Gardner v. Walmart Inc.

Filing 28

ORDER. IT IS ORDERED that 23 Plaintiffs Motion to Compel and Extend/Reopen Discovery is Granted in part and Denied in part. IT IS FURTHER ORDERED that Defendant shall provide a supplemental response to Interrogatory No. 20 and Request for Prod uction No. 4 within 30 days with the limitations established by the Court. IT IS FURTHER ORDERED that the dispositive motions deadline shall be extended by 60 days to 6/4/2021. Signed by Magistrate Judge Daniel J. Albregts on 4/27/2021. (Copies have been distributed pursuant to the NEF - JQC)

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UNITED STATES DISTRICT COURT

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DISTRICT OF NEVADA

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***

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NICOLE G. GARDNER,

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Plaintiff,
v.

Case No. 2:20-cv-00071-APG-DJA
ORDER

WALMART INC.,

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Defendant.

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This matter is before the Court on Plaintiff’s Motion to Compel and Extend/Reopen

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Discovery (ECF No. 23), filed on March 8, 2021. Defendant filed a Response (ECF No. 24) on

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March 22, 2021 and Plaintiff filed a Reply (ECF No. 25) on March 29, 2021. The Court finds

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this matter properly resolved without a hearing. LR 78-1.

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I.

BACKGROUND

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This action arises from a slip and fall incident on October 27, 2017 in which Plaintiff

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slipped on sugar while walking toward Aisle 24 in Walmart store #2884. Plaintiff claims that she

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recently learned that there have been numerous prior slip, trip, and fall incidents through

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deposition testimony of a former co-manager and employee Marilee Watanabe on March 4, 2021.

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Plaintiff also received deposition testimony from Raymond Hope on March 5, 2021 who testified

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there is no requirement to physically sweep individual aisles. She contends that she requested

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prior incidents from Defendant who limited the request to falls on sugar in the dry grocery section

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and disclosed only one incident. Plaintiff indicates that she served Interrogatory No. 20 on July

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20, 2020, which requested the prior incidents. Similarly, Request for Production No. 4 asked for

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incident reports from prior incidents at that store. The parties met and conferred multiple times

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on the scope of the request, which resulted in Defendant filing a motion for protective order. The

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parties then resolved the matter when Plaintiff withdrew the request in order to conduct further

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discovery through depositions. In light of the new deposition testimony that there were hundreds

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of potential falls at the store, Plaintiff seeks to reopen discovery and compel production of the

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requested slip and fall incidents for the five years prior in all of store #2884.

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Defendant claims that there is no evidence supporting that Defendant had notice of the

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temporary hazard – sugar – involved in the subject incident. It further underscores that the

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substance was a temporary hazard and Nevada law permits prior incidents to be discovered if

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there was a continuing hazard. Defendant notes that it filed a prior motion for protective order on

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this request for prior incidents, which the Court found moot when Plaintiff withdrew it. Further,

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Defendant highlights that it provided a compromise response of prior incidents from three years

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prior to the subject incident that occurred within the subject incident area. Defendant also claims

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there was not a good faith meet and confer prior to Plaintiff’s filing the instant motion.
Plaintiff replies that she satisfied the meet and confer requirement prior to bringing this

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motion. She also contends that the prior incidents were always the subject of her discovery

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attempts, including through the depositions that resulted in the filing of this motion. Plaintiff also

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contends that Defendant purposefully concealed the total number of prior incidents because they

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want to prove their theory that this was an isolated incident. She claims that the deposition

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testimony of hundreds of falls suggest this is a systematic problem and Plaintiff is entitled to a

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response to prior written discovery to determine if there was a continuous and dangerous

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condition.

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II.

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Fed.R.Civ.P. 33 requires the responding party to serve its answers or any objections

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within 30 days after being served with written interrogatories. The “failure to object to discovery

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requests within the time required constitutes a waiver of any objection.” Richmark Corp. v.

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Timber Falling Consultants, 959 F.2d 1468, 1473 (9th Cir. 1992); see also Haddad v. Interstate

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Management Co., LLC, 2012 WL 398764, * 1 (D. Nev. 2012) (same).

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DISCUSSION

Further, Fed.R.Civ.P. 26(b)(1) provides for broad and liberal discovery. “Parties may

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obtain discovery regarding any nonprivileged matter that is relevant to any party’s claim or

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defense.” Id. However, a court may limit discovery via Rule 26(c), which permits the court to

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issue a protective order to protect a party or person from annoyance, embarrassment, oppression,
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or undue burden or expense when the party establishes good cause. For good cause to exist, the

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party seeking protection bears the burden of showing specific prejudice or harm will result if no

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protective order is granted. See Beckman Indus., Inc., v. Int’l. Ins. Co., 966 F.2d 470, 476 (9th

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Cir. 1992).

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Rule 26(c) requires more than “broad allegations of harm, unsubstantiated by specific

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examples or articulated reasoning.” Id; see also Foltz v. State Farm, 331 F.3d 1122, 1130 (9th

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Cir. 2003) (citing San Jose Mercury News, Inc., v. District Court, 187 F.3d 1096, 1102 (9th Cir.

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1999) (holding that the party must make a particularized showing of good cause)). The Supreme

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Court has interpreted the language of Rule 26(c) as conferring “broad discretion on the trial court

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to decide when a protective order is appropriate and what degree of protection is required.”

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Seattle Times Co. v. Rhinehart, 467 U.S. 20, 36 (1984). Additionally, the Supreme Court has

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acknowledged that the “trial court is in the best position to weigh fairly the competing needs and

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interests of the parties affected by discovery. The unique character of the discovery process

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requires that the trial court have substantial latitude to fashion protective orders.” Id.

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However, since the 2015 amendment, Rule 26’s relevancy analysis explores whether the

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information sought has a bearing on the claims and defenses of the parties. Particular attention to

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detail is needed when conducting the relevancy analysis when the claim is negligence and

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specifically, notice is the issue. Like in Caballero v. Bodega Latina Corp., 2017 WL 3174931 at

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*2 (D. Nev. July 25, 2017), the linchpin here is that the alleged dangerous condition – sugar –

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was temporary and changeable in nature. In general, prior incidents of a temporary dangerous

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condition may help establish that a defendant had actual or constructive notice of its probable

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recurrence. However, the Nevada Supreme Court made it clear in Eldorado Club, Inc. v. Graff,

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78 Nev. 507, 511, 377 P.2d 174, 176 (1962) that notice evidence is not admissible for a slip and

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fall that was caused by the temporary presence of debris or foreign substance.

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Significantly, we are only talking about discoverability rather than admissibility at this

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stage in the case. As in Shakespear v. Wal-Mart Stores, Inc., 2012 WL 13055159, at *6 (D. Nev.

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Nov. 5, 2012), Plaintiff is entitled to discover evidence of prior incidents because they are

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probative of whether her fall was caused by a temporary condition as Defendant claims or a

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recurring problem that Defendant had a duty to address.

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Discovery closed in this matter on March 8, 2021. Ms. Watanabe’s deposition was on

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March 4, 2021 and Mr. Hope’s deposition was on March 5, 2021. The Court finds that Plaintiff

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acted diligently to file this Motion in a timely manner; Plaintiff is not precluded from bringing the

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Motion simply because Defendant’s prior motion for protective order was found moot. The Court

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hoped that the issue was resolved with finality, but since it is apparent that a new dispute has

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arisen, the Court will consider Plaintiff’s request. Further, although the Court finds it warranted

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to compel a supplemental response as discussed below, it will not reopen discovery. The parties

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may complete this final matter outside the close of discovery and the Court will extend the

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dispositive motions deadline by 60 days so that there is sufficient time to review the response. As

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no other discovery is requested subsequent to the supplemental response, the Court finds it

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unnecessary to reopen discovery and will simply consider the response timely submitted.

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As for the relevance and proportionality of the prior incident requests, the Court promotes

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resolution of this case on the merits. With discovery just closing and the new information from

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the depositions becoming known, the Court finds that no prejudice results to Defendant by

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compelling supplemental responses at this state of the litigation. Indeed, no trial date has been set

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and no dispositive motions have been ruled upon. Plaintiff contends that the prior incidents are

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relevant to establishing that the hazard was a continuous hazard rather than a single, isolated

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incident as Defendant claims. Under these circumstances, with Plaintiff asserting a negligence

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claim along with negligent training and supervision, the Court will compel a supplemental

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response because it finds the information to be relevant and proportional to the needs of this case.

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This is a very specific case-by-case inquiry. After giving it careful consideration for this case, the

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Court finds that Plaintiff has carried her burden of establishing relevance.

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For the proportionality analysis, the Court considered the importance of the issues at

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stake, the amount in controversy, the parties’ relative access to information, the parties’ resources,

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the importance of the discovery in resolving the issues, and whether the burden or expense of the

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proposed discovery outweighs its likely benefit. Fed.R.Civ.P. 26(b)(1); see also Caballero, 2017
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WL 3174931 at *2. The Court will narrow Plaintiff’s request for prior incidents as follows: Only

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incidents for three years prior to the subject incident, that occurred in store #2884, and that

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involved sugar or other granular substance. This does not expand the time scope since Defendant

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already provided one incident for the prior three years. Three years is not burdensome here given

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that there was only one incident in the prior three years in the subject area; as such, it is not

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comparable to other cases that applied an 18 month limitation nor does this set a precedent that

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finding three years is always appropriate. Further, it only slightly expands the location scope

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from just the subject incident location to all locations in the store with the important limitation

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that prior incidents must similarly involve sugar or other granular substance. Again, the Court is

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not discussing admissibility of this evidence, but rather, only appropriate discovery for Plaintiff’s

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theory that the sugar may have been a continuous hazard. With this narrow tailoring, the Court

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finds the requests to be proportional to the needs of this case. Defendant will have 30 days to

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provide the supplemental response to Plaintiff. To the extent there are privacy concerns regarding

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third party or medical information, Defendant may redact information or submit it to Plaintiff

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under a protective order governing the exchange of discovery materials.

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III.

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IT IS THEREFORE ORDERED that Plaintiff’s Motion to Compel and Extend/Reopen

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CONCLUSION

Discovery (ECF No. 23) is granted in part and denied in part.
IT IS FURTHER ORDERED that Defendant shall provide a supplemental response to

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Interrogatory No. 20 and Request for Production No. 4 within 30 days with the limitations

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established by the Court.

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IT IS FURTHER ORDERED that the dispositive motions deadline shall be extended by
60 days to June 4, 2021.
DATED: April 27, 2021

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DANIEL J. ALBREGTS
UNITED STATES MAGISTRATE JUDGE

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