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The Indiana Court of Appeals found a trial court did not abuse its discretion in compelling a basketball goal company to produce discovery materials following a teenager’s death.
In June 2018, 14-year-old Nolan Gerwels was killed when a basketball goal detached from the wall of an in-home gymnasium and fell on him.
His parents opened an estate and filed a complaint against Dick’s Sporting Goods, the seller, Goalsetter Systems Inc., the manufacturer and other defendants who had engaged in residential construction and equipment installation services.
In November 2018, the parties entered into a Stipulated Protective Order to “govern the production and handling of any protected information in this action.” A party who produced protected information could designate it as “confidential” and a non-party would receive a copy of designated information only after agreeing to be bound by specific confidentiality terms according to the order.
The estate requested discovery materials from Goalsetter and received materials that included communications from the Consumer Product Safety Commission to Goalsetter. Specifically, in response to Goalsetter’s self-reporting to the commission regarding Gerwels’ death, the agency had stated in writing that it was taking no action at that time.
In January 2022, Goalsetter and the estate’s attorney each reported to the safety commission that there had been an adverse incident in Utah involving a Goalsetter basketball goal. Eventually, four separate incidents were reported.
On Oct. 27, 2022, the safety commission announced that Goalsetter had issued a recall of Goalsetter wall-mounted basketball goals, identifying the hazard as: “The basketball goal can detach from the wall and fall to the ground posing a serious impact injury hazard and risk of death.”
The estate’s attorney submitted a Freedom of Information Act request to the safety commission seeking, among other things, consumer reports of injuries from Goalsetter wall mount products, all related records in the commission’s files, and correspondence between the commission and Escalade Sports after June 22, 2018.
The FOIA request was denied due to “articulable harm to the current investigation while the recall is still in monitoring status.”
The estate requested supplemental discovery from Goalsetter, which provided some responsive materials and objected to the production of others. Goalsetter asserted that materials it provided to the CPSC are protected by a privilege of self-critical analysis.
Goalsetter also claimed that documents exchanged between it and a governmental entity are privileged trade secrets, confidential, and not subject to discovery under the Consumer Product Safety Act, 15 U.S.C. § 2055.
In February 2023, the estate filed a motion to compel Goalsetter to produce discovery materials in response to the estate’s first, second, third and fourth requests for production.
It sought discovery materials of correspondence between Goalsetter and the safety commission, communications between Goalsetter and consumers; communications between Goalsetter and other persons such as independent contractors or inspectors. Other requests concerned research and development and test reports related to such things as dynamic load, static load, and engineering stress.
Goalsetter objected to the requests and claimed that such documents are privileged trade secrets under the CPSA and the FOIA, attorney work product, and “protected by the privilege of self-critical analysis.” It further claimed that the release of such information would be harmful to the safety commission’s investigation and enforcement.
Goalsetter then sought a corresponding protective order “that discovery related to any CPSC reporting, investigation, research, testing, training, or recall, including any internal communication and communications with the CPSC and any documents exchanged, should be protected from discovery.”
The St. Joseph Superior Court held a hearing in March 2023 at which Goalsetter advised the trial court that the safety commission had opened a new investigation in 2022 and denied the estate’s FOIA request. The parties presented arguments with regard to Indiana’s non-recognition of a self-critical analysis privilege.
The etate argued that Goalsetter was at fault for failing to maintain a log of claimed work product items while Goalsetter deemed the estate at fault for failure to pursue the administrative remedy of an appeal after the FOIA denial.
The next month the trial court issued an order granting the motion to compel “subject to the limitations and restrictions set out in this order.”
Goalsetter then requested the trial court certify its order for interlocutory appeal and issue a stay pending appeal.
The trial court certified its discovery order for interlocutory appeal and granted Goalsetter’s motion for a stay.
The first issue on appeal was whether the trial court abused its discretion in denying Goalsetter’s request for a protective order and compelling the production of documents that the safety commission had refused to produce in response to the estate’s Freedom of Information Act request.
“The trial court was not empowered to create a common law privilege that materials withheld in a FOIA request are non-discoverable due to a federal interest. Goalsetter has not shown that the trial court misapplied the law or otherwise abused its discretion,” Judge Mark Bailey wrote.
The second issue on appeal was whether the trial court abused its discretion by failing to adequately protect Goalsetter’s work product.
“The trial court’s discovery order, which anticipates further development of Goalsetter’s factual claims of work product, if necessary, does not amount to an abuse of discretion,” Bailey wrote.
Judges Terry Crone and Rudolph Pyle concurred in Goalsetter Systems Inc. d/b/a Escalade Sports v. Estate of Nolan Gerwels, et al., 23A-CT-1896.
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