Trella v. Wal-Mart Stores, Inc. et al

Filing 91

ORDER denying 87 Motion for Protective Order. See attached order for details. Signed by Judge Sarah A. L. Merriam on 11/7/2017. (Gust, L.)

UNITED STATES DISTRICT COURT
DISTRICT OF CONNECTICUT
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:
WENDY TRELLA
:
:
v.
:
:
WAL-MART STORES, INC., et al. :
:
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Civ. No. 3:15CV01211(AWT)

November 7, 2017

ORDER RE: MOTION FOR PROTECTIVE ORDER
On November 3, 2017, Dr. Stephen A. Eige filed a Motion for
Protective Order, seeking an order delaying his deposition until
after the resolution of two motions to remand to state court.
[Doc. #87]. Defendants/Third Party Plaintiffs Wal-Mart Stores,
Inc., Wal-Mart Associates, Inc., Wal-Mart Stores East, Inc., and
Wal-Mart Stores East I, L.P. (collectively, “Wal-Mart”) have
filed an objection to Dr. Eige’s Motion for Protective Order, and
Dr. Eige filed a reply. For the reasons set forth below, the
Court DENIES Dr. Eige’s Motion for Protective Order.
Plaintiff filed this action on July 23, 2015, in Connecticut
Superior Court, alleging that she was injured in an accident at a
Wal-Mart store. See Doc. #1 at 2.1 On August 11, 2015, Wal-Mart
removed the case to the United States District Court for the
District of Connecticut. Id. at 4.

References to page numbers of documents in the docket refer to
the documents’ ECF page numbers.
1

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On June 6, 2016, Wal-Mart filed a Third Party Complaint
against Middlesex Health System, Inc., d/b/a Middlesex Hospital
(“Middlesex Hospital”) alleging that on the date of the alleged
accident at the Wal-Mart store, plaintiff fell off a hospital bed
or gurney while receiving care at Middlesex Hospital. See Doc.
#21 at 2. Wal-Mart alleges that Middlesex Hospital’s negligence
caused or contributed to plaintiff’s injuries, and requests that
Middlesex Hospital be held proportionally liable for any damages
awarded to plaintiff. See id. at 3–4.
Middlesex Hospital and plaintiff have both filed motions to
remand to state court, which remain pending. See Doc. ##64, 67.
Plaintiff has also filed a medical malpractice claim against
multiple defendants, including Middlesex Hospital and Dr. Eige,
in Connecticut Superior Court. See Doc. #87 at 1.
In July 2017, Wal-Mart noticed the depositions of fact
witnesses to the alleged fall at Middlesex Hospital, including
Dr. Eige. See Doc. #80 at 2. Wal-Mart initially noticed Dr.
Eige’s deposition on July 5, 2017, for a deposition to occur on
September 6, 2017. Id. At the request of counsel for Middlesex
Hospital, and based on representations by counsel for Dr. Eige
that he was unavailable, the September 6, 2017, deposition was
postponed. See id. at 22–23. Counsel for Wal-Mart sent e-mails
seeking other potential deposition dates on September 1, 18, and
27, 2017. Id. at 2-3.
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On October 11, 2017, Wal-Mart re-noticed the deposition of
Dr. Eige for Thursday, November 9, 2017. See Doc. #79 at 5. On
that same date, Wal-Mart also filed a Motion to Compel Dr. Eige’s
deposition. See id. On November 2, 2017, having received no
objection to Wal-Mart’s motion, the Court granted Wal-Mart’s
Motion to Compel Dr. Eige’s deposition. See Doc. #86. On November
3, 2017, Dr. Eige filed, for the first time, a Motion for
Protective Order.
I.

LEGAL STANDARD
Rule 26(b)(1) of the Federal Rules of Civil Procedure sets

forth the scope and limitations of permissible discovery:
Parties may obtain discovery regarding any nonprivileged
matter that is relevant to any party’s claim or defense
and proportional to the needs of the case, considering
the importance of the issues at stake in the action, the
amount in controversy, the parties’ relative access to
relevant information, the parties’ resources, the
importance of the discovery in resolving the issues, and
whether the burden or expense of the proposed discovery
outweighs its likely benefit. Information within this
scope of discovery need not be admissible in evidence to
be discoverable.
Fed. R. Civ. P. 26(b)(1). “[T]he scope of discovery under Fed. R.
Civ. P. 26(b) is very broad, ‘encompass[ing] any matter that
bears on, or that reasonably could lead to other matter that
could bear on, any issue that is or may be in the case.’” Maresco
v. Evans Chemetics, Div. of W.R. Grace & Co., 964 F.2d 106, 114
(2d Cir. 1992) (quoting Oppenheimer Fund, Inc. v. Sanders, 437
U.S. 340, 351, (1978)). “The party resisting discovery bears the
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burden of showing why discovery should be denied.” Cole v. Towers
Perrin Forster & Crosby, 256 F.R.D. 79, 80 (D. Conn. 2009).
Pursuant to Rule 26(c) of the Federal Rules of Civil
Procedure, “[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[.]” Fed. R. Civ. P.
26(c)(1). “Rule 26(c) confers broad discretion on the trial court
to decide when a protective order is appropriate and what degree
of protection is required.” Seattle Times Co. v. Rhinehart, 467
U.S. 20, 36 (1984). “That said, a court may issue a protective
order only after the moving party demonstrates good cause.”
Joseph L. v. Conn. Dept of Children & Families, 225 F.R.D. 400,
402 (D. Conn. 2005); see also Dove v. Atl. Capital Corp., 963
F.2d 15, 19 (2d Cir. 1992).
“To establish good cause under Rule 26(c), courts require a
particular and specific demonstration of fact, as distinguished
from stereotyped and conclusory statements.” Jerolimo v.
Physicians for Women, P.C., 238 F.R.D. 354, 356 (D. Conn. 2006)
(internal quotation marks and citations omitted). Good cause
exists when allowing the discovery sought will result in a
“clearly defined and serious injury to the party seeking the
protective order.” Bernstein v. Mafcote, Inc., 43 F. Supp. 3d
109, 113 (D. Conn. 2014)(internal quotation marks and citations
omitted). “Broad allegations of harm, unsubstantiated by specific
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examples or articulated reasoning, are insufficient for a good
cause showing.” Id. (internal quotation marks and citations
omitted).
Rule 26(c)(1) requires any motion for protective order to
“include a certification that the movant has in good faith
conferred or attempted to confer with other affected parties in
an effort to resolve the dispute without court action.” Fed. R.
Civ. P. 26(c)(1). The Local Rules for the District of Connecticut
further require:
[C]ounsel making a discovery motion shall file with the
Court, as a part of the motion papers, an affidavit
certifying that he or she has conferred with counsel for
the opposing party in an effort in good faith to resolve
by agreement the issues raised by the motion without the
intervention of the Court, and has been unable to reach
such an agreement.
D. Conn. L. Civ. R. 37(a).
II.

DISCUSSION
a. Failure to Comply with the Rules of Civil Procedure
Dr. Eige’s Motion for Protective Order does not certify that

his counsel has in good faith conferred or attempted to confer
with other affected parties in an effort to resolve the dispute
without court action, as required by Federal Rule 26(c)(1). No
affidavit is provided certifying that counsel has discussed the
discovery issues in a good faith effort to resolve the issue
without the intervention of the Court, as required by Local Rule
37(a).
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Failure to comply with the procedural requirements of
Federal Rule 26(c)(1) and Local Rule 37(a) is sufficient grounds
to deny a motion for protective order. See, e.g., John Wiley &
Sons, Inc. v. Doe Nos. 1-30, 284 F.R.D. 185, 192 n.9 (S.D.N.Y.
2012)(holding that when a movant has not included a certification
of a good faith effort to confer, the movant “does not meet the
procedural prerequisites to obtain a protective order under Rule
26[]”). “A party may seek the assistance of the Court to resolve
a discovery dispute only after he has complied with the
provisions of Rule 37(a) of the Local Rules of Civil Procedure
for the District of Connecticut.” Stiggle v. Arnone, No.
3:13CV00238(JAM), 2014 WL 4230919, at *5 (D. Conn. Aug. 26,
2014). “As the [movant] has not complied with the Local Rules,
the motion [for protective order] is DENIED.” Rosenbaum v. Farr,
No. 3:11CV1994(AVC)(TPS), 2013 WL 6860102, at *1 (D. Conn. Dec.
30, 2013).
The Court further notes that Dr. Eige waited until six days
before the deposition to seek relief. Dr. Eige has been aware
that this deposition was being sought since July 2017. The
current deposition date was noticed almost four weeks ago. A
motion to compel the deposition was filed, but Dr. Eige did not
oppose it. Dr Eige did not file a Motion for Protective Order
until November 3, 2017, after the Court issued its Order
compelling his deposition. Given the Court’s broad discretion
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over protective orders, this conduct is also sufficient to deny
the motion. See Dove, 963 F.2d 19 (“The grant and nature of
protection is singularly within the discretion of the district
court[.]”(internal quotation marks and citations omitted)).
b. Good Cause
Even if Dr. Eige had complied with the Federal and Local
rules, and if he had filed this motion in a more timely fashion,
the motion would be denied on the merits.
Dr. Eige bears the burden of establishing good cause for
issuance of a protective order. Dr. Eige makes three arguments in
support of his motion: (1) That waiting for a decision on the
motions to remand may prevent the need for a second deposition in
the state court malpractice case; (2) that his deposition is not
relevant to this case; and (3) that requiring his deposition in
this matter will prejudice his defense in state court. Dr. Eige
provides no citations to any rules or case law to support his
position.
As to his argument that delaying his deposition may prevent
the need for a second deposition, Dr. Eige does not detail what
additional expenses he will face, or how a second deposition
would create an undue burden. Dr. Eige cites no authority to
support the proposition that discovery in federal court should be
postponed because of a separate, later-filed state court action.

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As to relevance, Wal-Mart has filed a Third Party Complaint
in this matter against Middlesex Hospital based on the alleged
incident at Middlesex Hospital. Wal-Mart alleges that Dr. Eige
witnessed that event, and his testimony thus is relevant to the
claims of Wal-Mart’s Third Party Complaint. See Fed. R. Evid. 401
(Evidence is relevant if “it has any tendency to make a fact more
or less probable than it would be without the evidence.”).
Finally, as to the possibility of prejudice in state court,
Dr. Eige provides only “[b]road allegations of harm,
unsubstantiated by specific examples or articulated reasoning[.]”
Bernstein, 43 F. Supp. 3d at 113; see Doc. #87 at 2. As such, Dr.
Eige has not shown good cause for the issuance of a protective
order.
c. Relief Sought
Finally, the Court notes that Dr. Eige seeks various forms
of relief. In his Motion for Protective Order, Dr. Eige seeks an
order delaying his deposition, or in the alternative an order
“limiting inquiry of Dr. Eige at said deposition only as to his
knowledge of plaintiff’s claims for damages in the case at bar.”
Doc. #87 at 2. The motion does not propose clear parameters for
such a limitation. This is precisely the sort of matter that the
meet and confer requirements are meant to address. Without a more
particularized request for relief, and absent any assertion that

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Dr. Eige sought this relief from Wal-Mart’s counsel before
seeking Court intervention, the request is DENIED.
In Dr. Eige’s reply to Wal-Mart’s objection, he raises, for
the first time, two additional requests for relief. He seeks to
change the date, time, and location of his deposition, and to be
compensated for his time at the rate of $750 an hour. Because
these issues are raised for the first time in Dr. Eige’s reply,
the Court declines to consider them. See Corpes v. Walsh Constr.
Co., 130 F. Supp. 3d 638, 644 (D. Conn. 2015).2
III. Conclusion
For the reasons set forth herein, the Motion for Protective
Order [Doc. #87] is DENIED. Dr. Eige shall appear for the dulynoticed deposition on Thursday, November 9, 2017.
Dr. Eige is hereby advised that the Federal Rules of Civil
Procedure provide: “If the court where the discovery is taken
orders a deponent to be sworn or to answer a question and the
deponent fails to obey, the failure may be treated as contempt of
The demand for payment of $750 an hour is not appropriate, even
if it had been raised properly. Federal law sets the compensation
payable to fact witnesses: “A witness shall be paid an attendance
fee of $40 per day for each day’s attendance.” 28 U.S.C.
§1821(b). A treating doctor subpoenaed to testify as a fact
witness, who has not been disclosed as an expert witness under
Rule 26(a)(2), is entitled only to the statutory witness fee.
See, e.g., In re Am. Med. Sys., Inc. Pelvic Repair Sys. Prod.
Liab. Litig., MDL No. 2325, 2017 WL 1090029, at *2 (S.D.W. Va.
Mar. 21, 2017) (collecting cases standing for this proposition);
Garneau v. Paquin, No. 3:13CV00899(AVC), 2015 WL 3466833, at *3
(D. Conn. June 1, 2015) (concluding that a treating physician “is
a lay witness and is entitled only to” the $40 per diem).
2

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court.” Fed. R. Civ. P. 37(b)(1). Other sanctions are also
available. See Fed. R. Civ. P. 37(b)(2).
This is an order regarding discovery which is reviewable
pursuant to the “clearly erroneous” statutory standard of review.
See 28 U.S.C. §636(b)(1)(A); Fed. R. Civ. P. 72(a); and D. Conn.
L. Civ. R. 72.2. It is an order of the Court unless reversed or
modified by the District Judge upon motion timely made.
SO ORDERED at New Haven, Connecticut, this 7th day of
November, 2017.
/s/
HON. SARAH A. L. MERRIAM
UNITED STATES MAGISTRATE JUDGE

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