1 

IN THE UNITED STATES DISTRICT COURT 

FOR THE MIDDLE DISTRICT OF PENNSYLVANIA 

KATHERINE BIRL, et al., : Civil No. 3:22-CV-1598 

 : 

 Plaintiffs, : 

 : 

v. : 

 : (Magistrate Judge Carlson) 

SKI SHAWNEE, INC., : 

 : 

 Defendant. : 

 

MEMORANDUM AND ORDER 

I. Factual Background

 This case arises out of what all acknowledge is a tragedy. Katherine and 

Damian Birl have filed a negligence lawsuit against Ski Shawnee arising out of a 

January 12, 2021 incident in which their minor son, G.B., suffered catastrophic 

injuries while snowboarding at Ski Shawnee when he collided with what is alleged 

to have a negligently and improperly placed and unprotected light post. 

 Given these allegations, the parties are now engaging in discovery in this case 

aimed at elucidating these claims of negligence, and come to the court with a 

discovery dispute regarding the discoverability of prior similar accidents at Ski 

Shawnee. This discovery dispute is framed by the plaintiffs’ requests for production 

of documents 10 and 11 which seek the following information: 

Case 3:22-cv-01598-DFB Document 34 Filed 05/31/23 Page 1 of 11
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10. All documents and communications related to all prior accidents 

involving skiers and/or snowboarders colliding with light poles and/or 

any other fixed objects on Shawnee Mountain from 2000-present. 

11. All documents and communications related to all prior accidents 

involving skiers and/or snowboarders on any terrain park on Shawnee 

Mountain from 2000-present. 

(Doc. 33, at 9). 

 Ski Shawnee has responded to these discovery requests by stating that there 

have been no prior accidents involving this specific light pole. Beyond denying a 

specific prior history of accidents involving this specific light pole the defendants 

have objected to these requests for production, asserting that the requests are overly 

broad, unduly burdensome, and are not calculated to lead to the discovery of relevant 

information. Thus, the parties have staked out starkly contrasting positions regarding 

the discovery of other similar incidents in this litigation: The plaintiffs seek 

discovery of all accidents involving light poles, fixed objects, or terrain parks at Ski 

Shawnee for a twenty-year period. In contrast, the defendant seeks to limit discovery 

to any prior accidents involving the specific light pole involved in this particular 

incident. 

 This dispute has been fully briefed by the parties and is, therefore, ripe for 

resolution. For the reasons set forth below, it is ordered as follows: We will require 

Ski Shawnee to produce all documents and communications related to all prior 

accidents involving skiers and/or snowboarders colliding with light poles and/or any 

Case 3:22-cv-01598-DFB Document 34 Filed 05/31/23 Page 2 of 11
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other fixed objects on Shawnee Mountain, as well as all documents and 

communications related to all prior accidents involving skiers and/or snowboarders 

on any terrain park on Shawnee Mountain, for the period from October 1, 2015 

through January 21, 2021. 

II. Discussion 

Several principles guide us in resolving this discovery dispute. At the outset, 

Rule 26(b) of the Federal Rules of Civil Procedure generally defines the scope of 

discovery permitted in a civil action and prescribes certain limits to that discovery. 

In its current form, that rule provides as follows: 

(b) Discovery Scope and Limits. 

(1) Scope in General. Unless otherwise limited by court order, the 

scope of discovery is as follows: Parties may obtain discovery 

regarding any nonprivileged matter that is relevant to any party's claim 

or defense and proportional to the needs of the case, considering the 

importance of the issues at stake in the action, the amount in 

controversy, the parties' relative access to relevant information, the 

parties' resources, the importance of the discovery in resolving the 

issues, and whether the burden or expense of the proposed discovery 

outweighs its likely benefit. Information within this scope of discovery 

need not be admissible in evidence to be discoverable. 

Fed. R. Civ. P. 26(b)(1). Evidence is considered to be “relevant ‘if it has any 

tendency to make a fact more or less probable that it would be without the evidence’ 

and ‘the fact is of consequence in determining the action.’” In re Suboxone 

(Buprenorphine Hydrochloride & Naloxone) Antitrust Litig., No. 13-MD-2445, 

2016 WL 3519618, at *3 (E.D. Pa. June 28, 2016) (quoting Fed. R. Evid. 401). 

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Rulings regarding the proper scope of discovery, and the extent to which 

further discovery responses may be compelled, are matters committed to the court's 

judgment and discretion. Robinson v. Folino, No. 14-227, 2016 WL 4678340, at *2 

(W.D. Pa. Sept. 7, 2016) (citation omitted); see also Wisniewski v. Johns-Manville 

Corp., 812 F.2d 81, 90 (3d Cir. 1987). Although decisions relating to the scope of 

discovery rest with the discretion of the district court, that discretion is nevertheless 

limited by the scope of Rule 26 itself, which reaches only “nonprivileged matter that 

is relevant to any party’s claim or defense.” Accordingly, “[t]he Court’s discretion 

in ruling on discovery issues is therefore restricted to valid claims of relevance and 

privilege.” Robinson, No. 14-227, 2016 WL 4678340, at *2 (citing Jackson v. Beard, 

No. 11-1431, 2014 WL 3868228, at *5 (M.D. Pa. Aug. 6, 2014) (“[a]lthough the 

scope of relevance in discovery is far broader than that allowed for evidentiary 

purposes, it is not without its limits. . . . Courts will not permit discovery where a 

request is made in bad faith, unduly burdensome, irrelevant to the general subject 

matter of the action, or relates to confidential or privileged information”)). 

“A party moving to compel bears the initial burden of showing the relevance 

of the requested information.” Morrison v. Phila. Hous. Auth., 203 F.R.D. 195, 196 

(E.D. Pa. 2001). Once that burden is satisfied, the party resisting the discovery has 

the burden to establish that the discovery being sought is not relevant or is otherwise 

inappropriate. Robinson, No. 14-227, 2016 WL 4678340, at *2. 

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Rulings regarding the proper scope of discovery, and the extent to which 

discovery may be compelled, are matters consigned to the court’s discretion and 

judgment. Thus, it has long been held that decisions regarding Rule 37 motions are 

“committed to the sound discretion of the district court.” DiGregorio v. First 

Rediscount Corp., 506 F.2d 781, 788 (3d Cir. 1974). Similarly, issues relating to the 

scope of discovery permitted under Rule 26 also rest in the sound discretion of the 

Court. Wisniewski, 812 F.2d at 90. Therefore, a court’s decisions regarding the 

conduct of discovery, will be disturbed only upon a showing of an abuse of 

discretion. Marroquin-Manriquez v. I.N.S., 699 F.2d 129, 134 (3d Cir. 1983). 

Likewise, discovery sanction decisions rest in the sound discretion of the court. 

Grider v. Keystone Health Plan Cent., Inc., 580 F.3d 119, 134 (3d Cir. 2009). This 

far-reaching discretion extends to rulings by United States Magistrate Judges on 

discovery matters. In this regard: 

District courts provide magistrate judges with particularly broad 

discretion in resolving discovery disputes. See Farmers & Merchs. Nat'l 

Bank v. San Clemente Fin. Group Sec., Inc., 174 F.R.D. 572, 585 

(D.N.J. 1997). When a magistrate judge's decision involves a 

discretionary [discovery] matter . . . , “courts in this district have 

determined that the clearly erroneous standard implicitly becomes an 

abuse of discretion standard.” Saldi v. Paul Revere Life Ins. Co., 224 

F.R.D. 169, 174 (E.D. Pa. 2004) (citing Scott Paper Co. v. United 

States, 943 F.Supp. 501, 502 (E.D. Pa. 1996)). Under that standard, a 

magistrate judge's discovery ruling “is entitled to great deference and 

is reversible only for abuse of discretion.” Kresefky v. Panasonic 

Commc'ns and Sys. Co., 169 F.R.D. 54, 64 (D.N.J.1996); see also 

Hasbrouck v. BankAmerica Hous. Servs., 190 F.R.D. 42, 44-45 

(N.D.N.Y.1999) (holding that discovery rulings are reviewed under 

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abuse of discretion standard rather than de novo standard); EEOC v. 

Mr. Gold, Inc., 223 F.R.D. 100, 102 (E.D.N.Y.2004) (holding that a 

magistrate judge's resolution of discovery disputes deserves substantial 

deference and should be reversed only if there is an abuse of discretion). 

Halsey v. Pfeiffer, No. 09-1138, 2010 WL 3735702, *1 (D.N.J. Sept. 17, 2010). 

 Accordingly, at the outset it is clear that Rule 26's definition of that which can 

be obtained through discovery reaches any nonprivileged matter that is relevant to 

any party’s claim or defense, and valid claims of relevance and privilege still cabin 

and restrict the court’s discretion in ruling on discovery issues. Furthermore, the 

scope of discovery permitted by Rule 26 embraces all relevant information, a 

concept which is not confined to admissible evidence but is also defined in the 

following terms: “Information within this scope of discovery need not be admissible 

in evidence to be discoverable.” Fed. R. Civ. P. 26(b)(1). Rather, Rule 26 states that 

“[p]arties may obtain discovery regarding any nonprivileged matter that is relevant 

to any party's claim or defense.” This concept of relevance is tempered, however, by 

principles of proportionality. Thus we are now enjoined to also consider whether the 

specific discovery sought is “proportional to the needs of the case, considering the 

importance of the issues at stake in the action, the amount in controversy, the parties' 

relative access to relevant information, the parties' resources, the importance of the 

discovery in resolving the issues, and whether the burden or expense of the proposed 

discovery outweighs its likely benefit.” Fed. R. Civ. P. 26(b)(1). “Thus, it has been 

said that the amended rule ‘restores the proportionality factors to their original place 

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in defining the scope of discovery.’ ” Fassett v. Sears Holdings Corp., 319 F.R.D. 

143, 150 (M.D. Pa. 2017) (quoting Wertz v. GEA Heat Exchangers Inc., No. 1:14-

CV-1991, 2015 WL 8959408, at *2 (M.D. Pa. Dec. 16, 2015)). 

 There are temporal and topical aspects to any proportionality analysis in a 

discovery dispute. Defining the temporal and topical limitations of disputed 

discovery is a task left to the sound discretion of the court. See McConnell v. 

Canadian Pac. Realty Co., 280 F.R.D. 188, 193 (M.D. Pa. 2011). When considering 

topical limitations on discovery, in making our relevance and proportionality 

assessment we are guided by the following familiar principles describing the 

relevance of prior incident reports in a tort action: 

[E]vidence of prior accidents . . . under similar circumstances is 

admissible to show notice to the defendant of the danger, to show 

existence of the danger, and to show the cause of the accident.” Gumbs 

v. Int'l Harvester, Inc., 718 F.2d 88, 97 (3d Cir. 1983) (Becker, J.). That 

being said, “[t]he almost universal requirement, however, is that the 

prior occurrence must involve facts and circumstances which are 

substantially similar to those involved in the case under consideration 

or they will be excluded.” Barker v. Deere & Co., 60 F.3d 158, 162 (3d 

Cir. 1995) (Cowen, J.). 

Fassett, 319 F.R.D. at 153. 

 As for temporal limitations on discovery, it is well settled that: 

Rule 26’s principles of: 

[P]roportionality [often] call for some further temporal limitations on 

the scope of this particular discovery, as well as topical limitations, 

pertaining to the matters at issue in this litigation. In the past, in the 

exercise of the court's discretion, courts have often set five year 

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temporal limits on discovery. Miller v. Hygrade Food Prod. Corp., 89 

F. Supp. 2d 643, 647 (E.D. Pa. 2000). 

Hamill v. Twin Cedars Senior Living, LLC, No. 3:20-CV-231, 2020 WL 5082570, 

at *3 (M.D. Pa. Aug. 27, 2020) (citing Grayson v. Dewitt, No. 1:15-CV-453, 2016 

WL 5801699, at *6 (M.D. Pa. Oct. 5, 2016)). 

 Judged by these legal guideposts, we find that other incidents involving 

injuries arising out of collisions with light poles or other fixed objects or injuries at 

terrain parks would be potentially discoverable since, depending upon the factual 

similarity of these prior incidents, these prior accident reports could constitute 

“nonprivileged matter that is relevant to a[] party’s claim or defense.” Further, it 

would be no barrier to this disclosure that the specific incidents might not be 

admissible at trial since Rule 26 provides that: “Information within this scope of 

discovery need not be admissible in evidence to be discoverable.” Fed. R. Civ. P. 

26(b)(1). Thus, in our view the threshold requirement of relevance is met here.1

We recognize, however, that the twenty year scope of these requests raises 

questions of proportionality, so we must also consider whether the specific discovery 

1 The cases cited by Ski Shawnee all relate to the admissibility of other incident 

evidence at trial, a question which is not now before us, and does not control here in 

light of Rule 26’s admonition that information need not be admissible in evidence 

to be discoverable. Therefore, these cases do not control our analysis of this 

discovery issue. And we hasten to add our discovery ruling does not preclude the 

exclusion of any disclosed evidence of other incidents at trial. The issue of 

discoverability and admissibility are separate and distinct. 

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sought is “proportional to the needs of the case, considering the importance of the 

issues at stake in the action, the amount in controversy, the parties' relative access to 

relevant information, the parties’ resources, the importance of the discovery in 

resolving the issues, and whether the burden or expense of the proposed discovery 

outweighs its likely benefit.” Fed. R. Civ. P. 26(b)(1). Here the issues at stake in this 

action are grave for all parties since this case entails claims of negligence leading to 

the catastrophic injury of a minor. Moreover, depending upon what this discovery 

reveals, resolution of this question could be vitally important to resolving the issues 

in this lawsuit. Further, the information at issue here regarding prior accidents at Ski 

Shawnee is exclusively in the possession of Ski Shawnee. 

 Taking all of these factors into consideration and recognizing that the 

evidence of these prior incidents goes to a question of vital importance in this 

litigation, namely; the issue of prior notice on the part of Ski Shawnee, we will 

nonetheless set some temporal limits on the scope of discovery in order to ensure 

proportionality. Thus, in the first instance, while we will require Ski Shawnee to 

produce all documents and communications related to all prior accidents involving 

skiers and/or snowboarders colliding with light poles and/or any other fixed objects 

on Shawnee Mountain, as well as all documents and communications related to all 

prior accidents involving skiers and/or snowboarders on any terrain park on 

Shawnee Mountain, we will limit the initial temporal scope of this search to the five 

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ski seasons prior to this accident. Therefore, we will require Ski Shawnee to search 

for, and produce, any records that fall within the scope of this opinion and order for 

incidents from October 1, 2015 through January 21, 2021. 

 An appropriate order follows. 

/s/ Martin C. Carlson 

 Martin C. Carlson 

 United States Magistrate Judge 

DATED: May 31, 2023 

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IN THE UNITED STATES DISTRICT COURT 

FOR THE MIDDLE DISTRICT OF PENNSYLVANIA 

KATHERINE BIRL, et al., : Civil No. 3:22-CV-1598 

 : 

 Plaintiffs, : 

 : 

v. : 

 : (Magistrate Judge Carlson) 

SKI SHAWNEE, INC., : 

 : 

 Defendants. : 

ORDER

 AND NOW, this 31st day of May 2023, in accordance with the accompanying 

memorandum, IT IS ORDERED that within 30 days Ski Shawnee shall produce all 

documents and communications related to all prior accidents involving skiers and/or 

snowboarders colliding with light poles and/or any other fixed objects on Shawnee 

Mountain, as well as all documents and communications related to all prior 

accidents involving skiers and/or snowboarders on any terrain park on Shawnee 

Mountain, for the period from October 1, 2015 through January 21, 2021. 

 

/s/ Martin C. Carlson 

 Martin C. Carlson 

 United States Magistrate Judge 

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