Berkley Regional Insurance Company v. Shenzhenshi Yishengda Dianzi Youxian…

Background

The court considered the parties’ request for relief through its informal dispute resolution process. Amazon sought to conduct both non-destructive and destructive examinations of the cell-phone battery at issue. Berkley did not object.

Yishda’s attorney withdrew on July 19, 2022. Yishda had not retained replacement counsel. Because Yishda is a corporation, the court explained that it could appear in federal court only through a licensed attorney. The court therefore found that Yishda’s failure to retain substitute counsel waived its right to object to the proposed examination.

Shenzhen had not yet been served and had not appeared. Berkley reported that it had worked with a process server, translated the service materials, and sent them to the appropriate Chinese authorities on May 12, 2021. Berkley had received no response from those authorities regarding service.

Ruling

Berkley and Amazon asked the court to bar Shenzhen from later asserting a defense based on destruction or loss of evidence resulting from the examination. The court applied the principle that it must balance the benefits of destructive testing against the opposing party’s interest in preserving evidence.

The court denied Berkley and Amazon’s request. It reasoned that, because Shenzhen had not been served, Shenzhen had not received a fair opportunity to assert its interests. Destructive testing could prevent Shenzhen from participating in the examination and from retaining an expert to conduct its own examination.

The order thus found that Yishda waived its right to object because it lacked counsel, but it DENIED Berkley and Amazon’s request to prevent Shenzhen from raising a possible evidence-preservation defense. The order did not expressly state a separate grant of Amazon’s examination request.

Disposition

The request concerning Shenzhen was denied. The court’s order was signed by Dulce J. Foster, United States Magistrate Judge.