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Durant v. Target Stores Inc.

United States District Court, D. Connecticut

September 20, 2017

TARGET STORES, INC., Defendant/Cross Claimant
AMERICAN SPECIALTIES, INC. Defendant/Cross Defendant



         On or about July 6, 2015, plaintiff Arianna Durant, PPA Blake Durant, commenced this action against defendants Target Stores, Inc. and American Specialties, Inc. in the Superior Court of Connecticut, Judicial District of Bridgeport, arising out of injuries sustained by the minor plaintiff from the handicap rail in a Target restroom;[1] the action was removed to this court on August 4, 2015 by defendant Target. (Dkt. #1).[2] On March 22, 2016, American Specialties filed its Answer with special defenses (Dkt. #18), and on April 11, 2016, Target filed its Answer with affirmative defenses and special defenses. (Dkt. #20). On the same day, Target filed a Cross Claim against American Specialties (Dkt. #21), followed by a two-count amended Cross Claim filed on November 4, 2016 seeking common law indemnification, and alleging breach of implied covenant of merchantability. (Dkt. #29). American Specialties filed its Answer to Target's Cross Claim on May 5, 2016 (Dkt. #22), followed by its Answer to the amended Cross Claim and affirmative defenses on December 12, 2016. (Dkt. #34).

         On May 19, 2017, this case was referred from U.S. District Judge Janet Bond Arterton to this Magistrate Judge for a ruling on Target's then-pending Motion for Discovery Sanctions against American Specialties. (Dkt. #52; see Dkts. ##47-48). Following a telephonic discovery conference held on June 13, 2017 (Dkts. ##58, 62), this Magistrate Judge issued an order denying Target's motion, “without prejudice to renew as appropriate, by agreement of counsel during the telephonic status conference . . . .” (Dkt. #63).

         On August 8, 2017, defendant American Specialties filed the pending Motion to Compel and for Discovery Sanctions against Target (Dkt. #64) with brief and exhibits in support.[3] On August 24, 2017, Target filed its brief in opposition (Dkt. #66; see also Dkt. #65), [4] and on September 5, 2017, American Specialties filed its reply brief. (Dkt. #67). Two days later, Judge Arterton referred this motion to this Magistrate Judge. (Dkt. #68). Discovery closed in this case on April 1, 2017. (Dkt. #46).[5]

         For the reasons stated below, defendant American Specialties' Motion to Compel and for Discovery Sanctions Against Target (Dkt. #64) is granted in limited part.

         I. BACKGROUND

         On or about November 4, 2016, American Specialties propounded Interrogatories and Requests for Production of Documents upon Target. (Dkt. #64, at 1-2 & Exh. A). As American Specialties explains, in Target's responses to American Specialties' Interrogatories and Requests for Production, Target did not mention “any person or team from Target's corporate headquarters in its answer disclosing persons with discoverable information or knowledge of the details of the incident.” (Dkt. #64, at 3). On May 2, 2017, American Specialties took the Rule 30(b)(6) deposition of Target's corporate designee, Christopher Altieri, for this lawsuit and for the related Gawel lawsuit. (See Dkt. #64, Exhs. F-H; see also id., Exhs. C-E (evidencing scheduling issues)). The Notice of Deposition included a Schedule A, which requested information related to the handicap grab bars and bathroom fixtures. (Id., Exhs. F-G). On April 28, 2017, Target served its objections to some of the topics listed in the Schedule A. (Dkt. #66, Exh. D).

         At his deposition, Altieri testified that Target has a “Fixture Team”; Altieri explained that the “Fixture Team” is “a team at headquarters that is responsible for fixtures in the building and then it breaks down from there. We have people that specialize in restroom fixtures or retail fixtures. It goes on from there but there's a team specifically dedicated to fixtures.” (Dkt. #64, Exh. H, at 99-100, 101-02). Altieri explained that the “fixture team would have the responsibility of overseeing fixtures including the handicap safety rail[s] like the ones involved in the Gawel and Durant accidents[.]” (Id. at 103).[6]

         Additionally, when asked about documents “generated between the property management team and the fixture team when this wholesale evaluation and replacement was done[, ]” Altieri testified that he “created a Microsoft Excel spreadsheet” but that he had not produced it earlier because “[w]e were not able to find that.” (Id. at 132). As Altieri explained, the charts he produced at the deposition reflected the investigation into the handicap safety rails and the lack of end caps; Altieri also explained that the documents were produced by the fixture team at headquarters. (Id. at 133-34; see also Dkt. #64, Exh. I). Additionally, Target produced emails at this deposition that indicated that four people investigated the matter and, “as far as who installed [the handicap safety bars], it will take some investigation and [the people involved in investigating the matter] can't guarantee [that they would] be able to dig up that level of detail. [The individuals conducting the investigation] will have to reach out to . . . Construction partners.” (Dkt. #64, Exh. J, at 3). No additional emails relating to any actions discussed in these emails were produced.

         American Specialties argues that in addition to Altieri's failure to provide information about the topics disclosed in the Schedule A attached to his deposition notice, Target failed to disclose documents, statements, or communications relating to this third-party vendor, and Target did not disclose the existence of the fixture team, identify its members as persons with discoverable information, or produce copies of the fixture team's documents in response to American Specialties' Requests for Production. (Dkt. #64, at 2-14).[7] Accordingly, American Specialties requests an order compelling the production of all documents and written communications, as well as the identity of all persons - on the fixture team or otherwise - with any knowledge of the incident. (Dkt. #64, at 14-15).

         Target counters that it responded to American Specialties' Requests and Interrogatories accurately and to the extent there was information that American Specialties now claims was not provided, Target argues such information was never requested. (Dkt. #66, at 5-9). Additionally, according to Target, it objected to three out of the five requests in the Schedule A attached to the Notice of 30(b)(6) Deposition, and to the extent American Specialties took issue with the objections, it never “presented the issue to the court for a determination.” (Id. at 9-10; Dkt. #66, Exh. D). According to Target, there was no request for information related to the hiring of an “alleged third-party vendor[, ]” nor does Target have documents relating to the hiring of the third-party vendor. (Id. at 10-11). Additionally, Target contends that Altieri testified to the existence of the fixture ream and the role it played after the two incidents, notwithstanding the objections pending as to subsequent remedial measures. (Id. at 11). Target also contends that Altieri was prepared and was an appropriate designee, and American Specialties has “failed to establish its entitlement to further depositions over three months since Altieri's deposition was completed.” (Id. at 15 (emphasis omitted)).


         Rule 26(b)(1) of the Federal Rules of Civil Procedure allows discovery of

any nonprivileged matter that is relevant to any party's claim or defense and proportional to the needs of the case, considering the importance of the issues at stake in the action, the amount in controversy, the parties' relative access to relevant information, the parties' resources, the importance of the discovery in resolving the issues, and whether the burden or expense of the proposed discovery outweighs its likely benefit. Information within this scope of discovery need not be admissible in evidence to be discoverable.

Fed. R. Civ. P. 26(b)(1). "The burden of demonstrating relevance remains on the party seeking discovery, and the newly-revised rule 'does not place on the party seeking discovery the burden of addressing all proportionality considerations.'" State Farm Mut. Auto. Ins. Co. v. Fayda, No. 14 Civ. 9792 (WHP)(JCF), 2015 WL 7871037, at *2 (S.D.N.Y. Dec. 3, 2015)(footnote omitted), quoting Fed.R.Civ.P. 26(b)(1) advisory committee notes to 2015 amendment, aff'd, 2016 WL 4530890 (S.D.N.Y. Mar. 24, 2016). Conversely, the "party resisting discovery has the burden of showing undue burden or expense." Id. (additional citations omitted). "[T]o fall within the scope of permissible discovery, information must be 'relevant to any party's claim or defense.' In order to be 'relevant' for Civil Rule 26 discovery purposes, information and evidentiary material must be 'relevant' as defined in Rule of Evidence 401." Bagley v. Yale Univ., No. 13 CV 1890 (CSH), 2015 WL 8750901, at *8 (D. Conn. Dec. 14, 2015); see Fed.R.Civ.P. 26(b)(1), advisory committee notes to the 2015 amendments. Federal Rule of Evidence 401(a) and (b) defines "relevant evidence" as evidence having “any tendency to make a fact more or less probable than it would be without the evidence, ” and the “fact is of consequence in determining the action.” Discovery, however, "is concerned with 'relevant information' - not 'relevant evidence' - and that as a result of the scope of relevance for discovery purposes is necessarily broader than trial relevance." 1 Federal Rules of Civil Procedure, Rules and Commentary Rule 26, V. Depositions and Discovery (February 2017 Update), citing, inter alia, Breon v. Coca-Cola Bottling Co. of New England, 232 F.R.D. 49, 52 (D. Conn. 2005). As amended Rule 26(b)(1) explicitly states, "[i]nformation within [the] scope of discovery need not be admissible in evidence to be discoverable."

         Target's response to American Specialties' Motion rests on its position that it responded accurately, and filed objections to requests, and to the extent that American Specialties was not satisfied with such objections, it had an obligation to seek court intervention in a timely fashion. (Dkt. #66, at 5-14, 16). American Specialties counters, however, that although there were objections, it only learned of the existence of documents it considers responsive to its requests at the deposition of Target's Rule 30(b)(6) designee. (Dkt. #67, at 1-9).

         Altieri's deposition transcript makes clear that he was not the person from Target most knowledgeable about the bathroom fixtures at issue in this case. Altieri disclosed the existence of a fixture team when testifying about the disposal of the handicap bar in the Gawel incident. (Dkt. #64, Exh. H at 101). When he was then asked what is the fixture team, Altieri acknowledged that he was “struggl[ing] with having knowledge of everything[]” but that he was not knowledgeable about the specifics of the fixture team. (Id. at 102 (“I'm not sure if there is one that specifically focuses on handicap safety rails but there is a specific fixture team and that's who I was in contact with from headquarters.”)). As stated above, Altieri testified that the “fixture team would have the responsibility of overseeing fixtures including the handicap safety rail like the ones involved” in these cases. (Id. at 103). As a party with the responsibility of overseeing bathroom fixtures, including the handicap safety rail at issue in this lawsuit, defendant Target was obligated to disclose the existence of this team, and to identify those involved. In its Initial Disclosures, Target identified individual team members who have knowledge of “facts surrounding [the] incident[]” but did not disclose that Target has a team that oversees bathroom fixtures, including the fixtures at issue in this case. (See Dkt. #66, Exh. C). Target's assertion that American Specialties did not request this information is wrong.[8] In its November 2016 Interrogatories, American Specialties requested, inter alia, the following:

4. State the name and address for each person who has knowledge of any details concerning the incident wherein Arianna Durant was injured while on Co-Defendant's premises as set forth in the Plaintiff's ...

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