United States District Court, D. Kansas
MEMORANDUM AND ORDER
E. BIRZER UNITED STATES MAGISTRATE JUDGE.
matter is before the Court on Plaintiff's Motion to
Compel Defendant to produce video surveillance footage
(ECF No. 12). On December 19, 2017, the
Court convened an in-person hearing to address the pending
motion. Plaintiff Kim Buehler appeared through counsel,
Kathryn Wright. Defendant Family Dollar, Inc. appeared
through counsel, Christopher Wnuk. After consideration of
both the arguments of counsel and the parties' briefing,
the Court GRANTED Plaintiff's Motion
(ECF No. 12) at hearing. The previously-announced ruling of
the Court is now memorialized below.
a slip-and-fall case, arising from an accident on May 14,
2016 at a Family Dollar store in Wichita, Kansas. Plaintiff
Kim Buehler was a customer in the store when she claims she
slipped on an unmarked wet spot, causing her to fall and
sustain injuries. She claims her damages resulted from
Defendants' negligence, and seeks reimbursement for her
medical expenses, lost wages, pain and suffering and
emotional distress. Defendant denies both liability, and the
nature and extent of Plaintiff's injuries.
initially filed her case in the Sedgwick County District
Court. After she served discovery responses
making it clear she seeks damages in excess of $75, 000,
Defendant removed the case to this Court on September 25,
2017 (ECF No. 1) on the basis of diversity jurisdiction under
28 U.S.C. § 1332.
to removal, the parties engaged in written discovery.
Plaintiff filed a motion to compel before the Sedgwick County
District Court (State Court Records, ECF No. 10, at 22;
Motion, ECF No. 12). Before the State Court had the
opportunity to review the motion, Defendant removed the
action, placing the issue before this Court.
Plaintiff's Motion to Compel (ECF No. 12)
dispute between the parties is confined to a discovery
request contained in Plaintiff's First Request for
Production of Documents served on Defendant on July 24, 2017
(ECF No. 12, at 13). That request asks Defendant to produce
“copies of all video footage related to the slip and
fall accident which occurred on May 14, 2016 at Store #6951
located at 2301 S. Seneca St. in Wichita, Kansas, including
footage one hour prior to the incident and one hour after the
incident.” (Id.) Defendant objected,
contending the “Request seeks materials protected from
disclosure by the work product doctrine.” (Id.
Compliance with D. Kan. Rule 37.2
the briefing, and during the in-person hearing, the parties
demonstrated their attempts to resolve their differences.
Therefore, the Court is satisfied they have sufficiently
conferred as required by D. Kan. Rule 37.2 and Fed.R.Civ.P.
37(a)(1). However, despite their attempts, the parties could
not agree regarding production of the videos, leading to
parties do not disagree regarding the relevance of the video
footage, but rather, whether the videos are protected from
disclosure. Defendant argues the videos are shielded by the
work product doctrine, and if the videos must be produced,
Defendant asks that they be produced after Defendant has the
opportunity to conduct written discovery and Plaintiff's
deposition. Plaintiff contends any videos were prepared in
the course of Defendant's business-not in anticipation of
litigation-and therefore the work product doctrine does not
protect them. The parties' arguments regarding the work
product protection and timing of production are addressed in
analysis of the work product doctrine is governed by the
federal standard outlined in Fed.R.Civ.P.
26(b)(3). For Defendant to establish protection
under the work product doctrine, it bears the burden to
demonstrate “(1) the materials sought to be protected
are documents or tangible things; (2) they were prepared in
anticipation of litigation or for trial; and (3) they were
prepared by or for a party or a representative of that
party.” For work product protection to apply,