United States District Court, E.D. North Carolina, Western Division
E. Gates, Judge
case comes before the court on three motions by plaintiff
John Archie Cain (“plaintiff”) to compel
discovery from defendants Wal-Mart Stores, Inc., Wal-Mart
Stores East, L.P., and Wal-Mart Associates (collectively
“Wal-Mart”) and for other relief. The first (D.E. 17)
seeks production of supplemental responses to various
interrogatories and production requests, responses to several
specified topics for a Rule 30(b)(6) deposition of Wal-Mart,
and extension of the time to complete discovery
(“Pl.'s 1st Mot.”); the second motion (D.E.
18) seeks the same relief as the first, but is supported by a
memorandum (D.E. 19) (“Pl.'s 2nd Mot.”); and
the third motion (D.E. 21) seeks production of initial
disclosures and extension of the time to identify experts
(“Pl.'s 3rd Mot.”). Wal-Mart opposes all
three motions. See D.E. 23, 24.
plaintiff's second motion duplicates his first, the
second motion is denied as moot. Nonetheless, the court has
considered the memorandum in support of the second motion in
evaluating the first motion. For the reasons and on the terms
set forth below, plaintiff's first motion and third
motion will be allowed in part and denied in part.
personal injury case arises out of an incident occurring in a
Wal-Mart store in Hope Mills, North Carolina, store #2929
(“the store” or “store #2929”), on 18
March 2013 (“the incident”). Compl. (D.E. 1-1)
¶¶ 5, 8. Plaintiff entered the store to purchase,
among other things, a 50-pound bag of Ol' Roy Dog Food.
Id. ¶ 10. The 50-pound bags of dog food were
piled in stacks and one stack was approximately 3 feet high.
Id. ¶ 12. When plaintiff bent down to pick up a
bag from the 3-foot-high stack, another 50-pound bag of dog
food fell from an adjacent 8-foot-high stack and landed on
plaintiff's head, neck, and back, causing severe and
permanent injury. Id. ¶¶ 14, 16.
complaint, plaintiff asserted claims for negligence
(id. ¶¶ 30-35) and unfair and deceptive
trade practices (id. ¶¶ 36-44). The claim
for unfair and deceptive trade practices was dismissed by the
court. 17 June 2016 Ord. (D.E. 13). Plaintiff seeks punitive
damages (Compl. ¶¶ 45-58) and compensatory damages
(id. at 11-12).
to the Scheduling Order in this case, which approved the
parties' proposed discovery plan, initial disclosures
were due on 30 July 2016. See Sched. Ord. (D.E. 15)
1; Disc. Plan (D.E. 14) ¶ 2. Plaintiff contends that
Wal-Mart did not serve them by that date.
September 2016, plaintiff served on Wal-Mart his first set of
interrogatories and requests for production of documents.
Pl.'s 1st Mot. 1. On 2 November 2016, Wal-Mart served its
responses to plaintiff's first set of interrogatories and
production requests, asserting a number of objections to most
of plaintiff's requests. Interr. and Prod. Req. Resps.
(D.E. 17-1). Despite numerous requests by plaintiff
that Wal-Mart reconsider its objections, Wal-Mart stands by
them. Pl.'s 1st Mot. 4.
September of 2016, plaintiff provided Wal-Mart with a
proposed Rule 30(b)(6) notice (D.E. 17-2). By letter dated
27 April 2017 (D.E. 17-3),  Wal-Mart served notice of its
objections to the Rule 30(b)(6) notice.
May 2017, plaintiff filed his first motion to compel which,
again, seeks production of supplemental responses to various
interrogatories and production requests, responses to several
specified topics for a Rule 30(b)(6) deposition of Wal-Mart,
and extension of the time to complete discovery. On 30 May
2017, plaintiff filed his second, duplicative motion.
Plaintiff duly certified in both motions that he attempted to
resolve the matters at issue without court intervention.
See Pl.'s 1st Mot. 4; Pl.'s 2nd Mot. 4.
Wal-Mart did not file a response to either motion by the
applicable deadline, 16 June 2017 and 20 June 2017,
July 2017, plaintiff filed his third motion which seeks, as
noted, production by Wal-Mart of initial disclosures and
extension of deadlines in the Scheduling Order. Plaintiff
duly certified that he attempted to resolve the matters at
issue in the third motion without court intervention.
See Pl.'s 3rd Mot. ¶ 5. On 21 July 2017,
Wal-Mart timely responded (see D.E. 23,
to plaintiff's third motion. The response also sought
denial of plaintiff's initial two motions. All three
motions were referred to the undersigned magistrate judge for
disposition, pursuant to 28 U.S.C. § 636(b)(1)(A).
See 14 Aug. 2017 Ord. (D.E. 29).
APPLICABLE LEGAL PRINCIPLES
Federal Rules of Civil Procedure enable parties to obtain
information by serving requests for discovery on each other,
including interrogatories and requests for production of
documents. See generally Fed. R. Civ. P. 26-37. Rule
26 provides for a broad scope of discovery:
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).
district court has broad discretion in determining relevance
for discovery purposes. Seaside Farm, Inc. v. United
States, 842 F.3d 853, 860 (4th Cir. 2016); Watson v.
Lowcountry Red Cross, 974 F.2d 482, 489 (4th Cir. 1992).
The party resisting discovery bears the burden of
establishing the legitimacy of its objections. Eramo v.
Rolling Stone LLC, 314 F.R.D. 205, 209 (W.D. Va. 2016)
(“[T]he party or person resisting discovery, not the
party moving to compel discovery, bears the burden of
persuasion.” (quoting Kinetic Concepts, Inc. v.
ConvaTec Inc., 268 F.R.D. 226, 243 (M.D. N.C. 2010)));
Brey Corp. v. LQ Mgmt., L.L.C., No.
AW-11-cv-00718-AW, 2012 WL 3127023, at *4 (D. Md. 26 Jul.
2012) (“In order to limit the scope of discovery, the
‘party resisting discovery bears the burden of showing
why [the discovery requests] should not be
granted.'” (quoting Clere v. GC Servs.,
L.P., No. 3:10-cv-00795, 2011 WL 2181176, at *2 (S.D.
W.Va. 3 June 2011))).
26(a)(1) of the Federal Rules of Civil Procedure requires
each party to disclose to the other parties certain
information or documents without receiving any request for
them. Specifically, a party must disclose to the other
(i) the name and, if known, the address and telephone number
of each individual likely to have discoverable
information-along with the subjects of that information-that
the disclosing party may use to support its claims or
defenses, unless the use would be solely for impeachment;
(ii) a copy-or a description by category and location-of all
documents, electronically stored information, and tangible
things that the disclosing party has in its possession,
custody, or control and may use to support its claims or
defenses, unless the use would be solely for impeachment;
(iii) a computation of each category of damages claimed by
the disclosing party--who must also make available for
inspection and copying as under Rule 34 the documents or
other evidentiary material, unless privileged or protected
from disclosure, on which each computation is based,
including materials bearing on the nature and extent of
injuries suffered; and
(iv) for inspection and copying as under Rule 34, any
insurance agreement under which an insurance business may be
liable to satisfy all or part of a possible judgment in the
action or to indemnify or reimburse for payments made to
satisfy the judgment.
Fed. R. Civ. P. 26(a)(1).
governs interrogatories. It provides that “[u]nless
otherwise stipulated or ordered by the court, a party may
serve on any other party no more than 25 written
interrogatories, including all discrete subparts.”
Id. 33(a)(1). Rule 33 requires that a party served
with interrogatories answer each fully under oath to the
extent that the party does not object to the interrogatory.
Id.(b)(3). Parties that are corporations or
partnerships must provide the information that is available
to them, which includes information that is under their
control. See id. (b)(1)(B); New Market Corp. v.
Innospec Inc., Civ. Act. No. 3:10cv503, 2011 WL 1306008,
at *4 (E.D. Va. 2011). By signing a response to an interrogatory,
including any objections, the signer certifies that
“reasonable inquiry” has been made regarding the
information requested. Fed.R.Civ.P. 26(g)(1). Objections not
made timely are waived, subject to the court excusing the
untimeliness for good cause. Id. 33(b)(4).
governs requests for production of documents. A party
asserting an objection to a particular request “must
specify the part [to which it objects] and permit inspection
of the rest.” Id. 34(b)(2)(C). Objections not
timely asserted are waived. See, e.g.,
Frontier-Kemper Constructors, Inc., 246 F.R.D.
522, 528 (S.D. W.Va. 2007); Drexel Heritage Furnishings,
Inc. v. Furniture USA, Inc., 200 F.R.D. 255, 258 (M.D.
N.C. 2001). As with interrogatories, the signer of a response
to a production request certifies that “reasonable
inquiry” has been made regarding the requested
documents. Fed.R.Civ.P. 26(g)(1).
party withholds information on the basis of privilege,
including work-product protection, it must expressly assert
the privilege objection in response to the particular
discovery request involved. Id. (b)(5)(A). In
addition, the party must serve with its discovery responses a
privilege log in conformance with Rule 26(b)(5)(A). See
same principles regarding discovery generally apply to a
deposition taken pursuant to Rule 30(b)(6), which governs
depositions of an organization. Coryn Group II, LLC v.
O.C. Seacrets, Inc, 265 F.R.D. 235, 238 (D. Md. 2010)
(“To the extent information sought in a Rule 30(b)(6)
deposition is relevant to the claims or defenses in the case
and is known or reasonably available to the corporation, it
must provide a corporate designee or multiple designees
prepared to provide that information.”) (citing
Fed.R.Civ.P. 26(b)(1) & 30(b)(6)).
allows for the filing of a motion to compel discovery
responses. See Fed. R. Civ. P. 37(a)(3)(B). Rule 37
requires that a motion to compel discovery “include a
certification that the movant has in good faith conferred or
attempted to confer with the person or party failing to make
disclosure or discovery in an effort to obtain it without
court action.” Id. (a)(1). Similarly, Local
Civil Rule 7.1(c), E.D. N.C. requires that “[c]ounsel
must also certify that there has been a good faith effort to
resolve discovery disputes prior to the filing of any
discovery motions.” Local Civ. R. 7.1(c) (E.D. N.C. );
see Jones v. Broadwell, No. 5:10-CT-3223-FL, 2013 WL
1909985, at *1 (E.D. N.C. 8 May 2013) (denying motion to
compel which did not state that party complied with Rule
37(a) or Local Civil Rule 7.1(c)).
addition, Rule 37 requires that the moving party be awarded
expenses when a motion to compel discovery is granted except
when the movant filed the motion without attempting in good
faith beforehand to obtain the discovery without court
intervention, the opposing party's opposition to the
discovery was substantially justified, or other circumstances
would make an award of expenses unjust. Fed.R.Civ.P.
37(a)(5)(A). If a motion to compel is denied, expenses must
be awarded to the person opposing the motion except when the
motion was substantially justified or other circumstances
would make an award of expenses unjust. Id.
(a)(5)(B). If a motion to compel is allowed in part and
denied in part, the court may apportion the expenses for the
motion. Id. (a)(5)(C).
PLAINTIFF'S MOTIONS TO COMPEL
Written Discovery Requests
information and documents sought by the interrogatories and
production requests in dispute can be divided into three
broad categories: (1) the incident itself and investigation
of it (Interrs. Nos. 1, 2, 6, 9, 10, 11, and 12; Prod. Reqs.
Nos. 2, 3, 4, and 5); (2) Wal-Mart's policies and
procedures regarding stacking of merchandise (Interr. No. 3;
Prod. Req. No. 1); and (3) other claims arising from
merchandise stacking incidents (Interr. Nos. 4, 5, and 8).
The court will address each area in turn. The court's
analysis reflects its determination that Wal-Mart has waived
all objections not asserted in its responses to
plaintiff's discovery requests. See Fed. R. Civ.
P. 33(b)(4); Frontier-Kemper Constructors, 246
F.R.D. at 528; Drexel Heritage Furnishings, Inc.,
200 F.R.D. at 258.
The Incident Itself and Investigation of It (Interrs. Nos. 1,
2, 6, 9, 10, 11, and 12; Prod. Reqs. Nos. 2, 3, 4, and
Interrogatory No. 1
No. 1 seeks identifying information for all Wal-Mart
employees who were working in the store at the time of the
incident. Wal-Mart objects on grounds that the
interrogatory seeks to discover information protected from
disclosure by the attorney-client privilege and work-product
objection based on the attorney-client privilege and
work-product doctrine is unfounded. In order for the
attorney-client privilege to be applicable, the following
criteria must be met: “(1) the asserted holder of the
privilege is or sought to become a client; (2) the person to
whom the communication was made (a) is a member of a bar of a
court, or his subordinate and (b) in connection with this
communication is acting as a lawyer; (3) the communication
relates to a fact of which the attorney was informed (a) by
his client (b) without the presence of strangers (c) for the
purposes of securing primarily either (i) an opinion on law
or (ii) legal services or (iii) assistance in some legal
proceeding, and not (d) for the purpose of committing a crime
or tort; and (4) the privilege has been (a) claimed and (b)
not waived by the client.” United States v.
Jones, 696 F.2d 1069, 1072 (4th Cir. 1982). The burden
is on Wal-Mart as the party asserting the privilege to
demonstrate that it is applicable. See In re N.C. Swine
Farm Nuisance Litig., No. 5:15-CV-13-BR, 2017 WL
2313470, at *1 (E.D. N.C. 26 May 2017) (“A party
asserting privilege has the burden of demonstrating its
applicability.” (citing Jones, 696 F.2d at
1072)). It must do so ‘“specifically and
factually.'” Neuberger Berman Real Estate
Income Fund, Inc. v. Lola Brown Tr., 230 F.R.D.
398, 409 (D. Md. 2005) (quoting Byrnes v. Jetnet
Corp., 111 F.R.D. 68, 71 (M.D. N.C. 1986)); see also
Williams v. Corelogic Rental Prop. Sols., LLC, No. CV PX
16-58, 2016 WL 6277675, at *4 (D. Md. 26 Oct. 2016).
from the attorney-client privilege, the work-product doctrine
belongs to the attorney and confers a qualified privilege on
documents prepared by an attorney in anticipation of
litigation.'” Allen v. TV One, LLC, No. CV
DKC 15-1960, 2016 WL 7157420, at *6 (D. Md. 8 Dec. 2016)
(quoting Solis v. Food Emp'rs Labor Relations
Ass'n, 644 F.3d 221, 231-32 (4th Cir. 2011)). An
attorney's work product must be created because of
litigation and not in the ordinary course of business in
order to qualify for this protection. RLI Ins. Co. v.
Conseco, Inc., 477 F.Supp.2d 741, 746 (E.D. Va. 2007).
As with the attorney-client privilege, the burden is on the
party claiming work-product protection-here, Wal-Mart-to
demonstrate its applicability. Allen, 2016 WL
7157420, at *6. Mere boilerplate assertions of privilege are
insufficient to establish applicability. See Hall v.
Sullivan, 231 F.R.D. 468, 470 (D. Md. 2005) (holding
that an objection that conclusorily asserts the
“attorney work product doctrine” is a
“classic boilerplate objection[ ] of the type that
ha[s] been condemned by courts . . . and promote[s] disputes
between counsel that require court resolution”).
Wal-Mart has not explained how the identity of the employees
working on the day of the incident could be subject to the
attorney-client privilege or work-product doctrine, as is its
burden. Facts underlying a claim are not protected from
disclosure merely because they were communicated to an
attorney. See Upjohn Co. v. United States, 449 U.S.
383, 395 (1981) (“The privilege only protects
disclosure of communications; it does not protect disclosure
of the underlying facts by those who communicated with the
attorney.”). Indeed, the notion that such protection
would apply to protect from disclosure to plaintiff the names
of potential witnesses would gut the fact-finding principles
envisioned by the discovery process.
also objects on grounds that the interrogatory is overbroad
and seeks information not calculated to lead to discovery of
admissible evidence. Again, the court disagrees. The identity
of store employees present at the time of the incident is a
defined set of individuals and as potential witnesses to the
incident, is relevant for purposes of Rule 26.
Wal-Mart states that without waiving the objections, it will
identify “the following individuals who may have had
contact with the plaintiff after the subject incident”
and then provides only the name of the store assistant
manager. Interr. No. 1 Resp. Wal-Mart's answer is not
responsive to the interrogatory. The interrogatory seeks the
identity of all employees working at the time of the incident
and not simply the individuals “who may have had
contact with plaintiff after the subject incident.”
first motion is therefore allowed as to Interrogatory No. 1.
Wal-Mart shall serve on plaintiff by 12 April 2018 a
supplemental answer to this interrogatory
“[i]dentify[ing] all employees of [store #2929] who
were working at the store on March 18, 2013 at the time of
[the incident].” Interr. No. 1.
Wal-Mart contends that it is unable to answer this
interrogatory fully, it shall state in its supplemental
answer that after reasonable inquiry it has determined that
not all the requested information is available to it, and the
reasons why, including the steps it has taken to obtain the
missing information. See, e.g.,
Fed.R.Civ.P. 26(g)(1)(B), 33(b)(1)(B), (3); Machinery
Solutions, Inc. v. Doosan Infracore Am. Corp., No.
3:15-CV-03447-JMC, 2018 WL 368724, at *6 (D.S.C. 11 Jan.
2018) (holding that court could not compel a party to provide
information sought by interrogatory it does not possess).
Wal-Mart shall not assert any objections in its supplemental
Interrogatories Nos. 2 and 11; Production Requests Nos. 2 and
No. 2 seeks the identification of all Wal-Mart employees or
agents who were involved in the investigation of the
incident. Interrogatory No. 11 seeks the
identification of any person involved in any way in the
investigation. Production Requests Nos. 2 and 4 seek
Wal-Mart's claim file relating to plaintiff's
complaint and the investigation file of the incident,
objects to both interrogatories and both production requests
on attorney-client privilege and work-product doctrine
grounds. While certainly an investigation conducted in the
context of litigation may potentially be subject to
protection, any investigation of the incident in the normal
course of Wal-Mart's business would not be subject to the
same protection. For example, a claim file kept by an
insurance company often does not qualify for work-product
protection; however, if there is a reasonable threat of
litigation, the information gathered thereafter “might
be said to be acquired in anticipation of litigation.”
Pete Rinaldi's Fast Foods v. Great American
Ins., 123 F.R.D. 198, 204 (M.D. N.C. 1988); see also
Spilker v. Medtronic, Inc., No. 4:13-CV-76-H, 2015 WL
1643258, at *7 (E.D. N.C. 13 Apr 2015) (noting that
“any documents created in the ordinary course of
business rather than for litigation purposes are not subject
to work-product protection”); Kidwiler v.
Progressive Paloverde Ins. Co., 192 F.R.D. 536, 544
(N.D. W.Va. 2000) (“A document created in the ordinary
course of business is not created under the anticipation of
litigation and, ...