PATRICIA DURON Plaintiff, v. COSTCO WHOLESALE CORPORATION Defendant EP-23-CV-00324-KC-MAT United States District Court, W.D. Texas, El Paso Division Filed February 02, 2024 Counsel Alfonso Bafidis-Rodriguez, Bafidis Law Injury Firm, Helotes, TX, for Plaintiff. Brian Brack, Isaac Abraham Gutierrez, Ray Pena McChristian, El Paso, TX, Jeff H. Ray, Ray Pena McChristian, P.C., San Antonio, TX, for Defendant. Torres, Miguel A., United States Magistrate Judge ORDER *1 The Court considers Defendant Costco Wholesale Corporation's (“Defendant”) “Motion to Compel Plaintiff's Discovery Responses and Production” (ECF No. 17) (“Motion”). On January 3, 2024, United States District Judge Kathleen Cardone referred the above-referenced Motion to the undersigned for a determination pursuant to 28 U.S.C. § 636(b)(1)(A) and Appendix C to the Local Rules. For the reasons set forth below, the Court determines that the Motion should be OVERRULED AS MOOT, GRANTED IN PART, and DENIED IN PART. I. FACTUAL & PROCEDURAL BACKGROUND The factual allegations in this paragraph are taken from Plaintiff's amended complaint. Pl.'s First Am. Compl. (hereinafter “FAC”) 2, ECF No. 25. On March 11, 2023, Plaintiff went into the Defendant's store located at 6101 Gateway Blvd W A-1, El Paso, Texas 79925. Id. at ¶ 6. As Plaintiff was walking into the store, Plaintiff slipped on a wet floor and fell at, or near, the entrance of the store. Id. As a result, she sustained severe injuries. Id. at ¶ 9. On August 4, 2023, Plaintiff initiated this lawsuit against Defendant in the 448th District Court of El Paso County, Texas, in Cause No. 2023DCV2531. Def.'s Notice of Removal 1, ECF No. 1. She asserts claims for premises liability based on respondeat superior, negligence, negligence per se, and gross negligence. FAC at ¶¶ 11-22. Plaintiff seeks monetary relief of over $1,000,000. FAC at ¶ 4. On August 25, 2023, Defendant removed the case to federal court premised on diversity jurisdiction, 28 U.S.C. § 1332. On December 13, 2023, Defendant filed the instant Motion. On December 23, 2023, Plaintiff Patricia Duron (“Plaintiff”) filed her “Response to Defendant's Motion to Compel Plaintiff's Discovery Responses and Production” (ECF No. 22) (“Response”). On January 3, 2024, Judge Cardone referred the motion to the undersigned. On January 31, 2024, the Court held a hearing on the motion, at which counsel for Plaintiff and Defendant appeared via videoconference. The discovery deadline is June 28, 2024. Second Am. Scheduling Order 1, ECF No. 32. II. LEGAL STANDARD Once a case has been removed from state court to federal court, Federal Rules of Civil Procedure, not state procedural rules, govern the case. Fed. R. Civ. P. 81(c)(1). A party may serve on any other party written interrogatories which “may relate to any matter that may be inquired into under Rule 26(b).” Fed. R. Civ. P. 33(a). A party may serve on any other party “a request within the scope of Rule 26(b) ... to produce ... any designated documents or electronically stored information” in the other party's “possession, custody, or control.” Fed. R. Civ. P. 34(a)(1)(A). Rule 26(b) sets the scope of discovery: 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. *2 Fed. R. Civ. P. 26(b)(1). At the discovery stage, relevancy is broadly construed. See Coughlin v. Lee, 946 F.2d 1152, 1159 (5th Cir. 1991). “ ‘[A] request for discovery should be considered relevant if there is any possibility that the information sought may be relevant to the claim or defense of any party.’ ” Camoco, LLC v. Leyva, 333 F.R.D. 603, 606 (W.D. Tex. 2019) (quoting Sheldon v. Vermonty, 204 F.R.D. 679, 689 (D. Kan. 2001)). Information discoverable within the scope of Rule 26(b) “need not be admissible in evidence.” Fed. R. Civ. P. 26(b)(1). A party seeking discovery may move to compel an answer or production if the responding party fails to answer an interrogatory submitted under Rule 33 or fails to produce documents requested under Rule 34. Fed. R. Civ. P. 37(a)(3)(B). The party resisting discovery must show specifically how each interrogatory or request is not relevant or specifically state a valid objection thereto. See McLeod, Alexander, Powel & Apffel, P.C. v. Quarles, 894 F.2d 1482, 1485 (5th Cir. 1990). Conclusory objections such as “overly broad, burdensome, and oppressive” are not adequate to voice a successful objection. Id. The court may decline to compel, and at its option, may limit the extent of discovery if “the proposed discovery is outside the scope permitted by Rule 26(b)(1).” Fed. R. Civ. P. 26(b)(2)(C)(iii); Crosswhite v. Lexington Ins. Co., 321 F. App'x 365, 368 (5th Cir. 2009); see also Crawford-El v. Britton, 523 U.S. 574, 598 (1998) (“Rule 26 vests the trial judge with broad discretion to tailor discovery narrowly.”). III. DISCUSSION Defendant moves the court to compel Plaintiff to provide Defendant with full and adequate responses to four interrogatories and eight requests for production. After considering the parties' written filings and the arguments of counsel at the hearing on January 31, 2024, the Court issued certain oral rulings, which it now memorializes with this written Order. A. Interrogatory Two Defendant requests Plaintiff to “describe the occurrence of the subject incident by: (a) identify[ing] when Plaintiff first became aware that the floor leading to the Costco entrance was wet, (b) identify[ing] the type of footwear she was wearing at the time of the occurrence, and (c) marking the exact or approximate location where she allegedly fell on a photograph of the entrance.” Mot. at 6. Plaintiff objects to this interrogatory on the basis that the interrogatory is attempting to limit testimony, it is a multi-part interrogatory, and calls for multiple answers. Resp. at 1-2. Subject to several objections, Plaintiff responds, “I believe I fell near or at the entrance of the Costco store. For exact location, please refer to Costco's video surveillance for which a spoliation letter was sent and acknowledged.” Federal Rule of Civil Procedure 33(a)(1) provides that “[u]nless otherwise stipulated or ordered by the court, a party may serve on any other party no more than 25 written interrogatories, including all discrete subparts.” “Calculating the number of interrogatories ... is not an exact science.” Erfindergemeinschaft Uropep GbR v. Eli Lilly and Co., 315 F.R.D. 191, 194 (E.D. Tex. 2016). In expounding on the 25-interrogatory limit, the Advisory Committee Note provided, in pertinent part, that [p]arties cannot evade this presumptive limitation through the device of joining as ‘subparts’ questions that seek information about discrete separate subjects. However, a question asking about communications of a particular type should be treated as a single interrogatory even though it requests that the time, place, persons present, and contents be stated separately for each such communication. *3 146 F.R.D. 401, 675–76 (1993). “When a multi-part interrogatory is challenged as being multiplicitous, the Court must decide what constitutes ‘discrete separate subject.’ ” Erfindergemeinschaft, 315 F.R.D. at 194. Although there is no precise test for determining “discreteness” under a Rule 33(a)(1) inquiry, most courts follow the “related question” approach. Id. at 196. The test applied under the “related question” approach is “subparts that are logically or factually subsumed within and necessarily related to the primary question should not be treated as separate interrogatories.” Id. Stated differently, “where the first question can be answered fully and completely without answering the second question, then the second question is totally independent of the first and not factually subsumed within [it].” Id. (alteration in original) (citation omitted). Notably, “the issue of ‘discreteness’ cannot reliably be captured by a verbal formula,” but instead “the issue turns on a case-by-case assessment of the degree to which the subpart is logically related to the primary question in the interrogatory, as opposed to being separate and distinct.” Id. at 197. This interrogatory contains three subparts which are neither subsumed nor dependent upon one another. The first part requests information related to when Plaintiff first knew or became aware that the floor leading to the entrance was wet. The second part requests information related to the type of footwear that Plaintiff was wearing at the time of the incident at issue. The third part requests information related to the exact location where Plaintiff slipped and fell. Although related, each is independent of the other. As such, this interrogatory constitutes three discrete, separate subjects. The Court sustains Plaintiff's objections regarding the interrogatory being a multi-part question that requires multiple answers. However, in accordance with the Court's oral ruling, the Court overrules the remaining objections. The Court compels Plaintiff to respond to each request in Interrogatory No. 2. B. Interrogatory 5 Defendant requests Plaintiff to “identify any prior and subsequent incidents that Plaintiff has been involved in where she sustained any injuries that are similar to those she is alleging in this suit.” Mot. at 6. Plaintiff objects to this interrogatory on the basis that it is a multi-part interrogatory, it is overly broad, and it is not limited to a specific period of time, nor to information pertaining to the same injuries being claimed in this lawsuit. Mot. Ex. 2 at 5. Further, Plaintiff responds that “[s]ubject to five years prior to the incident made the basis of this lawsuit, and without waiving such objections” she has not been involved in any prior or subsequent incident. Id. Defendant argues that “[b]ased on information and belief, which Plaintiff has yet to disclose, the Plaintiff was involved in a 2013 and 2014 auto-collisions[sic].” Mot. at 7. As a result, Defendant asserts, “Plaintiff was sent to the hospital immediately following her 2014 collision for her alleged[,] severe injuries and eventually filed a 2016 civil lawsuit in El Paso, Texas for the injuries she sustained ....” Id. Therefore, Defendant alleges that Plaintiff is “being evasive, uncandid with this Court... and is inhibiting the Defendant from engaging in a fair discovery process.” Mot. at 7. Defendant explained at the hearing that Plaintiff is alleging a back injury because of her slip and fall incident, and also claimed similar injuries from her car accident lawsuit in 2016, which is public records. The Court finds that this information is relevant, and will therefore overrule Plaintiff's objections and grant Defendant's motion to the extent Plaintiff must supplement information subject to ten years. C. Interrogatory 6 Defendant requests Plaintiff to “identify all her treating providers in the past ten years.” Mot. at 7. Plaintiff objects to this interrogatory on the grounds that it is overly broad and irrelevant. Id. Without waiving her objections, Plaintiff responds and identifies three medical providers she has seen in the past five years. Mot. Ex. 2 at 6. The medical providers identified include Plaintiff's primary care physician, gynecologist, and rheumatologist. Id. *4 Defendant asserts that Plaintiff has not fully responded to Interrogatory No. 6 and references Plaintiff's two prior auto collisions in 2013 and 2014 as support for compelling Plaintiff to disclose the identity of all her treating physicians over the past ten years. Mot. at 7. The Court finds that supplemental information to be relevant and overrules Plaintiff's objections. As discussed above, Plaintiff must supplement her response and identify her treating providers in the past ten years. D. Interrogatory 8 Defendant requests that Plaintiff “identify all her employers over the past ten years.” Mot. at 7. Plaintiff objects to this interrogatory asserting that this request is overly broad and not limited to the information pertaining to the same injuries being claimed in this lawsuit. Resp. at 3. Without waiving her objections, Plaintiff identifies her employer, Alegre Home Health Care, where she has worked since 2017. Mot. Ex. 2 at 7. Considering that Plaintiff has had the same employment for approximately seven years, the Court sustains Plaintiff's objections and limits employment information to five years. E. Request for Production 9 & 10 Defendant seeks “all records that support Plaintiff's lost wages, loss of earnings, and punitive damage claims.” Mot. at 8. Plaintiff objects on the ground that the request is extremely broad. Id. Further, Plaintiff responded by referring Defendant to all the records already produced by Plaintiff, including the 724 pages of Plaintiff's medical records, an incident report, and three photographs of the scene. Id. Because Plaintiff failed to produce any documentation corroborating her claimed damages, Plaintiff's responses to Request for Production No. 9 and 10 are deficient. Plaintiff must meaningfully respond to this Request with specific bates number references to documents supporting each claim individually. F. Request for Production 11 Defendant seeks all policies of insurance “that provided Plaintiff with insurance coverage as of the date of occurrence.” Mot. at 8. Plaintiff's objections include that this request exceeds scope of discovery and is irrelevant because she did not use health insurance for any of the bills related to the incident. Mot. Ex. 3 at 5. Defendant's counsel conceded during the hearing that this is a narrow request for Plaintiff's medical insurance applicable at the time of the incident. Thus, the Court sustains in part and denies in part Plaintiff's objections. Plaintiff must meaningfully respond to this Request, but Plaintiff's response is limited to medical insurance applicable at the time of the incident. G. Request for Production 15 & 16 Defendant requests Plaintiff “execute the medical and employment records release forms.” Mot. at 8. In response, Plaintiff objects on the basis that the request is overly broad and not limited to a specific time period. Pl.'s Resp. at 4. The Court sustains in part Plaintiff's objections to the extent Request for Production 15 and 16 is not limited to a specific time. In accordance with the Court's ruling above, Defendant must limit Request for Production No. 15 regarding disclosure of Plaintiff's medical records to ten years, and Request for Production No. 16 regarding employment records to five years. H. Request for Production 17 Defendant requests Plaintiff produce all records, documents, and tangible things that show Plaintiff's: (1) income earned over the last ten years, (2) written documentation reflecting Plaintiff's wages earned or income for the last ten years, and (3) savings accounts, retirement accounts, checking accounts, pension, stocks, bonds, union memberships, business ownership, memberships, real estate ownership, and all business interests. Mot. at 9. Plaintiff objects to this request on the grounds that it is overly broad and not limited in time or scope. Mot. Ex. 3 at 6. *5 Defendant's counsel agreed at the hearing to retract the request for records showing Plaintiff's savings accounts, retirement accounts, checking accounts, pension, stocks, bonds, union memberships, business ownerships, memberships, real estate ownership and business interests as these accounts are not relevant to Plaintiff's claims. Accordingly, the Court overrules in part and sustains in part Plaintiff's objections as to sections (1) and (2) of Request for Production No. 17 and orders Plaintiff to respond to the request with records that support income earned or wages earned in the last five years. I. Request for Production 18 & 22 Defendant requests “the production of all written, audio, and electronic conversation that Plaintiff had with anyone (excluding attorney-client communications) concerning the alleged slip-and-fall incident.” Mot. at 9. Additionally, in Request for Production No. 22, Defendant requests “disclosure of any letters of protection, contracts, liens, or other guarantees for payment concerning the medical treatment Plaintiff received following the subject occurrence.” Id. at 10. In response, Plaintiff states she “will withdraw its objections.” Resp. at 4. Accordingly, the Court overrules as moot the motion to compel production as to Request for Production Nos. 18 and 22. J. Attorney's Fees Finally, Defendant requests the Court award Defendant its reasonable attorneys' fees and legal expenses incurred in bringing this motion. Mot. at 10. The Court declines to order attorney's fees or impose any other sanction against Plaintiff at this time. See Fed. R. Civ. P. 37(a)(5). IV. CONCLUSION IT IS ORDERED that Defendant's “Motion to Compel Plaintiff's Discovery Responses and Production” (ECF No. 17) is GRANTED with respect to Interrogatories Nos. 2, 5, and 6 and Request for Production Nos. 9 and 10. The Motion is DENIED with respect to Interrogatory No. 8. It is FURTHER ORDERED that Defendants “Motion to Compel Plaintiff's Discovery Responses and Production” (ECF No. 17) is GRANTED IN PART and DENIED IN PART as to Request for Production Nos. 11, 15, 16, and 17 to the extent consistent with this Order. It is FURTHER ORDERED that the Court OVERRULED AS MOOT the Motion as to Request for Production Nos. 18 and 22. It is FURTHER ORDERED that Plaintiff must supplement her responses on or before February 9, 2023. SIGNED and ENTERED this 2nd day of February, 2024.