Leaks et al v. Target Corporation
Filing
27
ORDER granting in part and denying in part 14 Motion to Compel; granting 15 Motion for Protective Order; denying 18 Motion to Compel. Target is only required to produce the safety policies applicable for the three years preceding the incident. Signed by Magistrate Judge G. R. Smith on 10/28/14. (wwp) Modified on 10/28/2014 (wwp).
UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF GEORGIA
SAVANNAH DIVISION
LATISHA LEAKS and BENJAMIN
LEAKS,
Plaintiffs,
v.
Case No. CV414-106
TARGET CORPORATION,
Defendant.
ORDER
Discovery has ground to a halt in this slip and fall case. In the first
of two discovery disputes, plaintiffs requested Target Corporation’s
(“Target’s”) policies and procedures for preventing falls, as well as any
safety instructions it provides to its employees. (Doc. 14 at 1; doc. 18 at
1-2.) Target responded that it would produce certain evidence relevant
to the requests so long as plaintiffs would agree to keep it confidential
and return or destroy the evidence once the case is over. (Doc. 14 at 1;
doc. 18 at 2.) Target sent a proposed confidentiality order, but plaintiffs
were unhappy with its wording. It refused to accept plaintiff’s proposed
changes. (Doc. 14 at 2; doc. 18 at 2.) Finding themselves at an impasse,
plaintiffs moved to compel production of those materials. (Doc. 14.)
Target opposes the motion and seeks a protective order. (Doc. 18.)
Target agrees to produce “documents reflecting store policies and
procedures that were in effect on the date of the accident and which
pertain to slip, trip, and fall prevention and response, as well as a safety
training film that Target developed for its employees that includes,
among other information, instructions for slip, trip, and fall prevention.
Target merely wishes to keep those proprietary documents confidential
because Target is in a competitive marketplace in which retailers expend
time and money to develop training materials.” 1 (Id. at 2.) For “Target
to publicly disclose those proprietary materials would be to force Target
to do its competitors’ work for them: other retailers could freely access
and use Target’s materials without having to incur the expenses that
Target did in researching, writing, updating, maintaining, distributing,
and safeguarding them.” ( Id. ) Target thus asks the Court to deny
plaintiffs’ motion to compel, absent a promise by plaintiffs that they will
return or destroy the evidence after litigation ends. ( Id. at 3, 5 (explicitly
1
In Target’s discovery responses, it stated that it would produce, pursuant to a
protective order, written store policy and procedures, copies of the Guest Incident
Report, LOD Investigation Report, Team Member Witness Statement, a Safety
Training DVD, and various Team Member training documents. (Doc. 14 at 6-7.)
2
invoking Fed. R. Civ. P. 26(c)’s “good cause” requirement).)
Target also insists that it should not be forced to produce all of its
safety procedures and policies without limitation to time or scope. ( Id. at
4-5.) Plaintiffs argue that older policies are relevant because they may
show changes that made Target less safe. (Doc. 21 at 4.) They offer,
however, to limit the request “to the ten years before the incident at
issue.” (Id. ) The Court agrees with Target on this point. Plaintiffs’
motion to compel production as to those documents is GRANTED IN
PART and DENIED IN PART . (Doc. 14.) Target is only required to
produce the safety policies applicable for the three years preceding the
incident.
As for Target’s “proprietary materials” objection, 2 the Court
preliminarily notes that pretrial discovery “is not generally considered to
be public information. . . .” Emess Capital, LLC v. Rothstein , 841 F.
2
There exists “no absolute privilege for trade secrets and similar confidential
material.” Fed. Open Mkt. Comm. v. Merrill , 443 U.S. 340, 362 (1979); Centurion
Indus., Inc. v. Warren Steurer & Assocs. , 665 F.2d 323, 325 (10th Cir. 1981); Natta v.
Zletz , 405 F.2d 99, 101 (7th Cir. 1968). A party, therefore, cannot resist discovery on
the ground of “trade secrets.” Rather, “the means by which protection from discovery
of trade secrets is to be obtained is by motion under [Fed. R. Civ. P.] 26(c).” Flint
Hills Scientific, LLC v. Davidchack , 2001 WL 1718276 at *10 (D. Kan. Nov.14, 2001).
Rule 26(c)(1)(G) authorizes, upon a showing of good cause, a protective order
“requiring that a trade secret or other confidential research, development, or
commercial information not be revealed or be revealed only in a specified way.” Fed.
R. Civ. P. 26(c)(1)(G).
91
Supp. 2d 1251 at 1254 (S.D. Fla. 2012). Merely handing information over
to plaintiffs’ counsel absent a confidentiality order does not equate to
public disclosure of that information. Nevertheless, filings and
proceedings in the federal courts are presumptively open to public
scrutiny.
See Seattle Times Co. v. Rhinehart , 467 U.S. 20, 33 (1984).
“[P]arties generally cannot keep from public view discovery materials
filed with the court in connection with dispositive motions.” Emess
Capital, LLC , 841 F. Supp. 2d at 1254 (emphasis in original), citing
Rushford v. New Yorker Magazine, Inc. , 846 F.2d 249, 252 (4th Cir.
1998), and Leucadia Inc. v. Applied Extrusion Techs., Inc. , 998 F.2d 157,
165 (3d Cir.1993). A district court may, in its discretion, shield such
materials from public disclosure upon a showing of good cause. Fed. R.
Civ. P. 26(c). Target has not shown good cause.
Courts have repeatedly ruled that “slip and fall” training videos
and standard operating procedures are not entitled to any special
protection.
See, e.g. , Mitchell v. Home Depot U.S.A. , 2012 WL 2192279
at *4-5 (W.D. Ky. June 14, 2012) (Home Depot’s standard operating
procedures, even though labeled confidential and developed through
significant time and effort, are not the kind of documents entitled to
4
Rule 26(c) protection); Estridge v. Target Corp. , 2012 WL 527051 at *7
(S.D. Fla. Feb. 16, 2012) (in a similar slip and fall case, the court held
that Target’s safety training manuals and operating procedures for
maintenance and inspection of walkways were not the types of
documents “that ordinarily contain trade secrets or other confidential
business information,” thus Target failed to show good cause warranting
the issuance of a protective order); Gritt v. Target Corp. , 2007 WL
3011095 at *3-4 (M.D. Fla. Oct. 12, 2007) (same). These are not the sort
of technical reference tools through which Target manages its core
business. Instead, they are simple instructions for lower level employees
to follow whenever a predictable accident occurs. The Court cannot
conceive of any way the production of these materials would undermine
any competitive advantage Target enjoys by keeping these documents
confidential. Hence, the Court GRANTS plaintiffs’ motion to compel
production of those materials (doc. 14) and DENIES Target’s motion for
a protective order (doc. 18). The Court trusts, however, that plaintiffs
will not expose this information except as necessary to prove her case in
court.
Target has filed a separate motion for a protective order as to
plaintiffs’ second requests for production. (Doc. 15.) It takes issue with
three specific requests:
Please produce all operator’s and owner’s manuals for the video
surveillance system employed at the Target store in which Plaintiff
LaTisha Leaks fell on the date of her fall[,] including the operator
or owner’s manuals for the types of cameras utilized in the system,
all recorders, and all sequential switchers.
***
Please produce all Target policies and/or protocols regarding
operation of the video surveillance system in use in the Target
store in which Plaintiff LaTisha Leaks fell that were in effect on
the date of her fall, including policies or protocols for each type of
camera, all recorders and all sequential switchers that are part of
the system.
***
Please produce all diagrams, blueprints, schematics and/or other
documents which show the design of the video surveillance system
for the Target store in which Plaintiff LaTisha Leaks fell as it
existed on the date of the fall.
(Doc. 15-1 at 2-3.) Target represents that it has provided all of the video
evidence it has in its possession, but assuming that it ever recorded the
actual incident, that portion of the video has since been overwritten. The
system is designed to “write over” previously recorded footage absent
operator action. (Doc. 22 at 1-2.) Target has provided an affidavit from
the manager of the Target location supporting their assertion. (Doc. 22-1
at 2-6.)
Plaintiffs are skeptical, and thus seek to dig deeper into the matter
by obtaining as much information about the video surveillance system as
is possible. (Doc. 24.) Absent something more than plaintiffs’ mere
suspicions that Target is lying, the Court is not prepared to order Target
to hand over its entire loss-prevention schema at the location in
question. Accordingly, Target’s motion for a protective order as to
plaintiffs’ second requests for production (doc. 15) is GRANTED .
SO ORDERED this 28th day of October, 2014.
UNITED STATES MAGISTRATE ILJDGE
SOUTHER}'T DISTRICT OF GEORGIA
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