Heagy v. Burlington Stores, Inc.

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CATHERINE HEAGY, et al., Plaintiffs, v. BURLINGTON STORES, INC., et al., Defendants.

Civil Action No. 20-2447

United States District Court, E.D. Pennsylvania

November 17, 2021

MEMORANDUM OPINION

Rufe J.

Defendants Burlington Stores, Inc. and Burlington Coat Factory Warehouse Corporation (“Burlington”) filed a Motion for a Protective Order while Plaintiffs seek an order compelling Burlington to respond to various written discovery requests and to dictate certain conduct concerning depositions.

I. Background

Plaintiffs allege that Catherine Heagy suffered serious injuries when she slipped and fell in a Burlington Coat Factory store in Springfield, Pennsylvania after stepping from a wet mat onto a tile floor on or about August 1, 2019.^[1] Plaintiffs also allege that a Burlington district manager nearly fell on that same mat earlier that morning.^[2] After the district manager's near fall, Burlington allegedly alerted an employee of Kellermeyer Bergensons Services, LLC (“Kellermeyer”) to address the problem.^[3] Plaintiffs assert that Kellermeyer employees were in the store before it opened “to deep clean the floors.”^[4] Although the Kellermeyer employee allegedly believed that the mat was dry, the mat was wet when the store opened.^[5] Plaintiffs allege that the actions of Burlington, Kellermeyer, and janitorial subcontractors Kim Gray and Sanford Gray (doing business as “Gray & Gray, ” and together the “Gray Defendants”)^[6] were negligent and seek compensatory, punitive, and delay damages.^[7]

The instant motions represent the latest disputes in a protracted discovery process. Plaintiffs originally filed suit in Philadelphia Common Pleas Court on May 4, 2020, and Burlington removed the case to federal court.^[8] The original deadline for fact discovery was November 1, 2020, which was later extended to April 1, 2021.^[9] The Gray Defendants thereafter requested an extension of the deadline for fact discovery to June 30, 2021, which the Court granted.^[10] The Court then approved a joint stipulation to extend fact discovery to September 28, 2021.^[11] Due to multiple outstanding discovery disputes, the Court subsequently ordered the parties to file motions to compel and motions for protective orders to resolve any remaining issues before determining whether to permit additional time for discovery.^[12] The Order expressly reminded the parties that the attorneys “must exhaustively address all discovery disputes with opposing counsel” before seeking Court assistance and of the Court's expectation that the parties would “work in good faith to resolve as many of the outstanding issues as possible before filing formal motions.”^[13] Burlington filed its Motion for a Protective Order a week later, and Plaintiffs filed their Motion to Compel shortly thereafter.^[14] The discovery disputes addressed herein are solely between Plaintiffs and the Burlington Defendants.

II. Motion for a Protective Order

Burlington's Motion for a Protective Order asks the Court to 1) prevent Plaintiffs from propounding further written discovery, 2) bar Plaintiffs from deposing any individuals other than those listed in the motion, 3) order all future depositions to take place over Zoom, and 4) quash Plaintiffs' Rule 30(b)(6) Notice of Deposition.

A. Legal Standard

Under Federal Rule of Civil Procedure 26(c)(1), “[t]he court may, for good cause, issue an order to protect a party or person from annoyance, embarrassment, oppression, or undue burden or expense.”^[15] The moving party “must show good cause by demonstrating a particular need for protection, ” and it is insufficient to make “[b]road allegations of harm, unsubstantiated by specific examples” to prevent disclosure.^[16] The Court must “weigh[] the requesting party's need for information against the injury that might result if disclosure is compelled.”^[17] When assessing the proportionality of discovery requests, the Court will consider “the importance of the issues at stake in the action, the amount in controversy, the parties' relative access to relevant information, the parties' resources, the importance of the discovery in resolving the issues, and whether the burden or expense of the proposed discovery outweighs its likely benefit.”^[18]

B. Discussion

1. Request to Prevent Plaintiffs from Propounding Further Written Discovery

Burlington first argues that the Court should prevent Plaintiffs from serving additional written discovery because Burlington has responded to “numerous discovery requests” pursuant to Rules 33 and 34 of Federal Civil Procedure.^[19] Plaintiffs contend that prohibiting additional discovery would hinder their ability to prove their case.^[20] Given that Plaintiffs bear the burden of proof regarding their negligence claim, Burlington has failed to demonstrate good cause for curtailing written discovery. Burlington's request to bar Plaintiffs from propounding further written discovery will be denied without prejudice.

2. Request to Bar Plaintiffs from Conducting Additional Depositions

Burlington asks this Court to bar Plaintiffs from deposing anyone other than Jeanine Norkaitis, Juliet Lynaugh, Nicole Pagan, and Ke'Andre Clay, all of whom are former or current Burlington employees.^[21] Burlington contends that these individuals include the former manager of the store where Plaintiff fell, the person who created the video of Plaintiff s fall, the store's former safety manager, and a former employee who appears in the video footage of Plaintiff s fall.^[22] Plaintiffs have already deposed Jason Curnow, the regional loss prevention manager who almost fell on the wet mat before Plaintiffs slip and fall.^[23] Yet Plaintiffs contend that additional depositions may be required.^[24] In recognition of Plaintiffs' burden of proof as well as the potential for information gleaned through depositions and outstanding discovery requests to necessitate additional depositions, Burlington has failed to demonstrate good cause to warrant such a limitation. However, the Court notes that the individuals named in Burlington's motion could likely provide much, if not all, of the information Plaintiffs seek. Accordingly, this request will be denied without prejudice.

3. Request to Order Future Depositions to Proceed via Zoom

Burlington next asks the Court to order all future depositions in this case to proceed via Zoom due to the ongoing COVID-19 pandemic.^[25] In response, Plaintiffs express concerns about communication challenges that Zoom presents, and offer space for in-person depositions to occur in compliance with CDC guidelines.^[26] As Burlington correctly notes, Zoom depositions have become commonplace since the beginning of the pandemic.^[27] The comfort of the deponent shall dictate whether depositions occur in person or proceed via Zoom as well as the location of the deposition should a deponent choose to appear in person. Accordingly, the Court orders the parties to ask each deponent about their preferences and make appropriate arrangements to accommodate each deponent's wishes. Burlington's request for this Court to order all future depositions to take place via Zoom is denied.

4. Request to Quash Plaintiffs' Rule 30(b)(6) Notice of Deposition

Lastly, Burlington asks the Court to quash Plaintiffs' Rule 30(b)(6) Notice of Deposition directed to a Burlington designee.^[28] Burlington challenges the Rule 30(b)(6) Notice as unduly burdensome and overly broad. Plaintiff seeks a witness or witnesses to testify as to slip-and-falls at each of Burlington's 880 plus stores within the past eight years, the maintenance of Burlington's video system, and personal information about employees who worked in the store at the time of the fall.^[29] Plaintiffs argue that the information sought through the deposition and related document requests is relevant to their claim that Burlington failed to comply with various safety standards.^[30]

Burlington has demonstrated good cause for quashing the notice as it is overly broad. Burlington acknowledges that the store manager, Jeanine Norkaitis, and by extension, Burlington, had actual notice of the wet mat. Plaintiffs seek information regarding all Burlington stores despite the fact that this case concerns one incident at Burlington's Springfield store.^[31] Further, the notice includes seventeen areas of inquiry concerning Burlington's video maintenance system even though Plaintiffs may depose Ke'Andre Clay, the employee who allegedly preserved the video of Plaintiff's fall.^[32] Likewise, Burlington has articulated that Plaintiffs' request for personal information concerning every person who was working in the store when Plaintiff fell is unnecessary under the circumstances.^[33] The motion to quash will be granted without prejudice to a narrowly-tailored request by Plaintiffs.

III. Motion to Compel

Plaintiffs ask the Court to compel Burlington 1) to produce summary and statistics regarding slip-and-fall incidents at all Burlington stores and at the specific store where Plaintiff fell, 2) to produce tile floor risk assessments, inspection reports, and insurance surveys, 3) to produce written job descriptions for employees working in the store when Plaintiff fell, 4) to produce Nicole Pagan's contact information, 5) to refrain from offering to represent former employees in depositions, 6) to compel Jason Curnow to answer a question posed at his deposition and to refrain from instructing deponents not to answer questions at depositions.

A. Legal Standard

Pursuant to Rule 37, a party may file a motion to compel when “a party receives evasive or incomplete answers to a discovery request.”^[34] A party can obtain “any nonprivileged matter that is relevant to any party's claim or defense and proportional to the needs of the case.”^[35] ...