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Buehler v. Family Dollar, Inc.

United States District Court, D. Kansas

January 4, 2018

KIM BUEHLER, Plaintiff,
v.
FAMILY DOLLAR, INC., Defendant.

          MEMORANDUM AND ORDER

          GWYNNE E. BIRZER UNITED STATES MAGISTRATE JUDGE.

         This 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.

         I. Background[1]

         This is 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.

         Plaintiff initially filed her case in the Sedgwick County District Court.[2] 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.[3]

         Prior 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.

         II. Plaintiff's Motion to Compel (ECF No. 12)

         The 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. at 14.)

         A. Compliance with D. Kan. Rule 37.2

         Throughout 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 Plaintiff's motion.

         B. Discussion

         The 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 turn.

         1. Work Product

         The analysis of the work product doctrine is governed by the federal standard outlined in Fed.R.Civ.P. 26(b)(3).[4] 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.”[5] For work product protection to apply, ...


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