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Maples v. Safeway, Inc.

United States District Court, D. South Dakota, Western Division

August 23, 2016

SUSAN MAPLES, Plaintiff,
SAFEWAY, INC., Defendant.




         This is 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).


         Plaintiff, 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).

         Plaintiff 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).

         On 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).

         On 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).

         In one 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 access.

(Doc. 23-8).

         The instant motion was filed on December 20, 2016.[1] 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)


         I. Whether Plaintiff Has “Met and Conferred” With Defendant

         “On 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 ...

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