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Cain v. Wal-Mart Stores, Inc.

United States District Court, E.D. North Carolina, Western Division

March 22, 2018

JOHN ARCHIE CAIN, Plaintiff,
v.
WAL-MART STORES, INC.; WAL-MART STORES EAST, LP; and WAL-MART ASSOCIATES, INC., Defendants.

          ORDER

          James E. Gates, Judge

         This 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”[1]) 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.

         Because 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.

         I. BACKGROUND

         This 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.

         In his 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).

         Pursuant 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.

         On 1 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).[2] Despite numerous requests by plaintiff that Wal-Mart reconsider its objections, Wal-Mart stands by them. Pl.'s 1st Mot. 4.

         Also in September of 2016, plaintiff provided Wal-Mart with a proposed Rule 30(b)(6) notice (D.E. 17-2).[3] By letter dated 27 April 2017 (D.E. 17-3), [4] Wal-Mart served notice of its objections to the Rule 30(b)(6) notice.

         On 26 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, respectively.[5]

         On 12 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, 24)[6] 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).

         II. APPLICABLE LEGAL PRINCIPLES

         The 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).

         The 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))).

         Rule 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 parties:

(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).

         Rule 33 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).[7] 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).

         Rule 34 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).

         When a 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 id.

         The 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)).

         Rule 37 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)).

         In 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).

         III. PLAINTIFF'S MOTIONS TO COMPEL

         A. Written Discovery Requests

         The 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.

         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)

         a. Interrogatory No. 1

         Interrogatory No. 1 seeks identifying information for all Wal-Mart employees who were working in the store at the time of the incident.[8] Wal-Mart objects on grounds that the interrogatory seeks to discover information protected from disclosure by the attorney-client privilege and work-product doctrine.

         Wal-Mart's 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).

         ‘“Distinct 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”).

         Here, 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.

         Wal-Mart 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.

         Finally, 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.” Id.

         Plaintiff's 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.[9]

         If 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 answer.

         b. Interrogatories Nos. 2 and 11; Production Requests Nos. 2 and 4

         Interrogatory No. 2 seeks the identification of all Wal-Mart employees or agents who were involved in the investigation of the incident.[10] Interrogatory No. 11 seeks the identification of any person involved in any way in the investigation.[11] Production Requests Nos. 2 and 4 seek Wal-Mart's claim file relating to plaintiff's complaint and the investigation file of the incident, respectively.[12]

         Wal-Mart 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, ...


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