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 GRANTINGING IN PART AND
DENYING IN PART PLAINTIFFS’
MOTION TO COMPEL AND
GRANTING IN PART AND DENYING
IN PART DEFENDANT’S MOTION FOR
PROTECTIVE ORDER
DOCKET NOS. 11 & 20
INTRODUCTION
This matter is before the court on the notice of removal filed by defendant
Menard, Inc. (“Menards”), a Wisconsin corporation. 	See Docket No. 1.
Menards asserts this court has jurisdiction because the parties are of diverse
citizenship and the amount in controversy exceeds $75,000. 	Id. 	Plaintiffs
Scott Klitzke and Jenni Klitzke, husband and wife, are alleged to be residents
of South Dakota. 	Id. 	Now pending is a motion to compel by plaintiffs (Docket
No. 11) and a motion for a protective order by Menards (Docket No. 20). 	Both
motions have been referred to this magistrate judge for decision pursuant to 28
U.S.C. § 636(b)(1)(A) and the October 16, 2014, standing order of the
Honorable Karen E. Schreier, United States District Judge.
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FACTS
The facts pertinent to this matter are as follows. 	Plaintiffs allege Scott
Klitzke was injured at Menards’ east Sioux Falls store when a store employee
took it upon himself to push on a load of 4’ x 8’ sheets of plywood which Scott
was pushing on one of Menards’ large wheeled carts, causing some of the
plywood to fall and the cart to strike Scott. 	Docket No. 1-1 at pp. 2-3. 	He
asserts a negligence claim against Menards and seeks general and special
damages. 	Id. at pp. 4-6. 	Jenni Klitzke asserts a claim for loss of consortium
related to Scott’s injuries. 	Id. at p. 6.
Pursuant to Federal Rule of Civil Procedure 26(f), the parties had a
telephonic planning meeting on March 16, 2020. 	Docket No. 5. 	The parties
agreed to exchange all pre-discovery disclosures by April 7, 2021. 	Id. at p. 3.
Menards did provide initial disclosures, but withheld certain documents,
requesting a protective order. 	Plaintiffs then served 30 interrogatories and 18
requests for production on Menards on April 28, 2021. 	As of the filing of
plaintiffs’ motion to compel on December 16, 2021, plaintiffs claim Menards
has not responded to those discovery requests at all. 	Docket No. 13 at p. 1.
According to plaintiffs’ counsel, a months-long negotiation took place
between counsel for the parties with Menards’ counsel insisting on an all-
inclusive protective order before providing any discovery, and plaintiffs
agreeing to a protective order covering only documents and information
legitimately deserving of protected status. 	Id. at pp. 2-3; Docket No. 15 at p. 2,
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¶¶ 6-7. 	Ultimately, the parties were not able to come to an agreement as to the
scope of the protective order. 	Id. at pp. 2-7, 	¶¶ 8-33.
Menards responded to plaintiffs’ motion to compel by filing a motion for a
protective order (Docket No. 20) and a brief in support of that motion as well as
opposing plaintiffs’ motion (Docket No. 20-2). 	Menards basically agrees with
plaintiffs’ statement of the facts: 	plaintiffs served Menards with discovery
requests and the parties have been negotiating over the proper scope of a
protective order and have reached an impasse. 	See Docket No. 20-2 at p. 7.
Menards asserts four (4) of plaintiffs’ interrogatories and four (4) of plaintiffs’
requests for the production of documents (RPD) call for proprietary training
and safety information and personal employee information that should be
protected. 	Id. at p. 8 (pointing to interrogatory nos. 14, 18-19, & 23 and RPD
Nos. 1, 7, 13 & 15). 	Menards does not explain why it has not responded to
plaintiffs’ 26 interrogatories and 14 RPDs which do not call for protected
information or documents.
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.
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B. 	Unobjected-to Discovery Requests
Menards offers no explanation or justification for not responding to
interrogatory nos 1-13, 15-17, 20-22, and 24-30. 	Nor does Menard offer any
explanation or justification for not responding to RFP nos. 2-6, 8-12, 14, and
16-18. 	Menards is ordered to immediately respond to these discovery requests
by answering the interrogatories under oath and by providing the relevant
documents or offering the same for inspection. 	Menards shall comply with this
order within 15 days of the date of this order.
C. 	Discovery for Which a Protective Order is Requested
1. 	Standard for Granting Protective Orders
Federal Rule of Civil Procedure 26(c) governs the granting of a protective
order by the court, as follows:
(c) Protective Orders.
(1) In General. 	A party or any person from whom discovery
is sought may move for a protective order in the court where
the action is pending-Bor as an alternative on matters
relating to a deposition, in the court for the district where
the deposition will be taken. 	The motion must include a
certification that the movant has in good faith conferred or
attempted to confer with other affected parties in an effort to
resolve the dispute without court action. 	The court may, for
good cause, issue an order to protect a party or person from
annoyance, embarrassment, oppression, or undue burden or
expense, including one or more of the following:
(A) forbidding the disclosure or discovery;
(B) specifying terms, including time and place, or the
allocation of expenses, for the disclosure or discovery;
(C) prescribing a discovery method other than the one
selected by the party seeking discovery;
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(D) forbidding inquiry into certain matters, or limiting
the scope of disclosure or discovery to certain matters;
(E) designating the persons who may be present while
the discovery is conducted;
(F) requiring that a deposition be sealed and opened
only on court order;
(G) requiring that a trade secret or other confidential
research, development, or commercial information not
be revealed or be revealed only in a specified way; and
(H) requiring that the parties simultaneously file
specified documents or information in sealed
envelopes, to be opened as the court directs.
(2) Ordering Discovery. 	If a motion for a protective order is
wholly or partly denied, the court may, on just terms, order
that any party or person provide or permit discovery.
(3) Awarding Expenses. 	Rule 37(a)(5) applies to the award
of expenses.
See Fed R. Civ. P. 26(c).
The trial court has significant discretion in either granting or denying a
protective order, and Aonly an abuse of that discretion would be cause for
reversal.@ 	General Dynamics Corp. v. Selb Mfg. Co., 481 F.2d 1204, 1212 (8th
Cir. 1973). 	Under Rule 26(c), a court may grant a protective order only upon a
showing of good cause by the moving party. 	Id. 	The movant must articulate
Aa particular and specific demonstration of fact, as distinguished from
stereotyped and conclusory statements.@ 	Id. (additional citation and quotation
marks omitted); see also Pansy v. Borough of Stroudsburg, 23 F.3d 772, 786
(3d Cir. 1994) (AGood cause is established on a showing that disclosure will
work a clearly defined and serious injury to the party seeking disclosure. 	The
injury must be shown with specificity. 	Broad allegations of harm,
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unsubstantiated by specific examples or articulated reasoning, do not support
a good cause showing.@) (additional citations and quotation marks omitted).
The court must also consider Athe relative hardship to the non-moving party
should the protective order be granted.@ 	General Dynamics Corp., 481 F.2d at
1212 (additional citation omitted).
In Pansy, The Third Circuit set forth a thoughtful analysis of the good-
cause standard that this court finds instructive. 	Although Pansy dealt
specifically with the issue of whether the trial court abused its discretion in
first granting and then subsequently refusing to modify a confidentiality order
over a settlement agreement, confidentiality orders over matters concerning
stages of litigation and protective orders over discovery are Afunctionally
similar, and require similar balancing between public and private concerns.@
Pansy, 23 F.3d at 786.
In considering whether good cause exists for a protective order, the
federal courts have generally adopted a balancing process.... [T]he
court...must balance the requesting party's need for information
against the injury that might result if uncontrolled disclosure is
compelled. 	When the risk of harm to the owner of [a] trade secret
or confidential information outweighs the need for discovery,
disclosure [through discovery] cannot be compelled, but this is an
infrequent result.
Once the court determines that the discovery policies require that
the materials be disclosed, the issue becomes whether they should
Abe disclosed only in a designated way,@ as authorized by the last
clause of Rule 26(c)(7).... Whether this disclosure will be limited
depends on a judicial balancing of the harm to the party seeking
protection (or third persons) and the importance of disclosure to
the public. 	Courts also have a great deal of flexibility in crafting
the contents of protective orders to minimize the negative
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consequences of disclosure and serve the public interest
simultaneously.
Id. at 787 (additional citations omitted).
The balancing test requires courts to consider a variety of factors to
determine if a protective order is appropriate. 	Id. at 789. 	These factors,
discussed below, Aare unavoidably vague and are of course not exhaustive@ so
as to provide courts with Athe flexibility needed to justly and properly@ resolve
discovery disputes. 	Id.
One interest which should be recognized in the balancing
process is an interest in privacy. 	It is appropriate for courts to
order confidentiality to prevent the infliction of unnecessary or
serious pain on parties who the court reasonably finds are entitled
to such protection. 	In this vein, a factor to consider is whether the
information is being sought for a legitimate purpose or for an
improper purpose. 	However, privacy interests are diminished
when the party seeking protection is a public person subject to
legitimate public scrutiny.
While preventing embarrassment may be a factor satisfying
the Agood cause@ standard, an applicant for a protective order
whose chief concern is embarrassment must demonstrate that the
embarrassment will be particularly serious. 	As embarrassment is
usually thought of as a nonmonetizable harm to individuals, it may
be especially difficult for a business enterprise, whose primary
measure of well-being is presumably monetizable, to argue for a
protective order on this ground.
Circumstances weighing against confidentiality exist when
confidentiality is being sought over information important to public
health and safety and when the sharing of information among
litigants would promote fairness and efficiency.
A factor which a court should consider in conducting the
good cause balancing test is whether a party benefitting from the
order of confidentiality is a public entity or official. 	Similarly, the
district court should consider whether the case involves issues
important to the public.... [I]f a case involves private litigants, and
concerns matters of little legitimate public interest, that should be
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a factor weighing in favor of granting or maintaining an order of
confidentiality.
Id. at 787-88 (cleaned up).
When dealing with sensitive or proprietary information, courts routinely
grant protective orders that limit who may access the disclosed information
and how the disclosed information may be used. 	Id. at 787 (additional citation
omitted). 	Rule 26(c) confers A >broad discretion on the [district] court to decide
when a protective order is appropriate and what degree of protection is
required.= @ 	Miscellaneous Docket Matter No. 1 v. Miscellaneous Docket Matter
No. 2, 197 F.3d 922, 925 (8th Cir. 1999) (quoting Seattle Times Co. v.
Rhinehart, 467 U.S. 20, 36 (1984)). 	In this case, defendants, as the parties
seeking the protective order, have the burden Ato show the necessity of its
issuance.@ 	See General Dynamics Corp., 481 F.2d at 1212.
2. 	Application of the Standard to Eight Discovery Requests
a. 	Interrogatories 14, 18, 19 & 23
There are four interrogatories for which Menard seeks a protective order.
They are as follows:
Interrogatory No. 14. 	State whether or not any investigation was
made of the incident complained of in Plaintiff’s Complaint. 	If so,
state the name, address and employer, position or occupation of
the person or persons making such investigation.
Interrogatory No. 18. 	Identify all supervisory personnel or
management whom you employed, and/or who oversaw employee
training or operations at the subject premises at the time of the
incident, and for three years prior to the incident through the
present, and state:
a. 	Whether they are currently employed by you;
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b. 	Their present employment position with you;
c. 	Their employment position with you at the time of the
incident; and
d. 	A description of their employment duties on the date of
the incident.
Interrogatory No. 19. 	Identify all personnel responsible for safety
and planning at the subject premises (or such materials that
applied to the subject premises), including but not limited to those
personnel responsible for drafting safety protocols or policies
regarding assisting customers and/or use of carts.
Interrogatory No. 23. 	Identify any and all manuals, rules,
regulations, directives, training programs, videos, or the like that
were in force on the date of the incident regarding the use of carts
and/or employee interaction with customers.
Docket No. 15-1 at pp. 5-7.
The above interrogatories require only that Menard name employees,
state their positions, state the employee’s job duties, and state the names of
any training or safety aids. 	None of the interrogatories require Menard to state
the contents of any investigative report or training aid. 	It is Menard’s burden to
demonstrate that these interrogatories call for proprietary or otherwise
confidential information. 	Menard fails to carry that burden as to the
interrogatories. 	Menard is ordered to answer the interrogatories within 15 days
of the date of this order.
b. 	RFP Nos. 1, 7, 13 & 15
There are four RFPs for which Menard seeks a protective order. 	They are
as follows:
Request for Production No. 1. 	All documents identified in your
Answers to the Preceding Interrogatories.
Request for Production No. 7. 	Produce all written reports
relating to all investigations made by Defendant or on its behalf
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concerning the circumstances of the incident, including reports of
injury for this incident.
Request for Production No. 13. 	Any and all manuals, rules,
regulations, directives, training programs, videos, or schedules
setting forth your policies and procedures regarding employees
interacting with customers or governing the use of carts.
Request for Production No. 15. 	Complete copies of all employee
files for employees assisting Plaintiff Scott Klitzke at the time of
this incident.
Docket No. 15-2 at pp. 2-4.
In support of its request for a protective order, Menard provides
the declaration of Darrik Johnson, its Senior Human Resources Advisor
for the Operations Human Resources Department and Team Member
Development. 	Docket No. 20-1. 	Mr. Johnson’s primary duty is “to assist
and train the Human Resource Coordinators for all Menards store
locations across the Midwestern United States.” 	Id. at p. 1, ¶ 3.
Mr. Johnson states that Menards has developed a proprietary
investigation method and forms to be employed whenever there is a
“guest incident.” 	Id. at p. 2, ¶¶ 5-9. 	He states Menard has invested
resources in developing these documents and that the documents are
considered confidential by Menards. 	Id. 	Similarly, Mr. Johnson states
that Menards has invested resources in developing its safety and training
records and that Menards considers those records to be confidential and
proprietary. 	Id. at p. 3, ¶¶ 15-19.
Finally, Mr. Johnson states that Menards’ employees’ personnel
files contain personal, financial, legal, health, and other intimate
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information about each Menards employee. 	Id. at pp. 2-3, ¶ 11.
Mr. Johnson asserts that Menards considers its employees’ personnel
files to be confidential. 	Id. at p. 3, ¶ 12.
Protective orders can be entered to protect trade secrets or other
confidential research, development, or commercial information. 	F ED. R.
CIV. P. 26(c)(1)(G). 	The court finds Menards has demonstrated good
cause for the issuance of a protective order for the documents requested
in the above RFPs. 	Accordingly, Menards is ordered to produce
documents pursuant to the requests, subject to the following:
1. 	Menards may mark documents produced pursuant to
requests for productions 1, 7, 13, & 15 “confidential.”
2. 	Any documents so marked must be kept confidential
by plaintiffs and their lawyers and may not be further copied or
disseminated. 	Confidential documents, if filed in the court, must
be filed under seal. 	If confidential documents are used as exhibits
for a deposition or at trial, they must be kept under seal.
3. 	At the conclusion of this litigation, plaintiffs must
return all confidential documents to Menards or certify under oath
that they have been destroyed.
4. 	Confidential documents may be shared with expert
witnesses and plaintiffs’ counsel’s staff, but such third parties
must agree to be bound by the terms of this protective order.
5. 	As to employee files, no confidential health or financial
information may be produced by Menards. 	As to employee
documents that are not health or financial documents, Menards
shall redact personal identifying information such as addresses,
phone numbers, Social Security Numbers and the like.
In the alternative to the above conditions, the parties may stipulate
to a protective order on terms which are mutually agreeable to them.
Should the parties choose to pursue this route, they are directed to
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submit a stipulated protective order to this court within 15 days of the
date of this order and the court will enter it. 	In the absence of a
stipulation, the above terms control the production of documents
pursuant to requests for production nos. 1, 7, 13 & 15.
CONCLUSION
Plaintiffs’ motion to compel [Docket No. 11] is granted in part and
denied in part. 	Defendant Menard, Inc. shall respond to all of plaintiffs’
30 interrogatories and 18 requests for production of documents as
specified in this opinion, but shall provide documents pursuant to
protective order for the four RFPs as also specified in this opinion.
Defendant Menard, Inc. must do so within 15 days of the date of this
order unless one of the parties files timely objections to this order with
the district court.
Menards’ motion for a protective order [Docket No. 20] is granted
in part and denied in part. 	A protective order will issue as to the four
specified RFPs. 	No protective order will issue as to the interrogatories.
If either party wishes to be awarded attorney’s fees, a separate
motion to that effect must be filed within 15 days of the date of this order
accompanied by time records, hourly fees, and an affidavit by counsel in
accordance with local rules. 	The opposing party will then have 14 days
to file any objections to the motion and the moving party may file a reply
within 5 days thereafter.
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NOTICE OF RIGHT TO APPEAL
Pursuant to 28 U.S.C. § 636(b)(1)(A), any party may seek reconsideration
of this order before the district court upon a showing that the order is clearly
erroneous or contrary to law. 	The parties have fourteen (14) days after service
of this order to file written objections pursuant to 28 U.S.C. § 636(b)(1)(A),
unless an extension of time for good cause is obtained. 	See FED. R. CIV. P.
72(a); 28 U.S.C. § 636(b)(1)(A). 	Failure to file timely objections will result in
the waiver of the right to appeal questions of fact. 	Id. 	Objections must be
timely and specific in order to require review by the district court. 	Thompson
v. Nix, 897 F.2d 356 (8th Cir. 1990); Nash v. Black, 781 F.2d 665 (8th Cir.
1986).
DATED February 7, 2022.
BY THE COURT:
VERONICA L. DUFFY
United States Magistrate Judge
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