THOMAS J. RUETER, Magistrate Judge.
Presently before the court is plaintiff's Motion for Sanctions against defendant Asbestos Corporation Limited ("ACL") ("Motion for Sanctions," Doc. 25) and ACL's response thereto ("Resp.," Doc. 27). The court held a hearing on the Motion for Sanctions on this same date. For the reasons that follow, the court denies the Motion for Sanctions, but will grant plaintiff's request to compel ACL to produce discovery but on a more limited scale than previously sought by plaintiff.
On March 11, 2014, plaintiff filed a complaint in the Court of Common Pleas for Philadelphia County against ACL, Crown, Cork & Seal Company, Inc., individually and as successor to Mundet Cork Corporation, Owens-Illinois, Inc., and Union Carbide Corporation (collectively, the "defendants"). Plaintiff, Loretta Ney, now deceased, alleged that she was exposed to asbestos contained in defendants' products when she was a child living with her father. Ms. Ney's father, Nicholas Grello, worked as an asbestos insulator for Bethlehem Steel in Bethlehem, Pennsylvania from 1948 to 1953. Mr. Grello allegedly brought particles of asbestos home in his car and on his clothes. Ms. Ney contends that she came into contact with asbestos particles when she rode in her father's car or laundered his clothing. On or about November 29, 2012, Ms. Ney was diagnosed with mesothelioma. She was eighty-one years old at the time. On April 25, 2014, she passed away at the age of eighty-three years.
Prior to her death, Ms. Ney was deposed by the defendants. She could not provide any information on the asbestos containing products her father was exposed to at Bethlehem Steel. Specifically, she could not state that her father was exposed to asbestos fiber manufactured by ACL. Plaintiff, however, produced an affidavit from an individual named Anthony Delgrosso, who was a co-worker of plaintiff's father at Bethlehem Steel. Mr. Delgrosso stated that he worked with Nicholas Grello at Bethlehem Steel from 1949 to 1953. Mr. Delgrosso identified only Kaylo Pipe Covering manufactured by Owens-Illinois, Inc. and Insulag spray manufactured by Quigley Company, Inc., as the asbestos containing products Mr. Grello worked with or around at Bethlehem Steel. At a deposition taken on June 12, 2014, Mr. Delgrosso further testified that he never heard of Eagle Picher or Mundet Corporation. He also could not identify any asbestos containing products by Union Carbide Corporation. Mr. Delgrosso did not provide any testimony regarding the use of raw asbestos fiber at Bethlehem Steel.
On or about November 12, 2015, plaintiff served upon ACL a Notice of Videotaped Deposition and Notice to Produce Documents for December 1, 2015. The Notice of Corporate Designee Designation included a section that specifically requested that ACL produce documents and afford plaintiff the ability to conduct a site inspection of ACL's document repository located in Quebec, Canada, prior to the deposition. ACL did not produce a corporate designee or the requested documents, and denied plaintiff an inspection of its document repository.
On February 19, 2016 plaintiff filed, in the state court, a Motion to Compel Discovery from ACL ("Motion to Compel"). ACL opposed the Motion to Compel. In the Motion to Compel, plaintiff claimed that she was exposed to ACL asbestos fibers as follows:
(Motion to Compel at 1.) In its response filed in state court, ACL denied the allegations that plaintiff was exposed to asbestos fibers milled by ACL and argued that plaintiff had not offered any witness or other evidence to support her contention that plaintiff's father was exposed to asbestos products supplied by ACL. ACL further explained as follows:
(Resp. at 6 (internal citation omitted).)
On April 5, 2016, a Judge in the Court of Common Pleas for Philadelphia County signed plaintiff's proposed order granting the Motion to Compel and directed ACL to: (1) produce a corporate designee for a deposition within twenty days of the order; (2) produce all documents requested by plaintiff; and (3) grant plaintiff access to ACL's document repository for a site inspection. ACL did not comply with this order because it alleges that there is no individual currently employed by ACL with personal knowledge concerning plaintiff's requests and that the Quebec Business Concerns Records Act ("QBCRA") would prevent ACL from producing, and anyone from ACL from testifying regarding information obtained from the review of, documents located in the Province of Quebec.
On May 17, 2016, defendant Owens-Illinois, Inc. removed the case to federal court. The case was assigned to the Honorable Eduardo C. Robreno. On October 13, 2016, plaintiff filed the Motion for Sanctions at issue herein. On November 8, 2016, plaintiff filed an amended complaint naming ACL and Owens-Illinois, Inc. as defendants. On November 16, 2016, Judge Robreno referred plaintiff's Motion for Sanctions to the undersigned for disposition.
ACL alleges that the state court committed error in granting plaintiff's Motion to Compel. Thus, an initial question to be answered is whether this federal court has authority to vacate or modify the order of the Court of Common Pleas for Philadelphia County that is the subject of plaintiff's Motion for Sanctions. The court concludes that it does have this authority. Pursuant to 28 U.S.C. § 1450, "[w]henever any action is removed from a State court to a district court of the United States . . . [a]ll injunctions, orders, and other proceedings had in such action prior to its removal shall remain in full force and effect until dissolved or modified by the district court." 28 U.S.C. § 1450. The Supreme Court of the United States has held that Section 1450 recognizes a "district court's authority to dissolve or modify injunctions, orders, and all other proceedings had in state court prior to removal."
For the reasons explained below, this court will vacate the order of the state court and issue a new order granting plaintiff's Motion to Compel, but on a more limited basis. This court also will deny plaintiff's Motion for Sanctions since the court has vacated the state court's order granting the Motion to Compel. The court takes this action for two reasons. First, the state court's order is overly broad in that it directs ACL to produce information on products to which plaintiff's father was not exposed while he worked at Bethlehem Steel. Second, prior to the entry of its order, the state court appears not to have considered the factors that are required in a comity analysis before a court can compel a foreign corporation to produce documents in contravention of its country's "blocking statute."
ACL's opposition to plaintiff's Motion for Sanctions, and Motion to Compel, is based upon the Quebec Business Concerns Records Act ("QBCRA"), which prohibits a corporation organized and existing under the laws of Quebec, Canada, from producing its documents to a court in a foreign jurisdiction. ACL also argues that the QBCRA prohibits its representative from testifying regarding information obtained from documents located in Quebec, and that no individual presently working for ACL possesses independent knowledge of ACL's activities in the 1940's and 1950's when plaintiff's father allegedly was exposed to asbestos.
The relevant section of the QBCRA provides,
QBCRA ¶ 2. This provision of the QBCRA is known as a "blocking statute," that is, "a law passed by the foreign government imposing a penalty upon a national for complying with a foreign court's discovery order."
The Supreme Court addressed blocking statutes in
In the instant case, factor one weighs in favor of production. Factor one considers the importance of the requested information to the litigation. Plaintiff is entitled to discovery to determine whether ACL's raw asbestos fiber is a component in the asbestos products to which plaintiff's father allegedly was exposed.
Factor four considers the availability of alternative means of securing the information. In its Response, ACL states that it "suggested alternatives such as written discovery propounded by plaintiff and the production of documents already in the United States."
The fifth factor weighs in favor of production. This factor requires analysis of the extent to which non-production would undermine important interests of the United States, or production would undermine important interests of Quebec. The United States has an "important interest" in protecting its citizens from harmful products. The court in
All five factors in the comity analysis weigh in favor of production. Consequently, the court will issue an order compelling limited production of documents.
For the reasons explained above, the court rejects ACL's position that it should be excused from producing any of the documents requested by plaintiff. However, the court finds that plaintiff's requests, at this time, are overly broad. As ACL stated in its opposition brief, "Plaintiff's document requests included forty (40) categories of documents, the majority of which were completely unlimited in time and scope and/or sought information irrelevant to the subject matter in this action given the limited scope and nature of plaintiff's household exposure claims." (ACL's Br. at 7.) Accordingly, the court will enter an order vacating the state court's order and substituting in its place a new order requiring ACL to make a limited production of documents to plaintiff based upon the product identification testimony in the record.
After ACL produces these documents, to the extent they exist, counsel shall meet and confer pursuant to Loc. R. Civ. P. 26.1(f), to attempt to reach an agreement on the remaining requests for documents set forth in plaintiff's Notice to Produce Documents and to schedule the deposition of an ACL corporate representative regarding the produced documents. If the parties are unable to reach an agreement on these issues, plaintiff may file a motion to compel with this court in accordance with the rulings provided by the court in this Memorandum of Decision.
An appropriate Order follows.