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Jones v. Officemax North America, Inc.

United States District Court, D. Kansas

February 13, 2018

MICKEY JONES, Plaintiff,
v.
OFFICEMAX NORTH AMERICA, INC., et al., Defendants.

          MEMORANDUM & ORDER ON MOTION TO QUASH AND MOTION TO COMPEL

          HON. KENNETH G. GALE U.S. MAGISTRATE JUDGE

         Now before the Court are Defendants' “Motion to Quash Subpoenas, for a Protective Order, and Extension of Time” (Doc. 37) and Plaintiff's “Motion to Compel, Motion for Protective Order” (Doc. 39). Having reviewed the submissions of the parties, and having heard the parties argue their positions at hearing, Plaintiff's motion (Doc. 39) is GRANTED in part and DENIED in part, without prejudice. Defendants' motion (Doc. 37) is DENIED without prejudice.

         FACTS

         This is a premises liability action in which Plaintiff alleges she was injured while attempting to exit through the automatic doors of an OfficeMax store. The case was originally filed in the District Court of Reno County, Kansas, but was removed to the District of Kansas by Defendants. (Doc. 1.)

         Plaintiff indicates that her Motion to Compel is a result of

Defendants' refusal to provide documents responsive to Plaintiff's Request for Production, refusal to allow Plaintiff to depose former OfficeMax employees despite defense counsel's agreement to produce the same for depositions, and refusal to allow Plaintiff to depose employees of the company which performed maintenance and repair work on the subject automatic doors.

(Doc. 40, at 1-2.) Defendants characterize their motion as a request to

quash any and all subpoenas issued to OfficeMax employee-witnesses for deposition, for a protective order protecting OfficeMax from producing its employee-witnesses for deposition prior to Plaintiff's deposition, and for extensions of time to respond to Plaintiff's settlement demand, attend mediation, and complete any physical or mental examination pursuant to Fed.R.Civ.P. 35.

(Doc. 37, at 1.)

         The Court held a hearing on January 23, 2018, during which these issues were addressed and argued. As a result of the hearing, the parties were able to resolve all outstanding issues except the issue of whether witness statements and incident reports compiled by Defendants are protected by the attorney work product doctrine.[1]

         ANALYSIS

         Plaintiff's counsel has refused to make Plaintiff and her husband available for depositions until Defendants first produce a one-page incident report and one-page witness statement regarding the slip and fall incident at issue in this lawsuit. (See Doc. 37, at 8.) According to Defendants, “[t]here is no need for Plaintiff to have the disputed documents before being produced for deposition.” (Id.) Defendants continue that

[o]pposing counsel's contention that [Plaintiff] cannot be produced for deposition without having reviewed these documents indicates that she wants to ‘prepare' for her deposition by reading and considering what someone else wrote before she can give testimony. Defendants believe that Plaintiff can ...

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