Moxley v. Winn-Dixie Montgomery, LLC et al
MEMORANDUM OPINION AND ORDER that: The motion to compel responses to request for production 23 related to certain disciplinary records of Winn Dixie's employees, and request for production 18 related to Moxley's time clock records limi ted to 2010 and 2011 be and are hereby DENIED as moot; The motion to compel Winn Dixie to produce the personnel files of Richard Tornow and Bryan Howard be and is hereby GRANTED, subject to the entry of a protective order; The motion to compel a re sponse to request for production 24, video surveillance footage, be and is hereby DENIED as further set out; The motion to compel an inspection of Winn Dixie store 451 be and is hereby GRANTED as further set out; The defendant shall produce to the plaintiff a diagram of the store as further set out. Signed by Honorable Judge Charles S. Coody on 1/15/2014. (Attachments: # 1 Civil Appeals Checklist)(jg, )
IN THE UNITED STATES DISTRICT COURT
FOR THE MIDDLE DISTRICT OF ALABAMA
WINN DIXIE MONTGOMERY, LLC,
CIVIL ACT. NO. 2:12cv457-MEF
MEMORANDUM OPINION and ORDER
Plaintiff Angela Moxley (“Moxley”) brings this action pursuant to Title VII of the
Civil Rights Act of 1964, as amended, 42 U.S.C. § 2000e et seq., against her former
employer, Winn Dixie Montgomery, LLC, alleging that she was sexually harassed by codefendant Richard Tornow, and terminated in retaliation for filing a charge of discrimination
with the Equal Employment Opportunity Commission (“EEOC”). Now pending before the
court is the plaintiff’s motion to compel (doc. # 46) filed on December 2, 2013. The court
held oral argument on the motion on January 14, 2014. For the reasons which follow, the
motion is due to be granted in part and denied in part.
The plaintiff seeks to compel the defendant to produce responses to four requests for
production. Request for Production 23 seeks personnel files of “certain current and former
Winn-Dixie employees.” (Doc. # 46 at 3). Request for Production 18 asks for “all time
records showing [Plaintiff’s] clock-in, clock-out time.” (Id. at 5) (alteration in the original).
Request for Production 24 seeks “all video surveillance footage created and/or recorded by
Winn-Dixie’s video surveillance system during the periods of July 7, 2011 through July 20,
2011.” (Id. at 7). In Request 25, pursuant to FED.R.CIV.P. 34(a)(2), Moxley seeks entry to
Winn-Dixie store 451 to inspect and photograph areas relevant to her claims. (Id. at 9-10).
Defendant Winn Dixie opposed the plaintiff’s requests as “overbroad, unduly burdensome,
seek[ing] irrelevant documents and private information concerning non-party employees.”
(Doc. # 49).
Prior to oral argument on the motion to compel, the parties resolved Request 23
related to personnel files of Winn Dixie’s employees, and Request 18 related to Moxley’s
time clock records. The defendant agrees to produce certain disciplinary records of its
employees and specific time clock records of Moxley’s limited to 2010 and 2011.
Consequently, the motion to compel regarding these requests will be denied as moot. Winn
Dixie also agrees to produce the personnel files of Richard Tornow and Bryan Howard
pursuant to a protective order.1 The motion to compel the production of Tornow and
Howard’s personnel files will be granted subject to the entry of a protective order. The
parties were unable to reach an agreement regarding the video surveillance and the inspection
of the Winn Dixie store at issue.
It became clear at oral argument that the dispute regarding the video surveillance
stems from a disagreement about the existence of a 34 minute video clip allegedly viewed
by Winn Dixie’s corporate representative. Counsel for Winn Dixie represented to the court
The parties are DIRECTED to file a motion for a protective order with the proposed protective
order attached no later than January 24, 2014.
that this videotape does not exist and that Winn Dixie has produced all video surveillance in
its possession.2 The defendant cannot produce something that does not exist. The motion
to compel the production of video surveillance will be denied.
Finally, the plaintiff seeks to inspect and photograph Winn Dixie store 451. The
defendant objects because, according to Winn Dixie, an inspection that includes
photographing areas will be disruptive to its employees and customers. The court will
exercise its authority to control discovery, see Josendis v. Wall to Wall Residence Repairs,
Inc., 662 F.3d 1292, 1307 (11th Cir. 2011), and will permit the plaintiff to inspect and
photograph the following areas to include the immediate surrounding areas of the time clock,
the plaintiff’s office, the break room and any areas where the alleged sexual harassment took
place. The defendant agrees to provide the plaintiff with a diagram of the store that includes
the location of all video cameras pursuant to the entry of a protective order. Accordingly,
ORDERED as follows that:
The motion to compel responses to request for production 23 related to certain
disciplinary records of Winn Dixie’s employees, and request for production 18 related to
Moxley’s time clock records limited to 2010 and 2011 be and are hereby DENIED as moot.
The motion to compel Winn Dixie to produce the personnel files of Richard
Tornow and Bryan Howard be and is hereby GRANTED, subject to the entry of a protective
At oral argument, the court reminded counsel of her obligation to formally reply to the
The motion to compel a response to request for production 24, video
surveillance footage, be and is hereby DENIED as counsel for the defendant represented to
the court that all existing video surveillance footage has been produced to the plaintiff.
The motion to compel an inspection of Winn Dixie store 451 be and is hereby
GRANTED to the extent that, at a reasonable time convenient to the defendant, the plaintiff
may enter the store to inspect and photograph the following areas to include the immediate
surrounding areas of the time clock, the plaintiff’s office, the break room and any areas
where the alleged sexual harassment took place.
The defendant shall produce to the plaintiff a diagram of the store that includes
the location of all video cameras within fourteen (14) days of the entry of a protective order.
Done this 15th day of January 2014.
/s/Charles S. Coody
CHARLES S. COODY
UNITED STATES MAGISTRATE JUDGE
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