Bailey, J.
Case Summary
In a products liability and wrongful death action brought by the Estate of Nolan Gerwels (“the Estate”) against Goalsetter Systems, Inc. d/b/a Escalade Sports (“Goalsetter”) and other defendants, this Court has accepted a discretionary interlocutory appeal challenging the grant of the Estate’s motion to compel Goalsetter to produce documents, including some exchanged between Goalsetter and the United States Consumer Product Safety Commission (“the CPSC”). We affirm.
Issues
Goalsetter presents the following issues for review:
I. Whether the trial court abused its discretion in denying Goalsetter’s request for a protective order and compelling the production of documents that the CPSC had refused to produce in response to the Estate’s Freedom of Information Act, 5 U.S.C. § 552, (“FOIA”) request; and
II. Whether the trial court abused its discretion by failing to adequately protect Goalsetter’s work product.
….
Goalsetter has sought protection of documents in its “CPSC file and documents and communications exchanged with the CPSC and Goalsetter.” Appellant’s Brief at 20. According to Goalsetter:
The production of documents in a case where the CPSC has expressly stated doing so subject to FOIA would cause an “articulable harm” to its investigation, would, logically by extension, cause the same harm to Goalsetter’s recall. Whether that is considered a “privilege” created by federal law, or renders such documents confidential pursuant to statue and common law, the end result should be that such documents are not discoverable.
Id. at 21. According to Goalsetter, the trial court has “substituted its judgment” for that of the CPSC, and “the Trial Court first should have considered federal law on the public availability of certain documents and the tests applied by the agency and federal courts in determining if CPSC materials are subject to civil discovery requests in related litigation.” Id. at 17, 22. Goalsetter does not claim that CPSC criteria for public disclosure of information under the FOIA directly governs discovery in state court litigation. [Footnote omitted.] Rather, Goalsetter contends that a federal agency action has somehow created a discovery privilege in this matter. We disagree.
It is well-settled that: “[a] grant of privilege and the scope of that privilege are policy choices of the Legislature.” State v. Int’l Bus. Machines Corp., 964 N.E.2d 206, 210 (Ind. 2012). Although our legislature could have chosen to enact a discovery privilege corresponding to a FOIA determination, it has not done so.
….
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.
….
Conclusion
Goalsetter possesses no privilege preventing disclosure in a state court discovery dispute based upon a federal agency refusal of disclosure in an FOIA context. The discovery order at issue is carefully crafted to limit dissemination of materials and permit further review of claimed work product materials. Goalsetter has not shown that the trial court abused its discretion in compelling the production of documents and denying Goalsetter’s motion for a protective order.
Affirmed.
Crone, J., and Pyle, J., concur.