Sherwood v. Creative Hairdressers Inc

Filing 23

OPINION AND ORDER granting 14 Motion to Compel Deposition of Plaintiff Edna J. Sherwood; granting in part 20 Cross-Motion to Compel Plaintiffs Previous Statement. Signed by Magistrate Judge Andrew P Rodovich on 5/1/12. (mc)

UNITED STATES DISTRICT COURT
NORTHERN DISTRICT OF INDIANA
HAMMOND DIVISION
EDNA J. SHERWOOD,
Plaintiff
v.
CREATIVE HAIRDRESSERS, INC.
dba Hair Cuttery
aka The Hair Cuttery,
Defendant

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CIVIL NO. 2:11-cv 291

OPINION AND ORDER
This matter is before the court on the Motion to Compel the
Deposition of Plaintiff Edna J. Sherwood [DE 14] filed by the
defendant, Creative Hairdressers, Inc., on January 3, 2012, and
the Cross-Motion to Compel Plaintiff’s Previous Statement [DE 20]
filed by the plaintiff, Edna J. Sherwood, on January 19, 2012.
For the following reasons, the Motion to Compel the Deposition of
Plaintiff Edna J. Sherwood [DE 14] is GRANTED, and the CrossMotion to Compel Plaintiff’s Previous Statement [DE 20] is
GRANTED IN PART.
Background
This matter arises from injuries the plaintiff, Edna J.
Sherwood, sustained during a slip and fall at The Hair Cuttery
salon located in Munster, Indiana, on July 2, 2010.

Upon learn-

ing of the incident, the defendant’s insurance carrier, Gallagher
Bassett, obtained a recorded statement from Sherwood.

She later

retained counsel and initiated the present action by filing a
complaint on August 12, 2011.

Sherwood’s counsel requested a

copy of the recorded statement Gallagher Bassett took from
Sherwood after the incident.

Representatives of Gallagher

Bassett have refused to provide the statement until after
Sherwood’s deposition is complete.

After some discussion, the

parties filed cross-motions to compel.

Sherwood demands produc-

tion of the recorded statement, and The Hair Cuttery has agreed
to produce the statement, but only after Sherwood has completed
her deposition.
Discussion
A party may "obtain discovery regarding any matter, not
privileged, that is relevant to the claim or defense of any
party, including the existence, description, nature, custody,
condition and location of any books, documents, or other tangible
things."

Federal Rule of Civil Procedure 26(b)(1).

For discov-

ery purposes, relevancy is construed broadly to encompass "any
matter that bears on, or that reasonably could lead to other
matter[s] that could bear on, any issue that is or may be in the
case."

Chavez v. DaimlerChrysler Corp., 206 F.R.D. 615, 619

(S.D. Ind. 2002)(quoting Oppenheimer Fund, Inc. v. Sanders, 437
U.S. 340, 351, 98 S.Ct. 2380, 2389, 57 L.Ed.2d 253 (1978)).

Even

when information is not directly related to the claims or de-

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fenses identified in the pleadings, the information still may be
relevant to the broader subject matter at hand and meet the
rule’s good cause standard. Borom v. Town of Merrillville, 2009
WL 1617085, *1 (N.D. Ind. June 8, 2009) (citing Sanyo Laser

Prods., Inc. v. Arista Records, Inc., 214 F.R.D. 496, 502 (S.D.
Ind. 2003)).

See also Adams v. Target, 2001 WL 987853, *1 (S.D.

Ind. July 30, 2001)("For good cause, the court may order discovery of any matter relevant to the subject matter involved in the
action."); Shapo v. Engle, 2001 WL 629303, *2 (N.D. Ill. May 25,
2001)("Discovery is a search for the truth.").
A party may seek an order to compel discovery when an
opposing party fails to respond to discovery requests or has
provided evasive or incomplete responses.
Procedure 37(a)(2)-(3).

Federal Rule of Civil

The burden "rests upon the objecting

party to show why a particular discovery request is improper."

Gregg v. Local 305 IBEW, 2009 WL 1325103, *8 (N.D. Ind. May 13,
2009)(citing Kodish v. Oakbrook Terrace Fire Protection Dist.,
235 F.R.D. 447, 449-50 (N.D. Ill. 2006)); McGrath v. Everest Nat.

Ins. Co., 2009 WL 1325405, *3 (N.D. Ind. May 13, 2009)(internal
citations omitted); Carlson Restaurants Worldwide, Inc. v.

Hammond Professional Cleaning Services, 2009 WL 692224, *5 (N.D.
Ind. March 12, 2009)(internal citations omitted).

The objecting

party must show with specificity that the request is improper.

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Cunningham v. Smithkline Beecham, 255 F.R.D. 474, 478 (N.D. Ind.
2009)(citing Graham v. Casey’s General Stores, 206 F.R.D. 253,
254 (S.D. Ind. 2002)).

That burden cannot be met by "a reflexive

invocation of the same baseless, often abused litany that the
requested discovery is vague, ambiguous, overly broad, unduly
burdensome or that it is neither relevant nor reasonably calculated to lead to the discovery of admissible evidence."

Cunning-

ham, 255 F.R.D. at 478 (citing Burkybile v. Mitsubishi Motors
Corp., 2006 WL 2325506, *6 (N.D. Ill. Aug. 2, 2006))(internal
quotations and citations omitted).

Rather, the court, under its

broad discretion, considers "the totality of the circumstances,
weighing the value of material sought against the burden of
providing it, and taking into account society’s interest in
furthering the truth-seeking function in the particular case
before the court."

Berning v. UAW Local 2209, 242 F.R.D. 510,

512 (N.D. Ind. 2007)(examining Patterson v. Avery Dennison Corp.,
281 F.3d 676, 681 (7th Cir. 2002))(internal quotations and citations omitted).
Similarly, a party may move for a protective order "to
protect a party or person from annoyance, embarrassment, oppression, or undue burden or expense . . . ."

Rule 26(c)(1). The

party requesting the protective order carries the burden of
demonstrating good cause and can satisfy that burden by showing

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an adequate reason for the order. 8 Charles Alan Wright & Arthur
R. Miller, Federal Practice and Procedure §2035 (3d ed. 1998).

See also Gregg, 2009 WL 1325103 at *8 ("The burden rests upon the
objecting party to show why a particular discovery request is
improper.") (citing Kodish, 235 F.R.D. at 449-50; McGrath, 2009
WL 1325405 at *3; Carlson Restaurants, 2009 WL 692224 at *5).
Specific factual demonstrations are required to establish that a
particular discovery request is improper and that good cause
exists for issuing the order. See Felling v. Knight, 211 F.R.D.
552, 554 (S.D. Ind. 2003) ("To establish good cause a party must
submit 'a particular and specific demonstration of fact, as
distinguished from stereotyped and conclusory statements.'")
(quoting Wilson v. Olathe Bank, 184 F.R.D. 395, 397 (D. Kan.
1999)) (quoting Gulf Oil Co. v. Bernard, 452 U.S. 89, 102 n.16,
101 S.Ct. 2193, 68 L.Ed.2d 693 (1981)). See also Harrisonville

Telephone Co. v. Ill. Commerce Comm'n, 472 F.Supp.2d 1071, 1078
(S.D. Ill. 2006) (stating that in order to establish good cause,
the movant must rely on particular and specific demonstrations of
fact, rather than conclusory statements).
Rule 26(b)(3)(c) states that "Any party or other person may,
on request and without the required showing, obtain the person’s
own previous statement about the action or its subject matter."
However, the rules do not provide for the sequence of discovery.

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See Rule 26(d)(2).

Discovery may be taken in any sequence, and

discovery by one party does not require any other party to delay
its discovery.

Rule 26(d)(2)(A)-(B).

Many courts have delayed the production of a party's prior
statement until after that party’s deposition has been taken.

See 8 Charles Alan Wright & Arthur R. Miller, Federal Practice
and Procedure §2027 (3d ed. 1998); Smith v. Central Linen Service, 39 F.R.D. 15, 18 (D. Md. 1966); McCoy v. General Motors
Corp., 33 F.R.D. 354, 355 (W.D. Pa. 1963).

Delaying production

eliminates the risk that the party will conform her deposition
testimony to accord with her previously recorded statement.

See

Torres–Paulett v. Tradition Mariner, Inc., 157 F.R.D. 487, 489
(S.D. Cal. 1994).

However, the party seeking to defer production

must show good cause to justify a protective order.

See Rofail

v. United States, 227 F.R.D. 53, 56 (E.D. N.Y. 2005) (explaining
that the defendant did not show good cause to justify a protective order of the plaintiff’s pre-recorded statement).

The court

will weigh the defendant's interest in obtaining deposition
testimony based on the plaintiff’s personal knowledge, rather
than review of a pre-recorded statement, against the plaintiff’s
desire to resolve discrepancies between the pre-recorded statement and her deposition.

See Torres-Paulett, 157 F.R.D. at 489.

Most courts have resolved this dispute by ordering production of

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the pre-recorded statement after the plaintiff’s deposition has
been taken.

See Miles v. M/V Mississippi Queen, 753 F.2d 1349,

1351 (5th Cir. 1985); Smith, 39 F.R.D. at 18; McCoy, 33 F.R.D. at
355.
Compelling production of Sherwood’s statement prior to her
deposition would pose the risk that her testimony would be
modified to conform to her recorded statement.

The Hair Cuttery

has an interest in obtaining Sherwood’s unaltered testimony and
in using Sherwood’s prior statement as an impeachment mechanism.

See Torres-Paulett, 157 F.R.D. at 489 (explaining that producing
a pre-recorded statement after the deposition preserves the
defendant’s interest in obtaining a deposition based on the
plaintiff’s personal memory and knowledge and gives the plaintiff
ample opportunity to explain inaccuracies and discrepancies in
his present and past account of the accident).

It is a better

solution to delay production of the prior statement to eliminate
these risks.

See 8 Wright & Miller Federal Practice and Proce-

dure §2015.

Although the burden ultimately is on The Hair Cut-

tery to show that the statement should not be produced until
after Sherwood’s deposition, it is not apparent what benefit
producing the statement prior to her deposition would have beyond
permitting Sherwood to refresh her recollection of the incident.
To eliminate this risk, the court GRANTS the Motion to Compel the

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Deposition of Plaintiff Edna J. Sherwood [DE 14] filed by the
defendant, Creative Hairdressers, Inc., on January 3, 2012.
Sherwood is DIRECTED to submit to a deposition.

The Hair Cuttery

need not produce Sherwood’s recorded statement until after the
direct examination of Sherwood is completed.

Therefore, the

Cross-Motion to Compel Plaintiff’s Previous Statement [DE 20]
filed by the plaintiff, Edna J. Sherwood, on January 19, 2012, is
GRANTED IN PART.
ENTERED this 1st day of May, 2012

s/ ANDREW P. RODOVICH
United States Magistrate Judge

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