United States District Court, D. Connecticut
RULING ON DEFENDANT AMERICAN SPECIALTIES, INC.'S
MOTION TO COMPEL AND FOR DISCOVERY SANCTIONS AGAINST TARGET
GLAZER MARGOLIS UNITED STATES MAGISTRATE JUDGE
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; the action was
removed to this court on August 4, 2015 by defendant Target.
(Dkt. #1). 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).
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.
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. On August 24, 2017, Target filed its brief
in opposition (Dkt. #66; see also Dkt. #65),
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.
reasons stated below, defendant American Specialties'
Motion to Compel and for Discovery Sanctions Against Target
(Dkt. #64) is granted in limited part.
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).
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).
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
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). 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).
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
26(b)(1) of the Federal Rules of Civil Procedure allows
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
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."
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).
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. 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 ...