Gibson v. Lowe's Home Centers, LLC

Filing 17

ORDER denying Motion to Compel (ECF No. 12 ). Signed by Magistrate Judge Curtis Ivy, Jr. (SKra)

UNITED STATES DISTRICT COURT
FOR THE EASTERN DISTRICT OF MICHIGAN
SOUTHERN DIVISION
BRIAN GIBSON,
v.

Plaintiff,

LOWE’S HOME CENTERS, LLC,
Defendant.
____________________________/

Case No. 24-10864
Matthew F. Leitman
United States District Judge
Curtis Ivy, Jr.
United States Magistrate Judge

ORDER DENYING MOTION TO COMPEL (ECF No. 12)
Plaintiff moves for an order compelling depositions and discovery
responses, for spoliation sanctions, and for payment of costs and fees. (ECF No.
12). This motion was referred to the undersigned. (ECF No. 15).
During September 2024, the Court entered a stipulated order compelling
Defendant to respond to Plaintiff’s first set of interrogatories and document
requests. (ECF No. 9). Plaintiff says this discovery required production of any
incident report, photographs, witness statements, and surveillance footage of the
injury that allegedly occurred in a Lowe’s store. According to Plaintiff, these
documents and video exists but Defendant is either withholding it or lying about its
non-existence. And Plaintiff contends that Defendant has been silent about
rescheduling its employees’ depositions. (ECF No. 12).
“Parties may obtain discovery related to any nonprivileged matter relevant to
any party’s claim or defense and proportional to the needs of the case, considering

the importance of the issues at stake in the action, the amount in controversy, the
parties’ relative access to relevant information, the parties’ resources, the
importance of the discovery in resolving the issues, and whether the burden or
expense of the proposed discovery outweighs its likely benefit.” Fed. R. Civ. P.
26(b)(1). Information within this scope of discovery need not be admissible in
evidence to be discoverable. Id. “Although a [party] should not be denied access
to information necessary to establish her claim, neither may a [party] be permitted
to ‘go fishing,’ and a trial court retains discretion to determine that a discovery
request is too broad and oppressive.” Superior Prod. P’ship v. Gordon Auto Body
Parts Co., 784 F.3d 311, 320-21 (6th Cir. 2015) (citing Surles ex rel. Johnson v.
Greyhound Lines, Inc., 474 F.3d 288, 305 (6th Cir. 2007)). A party seeking
discovery may move for an order compelling an answer, designation, production,
or inspection. Fed. R. Civ. P. 37.
Plaintiff requested “any written ‘report’ and/or photographs and/or
documents and/or video and/or surveillance exist [sic] as a result of any of
Defendant’s investigations and/or inspections related to Plaintiff’s alleged injury.”
(ECF No. 12, PageID.123). Defendant responded that there was no CCTV footage
of the alleged incident and that it was unaware of any store incident report or
photographs concerning the incident. (Id. at PageID.123-24).
Incident Report
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According to Plaintiff, three witnesses, including himself, confirmed that
there was an incident report concerning his injury. Defendant employs Sedgwick
Claims office to handle all claims. One of Defendant’s district managers, Steven
Depestel, testified that injuries in the store are reported electronically through
Sedgwick. (ECF No. 12, PageID.94-95). But as Defendant notes, Mr. Depestel
testified about the liability claims process; he did not say that an incident report
was created about Plaintiff. (ECF No. 14, PageID.173). Defendant insists that
there was no store incident report, no document drafted and uploaded to Sedgwick
about Plaintiff. (Id. at PageID.173-74).
Plaintiff attempts to call Defendant’s representations into question with
citation to a discovery response from Sedgwick. Plaintiff subpoenaed documents
from Sedgwick; the requests were not attached to the brief. In response, Sedgwick
explained that it provided available documents and that the case was transferred to
Lowe’s, so any further documents would need to come from Lowe’s. (ECF No.
12, PageID.145). In view of Mr. Depestel’s testimony, Defendant’s
representations, and Sedgwick’s subpoena response, Plaintiff believes someone is
not telling the truth. (Id. at PageID.95).
The Court does not credit Plaintiff’s suspicion that an incident report exists.
Defendant’s employee did not testify that a report was created or submitted about
Plaintiff’s incident. Defendant’s counsel, who is undoubtedly aware of their
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obligations of candor to the Court and the warnings in Fed. R. Civ. P. 11,
represents that Lowe’s created no incident report. And finally, Sedgwick’s
discovery response does not raise a question about whether an incident report
exists that was not produced.
Given the lack of suspicion, the motion to compel is DENIED as to incident
reports. The Court cannot compel what does not exist.
Surveillance Footage
Plaintiff similarly suggests that video evidence of the alleged injury exists
but Defendant is hiding the evidence. Attached to the brief is a picture of a camera
hanging from the ceiling that is purportedly placed where the incident occurred.
(ECF No. 12, PageID.149-50). Plaintiff says that cameras also would have
captured him walking into and out of the store, perhaps showing him limping out
of the store. Mr. Depestel testified that video is retained for 90 days, after which it
is removed from the server. He also testified that the store would save video on
receipt of a letter from an attorney asking that video in a certain area of the store be
preserved. (Id. at PageID.96-97). Plaintiff’s counsel requested surveillance
footage on November 16, 2023, days after the incident, yet no video has been
produced. Because of these facts, Plaintiff insists video exists.
Defendant has several responses to the arguments. First, it asserts that there
is no camera footage of the incident because of the location of the aisle where the
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incident occurred. (ECF No. 14, PageID.174). Next, it takes issue with Plaintiff
expanding the scope of the request. The request seeks video or surveillance that
exists “as a result of any of defendant’s investigations” or inspections concerning
the incident. Plaintiff did not ask for footage of himself entering and leaving the
store. (Id. at PageID.175). Finally, Defendant contends that Plaintiff never sent a
preservation letter. The letter counsel sent to Defendant sought only the
production of video “of the incident;” there was no mention of preservation. And
there are deficiencies in the letter. Though counsel correctly identified Plaintiff’s
name and incident date in the “regarding” section, the body of the letter names
someone else and a different incident date. (See ECF No. 152). And, again,
Defendant insists that there is no video “of the incident” to produce or preserve.
(ECF No. 14, PageID.175-76).
Here, too, the Court cannot compel production of what does not exist. The
Court need not evaluate Plaintiff’s “preservation letter” because the Court’s takes
Defendant’s counsel’s word that there was no video that would show the incident.
As far as Plaintiff’s new request for video of the entrance to the store—that request
is improperly propounded in a motion to compel. Plaintiff did not request entrance
footage in its documents request or in the “preservation letter.” The motion to
compel is DENIED as to video or surveillance.
Depositions
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At the time Plaintiff’s motion was filed, only one of Defendant’s witnesses,
Mr. Depestel, had been deposed. Plaintiff accuses Defendant of unilaterally
cancelling the other depositions and remaining silent as to rescheduling. (ECF No.
12, PageID.97). Plaintiff did not say how many depositions remain to be
scheduled.
Defendant tells a different story. Two of the cancelled depositions had been
rescheduled before Plaintiff filed his motion to compel. (ECF No. 14-2). The
email communication attached to the brief does not show any undue delay from
Defendant. Those depositions occurred before Defendant filed the response brief.
So Defendant argues that there is no basis to compel depositions.
Plaintiff did not file a brief in reply to clarify or challenge Defendant’s
representations. Thus, it is unclear whether more depositions need to be scheduled
or whether depositions are complete. The Court will not draw ambiguities in
Plaintiff’s favor as he is the movant charged with the burden of demonstrating
entitlement to relief. The motion to compel depositions is DENIED.
Because the motion to compel is denied in full, the Court will not address
Plaintiff’s requests for sanctions and fees—he is entitled to neither.
IT IS SO ORDERED.
The parties here may object to and seek review of this Order, but are
required to file any objections within 14 days of service as provided for in Federal
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Rule of Civil Procedure 72(a) and Local Rule 72.1(d). A party may not assign as
error any defect in this Order to which timely objection was not made. Fed. R.
Civ. P. 72(a). Any objections are required to specify the part of the Order to which
the party objects and state the basis of the objection. When an objection is filed to
a magistrate judge’s ruling on a non-dispositive motion, the ruling remains in
effect unless it is stayed by the magistrate judge or a district judge. E.D. Mich.
Local Rule 72.2.

Date: January 28, 2025

s/Curtis Ivy, Jr.
Curtis Ivy, Jr.
United States Magistrate Judge

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