Wang v. Omni Hotels Management Corporation

          RULING ON PLAINTIFF'S MOTION TO COMPEL [DOC. 24] AND CONSENT MOTION FOR PROTECTIVE ORDER [DOC. 25]

          CHARLES S. HAIGHT, JR. SENIOR UNITED STATES DISTRICT JUDGE.

         I. INTRODUCTION

         In this personal injury action, Plaintiff Hui Wang sues defendant Omni Hotels Management (herein "Defendant" or "Omni") for damages arising from a "slip and fall" she allegedly suffered on September 25, 2018, in the lobby of the Omni New Haven Hotel at Yale ("Omni Hotel"). Currently pending before the Court are two related motions: Plaintiff's Motion to Compel [Doc. 24] and Omni's Consent Motion for Protective Order [Doc. 25]. The Court rules on each below.

         II. DISCUSSION

         A. Plaintiff's "Motion to Compel"

         As part of discovery in this action, Plaintiff issued "Requests for Production of Documents" and "Interrogatories" to Omni, to which Omni responded on March 14, 2019. See Doc. 24-2 (Omni's "Objections and Responses"). Plaintiff believes that Omni failed to respond sufficiently to certain interrogatories and production requests. Consequently, on May 15, 2019, Plaintiff filed a motion to compel Omni to answer two Interrogatories (Nos. 9 and 15) and to respond to two Requests for Production (Nos. 2 and 5). In her motion, Plaintiff represented that on April 1, 2019, the parties conferred in good faith with respect to these particular items and were unable to resolve their differences. Doc. 24, at 1. Accordingly, Plaintiff moved pursuant to Rule 26(b)(1), Fed. R. Civ. P., to obtain full responses from Omni, noting that under that Rule, the proper scope of discovery includes "any nonprivileged matter that is relevant to any party's claim or defense and proportional to the needs of the case . . . ." Doc. 24-5, at 3 (quoting Fed.R.Civ.P. 26(b)(1)). In particular, Plaintiff asserted that the "disputed discovery . . . is directly relevant to the core issues in this case and fall[s] well within the liberally broad boundaries applicable to discovery." Doc. 24-5, at 3 (citing, inter alia, In re Madden, 151 F.3d 125, 128 (3d Cir. 1998)).

         1. Interrogatory No. 9 and Production Request No. 2 - Omni's "Written Policies and Procedures"

         Interrogatory No. 9 asks Omni whether it had "in effect at the time of the Plaintiff's injuries any written policies or procedures that relate to the kind of conduct or condition that Plaintiff alleges caused [her] injury." Doc. 24-5, at 4. In addition to asserting vagueness and ambiguity as objections, Omni objected to this question because it "seek[s] proprietary and/or confidential business information." Id. Instead, Omni requested "entry of an appropriate protective order prior to production or description." Id.

         Similarly, Plaintiff's Production Request No. 2 sought a "copy of [Omni's] written policies and procedures concerning the matter which is the subject of the complaint as referred to in [Omni's] answer to Interrogatory [No.] 9." Doc. 24-5, at 6. Omni responded by referring to, and incorporating in full, its objections and answer to Interrogatory No. 9. Id.

         Thereafter, the parties resolved their dispute as to these two items regarding "written policies and procedures" with an agreed upon "Protective Order," which is the subject of the pending consent motion [Doc. 25] Omni filed with the Court on June 4, 2019. The Court will address that motion and accept the parties' requested protective order for reasons stated below.

         2. Interrogatory No. 15 and Production Request No. 5 - Surveillance Video

         As to the two other discovery requests, Interrogatory No. 15 and Production Request No. 5, however, the parties remain at odds. These items comprise a second discovery category relating to Omni's surveillance video of the lobby of the Omni Hotel in New Haven on the date of Plaintiff's alleged "slip and fall," September 25, 2018. In particular, these requests seek "all recordings . . . of any party concerning this lawsuit or its subject matter." Doc. 24-5, at 4, 6.

         In Interrogatory No. 15, Plaintiff asks Omni to identify "surveillance material discoverable under Rule 26 of the Federal Rules of Civil Procedure," including "all recordings, by film photograph, videotape, audiotape or any other digital or electronic means, of any party concerning this lawsuit or its subject matter, including any transcript thereof . . . ." Doc. 24-5, at 4. Then, in Production Request No. 5, Plaintiff instructs Omni to provide "a copy of each and every recording of surveillance material discoverable under Rule 26 of the Federal Rules of Civil Procedure, by film, photograph, videotape, audiotape or any other digital or electronic means, of any party to this lawsuit concerning this lawsuit or the subject matter thereof . . . ." Id., at 6.

         Omni objects to Interrogatory No. 15 "on the basis that it seeks information . . . that is purely of impeachment nature and therefore is not relevant or reasonably calculated to lead to the discovery of admissible evidence at this state of litigation." Id., at 4. Furthermore, Omni responds that if such information exists, it "would have been gathered in anticipation of litigation or as part of Defendants' [sic] work product and therefore protected from disclosure." Id., at 5. Additionally, Omni states that "to the extent this interrogatory applies to footage captured by security cameras located on the property of the alleged incident, . . . such cameras automatically record video of areas within the range of their lens[es]." Id. Finally, Omni incorporates all of these foregoing objections into its response to Production Request No. 5. Id., at 6.

         According to Plaintiff, during a subsequent Rule 37 conference, Omni's counsel "indicated that the defendant had a video surveillance that showed the subject incident but he did not believe that plaintiff would be entitled to a copy of the video until after the defendant took plaintiff's deposition." Id., at 5. In response, Plaintiff argues that "[u]nder applicable Connecticut law governing video surveillance, plaintiff is entitled to a copy of the video because it is from a fixed security camera inside the lobby of the hotel." Id. As authority, she cites Race v. Wal-Mart Stores, Inc., No. HHD-CV-12-6030536-S, 2012 WL 6743576 (Conn. Super. Ct. Nov. 29, 2012), a Connecticut state case in which the trial court granted the Plaintiff permission to file a "non-standard" discovery request of store security video of her fall by interpreting local Practice Rules liberally to allow "a fair contest with the basic issues and facts disclosed to the fullest practical extent.'" 2012 WL 6743576, at *2 (quoting Perez v. Mount Sinai Hospital, 7 Conn.App. 514, 519 (1986)). In so holding, the Connecticut Superior Court distinguished between surveillance footage taken by a store in the course of its business and "specially procured surveillance video of a purportedly injured plaintiff taken after the accident occurred, '" which is "often granted qualified protection from discovery under the work product privilege." Id. (citing Target Corp. v. Vogel, 41 So.3d 962, 963 (Fla. Dist. Ct. App. 2010)).

         In addition, Plaintiff cited Crabtree v. Wal-Mart Stores East LP, No. 8:17-cv-2324-T-JSS, 2018 U.S. Dist. LEXIS 24640 (M.D. Fla. Feb. 15, 2018), in which a district court in Florida compelled production of video surveillance before a plaintiff's deposition.^[1] Doc. 24-5, at 5. Citing Florida state court authority, the Dondenna court rested its decision to compel production of the video on the fact that the defendant had failed to oppose production and had in fact "present[ed] no evidence that the plaintiff [would] tailor her deposition testimony to the video footage" if permitted access to the video before plaintiff's deposition. 2018 U.S. Dist. LEXIS 24640, at *2 (citation omitted). Therefore, the court concluded that the "primary evidentiary value" of the video was "proof of the underlying facts surrounding the incident," even if the video "could [potentially] be offered for impeachment value." Id.

         In the case at bar, Plaintiff emphasizes the relevance of the video she seeks because it shows the circumstances of her "slip and fall inside the lobby of the defendant's hotel, including which door [she] entered and the area where [she] fell." Doc. 24-5, at 5.

         As to this video, however, Omni objects to production, seeking to preserve it as potential impeachment evidence in the case. Doc. 26, at 2. In so stating, Omni clarifies that it "is not refusing to produce [the video] after Plaintiff's Deposition[, ] which has been set for September 24, 2019." Id. (emphasis added). After that deposition, Omni intends to use the surveillance video to impeach Plaintiff's testimony. In its counsel's words, "Omni will present as impeachment evidence any variance between what Plaintiff claims under oath and what can be objectively observed both to the Court and to any eventual fact[-]finding body." Id., at 6.

         Omni asserts that it is particularly inclined to question Plaintiff's credibility and to impeach her testimony in light of her inconsistent positions regarding her medical condition during negotiations with Plaintiff's counsel to set the location of her deposition in Connecticut. Id., at 3. Omni states that during a May 30, 2019, conference, Plaintiff's counsel provided Omni's counsel with a medical report to prove that Plaintiff was medically unable to travel to Connecticut for her deposition. Id. That report was a document from Plaintiff's doctor in China, dated May 17, 2019, which stated that Plaintiff is "not suggested to walk or take public transportation for a long time." Doc. 26, at 3; Doc. 26-1, at 1, 5; Doc. 26-2, at 1. As a result of reading the report, Omni's counsel decided to suggest a compromise "whereby Omni would agree to produce the surveillance video [at issue] . . . prior to Plaintiff's deposition, if Plaintiff agreed to have her deposition taken in the United States." Doc. 26, at 3; see also Doc. 26-3 (Email from Jason Mackey to Michael P. Foley, Jr., May 30, 2019 at 5:31 p.m.).

         During a follow-up phone call, counsel for both sides then agreed to a late September 2019 deposition in Connecticut. As Omni's counsel states, "[d]uring that same call, however, counsel for Omni learned that Plaintiff had already planned to return to Connecticut in late September 2019 to attend a program at Yale despite the previously provided medical report and representation she could not travel to CT."^[2] Id. Therefore, although Omni had previously agreed to produce the surveillance video before Plaintiff's deposition, it became unwilling to do so, finding that "Plaintiff's credibility is substantially at issue and the basis for [its prior] objection to producing such surveillance prior to the deposition was well founded." Id., at 4.

         Consequently, Omni asserts that it is entitled to "reasonably protect itself . . . from having Plaintiff adjust her testimony to conform to or explain her actions on an objective video recording." Id., at 4. Plaintiff's deposition remains set for September 24, 2019, in her counsel's office in Cheshire, Connecticut. Id., at 8. Meanwhile, Omni has expressed a willingness to produce the surveillance video following the deposition and well within the discovery period, which will close on January 24, 2020. Id.

         B. Defendant's "Consent Motion for Protective Order"

         Before addressing the discovery dispute regarding the surveillance video, the Court resolves the undisputed discovery issue relating to Omni's confidential business information. The parties' proffered resolution is a consented-to "Protective Order" [Doc. 25-1], governing disclosure of Omni's trade secrets and various forms of business information. Omni thus moves for a protective order pursuant to Rule 26(c)(1), Fed. R. Civ. P., requesting that the Court "make any order which justice requires to protect a party or person from annoyance, embarrassment, oppression, or undue burden or expense, including . . . that a trade secret or other confidential research, development, or commercial information not be revealed or be revealed in a designated way." Doc. 26, at 2.

         Pursuant to Rule 26(c)(1), the Court may, for good cause, issue an order to protect a party from "annoyance, embarrassment, oppression, or undue burden or expense" by, for example, "forbidding the disclosure or discovery," or "specifying terms, including time and place or the allocation of expenses, for the disclosure or discovery." Moreover, Rule 16(c)(2)(F), Fed. R. Civ. P., expressly authorizes the court to "consider and take appropriate action" to control and schedule discovery, "including orders affecting disclosures under Rule 26 . . ." The Second Circuit has interpreted Rule 26(c) as "a grant of power to impose conditions on discovery in order to prevent injury, harassment, or abuse of the court's processes." Bridge C.A.T. Scan Assocs. v. Technicare Corp., 710 F.2d 940, 945 (2d Cir. 1983) (emphasis in original) (citations omitted). Additionally, "Rule 26(c) 'confers broad powers upon the court to limit or prevent discovery even though the information sought is relevant ...