• October 12, 2018

Facepalm (Caïn by Henri Vidal, Tuileries Garden, Paris, 1896. )

A January 11, 2017 explosion at a truck manufacturing facility in (appropriately named) Dodge Center, Minnesota caused many serious injuries.

It is alleged that a company, Swagelok, failed to properly design, manufacture, test, and inspect a hose assembly, which is alleged to have caused the devastating explosion

(See the complaint here. The complaint, by the way, is impressive advocacy in its thoroughness. Credit goes to plaintiff’s counsel at Pritzker Hageman. Warning: it contains graphic images of terrible injuries. ).

This week, U.S. Magistrate Judge Katherine M. Menendez (D. Minn.) ordered that Swagelok could not “conduct independent destructive testing of critical evidence without the input, involvement, or observation of any party.”

The frustrating aspect of Judge Menendez’s order is that she does not identify what possible justification Swagelok articulated to justify its proposed secret destructive testing.

Is this otherwise known as a proposal to conduct court-approved secret evidence destruction? How not? How did anyone think that would fly?

The court refers to letter briefs from both sides in its order but these letter briefs do not appear to have been filed in the case so they are not publicly available. So we have to speculate.

Presumably lawyers for Swagelok argue that they wanted to perform secret testing because they have a secret case strategy that they do not want to share with their adversaries and, therefore, knowledge of the testing would reveal confidential attorney work product.

What else could the justification be?

If this is the justification, in our view, it represents an obviously unsettling and overly expansive view of the attorney work product doctrine. The obviously dispositive fact is that Swagelok proposes destructive testing; with this fact, it isn’t even a close question.

A more interesting and difficult question, maybe, would have been if Swagelok proposed ex parte non-destructive testing. Even then, however, it is unclear whether one could square that with the “just, speedy, and inexpensive determination of every action and proceeding,” which is supposed to underlie the procedure of our civil justice system.


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