Altazin et al v. Wal-Mart Stores Inc et al
Filing
51
MEMORANDUM ORDER granting 39 Motion to Compel discovery responses; granting 39 Motion for Attorney Fees. IT IS ORDERED that, within the next fourteen days of the date of this order, defendant Wal-Mart shall supplement its responses to plaintiff 's request for production, H, L, & M, as set forth in Exhibit B to the Rule 30(b)(6) Notice issued by plaintiff in this matter. IT IS FURTHER ORDERED that Wal-Mart shall respond to plaintiff's questions pertaining to Topic No 12 listed in Exhibit A, and requests for production, H, L, & M, as set forth in Exhibit B, to the aforementioned notice. IT IS FURTHER ORDERED that Wal-Mart shall remit the sum of $500.00 to plaintiff Beth Altazin, via counsel, within fourteen days of the date of this order, and file proof of said payment in the record of these proceedings within 7 days thereafter. Signed by Magistrate Judge Karen L Hayes on 06/26/2014. (crt,Yocum, M)
UNITED STATES DISTRICT COURT
WESTERN DISTRICT OF LOUISIANA
MONROE DIVISION
ANNA BETH AND GREG ALTAZIN
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CIVIL ACTION NO. 12-1024
VERSUS
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JUDGE JAMES T. TRIMBLE, JR.
WAL-MART STORES, INC., ET AL.
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MAG. JUDGE KAREN L. HAYES
MEMORANDUM ORDER
Before the undersigned magistrate judge, on reference from the District Court, is a motion
to compel discovery responses and associated request for attorney’s fees [doc. # 39] filed by
plaintiff Anna Beth Altazin (a/k/a Anna Beth Becton). The motion is opposed. For reasons
explained below, the motion is GRANTED.1
Background
The instant suit stems from a December 3, 2010, slip and fall accident suffered by Beth
Altazin while shopping at Wal-Mart’s Monroe store. On November 22, 2011, Beth Altazin and
her then husband, Greg Altazin, commenced this action against defendants, Wal-Mart Stores,
Inc. and Wal-Mart Louisiana, L.L.C. (collectively, “Wal-Mart”), in the 4th Judicial District Court
for the Parish of Ouachita, State of Louisiana. Plaintiffs contend that the accident was caused by
Wal-Mart’s negligence, and therefore Wal-Mart is responsible for plaintiffs’ resultant damages.
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As this motion is not excepted within 28 U.S.C. § 636(b)(1)(A), nor dispositive of any
claim on the merits within the meaning of Rule 72 of the Federal Rules of Civil Procedure, this
order is issued under the authority thereof, and in accordance with the standing order of this
court. Any appeal must be made to the district judge in accordance with Rule 72(a) and L.R.
74.1(W).
See Petition.2 On April 27, 2012, Wal-Mart removed the matter to federal court on the basis of
diversity jurisdiction. (Notice of Removal [doc. # 1]).
At the end of January 2014, plaintiff Beth Altazin served Wal-Mart with a Rule 30(b)(6)
deposition notice. See Pl. Reply Memo., Exh. A. Attached to the notice were two exhibits: A
and B. The former listed potential topics to be examined during the depositions; the latter was
comprised of document production requests.” Id. Of particular significance, for the purpose of
this motion, were the following items, Deposition Topic No. 12: “[a]ny risk and hazard analysis
regarding the presence of merchandise pallets on the sales floor;” Document Request H: “[a]ny
and all Documents ranking, evaluating, interpreting or otherwise analyzing the causes of slip and
fall accidents in your stores, including but not limited to Documents which mention spilled
liquids as a cause of slip and fall accidents in your stores;” Document Request L: “[a]ny
documents reflecting, in whole or part, any risk and hazard analysis regarding . . . the presence of
merchandise pallets on the sales floor;” and Document Request M: “[a]ny documents
reflecting, in whole or part, any risk and hazard analysis regarding the failure to guard a spill or
other floor hazard upon discovery . . .” Id.
On February 18, 2014, Wal-Mart objected to the foregoing avenues of inquiry on the
multiple grounds that the requests were overly broad, unduly burdensome, irrelevant, and to the
extent any responsive information exists, proprietary. See Pl. Reply Memo., Exh. B.
After several continuances, plaintiff finally took Wal-Mart’s corporate deposition on
April 10, 2014. (M/Compel, Memo., pg. 1). Almost one month later, on May 5, 2014, plaintiff
filed the instant motion to compel responses to Deposition Topic No. 12 and Document
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Beth Altazin suffered serious and disabling injuries, including a fractured right hip that
required replacement. Id., ¶ 9.
2
Requests, H, L, and M.3
On June 11, 2014, Wal-Mart filed its memorandum in opposition to the motion to compel
wherein it represented that it had not conducted any risk and hazard analysis, and thus it had no
responsive information or documents. (Opp. Memo., pgs. 1-2). Wal-Mart contends that it
cannot be compelled to produce information and documents that it does not possess. In support
of its response, Wal-Mart submitted an affidavit from Aaron Mulqueen-Keith, its Senior
Manager of Risk Analytics, which states that Wal-Mart does not have a “regular and customary,”
“corporate-wide” analysis of slip and fall accidents. (Mulqueen-Keith Affidavit; Opp. Memo.,
Exh. B).
Plaintiff filed her reply brief on June 18, 2014. She observed that, in its responses to the
30(b)(6) discovery topic/requests, Wal-Mart did not represent that it had no responsive
information/documents. She also noted that Mr. Mulqueen-Keith added extraneous
qualifications to his affidavit that were not included in the original discovery topic/requests.
Law
Pursuant to Rule 30(b), “[t]he notice to a party deponent may be accompanied by a
request under Rule 34 to produce documents and tangible things at the deposition.” Fed.R.Civ.P.
30(b)(2). Rule 34, in turn, dictates that “a party may serve on any other party a request within the
scope of Rule 26(b) . . . to produce . . . any designated documents . . . or any tangible things” that
3
Because of a then-looming deadline to compel discovery, plaintiff reserved her right to
supplement her motion in the event that Wal-Mart failed to respond adequately to her recently
propounded Second Set of Interrogatories and Requests for Production. However, the deadline
to compel discovery has since been extended. Thus, plaintiff did not supplement her motion, and
instead, will file a separate motion, if necessary. See Pl. Reply Memo.
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are within the “party’s possession, custody, or control . . .” Fed.R.Civ.P. 34(a)(1).4
Rule 34's definition of “possession, custody, or control,” includes more than actual
possession or control of the materials; it also contemplates a party’s “legal right or practical
ability to obtain the materials from a nonparty to the action.” White v. State Farm Mut. Auto. Ins.
Co., 2011 WL 3423388 (M.D. La. Aug. 4, 2011 (citations omitted). A party must “make a
reasonable search of all sources reasonably likely to contain responsive documents.” Id. A party
also is “charged with knowledge of what its agents know or what is in records available to it.”
Autery v. SmithKline Beecham Corp., 2010 WL 1489968 (W.D. La. Aug. 4, 2011) (citation
omitted).
A party objecting to discovery “must state with specificity the objection and how it relates
to the particular request being opposed . . .” Reyes v. Red Gold, Inc. 2006 WL 2729412 (S.D.
Tex. Sept. 25, 2006) (citations omitted). In other words, to escape the production requirement, a
responding party must interpose a valid objection to each contested discovery request. McLeod,
Alexander, Powel & Apffel, P.C. v. Quarles, 894 F.2d 1482, 1485 (5th Cir. 1990) (citation
omitted). Conclusory objections that the requested discovery is “overly broad,” “burdensome,”
“oppressive,” and “irrelevant,” do not suffice. Id.
A party seeking discovery may move for an order compelling production against another
party when the latter has failed to produce documents for inspection. See Fed.R.Civ.P.
4
Under Rule 26(b),
[p]arties may obtain discovery regarding any nonprivileged matter that is relevant
to any party’s claim or defense – including the existence, description, nature,
custody, condition, and location of any documents. . . Relevant information need
not be admissible at the trial if the discovery appears reasonably calculated to lead
to the discovery of admissible evidence.
Fed.R.Civ.P. 26(b)(1).
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37(a)(3)(B). Similarly, a party may move for an order compelling an answer when a deponent
fails to answer under Rule 30. Id. An evasive or incomplete response is treated as a failure to
respond. Fed.R.Civ.P. 37(a)(4).
Discussion
I.
The Disputed Discovery
Obviously, the court agrees with the proposition that a party cannot be compelled to
produce documents that do not exist. Nonetheless, in this case, Wal-Mart did not disclose in its
objections that it had no responsive documents. Moreover, there is no indication that it ever
supplemented its responses to clarify this point at any time before plaintiff filed the instant
motion. Although Wal-Mart eventually produced Mr. Mulqueen-Keith’s affidavit, he inserted
additional qualifiers not included in plaintiff’s original discovery requests. Whether this variance
was intentional remains unknown.
Accordingly, the court will require Wal-Mart to search for, and produce (if they exist) the
documents, as requested by plaintiff’s Requests for Production H, L, and M. If the documents, in
fact, do not exist, Wal-Mart shall supplement its responses to make that clear. Thereafter, if
necessary, plaintiff may re-take, at her expense,5 Wal-Mart’s 30(b)(6) deposition limited to Topic
No. 12 and Requests for Production H, L, and M.
II.
Fees, Costs, and/or Expenses
The court generally must award reasonable expenses to the prevailing party on a motion
to compel. Fed.R.Civ.P. 37(a)(5)(A). The rule authorizes exceptions, however, for non-
5
Plaintiff was aware of the instant discovery dispute well before the scheduled
deposition, and should have presented the issue to the court prior to that time.
5
disclosures and responses that were substantially justified, or other circumstances that make an
award unjust. Id.
Here, however, the court finds no substantial justification for Wal-Mart’s recent epiphany
that the requested discovery, as reinterpreted by Wal-Mart, does not exist. Even if the documents
do not exist, Wal-Mart did not so assert until after plaintiff filed the instant motion to compel.
Under the circumstances, the court finds that an award of $500 is warranted and appropriate to
ameliorate the reasonable expenses and fees incurred by plaintiff in prosecuting the instant
motion.
Conclusion
For the reasons set forth above, the motion to compel discovery responses and associated
request for attorney’s fees [doc. # 39] filed by plaintiff Beth Altazin is hereby GRANTED.
Accordingly,
IT IS ORDERED that, within the next fourteen (14) days of the date of this order,
defendant Wal-Mart shall supplement its responses to plaintiff’s requests for production, H, L, &
M, as set forth in Exhibit B to the Rule 30(b)(6) Notice issued by plaintiff in this matter.
IT IS FURTHER ORDERED that Wal-Mart shall respond to plaintiff’s questions
pertaining to Topic No. 12 listed in Exhibit A, and requests for production, H, L, & M, as set
forth in Exhibit B, to the aforementioned notice – in the event that plaintiff elects to resume the
30(b)(6) deposition.
IT IS FURTHER ORDERED that Wal-Mart shall remit the sum of $500 to plaintiff Beth
Altazin, via counsel, within 14 days of the date of this order, and file proof of said payment in the
record of these proceedings within 7 days thereafter.
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In Chambers, at Monroe, Louisiana, this 26th day of June 2014.
__________________________________
KAREN L. HAYES
UNITED STATES MAGISTRATE JUDGE
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