Wal-Mart Stores, Inc. v. PDX, Inc, et al

Filing 115

MEMORANDUM AND ORDER...IT IS HEREBY ORDERED that Defendants' Motion to Compel, for Sanctions, and to Disqualify (ECF No. 90 ) is DENIED. IT IS FURTHER ORDERED that Defendants Motion for Protective Order and/or to Quash Plaintiffs Request to P roduce Documents Pursuant to Rule 30(b)(6) and 34 of the Federal Rules of Civil Procedure (ECF No. 105 ) is DENIED, in part. The Court will extend the deadline for this deposition to take place to allow Defendant thirty (30) days to provide the r elevant documents. The parties shall provide an amended joint proposed scheduling plan no later than September 9, 2016. IT IS FINALLY ORDERED that Defendants Motion for Protective Order (ECF No. 107 ) is GRANTED, in part, and DENIED, in part, a s outlined above. The parties should come to an agreeable date for the 30(b) (6) deposition as part of their amended joint proposed scheduling plan they will submit to the Court. ( Joint Scheduling Plan due by 9/9/2016.) Signed by District Judge Ronnie L. White on 9/2/2016. (NEB) (Main Document 115 replaced on 9/2/2016 to correct typographical error) (KXS).

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF MISSOURI
EASTERN DIVISION
WAL-MART STORES, INC.,
)
)
Plaintiff,
)
)
vs.
)
Case No. 4:14CV1805 RLW
)
PDX INC., et al.,
)
)
Defendants.
)
MEMORANDUM AND ORDER
This matter is before the Court on Defendants’ Motion to Compel, for Sanctions, and to
Disqualify (ECF No. 90), Defendants’ Motion for Protective Order and/or to Quash Plaintiff’s
Request to Produce Documents Pursuant to Rule 30(b)(6) and 34 of the Federal Rules of Civil
Procedure (ECF No. 105) and Plaintiff’s Motion for Protective Order (ECF No. 107). These
matters are fully briefed and ready for disposition.
I.

Motion to Compel, for Sanctions, and to Disqualify (ECF No. 90)

Defendants contend that several of Plaintiff’s interrogatory responses are incomplete. In
particular, Defendants note that several of Plaintiff’s interrogatory answers state that the responses
will be amended.
Defendants also argue that Plaintiff’s counsel should be disqualified. Plaintiff indicated
in its discovery responses that Stefan Glynias and Kevin Davidson, who is deceased, are the only
individuals who negotiated the settlement referenced in the Addendum and had personal
knowledge of the terms of the Addendum. (ECF No. 91 at 8). Plaintiff also listed “Stefan
Glynias” as the name of the individual that drafted the Addendum. Defendants contend that Mr.
Glynias, who represented Plaintiff Wal-Mart in the underlying medical malpractice claim, appears
to be the only person still living who participated in the negotiation and drafting of the Addendum
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and its terms. (ECF No. 91 at 8). Defendants contend that Mr. Glynias is an essential fact
witness on a key issue in this case and, therefore, must be disqualified. Under Rule 4-3.7 of the
Missouri Rules of Professional Conduct, “[a] lawyer shall not act as advocate at a trial in which the
lawyer is likely to be a necessary witness.” (ECF No. 91 at 8). Defendants also assert that there
is an “inherent conflict of interest” present because there is a potential for a professional
malpractice claim against the firm of Lashly & Baer, P.C. due to their participation and negotiation
of the Addendum. (ECF No. 91 at 8-9).
In response, Plaintiff first asserts that Defendants did not engage in a meet and confer prior
to filing this motion to compel. (ECF No. 97 at 4-5). Further, Plaintiff states that it will
supplement the addresses for the retired employees identified in Interrogatories numbers 4 and 5
within 15 days. Plaintiff further asserts that Interrogatory number 6 properly identifies the
persons with knowledge that it may call at trial. Finally, Plaintiff claims that it properly identified
only Stefan Glynias and Kevin Davidson as the people with knowledge of the Addendum and any
challenge to that answer is “pure conjecture.” (ECF No 97 at 5).
With respect to the Motion to Disqualify, Plaintiff states that the Circuit Court of the
Twenty-Second Circuit, State of Missouri, has already held that the Addendum is a valid and
enforceable contract. (ECF No. 97 at 1-2). Plaintiff maintains that this determination has
collateral estoppel effect against Defendants, who intervened and were parties to the underlying
medical malpractice claim, Wal-Mart Stores v. Pendino, et al., No. 1122-CC088325. Plaintiff
further argues that, even if Mr. Glynias were called to testify, that would not disqualify Lashly &
Baer, P.C. from defending this action. (ECF No. 97 at 3-4); see also Droste v. Julien, 477 F.3d
1030, 1035 (8th Cir. 2007).
The Court holds that Defendants’ Motion to Compel is largely denied. Plaintiff is
standing on its interrogatory answers. The Court cannot force Plaintiff to identify additional
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people with knowledge of the Addendum or people it may call at trial. If additional people are
identified, the Court cautions Plaintiff to immediately supplement these interrogatory answers or
face possible sanction by the Court. Because more than fifteen days has passed since Plaintiff
filed its response to the motion to compel, the Court assumes that Plaintiff has provided the last
known addresses for the retired employees. Because the Court finds that Plaintiff has adequately
responded to Defendants’ discovery requests, the Court denies the Motion to Compel.
Further, the Court holds that disqualification of Plaintiff’s counsel is not warranted at this
time. “By its own terms, Rule 4–3.7 only prohibits a lawyer from acting as an ‘advocate at a trial
in which the lawyer is likely to be a necessary witness.’” Droste, 477 F.3d at 1035.

Defendants

have not demonstrated that disqualification is immediately necessary at this stage of the litigation.
Therefore, the Motion to Disqualify is also denied.
II.

Defendants’ Motion for Protective Order and/or to Quash Plaintiff’s Request
to Produce Documents Pursuant to Rule 30(b)(6) and 34 of the Federal Rules
of Civil Procedure (ECF No. 105)

On or about August 4, 2016, Plaintiff served on Defendants a Notice of Rule 30(b)(6)
deposition, setting the deposition of the corporate representative(s) of Defendants on August 12,
2016, at the corporate offices of PDX. 1 The Notice of Deposition also included a request to
produce documents.
Defendants complain that the request to produce documents is untimely and directly
conflicts with Fed. Rule Civ. P. 34, which allows thirty (30) days to respond and/or produce the
requested documents. (ECF No. 106).

Defendants state that they are not seeking to quash or

cancel the deposition, only the Request for Production of Documents, pursuant to Fed. R. Civ. P.
34.

1

The Court stayed the deposition to allow time to rule on this dispute. (ECF No. 114).
3

In response, Plaintiff offers to extend the date of the deposition to allow Defendants
sufficient time to produce the documents under Fed. R. Civ. P. 34. (ECF No. 111).

Plaintiff

emphasizes that discovery was propounded prior to the cut-off date, and Plaintiff was entitled to
the requested documents. (ECF No. 111 at 2).
Finally, Defendants reply that if the Court is inclined to extend the deadline for taking the
deposition in question, then Defendants request that the Court stay discovery and enter a new Case
Management Order. (ECF No. 112).
The Court will extend the deadline for this deposition to take place to allow Defendants
thirty (30) days to provide the relevant documents. The parties shall provide an amended joint
proposed scheduling plan to the Court no later than September 9, 2016.
III.

Plaintiff’s Motion for Protective Order (ECF No. 107)

In this Motion for Protective Order, Plaintiff seeks to prohibit discovery on several topics
identified in Defendants’ Notice to Take Corporate Deposition. (ECF No. 107). Plaintiff asserts
that this Court has already ruled in Plaintiff’s favor regarding several subjects identified in the
Notice of Deposition. Specifically, Plaintiff claims that item numbers 6, 7, 20, 33, and 34 and
paragraph numbers G, H, U-AA, which relate to insurance, are not relevant pursuant to this
Court’s prior order. (ECF No. 108) Further, Plaintiff claims that item numbers 29-32 invade the
province of the attorney-client privilege. (ECF No. 108 at 2). Moreover, Plaintiff claims that the
discovery requested is duplicative of discovery taken in a related case, i.e., Wal-Mart Stores, Inc.
v. Pendino. The testimony was taken by counsel for PDX and Landmark and this testimony
meets the standard of Rule 804(b). 2 Therefore, Plaintiff contends that items numbers 1, 2, 3, 4, 5,

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Under Rule 804(b), “[t]he following are not excluded by the rule against hearsay if the declarant
is unavailable as a witness: (1) Former Testimony. Testimony that: (A) was given as a witness at a
trial, hearing, or lawful deposition, whether given during the current proceeding or a different one;
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6, 7, 14, 15, 16, 17, 18, 19, 20, 21, 29, 30, 31, 32, 33, and 34 and to paragraphs I, J. O-Y, and AA
are duplicative of topics raised in a prior deposition.
In response, Defendants assert that they are not trying to take a duplicative deposition.
Instead, Defendants assert that David Townsend and David Stills were produced for a corporate
deposition, but for only limited issues and topics. (ECF No. 109 at 2).
The Court will grant the Motion for Protective Order, in part. The Court holds that
Defendants have a right to conduct a 30(b)(6) deposition in this case because it does not appear
that all of the same topics were addressed in the prior corporate deposition in the underlying case.
However, Defendants did not file any response related to Plaintiff’s claim that certain topics are
barred by this Court’s prior rulings related to insurance and attorney-client privilege. To the
extent that the deposition topics are in conflict with this Court’s prior rulings, such topics are not
proper topics for this 30(b)(6) deposition. The parties should come to an agreeable date for the
30(b)(6) deposition as part of their amended joint proposed scheduling plan they will submit to the
Court.
Accordingly,
IT IS HEREBY ORDERED that Defendants’ Motion to Compel, for Sanctions, and to
Disqualify (ECF No. 90) is DENIED.
IT IS FURTHER ORDERED that Defendants’ Motion for Protective Order and/or to
Quash Plaintiff’s Request to Produce Documents Pursuant to Rule 30(b)(6) and 34 of the Federal
Rules of Civil Procedure (ECF No. 105) is DENIED, in part. The Court will extend the deadline
for this deposition to take place to allow Defendant thirty (30) days to provide the relevant

and (B) is now offered against a party who had — or, in a civil case, whose predecessor in interest
had — an opportunity and similar motive to develop it by direct, cross-, or redirect examination.”
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documents. The parties shall provide an amended joint proposed scheduling plan no later than
September 9, 2016.
IT IS FINALLY ORDERED that Defendants’ Motion for Protective Order (ECF No. 107) is
GRANTED, in part, and DENIED, in part, as outlined above. The parties should come to an
agreeable date for the 30(b)(6) deposition as part of their amended joint proposed scheduling plan
they will submit to the Court.

Dated this 2nd day of September, 2016.

_______________________________
RONNIE L. WHITE
UNITED STATES DISTRICT JUDGE

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