Parshall v. Menard, Inc.

Filing 85

MEMORANDUM AND ORDER IT IS HEREBY ORDERED that third-party defendant's motion to compel [Doc. # 59 ] is granted in part and denied in part. IT IS FURTHER ORDERED that the defendant shall have until March 28, 2017 to answer Interrogatory 11 and produce all documents responsive to Requests No. 8, 9, and 29. Signed by District Judge Carol E. Jackson on 3/8/17. (KXS)

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF MISSOURI
EASTERN DIVISION
RICHARD PARSHALL,
Plaintiff,
vs.
MENARD, INC. d/b/a MENARDS,
Defendant/Third-Party Plaintiff,
vs.
DANIEL STREIBERG,
Third-Party Defendant.

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Case No. 4:16-CV-828 (CEJ)

MEMORANDUM AND ORDER
This matter is before the Court on the motion to compel filed by third-party
defendant Daniel Streibig1.

The parties have responded in opposition and the

issues are fully briefed.
I.

Background
This action arises from an incident in which merchandise fell from a display

and struck plaintiff at a Menards store on Manchester Road in Ballwin, Missouri.
Plaintiff alleges defendant failed to properly secure the merchandise in the display.
Defendant alleges that Streibig was negligent in handling the merchandise and is
thus culpable for the harm suffered by plaintiff.

On October 20, 2016, Streibig

served his first request for production of documents and his first set of

1

The parties appear to agree that the third-party defendant’s name is “Streibig” not
“Streiberg.”

interrogatories on defendant, requesting information and documents related to
similar incidents at other Menards stores.
The following requests and interrogatories are at issue:
Request No. 8 seeks “[a]ll documents and things relating to any complaints
(including OSHA-related complaints), citations, or investigations related to the
stocking, organizing, placing, shelving, arranging, or displaying of merchandise at
Menards’ stores from January 1, 2010 to present.” [Doc. #59-1].

Defendant

objected to the request on the grounds that it: “seeks information regarding a
matter that is not proportional to the needs of the case considering the importance
of the issues at stake in the action, is vague, is overbroad as to time and scope, is
ambiguous as to the meaning of ‘complaints, citations, or investigations,’ is unduly
burdensome, seeks information that is irrelevant or immaterial, and is not
reasonably calculated to lead to the discovery of admissible evidence.” Defendant
also objected on the grounds that the request “seeks information protected by the
attorney work-product doctrine, attorney-client privilege, and/or insurer-insured
privilege.” Defendant stated the request “impermissibly seeks information about
communications or statements made in anticipation of litigation.” Defendant also
objected to the extent “the request seeks information that is proprietary and
confidential and not publicly known.” In response to the request, defendant stated
that there were no “complaints, citations, or investigations” involving copper
grounding rods, limiting its response to the Manchester Road store and without
waiving the aforementioned objections.
Request No. 9 seeks “[a]ll documents and things relating to any informal or
formal complaints, incidents, or reports related to the stocking, organizing, placing,

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shelving, arranging, or displaying of merchandise at Menards’ stores from January
1, 2010 to present.” [Doc. #59-1].

Defendant objected to the request on the

grounds that it: “seeks information regarding a matter that is not proportional to
the needs of the case considering the importance of the issues at stake in the
action, is vague, is overbroad as to time and scope, is ambiguous as to the
meaning of ‘complaints, incidents, or reports,’ is unduly burdensome, seeks
information that is irrelevant or immaterial, and is not reasonably calculated to lead
to the discovery of admissible evidence.” Defendant also objected on the grounds
that the request “seeks information protected by the attorney work-product
doctrine, attorney-client privilege, and/or insurer-insured privilege.” Defendant
further

asserted

that

the

request

“impermissibly

seeks

information

about

communications or statements made in anticipation of litigation.” Defendant also
objected to the extent “the request seeks information that is proprietary and
confidential and not publicly known.” In response to the request, defendant stated
that there were no “complaints, incidents, or reports” involving copper grounding
rods, limiting its response to the Manchester Road store and without waiving the
aforementioned objections.
Request No. 28 seeks “[a] copy of any complaint and/or petition in any
personal injury or worker’s compensation lawsuit in which You have been a party
since January 1, 2010 to present.” [Doc. #59-1].

Defendant objected to the

request on the grounds that it: “seeks information regarding a matter that is not
proportional to the needs of the case considering the importance of the issues at
stake in the action, is vague, is overbroad as to time and scope, is unduly
burdensome, seeks information that is irrelevant or immaterial, and is not

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reasonably calculated to lead to the discovery of admissible evidence.” Defendant
also objected on the grounds that the request “seeks information protected by the
attorney work-product doctrine, attorney-client privilege, and/or insurer-insured
privilege.” Defendant stated the request “impermissibly seeks information about
communications or statements made in anticipation of litigation.” Defendant also
objected to the extent “the request seeks information that is proprietary and
confidential and not publicly known.” Defendant did not provide a response to the
request.
Request No. 29 seeks “[a]ll documents and things that refer or relate to all
formal and informal complaints, petitions, allegations, lawsuits, and/or incident
reports relating to the stocking, organizing, placing, shelving, arranging, or
displaying of Menards’ merchandise, including but not limited to any complaints,
petitions, allegations, lawsuits, and/or incident reports relating to merchandise that
fell off or was knocked off any shelves or display areas at Menards.” [Doc. #59-1].
Defendant objected to the request on the grounds that it: “seeks information
regarding a matter that is not proportional to the needs of the case considering the
importance of the issues at stake in the action, is vague, is overbroad as to time
and scope, is unduly burdensome, seeks information that is irrelevant or
immaterial, and is not reasonably calculated to lead to the discovery of admissible
evidence.”

Defendant also objected on the grounds that the Request “seeks

information protected by the attorney work-product doctrine, attorney-client
privilege,

and/or

insurer-insured

privilege.”

Defendant

stated

the

request

“impermissibly seeks information about communications or statements made in
anticipation of litigation.” Defendant also objected to the extent “the request seeks

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information that is proprietary and confidential and not publicly known.”

In

response to the request, defendant incorporated their response to Request No. 9,
stating stated that there were no “complaints, incidents, or reports” involving
copper grounding rods, limiting its response to the Manchester Road store and
without waiving the aforementioned objections.
Interrogatory No. 11 asks Menards to “[i]dentify and describe in detail all
formal and informal complaints, petitions, allegations, lawsuits, and/or incident
reports relating to the stocking, organizing, placing, shelving, arranging, or
displaying of Menards’ merchandise, including but not limited to any complaints,
petitions, allegations, lawsuits, and/or incident reports relating to merchandise that
fell off or was knocked off any shelves or display areas at Menards.” [Doc. #59-2].
Defendant objected to the interrogatory on the grounds that it: “seeks information
regarding a matter that is not proportional to the needs of the case considering the
importance of the issues at stake in the action, is vague, is overbroad as to time
and scope, is ambiguous as to the meaning of ‘complaints, petitions, allegations,
lawsuits, and/or incident reports’ and ‘stocking, organizing, placing, shelving,
arranging, or displaying,’ is unduly burdensome, seeks information that is irrelevant
or immaterial, and is not reasonably calculated to lead to the discovery of
admissible evidence.”

Defendant also objected on the grounds that the Request

“seeks information protected by the attorney work-product doctrine, attorney-client
privilege,

and/or

insurer-insured

privilege.”

Defendant

stated

the

request

“impermissibly seeks information about communications or statements made in
anticipation of litigation.” Defendant also objected to the extent “the request seeks
information that is proprietary and confidential and not publicly known.”

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In

response to the interrogatory, defendant answered that there were no similar
incidents, limiting its response to the Manchester Road store and without waiving
the aforementioned objections.
II.

Legal Standard
Under Federal Rule of Civil Procedure 26(b)(1), parties may obtain discovery

regarding any non-privileged matter that is relevant to any party's claim or
defense. Fed.R.Civ.P. 26(b)(1). Upon a showing by the requesting party that the
discovery is relevant, the burden is on the party resisting discovery to explain why
discovery should be limited. Sunnen Prod. Co. v. Travelers Cas. & Sur. Co. of Am.,
No. 4:09CV00889 JCH, 2010 WL 743633, at *1 (E.D. Mo. Feb. 25, 2010). Bare
assertions that the discovery requested is overly broad, unduly burdensome,
oppressive, or irrelevant are ordinarily insufficient to bar production. Id.
III.

Discussion
Initially, the Court notes that neither the motion to compel nor the response

addresses the privilege and work-product objections asserted by Menards. Because
Streibig does not challenge those objections, the Court will not determine their
validity.
Streibig argues that his requests and interrogatories are narrowly tailored
and relevant to discovery.

Initially, Streibig sought information pertaining to

incidents relating to all personal injury lawsuits or workers compensation cases
involving Menards and information relating to the stocking, organizing, placing,
shelving, arranging, or displaying of Menards’ merchandise.

However, Streibig

states that he has narrowed his original request to seeking only documents and
information relating to formal and informal reports, complaints, petitions, and/or

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workers’ compensation claims based on merchandise that fell off a shelf or display
at each of Menards’ stores since January 1, 2010.

This language is included in

Requests No. 8, 9, and 29, as well as Interrogatory No. 11.

Defendant is correct

that Streibig’s original requests and interrogatories sought information that was
impermissibly broad under Fed. R. Civ. P. 26(b)(1) as it sought information that
could not be considered relevant to Streibig’s defense. Streibig’s amended request
moots that objection.

Information that relates to claims based on merchandise

falling off of a shelf or display is relevant and tailored to produce evidence that
could be similar to the incident at issue in this case.
Defendant also

argues that these

requests

are unduly

burdensome.

Defendant states that it received over 53,000 personal injury and worker’s
compensation claims during the relevant time period.

Defendant submitted two

affidavits stating that it maintains an electronic record of the complaints which
include narrative descriptions of the accidents.
word-searchable.

Further, the electronic record is

Defendant has failed to show how these requests are unduly

burdensome given defendant’s search capabilities.

Accordingly, the defendant’s

objections to Requests No. 8, 9, 29, and Interrogatory No. 11 are overruled.
Streibig also claims that Request No. 28 seeks discoverable information
relating to other incidents similar to the one at issue in this case. Defendant argues
that this request is extraordinarily broad because the request seeks documents
relating to every personal injury lawsuit or workers compensation case involving
defendant.

The Court agrees.

This request is not narrowly tailored to provide

relevant information that is similar to the one at issue in this case.

Streibig’s

request here is much broader than the aforementioned requests and interrogatories

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which were narrowed to incidents of merchandise falling off of a shelf or display. In
his response, Streibig has failed to articulate a sufficient reason for the request.
Streibig’s request for a copies of complaints/petitions filed in all personal injury or
worker’s compensation lawsuits is overly broad and unduly burdensome because it
is not tailored to produce relevant information.

Accordingly, Streibig’s motion to

compel a response to Request No. 28 is denied.
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For the reasons discussed above,
IT IS HEREBY ORDERED that third-party defendant’s motion to compel
[Doc. #59] is granted in part and denied in part.
IT IS FURTHER ORDERED that the defendant shall have until March 28,
2017 to answer Interrogatory 11 and produce all documents responsive to
Requests No. 8, 9, and 29.

CAROL E. JACKSON
UNITED STATES DISTRICT JUDGE
Dated this 8th day of March, 2017.

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