Kalit v. Target Corp.
Kalit v. Target Corp.
2019 WL 13081556 (M.D. Fla. 2019)
September 24, 2019
Richardson, Monte C., United States Magistrate Judge
Summary
The Court granted the Motion to Compel Deposition, Motion for Extension, and Motion to Compel Discovery, allowing the deposition of Defendant's corporate representative and the extension of the discovery deadline. This ruling is important for the preservation of ESI as it allows Plaintiff to obtain information regarding the store video, the store surveillance system, and the policies and procedures relating to retaining the store video showing the incident.
ANGELA KALIT, Plaintiff,
v.
TARGET CORPORATION, Defendant
v.
TARGET CORPORATION, Defendant
CASE NO. 3:18-cv-1101-J-34MCR
United States District Court, M.D. Florida
Signed September 24, 2019
Counsel
Ashley Brooke Winstead, Morgan & Morgan, PA, Jacksonville, FL, Eric Randolph Andeer, Morgan & Morgan, PA, St. Augustine, FL, for Plaintiff.William T. Stone, Saalfield & Shad Law Firm, Jacksonville, FL, for Defendant.
Richardson, Monte C., United States Magistrate Judge
ORDER
*1 THIS CAUSE is before the Court on Plaintiff's Motion to Compel Corporate Representative Deposition Testimony (“Motion to Compel Deposition”) (Doc. 38), Plaintiff's Opposed Motion to Extend Discovery Period (“Motion for Extension”) (Doc. 39), Plaintiff's Motion to Compel Discovery (Doc. 40), and Defendant's Consolidated Response to Plaintiff's Discovery Motions Filed July 23 and July 24, 2019 (“Consolidated Response”) (Doc. 43).
This case arises out of a slip and fall incident involving Plaintiff, which occurred on June 4, 2017 at a Target store located in Jacksonville, Florida. On October 17, 2018, the Court entered a Case Management and Scheduling Order, setting, inter alia, a discovery deadline of June 3, 2019. (Doc. 11.) On April 22, 2019, on Plaintiff's motion, the Court extended the discovery deadline to July 24, 2019. (Doc. 34.)
I. The Parties’ Positions
A. Plaintiff's Motion to Compel Deposition
At issue in Plaintiff's Motion to Compel Deposition is the requested deposition of Defendant's corporate representative pursuant to Rule 30(b)(6), Fed.R.Civ.P. (Doc. 38.) In the proposed notice of deposition duces tecum, Plaintiff lists no less than 46 areas of inquiry and 20 categories of items to be brought to the deposition. (Id. at 10-14.) Plaintiff first contacted defense counsel regarding this deposition on July 8, 2019. (Id. at 3.) On July 11, 2019, defense counsel objected, arguing that the deposition notice was “overly broad and harassing” and that there was “insufficient time” to produce a corporate representative. (Id. at 3, 16-17.) Defense counsel added: “You have already deposed several Target team members, former team members and virtually all the information you seek has already been provided to you through these depositions.” (Id. at 16-17.) The same day, Plaintiff's counsel sent the following response:
I am willing to discuss the areas of inquiry with you so that we can work to resolve this without the need for court intervention. Although I have deposed other Target employees that by no means prevents me from deposing a corporate representative to speak on behalf of the company.
(Id. at 19.)
On July 17, 2019, defense counsel confirmed that he was “objecting to the production of the corporate representative [for a] deposition entirely,” which he viewed as “harassing and unnecessary” in light of his belief that Plaintiff had “developed a great deal of information already from numerous Target employees, or former employees.” (Id. at 22.) Defense counsel added: “The discovery deadline concerns me here as well. You could have obviously deposed a corporate representative many, many months ago rather than waiting until the eleventh hour to request this.” (Id.)
On July 23, 2019, only a day before the discovery deadline, Plaintiff filed her Motion to Compel Deposition, in which she argues that she is entitled to take the deposition of Defendant's corporate representative because Plaintiff has not exceeded the maximum number of depositions allowed under Rule 30(a)(2)(A)(i), Fed.R.Civ.P., and because “the discovery of this testimony is relevant to what the corporation knew or should have known at the time of the fall in addition to the reasons why 24 hours of in store video requested by the Plaintiff within 5 days of the fall was not properly preserved.” (Id. at 2.)
*2 On July 30, 2019, before responding to Plaintiff's Motion, defense counsel emailed a letter to Plaintiff's counsel, stating in relevant part:
You have indicated you are willing to pare down the areas of inquiry substantially. At your earliest convenience, please tell me how you would pare down the corporate representative deposition, as this may affect how we respond, and if the scope of the deposition is reasonably focused, we may agree. Please also address the duces tecum aspect as well, which previously was quite expansive, sought work product, etc.
(Doc. 43-2.) Plaintiff's counsel apparently did not respond to this letter.
On August 5, 2019, Defendant filed its Consolidated Response, stating that “the additional discovery [that] Plaintiff now seeks could and should have been done many months ago.” (Doc. 43 at 2.) Defendant argues that the deposition notice for its corporate representative is “both onerous and burdensome” because it was sent to Defendant for the first time on July 8, 2019, or just 16 days before the discovery deadline. (Id. at 3.) Defendant further argues that many of the 46 deposition topics are broad and vague, others are irrelevant, and still others seek testimony on subjects protected by the work product doctrine. (Id.) Defendant also argues that by including 20 categories of items for production at the deposition, Plaintiff is essentially trying “to circumvent the 30 days of time to respond to a Request to Produce” just days before the discovery deadline. (Id. at 4.) Defendant adds: “Target Corporation, as an entity, would have no knowledge of the fall. While its employees have some knowledge (there were no witnesses), they have been deposed.” (Id. at 2.) Nevertheless, Defendant has determined that “there is a local individual who could be produced as a corporate representative to testify about certain topics if they are narrowly framed regarding the store video retained in this matter (already produced), the store surveillance system in general, and policies and procedures relating to retaining store video showing a customer incident.” (Id. at 4 (emphasis in original).)
B. Plaintiff's Motion for Extension
On July 23, 2019, Plaintiff also filed her Motion for Extension of the discovery deadline until September 13, 2019 for the purpose of deposing “the previously disclosed treating physicians and expert witnesses for both sides and Defendant's corporate representative.” (Doc. 39 at 3.) Plaintiff's Motion provides:
Here, the parties are actively engag[ed] in litigating the case. The parties have exchanged and responded to written discovery, Plaintiff has attended [a] deposition and Plaintiff's Compulsory Medical Examination has been completed. Plaintiff's counsel has deposed Target employees and Defense counsel has deposed Plaintiff's expert engineer. However, due to circumstances that were unforeseen at the time of the filing of the case management report, the parties need additional time to complete discovery. There is no prejudice to either party if the motion is granted.
(Id. at 2-3.)
Defendant responds in relevant part:
It should be noted that the attorneys have remained flexible as to certain expert depositions. This was done, in large part, due to difficulties with scheduling. Some of these depositions have now been completed, and others are scheduled through the general cooperation among the parties. Defendant continues to object to Plaintiff's use of a “life care planning” expert, which Defendant never agreed to.
*3 ...
There is simply no reason why Plaintiff waited until 16 days before the discovery deadline to embark on deposing a corporate representative. Second, the particular Motion refers to “experts and treating physicians.” Again, Defendant has never agreed to Plaintiff's untimely disclosure of a life care planing expert and continues to object to the use of this expert entirely.
(Doc. 43 at 4, 5.)
C. Plaintiff's Motion to Compel Discovery[1]
On July 24, 2019, the last day of the discovery period, Plaintiff filed her Motion to Compel under Rule 37, Fed.R.Civ.P., pertaining to her Fifth Request for Production, which sought “any and all documentation, catalogs, written materials, or similar documentation setting forth the defendants [sic] policy and procedure for curing, viewing, and retaining video footage or evidence of incidents involving customers suffering injury on defendants [sic] premises, captured on video tape.” (Doc. 40 at 1-2.) Plaintiff argues that:
The documentation requested is relevant to a potential spoliation issue in this case. Specifically, here we have only been provided with 29 seconds of video related to the fall. The Plaintiff sent a letter on June 9, 2017 (5 days after the fall) requesting that twenty-four (24) hours of video prior to the fall inside the store be saved as evidence in this case. Based on the evidence to date, the video was not preserved and the only video that was is the 29 seconds that has been produced. Consequently, the requested documentation in Plaintiff's Fifth Request for Production is relevant to show the procedures that were supposed to be followed by Target employees when saving video following a customer incident.
(Id. at 2-3.)
Defendant responds that Plaintiff's letter of June 9, 2017 is far broader and more burdensome than Plaintiff suggests, because:
The letter actually seeks preservation of “all video surveillance of the premises for twenty four hours before and twenty four hours after the incident.” Thus this would require preservation of 48 hours of video, from all cameras both inside and outside the store (over 80 cameras), when Ms. Kalit was probably only in the store a total of 30 minutes, or certainly no more than one hour.
(Doc. 43 at 3 (citing Doc. 43-1).) Further, Defendant points out that Plaintiff's Fifth Request for Production was overly broad as drafted, because it did not include a time frame, which Plaintiff subsequently[2] narrowed down to procedures that were in effect on the day of the incident. (Doc. 43 at 5.) In addition, Defendant states:
Counsel [for Plaintiff] ignores the fact that there is no video of the fall. The 29-second video clip only shows the Plaintiff turning down the aisle where she later falls. Her body is blocked from view entirely by shelving displays. Her feet are not depicted, the floor cannot be seen, and how she falls cannot be seen. The only thing shown, on close inspection, is the top of the Plaintiff's head ... as she moves down the aisle. There was no other video as Defendant has consistently stated in prior discovery in this case. The policy and procedure that relates to retaining video which depicts a fall is simply not relevant here. The 29-second video clip already produced does not show the fall, or even the floor in the area of the fall.
*4 (Id.)
II. Discussion
Considering the parties’ representations, the Court will allow the deposition of Defendant's corporate representative to proceed, but only as to topics regarding the store video that has already been produced, the store surveillance system in general, and the policies and procedures relating to retaining the store video showing the incident. Plaintiff shall revise the areas of inquiry and the duces tecum portion of the notice of deposition accordingly. Also, the focused deposition of Defendant's corporate representative would allow Plaintiff to obtain the information sought in her Fifth Request for Production to the extent it has been narrowed down to the procedures in effect on the day of the incident.
As such, there is good cause for a limited extension of the discovery deadline until October 11, 2019 for the purpose of deposing Defendant's corporate representative and any previously disclosed treating physicians and expert witnesses (except a life care planing expert). Defendant seems agreeable to such an extension and it does not appear that the extension will affect any of the remaining deadlines in this case. Therefore, the parties should not assume that further extensions will be allowed.
Accordingly, it is ORDERED:
The Motion to Compel Deposition (Doc. 38) and the Motion to Compel Discovery (Doc. 40) are GRANTED to the extent stated herein.[3] The Motion for Extension (Doc. 39) is granted to the extent the discovery deadline is extended until October 11, 2019 for the purpose of deposing Defendant's corporate representative and any previously disclosed treating physicians and expert witnesses (except a life care planing expert). All other terms and deadlines in the Case Management and Scheduling Order (Doc. 11), as amended, shall remain intact.
DONE AND ORDERED at Jacksonville, Florida, on September 24, 2019.
Footnotes
Although Plaintiff's Motion states that Exhibit A is attached thereto, no exhibits have been attached to the Motion filed with the Court.
Plaintiff did so on July 22, 2019, just two days before the discovery cutoff, after Defendant objected to the request on this basis.
The Court denies Plaintiff's request for an award of reasonable expenses, including attorneys’ fees, in connection with her discovery motions under Rule 37(a)(5), Fed.R.Civ.P.