Consisting of a Refuse Bin, 487 F. Supp. 581 (D.N.J. 1980); Consumer Product Safety Comm'n v. Chance Mfg. Co., 441 F. Supp. 228 (D.D.C. 1977). The Act established a new federal agency, the Consumer Product Safety Commission ("CPSC" or "the Commission"), to conduct studies, tests and investigations relative to the safety or...
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