Wilson v. Wal-Mart Stores, Inc.

Filing 83

ORDER that 36 Motion for Protective Order is GRANTED in part and DENIED in part. FURTHER ORDERED that 37 Motion for Protective Order is GRANTED in part and DENIED in part. FURTHER ORDERED that 54 Counter-Motion to Compel is DENIED. Signed by Magistrate Judge Cam Ferenbach on 3/16/16. (Copies have been distributed pursuant to the NEF - MMM)

UNITED STATES DISTRICT COURT

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DISTRICT OF NEVADA
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***

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KATIE F. WILSON,
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Case No. 2:15–cv–1791–RCJ–VCF

Plaintiff,
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vs.

ORDER

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WAL-MART STORES, INC.,

MOTION FOR PROTECTIVE ORDER (DOC. #36);
MOTION FOR PROTECTIVE ORDER (DOC. #37);
COUNTER-MOTION TO COMPEL (DOC. #54)

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Defendant.

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This matter involves Plaintiff Katie F. Wilson’s civil action against Wal-Mart Stores, Inc.
Before the court are the following motions:

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1.

Wal-Mart’s motion for protective order (Doc. #36) and Wilson’s response (Doc. #53).

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Wal-Mart’s motion for protective order (Doc. #37), Wilson’s response (Doc. #52), and

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Wal-Mart’s reply (Doc. #66).
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3.

Wilson’s counter-motion to compel (Doc. #54) and Wal-Mart’s response (Doc. #72).

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For the reasons stated below, Wal-Mart’s motion for protective order (Doc. #36) is granted in

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part and denied in part. Wal-Mart’s motion for protective order (Doc. #37) is granted in part and denied
in part. 1 Wilson’s counter-motion to compel (Doc. #54) is denied.
I. Legal Standard

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“A party or any person from whom discovery is sought may move for a protective order in the

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court where the action is pending.” FED. R. CIV. P. 26(c). “The motion must include a certification that

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Wal-Mart seeks a protective order as to Request for Production Set 1, Request 1 (hereafter “1-1”) and Request for
Production Set 4, Request 1 (hereafter “4-1”). RFP 1-1 and RFP 4-1 request Wal-Mart employee files. Pursuant to the
parties’ joint status report (Doc. #71), the portions of Wal-Mart’s motion for protective order (Doc. #37) regarding Wal-Mart
employee files are denied as moot. Similarly, Wilson’s request to compel (Doc. #54) production of documents responsive to
RFP 1-1 and RFP 4-1 is denied.

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the movant has in good faith conferred or attempted to confer with other affected parties in an effort to
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resolve the dispute without court action.” FED. R. CIV. P. 26(c). “The court may, for good cause, issue

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an order to protect a party or person from annoyance, embarrassment, oppression, or undue burden or

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expense.” FED. R. CIV. P. 26(c).
II. Discussion

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1.

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Wal-Mart’s Request for a Protective Order as to Interrogatories 1, 4, 11, and 13 is Denied
Contrary to Wal-Mart’s assertion, Wilson’s interrogatories 1, 4, 11, and 13 do not constitute

annoyance, embarrassment, oppression, or undue burden. 2 This court previously held that
Interrogatories 1, 4, 11, and 13 sought discoverable information, Wal-Mart’s responses were inadequate,
and ordered Wal-Mart serve adequate responses consistent with the court’s order. (Doc. #43). Wal-

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Mart’s motion for a protective order as to Interrogatories 1, 4, 11, and 13 is denied.
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2.

Wal-Mart’s Request for a Protective Order as to Request for Production (hereafter “RFP”) First

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Set, Request 8 (hereafter “1-8”) is Granted

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Wal-Mart’s request for a protective order as to RFP 1-8 is granted. This court previously held

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that documents responsive to RFP 1-8 were not proportional to the needs of this action. Wal-Mart is not

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required to produce documents responsive to RFP 1-8.

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Wal-Mart also seeks a protective order as to Interrogatory 1 based on work-product protection. “[W]hether a certain person
has factual knowledge relevant to the lawsuit is not protected by the work product privilege.” Laxalt v. McClatchy, 116
F.R.D. 438, 443 (D. Nev. 1987). “The [protection] does prevent opposing counsel, however, from inquiring whether the
investigator has interviewed that particular person in the course of his investigation.” Id. Here, information responsive to
Interrogatory 1 is not protected by the work-product protection. Interrogatory 1 asks, “[s]tate the names, addresses, and
telephone numbers of every person, known to you or to your attorneys, who has or claims to have any knowledge concerning
the facts and circumstances surround the subject incident.” As Wilson is inquiring about individuals with factual knowledge,
rather than individuals Wal-Mart has spoken to, the information requested in Interrogatory 1 is not protected by the workproduct protection.

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Wal-Mart’s Request for a Protective Order as to Interrogatories 8 and 12 is Denied

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Wal-Mart’s request for a protective order as to Interrogatories 8 3 and 12, on the ground that the

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interrogatories ask about subsequent remedial measures, is denied. “Information within th[e] scope of

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discovery need not be admissible in evidence to be discoverable.” FED. R. CIV. P. 26(b)(1). This court

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previously overruled an objection to Interrogatory 12 based on the interrogatory seeking information on

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subsequent remedial measures in violation of Federal Rule of Evidence 407. (Doc. #43). Similarly,

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Wal-Mart’s objections to Interrogatories 8 and 12 on the same ground are overruled; the information

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sought by Interrogatories 8 and 12 may in fact be inadmissible in to evidence, but that does not bar

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Wilson from requesting discovery about Wal-Mart’s subsequent remedial measures. Wal-Mart’s request
for protective order as to Interrogatories 8 and 12 is denied.

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4.

Wal-Mart’s Request for a Protective Order as to Interrogatory 10, RFP First Set, Request 16

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(hereafter “1-16”), and RFP First Set, Request 17 (hereafter “1-17”) is Granted
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Interrogatory 10 and RFPs 1-16 and 1-17 request information about prior “slip and fall” lawsuits

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and incidents at any Las Vegas Wal-Mart location in the past five years. Information about prior “slip

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and fall” incidents is not proportional to the needs of this action. Fed. R. Civ. P. 26(b)(1). While data

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about Wal-Mart’s prior “slip and fall” incidents may be relevant to Wilson’s negligence claim, the

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burden on Wal-Mart to produce this data outweighs any potential benefit this information may have for

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Wilson’s claim. Wal-Mart’s request for a protective order as to Interrogatory 10, RFP 1-16, and RFP 1-

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17 is granted. Wilson’s counter-motion to compel (Doc. #54) as to Interrogatory 10, RFP 1-16, and RFP

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1-17 is denied.

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Wal-Mart also seeks a protective order as to Interrogatory 8 on the ground that it seeks information about prior incidents.
(Doc. #37 at 15). Interrogatory 8 asks, “[h]as the subject area undergone any repairs or changes since the subject incident.”
Here, Interrogatory 8 asks about subsequent remedial measures, not prior incident. Wal-Mart’s request for a protective order
on the ground that Interrogatory 8 asks about prior incidents is denied.

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ACCORDINGLY, and for good cause shown,
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IT IS HEREBY ORDERED that Wal-Mart’s Motion for Protective Order (Doc. #36) is

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GRANTED in part and DENIED in part. Wal-Mart’s request for a protective order as to Interrogatories

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1, 4, 8, 11, 12, and 13 is DENIED. Wal-Mart’s request for protective order as to RFP 1-8 is GRANTED.

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Wal-Mart is not required to produce documents responsive to RFP 1-8.

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IT IS FURTHER ORDERED that Wal-Mart’s Motion for Protective Order (Doc. #37) is

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GRANTED in part and DENIED in part. Wal-Mart’s request for a protective order as to Interrogatory 8

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is DENIED. Wal-Mart’s request for a protective order as to Interrogatories 10, RFP 1-16, and RFP 1-17

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is GRANTED. Wal-Mart is not required to respond to Interrogatory 10, RFP 1-16, or RFP 1-17.
IT IS FURTHER ORDERED that Wilson’s counter-motion to compel (Doc. #54) is DENIED.

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IT IS SO ORDERED.
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DATED this 16th day of March, 2016.
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_________________________
CAM FERENBACH
UNITED STATES MAGISTRATE JUDGE

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