Fender v. Toys "R" Us-Delaware, Inc.

Filing 17

ORDER granting 8 Motion to Compel; striking 12 Motion for Protective Order. Signed by Magistrate Judge Dennis Howell on 6/18/13. (nll)

IN THE UNITED STATES DISTRICT COURT
FOR THE WESTERN DISTRICT OF NORTH CAROLINA
ASHEVILLE DIVISION
1:13cv24
LINDA CANDLER FENDER,

)
)
Plaintiff,
)
)
v.
)
)
TOYS “R” US-DELAWARE, INC.,
)
)
Defendant.
)
___________________________________ )

ORDER

Pending before the Court are the Motion to Compel [# 8] and Motion for
Protective Order [# 12]. Defendant moves to compel Plaintiff to respond fully to
its discovery requests. Plaintiff moves for the entry of protective order. Upon a
review of the parties’ pleadings, the record, and the relevant legal authority, the
Court GRANTS the Motion to Compel [# 8] and STRIKES the Motion for
Protective Order [# 12].
I.

Background

This action arises out of an incident at a toy store owned by Defendant
where Plaintiff tripped and fell over a metal rack. Plaintiff contends that she
suffered injuries from the fall. Plaintiff then filed this action asserting
claims for breach of contract and negligence. Plaintiff seeks to recover her lost
wages and expenses from medical care resulting from the injuries sustained in the
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fall. It also appears that Plaintiff contends that she is unable to work as a result of
these injuries.
Defendant then served Plaintiff with its first set of requests for production of
documents. As part of these requests, Defendant requested copies of Plaintiff’s tax
returns for the seven years prior to the incident and the returns subsequent to the
incident, which occurred on November 7, 2009. In addition Defendant seeks
copies of any applications, claims, and complete files for any social security
disability claim she has made. Plaintiff has refused to produce the documents.
After the parties were unable to resolve this dispute without the Court’s
intervention, Defendant moved to compel the production of the documents. In
response to the Motion to Compel, Plaintiff filed a short, one page response stating
that she would agree to make these documents available for review at her counsel’s
office. Plaintiff offers virtually no legal support in response to the Motion to
Compel and fails to address the legal arguments made by Defendant in its motion.
II.

Legal Standard

Generally speaking, parties are entitled to discovery regarding any nonprivileged matter that is relevant to any claim or defense. Fed. R. Civ. P. 26(b)(1).
“Relevant information need not be admissible at the trial if the discovery appears
reasonably calculated to lead to the discovery of admissible evidence.” Id. Where
a party fails to respond to an interrogatory or a request for production of
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documents, the party seeking discovery may move for an order compelling an
answer to the interrogatories or the production of documents responsive to the
request. Fed. R. Civ. P. 37(a)(3)(B). “Over the course of more than four decades,
district judges and magistrate judges in the Fourth Circuit . . . have repeatedly ruled
that the party or person resisting discovery, not the party moving to compel
discovery, bears the burden of persuasion.” Kinetic Concepts, Inc. v. ConvaTec
Inc., 268 F.R.D. 226, 243 (M.D.N.C. 2010) (collecting cases); Mainstreet
Collection, Inc. v. Kirkland’s, Inc., 270 F.R.D 238, 241 (E.D.N.C. 2010); Billips v.
Benco Steel, Inc., No. 5:10cv95, 2011 WL 4005933 (W.D.N.C. Sept. 8, 2011)
(Keesler, Mag. J.).
III.

Analysis

A.

Plaintiff’s Motion for Protective Order

Approximately one month after Defendant moved to compel the production
of the documents at issue, Plaintiff moved for the entry of a protective order.
Although not entirely clear from the motion, it appears that Plaintiff seeks the entry
of a protective order limiting the disclosure of the documents at issue. The Court,
however, need not determine the scope of the order requested because Plaintiff
failed to comply with the Local Rules of this Court and file a motion and brief in
support of the motion. LCvR 7.1(C). Moreover, it does not appear that Plaintiff
has consulted with counsel regarding the entry of a protective order that would
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limit the disclosure of confidential or personal information in this case prior to
filing this motion, as required by the Local Rules. LCvR 7.1(B). Accordingly, the
Court DIRECTS the Clerk to STRIKE the Motion for Protective Order [# 12]
from the record.
B.

Defendant’s Motion to Compel

Plaintiff fails to respond to the legal arguments raised by Defendant in the
Motion to Compel and consents to the production of the documents at issue
provided that the documents are produced at counsel’s office and additional
limitations are placed on the disclosure of said documents. Upon the Court’s
review of the pleadings in this case and the relevant legal authority, the Court finds
that the tax returns and documents related to any social security disability claims
are relevant to the issue of damages and Plaintiff’s claims that she was unable to
work as a result of the fall and is entitled to loss income. The Court is unfamiliar
with the restrictions and limitations Plaintiff seeks to impose upon the production
of the documents and cannot find that there is any reasonable basis for their
imposition. The condition of production requested by the Plaintiff will not be
ordered. Accordingly, the Court GRANTS the Motion to Compel [# 8] and
DIRECTS the parties as follows:
(1)

Plaintiff shall produce all documents responsive to Request for
Production No. 3, 24, 31, and 34 within twenty (20) days of the entry
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of this Order. Plaintiff shall produce the documents by mailing them
to the offices of counsel for Defendant.
(2)

Plaintiff may redact any social security number contained on her tax
returns.

(3)

To the extent that Plaintiff contends that any of the documents that
would otherwise be responsive to the discovery requests at issue are
subject to the attorney client privilege or the attorney work product
doctrine, Plaintiff must provide Defendant with a privilege log that
complies with the requirements of Federal Rule of Civil Procedure
26(b)(5) within ten (10) days of entry of this Order. The failure to
provide a privilege log that complies with the Federal Rules will result
in the Court deeming Plaintiff to have waived any such privilege. If
the Court later determines that documents were withheld without a
reasonable basis for believing they were subject to the attorney client
privilege or the attorney work product doctrine, the Court will impose
monetary sanctions on Plaintiff and/or counsel for Plaintiff for each
document unreasonably withheld.

(4)

As Plaintiff has not filed a proper motion seeking the entry of a
protective order, has not submitted a proposed protective order to the
Court, and does not appear to have consulted with counsel for
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Defendant in an attempt to present a consent protective order to this
Court that would address many of Plaintiff’s concerns regarding the
potential disclosure of the information contained in the documents, the
Court will place no further limitations on the use or disclosure of the
documents at issue.
(5)

Pursuant to Rule 37(a)(5) the Court AWARDS Defendant its
reasonable expenses and attorney’s fees in bringing the Motion to
Compel as Plaintiff failed to demonstrate that her nondisclosure was
substantially justified. Counsel for Plaintiff shall pay the costs of
Defendant’s expenses and attorney’s fees in filing this motion. The
Court DIRECTS the parties to Confer within ten (10) days of the
entry of this Order in an attempt to determine the reasonable amount
of these expenses. If the parties cannot agree as to the amount,
Defendant shall file an accounting of its expenses, including attorney
fees incurred as a result of the filing and presentation of the Motion to
Compel, by July 10, 2013. Defendant should also submit affidavits
setting forth the number of hours counsel reasonably expended filing
the Motion to Compel, the hourly rate charged, and the prevailing
market rate in the relevant community. See Robinson v. Equifax
Information Servs., LLC, 560 F.3d 235, 243-244 (4th Cir. 2009);
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Neves v. Neves, 637 F.Supp.2d 322, 340 (W.D.N.C. 2009)
(Reidinger, J.). The Plaintiff shall have until July 18, 2013 to file
specific objections to the expenses requested by Defendant. The
Court will then calculate the award of attorney fees by multiplying the
number of reasonable hours expended by counsel times the reasonable
hourly rate. Robinson, 560 F.2d at 243. In determining what
constitutes a reasonable number of hours and rate, the Court shall
consider:
(1) the time and labor expended; (2) the novelty and difficulty of the
questions raised; (3) the skill required to properly perform the legal
services rendered; (4) the attorney’s opportunity costs in pressing the
instant ligation; (5) the customary fee for like work; (6) the
attorney’s expectations at the outset of the litigation; (7) the time
limitations imposed by the client or circumstances; (8) the amount in
controversy and the results obtained; (9) the experience, reputation
and ability of the attorney; (10) the undesirability of the case within
the legal community in which the suit arose; (11) the nature and
length of the professional relationship between attorney and client;
and (12) attorneys fees awards in similar cases. Id. at 243-44

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(quoting Barber v. Kimbrell’s Inc., 577 F.2d 216, 266 n. 28 (4th Cir.
1978).
Signed: June 18, 2013

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