*1 Chief Judge Greg N. Stivers referred this matter to U.S. Magistrate Judge Lanny King for resolution of all litigation planning issues, entry of scheduling orders, consideration of amendments thereto, and resolution of all non-dispositive matters, including discovery issues. [DN 5]. On March 23, 2020, Chief Judge Stivers recused and reassigned this matter to Judge Rebecca Grady Jennings. [DN 23].

On February 19, 2020, Plaintiffs’ counsel contacted the Court regarding a possible discovery dispute. In response, the Court held a telephonic status conference on February 26, 2020, with counsel for all parties in attendance. [DN 20]. Based on conversations with counsel at that time, the Court entered its February 26, 2020, Order, which granted Plaintiffs leave to file a motion to compel the production of incident reports from Defendants BJ's Restaurants, Inc. and BJ's Restaurant Operations Company. [DN 21].

Plaintiffs have now filed their Motion to Compel. [DN 22]. Defendants BJ's Restaurants, Inc. and BJ's Restaurant Operations Company (collectively “the BJ's Defendants”) have responded in objection. [DN 24]. Plaintiffs then replied. [DN 25]. The Motion to Compel is fully briefed and ripe for adjudication.

For the reasons set forth herein, Plaintiffs’ Motion to Compel, [DN 22], is GRANTED.

This premises liability case arises from a slip and fall incident at a BJ's restaurant in Louisville, Kentucky.

On September 4, 2018, Plaintiff Sandra Bobalik was in Louisville visiting family and friends. [DN 22 at 112]. That day, Mrs. Bobalik and her friend, Linda Savage, went to the BJ's Restaurant & Brewhouse at 7900 Shelbyville Road, Louisville, Kentucky, for lunch. [DN 1-1, DN 22]. As they were being led to a booth, Mrs. Bobablik fell and was injured. [DN 22]. Plaintiffs allege that Mrs. Bobalik's fall and subsequent injury was caused by the floor being slippery or slick at the time of the subject incident. Id.

As a result of this incident, Mrs. Bobalik brought negligence claims against Defendants BJ's Restaurants, Inc., BJ's Restaurant Operations Company, and Central Cleaning, LLC. Mrs. Bobalik's husband, Joseph Bobalik, asserted loss of consortium claims against all three defendants. [DN 1-1 at 9-18]. As part of these claims, Plaintiffs are seeking punitive damages, arguing that “BJ's longstanding knowledge of the floors being slick, greasy, and/or wet, their less than adequate safety measures despite this knowledge, and the high frequency of the falls all go towards the likelihood of a patron falling and being injured.” [DN 22 at 117]

The BJ's Defendants have asserted cross-claims against Central Cleaning, LLC, the cleaning company used at this BJ's location, for indemnity, apportionment, and contribution. [DN 1-1 at 48-52].

Plaintiffs then sent the BJ's Defendants written discovery requests that, inter alia, sought incident reports for incidents occurring at the subject BJ's restaurant from 2009 through present. [DN 22 at 115]. The BJ's Defendants objected, arguing that the Request is overbroad, unduly burdensome, and seeks information not reasonably calculated to lead to the discovery of admissible evidence. Id. at 115.

*2 The parties have attempted to resolve this discovery dispute extrajudicially, with no success. Id. at 115-116. As a result, Plaintiffs now bring this instant Motion to Compel seeking to compel the production of the requested incident reports, but now self-limiting their request to only incident reports from January 2014 through present that involve slip and falls on the wooden floors of the dining area. Id.

The BJ's Defendants object to this Motion to Compel, arguing that production of incident reports should be limited to one year prior to the subject incident, and further request that any documents the BJ's Defendants are ordered to produce be subject to certain confidentiality terms. [DN 24].

Defendant Central Cleaning, LLC, opted not to participate in the briefing on this Motion.

As Plaintiffs have demonstrated that the requested incident reports are relevant to various parties’ claims and defenses and are, therefore, within the scope of discovery, Plaintiffs’ Motion to Compel is granted.

Federal Rule of Civil Procedure 26(b)(1) specifically sets out the scope of discovery:

This scope of discovery is to be “construed broadly to encompass any matter that bears on, or that reasonably could lead to other matters that could bear on” any party's claim or defense. Oppenheimer Fund, Inc. v. Sanders, 437 U.S. 340, 351 (1978). The Court has broad discretion in dealing with discovery disputes and the scope of discovery requests. S.S. v. E. Ky. Univ., 532 F.3d 445, 451 (6th Cir. 2008).

Here, the issue currently before the Court is not whether Plaintiffs are entitled to any of the BJ's Defendants’ incident reports. BJ's agrees to producing one year's worth of such reports subject to confidentiality provisions. [DN 24]. The parties agree that any incident reports produced should be limited to reports from the BJ's restaurant where the subject incident occurred and, specifically, to incidents that occurred on the wooden floor of its dining area. Where there is disagreement, however, is the timespan for incident reports beyond the one year prior to the subject incident. The BJ's Defendants contend that any such reports should be limited to one year prior to the subject incident. [DN 24]. Plaintiffs’ Motion asks the Court to compel such incident reports from January 2014 through the present. [DN 22].

Plaintiffs specifically seek incident reports prior to the subject incident because they are relevant to prove the presence of a dangerous condition, the Defendants’ knowledge of such a condition, and causation. Id. Plaintiffs contend the incident reports would also be useful in assessing punitive damages, looking at such factors as the likelihood of an incident and whether the Defendants were aware of same. Id. Plaintiffs specifically seeks records from January 2014 on because that is the date that Defendant Central Cleaning LLC began cleaning the floors at the subject BJ's restaurant. Id. Finally, Plaintiffs seek incident reports after the subject incident because those records could show or suggest remedial actions Defendants could have taken that may have prevented Mrs. Bobalik's incident. Id.

*3 In arguing that it should only be required to produce incident reports created within a one-year period prior to the subject incident, the BJ's Defendants discussed the admissibility of such documents. [DN 24]. Admissibility, however, cannot be conflated with discoverability. They are not synonymous terms. In fact, Rule 26 specifically states that information within the scope of discovery “need not be admissible in evidence to be discoverable.” FED.R.CIV.P. 26(b)(1). Instead, it must be asked whether the information and documents sought are related to the claims of any party.

The BJ's Defendants do address the issue of relatedness, arguing that records older than one year would not be related because the condition of the floor more than a year prior to that incident would not be similar to the condition of the floor at the time of the subject incident. This is because the floor in the dining room was refinished or replaced in August 2018, shortly before the subject incident, and because the cleaning solution used by Defendant Central Cleaning, LLC, was changed in 2017. [DN 24]. In fact, according to the BJ's Defendants’ Response, one of its managers noted two weeks after Plaintiff's fall that “slip trips and falls better since floor rework in dining room.” [DN 24 at 164 (internal quotations omitted)].

Even if it is proven that the wood floors were replaced or refinished in the area where Mrs. Bobalik allegedly fell and even if it is proven that the cleaning solution was changed, the incident reports are still relevant. In evaluating whether something is relevant, the analysis asks not only if a document is relevant to a claim, but also whether it is relevant to the defenses to that claim. FED.R.CIV.P. 26(b)(1). If the new floors and the change in cleaner did impact the condition of the floor where Mrs. Bobalik fell, a change may be seen in the nature and frequency of incident reports prior to and subsequent to the subject incident. Restricting records to only one year prior to the subject incident would not provide sufficient information to evaluate such trends, if any exist. Plaintiffs have a right under the Federal Rules to obtain information and documents to aid in their investigation of not only their claims, but Defendants’ defenses. Accordingly, the bases of Defendants’ objection are not well taken.

Since the incident reports from 2014 through present are related to Plaintiffs’ claims and Defendants’ defenses and considering Plaintiffs have agreed to voluntarily limit their request to incident reports for incidents that occurred on the subject BJ's Restaurant's dining room's wooden floor, this Court finds that the requested documents fall within the scope of discovery and Plaintiffs are entitled to them.

Finally, the Court will briefly address the BJ's Defendants request that “they be permitted to redact customer names and contact information so as to protect [the customers’] identities, and to designate the documents as confidential so that they cannot be used in any other litigation.” [DN 24 at 170]. While the BJ's Defendants have not filed a formal motion for protective order, this request shall be treated as such.

Rule 26 of the Federal Rules of Civil Procedure affords the Court with broad discretion to grant or deny protective orders. Parker & Gamble Co. v. Banker's Trust Co., 78 F.3d 219, 227 (6th Cir. 1996). This Court, however, has increasingly scrutinized motions for protective orders that do not make the necessary showing of good cause required by the Rules of Civil Procedure and case authority. See Bussell v. Elizabethtown Independent School Dist., 3:17-cv-00605-GNS (W.D. Ky. Oct. 23, 2018) (discussing why the Court will enter the second proposed agreed protective order because it develops why a protective order is necessary) (Pacer); see also Wellmeyer v. Experian Info. Sols., 3:18-cv-94-RGJ (W.D. Ky. May 30, 2018) (Pacer); Middleton v. Selectrucks of America, LLC, 3:17-cv-602-RGJ (W.D. Ky. Sept. 21, 2018) (Pacer); Mitcham v. Intrepid U.S.A., Inc., 3:17-cv-00703-CHB (W.D. Ky. Oct. 1, 2018) (Pacer); Roberson v. KentuckyOne Health, Inc., 3:18-cv-00183-CRS-RSE (Aug. 29, 2018) (Pacer); Savidge v. Pharm-Save, Inc., 3:17-cv-000186-CHB (W.D. Ky. July 9, 2018) (Pacer); Effinger v. GLA Collection Co., 3:17-cv-000750-DJH (W.D. Ky. March 28, 2018) (Pacer); Fleming v. Barnes, 3:16-cv-264-JHM (W.D. Ky. Feb. 27, 2017) (Pacer).

*4 Under Federal Rule of Civil Procedure 26(c)(1)(G), “[t]he court may, for good cause, issue an order to protect a party or person from annoyance, embarrassment, oppression, or undue burden or expense, including ... requiring that a trade secret or other confidential research, development, or commercial information not be revealed or be revealed only in a specified way....” Good cause exists when the party moving for the protective order “articulate[s] specific facts showing ‘clearly defined and serious injury’ resulting from the discovery sought....” Nix v. Sword, 11 Fed. App'x 498, 500 (6th Cir. 2001) (citing Avirgan v. Hull, 118 F.R.D. 252, 254 (D.D.C. 1987)).

Here, the BJ's Defendants have made no effort to show there is any good cause for the entry of a protective order that would allow the BJ's Defendants to redact certain information and to designate documents as confidential. Without such a showing, the request must be denied.

For the foregoing reasons, IT IS HEREBY ORDERED:

IT IS SO ORDERED.