United States District Court, D. South Dakota, Western Division
ORDER GRANTING PLAINTIFF’S MOTION TO COMPEL
PRODUCTION OF DOCUMENTS
WOLLMANN UNITED STATES MAGISTRATE JUDGE
a personal injury diversity action brought by Plaintiff,
Susan Maples, against Defendant, Safeway, Inc. (Doc. 1).
Pending before the court is a motion filed by Plaintiff to
compel Safeway to provide certain discovery. (Doc. 21). The
presiding district judge, the Honorable Jeffrey L. Viken,
Chief Judge, referred this motion to this magistrate judge
for a decision. (Doc. 27).
Susan Maples, sued Defendant, Safeway, Inc., for injuries
allegedly sustained on August 23, 2012, when plaintiff
slipped on a grape and fell. (Doc. 23-1 at p. 27-28). Anthony
Rieger was a Safeway Courtesy Clerk at the time. (Doc. 23-1
at p. 31). He would have performed the floor inspections on a
“sweep log” prior to the Plaintiff’s fall.
(Doc. 23-1 at p. 31).
requested “copies of all training materials provided to
Anthony Rieger for any time prior to August 23, 2012.”
(Doc. 22 at p. 1). In response, Safeway responded,
“[t]here are no hard copies of manuals to provide you.
There are only online training courses. Please find attached
Print shots of the LDC Training Modules required for
completion by Courtesy Clerks.” (Doc. 23-3 at p. 2).
The pictures of the training module screens were provided.
(Doc. 23-3 at p. 5).
December 10, 2015, Plaintiff’s counsel sent an email to
Safeway’s counsel. (Doc. 23-4). The pertinent portion
is as follows: “Additionally, as we discussed
yesterday, I would like access to the ‘LDC Training
Modules’ you provided screenshots of in response to
Request for Produce 3. If we need to get a protective order
in place to enable us to have access to the training, that
will not be a problem.” (Id.)
Plaintiff’s counsel followed up in a December 14, 2015,
email stating, “[f]urther I have asked and I have not
yet received the ‘training material’ which is
referenced in one of your pretrial submissions.” (Doc.
23-5 at p. 1). Safeway’s counsel responded in a
December 15, 2015, email stating that it is incorrect to say
Plaintiff’s counsel had not yet received training
material. “You have been provided access to available
information concerning training. As I understand it, screen
shots have been provided to you which outline training
information. I am advised that the specific training modules
are embedded within Safeway’s system and cannot be
copied or transferred to a CD/DVD. Further, the training
modules are proprietary.” (Doc. 23-6 at p. 2).
December 17, 2015, Plaintiff’s counsel sent another
email regarding the training materials. He requested that
Safeway’s counsel “consider this letter a meet
and confer letter in regards to the training materials that
are the subject on Plaintiff’s Request for Production
#3 dated August 12, 2015.” (Doc. 23-7 at p. 1). The
email continued: “After taking the deposition of Janel
Schlueter, Rita Muilenburg, and Anthony Rieger yesterday, it
is now abundantly clear from their testimony that the
training materials Safeway provided to Anthony Rieger in his
role as a courtesy clerk consist of substantially more than
the ‘screenshots’ that have been provided in
response to Plaintiff’s Request for Production
#3.” Plaintiff’s counsel also represented his
willingness to sign a non-disclosure agreement as to the
training materials, even though he does not agree that the
materials are proprietary and he would be entitled to the
materials even if they were. Plaintiff’s counsel
represented his intent to file a motion to compel
“sometime in the next week.” (Doc. 23-7 at p. 1).
final email relating to the training materials,
Safeway’s counsel indicated that he asked his
“client to consider giving you access to a terminal
that would allow for review of the training materials.”
(Doc. 23-8). He went on to explain that under Federal Rule of
Civil Procedure 26(b)(2)(B):
[A] party need not provide discovery of electronically-stored
information from sources that the party identifies as not
reasonably accessible because of undue burden or cost.
Further, the rules direct the Court to limit the frequency or
extent of discovery, where the party seeking discovery has
had ample opportunity to obtain the information by discovery
in the action. I believe that giving you an opportunity to
review the training materials would constitute sufficient
instant motion was filed on December 20, 2016. On January 15,
2016, Safeway provided a supplemental discovery response
consisting of 34 pages of slides from one training module.
(Doc. 29 at p. 2)
Whether Plaintiff Has “Met and Conferred” With
notice to other parties and all affected persons, a party may
move for an order compelling disclosure or discovery. The
motion must include a certification that the movant has in
good faith conferred or attempted to confer with the person
or party failing to make disclosure or ...