LACO v. SAM'S EAST, INC.

Filing 38

MEMORANDUM ORDER granting in part and denying in part 33 Motion to Compel Discovery for the reasons set forth more fully in the Memorandum Order itself. Signed by Magistrate Judge Maureen P. Kelly on 5/21/2015. (bb)

IN THE UNITED STATES DISTRICT COURT
FOR THE WESTERN DISTRICT OF PENNSYLVANIA
VELMA LACO as Administratrix of the
)
Estate of KENNETH L. LLOYD, deceased, )
Plaintiff,
)
)
vs.
)
)
SAM’S EAST, INC. trading and doing
)
business as SAM’S CLUB STORE #4847, )
Defendant.
)

Civil Action No. 14-1169
Chief Magistrate Judge Maureen P. Kelly

Re: ECF No. 33

MEMORANDUM ORDER
Presently before the Court is Plaintiff’s Motion to Compel Discovery Directed to
Defendant (“the Motion”), ECF No. 33, in which Plaintiff asks the Court for an order directing
Defendant to respond to five specific disputed discovery requests. Although the disputed
discovery request are five in number (three interrogatory requests and two requests for the
production of documents), the parties agree that they fall into two categories. First, Plaintiff
seeks production of the entire claims file, reports and investigations materials compiled and/or
drafted by Defendant’s risk management division, Claims Management, Inc. (“CMI”). Second,
Plaintiff seeks documentation and information regarding similar incidents, claims and lawsuits
from all Sam’s Club and Wal-Mart stores for the last ten years.
With respect to CMI’s claims file, which Defendant has objected to producing in its
entirety based on the work product privilege, see Fed. R. Civ. P. 26, the Motion will be granted
in part and denied in part. The parties agree that whether this information is properly produced
turns on whether the documents at issue were prepared in the normal course of evaluating
Plaintiff’s claim or whether they were prepared in anticipation of litigation. See Borgia v. State
Farm Mut. Ins. Co., 2014 WL 4375643, at *3 (E.D. Pa. Sept. 3, 2014).

Here, the Court finds that the letter Plaintiff’s counsel sent to CMI’s Claims Manager,
Matthew Farrar, dated December 13, 2012, ECF No. 34-1, pp. 1-2, placed Defendant on notice
that it could reasonably anticipate litigation. Not only was the letter sent by counsel who
indicated that he was “retained to represent the interests of Kenneth Lloyd” because of his fall
and resulting injuries, but counsel asked for copies of any and all video surveillance that captured
the incident and requested that, in the event Mr. Farrar was either unable or unwilling to produce
the evidence at that time, that the information be “preserved and secured.” Id. Indeed, counsel
also requested that Mr. Farrar “not undertake any actions which could compromise this potential
evidence, such as overwriting, destroying, losing, altering, modifying, changing or tampering
with the video-data,” and stated that any such actions “shall result in [his] seeking a spoliation of
evidence charge from the Court at the appropriate time.” Id. Under these circumstances, it is
more than reasonable for Defendant to have anticipated at that point that litigation would be
forthcoming. Thus, any document prepared after December 13, 2012, is protected under the
work product privilege.
This having been said, Plaintiff appears particularly concerned with the production of
“design drawings, specifications for the bumper guards and metal posts, and other like
documents regarding the design, layout and installation of the bumper guards surrounding the
cooler where this incident occurred.” ECF No. 34, p. 5. Notwithstanding that Plaintiff has
apparently subpoenaed these documents from the manufacturer and installer of the bumper
guards, these documents are fact based and were not prepared by Mr. Farrar or Defendant. Thus,
to the extent that these documents are contained in CMI’s claims file, they should be produced.
With respect to Plaintiff’s second set of disputed discovery requests, i.e., information
regarding similar incidents at Wal-Mart and Sam’s Club stores for the past ten years, the Motion

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will be denied in part and granted in part. First, the discovery requests that Plaintiff submitted to
Defendant do no not seek information regarding similar incidents at Wal-Mart stores and WalMart, which is a distinct entity from Sam’s Club, is not a defendant in this action. Moreover,
despite Plaintiff’s categorization of the bumper guard system in place at Wal-Mart stores as
being substantially similar to the bumper guard system utilized at Sam’s Club stores, the Court
finds to the contrary. See ECF No. 34-4, pp. 1-2. The bumper guards used in Wal-Mart stores
therefore are irrelevant and, to the extent Plaintiff seeks information of similar incidents
occurring in Wal-Mart stores, the Motion will be denied.
Further, the Court finds that Plaintiff’s request for information regarding similar incidents
over the past ten years is unwarranted given Defendant’s representation that the bumper guard at
issue in this case was not designed until October of 2007, and was not installed in any Sam’s
Club store until 2008. See ECF No. 36, p. 6. Accordingly, there could be no similar incidents
involving the bumper guard at issue prior to 2008 and, to the extent Plaintiff seeks such
information, the Motion will be denied.
Finally, notwithstanding Plaintiff’s prior concession to confine her request for
information regarding similar incidents to those that have occurred in Western Pennsylvania, see
ECF Nos. 33-7, 33-8, Plaintiff’s discovery requests as submitted to Defendant were not limited
to any geographical area and Plaintiff now reiterates that she seeks production of any and all
similar incidents without geographical limitations. The Court finds that similar incidents
involving the bumper guards utilized in Sam’s Club stores is relevant to the issues of whether
Defendant had notice of the allegedly defective and dangerous condition and foreseeability. See
Fed. R. Civ. P. 26(b)(1). Plaintiff’s Motion therefore will be granted insofar as Plaintiff seeks

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information regarding similar incidents occurring at Sam’s Club stores albeit limited to stores in
the United States.
Accordingly, the following order is entered:
ORDER
AND NOW, this 21st day of May, 2015, upon consideration of Plaintiff’s Motion to
Compel Discovery Directed to Defendant, and Defendant’s Memorandum in Opposition to
Plaintiff’s Motion to Compel Discovery, IT IS HEREBY ORDERED that Plaintiff’s Motion to
Compel Discovery, ECF No. 33, is granted in part and denied in part as follows:
To the extent Defendant has not already complied with Plaintiff’s discovery requests,
Plaintiff’s Motion is granted insofar as she seeks documents and/or information from CMI’s
claims file prior to December 13, 2012, and any “design drawings, specifications for the bumper
guards and metal posts” contained therein. Plaintiff’s Motion to Compel Discovery is also
granted insofar as she seeks information regarding similar incidents occurring at Sam’s Club
stores in the United States from 2008 until December 7, 2012, the date Mr. Lloyd was injured.
The Motion is denied in all other respects.
BY THE COURT:

/s/ Maureen P. Kelly
MAUREEN P. KELLY
CHIEF UNITED STATES MAGISTRATE JUDGE

cc:

All Counsel of Record Via CM-ECF

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