Akins v. Ace American Insurance Company et al

Filing 30

RULING granting in part 13 Motion to Compel. Signed by Magistrate Judge Stephen C. Riedlinger on 9/28/2015. (NLT)

UNITED STATES DISTRICT COURT
MIDDLE DISTRICT OF LOUISIANA

KRISTEN AKINS
CIVIL ACTION
VERSUS
NUMBER 14-653-SDD-SCR
ACE AMERICAN INSURANCE COMPANY,
ET AL.
RULING ON MOTION TO COMPEL
Before the court is the Plaintiff’s Motion to Compel filed by
plaintiff Kristen Akins. Record document number 13. The motion is
opposed.1
Plaintiff filed this motion to compel seeking supplemental
responses to the Plaintiff’s First Interrogatories and Request for
Production of Documents served on defendant Taco Bell on May 21,
2015.

Plaintiff

originally

sought

supplemental

responses

to

Interrogatory Nos. 6, 8, 9, 10, 13, 14, and Request for Production
Nos. 4, 6, and 7.

After additional discussions with opposing

counsel, the plaintiff’s issues with the responses to Interrogatory
Nos. 6, 10, and 13 were withdrawn.
Defendant asserted that it provided the plaintiff with all
relevant unprivileged material.
Plaintiff’s motion is resolved as follows.
In Interrogatory No. 8 and Request for Production No. 4, the

1

Record document number 14.
document number 18.

Plaintiff filed a reply.

Record

plaintiff sought evidence related to a store surveillance video of
the alleged incident. Defendant disclosed that the video feed from
the store’s closed circuit television (“CCTV”) which may have
recorded the alleged incident was not downloaded correctly, and a
blank video (also referred to as a CCTV Disc) was received from the
store. Defendant provided an affidavit verifying its response from
its representative, Donna L. Phillips.2 Defendant also provided an
affidavit

for

Beth

Gallagher

Basset

Sebastian,

Services,

Senior

who

received from the store was blank.3

Resolution

confirmed

that

Manager

the

CCTV

with
Disc

In its supplemental responses,

the defendant also stated that it was trying to contact “Mr.
Randall” a person who was thought to have direct knowledge of the
CCTV

video,

and

stated

that

it

was

attempting

to

obtain

an

affidavit from its Loss Prevention Manager of Taco Bell who
allegedly spoke to Mr. Randall regarding the blank video.
Plaintiff

argued

that

the

defendant

failed

to

provide

sufficient information regarding the surveillance video.
A review of the record shows that the plaintiff is entitled to
a supplemental response.

Defendant did not produce adequate

information to allow the plaintiff to address issues surrounding
the surveillance video.

Because the CCTV system may have captured

2

Record document number 14-1, p. 39, Affidavit of Donna A.
Phillips.
3

Record document number 14-1, p. 38, Affidavit of Beth A.
Sebastian, ¶ 3.
2

the event, it is important evidence that should be, or should have
been, in Taco Bell’s possession.
recorded

disc

received

by

the

It is undisputed that the

defendant’s

counsel

is

blank.

However, no substantive explanation for the loss of the video was
been provided.
Defendant should be able to produce contact information for a
Rule 30(b)(6), Fed.R.Civ.P., representative to discuss the CCTV
system at the store, including when and how video is captured,
stored, retrieved and copied.

Defendant has also not provided

proper contact information for Mr. Randall, including his full
name, last known address, and phone number.

Nor does the record

show that the defendant provided contact information for Phillips,
its Loss Prevention Manager, and Sebastian, the representative of
Gallagher Bassett Services.
plaintiff

an

opportunity

to

This information will allow the
conduct

discovery

regarding

what

happened to the original recorded video and whether recovery of it
is possible.

Defendant will be required to provide supplemental

information as detailed above.

After receipt, the plaintiff may

conduct additional discovery limited to the issue of the missing
surveillance video.
In Interrogatory No. 9, the plaintiff requested a detailed
description of how the accident happened.

Although the defendant

provided a factual description of the events, the plaintiff argued
that the defendant failed to explain why the ceiling tile fell. In

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its supplemental response, the defendant asserted that a water
leak, possibly caused by rain, caused the tile to fall.4

This

supplemental response is sufficient, and the plaintiff failed to
provide any substantive facts to show the defendant has or should
have additional information.
In

Interrogatory

defendant’s
Defendant

policies
agreed

to

Number

14,

concerning
provide

the

plaintiff

inspections

the

requested

on

requested
its

the

premises.

information

upon

execution of a protective order. The record shows that the parties
attempted to agree on the form of a protective order, but their
efforts failed. Plaintiff subsequently argued that the maintenance
policies at issue are not confidential.

Defendant asserted that

its administrative policies are confidential due to the nature of
its business.

Defendant also argued that the information is

irrelevant because it does not dispute that the tile fell.
The

record

does

not

establish

that

the

defendant

has

stipulated that it is at fault, i.e. responsible for the tile
falling,

and

unpersuasive.

therefore

its

argument

based

on

relevancy

is

With respect to the protection of confidential

information, the defendant - as the party seeking the protection has the burden under Rule 26(c), Fed.R.Civ.P., to show good cause

4

Record document number 14-1, Exhibit C, Defendant, Taco Bell
of America, LLC’s Supplemental Answers to Plaintiff, Kristen Akins’
Interrogatories and Responses to Request for Production. Plaintiff
incorrectly asserted that this statement was not contained in a
discovery response.
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for a protective order.

Defendant did not even file a motion

seeking a protective order.

Defendant cannot refuse to produce

discoverable information unless a protective order is issued, and
then try to shift the burden of seeking entry of a suitable
protective order to the plaintiff.
produce

the

information

requested

Defendant will be required to
in

Interrogatory

Number

14

without a protective order (unless before the production must be
made the parties agree to the form, and the defendant moves for
entry of, a protective order).
Request for Production No. 6 sought all exhibits, photographs,
video and/or documentary or demonstrative evidence, including the
surveillance video.

Defendant asserted that it has no documents

responsive to this request.

The issue concerning the surveillance

video was addressed above, and the plaintiff has not demonstrated
that a supplemental response with regard to any other evidence is
warranted.
Both parties failed to fully address the issue with Request
for Production No. 7, which sought reports concerning the plaintiff
allegedly protected by work-product. Because the plaintiff did not
demonstrate why reports created by the defendant would not be
protected work product, the plaintiff’s request is denied.
Accordingly, Plaintiff’s Motion to Compel is granted in part.
Within 14 days the defendant shall provide supplement responses to
Interrogatory Nos. 8 and 14 and Request for Production No. 4, as

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discussed above.

No objections will be allowed.

respects, the Plaintiff’s Motion to Compel is denied.

In all other
Pursuant to

Rule 37(a)(5)(C), the parties shall bear their respective costs.
Baton Rouge, Louisiana, September 28, 2015.

STEPHEN C. RIEDLINGER
UNITED STATES MAGISTRATE JUDGE

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