United States District Court, D. Connecticut
RULING ON MOTION TO COMPEL DISCOVERY
B. FITZSIMMONS, UNITED STATES MAGISTRATE JUDGE
brings this action against Okemo Limited Liability Company
d/b/a Okemo Mountain Resort (“Okemo”). She
alleges that on February 20, 2017, the defendant's agent,
servant, apparent agent and/or employee, Curtis Ficklin, was
negligent and reckless when he collided with her while she
was an invitee skiing at the defendant's ski facility,
causing her injuries. Mr. Ficklin is not a party to this
denies that Curtis Ficklin was an on-duty employee of
defendant and, as such, defendant denies any and all claims
of vicarious liability, negligence, recklessness and/or other
wrongdoing. Defendant further contends that plaintiff assumed
the inherent dangers of skiing, 12 Vt. Stat. Ann. §1037,
and that she was negligent in that she failed to: (1) be
aware of her surroundings; (2) maintain control of her
equipment; (3) ski in a reasonable and prudent manner; and
(4) ski within the bounds of her ability. [Doc. #19 at 3].
26(b)(1) of the Federal Rules of Civil Procedure outlines the
scope of discovery. Under the Rule, parties “may obtain
discovery regarding any nonprivileged matter that is relevant
to any party's claim or defense and proportional to the
needs of the case.” Relevance involves a consideration
of “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.” Fed.R.Civ.P. 26(b)(1).
Even when a request seeks relevant matter, the court can
limit such discovery when “the discovery sought is
unreasonably cumulative or duplicative, or can be obtained
from some other source that is more convenient, less
burdensome, or less expensive.” Fed.R.Civ.P.
26(b)(2)(C). See During v. City Univ. of New York,
No. 05 CIV. 6992(RCC), 2006 WL 2192843, at *4 (S.D.N.Y. Aug.
1, 2006) (“Even if the information sought is relevant,
courts have the authority to forbid or to alter discovery
that is unduly burdensome.”).
seeks an order compelling Okemo to respond to plaintiff's
request for Production No. 8, and produce a copy of Curtis
Ficklin's employment file. Mr. Ficklin was provided with
notice pursuant to Vt. Stat. Ann. tit. 12, §1691a that
plaintiff was seeking a copy of his employment file. [Doc.
#27-4, Ex. D (appending a copy of the statute to the
first objects to the production of Ficklin's employment
file on the basis of Conn. Gen. Stat. §31-128f(2) and
Vt. Stat. Ann. tit. 12, §1691a. However, Conn. Gen.
Stat. §31-128f permits disclosure pursuant to a lawfully
issued judicial order which plaintiff is seeking through this
motion. See Ruran v. Beth El Temple of West Hartford,
Inc., 226 F.R.D. 165, (D. Conn. 2005)(issuing an order
of production upon a showing that the requested employee
files were relevant). Under Vermont law, plaintiff's
counsel provided notice on August 25, 2017, to Mr. Ficklin
that his employment records were sought in this litigation.
Under §1691a(f), he had “20 days after service of
the notice to respond to the request” which would be
“filed with the court” with a “copy of the
response ... served on the requesting party.” Vt. Stat.
Ann. tit. 12, §1691a(f). Mr. Ficklin filed no objection
with the Court. Defendant does not assert that the notice was
defective or that Mr. Ficklin has asserted an objection to
the production of his employment records. See Turner v.
Vermont Ctr. for the Deaf & Hard of Hearing, Inc.,
Case no. 2:02-CV-251, 2003 U.S. Lexis 20552, at *16 (D. Vt.
Oct. 1, 2003)(“Turner's complaint was filed in this
court, pursuant to the federal Rules of Civil Procedure, not
in Vermont state court pursuant to the Vermont Rules of Civil
Procedure. The Magistrate's conclusion that Rule 26, and
not the procedural requirements of §1691a, govern
discovery of the personal files is not clearly erroneous, nor
contrary to law.”).
next argues that plaintiff's request is “overly
broad and seeks information irrelevant to the subject matter
of the litigation.” [Doc. #30 at 5]. Plaintiff argues
that “Mr. Ficklin's actions and relationship with
the defendant both on the day of the collision at issue, and
since the start of his employment” are highly relevant
to her claims [Doc. #27 at 2]. She contends that
Ficklin's employment file “is directly relevant to
issues of agency/vicarious liability, his propensity to ski
in a reckless manner, and the defendant's knowledge of
same.” Id. The Court agrees. As the objecting
party, Okemo “bears the burden of showing why discovery
should be denied.” Kimbro v. I.C. System,
Inc., No. 3:01CV1676 (DJS)(TPS), 2002 WL1816820, at *1
(D. Conn. July 22, 2002); Ruran, 226 F.R.D. at 169
(finding that the objecting party “bears the burden of
demonstrating ... that the request is not
relevant.”)(emphasis in original). Defendant has
not sustained its burden. The Court finds that the
employment file is relevant to plaintiff's claims.
reasons stated, plaintiff's Motion to Compel Discovery
Compliance [Doc. #27] is
GRANTED. Defendant will provide a copy of
Curtis Ficklin's employee file, subject to a protective
order, within ten (10) days.
not a recommended ruling. This is a nondispositive ruling and
order which is reviewable pursuant to the “clearly
erroneous” statutory standard of review. 28 U.S.C.
§636(b)(1)(A); Fed.R.Civ.P. 72(a); and D. Conn. L. Civ.
R. 72.2. As such, it is an order of ...