Robins v. Wal-Mart Real Estate Business Trust et al

Filing 23

DECISION and ORDER: Plaintiff's Motion to Compel and for Extension of Time to Complete Discovery 19 is GRANTED. Defendants shall comply with Plaintiff's RFP No. 10 WITHIN TEN (10) DAYS; the parties shall submit WITHIN TEN (10) DAYS, join tly or individually, a proposed amended case management order scheduling the balance of the case to trial; Defendant shall show cause WITHIN TWENTY (20) DAYS why Plaintiff's expenses should not be awarded pursuant to Rule 37(a)(5)(A), Plaintiff's Response shall be filed WITHIN TEN (10) DAYS thereafter, and Defendants' reply, if any, shall be filed WITHIN FIVE (5) DAYS. SO ORDERED. Signed by Hon. Leslie G. Foschio on 5/19/2023. (TAH)

UNITED STATES DISTRICT COURT
WESTERN DISTRICT OF NEW YORK
_____________________________________
DANIEL ROBINS,

Plaintiff,

v.
WAL-MART REAL ESTATE BUSINESS TRUST,
WAL-MART STORES EAST, LP,
WALMART INC.,

DECISION
and
ORDER

22-CV-273LJV(F)

Defendants.
_____________________________________
APPEARANCES:

WEBSTER SZANYI, LLP
Attorneys for Plaintiff
THOMAS S. LANE,
VINCENT T. PARLATO,
D. CHARLES ROBERTS, JR., of Counsel
424 Main Street, Suite 1400
Buffalo, New York 14202
BENNETT SCHECHTER ARCURI & WILL LLP
Attorneys for Defendants
JORDAN D. MROCZEK,
PAULINE C. WILL, of Counsel
701 Seneca Street, Suite 609
Buffalo, New York 14210

In this action alleging Plaintiff slipped and fell on September 12, 2022 while
shopping at Defendants’ North Tonawanda store as a result of Defendants’ negligence,
by papers filed February 28, 2023, Plaintiff moves to compel Defendants’ responses to
Plaintiff’s First Request for Production No. 10, served July 8, 2022, which requests
Defendants provide “[a]ll complaints at any of Defendants’ stores concerning floor
stickers for the five years prior to Plaintiff’s accident.” Dkt. 19-1 at 2 (“Plaintiff’s RFP No.
10”) (“Plaintiff’s motion”). In Defendants’ Response to Plaintiff’s RFP No. 10,

Defendants objected based on a lack of relevancy, proportionality, overbreadth, and
undue burdensomeness. Dkt. 19-3 at 8. Defendants, however, stated that as to the
Defendants’ North Tonawanda store, Defendants were unaware of any complaints
responsive to Plaintiff’s request. Id.
Prior to filing Plaintiff’s motion, Plaintiff corresponded with Defendants on
October 4, 2022, Dkt. 19-4, regarding Defendants’ objections to Plaintiff’s RFP No. 10
explaining that the request seeks information relevant to Defendants’ prior notice of
potential slippery floor conditions created by the use of floor stickers leading to slip and
fall accidents at any of Defendants’ stores. Id. Plaintiff further corresponded regarding
the issue with Defendants on October 18, 2022, November 16, 2022, December 8, 2022
and on January 3, 2023. Dkt. 19-1 ¶¶ 12, 13, 16, and 17. In Plaintiff’s January 3, 2023
letter to Defendants’ counsel, Plaintiff cited caselaw in support of Plaintiff’s RFP No. 10,
seeking Defendants’ responses for all of Defendants’ stores nation-wide. See Dkt. 197. Plaintiff also stated that because of the Scheduling Order’s cut-off of February 28,
2023, Dkt. 17, Plaintiff’s January 3, 2023 letter would be Plaintiff’s final good-faith effort
to resolve the dispute. Dkt. 19-7 at 2. In response to Plaintiff’s January 3, 2023 letter,
Defendants served a Third Supplemental Response on January 31, 2023 in which
Defendants again asserted objections based on a lack of relevancy and proportionality
as required by Fed.R.Civ.P. 26(b)(1) (“Rule 26(b)(1)”), the request was not limited to
safety concerns, or similar materials used in the floor sticker upon which Plaintiff
allegedly slipped and fell, and the five-year look-back period on a nation-wide basis
poses an unduly burden on Defendants particularly in view of the fact that the type of
floor stickers involved in Plaintiff’s claim was not used by Defendants prior to April 2020

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with the advent of Covid-19 social distancing and shopper directional aisle
requirements. Dkt. 19-8 at 30. On February 28, 2023, Plaintiff conversed by telephone
with Defendants’ counsel in an unsuccessful attempt to resolve the dispute. Dkt. 19-1 ¶
24.
In Defendants’ opposition to Plaintiff’s motion filed March 16, 2023 (Dkt. 21),
Defendants argue Plaintiff has failed to provide any explanation as to how the
misplacement or other feature of a floor sticker which may be the subject of Plaintiff’s
RFP No. 10 would have caused Plaintiff’s slip and fall, nor does Plaintiff explain why
deficient floor stickers, which may have been used by Defendants in other stores, would
have conceivable relevance to Plaintiff’s claim. Dkt. 21-1 ¶¶ 22, 23. Defendants also
argue Plaintiff has failed to comply with Fed.R.Civ.P. 37(a)(1) and Local R. Civ.P.
7(d)(3) which require a good-faith effort to avoid motion practice in a discovery dispute.
Dkt. 21 at 18-20. In Plaintiff’s Reply, filed March 31, 2023 (Dkt. 22), Plaintiff contends
that the requested information is relevant to Defendants’ prior notice of potential safety
issues in the use of floor stickers as well as Defendants’ prior notice of such a
“potentially dangerous condition,” Plaintiff’s Reply Declaration (Dkt. 22) at ¶¶ 4, 13.
(1)

Rule 37(a)(1) and Local R.Civ. 7(d)(3).
Fed.R.Civ.P. 37(a)(1) requires parties engage in a good faith effort to avoid

judicial intervention in a discovery dispute as a prerequisite to a motion to compel.
Local Rule 7(d)(3) requires a similarly sincere effort. Here, despite several
communications with Defendants over a five-month period, Plaintiff was unsuccessful in
avoiding the instant motion. Moreover, given Defendants’ insistence on Plaintiff’s
alleged lack of relevance in seeking the potential information subject to RFP No. 10, see

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Dkt. 21 at 10-14, it is evident that further efforts by Plaintiff to resolve the dispute would
have been futile. See Ergas v. Eastpoint Recovery Group, Inc., 2021 WL 1711321, at *
6 (W.D.N.Y. Apr. 30, 2021) (finding the plaintiff’s failure to respond to the defendant’s emails requesting discovery responses indicated the plaintiff had no intention of
complying with discovery, citing Apex Oil Co. v. Belcher Co. of New York, Inc., 855 F.2d
1009, 1019-20 (2d Cir. 1988) (it is within the district court's discretion of determine
whether the parties have complied with Rule 37(a)(1)’s meet and confer requirement);
and Woodward v. Holtzman, 2018 WL 5112406, at *2 (W.D.N.Y. Oct. 18, 2018) (court
has discretion to determine whether further efforts by counsel to comply with Rule
37(a)(1) meet and confer requirements would be fruitful or futile)). Accordingly, the
court finds Plaintiff has sufficiently complied with Rule 37(a)(1) and Local Rule 7(d)(3).
2.

Relevance and Proportionality.
Defendants assert that Plaintiff’s RFP No. 10 lacks relevance because Plaintiff’s

failure to explain how different forms of floor stickers used by Defendants at Defendants’
numerous stores nation-wide could conceivably demonstrate a hazardous condition was
created by such use by Defendants at the North Tonawanda store where Plaintiff fell.
Dkt. 21-1 ¶ 22. However, the general rule is that a landowner is responsible for any
unsafe conditions of which the landowner has actual or constructive notice. See Taylor
v. United States, 121 F.3d 86, 89-90 (2d Cir. 1997) (a landowner is liable for negligence
when a condition on his land causes injury if the landowner had actual or constructive
notice of the condition (citing Gordon v. American Museum of Nat. Hist., 492 N.E.2d
774, 775 (N.Y. 1986) (affirming dismissal of personal injury action predicated on the
plaintiff’s fall on stairs which the plaintiff attributed to slipping on a piece of paper, but no

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evidence supported the paper had been on the steps long enough for the landowner to
have constructive notice of the dangerous condition it posed)). See also Gonzalez v.
Wal-Mart Stores, Inc., 299 F.Supp.2d 188, 192 (S.D.N.Y. 2004) (constructive notice
requires evidence of defendant’s awareness of particular conditions that caused the
accident) (internal citations omitted); Mrkulic v. Target Corporation, 2009 WL 10706587,
at *3 (E.D.N.Y. July 16, 2009) (“Actual notice can be shown by demonstrating that a
defendant had received prior complaints about the condition.”) (internal citations
omitted). Defendants’ argument that Plaintiff’s requests fails to provide any indication of
how the floor stickers used elsewhere by Defendants would be relevant to Plaintiff’s
claim assumes without any factual basis that floor stickers with differing shapes and
physical characteristics were in fact used by Defendants in Defendants’ various stores
and ignores that any substance, including stickers, placed on walking surfaces intended
for public use may create a potential hazard to consumer safety in the store. See
Laudero v. Otis Elevator Company, 2011 WL 2731240, at *1 (W.D.N.Y. July 12, 2011)
(requiring defendant to produce all records of similar incidents requiring elevator repair
as relevant to plaintiff’s claim) (citing Stagl v. Delta Airlines, 52 F.3d 463, 474 (2d Cir.
1995)); Cohalan v. Genie Industries, Inc., 276 F.R.D. 161, 166 (S.D.N.Y. 2011) (“Unlike
at trial, where evidence of similar accidents is admissible only if those accidents are
shown to be ‘substantially similar,’ a court may allow discovery of similar accidents
provided that the circumstances surrounding the other accidents are similar enough that
discovery concerning those incidents is relevant to the circumstances of the instant
case.” (internal quotation marks and citation omitted); Hicks v. Long Island R.R., 165
F.R.D. 377, 381 (E.D.N.Y. 1996) (requested materials relating to “similar accidents are

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relevant to the degree of risk associated with” the cause of the plaintiff’s fall)).
Discovery of any material that may be relevant to plaintiff’s claim is permitted by
Fed.R.Civ.P. 26(b)(1) (“Rule 26(b)(1)”), see S.E.C. v. Rajaratnam, 622 F.3d 159, 181
(2d Cir. 2010) (Rule 26(b)(1) permits “parties to ‘obtain discovery regarding any
nonprivileged matter that is relevant to any party’s claim or defense,’” (quoting
Fed.R.Civ.P. 26(b)(1)), and requested information need not be admissible in evidence
to be discoverable. Id. In this case, Defendants’ relevance objection is based upon the
admissibility of the results of the requested complaints, i.e., differing shapes and
materials in floor stickers used in other of Defendants’ stores, and, as such, is without
merit.
Defendants also assert Plaintiff’s request lacks proportionality, Dkt. 21 at 8-9, i.e.,
that “the expected benefits of the discovery must be in line with the cost and burden of
the [requested] discovery and the value of the case.” Steven Baicker-McKee & William
M. Janssen, FEDERAL CIVIL RULES HANDBOOK (Thomson Reuters) at 793 (2023 ed.)
(citing caselaw). Factors relevant to this question include the importance of the issues
at stake in the litigation, the amount in controversy, the parties’ relative access to
relevant information, the parties’ resources, the importance of discovery in resolving the
issues, and whether the burden and expense of the proposed discovery outweighs its
likely benefit. Id. The court has broad discretion in considering and weighing these
factors. Id. The ultimate burden is on the party resisting discovery to demonstrate” that
the requested discovery lacks proportionality. Id. at 794 (citing caselaw). Defendants
fail to indicate why Plaintiff’s RFP No. 10 lacks proportionality as was Defendants’
burden. See Dkt. 21 at 12-13 (“Plaintiff bears the burden of showing that the [discovery]

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request is proportional to the needs of the case.”; “No such showing [proportionality]
was made [by Plaintiff].”) Defendants therefore mistakenly assert it was Plaintiff’s
burden to demonstrate Plaintiff’s RFP No. 10 satisfies Rule 26(b)(2)’s proportionality
requirement when it was Defendants’ burden to show the Request did not. In any
event, the Second Circuit has held that other similar complaints of hazardous conditions
in premises liability cases are “highly relevant,” to a plaintiff’s premises liability case,
Stagl, 52 F.3d at 474, and the vast differences in resources and access to the
requested information at issue between Plaintiff and Defendants (Wal-Mart) is selfevident. Accordingly, Defendants’ proportionality objection is also without merit.
3.

Overbreadth and Undue Burdensomeness.
It is well-established that an objection based on undue burdensomeness be

supported by affidavit of someone with personal knowledge of the underlying facts such
as a responding party’s filing systems and available manpower to conduct a search of a
party’s records. See Cliffstar Corp. v. Sunsweet Growers, Inc., 218 F.R.D. 65, 69
(W.D.N.Y. 2003) (“for a burdensomeness objection to be sustained, a motion to compel
on this ground must be opposed by an affidavit of a person with knowledge of the
record keeping system with the requested party explaining in reasonable detail the
factual basis for such an objection.”). See, c.f., American Rock Salt Co., LLC v. Norfolk
Southern Corp., 228 F.R.D. 426, 435 (W.D.N.Y. 2004) (holding the defendants’ failure
to provide an affidavit stating upon personal knowledge that a reasonably diligent
search of the defendants’ records revealed no documents responsive to the plaintiff’s
discovery request required the court reject the defendants’ relevancy burdensomeness
objection as justifying nonproduction). Here, Defendants provide only the declaration

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of counsel asserting that Plaintiff’s RFP No. 10 is overly broad and unduly burdensome.
Dkt. 21-1 ¶ 24. Such declaration is insufficient to sustain either objection. See
American Rock Salt, LLC, 228 F.R.D. at 435; Cliffstar Corp., 218 F.R.D. at 69. As to
Plaintiff’s requests for a nation-wide compliance and a five-year look-back period, the
court finds such requests reasonable as other courts have compelled defendants to
comply with similar requests in customer injury cases. See Stagl, 52 F.3d at 474
(vacating district court’s decision for abuse of discretion disallowing the plaintiff who was
injured to obtain discovery of similar prior accidents involving the defendant’s baggage
carousel operations because the denial “unduly limited” the plaintiff’s ability to establish
whether the defendant had notice based on “the degree of risk generated” by the
alleged negligence which “would have been highly relevant to strengthening [the
plaintiff’s] proof of causation.”); D’Agostin v. Fitness International, LLC, 2021 WL
1923786, at * 2-3 (D.Conn. May 12, 2021) (permitting the plaintiff to obtain discovery of
similar slip-and-fall accidents involving water on the tiled floor areas of defendants’
fitness clubs operated in four states, accounting for 102 of 750 such clubs nationwide,
for five years prior to the date of the plaintiff’s accident as such discovery was
reasonable in terms of temporal and geographic scope and proportional to the needs of
the case so as to not be unduly burdensome, and citing Dipesa v. Home Depot USA,
Inc., 245 F.R.D. 53, 54-55 (D.Mass. 2007) (allowing motion to compel interrogatory
answers in a premises liability suit asking for nationwide accident reports where the
defendant corporation’s practices were standardized)); Similar requests have also been
sustained in claims against Defendants in customer in-store injury cases. See, e.g.,
Pham v. Wal-Mart Stores, Inc., 2011 WL 5508832, at *4 (D.Nev. Nov. 9, 2011)

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(compelling a nation-wide discovery concerning accidents involving a mattress display
apparatus over a five-year period and citing cases in which courts have upheld similar
compliance requests against Wal-Mart). The court finds it is noteworthy that
Defendants do not deny having a computerized system for tracking in-store customer
slip and fall complaints throughout Defendants’ nation-wide stores. See Pham, 2011
WL 55008832, at *5 (finding that it was “unreasonable” for defendant not to have a
“centralized” system for recording injury claims “throughout its stores so that other
stores can be warned of potential damages and corrective measures can be taken.”)
But see Frank v. Costco Wholesale Corporation, 2021 WL 5873109, at *2 (E.D.N.Y.
Nov. 18, 2021) (denying plaintiff’s request for nation-wide search of defendant’s records
for similar customer complaints regarding lifting of heavy in-store objects because of a
lack of authority submitted by the plaintiff supporting such request).
As to Defendants’ objection that the term “complaints” as used by RFP No. 10 is
undefined, the court finds that the language of the request makes clear the term means
complaints “concerning” the use of floor stickers in Defendants’ stores and as such is
reasonably limited. Defendants further contend that RFP No. 10 suffers from
overbreadth in that it seeks complaints regarding any use by Defendants of floor
stickers not only those associated with store aisle directional or other Covid-19
requirements, Dkt. 21 at 14-15. However, whether a specific complaint is within the
scope of RFP No. 10 relates to a floor sticker which Plaintiff determines is capable of
creating an unduly slippery condition or not is a determination for Plaintiff to make after
receipt and review of the responsive information. See UB Foundation Activities, Inc. v.
IT Healthtrack, Inc., 2009 WL 4042937, at * 6 (W.D.N.Y. Nov. 19, 2009) (permitting the

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defendant, following receipt and review of additional records from the plaintiff, to
conduct further depositions only if such review of the records established further
depositions were relevant and necessary). Whether a requested complaint, if located,
yields ultimately admissible evidence is not the criteria upon which a valid discovery
demand pursuant to Rule 26(a)(1) (admissibility in evidence of discovery materials
sought by a party not required for valid discovery request). As such, the issue is not the
context of the information conveyed by, or the purpose of the floor stickers, but the use,
with potentially associated complaints, by Defendants, of floor stickers generally at
Defendants’ stores. Plaintiff’s RFP No. 10 is therefore not overbroad. Accordingly,
Defendants’ objections based on overbreadth and undue burdensomeness are
overruled.
4.

Failure to Conduct Depositions.
Nor is there any merit to Defendants’ contention that Plaintiff has refused to

conduct depositions based on Defendants’ lack of complete document production and
that such refusal is a ground to deny Defendants’ compliance with Plaintiff’s RFP No.
10. See Dkt. 21 at 16-18. While in some cases deposition practice may alleviate the
need for document production, see Malinowski v. Wall Street Source, Inc., 2010 WL
4967474, at * 3-4 (S.D.N.Y. Nov. 23, 2010) (finding the defendants’ deposition of nonparty witness may eliminate the defendants’ need for certain documents), in a case like
the one at bar, the court fails to see how depositions could take the place of document
production targeted to the issue of Defendants’ prior actual or constructive knowledge of
potential customer safety issues based on slipping on an unduly slippery surface of a

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floor sticker. See UB Foundation Activities, Inc., 2009 WL 4042937, at * 6. The cases
cited by Defendants in support of this contention, see Dkt. 21 at 16-17, are inapposite.
5.

Request for Modification of Scheduling Order.
Plaintiff’s motion also requests the Scheduling Order be modified to extend the

period for discovery by 60 days. Based on the time required to resolve the instant
motion and the fact that discovery was to conclude on March 30, 2023 (Dkt. 17), the
court finds good cause to amend the Scheduling Order. The parties shall therefore
submit within 10 days, jointly or individually, a proposed amended case management
order scheduling the balance of the case to trial.
6.

Sanctions.
Plaintiff requests sanctions pursuant to Fed.R.Civ.P. 37(a)(5)(A). Defendants

shall show cause within 20 days why Plaintiff’s expenses should not be awarded
pursuant to Rule 37(a)(5)(A). Plaintiff’s response shall be filed within 10 days
thereafter; Defendants’ reply, if any, shall be filed within 5 days. Oral argument shall be
at the court’s discretion.

CONCLUSION
Based on the foregoing, Plaintiff’s motion (Dkt. 19) is GRANTED. Defendants
shall comply with Plaintiff’s RFP No. 10 within 30 days.
SO ORDERED.

/s/ Leslie G. Foschio
_________________________________
LESLIE G. FOSCHIO
UNITED STATES MAGISTRATE JUDGE

Dates: May 19, 2023
Buffalo, New York
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