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Hibner v. Home Depot, U.S.A., Inc.

United States District Court, D. New Mexico

July 25, 2018

CHRIS HIBNER, Plaintiff,
v.
HOME DEPOT U.S.A., INC., Defendant.

          ORDER GRANTING PLAINTIFF'S MOTION TO COMPEL

          HONORABLE GREGORY J. FOURATT UNITED STATES MAGISTRATE JUDGE

         This matter is before the Court upon Plaintiff's Motion to Compel (“Motion”) [ECF No. 30], filed on May 31, 2018. After the matter was fully briefed [ECF Nos. 35, 39, 44, 45, and 48], the Court held a hearing on July 16, 2018. For the reasons to follow and those articulated during the hearing, the Court GRANTS IN PART AND DENIES IN PART the Motion. In addition, pursuant to Federal Rule of Civil Procedure 37(a)(5)(A), the Court ORDERS Defendant or its counsel to pay Plaintiff's counsel $1, 200.00 in attorney's fees.

         A. PROCEDURAL HISTORY

         The bulk of the discovery skirmish between the parties predates the instant motion.[1]Consistent with the Court's practice to resolve discovery disputes as soon as they arise and in a manner that is less formal than a fully-litigated motion to compel but virtually as reliable, the Court held a telephonic hearing on April 18, 2018. Prior to the hearing, the Court had received extensive electronic mail submissions in which each side set forth its position as to why the Court should either order or deny the contested discovery. The 78-minute hearing that followed concerned a sizable number of Plaintiff's requests for admission, interrogatories, and requests for production. Clerk's Minutes 1-3, ECF No. 23. Featuring prominently during that hearing was Interrogatory No. 9 (“INT 9”), which sought certain information about other customers in the last ten years who made claims for injuries allegedly suffered at Home Depot stores that were caused by or involved pallets.

         During that April 18 hearing, Plaintiff's counsel agreed to significantly narrow the scope of INT 9. Indeed, he agreed to limit his inquiry only to information stored in a database maintained by or accessible to the General Litigation section of Defendant's corporate counsel office that met these parameters: any claims, including those resulting in lawsuits, made by customers alleging that they were injured by slips, trips, or falls allegedly caused by pallets at Home Depot stores nationwide dating back to the later of April 9, 2005, or the inception of the database. Clerk's Minutes 2. For those claims that ripened into lawsuits, Plaintiff's counsel agreed to accept only the names of the parties to the action, the case caption, and judicial district for each lawsuit. See Tr. 38-43, ECF No. 51 (“Tr. No. 1”); Clerk's Minutes 1-2; Def.'s Resp. 1, ECF No. 35. With the interrogatory so narrowed, and armed with information from defense counsel that Defendant's claims database could be accessed to provide this information, the Court ordered Defendant to respond to the new and narrowed scope of INT 9, thereby overruling Defendant's objections as to relevance, overbreadth, undue burdensomeness, and assorted proprietary and privacy concerns. See Tr. No. 1 at 38-43; Clerk's Minutes 2.[2]

         B. MOTION TO COMPEL BRIEFING

         Plaintiff asserts in his Motion that, despite the Court overruling Defendant's objections to the narrowed INT 9 during the April 18 hearing, Defendant never did supplement its discovery responses to include information regarding “previous claims and lawsuits nationwide regarding customer injuries dating back to 2007 and pertaining to ‘slips, trips, and falls' involving pallets.” See Pl.'s Mot. 1, ECF No. 30.

         In its Response, Defendant ignored altogether what occurred during the April 18 hearing, most especially the substantial narrowing of the scope of INT 9 and the Court overruling Defendant's objections and ordering Defendant to respond. Instead, Defendant relied on the exact same objections it had made leading up to and during the April 18 hearing. See Def.'s Resp. at 5-11. In his Reply, Plaintiff highlighted the fact that Defendant's Response did not at all take into account the Court's prior ruling on the narrowed discovery request. See Pl.'s Reply 2-4, ECF No. 39. Granted permission to file a surreply, Defendant confessed that it misunderstood the nature of the Court's order on April 18, believing that the hearing consisted of “advisory discussions that took place during the informal telephone conference, ” and asserting that the Court's order during that hearing did not have a “binding effect” on the parties. Def.'s Surreply 2, ECF No. 49. Defendant's Surreply again labored under its misapprehension that Plaintiff had not narrowed the scope of its discovery requests during the hearing on April 18. See id. at 3-4.

         C. JULY 16, 2018 HEARING

         Although the transcript of the second hearing speaks for itself, [3] the Court will emphasize a few key points. First, the Court accepted defense counsel's apology that Defendant's briefing on the Motion to Compel ignored the April 18 hearing altogether. Tr. 3-4, ECF No. 54 (“Tr. No.

         2”). Second, defense counsel contended that he did not understand the Court's April 18 decision to be an order of the Court. Id. at 17-18. The Court will simply observe that that statement cannot be reconciled with defense counsel's unqualified expression of understanding of the Court's order during the April 18 hearing. See Tr. No. 1 at 43:25 (“Mr. Smith: I understand the Court's ruling.”) (emphasis added). It is enough to say that, given defense counsel's admissions during the hearing about how busy his practice has been in the three months between hearings in this case, and the significant internal reshuffling his law firm has undergone, he has had insufficient time to focus on this case, correspond with opposing counsel, respond to discovery, or comply with the Court's order. The Court is confident that the inattention that has marked the last three months is aberrational and will not be repeated in this case.

         During the hearing, defense counsel raised for the first time a claim of undue burden with respect to simply consulting the claims database that is maintained by or accessible to Defendant's in-house corporate counsel. See generally Tr. No. 2 at 6:25-12:18 (defense counsel discussing limitations and complications of spreadsheet). Defense counsel asserted that his associate spent a considerable period of time with the spreadsheet that was sent by Home Depot to comply with the Court's April 18 order. Id. at 7:11-13. But after spending “hours and hours” reviewing the spreadsheet, the associate abandoned the project due to its magnitude. Id. As the Court explained during the hearing, Defendant had never raised undue burden as an objection to searching the database. Id. at 24:14-16. There was no such claim by Defendant at the April 18 hearing, nor was it mentioned in Defendant's Response to the Motion to Compel nor in its Surreply. Furthermore, and importantly, there was no such claim by Bridget Carroll, a Home Depot employee whose affidavit was attached to the Response. See ECF No. 35, Ex. A. Indeed, Ms. Carroll swore that “Home Depot can conduct a computer database search for incidents in each store and the type of incident that was reported to have occurred. This search provides, however, only a short general description of the incident.” Id. at ¶ 7. Although Ms. Carroll went on to talk about how burdensome a store-to-store search of physical documents in individual claims files would be, the Court has never ordered that. All the Court ordered at the April 18 hearing, which it repeated in the July 16 hearing, is a search of the database.

         According to defense counsel, the search results from the database are in the form of an Excel spreadsheet that is 201 pages long. Tr. No. 2. at 8:21-22. The Court confirmed that it was possible for Defendant's counsel to simply search the results for the word “pallet.” Id. at 9:18-25, 10:1-25, 11:1-17. Defendant appeared to argue that reviewing 201 pages of search results to identify claims involving pallets and personal injury due to slips, trips, and falls would be unduly burdensome, but failed to otherwise substantiate that argument. Defendant did not explain how many hours it would take to complete its review of the spreadsheet for claims involving pallets to determine if they referenced slips, trips, or falls. Defendant also did not explain why the hours necessary to complete its review of the search results to identify the claims responsive to the narrowed scope of INT 9 would be disproportionate to the needs of this case.

         D. ...


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