Klitzke et al v. Menard, Inc.

UNITED STATES DISTRICT COURT
DISTRICT OF SOUTH DAKOTA
SOUTHERN DIVISION
SCOTT KLITZKE, JENNI KLITZKE,
Plaintiffs,
vs.
MENARD, INC., A WISCONSIN
CORPORATION;
Defendant.
4:21-CV-04029-KES
ORDER ON PLAINTIFFS’ SECOND
MOTION TO COMPEL
Docket No. 24
INTRODUCTION
Pending before the court is plaintiffs’ second motion to compel, which the
district court referred to this magistrate judge for decision. 	Docket Nos. 24 &
32. 	Defendant resists the motion. 	Docket No. 31.
FACTS
Plaintiffs filed a complaint in state court which defendant removed to this
court on the basis of diversity jurisdiction. 	Docket Nos. 1, 1-1. 	The complaint
alleges Scott Klitzke was injured at Menard’s Sioux Falls East store when a cart
containing 4’ x 8’ sheets of plywood collided with him. 	Id. 	He asserts a claim
of negligence and his wife, Jenni Klitzke, asserts a loss of consortium
claim. 	Id. 	Previously, plaintiffs filed a first motion to compel and defendant
Case 4:21-cv-04029-KES Document 37 Filed 07/27/22 Page 1 of 13 PageID #: <pageID>

2
filed a motion for a protective order which this court resolved. 	Docket No. 23.
Plaintiffs’ current motion concerns the same two sets of discovery requests.
Plaintiffs served defendant with 18 requests for the production of
documents and 30 interrogatories. 	Docket Nos. 26-10 and 26-11. 	Dissatisfied
with defendant’s objections and responses following this court’s order on
plaintiffs’ first motion to compel, plaintiffs’ counsel tried to work out a
compromise with defendant to no avail and eventually filed this second motion
to compel. 	Docket No. 24. 	Plaintiffs seek three things: 	(1) an order finding
that defendant has waived any objections to all the discovery requested, (2) an
order compelling defendant to answer all discovery completely within 14 days,
and (3) an award of attorney’s fees for having to file this motion. 	Docket
No. 24.
Defendant does not dispute the amount of time it took to provide
discovery responses to plaintiffs. 	Docket No. 31. 	However, it points out that
there was a change in the identity of corporate counsel which threw discovery
production on defendant’s part into disarray for a time. 	Id. at p. 4. 	In
addition, defense counsel was ill for a time. 	Docket No. 26-5 at p. 2.
Nevertheless, defendant represents that it has provided plaintiffs with all
discovery responsive to their requests with the exception of interrogatory
number 12 and request for the production of documents number 15. 	Docket
No. 31 at pp. 3-4. Defendant represents this discovery was provided to
plaintiffs’ prior to the filing of their second motion to compel.
Case 4:21-cv-04029-KES Document 37 Filed 07/27/22 Page 2 of 13 PageID #: <pageID>

3
DISCUSSION
A. 	Good Faith Efforts to Resolve Discovery Dispute
Plaintiffs allege that they have engaged in good-faith efforts with Menards
to resolve this discovery dispute. 	Menards does not contravene that allegation.
The court agrees that plaintiffs exhausted good-faith efforts to work things out
with Menards before filing this motion.
B. 	Standards Governing Discovery
Federal Rule of Civil Procedure 26(b)(1) sets forth the scope of discovery
in civil cases pending in federal court:
Scope in General. 	Unless otherwise limited by court order, the scope of
discovery is as follows: Parties may obtain discovery regarding any
nonprivileged matter that is relevant to any party’s claim or defense and
proportional to the needs of the case, considering 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.
Information within the scope of discovery need not be admissible in
evidence to be discoverable.
See Fed. R. Civ. P. 26(b)(1).
If a party fails to respond to a proper request for discovery, or if an
evasive or incomplete response is made, the party requesting the discovery is
entitled to move for a motion compelling disclosure after having made a good-
faith effort to resolve the dispute by conferring first with the other party. 	See
Fed. R. Civ. P. 37(a).
The scope of discovery under Rule 26(b) is extremely broad. 	See 8
Charles A. Wright & Arthur R. Miller, Fed. Prac. & Proc. Civ. ' 2007 (3d ed.
Oct. 2020 update). 	The reason for the broad scope of discovery is that
Case 4:21-cv-04029-KES Document 37 Filed 07/27/22 Page 3 of 13 PageID #: <pageID>

4
“[m]utual knowledge of all the relevant facts gathered by both parties is
essential to proper litigation. 	To that end, either party may compel the other to
disgorge whatever facts he has in his possession.” 	Id. (quoting Hickman v.
Taylor, 329 U.S. 495, 507-08 (1947)). 	The Federal Rules distinguish between
discoverability and admissibility of evidence. 	F ED. R. CIV. P. 26(b)(1), 32, and
33(a)(2) & (c). 	Therefore, the rules of evidence assume the task of keeping out
incompetent, unreliable, or prejudicial evidence at trial. 	But these
considerations are not inherent barriers to discovery.
Discoverable information itself need not be admissible at trial; rather, the
defining question is whether it is within the scope of discovery. 	See FED. R. CIV.
P. 26(b)(1). 	Additionally, the court may limit the frequency and extent of
discovery. 	See Fed. R. Civ. P. 26(b)(2); see also Roberts v. Shawnee Mission
Ford, Inc., 352 F.3d 358, 361 (8th Cir. 2003) (“The rule vests the district court
with discretion to limit discovery if it determines, inter alia, the burden or
expense of the proposed discovery outweighs its likely benefit.”); Cont’l Ill. Nat’l
Bank & Trust Co. of Chi. v. Caton, 136 F.R.D. 682, 684-85 (D. Kan. 1991) (“All
discovery requests are a burden on the party who must respond thereto.
Unless the task of producing or answering is unusual, undue or extraordinary,
the general rule requires the entity answering or producing the documents to
bear that burden.”).
The court notes that, after reading the briefs of the parties in this matter,
the court was unable to discern which action plaintiffs were requesting for
which specific discovery requests. 	The court therefore ordered plaintiffs to
Case 4:21-cv-04029-KES Document 37 Filed 07/27/22 Page 4 of 13 PageID #: <pageID>

5
provide an executive summary containing a list of discovery requests at issue
and the action requested as to each. 	Docket No. 34. 	Plaintiffs filed a response
to the court’s request, but professed to be unable to provide a comprehensive
executive summary as requested. 	Docket No. 35. 	Therefore, the court
addresses only general categories of objections as outlined by plaintiffs in their
motion.
C. 	General Objections
Defendant lodged 13 general objections and four general “reservations of
rights” to all of plaintiffs’ first set of interrogatories. 	Docket No. 26-10 at pp. 1-
4. 	None of these 17 statements are linked to any specific interrogatory or to
any specific fact. 	Id. 	Defendant states it has waived these objections. 	Docket
NO. 31 at p. 3.
Plaintiffs assert defendant’s general objections are improper because this
district rejects general objections as without force or effect. 	See Gowan v. Mid
Century Ins. Co., No. 5:14-CV-05025-LLP, 2015 WL 7274448, at *5 (D.S.D.
Nov. 16, 2015); Nye v. Hartford Accident and Indem. Co., Civ. No. 12-5028-
JLV, 2013 WL 3107492, at *8 (D.S.D. June 18, 2013); Collins v. St. Paul Fire &
Marine Ins. Co., No. 5:15-CV-05047-JLV, 2016 WL 5794722, at *3 (D.S.D.
Sept. 30, 2016). 	Rule 33 requires a party objecting to discovery to show
specifically how each production request is not subject to discovery. 	Fed. R.
Civ. P. 33(b)(4); Kooima v. Zacklift Int’l, Inc., 209 F.R.D. 444, 446 (D.S.D.
2002). 	Defendant’s general objections are entirely non-specific and they fail to
make this showing. 	They are therefore overruled.
Case 4:21-cv-04029-KES Document 37 Filed 07/27/22 Page 5 of 13 PageID #: <pageID>

6
D. 	Timeliness
Plaintiffs seek a ruling from the court that, because it took defendant so
long to respond to their discovery requests, that all objections must be deemed
waived. 	Plaintiffs cite only one case for that proposition and the case does not
support their assertion of the law. 	This request is denied.
The history of this ongoing discovery dispute demonstrates that the
parties were engaged in a back-and-forth discussion over much of the elapsed
time. 	In addition, there was a change in the identity of in-house counsel for
defendant (Docket No. 31 at p. 4), and defendant’s counsel of record
experienced illness (Docket No. 26-5 at p. 2). 	The court will not summarily
deny defendant the right to make any objections to any discovery request
based simply on the time that elapsed between the serving of the discovery
requests and the ultimate responses thereto.
E. 	Prematurity of Discovery Requests
Defendant objected to interrogatories 7, 10 and 16 and requests for
production 2 and 10 on the grounds that the discovery requests were
premature. 	Plaintiffs ask the court to strike this objection. 	Docket No. 25 at
p. 6.
Interrogatory number 7 asks defendant to identify all trial witnesses and
state what their testimony will be. 	Interrogatory number 10 asks if defendant
will seek to admit at trial any admission against plaintiffs’ interest and identify
the nature of such alleged admission. 	Interrogatory 16 asks defendant to
identify all its trial exhibits. 	Request for production number 2 asks defendant
Case 4:21-cv-04029-KES Document 37 Filed 07/27/22 Page 6 of 13 PageID #: <pageID>

7
to produce all documents and writings it intends to use as exhibits at trial.
Request for production 10 requests documents or exhibits prepared by
defendant’s experts for use at trial.
The court agrees it is premature to ask defendant to designate at this
early date what its evidence will be at trial. 	Experts are not required to be
designated until November 20, 2022 (plaintiffs), and December 20, 2022
(defendant); discovery may continue until February 1, 2023; and the deadline
for dispositive motions is March 1, 2023. 	See Docket No. 28. 	Discovery is
ongoing in this matter. 	Defendant may not know until many months from now
what shape its trial evidence will take. 	It may not even have retained any
experts at this point.
The court notes that parties are under an ongoing duty to supplement
their discovery responses when further information becomes known. 	Fed. R.
Civ. P. 26(e); Docket No. 6 at p. 2, ¶ 3. 	It is expected as the trial date draws
near, that defendant will supplement its responses to these discovery requests
appropriately. 	Plaintiffs’ request to overrule all of defendant’s prematurity
objections is refused.
F. 	Attorney-Work Product, Attorney-Client Privilege, and Statements
Made in Anticipation of Litigation
Plaintiffs ask that any privilege asserted by defendant along these lines
be overruled. 	Plaintiffs specify that defendant’s assertion of privilege was made
in responses to interrogatories 4-6, 14, and 30 and requests for the production
of documents 3-5, 7-9, 12, and 16.
Case 4:21-cv-04029-KES Document 37 Filed 07/27/22 Page 7 of 13 PageID #: <pageID>

8
At the same time the court requested plaintiffs’ to clarify their motion to
compel, the court requested defendant to submit to the court for in camera
review the documents it claimed privilege or work product doctrine as to.
Defendants complied with the court’s request. 	Docket Nos. 36, 36-1, and 36-2.
The court has examined the documents in both their redacted and unredacted
forms and compared them to defendant’s Vaugh index. 	The court finds that
defendant’s assertion of privilege or work product doctrine is well-founded as to
these documents and the redactions are appropriate. 	Accordingly, the court
denies plaintiffs’ request to overrule defendant’s assertion of privilege or work
product doctrine as to these redactions.
G. 	Confidential Information
Plaintiffs ask the court to overrule defendant’s objections on grounds of
confidentiality to interrogatories 4, 14, 19, 23, and 30 and to requests for the
production of documents 3-5, 7-8, 12-13, and 15.
1. 	The Court Will Not Relitigate Issues Previously Decided
When plaintiffs filed their first motion to compel and defendants sought a
protection order, the court ruled defendants were not entitled to a protection
order as to its responses to interrogatories 14, 19, and 23. 	Defendant’s current
objections to those interrogatories on the grounds of confidentiality are
overruled. 	Defendants did provide responses to these interrogatories. 	See
Docket No. 26-10 at pp. 11-15. 	If defendant withheld any information
pursuant to its re-assertion of confidentiality, defendant is hereby ordered to
Case 4:21-cv-04029-KES Document 37 Filed 07/27/22 Page 8 of 13 PageID #: <pageID>

9
immediately provide revised answers to these interrogatories including any
previously-omitted material.
Similarly, when plaintiffs filed their first motion to compel and defendant
sought a protective order, the court granted a protective order as to requests
for production number 7, 13 and 15. 	By asking the court to overrule
defendant’s confidentiality objection, plaintiffs are seeking to relitigate this
issue, which the court refuses to do. 	If defendant has failed to produce these
documents in accordance with the rules outlined by the court in its previous
order (see Docket No. 23 at pp. 9-11), defendant is ordered to immediately
produce those documents.
2. 	Discovery Requests Not Previously Litigated
In addition to the interrogatories and requests for production that were
litigated in the first round of discovery motions in this case, defendant has
asserted objections based on confidentiality as to interrogatory number 30 and
requests for the production of documents number 3-5, 8, and 12.
A party asserting that information is confidential or proprietary bears the
burden of seeking out a protection order. 	Fed. R. Civ. P. 26(c); General
Dynamics Corp. v. Selb Mfg. Co., 481 F.2d 1204, 1212 (8th Cir. 1973).
Defendant did this in the first round of discovery motions. 	Defendant has not
sought a protection order for its responses to interrogatory number 30 and
requests for the production of documents number 3-5, 8, and 12. 	Therefore,
defendant’s objection on the grounds of confidentiality as to these discovery
requests is overruled. 	If there are any responses or responsive documents that
Case 4:21-cv-04029-KES Document 37 Filed 07/27/22 Page 9 of 13 PageID #: <pageID>

10
have been withheld by defendant pursuant to a claim of confidentiality as to
these discovery requests, defendant is ordered to immediately produce such
responses.
H. 	Subsequent Remedial Measures
Interrogatory number 12 asks defendant whether it took any action to
inspect, repair, modify or otherwise change the conditions at the subject
premises or cart following plaintiffs’ injury and, if so, to describe the action
taken in detail, when it was taken and who took the action. 	Docket No. 26-10
at p. 11. 	Defendant objects on the basis of Federal Rule of Evidence 407. 	Id.
Rule 407 provides as follows:
When measure are taken that would have made an earlier injury or
harm less likely to occur, evidence of the subsequent measures is
not admissible to prove:
•negligence;
•culpable conduct;
•a defect in a product or its design; or
•a need for a warning or instruction.
But the court may admit this evidence for another purpose, such
as impeachment or—if disputed—proving ownership, control, or
the feasibility of precautionary measures.
Fed. R. Evid. 407.
The text of the rule undermines defendant’s argument that evidence of
subsequent remedial measures is never admissible. 	It is admissible for some
purposes. 	Moreover, the rules of evidence are addressed to the admissibility of
evidence at trial, not the discoverability of evidence in the first place. 	As
indicated above, the rules of evidence do not pose an inherent barrier to
discovery. 	Rule 26 explicitly states: 	“Information within this scope of discovery
need not be admissible in evidence to be discoverable.” 	Fed. R. Civ. P. 26(b)(1).
Case 4:21-cv-04029-KES Document 37 Filed 07/27/22 Page 10 of 13 PageID #: <pageID>

11
Defendant’s objection based on Rule 407 is overruled. 	Defendant is
ordered to immediately provide a full and complete response to interrogatory
number 12. 	This order does not prejudice defendant’s ability to raise an
objection under Rule 407 at trial to the admissibility of any such evidence
disclosed through discovery.
I. 	Proportionality
In response to interrogatories 19, 21, 23-24, 26, and 30 and requests for
the production of documents 13 and 15 defendants asserted an objection that
the discovery requests were not proportional to the needs of the case. 	Rule 26
of the Federal Rules of Civil Procedure limits discovery to that which is
“proportional to the needs of the case, considering 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.” 	Fed. R. Civ. P. 26(b)(1).
Defendant’s proportionality objection is overruled. 	First, defendant
represents that it has provided all documents and information asked for in
plaintiffs’ discovery requests with the exception of interrogatory number 12 and
request for the production of documents 15. 	Docket No. 31 at pp. 2-3.
Second, it is defendant’s burden to demonstrate how the requested
discovery is disproportionate to the needs of the case. 	Penford Corp. v.
National Union Fire Ins. Co., 265 F.R.D. 430, 433 (N.D. Iowa 2009); St. Paul
Reinsurance Co. v. Commercial Financial Corp., 198 F.R.D. 508, 511 (N.D.
Case 4:21-cv-04029-KES Document 37 Filed 07/27/22 Page 11 of 13 PageID #: <pageID>

12
Iowa 2000). 	The articulation of mere conclusory objections that something is
disproportionate is insufficient to carry the resisting party=s burden-Bthat party
must make a specific showing of reasons why the relevant discovery should not
be had. 	Cincinnati Ins. Co. v. Fine Home Managers, Inc., 2010 WL 2990118,
*1 (E.D. Mo. 2010); Burns v. Imagine Films Entertainment, Inc., 164 F.R.D.
589, 593 (W.D.N.Y. 1996). 	Defendant has not done so, either in its discovery
responses or in its brief in response to plaintiffs’ second motion to compel.
Defendant indicated that it waives any objections where, despite the objection,
it provided the discovery. 	Docket No. 31 at p. 3. 	Accordingly, the court deems
the objection waived.
J. 	Request for the Production of Documents Number 15
Defendant admits it has not responded to plaintiffs’ request for the
production of documents number 15 and that the documents requested are
discoverable. 	Docket No. 31 at p. 4. 	Defendant is hereby ordered to
immediately produce documents responsive to request number 15 pursuant to
the confidentiality procedure outlined in the court’s previous order. 	Docket No.
23 at pp. 9-11.
K. 	Sanctions
Defendant represents that all discovery, with the exception of responses
to interrogatory number 12 and request for the production of documents 15,
was provided to plaintiffs prior to the filing of their second motion to compel.
Docket No. 31 at p. 4. 	In addition, the court finds that at least half of plaintiffs’
arguments in favor of their motion to compel were refused. 	Under these
Case 4:21-cv-04029-KES Document 37 Filed 07/27/22 Page 12 of 13 PageID #: <pageID>

13
circumstances, the court finds an award of expenses in the form of ordering
defendant to pay plaintiffs’ attorney’s fees for the filing of this motion would be
unjust. 	Fed. R. Civ. P. 37(a)(5)(iii). 	Accordingly, plaintiffs’ request for
sanctions in the form of attorney’s fees is denied. 	Each party will bear their
own attorney’s fees.
CONCLUSION
Plaintiffs’ second motion to compel discovery [Docket No. 24] is granted
in part and denied in part in accordance with the foregoing discussion.
DATED July 27, 2022.
BY THE COURT:
VERONICA L. DUFFY
United States Magistrate Judge
Case 4:21-cv-04029-KES Document 37 Filed 07/27/22 Page 13 of 13 PageID #: <pageID>