Hibner v. Home Depot, U.S.A., Inc.

Filing 56

ORDER granting in part and denying in part 30 Plaintiff's Motion to Compel by Magistrate Judge Gregory J. Fouratt. (sr)

UNITED STATES DISTRICT COURT
DISTRICT OF NEW MEXICO
CHRIS HIBNER,
Plaintiff,
v.

Civ. No. 17-1175 MV/GJF

HOME DEPOT U.S.A., INC.,
Defendant.
ORDER GRANTING PLAINTIFF’S MOTION TO COMPEL
This matter is before the Court upon Plaintiff’s Motion to Compel (“Motion”) [ECF No.
30], filed on May 31, 2018. After the matter was fully briefed [ECF Nos. 35, 39, 44, 45, and 48],
the Court held a hearing on July 16, 2018. For the reasons to follow and those articulated during
the hearing, the Court GRANTS IN PART AND DENIES IN PART the Motion. In addition,
pursuant to Federal Rule of Civil Procedure 37(a)(5)(A), the Court ORDERS Defendant or its
counsel to pay Plaintiff’s counsel $1,200.00 in attorney’s fees.
A.

PROCEDURAL HISTORY

The bulk of the discovery skirmish between the parties predates the instant motion.1
Consistent with the Court’s practice to resolve discovery disputes as soon as they arise and in a
manner that is less formal than a fully-litigated motion to compel but virtually as reliable, the
Court held a telephonic hearing on April 18, 2018. Prior to the hearing, the Court had received
extensive electronic mail submissions in which each side set forth its position as to why the
Court should either order or deny the contested discovery. The 78-minute hearing that followed
concerned a sizable number of Plaintiff’s requests for admission, interrogatories, and requests for
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The Motion to Compel also concerns a dispute between the parties about whether Defendant must send two
exemplar pallets to Plaintiff’s expert witness. See Pl.’s Mot. ¶¶ 4-8, ECF No. 30. As set forth in Defendant’s
Response and Plaintiff’s Reply, that issue has been rendered moot. See Def.’s Resp. 11-13, ECF No. 35; Pl.’s Reply
1-2, ECF No. 39. Consequently, the Court will deny the Motion as moot to the extent it relates to the pallet issue.

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production. Clerk’s Minutes 1-3, ECF No. 23. Featuring prominently during that hearing was
Interrogatory No. 9 (“INT 9”), which sought certain information about other customers in the last
ten years who made claims for injuries allegedly suffered at Home Depot stores that were caused
by or involved pallets.
During that April 18 hearing, Plaintiff’s counsel agreed to significantly narrow the scope
of INT 9. Indeed, he agreed to limit his inquiry only to information stored in a database
maintained by or accessible to the General Litigation section of Defendant’s corporate counsel
office that met these parameters: any claims, including those resulting in lawsuits, made by
customers alleging that they were injured by slips, trips, or falls allegedly caused by pallets at
Home Depot stores nationwide dating back to the later of April 9, 2005, or the inception of the
database. Clerk’s Minutes 2. For those claims that ripened into lawsuits, Plaintiff’s counsel
agreed to accept only the names of the parties to the action, the case caption, and judicial district
for each lawsuit. See Tr. 38-43, ECF No. 51 (“Tr. No. 1”); Clerk’s Minutes 1-2; Def.’s Resp. 1,
ECF No. 35. With the interrogatory so narrowed, and armed with information from defense
counsel that Defendant’s claims database could be accessed to provide this information, the
Court ordered Defendant to respond to the new and narrowed scope of INT 9, thereby overruling
Defendant’s objections as to relevance, overbreadth, undue burdensomeness, and assorted
proprietary and privacy concerns. See Tr. No. 1 at 38-43; Clerk’s Minutes 2. 2

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Plaintiff’s Request for Production No. 7 (“RFP 7”) is the companion discovery request to Interrogatory No. 9, and
it asked Defendant to “produce a copy of all documentation regarding any claim(s) made against you or suit filed
against you in the ten (10) years preceding the incident, in which a person claimed to have been injured in any way
involving a pallet at any of your stores.” Def.’s Resp. 6. During the April 18 hearing, the Court sustained
Defendant’s overbreadth objection to this request, and suggested that Plaintiff propound a narrower RFP after
reviewing Defendant’s response to the narrowed scope of Interrogatory No. 9. Tr. No. 1 at 49-50, ECF No. 51.
Because there is no indication in Plaintiff’s Motion that he propounded a new RFP to correspond to the narrowed
scope of INT 9, the Court’s earlier ruling sustaining Defendant’s objections as to RFP 7 still stands. Accordingly,
the Court will deny the Motion to the extent it relates to RFP 7.

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B.

MOTION TO COMPEL BRIEFING

Plaintiff asserts in his Motion that, despite the Court overruling Defendant’s objections to
the narrowed INT 9 during the April 18 hearing, Defendant never did supplement its discovery
responses to include information regarding “previous claims and lawsuits nationwide regarding
customer injuries dating back to 2007 and pertaining to ‘slips, trips, and falls’ involving pallets.”
See Pl.’s Mot. 1, ECF No. 30.
In its Response, Defendant ignored altogether what occurred during the April 18 hearing,
most especially the substantial narrowing of the scope of INT 9 and the Court overruling
Defendant’s objections and ordering Defendant to respond. Instead, Defendant relied on the
exact same objections it had made leading up to and during the April 18 hearing. See Def.’s
Resp. at 5-11. In his Reply, Plaintiff highlighted the fact that Defendant’s Response did not at all
take into account the Court’s prior ruling on the narrowed discovery request. See Pl.’s Reply 24, ECF No. 39. Granted permission to file a surreply, Defendant confessed that it misunderstood
the nature of the Court’s order on April 18, believing that the hearing consisted of “advisory
discussions that took place during the informal telephone conference,” and asserting that the
Court’s order during that hearing did not have a “binding effect” on the parties. Def.’s Surreply
2, ECF No. 49. Defendant’s Surreply again labored under its misapprehension that Plaintiff had
not narrowed the scope of its discovery requests during the hearing on April 18. See id. at 3-4.
C.

JULY 16, 2018 HEARING

Although the transcript of the second hearing speaks for itself, 3 the Court will emphasize
a few key points. First, the Court accepted defense counsel’s apology that Defendant’s briefing
on the Motion to Compel ignored the April 18 hearing altogether. Tr. 3-4, ECF No. 54 (“Tr. No.
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In reviewing the transcript [ECF No. 54], the Court noted numerous errata by the transcriptionist. To the extent
that any discrepancies between the transcript and the audio-recording of the hearing are important, the Court will
cite to the audio-recording.

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2”). Second, defense counsel contended that he did not understand the Court’s April 18 decision
to be an order of the Court. Id. at 17-18. The Court will simply observe that that statement
cannot be reconciled with defense counsel’s unqualified expression of understanding of the
Court’s order during the April 18 hearing. See Tr. No. 1 at 43:25 (“Mr. Smith: I understand the
Court’s ruling.”) (emphasis added). It is enough to say that, given defense counsel’s admissions
during the hearing about how busy his practice has been in the three months between hearings in
this case, and the significant internal reshuffling his law firm has undergone, he has had
insufficient time to focus on this case, correspond with opposing counsel, respond to discovery,
or comply with the Court’s order. The Court is confident that the inattention that has marked the
last three months is aberrational and will not be repeated in this case.
During the hearing, defense counsel raised for the first time a claim of undue burden with
respect to simply consulting the claims database that is maintained by or accessible to
Defendant’s in-house corporate counsel. See generally Tr. No. 2 at 6:25-12:18 (defense counsel
discussing limitations and complications of spreadsheet). Defense counsel asserted that his
associate spent a considerable period of time with the spreadsheet that was sent by Home Depot
to comply with the Court’s April 18 order. Id. at 7:11-13. But after spending “hours and hours”
reviewing the spreadsheet, the associate abandoned the project due to its magnitude. Id. As the
Court explained during the hearing, Defendant had never raised undue burden as an objection to
searching the database. Id. at 24:14-16. There was no such claim by Defendant at the April 18
hearing, nor was it mentioned in Defendant’s Response to the Motion to Compel nor in its
Surreply. Furthermore, and importantly, there was no such claim by Bridget Carroll, a Home
Depot employee whose affidavit was attached to the Response. See ECF No. 35, Ex. A. Indeed,
Ms. Carroll swore that “Home Depot can conduct a computer database search for incidents in

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each store and the type of incident that was reported to have occurred. This search provides,
however, only a short general description of the incident.” Id. at ¶ 7. Although Ms. Carroll went
on to talk about how burdensome a store-to-store search of physical documents in individual
claims files would be, the Court has never ordered that. All the Court ordered at the April 18
hearing, which it repeated in the July 16 hearing, is a search of the database.
According to defense counsel, the search results from the database are in the form of an
Excel spreadsheet that is 201 pages long. Tr. No. 2. at 8:21-22. The Court confirmed that it was
possible for Defendant’s counsel to simply search the results for the word “pallet.” Id. at 9:1825, 10:1-25, 11:1-17. Defendant appeared to argue that reviewing 201 pages of search results to
identify claims involving pallets and personal injury due to slips, trips, and falls would be unduly
burdensome, but failed to otherwise substantiate that argument. Defendant did not explain how
many hours it would take to complete its review of the spreadsheet for claims involving pallets to
determine if they referenced slips, trips, or falls. Defendant also did not explain why the hours
necessary to complete its review of the search results to identify the claims responsive to the
narrowed scope of INT 9 would be disproportionate to the needs of this case.
D.

ANALYSIS

Defendant objected on five grounds to INT 9. Def.’s Resp. 2. The first is that the
information responsive to the now-narrowed INT 9 is not relevant, even for discovery purposes.
Id. As explained during the April 18 hearing, the Court disagrees. See Tr. No. 1 at 20:23-25,
21:1-3 (Court observing that “it is relevant, at least for discovery purposes, for the plaintiff to
discover whether other customers have been injured – allegedly injured in – in sufficiently
similar interactions with pallets in other Home Depot stores in the period preceding the
interaction that Mr. Hibner alleges he had with the pallet in question.”). The Court then limited

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the scope of the inquiry to claims by customers of injuries caused by slips, trips, or falls
allegedly caused by pallets at Home Depot stores. Id. at 21:6-21. The Court reasoned then, and
repeats today, that this information is relevant for liability purposes because it may tend to
demonstrate Defendant’s awareness of a dangerous condition inside its stores. Id. at 22:3-20.
This information is also potentially relevant to Plaintiff’s claim for punitive damages because it
may permit Plaintiff to argue that Defendant affirmatively chose to continue using pallets to
market products on the storeroom floor without regard for their propensity to cause injuries to
customers. Id. at 22:13-15. Consequently, the Court will again overrule Defendant’s relevance
objection.
Defendant’s second objection is that INT 9 is overbroad. See Def.’s Resp. 2. This
objection ignores the narrowing done during the April 18 hearing. So narrowed, INT 9 is not
overbroad but is reasonably targeted at relevant information.

The Court again overrules

Defendant’s overbreadth objection.
Defendant’s third objection is that responding to the now-narrowed INT 9 is unduly
burdensome. Id. As mentioned supra at 4, Defendant waited until the July 16 hearing to object
that searching the database was itself unduly burdensome. Theretofore, Defendant’s undue
burden objection had been based on its claim that responding to INT 9 would require an
exhaustive and painstaking document review in the claims files of each of its 2,000 stores. Id. at
5-6. Because the Court during the April 18 hearing shifted the parties’ focus strictly to the
claims database [Tr. No. 1 at 42:19-25, 43:1-25], Defendant’s undue burden objection should
have fallen by the wayside because the Court was not requiring Defendant to do anything else
but search the database. For the reasons set forth supra at 4-5 and during the hearing, the Court
will overrule as inexcusably late Defendant’s objection that searching the database and reviewing

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the results is unduly burdensome.

In addition and alternatively, the Court will find that

Defendant has not met its burden of demonstrating with evidence any undue burden associated
with searching the database or reviewing the spreadsheet. The Court is far from convinced that
completing the spreadsheet review assignment that defense counsel has begun would approach
anything like the kind of undue burden that runs afoul of Rule 26. After all, according to Bridget
Carroll’s affidavit, “Home Depot can conduct a computer database search for incidents in each
store and the type of incident that was reported to have occurred. This search provides, however,
only a short general description of the incident.” ECF No. 35, Ex. A at 3.
Defendant’s fourth objection is that “information about disposition of suits and claims is
also highly proprietary and subject to confidentiality orders and agreements[.]” Def.’s Resp. 2.
This objection was rendered moot by Plaintiff’s counsel’s decision at the April 18 hearing to
forego learning of the disposition of claims and lawsuits. See Tr. No. 1 at 43. The Court
therefore will deny the objection as moot.
Defendant’s final objection to responding to now-narrowed INT 9 is that “an answer
would reveal information about employees and customers in violation of their protected privacy
interests.” Def’s Resp. 2. This argument is not further developed in briefing and was not
meaningfully discussed during either hearing.

In addition, the Court emphasizes that all

disclosure in this case is governed by the protective order filed in this case. See ECF No. 29.
Consequently, the Court overrules this objection as well.
E.

PAYMENT OF ATTORNEY’S FEES

With the Court having granted the bulk of Plaintiff’s Motion to Compel, the Court is
constrained by Federal Rule of Civil Procedure Rule 37(a)(5)(A) to require Defendant or its
counsel to pay Plaintiff’s reasonable expenses incurred in making his Motion, including

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attorney’s fees. That rule requires the Court first to give defense counsel the opportunity to be
heard before awarding fees. At the hearing, the Court invited defense counsel to explain why the
Court should not order him to reimburse Plaintiff’s counsel for the approximate ten hours he had
spent following the April 16 hearing attempting to correspond with defense counsel and
otherwise litigating the Motion to Compel. Tr. No. 2 at 33:19-25, 34:1-25, 35:1-25, 36:1. After
entertaining argument from defense counsel, which centered solely on whether ten hours was a
reasonable estimate by Plaintiff’s counsel, id. at 35:5-25, the Court reduced the attorney’s fees
award to $1,200. Id. at 36:13-19. The Court also specifically finds and concludes that none of
the circumstances set forth in Rule 37(a)(5)(A)(i)-(iii) apply to this Motion.
IT IS THEREFORE ORDERED:
A.

The Motion to Compel is GRANTED to the extent that Defendant shall respond

to INT 9 by completely reviewing the spreadsheet referred to by defense counsel during the July
16 hearing and providing a list of all claims, including those that resulted in lawsuits, made by
customers at any Home Depot store beginning either April 9, 2005 or the inception of the claims
database, whichever starting date is later, up to an including April 9, 2015, alleging injuries
resulting from slips, trips, or falls allegedly caused by or involving pallets.
B.

For any such claims, Defendant’s response shall include the names of the

claimants and their associated claims number.
C.

For those claims that resulted in lawsuits, Defendant’s response shall also include

the caption of the cases and the courts in which they were filed.
D.

Defendant shall supplement its response to INT 9 no later than August 16, 2018.

E.

Defendant or its counsel shall pay to Plaintiff’s counsel the amount of $1,200.00

as reimbursement for his expenses associated with this Motion no later than August 16, 2018.

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F.

The Motion is DENIED in all other respects.

IT IS SO ORDERED.

_________________________________________
THE HONORABLE GREGORY J. FOURATT
UNITED STATES MAGISTRATE JUDGE

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