Rivard-Pedigo v. Okemo Limited Liability Company

Filing 32

RULING granting 26 Motion to Compel Discovery Compliance. Signed by Judge Holly B. Fitzsimmons on 12/4/17. (Esposito, A.)

UNITED STATES DISTRICT COURT
DISTRICT OF CONNECTICUT
:
STAVIE RIVARD-PEDIGO
:
:
v.
: Civ. No. 3:17CV00568 (WWE)
:
OKEMO LIMITED LIABILITY
:
COMPANY d/b/a OKEMO MOUNTAIN :
RESORT
:
:
:
RULING ON MOTION TO COMPEL DISCOVERY COMPLIANCE
Plaintiff brings this action against Okemo Limited
Liability Company d/b/a Okemo Mountain Resort (“Okemo”). She
alleges that on February 20, 2017, the defendant’s agent,
servant, apparent agent and/or employee, Curtis Ficklin, was
negligent and reckless when he collided with her while she was
an invitee skiing at the defendant’s ski facility, causing her
injuries. Mr. Ficklin is not a party to this action.
Defendant denies that Curtis Ficklin was an on-duty
employee of defendant and, as such, defendant denies any and all
claims of vicarious liability, negligence, recklessness and/or
other wrongdoing. Defendant further contends that plaintiff
assumed the inherent dangers of skiing, 12 Vt. Stat. Ann. §1037,
and that she was negligent in that she failed to: (1) be aware
of her surroundings; (2) maintain control of her equipment; (3)
ski in a reasonable and prudent manner; and (4) ski within the
bounds of her ability. [Doc. #19 at 3].
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STANDARD OF LAW
Rule 26(b)(1) of the Federal Rules of Civil Procedure
outlines the scope of discovery. Under the Rule, 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.” Relevance involves a consideration of “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.”
Fed. R. Civ. P. 26(b)(1). Even when a request seeks relevant
matter, the court can limit such discovery when “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.” Fed. R. Civ. P. 26(b)(2)(C). See
During v. City Univ. of New York, No. 05 CIV. 6992(RCC), 2006 WL
2192843, at *4 (S.D.N.Y. Aug. 1, 2006) (“Even if the information
sought is relevant, courts have the authority to forbid or to
alter discovery that is unduly burdensome.”).
DISCUSSION
Plaintiff seeks an order compelling Okemo to respond to
plaintiff’s request for Production No. 8, and produce a copy of
Curtis Ficklin’s employment file. Mr. Ficklin was provided with
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notice pursuant to Vt. Stat. Ann. tit. 12, §1691a that plaintiff
was seeking a copy of his employment file. [Doc. #27-4, Ex. D
(appending a copy of the statute to the letter)).
Defendant first objects to the production of Ficklin’s
employment file on the basis of Conn. Gen. Stat. §31-128f(2) and
Vt. Stat. Ann. tit. 12, §1691a. However, Conn. Gen. Stat. §31128f permits disclosure pursuant to a lawfully issued judicial
order which plaintiff is seeking through this motion. See Ruran
v. Beth El Temple of West Hartford, Inc., 226 F.R.D. 165, (D.
Conn. 2005)(issuing an order of production upon a showing that
the requested employee files were relevant). Under Vermont law,
plaintiff’s counsel provided notice on August 25, 2017, to Mr.
Ficklin that his employment records were sought in this
litigation. Under §1691a(f), he had “20 days after service of
the notice to respond to the request” which would be “filed with
the court” with a “copy of the response ... served on the
requesting party.” Vt. Stat. Ann. tit. 12, §1691a(f). Mr.
Ficklin filed no objection with the Court. Defendant does not
assert that the notice was defective or that Mr. Ficklin has
asserted an objection to the production of his employment
records. See Turner v. Vermont Ctr. for the Deaf & Hard of
Hearing, Inc., Case no. 2:02-CV-251, 2003 U.S. Lexis 20552, at
*16 (D. Vt. Oct. 1, 2003)(“Turner’s complaint was filed in this
court, pursuant to the federal Rules of Civil Procedure, not in
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Vermont state court pursuant to the Vermont Rules of Civil
Procedure. The Magistrate’s conclusion that Rule 26, and not the
procedural requirements of §1691a, govern discovery of the
personal files is not clearly erroneous, nor contrary to law.”).
Defendant next argues that plaintiff’s request is “overly
broad and seeks information irrelevant to the subject matter of
the litigation.” [Doc. #30 at 5]. Plaintiff argues that “Mr.
Ficklin’s actions and relationship with the defendant both on
the day of the collision at issue, and since the start of his
employment” are highly relevant to her claims [Doc. #27 at 2].
She contends that Ficklin’s employment file “is directly
relevant to issues of agency/vicarious liability, his propensity
to ski in a reckless manner, and the defendant’s knowledge of
same.” Id. The Court agrees. As the objecting party, Okemo
“bears the burden of showing why discovery should be denied.”
Kimbro v. I.C. System, Inc., No. 3:01CV1676 (DJS)(TPS), 2002
WL1816820, at *1 (D. Conn. July 22, 2002); Ruran, 226 F.R.D. at
169 (finding that the objecting party “bears the burden of
demonstrating ... that the request is not relevant.”)(emphasis
in original). Defendant has not sustained its burden.
finds that the employment
+ file is relevant to plaintiff’s claims.

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The Court

CONCLUSION
For the reasons stated, plaintiff’s Motion to Compel
Discovery Compliance [Doc. #27] is GRANTED. Defendant will
provide a copy of Curtis Ficklin’s employee file, subject
to a protective order, within ten (10) days.
This is not a recommended ruling. This is a nondispositive
ruling and order which is reviewable pursuant to the “clearly
erroneous” statutory standard of review. 28 U.S.C.
§636(b)(1)(A); Fed. R. Civ. P. 72(a); and D. Conn. L. Civ. R.
72.2. As such, it is an order of the Court unless reversed or
modified by the district judge upon motion timely made.
SO ORDERED at Bridgeport this 4th day of December 2017.
/s/ ___
_____________
HOLLY B. FITZSIMMONS
UNITED STATES MAGISTRATE JUDGE

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