Contino et al v. Winn-Dixie Stores, Inc. et al

Filing 40

ORDER granting in part and denying in part 28 Motion to Compel Discovery; granting 29 Joint Motion for Extension of Time to Complete Discovery. Signed by Magistrate Judge R. Stan Baker on 5/12/2015. (ca)

IN THE UNITED STATES DISTRICT COURT
FOR THE SOUTHERN DISTRICT OF GEORGIA
BRUNSWICK DIVISION

MEGAN CONTINO and BRIAN CONTINO,
Plaintiffs,

CIVIL ACTION NO.: CV214-146

v.
WINN-DIXIE STORES, INC. ,
Defendant.

ORDER
Presently before the Court are Plaintiff Brian Contino’s Motion to Compel Discovery
(Doc. 28), to which Defendant has filed a Response (Doc. 30), and the parties’ Joint Motion for
Extension of Time to Complete Discovery (Doc. 29). The Court held a hearing on these Motions
on April 29, 2015. (Doc. 33.) For the reasons stated on the record at the hearing and as
supplemented below, Plaintiff’s Motion to Compel Discovery is GRANTED in part and
DENIED in part (Doc. 28), and the parties’ Joint Motion for Extension of Time to Complete
Discovery is GRANTED (Doc. 29).
I.

Motion to Compel Discovery (Doc. 28)
In his Motion to Compel Discovery, Plaintiff Brian Contino contends that Defendant has

failed to respond, in whole or in part, to certain portions of Plaintiff’s First Request for
Production of Documents and First Interrogatories. (Doc. 28, pp. 1–2.) In particular, Plaintiff
maintains that Defendant has refused to produce documents or things in approximately thirteen
areas and has provided incomplete answers to four interrogatories. (Id. at pp. 2, 4.) Plaintiff
asks that the Court order Defendant to disclose the items and information requested and, as to
any matter withheld on the basis of privilege, provide a copy to the Court for in camera review

and a privilege log to Plaintiff. (Id. at p. 32.) Defendant’s Response urges the Court to deny
Plaintiff’s Motion, because each of the discovery requests is improper in form and/or substance.
(See generally Doc. 30.)
At the hearing, the Court listed fourteen areas of discovery contentions raised by Plaintiff’s
Motion, and the parties agreed that this list encapsulated the parties’ disputes. Defendant made
specific objections in its discovery responses, and mostly stood by those objections at the
hearing. Plaintiff also largely stood by its Motion to Compel as to each issue. The Court’s
ruling on each of the areas of contention is as follows:
1. Timing of the Store Surveillance Video
As stated on the record at the hearing, the Court declines to delay the production of the
store surveillance video any further. Specifically, more than six months have passed since the
parties’ Rule 26(f) conference on October 28, 2014, and the parties have made virtually no
progress on discovery. (See Doc. 20, p. 1.) Consequently, it is too late for staged discovery, and
this portion of Plaintiff’s Motion is GRANTED. Defendant must immediately produce all store
surveillance footage from the store where the accident occurred that it has preserved from the
date of the incident. 1 See, e.g., Gardner v. Norfolk S. Corp., 299 F.R.D. 434, 439 (D.N.J. 2014)
(denying a party’s motion to delay production of a surveillance video until after taking
depositions); Cornell v. Jim Hawk Truck Trailer, Inc., 297 F.R.D. 598, 603 (N.D. Iowa 2013)
(same); Babyage.com, Inc. v. Toys "R" Us, Inc., 458 F. Supp. 2d 263, 266 (E.D. Pa. 2006)
(same); Jerolimo v. Physicians for Women, P.C., 238 F.R.D. 354, 357 (D. Conn. 2006) (same).

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At the hearing, the Defendant noted that due to the passage of time, likely only a portion of the
store surveillance video remained. Therefore, the Court need not place any additional limits on
the scope of the video production.
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2. Incident Report
Defendant’s counsel has agreed to provide a redacted copy of the incident report to
Plaintiff and to submit to the Court the redacted copy as well as a sealed, unredacted copy for in
camera inspection. As Defendant’s counsel represented at the hearing, it will redact information
that consists of work product from the copy produced to Plaintiff. For the reasons stated on the
record, Plaintiff’s Motion on this issue is GRANTED to the extent of Defendant’s counsel’s
representation and DENIED insofar as it requests an unredacted version of the report. Should
Plaintiff, upon receiving and reviewing the redacted incident report, find that it is an insufficient
response to his discovery request, it will be Plaintiff’s obligation to further raise the issue with
the Court.
3. Photographs of the Incident Scene
Defendant’s counsel has indicated a willingness to produce all photographs of the
incident scene as an addendum to the redacted incident report; therefore, this portion of
Plaintiff’s Motion is GRANTED.
4. Witness Statements
Defendant’s counsel has represented that all of Defendant’s witness statements are
contained in the incident report and that Defendant will not redact any statement that is an actual
declaration of a witness, without any mental impressions of the preparer. As a result, Plaintiff’s
Motion is GRANTED on this issue. If Plaintiff should find that Defendant has overredacted the
incident report in this regard, then Plaintiff may further raise this issue.
5. Maps/Diagrams of the Incident Scene
According to Defendant’s counsel, the incident report may include a diagram marking the
location of the incident scene within Defendant’s store. Defendant’s counsel has conceded that

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such a diagram, if it exists, will not be redacted from the incident report disclosed to Plaintiff.
As the undersigned advised at the hearing, if Defendant has any maps or diagrams of the incident
scene that are not part of the incident report, it must turn these over to Plaintiff as well. This
portion of the Plaintiff’s Motion is GRANTED.
6. Employee Information
a. Picture I.D. Cards
Defendant’s counsel has expressed uncertainty as to whether Defendant uses picture
identification cards for its employees. For the reasons stated on the record at the hearing,
Defendant must produce any identification cards containing the names and photographs of the
employees that were working in the store in question at the time of the incident—whether worn
by the employees or maintained electronically by Defendant—to the extent that these items exist.
Other identifying information, including social security numbers, should be redacted. Plaintiff’s
Motion as to employee picture identification cards is GRANTED.
b. Personnel Files
Having taken the discovery of Defendant’s employees’ personnel files under advisement
at the hearing, this issue warrants further discussion here. As a general matter, employee
personnel files are discoverable under Georgia law. DeLoitte Haskins & Sells v. Green, 370
S.E.2d 194, 195–96 (Ga. Ct. App. 1988). Nevertheless, the Court recognizes that courts are
particularly cautious about ordering the production of such files, given the sensitive personal
information contained therein. See Sanchez v. Cardon Healthcare Network, LLC, No. 3:12-cv902-J-34JBT, 2013 WL 2352142, at *2 (M.D. Fla. May 29, 2013) (collecting cases); see, e.g.,
Regan-Touhy v. Walgreen Co., 526 F.3d 641, 648–49 (10th Cir. 2008) (stating that employee
personnel files are not “categorically out-of-bounds” but that “it is not unreasonable to be

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cautious about ordering their entire contents disclosed willy-nilly”).

While courts in the

Eleventh Circuit have applied a heightened standard of relevance as a prerequisite to discovery in
this context, Georgia courts balance the competing discovery and privacy interests not by
limiting access to these materials—only a general showing of relevance is required—but by
limiting the extent of their production and by entering protective orders.

Compare Royal

Bahamian Ass’n v. QBE Ins. Corp., 268 F.R.D. 692, 694 (S.D. Fla. 2010) (requiring a showing
that employee personnel files are “[ ]relevant to the primary issues” or “directly relevant for any
other reason, such as impeachment”), and Coker v. Duke & Co., 177 F.R.D. 682, 694 (M.D. Ala.
1998) (requiring that the files be “clearly relevant” and “not available from other sources”), with
DeLoitte Haskins & Sells, 370 S.E.2d at 196 (stating that such files are relevant if they are “in
some way reasonably calculated to lead to the potential discovery of admissible evidence” and
that a court order in this context should be “protective—not prohibitive”).
Plaintiff has demonstrated that the employee personnel files requested are relevant to the
primary issue of negligence, in that the files are reasonably calculated to lead to the discovery of
evidence of employee work history admissible to show notice or knowledge of the alleged
hazard. (Doc. 28, p. 23.) At the hearing, Plaintiff’s counsel also submitted that the personnel
files are relevant for impeachment purposes.

However, Plaintiff has not established the

relevance of, and thus is not entitled to discover, portions of the personnel files containing
sensitive personal information.

Furthermore, the countervailing privacy interests of the

employees warrant limiting the extent of discovery in this regard. Consequently, Defendant shall
redact from the produced personnel files irrelevant personal information including, social
security numbers; statements of earnings, wages, and withholdings; benefits statements; and
medical history.

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The employees’ privacy interests also warrant the entry of a protective order as to these
files. “The [C]ourt 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).
Good cause exists here, based on Defendants’ and its employees’ interests in maintaining the
privacy and confidentiality of any internal disciplinary reports, performance evaluations, and
other records that may be disclosed to Plaintiff in the personnel files.
For these reasons, Plaintiff’s Motion is GRANTED in that Defendant must produce the
employee personnel files requested and DENIED in that the Court has limited the contents to be
disclosed and enters the following protections:
i.

All employee personnel files, or copies thereof, that are used or exchanged
in this litigation must be marked “CONFIDENTIAL” on the face of the
file and on each page contained therein.

ii.

The parties must treat the personnel files as confidential, only to be seen
by the parties, their attorneys, and their witnesses, upon notice of their
protected nature and only to be used for the purposes of litigating or
attempting to settle the present action.

iii.

Any document, including a transcript, that contains information from the
personnel files and that a party seeks to file with the Court must be filed
under seal, in accordance with the Local Rules of this Court.

iv.

Upon termination of this action, including the time for appeal, Plaintiffs
must return to Defendant or destroy all personnel files, and any copies
thereof, received pursuant to this Order.

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7. Reports from Prior Incidents on the Premises (November 3, 2010 – present)
The undersigned also took Plaintiff’s discovery request regarding reports from prior
incidents under advisement following the hearing. Defendant’s reports from other incidents are
subject to work-product protection for the same reasons reflected on the record as the incident
report involving Plaintiff Megan Contino. See supra Subpart I.2. However, while the workproduct doctrine protects against the discovery of the incident reports themselves, Defendant
nevertheless must provide a privilege log briefly describing the nature of the incident reports
withheld—including each incident’s date, location within the store where the incident occurred,
nature of the alleged hazard involved (i.e. water or other substance), and the employee that
prepared the incident report. See Fed. R. Civ. P. 26(b)(5)(A)(ii).
Defendant’s objection to the relevance of this request lacks merit.

Georgia courts

consider evidence of prior incidents in slip-and-fall cases. See, e.g., Food Lion, Inc. v. Walker,
660 S.E.2d 426, 429 (Ga. Ct. App. 2008) (“When a proprietor has notice of the risk of a
particular hazard, we have found that a jury question arises as to the reasonableness of a store’s
inspection procedure.”); Pickering Corp. v. Goodwin, 534 S.E.2d 518, 520 (Ga. Ct. App. 2000)
(“It is possible that, based on a prior history of such a number of similar hazardous occurrences
or other facts that would put a proprietor on notice of the likelihood of the subject incident
occurring, such fact would create a correspondingly higher duty on the proprietor to take
appropriate prophylactic measures.”); see also Briglevich v. Liberty House Rest. Corp., 626
S.E.2d 625, 626 (Ga. Ct. App. 2006) (finding no abuse of discretion where a trial court
prohibited a plaintiff from discussing previous slip-and-fall occurrences in her opening statement
but allowed her to introduce this evidence later at trial). In addition, later-occurring falls could
shed light on subsequent remedial measures, evidence of which is admissible in Georgia if the

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defendant opens the door to the issue. See Briglevich, 626 S.E.2d at 625–26 (citing Brooks v.
Cellin Mfg. Co., 306 S.E.2d 657, 659 (Ga. 1983)). While the Court is not presently ruling on the
admissibility of such evidence in this case, it is sufficient for discovery purposes that the
information requested could lead to the discovery of admissible evidence.
Defendant’s objection to breadth of this request is negated by Plaintiff’s counsel’s
modification of the request at the hearing. Plaintiff’s counsel represented at the hearing that this
request is intended to encompass only slip-and-fall incidents.

Additionally, the request is

sufficiently tailored to incidents occurring at the store in question—which, contrary to
Defendant’s argument, need not be narrowed to only the floral department—and to the time
period of November 3, 2010, through the present. (See Doc. 28, p. 24.)
Based on the foregoing, Plaintiff’s Motion is GRANTED in part and DENIED in part
as to this discovery request. Defendant must produce a privilege log disclosing the nature of the
incident reports meeting Plaintiff’s request, as amended at the hearing. Defendant need not
produce the actual incident reports.
8. Prior Complaints/Lawsuits Against Defendant (November 3, 2010 – present)
As to Plaintiff’s request regarding prior complaints and lawsuits, notwithstanding the
initial breadth of Plaintiff’s discovery request, his counsel modified this request at the hearing to
include only complaints and lawsuits arising out of slip-and-fall incidents at the store in question
during the relevant time period. For the reasons stated on the record, and based on the foregoing
discussion regarding evidence of other incidents, Plaintiff’s Motion, as amended, is GRANTED.
9. Inspection/Maintenance Reports for the Incident Site (seven days before to seven
days after the incident)
Defendant’s counsel has represented that Defendant’s procedure for regularly inspecting
and maintaining its floors and floral department does not include executing any sweep sheets,

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logs, repair reports, or other written documentation. Because it appears that these records simply
do not exist after a reasonable search, Plaintiff’s Motion as to inspection/maintenance reports for
the incident site is DENIED as moot.
10. Prior Inspection Reports for the Premises (November 3, 2010 – present)
At the hearing, Plaintiff’s counsel clarified that, his request for prior inspection reports of
the premises seeks reports of safety inspections or audits performed by outside parties, such as
governmental agencies or insurance carriers, from two years prior to the incident to the present.
Defendant’s counsel was uncertain, but could not confirm, whether any such records exist for the
floral department. For the reasons stated on the record, Plaintiff’s Motion is GRANTED.
Defendant must conduct a reasonable search to determine whether any inspection reports
responsive to Plaintiff’s request exist, and if so, Defendant must produce them to Plaintiff.
11. Policies and Manuals
Plaintiff’s counsel has limited his discovery request for policies and manuals to include
Defendant’s policies and manuals relating to inspecting the premises; preventing slip-and-fall
incidents; recording, preserving, and deleting surveillance video footage; and providing gift
cards to customers after an incident. For the reasons stated on the record, Plaintiff’s Motion, as
modified at the hearing, is GRANTED. Defendant must produce copies of any written policies
and manuals, and a written description of any spoken or understood policies that are responsive
to Plaintiff’s modified request.
12. Insurance Policy
Plaintiff’s Motion seeking the production of information regarding Defendant’s excess
insurance carrier is GRANTED for the reasons stated on the record. See Fed. R. Civ. P.
26(a)(1)(A)(iv). If Defendant has multiple levels of excess carriers, Defendant must at least

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disclose responsive information for the first level of excess coverage. If Plaintiff, after reviewing
this information, believes that the relief sought in this action may exceed the first level of excess
coverage, Plaintiff should confer with Defendant to obtain the information for the next level or
levels. As stated on the record, it is the Court’s expectation that counsel will work cooperatively
to resolve this issue.
13. Documentation of Changes to the Incident Site
Based on Defendant’s representation that there have been no substantial changes to the
floral department since Plaintiff’s incident, this portion of Plaintiff’s Motion is DENIED as
moot. Should Plaintiff’s further discovery efforts reveal relevant modifications, Plaintiff may
seek to revisit this issue.
14. Interrogatories
a. Verified Responses
Defendant’s counsel has agreed to verify Defendant’s interrogatory responses. Plaintiff’s
Motion is GRANTED.
b. Defendant’s Factual Bases for its Defenses and Defendant’s Account of the
Incident
Plaintiff’s counsel has indicated that Defendant’s production of the store surveillance
video will likely obviate the need for responses to interrogatories requesting the factual bases for
Defendant’s defenses and its account of the incident. Accordingly, Plaintiff’s Motion as to these
interrogatories is DENIED AS MOOT.
II.

Joint Motion for Extension of Time to Complete Discovery (Doc. 29)
The parties’ Joint Motion asked the Court to extend the current discovery deadline of

June 1, 2015, or, alternatively, to stay the current discovery deadline pending the Court’s ruling
on Plaintiff’s Motion to Compel Discovery. (Doc. 29, p. 1.) The parties explained that the

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discovery issues set forth in Plaintiff’s Motion, along with scheduling conflicts, prevented
compliance with the current discovery deadline. (Id. at p. 2.) The parties further submitted that
they had yet to schedule depositions of Plaintiffs and a medical examination of Plaintiff Megan
Contino. (Id. at p. 2.)
As stated at the hearing, the Court finds that much, if not all, of the delay in this case was
preventable. However, in the interests of fairness and just adjudication, the Court finds that an
extension is warranted. Therefore, for the reasons stated on the record, the parties’ joint Motion
is GRANTED. It is ordered that the discovery period be extended up to and including July 15,
2015. The parties shall file a status report by July 17, 2015. 2 All other deadlines are extended
accordingly, such that the last day for filing all civil motions—including Daubert motions but
excluding motions in limine—is August 17, 2015, and a joint proposed pretrial order is due by
October 19, 2015.
SO ORDERED, this 12th day of May, 2015.

R. STAN BAKER
UNITED STATES MAGISTRATE JUDGE
SOUTHERN DISTRICT OF GEORGIA

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A Status Report Form shall be provided by the Courtroom Deputy Clerk for use in reporting to the
Court. The parties are directed to contact the Deputy Clerk to obtain the Form and to use the content and
format contained in this Form.

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