Hittle et al v. Wal-Mart Stores East, LP et al

Filing 57

OPINION AND ORDER granting 51 Motion to Re-Open Discovery. Signed by Magistrate Judge Elizabeth Preston Deavers on 11/17/2017. (mas)

UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF OHIO
EASTERN DIVISION
ROCHELE HITTLE et al.,
Plaintiffs,
Civil Action 2:15-cv-2763
Judge Michael H. Watson
Magistrate Judge Elizabeth P. Deavers

v.

WAL-MART STORES EAST, LP,
Defendant.
OPINION & ORDER
This matter is before the Court on Plaintiffs’ Motion to Re-Open Discovery (ECF No.
51), Defendants’ Response in Opposition (ECF No. 52), and Plaintiffs’ Reply (ECF No. 53).
For the reasons that follow, Plaintiffs’ Motion is GRANTED.
I.
This is an action arising out of a criminal attack that occurred on Plaintiff Rochele Hittle
(“Rochele Hittle”) that occurred in Defendant Wal-Mart Stores East, LP’s (“Defendant” or
Wal-Mart”) Zanesville Wal-Mart store (the “Store”) on April 22, 2014 by a man named Patrick
Curry (“Curry”). Curry was subsequently captured and convicted of first-degree rape. Plaintiff
initiated this action through the filing of a Complaint on August 28, 2015. (ECF No. 3.)
Plaintiffs allege that, prior to the assault on Rochele Hittle, Wal-Mart was aware that Curry had a
prior history of sexually assaulting customers inside the Store and negligently failed to ensure
the safety of its customers from further harm caused by Curry. Plaintiffs further assert claims
for intentional, wanton or reckless conduct and loss of consortium. Discovery concluded on
August 31, 2016. (ECF No. 20.)

II.
Plaintiffs now assert that, Wal-Mart’s deficient discovery responses with respect to other
sexually-related incidents at the Store prevented Plaintiffs from conducting proper discovery
related to those incidents. Specifically, Plaintiffs contend that Wal-Mart failed to adequately
respond to Plaintiffs’ discovery requests—which included a related interrogatory, a request for
production and questioning during depositions—for incident reports of sexual or felonious
assaults on other customers in the Store during the relevant time period in question.1
In Request for Production of Documents No. 7, Plaintiffs sought the following:
7. Produce copies of all incident reports, correspondence, memoranda, and other
materials Defendant possesses regarding criminal acts of a sexual nature
committed by third parties against patrons of Defendant's stores occurring on its
premises from January 1, 2004 through December 31, 2014 including, but not
limited to, sexual assaults, attempted sexual assaults, abductions, attempted
abductions, child molestation, rape, sexual imposition, gross sexual imposition, or
lewd conduct.
(ECF No. 51, p. 3.) Wal-Mart objected to the request on the grounds of vagueness and
irrelevance, and agreed instead to “produce a claim run report for this store involving criminal
acts of a sexual nature committed by third parties against patrons . . . from October 2010 through
April 2014.” (ECF No. 51, Ex. 2.) Wal-Mart then produced a document containing only the
April 2014 incident with Rochele Hittle. (ECF No. 51, Ex. 3.)
Plaintiffs also sent interrogatories to which Wal-Mart objected, regarding the latter’s
procedures on issuing trespass notices. Plaintiffs sought intervention from the Court after which
Wal-Mart agreed to answer the following supplemental interrogatory:

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Plaintiffs assert that the relevant time period is from October 2010, when Curry’s first
documented sexual imposition incident took place at the Store, and April 2014, when Curry
assaulted Rochele Hittle.
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Within the market within which the Zanesville Wal-Mart sites, does WalMart
have a regular practice of issuing trespass notices for individuals who commit
crimes other than shoplifting.
(ECF No. 51, Ex. 4.) Wal-Mart responded:
Objection. This interrogatory is overbroad in temporal and geographic scope and
not reasonably calculated to lead to the discovery of admissible evidence. Without
waiving said objection, on the date of the incident, the Zanesville Walmart was
part of Market 216. Market 216 did not have a regular practice of always issuing
trespass notices to customers who commit crimes other than shoplifting [emphasis
added].
(Id.) Plaintiffs contend that the use of the word “always” was misleading, allowing
Wal-Mart to evade the purpose of the interrogatory. Plaintiffs further questioned
Wal-Mart witnesses Steve Jones, the general manager, as well as three asset protection
associates during depositions regarding trespass notices. Each of the witnesses stated
that they could not recall any specific instances in which the notices were issued for
anything other than shoplifting. Additionally, asset protection associate Rick Jones
testified that it was procedure to scan trespass letters into an online system, accessible by
all Wal-Mart stores, then to store the hard copy in a binder. Based on the request for
production, interrogatory and deposition testimony, Plaintiffs argue they believed no
other sexual offense incidents took place at the Store between October 2010 and April
2014, and that if there were any other trespass notices relating to sexual offenses,
Wal-Mart would have produced them during discovery.
Wal-Mart’s expert witness issued a report on July 8, 2016. The report stated that
it relied upon deposition testimony but also a review of all of the incidents from the
Muskingum County Sherriff’s Department and the Zanesville Police Department at the
Store from April 2012 to April 2014. The expert concluded that “[t]here were no other
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sexual assaults or felonious assaults of customers.” (ECF No. 51, Ex. 1.) Plaintiffs
counsel requested the reports and Wal-Mart provided them in the second week of
September, once discovery had already closed. Plaintiffs assert that the reports
“revealed other sexually-related incidents—incidents that should have been disclosed in
responses to the first set of document requests” and now seek leave to re-open discovery.
(ECF No. 51, p. 7.)
Specifically, Plaintiffs point to incidents on September 24, 2012, involving a
“male subject” who was “touching a child.” Another incident on October 15, 2012
involved a call to respond to the same male subject who was “on trespass list for touching
kids.” Wal-Mart’s staff called the police to have the man arrested. After obtaining the
reports Wal-Mart’s expert relied upon, Plaintiffs obtained the full police incident log
from 2006 through 2014. On August 13, 2011, another incident involving “sexual
contact” occurred. The police responded and looked through videos at the Store to
identify the man in question. On December 7, 2011, the same man returned to the Store,
was identified by an asset protection associate, and observed taking photos of women.
The police arrested him for sexual imposition and for voyeurism and disorderly conduct.
Finally, another incident on December 23, 2011 involved an older man taking cell phone
photos of women inside the Store. Wal-Mart issued this third man a trespass notice.
(Id. pp. 8-9.)
Wal-Mart asserts that it properly objected to Plaintiffs’ discovery requests,
responded with proposed language that narrowed the requests for relevance based on
time periods and subject, and produced the materials responsive to the narrowed

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language. Wal-Mart also asserts that the deposition testimony was not misleading or
false—the employees simply did not recollect other trespass notices or sexual
incidents—and that Plaintiffs did not take a Rule 30(b)(6) corporate representative
deposition, meaning none of the deponents were speaking as to corporate knowledge.
Wal-Mart further argues that the time period for discovery has now closed and Plaintiffs
should have filed a motion to compel within the discovery time period if they have
disagreed with Wal-Mart’s objections and narrowed responses. Finally, Wal-Mart
contends that the information Plaintiffs are seeking to re-open discovery to obtain is not
relevant because it is not related to the time period at issue and is not limited to similar
incidents.
III.
With respect to ordering additional discovery, a district court is to consider the
following factors: (1) when the movant learned of the issue that is the subject of the
desired discovery; (2) whether the desired discovery would have changed the ruling of a
dispositive motion; (3) how long the discovery period lasted; (4) whether the movant was
dilatory in its discovery efforts; and (5) whether the non-movant was responsive to
discovery requests. Plott v. General Motors Corp., Packard Elec. Div., 71 F.3d 1190,
1196-97 (6th Cir. 1995).
Here, Plaintiffs learned of the subject of the desired discovery after the discovery
period closed and filed its motion to re-open shortly thereafter. Wal-Mart contends that
Plaintiffs have asserted since the beginning of the litigation that additional incidents of
sexual misconduct took place at the Store. The Court notes, however, that the assertion

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and confirmation thereof are relevant distinctions. Plaintiffs may have believed
additional incidents of a sexual nature took place, but did not receive confirmation of
such incidents until they received the police reports once the discovery period was over.
Re-opening discovery will not affect dispositive motions because summary judgment has
been stayed pending the resolution of the instant Motion. (ECF No. 55.) The
sufficiency of the discovery period here is not at issue between the parties. The Court,
therefore, finds that factor does not weigh one way or another. While Wal-Mart
contends that Plaintiffs were dilatory in their discovery efforts by not moving to compel
or seeking a corporate representative deposition, the Court finds this factor does not
weigh heavily against granting the Motion. See Kohus v. Ohio State Highway Patrol,
310 F.R.D. 549, 551 (S.D. Ohio 2015) (despite plaintiff being dilatory in discovery
efforts, granting motion to re-open in the interests of justice). Finally, while short of
uncompliant, Wal-Mart’s narrowed response to Request for Production of Documents
No. 7 precluded Plaintiffs from discovering the information relevant to the other
incidents of a sexual nature that took place at the Store during the period from October
2010 to April 2014.
The information that is subject to the motion to re-open discovery is relevant to
Plaintiffs’ claims that Wal-Mart breached a duty to Rochele Hittle by knowing of Curry’s
history of sexual misconduct and failing to exercise requisite care to its business invitees
regarding Curry. For the abovementioned reasons, Plaintiffs’ Motion to Re-Open
Discovery is hereby GRANTED. (ECF No. 51.) Plaintiffs shall have until
FEBRUARY 17, 2017 to conduct additional discovery related to incidents of sexual

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assault that took place within the Store between October 2010 and April 2014.
Summary judgment motions shall be filed by MARCH 17, 2017.
IT IS SO ORDERED.

Date: January 17, 2017

/s/ Elizabeth A. Preston Deavers
ELIZABETH A. PRESTON DEAVERS
UNITED STATES MAGISTRATE JUDGE

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