Ortega-Guzman v. Sam's East, Inc.
Ortega-Guzman v. Sam's East, Inc.
2018 WL 11395931 (S.D. Fla. 2018)
January 19, 2018

Zloch Sr., William J.,  United States District Judge

30(b)(6) corporate designee
Protective Order
Proportionality
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Summary
The Court denied the Motion for Protective Order as to item 1 of Plaintiff's Notice, which requested policies and procedures relating to inclement weather guidelines. However, the Court granted the Motion as to items 2-5, finding that the production requested was too broad and irrelevant to the needs of the case. The Court also placed the documents requested under the protective order.
Additional Decisions
FABIOLA ORTEGA-GUZMAN, Plaintiff,
v.
SAM'S EAST, INC., d/b/a/SAM'S CLUB, Defendant
CASE NO. 16-81977-CIV-ZLOCH
United States District Court, S.D. Florida
Entered on FLSD Docket January 19, 2018

Counsel

Lee Gill Cohen, Colby Phillip Connell, Kanner & Pintaluga, P.A., Boca Raton, FL, Joseph M. Abdallah, Kanner and Pintaluga PA, Delray Beach, FL, for Plaintiff.
Annalisa Gutierrez, Suzette Luisa Russomanno, William Edwards, Jerry Dean Hamilton, Hamilton, Miller & Birthisel LLP, Gilda M. Chavez, Miami, FL, for Defendant.
Zloch Sr., William J., United States District Judge

ORDER

*1 THIS MATTER is before the Court upon Defendants’ Motion For Protective Order (DE 120). The Court has carefully reviewed said Motion, the entire court file and is otherwise fully advised in the premises.

 

By the instant Motion (DE 120), Defendants seek a protective order with respect to Plaintiff's Notice Of Taking Videotaped Deposition Duces Tecum (DE 120-1)(hereinafter “Notice”).

 

By Plaintiff's Notice, she requests that Defendant produce a witness with knowledge of policies and procedures concerning the following:

 

(1) “inclement weather”;

 

(2) “slip, trip and falls, towel in pocket, safety sweeps, monitoring the font-end and vestibule, cleaning spills and removing any potential hazards, spill absorbent program, non-hazardous spill cleanup, clean vestibule, customer/member incidents, customer accident investigation, and customer incident claims process;” and

 

(3) “distribution of ready-made foods for sale prepared by Sam's Club for in-store distribution, including, but not limited to, its distribution, packaging, placement and transportation by customers. Items 4 and 5 are the same as 3, as applied to “hot foods” and “rotisserie chicken” respectively.

 

Defendant objects to Plaintiff's Notice and by the instant Motion (DE 120) requests a protective order shielding it from Plaintiff's demands. The Court notes that the party seeking a protective order must show good cause for the order to issue. Fed. R. Civ. P. (26)(c)(1).

 

Defendant makes a general objection that there is no need for an additional Rule 30(b)(6) deposition because Plaintiff has already been provided with sufficient testimony and other evidence and opportunities to obtain the same, and a further Rule 30(b)(6) deposition would be unreasonably cumulative and would cause undue expense and annoyance. A party is not precluded from seeking by a 30(b)(6) deposition information that has already been provided by other means. See Bertrang v. Wis. Cent., Ltd., 301 F.R.D. 364, 367 (D. Minn. 2014); La. Pac. Corp. v. Money Mkt. 1 Institutional Inv. Dealer, 285 F.R.D. 481, 486-87 (N.D. Cal. 2012)(stating that testimony obtained from other witnesses is not a substitute for testimony from a Rule 30(b)(6) witness); Fed. Deposit Ins. Corp. v. Hutchins, NO. 1:11-CV-1622, 2013 WL 12109446, at *3 (N.D. Ga. 2013)(explaining that the production of documents and responses to written discovery are not substitutes for a 30(b)(6) deposition). Defendant's objection is properly applied to any items in the Notice that repeat what was sought in the 30(b)(6) deposition of Sharon Brown. See Bondhus v. Provident Life & Accident Ins. Co.,No. 08-20538-CIV, 2008 WL 11331762, at *1 (S.D. Fla. Sept. 17, 2008)(granting a motion for a protective order in favor of plaintiff where defendant sought a second 30(b)(6) deposition concerning the same matters as the first). However, the Notice at issue concerns subjects that are entirely different from those covered by the Brown deposition. Defendant's general objections do not provide good cause to issue a protective order.

 

*2 As to item 1 on Plaintiff's Notice, regarding policies and procedures relating to inclement weather guidelines, Defendant objects that this information is irrelevant. By her Fourth Motion To Compel Discovery (DE 119), Plaintiff requested documents containing Defendant's policies and procedures regarding inclement weather. By Order (DE 152), the Court compelled the production of the inclement weather guidelines and for the same reasons it will not grant the instant Motion (DE 120) as to inclement weather policies and procedures.

 

Defendant makes specific objections to part of item 2 on Plaintiff's Notice. Defendant objects that policies and procedures relating to “customer/member incidents, customer accident investigation, and customer incident claims process,” concern post-incident processes and are thus irrelevant to the question of whether or not the Defendant's employees had notice of a slippery substance on the floor before Plaintiff slipped on it. The Court does not find that these policies and procedures are relevant and proportional to the needs of the case, and finds that Defendant has provided good cause to have them excluded by a protective order. See Fed. R. Civ. P. 26(b)(1). However, Defendant has not provided good cause as to why a protective order should prevent discovery on the rest of item 2.

 

Defendant objects that the requests in items 3-5 are irrelevant, overbroad, unduly burdensome, and not proportional to the needs of the case. Plaintiff argues that policies and procedures relating to food at Defendant's store is relevant to the food leakage that is alleged to have caused Plaintiff's fall. Though some connection exists between leaking food and the vast trove of information that Plaintiff requests, the Court finds that the production requested in items 3-5 of Plaintiff's Notice is so broad as to be irrelevant and not proportional to the needs of the case. See Fed. R. Civ. P. 26(b)(1). The court grants the instant Motion (DE 120) as to items 3-5 of Plaintiff's Notice.

 

The Court's analysis of the policies and procedures named in Plaintiff's Notice applies to Plaintiff's request for the production of related documents. Those documents requested pursuant to items falling under the protective order are also placed under the protective order.

 

Pursuant to Fed. R. Civ. P. 37(a)(5)(C), if a motion for a protective order is granted in part and denied in part, the Court is not required to apportion reasonable expenses for the motion. The Court will not apportion expenses for the instant Motion (DE 120).

 

Accordingly, after due consideration, it is

 

ORDERED AND ADJUDGED that Defendant's Motion For Protective Order (DE 120) be and the same is GRANTED in part and DENIED in part as provided herein such that Defendant must provide a corporate representative with knowledge of those items in Plaintiff's Notice that are not protected as provided herein, along with related documents, at a deposition to be taken on or before Wednesday, January 31, 2018.

 

DONE AND ORDERED in Chambers at Fort Lauderdale, Broward County, Florida, this 19th day of January, 2018.