*1 Before the Court in the above-styled cause of action are Defendant Hobby Lobby Stores, Inc.'s Motion for Protective Order as to Certain Proposed Corporate Representative Deposition Topics, to Exclude Evidence Regarding Defendant's Post-Incident Conduct, and Exclude any Evidence Obtained by Trespass [#52] and Plaintiff's Motion for Leave to File Sur-Reply Addressing the New Arguments and Misrepresentations of Defendant Hobby Lobby Stores, Inc., Related to its Motion for Protective Order and to Exclude Evidence [#56]. The Court held a hearing on the motions on September 16, 2024, at which counsel for Plaintiff and Defendant appeared via videoconference. For the reasons that follow, the Court will grant in part and deny in part Defendant's motion for a protective order and deny Plaintiff's motion for leave to file a sur-reply.

This personal-injury action arises out of alleged injuries sustained by Plaintiff Krystan Mohlenhoff and her minor daughter while shopping at a Hobby Lobby store in New Braunfels, Texas, on December 16, 2020. Plaintiff alleges that a Hobby Lobby employee was arranging merchandise on the top shelf of the adjacent aisle and failed to barricade the aisle where she was working as well as the adjacent aisle as required by Hobby Lobby's “Top-Shelf” and “Ladder” safety policies and procedures. (Am. Compl. [#48], at ¶ 7.) The employee allegedly caused multiple unsecured heavy wooden signs, pictures, and plaques to topple over the other side of the shelf and fall and strike Plaintiff and her daughter, causing severe injuries. (Id.) Plaintiff's Amended Complaint asserts causes of action for negligence, gross negligence, and premises liability. (Id. at ¶¶ 10–26.)

By its motion for a protective order, Defendant Hobby Lobby Stores, Inc. (“Hobby Lobby”) asks the Court to limit the 18 deposition topics identified by Plaintiffs for Hobby Lobby's corporate representative deposition. The first four deposition topics concern Hobby Lobby's “Top-Shelf” and “Ladder” policies, procedures, and training videos. (Depo. Topics [#52-1], at 2.) Deposition Topics 5 and 6 concern Hobby Lobby's implementation and enforcement of those safety policies and procedures prior to the date of injury. (Id.) Deposition Topics 7 and 8 concern Hobby Lobby's implementation and enforcement of those safety policies and procedures after the date of injury. (Id.) Topics 9 and 10 concern communications by Hobby Lobby among its various stores regarding the need to enforce its safety policies and procedures after the date of injury. (Id. at 2–3.) Topics 11 and 12 address efforts made by Hobby Lobby to ensure its relevant safety policies and procedures were being enforced after the date of injury. (Id. at 3.) Finally, Topics 13 through 18 refer to photographs and videos taken after the incident at issue and address whether the ladders depicted in the photos and videos are being used in accordance with relevant safety policies and procedures. (Id.) The Court addresses each of Defendant's objections to the various categories of deposition topics in turn.

A. The parties agree to certain limitations to Deposition Topics 1 through 6, 9 and 10.

*2 Hobby Lobby's motion argues the Deposition Topics 1 through 12 are impermissibly overbroad because they are unlimited in time and geographic reach. The parties conferred on their dispute prior to the Court's hearing and were able to resolve some of Hobby Lobby's objections to the identified deposition topics. The parties agreed that the time period for Deposition Topics 1 through 6, which involve conduct preceding the accident at issue, should be limited to one year before and including the date of the incident (December 16, 2020). The parties have also agreed that the geographic reach for Topics 9 and 10 should be limited to the New Braunfels store in question.

B. The Court will limit the temporal and geographic scope of Deposition Topics 7 through 12.

Hobby Lobby's motion also argues that Plaintiff should not be permitted to question its corporate representative on any post-incident conduct because such conduct is irrelevant and inadmissible as to any of the issues remaining in this suit. The parties were unable to resolve this portion of their dispute. After considering the arguments of the parties' at the hearing, the record in this case, and the governing law, the Court will deny Hobby Lobby's request to prohibit all deposition questions about its post-incident conduct but limit any such questions to one year after the date of the incident (December 16, 2020, to December 16, 2021) and to the New Braunfels store in question.

Plaintiff may pursue discovery as to “any nonprivileged matter that is relevant to any party's claim or defense and proportional to the needs of the case.” Fed. R. Civ. P. 26(b)(1). Information within the scope of discovery “need not be admissible in evidence to be discoverable.” Id. The standard for discoverability is broader than that of admissibility. The Court must limit the frequency or extent of discovery if it determines that: “(i) the discovery sought is unreasonably cumulative or duplicative, or can be obtained from some other source that is more convenient, less burdensome, or less expensive; (ii) the party seeking discovery has had ample opportunity to obtain the information by discovery in the action; or (iii) the proposed discovery is outside the scope permitted by Rule 26(b)(1).” Fed. R. Civ. P. 26(b)(2)(C). “The court may, for good cause, issue an order to protect a party or person from annoyance, embarrassment, oppression, or undue burden or expense.” Fed. R. Civ. P. 26(c). Rule 26(c)'s “good cause” requirement indicates that the party seeking a protective order has the burden “to show the necessity of its issuance, which contemplates a particular and specific demonstration of fact as distinguished from stereotyped and conclusory statements.” In re Terra Int'l, Inc., 134 F.3d 302, 306 (5th Cir. 1998) (internal quotation and citation omitted).

The parties clarified at the Court's hearing that Hobby Lobby has stipulated to liability in this case, i.e., that its acts and omissions constituted negligence; that these acts or omissions proximately caused the incident on December 16, 2020, at the New Braunfels Hobby Lobby store; that Plaintiff and her daughter were invitees on the premises at the time of the accident, and Hobby Lobby was the possessor of the premises. (Stipulation [#32], at ¶ 1.) Hobby Lobby has further stipulated that Plaintiff and her daughter breached no legal duties owed to Hobby Lobby in the accident and has withdrawn all affirmative defenses contending Plaintiff and her daughter were contributorily negligent. (Id. at ¶ 2.) Hobby Lobby does dispute, however, the cause, nature, and extent of Plaintiff's alleged injuries and damages. (Id. at ¶ 3.) In other words, Hobby Lobby agrees its employee violated safety policies and procedures and caused multiple canvasses to fall and strike Plaintiff and her daughter while shopping, but Hobby Lobby contests the extent of the injuries caused by the incident and the damages to which Plaintiff and her daughter are entitled. (Id. at ¶¶ 1–3.) Hobby Lobby also disputes that it was grossly negligent, i.e., that it acted with conscious indifference to an extreme degree of risk. Based on Hobby Lobby's stipulation, the only issues remaining for trial relate to damages and whether Plaintiff can prove that Hobby Lobby was grossly negligent such that Plaintiff is entitled to exemplary damages. Hobby Lobby argues that its post-incident conduct is irrelevant and admissible as to these remaining issues.

*3 Plaintiff responds that Hobby Lobby's post-incident conduct as to the implementation and enforcement of its “Top Shelf” and “Ladder” safety policies is discoverable because it is relevant to Hobby Lobby's conscious indifference to its own or its employee's grossly negligent conduct, among other issues. Plaintiff asserts that Hobby Lobby's “still-ongoing” post-incident disregard for its own policies and procedures evidences conscious indifference to an extreme degree of risk. As to Hobby Lobby's alleged gross negligence and the recovery of exemplary damages, Plaintiff must demonstrate that Hobby Lobby had actual, subjective awareness of an extreme degree of risk but nevertheless proceeded “in conscious indifference to the rights, safety, and welfare of others.” Boerjan v. Rodriguez, 436 S.W.3d 307, 311 (Tex. 2014) (internal citation and quotation omitted). Here, Plaintiff alleges that Hobby Lobby knew of the risks to shoppers when its employees stocked high shelves yet failed to monitor and enforce safety policies regarding the use of ladders, barricades, and aisle clearance and failed to supervise and train employees on safety protocols. (Am. Compl. [#48], at ¶¶ 22–23.)

Hobby Lobby argues that its post-incident conduct is not relevant to the allegations of gross negligence because post-incident conduct cannot be used to prove proximate causation. See Williams v. Steves Indus., Inc., 678 S.W.2d 205, 211–12 (Tex. App.—Austin 1984), writ granted (Feb. 6, 1985), aff'd, 699 S.W.2d 570 (Tex. 1985) (“Any act occurring subsequent to the accident could not be a proximate cause of the accident.”). The Court does not dispute this general principle or that Plaintiff cannot use evidence of post-incident conduct to prove that Hobby Lobby's failure to train or to enforce safety policies proximately caused the accident in question. But Hobby Lobby has already stipulated to liability and causation. Plaintiff is not attempting to discover post-incident conduct to prove that the failure to train or implement safety policies caused the accident in question. Rather, Plaintiff is arguing that Hobby Lobby's failure to implement its safety policies even after the accident at issue is probative of whether Hobby Lobby had the requisite state of mind—conscious indifference—to justify the imposition of exemplary damages.

The Court agrees that Plaintiff can conduct discovery relevant to Hobby Lobby's state of mind. Federal Rule of Evidence 404(b) provides that evidence of bad character or other crimes, wrongs, or acts may be admissible to prove motive, opportunity, intent, preparation, plan, knowledge, identity, absence of mistake, or lack of accident but may not be used to prove a person's character and conformity with that character on the particular occasion in question.

No matter the testimony of Hobby Lobby's corporate representative, post-incident conduct will not be admissible at trial to prove that Hobby Lobby's negligence was the proximate cause of Plaintiff's injury. And the corporate representative may ultimately testify during the deposition in a way that does not generate any evidence relevant to whether Hobby Lobby acted with conscious indifference. But the fact that that testimony elicited during the corporate representative deposition regarding Hobby Lobby's post-incident conduct may ultimately not be admissible at trial does not mean that it is not discoverable now. Plaintiff may therefore question Hobby Lobby on its implementation and enforcement of its safety policies and procedures both before and after the incident in question because this discovery is relevant to the question of whether Hobby Lobby has a pattern and practice of consciously disregarding safety issues at its stores. The Court will, however, temporally limit these questions to one year after the accident (December 16, 2020, to December 16, 2021) and will limit the questions to the New Braunfels location to ensure the discovery is proportional to the issues remaining in this suit.

To reiterate: This ruling is not to be construed as a finding as to the admissibility of evidence of post-incident conduct. Hobby Lobby's concerns about the proper scope of use of any evidence of post-incident conduct may be addressed with the District Court in a motion in limine prior to trial, through trial objections, and through requests for limiting instructions.

C. The Court will permit Plaintiff to question Hobby Lobby about the photographs and videos referenced in Deposition Topics 13 through 18.

*4 Hobby Lobby's motion also argues that Plaintiff should be prohibited from asking any Deposition questions pertaining to the post-incident photographs and videos referenced in Deposition Topics 13 through 18. These photos depict ladders placed throughout aisles in the store without the use of a barricade to protect shoppers from falling items, falling employees, or falling ladders and were taken by Plaintiff's husband, Todd Mohlenhoff, after the incident in question. Deposition Topics 13 through 18 address whether the various ladders depicted in the photographs and videos are being used in accordance with Hobby Lobby's policies and procedures. For the same reasons Hobby Lobby objects to the post-incident questions posed in Topics 7 through 12, Hobby Lobby also objects to Topics 13 through 18: post-incident conduct is not relevant. Hobby Lobby also argues the Court should order that the photos and videos be excluded from evidence because the photos were improperly obtained by trespass.

As to the trespass argument, Hobby Lobby contends that Plaintiff's husband, Todd Mohlenhoff, committed the intentional tort of trespass to obtain the photos and therefore the discovery should be excluded. In support of this argument, Hobby Lobby cites a Texas case involving a cause of action of trespass based on mass demonstrations inside a Wal-Mart store by union members. See United Food & Com. Workers Int'l Union v. Wal-Mart Stores, Inc., 430 S.W.3d 508 (Tex. App.—Fort Worth 2014). The court held that Wal-Mart had alleged a prima facie case of trespass against the union because the demonstrators ceased to be invitee shoppers when they used Wal-Mart as “a venture for their own purposes.” Id. at 513. Hobby Lobby argues Mr. Mohlenhoff ceased to be an invitee on Hobby Lobby property for a lawful purpose when he took photographs “to gain some perceived lawsuit advantage.” The Court declines to entertain this argument. If Hobby Lobby believes Plaintiff has engaged in discovery abuse warranting the imposition of sanctions, it may file a motion for sanctions. But until that time, Hobby Lobby has not cited any authority holding that a party's failure to consent to photos or video requires the exclusion of such evidence as a discovery sanction or otherwise.

The Court will also deny Hobby Lobby's request to prohibit questions regarding the photographs and videos taken after the incident in question. Deposition Topics 13 through 18 indicate that the corporate representative of Hobby Lobby will be asked to explain whether the ladders depicted in the photographs and videos are being used in accordance with Hobby Lobby's safety policies and procedures alleged to have been violated in this case. For the reasons explained in more detail above, Plaintiff may question the corporate representative on this topic because Hobby Lobby's failure to implement its safety policies after the accident is potentially probative of Hobby Lobby's pattern of conscious indifference to safety violations and alleged gross negligence.

D. The Court will deny Plaintiff's motion for leave to file a sur-reply.

Plaintiff seeks leave to file a sur-reply, arguing that Hobby Lobby's reply raises numerous new arguments to which a response is warranted. The Court will deny the motion. Sur-replies are “heavily disfavored,” and this Court has sounds discretion to deny additional briefing. Warrior Energy Servs. Corp. v. ATP Titan M/V, 551 Fed. App'x 749, 751 n.2 (5th Cir. 2014) (per curiam) (internal quotation and citation omitted). Arguments raised for the first time in a reply brief are generally waived, which reduces the need for a sur-reply. Jones v. Cain, 600 F.3d 527, 541 (5th Cir. 2010). Moreover, this Court grants leave to file a sur-reply only in extraordinary circumstances and upon a showing of good cause. Mission Toxicology, LLC v. Unitedhealthcare Ins. Co., 499 F. Supp. 3d 350, 360 (W.D. Tex. 2020). Good cause and extraordinary circumstances have not been demonstrated here. Plaintiff has not identified any new arguments in Hobby Lobby's reply but rather argues Hobby Lobby mischaracterizes several actions of Plaintiff and mischaracterizes the holdings of various cases. The various legal issues and positions of the parties have been adequately briefed (and communicated at the Court's hearing), and the Court is capable of independently determining whether the parties' have accurately represented the import of the cases cited in their filings.

*5 IT IS THEREFORE ORDERED that Plaintiff's Motion for Leave to File Sur-Reply Addressing the New Arguments and Misrepresentations of Defendant Hobby Lobby Stores, Inc., Related to its Motion for Protective Order and to Exclude Evidence [#56] is DENIED.

IT IS FURTHER ORDERED that Defendant Hobby Lobby Stores, Inc.'s Motion for Protective Order as to Certain Proposed Corporate Representative Deposition Topics, to Exclude Evidence Regarding Defendant's Post-Incident Conduct, and Exclude any Evidence Obtained by Trespass [#52] is GRANTED IN PART as follows:

IT IS FINALLY ORDERED that in all other respects Defendant's Motion [#52] is DENIED.

SIGNED this 26th day of September, 2024.