United States District Court, D. Connecticut
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.
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.
Plaintiff's "Motion to Compel"
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)).
Interrogatory No. 9 and Production Request No. 2 - Omni's
"Written Policies and Procedures"
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.
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.
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.
Interrogatory No. 15 and Production Request No. 5 -
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.
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.
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.
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)).
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. 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.
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.
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.
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.).
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." 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.
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,
Defendant's "Consent Motion for Protective
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.
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 ...