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Coleman v. Westport Homes, Inc.

United States District Court, S.D. Ohio, Eastern Division

July 27, 2018

JAMAL COLEMAN, et al., Movants,

          George C. Smith Judge



         In this miscellaneous action, Movants, Jamal Coleman and Sheena Coleman (“Movants”), seek an Order compelling Respondent, Westport Homes, Inc. (“Westport”), to produce documents in response to a November 29, 2017 subpoena (ECF No. 1-3) (the “Subpoena”) issued in the underlying action, Jamal Coleman, et al. v. Weyerhaeuser Company, No. 1:17-cv-01093-VAC-SRF, pending in the United States District Court for the District of Delaware (the “Underlying Action”). As the Court for the district where compliance with the Subpoena is required, this Court has jurisdiction over the dispute pursuant to Fed.R.Civ.P. 45(d)(2)(B)(i). This matter is before the Court for consideration of Movants' Motion to Compel Production of Documents (ECF No. 1), Westport's Opposition thereto (ECF No. 5), and Movants' Reply (ECF No. 7). For the reasons that follow, Movants' Motion is GRANTED, as set forth herein.


         On August 4, 2017, Movants initiated the Underlying Action by filing a class action complaint against Weyerhaeuser Company (“Weyerhaeuser”). Weyerhaeuser produces and sells joists for installation in homes and other structures. Movants allege that Weyerhaeuser produced and sold TJI Joists with Flak Jacket Protection (the “Joists”), a proprietary, factory-applied coating designed to enhance the Joists' fire resistance. Movants further allege that that the Joists are defective because the Flak Jacket Protection emits toxic formaldehyde fumes to extents that render the homes uninhabitable. According to Movants, the defective Joists affected thousands of homes around the country. Movants assert claims against Weyerhaeuser in the Underlying Action for breach of express warranty, breach of implied warranty, violations of the Magnuson-Moss Warranty Act (15 U.S.C. § 2301, et seq.), negligence, failure to warn, violations of the Delaware Consumer Fraud Act (Del. Code Ann. Tit. 6, § 2511, et seq.), and unjust enrichment, and they further seek relief under the Declaratory Judgment Act (28 U.S.C. § 2201, et seq.).

         Movants contend that they have identified at least thirty-five (35) builders who were involved in the construction of new homes affected by the defective Joists, including Westport. According to Movants, Westport built and sold approximately 100 new homes containing the defective Joists. As such, Movants contend that Westport uniquely possesses relevant and discoverable information concerning the impact the Joists had on home value and marketability, as well as identifying information regarding class members.

         Movants served Westport with the Subpoena on November 29, 2017, requesting production of 18 categories of documents. (ECF No. 1-3.) Following Westport's objections and various meet-and-confer efforts, the parties were able to reach agreement with respect to 10 out of the 18 categories of documents, whether through Westport's production of documents or Movants' agreement to forego certain requests. In briefing related to the instant dispute, Movants agreed to forego their request for an additional four categories of documents (see Movant's Reply 5 n.2, ECF No. 7, wherein Movants abandon their request to compel categories 5 through 8 set forth in their Motion), leaving this Court to resolve the parties' dispute over whether Westport must produce the following remaining four categories of documents:

1. All documents related to diminution in value of homes due to the defective Joists;
2. Purchase and sale agreements for all homes in the same development as affected homes, along with document sufficient to determine which homes have similar layouts or features and which homes did or did not have the Joists;
3. Documents sufficient to show how long homes with defective Joist remained on the market in comparison with homes that did not have defective Joists; and
4. All disclosures to buyers and realtors regarding the defective Joists, formaldehyde, or remediation, as well as all related communications.

         Movants maintain that the foregoing documents are relevant to the Underlying Action to determine how the Joists affected the value and marketability of homes containing the Joists.

         Westport counters that as a custom home builder it does not possess many of the documents Movants request, and insists that the remaining documents are irrelevant to the Underlying Action. Specifically, Westport contends that of the homes it built using the Joists (the “Affected Homes”), the sale on only five fell through because of the defective Joists (the “Five Failed Closing Homes”). Westport maintains that the Joists had no effect on the value or marketability of the remaining Affected Homes, as those homes either were already occupied at the time the defect in the Joists was discovered or sales closed on the homes despite the defect. Thus, Westport maintains, the only documents it possesses that could be relevant to the Underlying Action are purchase and sales documents related to the Five Failed Closing Homes, and it has already produced those documents, albeit in redacted form.

         In addition, Westport argues that as a custom home builder, the majority of the homes it constructs are built for a specific buyer, not as inventory homes to place on the market, such that it has no relevant information concerning how long Affected Homes remained on the market. Westport acknowledges that it constructs a small number of inventory homes (the “Select Inventory Homes”), but maintains that only four of its Select Inventory Homes contained defective Joists, and the Joists had no effect on the price or marketability of those homes. Thus, documents related to its ...

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