Scott v. Menard, Inc.

Filing 33

ORDER that the court's rulings on Plaintiff's motion for additional discovery responses are attached hereto. Plaintiff's response to Defendant's summary judgment motion shall be filed on or before July 29, 2016, with any reply fil ed on or before August 9, 2016. Plaintiff has failed to show good cause for extending the deadlines in the court's scheduling order, and his oral motion to continue the discovery deadline and to permit additional depositions and written discovery is denied. See Sherman v. Winco Fireworks, Inc., 532 F.3d 709 (8th Cir. 2008). Ordered by Magistrate Judge Cheryl R. Zwart. (LAC)

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF NEBRASKA
DAVID SCOTT,
Plaintiff,

8:15CV127

vs.
ORDER
MENARD, INC., a Corporation;
Defendant.
As stated and explained on the record, (Filing No. 32),

IT IS ORDERED:

1)

The court’s rulings on Plaintiff’s motion for additional discovery responses

are attached hereto.

2)

Plaintiff’s response to Defendant’s summary judgment motion shall be filed

on or before July 29, 2016, with any reply filed on or before August 9, 2016.

3)

Plaintiff has failed to show good cause for extending the deadlines in the

court’s scheduling order, and his oral motion to continue the discovery deadline and to
permit additional depositions and written discovery is denied. See Sherman v. Winco
Fireworks, Inc., 532 F.3d 709 (8th Cir. 2008).

July 15, 2016.

BY THE COURT:
s/ Cheryl R. Zwart
United States Magistrate Judge

Moving Party:

David Scott

David Scott v Menard, Inc.
Case No. 8:15-CV-00127-JMG-CRZ
To assist the Court in more efficiently addressing the parties’ discovery dispute(s), the parties shall meet and confer, and jointly complete the
following chart. The purpose of this chart is to succinctly state each party’s position and the last compromise offered when the parties met and
conferred. The fully completed chart shall be e-mailed to chambers at [e-mail].
The moving party is:

David Scott

The responding party is:

Menard, Inc.

Note: If discovery from both parties is at issue, provide a separate sheet for each moving party.
Discovery Request at Issue

Relevant to prove...

Moving Party’s
Initial Position

Responding Party’s
Initial Position

Interrogatory 2: If
Defendant has been involved
in any prior litigation, action,
lawsuit, or dispute in
Nebraska arising out of an
incident similar to the
incident which is subject to
this litigation, an individual
tripping over any cart, box or
other item on Defendant’s
premises, please state the
case number, date,
description of the incident,
alleged damages, and
outcome.

Relevant to show that
this is not the first time
that Defendant was
negligent in the
handling of the storing
of its equipment and
should have known this
was a hazard

This Interrogatory is
intended to show
that the responding
party has a history of
being negligent in
the way it stores it’s
carts, dollies, boxes,
or other items on
Defendant’s
premises and that
the Defendant
should be
responsible for
accidents on its
premises

Objection, irrelevant,
overbroad, unduly
burdensome, and not
reasonably calculated
to lead to discovery
of admissible
evidence.
Menard’s does not
keep information in
this manner. It would
be unduly
burdensome to locate
it. Someone would
have to go through
claim files by hand to
locate particular
types of claims.
Menard’s submitted
the Affidavit of the
store manager who

1

Moving Party’s Last
Offered Compromise

Responding Party’s
Last Offered
Compromise

Plaintiff served
discovery requests
upon the Defendant
on December 28, 2015
and had given the
Defendant a number
of extensions to
Answer Plaintiff’s
discovery requests.
On February 29, 2016
Plaintiff’s attorney
emailed Defendant’s
attorney seeking a
timeline for responses
to discovery requests.
On March 18, 2016
Plaintiff’s attorney
called Defendant’s
attorney seeking a
status on the discovery
responses and agreed

The deadline for
Motions to Compel
was 4/4/16. Counsel
was required to
contact the Court prior
to filing. Instead,
Plaintiff simply filed a
Motion – late – on
4/12/16. The
defendant’s discovery
responses were largely
completed in March
and by oversight
simply did not get
served. If the Court
had been contacted
per policy, or if
Counsel had even
contact me again, the
responses would still
have been provided

Court’s Ruling
Objection
sustained.

Moving Party:
has been employed
by Menard’s for over
28 years, 16 years in
management. He has
never heard of a
customer claim or
lawsuit for falling
over this type of
carpet dolly, or any
other type of
shopping cart, or cart,
or dolly. The burden
of searching for such
information
outweighs the
possibility of finding
it. As for lawsuits, the
information is equally
available to Plaintiff;
Plaintiff could get on
Justice and Pacer and
look for the
information himself
as easily as Menard’s
could. The
information would
not be admissible
without foundation,
and is therefore
irrelevant. It is
overbroad; Plaintiff
did not trip over a
“box or other item.”
“Other item” could
be virtually anything,
but Plaintiff fell over
a particular type of
carpet dolly.

2

David Scott

to provide Defendant’s
attorney with an
additional 14 days to
Answer discovery
requests. On April 12,
2016 Defendant’s
attorney still had not
responded to
discovery request. On
April 12, 2016
Plaintiff’s attorney
filed a Motion to
Compel. According to
Federal Rules of
Discovery Rule
33(b)(4), “Objections.
The grounds for
objection an
interrogatory must be
stated with specificity.
Any ground not stated
in a timely objection is
waived unless the
court, for good cause,
excuses the failure.”
Defendant’s objections
were not timely.

within three days on
4/15/16, but without
the necessity of the
Motion. Menard’s
served discovery on
8/31/15, and it was
answered 12/17/15 108 days. Plaintiff
served discovery on
12/29/15, and I
answered 4/15/16 108 days.
I provided discovery
responses and asked
Plaintiff’s Counsel to
withdrawal the
Motion to Compel.
Plaintiff would not
withdraw it because
he said he wanted to
collect attorney fees.
This is unduly
burdensome and the
Affidavit of the store
manager, offered in
support of the defense
Motion for Summary
Judgment states that
there has never been a
similar claim at this
store.

Moving Party:
Interrogatory 6: State the
names, address, telephone
numbers, relation to
Defendant of each person
Defendant intends to call as
a witness at any hearing or
trial on this matter. For each
person provide a summary
of their expected testimony.

Relevant in the aspect
that Plaintiff may need
to take their deposition
prior to the deadline for
trial in this matter

Plaintiff is trying to
determine whose
depositions need to
be taken prior to the
trial of this matter.

Relevant as to what to
what happened to
cause accident, how the
accident happened, and
Plaintiff’s attorney may

Plaintiff is not
requesting just any
statements taken
from the injured
party but also from

Objection, privileged,
work product,
prepared in
anticipation of
litigation. Subject to

This is an attempt to
re-open discovery. On
7/10/15, in Initial
Disclosures, Menard’s
identified the store
manager and three
employees as persons
having knowledge. On
6/19/15, trial was set
for 4/18/16. Discovery
closed 2/16/16. After
the Case Conference
on 1/19/16, the
deposition deadline
was moved back to
5/1/16. On 4/15/16,
Menard’s provided an
Answer to
Interrogatory about
the same four people.
The deposition
deadline was 5/1/16.
No request was ever
made by Plaintiff to
depose anyone, even
though names were
provided over a year
ago. The Answer to
Interrogatory has been
supplemented to
identify as witnesses
the people identified
as persons with
knowledge.

Unknown at this
time. This Answer
will be supplemented
in accordance with
applicable Rules and
Scheduling Orders.

Interrogatory 10: If you or
your representatives took
and statements as defined in
the applicable Rules of Civil
Procedure, please identify

David Scott

3

Plaintiff served
discovery requests
upon the Defendant
on December 28, 2015
and had given the

Motion denied
as moot. The
parties have
resolved this
issue.

Menard’s has no
statement of Plaintiff,
which is all that is
discoverable without
an additional showing

Motion to
compel denied
as moot. The
parties have
resolved this

Moving Party:
the person giving the
statement (including your
attorney, consultant, surety,
indemnitor, insurer, or
agent) and indicate for each
statement:
(a) The date of taking
and place it was
taken;
(b) Name and employer
of person taking it;
(c) Who has custody of
each statement;
and
(d) The manner of
recording the
statement

decide to take the
deposition of said
person giving statement

any witnesses,
employees, etc. who
may have witnessed
or have knowledge
of the accident.

and without waving
said objection,
Menard, Inc. has no
statements from
Plaintiff.

4

David Scott

Defendant a number
of extensions to
Answer Plaintiff’s
discovery requests.
On February 29, 2016
Plaintiff’s attorney
emailed Defendant’s
attorney seeking a
timeline for responses
to discovery requests.
On March 18, 2016
Plaintiff’s attorney
called Defendant’s
attorney seeking a
status on the discovery
responses and agreed
to provide Defendant’s
attorney with an
additional 14 days to
Answer discovery
requests. On April 12,
2016 Defendant’s
attorney still had not
responded to
discovery request. On
April 12, 2016
Plaintiff’s attorney
filed a Motion to
Compel. According to
Federal Rules of
Discovery Rule
33(b)(4), “Objections.
The grounds for
objection an
interrogatory must be
stated with specificity.
Any ground not stated
in a timely objection is
waived unless the
court, for good cause,

by Plaintiff. Any other
statements are
privileged. The Court
can, for good cause,
excuse the failure to
timely object.

issue.

Moving Party:

David Scott

excuses the failure.”
Defendant’s objections
were not timely.
Interrogatory 11: State
whether you or your agents,
attorneys, experts, or
anyone representing your
interest have made any
investigations, prepared any
drawings, written reports,
sketches, maps, models or
any form of demonstrative
evidence, or taken any
photographs, slides or
movies (including videotape)
relative to the Incident and,
if so, state:
(a) The name and
address of the
person or persons
preparing each
item;
(b) When and where
each item was
prepared;
(c) The nature or
description of each
item;
(d) Who current has
possession of each
item; and
(e) Whether the items
will be voluntarily
exhibited to the
undersigned
counsel

Relevant to show
whether or not this
accident was
investigated, how the
accident happened, and
whether or not the
accident could have
been prevented

Plaintiff wants to see
any investigative
materials that have
been made,
discovered during
the investigation to
determine what
depositions will need
to be taken prior to
any trial in this
matter and
determine if an
expert is needed to
rebuttal any report,
sketches, drawing,
photographs, etc.

Objection, privileged,
work product,
prepared in
anticipation of
litigation.

5

Plaintiff served
discovery requests
upon the Defendant
on December 28, 2015
and had given the
Defendant a number
of extensions to
Answer Plaintiff’s
discovery requests.
On February 29, 2016
Plaintiff’s attorney
emailed Defendant’s
attorney seeking a
timeline for responses
to discovery requests.
On March 18, 2016
Plaintiff’s attorney
called Defendant’s
attorney seeking a
status on the discovery
responses and agreed
to provide Defendant’s
attorney with an
additional 14 days to
Answer discovery
requests. On April 12,
2016 Defendant’s
attorney still had not
responded to
discovery request. On
April 12, 2016
Plaintiff’s attorney
filed a Motion to
Compel. According to
Federal Rules of
Discovery Rule

Investigation of a
claim, whether by the
defendant, its insurer,
or its attorneys, is
clearly privileged. The
Court can, for good
cause, excuse the
failure to timely
object. The interests
of justice require
preserving this
privilege, as allowing
Plaintiff access to
privileged information
would create an unfair
advantage out of all
proportion to tardy
discovery responses.
Menard’s took one
photograph of a
similar dolly in the
carpet department. It
was given to Plaintiff
over a year ago.
Defendant does not
have any drawings or
models and so forth.
Demonstrative
evidence may be
created for trial, but
that is not
discoverable.

The parties will
produce to each
other any
demonstrative
aid(s) created
for trial at least
3 days before
the pretrial
conference.

Moving Party:

Interrogatory 14: Please
state the number and
location of any and all signs,
posters, or markings located
on Defendant’s premises,
subject to this litigation,
which identifies a storage
place or direct storage and
return of any cart, dolly,
trash can, bin, or other item.
State if such a sign, poster,
or marking exists for the cart
that Plaintiff tripped over.

Relevant to show that
the dolly/cart was not
placed in its proper spot
and that there is no
reason for Plaintiff to
have suspected a
dolly/cart in that
location or that the
accident could have
been avoided

This Interrogatory is
not irrelevant as the
Plaintiff tripped over
a carpet dolly while
speaking with a
representative or
employee of the
Defendant.

Objected to as not
relevant; Plaintiff
tripped over a
particular type of
carpet dolly. Plaintiff
did not back into “any
other cart, dolly,
trash can, bin, or
other item.”
Menard’s stated
“there is no sign or
other written
direction for storage
of the dolly, which
was at all times in the
plain view of Plaintiff
and all other persons
at the Menard, Inc.
store.”

6

David Scott

33(b)(4), “Objections.
The grounds for
objection an
interrogatory must be
stated with specificity.
Any ground not stated
in a timely objection is
waived unless the
court, for good cause,
excuses the failure.”
Defendant’s objections
were not timely.
Plaintiff served
discovery requests
upon the Defendant
on December 28, 2015
and had given the
Defendant a number
of extensions to
Answer Plaintiff’s
discovery requests.
On February 29, 2016
Plaintiff’s attorney
emailed Defendant’s
attorney seeking a
timeline for responses
to discovery requests.
On March 18, 2016
Plaintiff’s attorney
called Defendant’s
attorney seeking a
status on the discovery
responses and agreed
to provide Defendant’s
attorney with an
additional 14 days to
Answer discovery
requests. On April 12,
2016 Defendant’s
attorney still had not

Menard’s has not
complied this
information. A party is
not required to create
evidence in response
to a discovery request.
As written, Plaintiff’s
request is overbroad;
it would cover every
shelf label for any item
in the store. It is
almost entirely
irrelevant; a sign for
placement of a
garbage can in the
lumber yard, for
example, sheds no
light on why Plaintiff
backed into a carpet
dolly in the carpet
aisle.
As to the particular
carpet dolly at issue,
Menard’s responded
that there are no
responsive markings.

Objection
sustained.

Moving Party:

David Scott

responded to
discovery request. On
April 12, 2016
Plaintiff’s attorney
filed a Motion to
Compel. According to
Federal Rules of
Discovery Rule
33(b)(4), “Objections.
The grounds for
objection an
interrogatory must be
stated with specificity.
Any ground not stated
in a timely objection is
waived unless the
court, for good cause,
excuses the failure.”
Defendant’s objections
were not timely.
Request for Production 2:
Written or oral statements
taken of any parties,
witnesses, and/or their
representatives or agents.

Relevant to any
recollection of any
witnesses as to how the
accident happened,
Plaintiff may choose to
take their deposition
prior to any trial in this
matter

The Request asks for
any written or oral
statements taken of
any parties,
witnesses, and/or
their representatives
or agents. This
request does not
state just the
Plaintiff.

Menard, Inc. has no
written statement of
Plaintiff, and would
be unable to produce
an oral statement.

7

The Request asks for
any written or oral
statements taken of
any parties, witnesses,
and/or their
representatives or
agents. This request
does not state just the
Plaintiff. Plaintiff has
the right to know of
any statements taken
from anyone who may
have knowledge to the
accident in this case in
order to determine
what depositions may
need to be taken prior
to any trial in this
matter.

Menard’s has no
statement of Plaintiff,
which is all that is
discoverable without
an additional showing
by Plaintiff. Any other
statements are
privileged. The Court
can, for good cause,
excuse the failure to
timely object. The
interests of justice
require preserving this
privilege, as allowing
Plaintiff access to
privileged information
would create an unfair
advantage out of all
proportion to tardy

Motion to
compel denied
as moot. The
parties have
resolved this
issue.

Moving Party:

David Scott
discovery responses.

Request for Production 3:
Copies of all documentation
which tends to prove or
support any claim or defense
in this case.

Relevant to show
whether or not the
Plaintiff should have
known there was a
danger or possibility of
an accident in this
location

Defendant admitted
that Plaintiff tripped
and fell in its store
on November 7,
2014 but has not
provided any
documentation that
shows that the dolly
is not low to the
ground.

Objection call for
Menard, Inc. to try to
anticipate what
Plaintiff might believe
supports Plaintiff’s
claim. As for support
of defenses,
objection as
privileged, work
product. This
Response may be
supplemented in
accordance with
applicable Rules and
Scheduling Orders,
and after review of
the opinions of any
expert(s) designated
by Plaintiff.

8

Plaintiff served
discovery requests
upon the Defendant
on December 28, 2015
and had given the
Defendant a number
of extensions to
Answer Plaintiff’s
discovery requests.
On February 29, 2016
Plaintiff’s attorney
emailed Defendant’s
attorney seeking a
timeline for responses
to discovery requests.
On March 18, 2016
Plaintiff’s attorney
called Defendant’s
attorney seeking a
status on the discovery
responses and agreed
to provide Defendant’s
attorney with an
additional 14 days to
Answer discovery
requests. On April 12,
2016 Defendant’s
attorney still had not
responded to
discovery request. On
April 12, 2016
Plaintiff’s attorney
filed a Motion to
Compel. According to
Federal Rules of
Discovery Rule
33(b)(4), “Objections.
The grounds for

The request requires
speculation on the
part of Menard’s, and
work product.
As mentioned at the
teleconference with
the Court, Plaintiff
backed over a cart and
fell. This did not
generate a lot of
documentation by the
store.
Plaintiff said in his
deposition that he
believed there was
video of his accident.
There is not. Plaintiff
requested cart storage
policies in discovery,
and was told there are
none.
Menard’s took one
photograph of a
similar dolly in the
carpet department. It
was given to Plaintiff
over a year ago.
I had no idea until
reading this that
Plaintiff was seeking
evidence the carpet
dolly was “low to the
ground.” This
demonstrates that the

Objection
sustained.

Moving Party:

David Scott

objection an
interrogatory must be
stated with specificity.
Any ground not stated
in a timely objection is
waived unless the
court, for good cause,
excuses the failure.”
Defendant’s objections
were not timely.
Request for Production 4:
Any documents or items you
intend to introduce into
evidence as exhibits in this
case.

Relevant for Plaintiff to
determine what
exhibits Plaintiff will
offer at trial and to give
Plaintiff an opportunity
to review exhibits and
hire expert if needed

Plaintiff would like
to know what
exhibits Defendant
intends to offer as
evidence in this
matter in order to
determine if any
depositions are
required or what
kind of expert is
needed in this
matter

Unknown at this
time. This Response
will be supplemented
in accordance with
applicable Rules and
Scheduling Orders.

Request calls for
speculation.

Plaintiff has yet to see
any documents or
items Defendant
intends to offer as
exhibits in this case
and therefore is
unable to determine
what depositions may
need to be taken or
experts to hire

This is an attempt to
re-open discovery and
extend the expert
deadline. Trial Exhibits
had not been decided
upon in April. This is a
Request for
Production, which will
not identify potential
deponents and should
not extend the
deposition deadline.
The four persons with
knowledge have been
known to Plaintiff for a
year. Plaintiff has
never made a request
to depose anyone.
The expert deadline
was 8/31/15.
Although I agreed to
an extension on the
deadline, Plaintiff
never named an
expert. In January of
2016, Plaintiff’s
Counsel told me he did
not believe he needed

9

Objection
sustained.

Moving Party:

David Scott
an expert and did not
intend to name one.
After the Case
Conference on
1/19/16, Plaintiff was
given additional time
to name an expert,
until 2/16/16. No
expert was named.

Request for Production 11:
Please provide a map or
blueprint of Defendant’s
premises subject to this
litigation which demarks
each location where
carts/dollies/carpet
carts/and rolling bins are
stored as a matter of
practice and which demarks
the location of each and
every sign or marking
relating to the storage of
such carts/dollies/carpet
carts/and rolling bins.

Relevant to prove that
there is a policy and/or
procedure regarding
location where
carts/dollies/carpet
carts/ and rolling bins
are stored to avoid
hazards, injuries, etc.
To keep carts/dollies,
carpet carts/ and rolling
bins from rolling into
customers.

This request is not
irrelevant as it tends
to show that the
dolly that Plaintiff
tripped over was not
properly stored and
Plaintiff had no
reason to know or
expect a dolly to be
in the middle of the
aisle.

Objection, irrelevant.
Subject to and
without waiving said
objection no
document exists.

10

Plaintiff served
discovery requests
upon the Defendant
on December 28, 2015
and had given the
Defendant a number
of extensions to
Answer Plaintiff’s
discovery requests.
On February 29, 2016
Plaintiff’s attorney
emailed Defendant’s
attorney seeking a
timeline for responses
to discovery requests.
On March 18, 2016
Plaintiff’s attorney
called Defendant’s
attorney seeking a
status on the discovery
responses and agreed
to provide Defendant’s
attorney with an
additional 14 days to
Answer discovery
requests. On April 12,
2016 Defendant’s
attorney still had not
responded to
discovery request. On

Menard’s does not
have such a
document. Plaintiff
wants a map, with cart
storage spots and
signs noted. No such
map exists.
A party is not required
to create evidence in
response to a
discovery request.
As to the particular
carpet dolly at issue,
Menard’s responded
that there are no
responsive markings.
Locations of types of
carts over which Mr.
Scott did not trip, in
areas of the store
where he did not trip,
are irrelevant.

Objection
sustained.

Moving Party:

David Scott

April 12, 2016
Plaintiff’s attorney
filed a Motion to
Compel. According to
Federal Rules of
Discovery Rule
33(b)(4), “Objections.
The grounds for
objection an
interrogatory must be
stated with specificity.
Any ground not stated
in a timely objection is
waived unless the
court, for good cause,
excuses the failure.”
Defendant’s objections
were not timely.

Counsel for [Plaintiff]:

Frank Younes, #24779

Counsel for [Defendant]:

Mary Schott

Date: July 7, 2016.

11