IN THE CIRCUIT COURT FOR FREDERICK COUNTY, MARYLAND CIVIL DIVISION

PLAINTIFF’S MOTION TO COMPEL DISCOVERY RESPONSES AND TO CONTINUE DISCOVERY

(Hearing Requested)

Plaintiff, by and through her attorneys, Miller & Zois, LLC, hereby files Plaintiff’s Motion to Compel Discovery Responses and in support thereof states as follows:

1.   Plaintiff is filing this motion pursuant to Md. Rule 2-432(b) to compel Defendant Starbucks Corporation to answer interrogatories and document requests propounded upon it by Plaintiff.

2.   The interrogatories and document requests were served on Defendant on or about March 26, 2010.  Exhibit 1.  Counsel for Defendant did not enter an appearance until August 18, 2010.

3.   Pursuant to the Maryland Rules, Defendant was required to answer fully those interrogatories and document requests within 30 days of receipt.

4.   On or about January 13, 2011, Defendant served upon Plaintiff answers that are incomplete, evasive, replete with baseless objections, and which otherwise fail to comply with the Maryland Rules.  Defendant’s Answers to Interrogatories and Response to Request for Production were each prefaced by a list of “General Objections” that are intended to apply to all of Defendant’s responses.  Defendant also made individual objections to 22 of Plaintiff’s 27 Interrogatories and to 11 of the 17 items in Plaintiff’s Request for Production.  This is a transparent attempt at gamesmanship rather than the good faith effort to provide discovery contemplated by the Maryland Rules.

5.   Since receiving Defendant’s discovery responses Plaintiff has attempted to resolve this discovery dispute in good faith, without success.  Those efforts are described within the attached Md. Rule 2-431 Certification.

6.   Discovery is scheduled to end on April 25, 2011, and trial of this case is set to begin on July 5, 2011.  Exhibit 2

7.   Defendant’s actions are preventing Plaintiff from conducting further necessary discovery and preparing for trial.  It is essential that Defendant complete the answers to the following interrogatories and document requests so that Plaintiff can conduct additional discovery and prepare for trial in a timely manner.

8.   Plaintiff also requests that the discovery deadline and trial be continued to allow for completion of discovery.

INTERROGATORIES

As an initial matter, Defendant’s Answers to Interrogatories are prefaced by the following six “General Objections” that are prohibited by the Maryland Rules:

1.   Defendant STARBUCKS CORPORATION objects to all instructions and interrogatories to the extent that they require or purport to require supplementation beyond that which is required by the applicable Rules.

2.   Defendant STARBUCKS CORPORATION objects to all instructions and interrogatories which require or purport to require the provision of the conclusions, opinion, or contentions of counsel which pertain or require a determination of appropriate or advisable areas for inquiry and investigation of matters set forth therein. Defendant STARBUCKS CORPORATION interposes the attorney/client and attorney/work-product privileges regarding all such matters.

3.   Defendant STARBUCKS CORPORATION objects to all instructions and interrogatories which require or purport to require the provision of home addresses and telephone numbers and other personal information regarding its directors, officers, employees, and agents as unduly burdensome, irrelevant and outside the reasonable scope of discovery, excepting for such information as reasonably necessary for Plaintiff or her attorney to contact and obtain information from such persons.

4.   Defendant STARBUCKS CORPORATION objects to all instructions and interrogatories which require or purport to require investigation and/or inquiry of persons who are not present employees and/or agents of the Defendant as over-broad, burdensome, and outside the reasonable inquiry required under the applicable Rules.

5.   Defendant STARBUCKS CORPORATION objects to all instructions and interrogatories which require or purport to require the provision of any information, speculation, or belief which is beyond the sworn knowledge of Defendant, as vague, over-broad, irrelevant, and beyond the scope of discovery permitted under the applicable Rules. Defendant STARBUCKS CORPORATION also interposes the work product privilege and (where applicable) the attorney/client and attorney/work-product privileges as it pertains to information sought by such instructions and interrogatories.

6.   Defendant STARBUCKS CORPORATION objects to all Interrogatories seeking identification of “all,’ “each,” or “every” document or person which may be related to a specific point or points, as being unduly burdensome, over-extensive, not within the practical capabilities  Defendant to comply with, and beyond the requirements of the applicable Rules. In each case where some answer is provided, such answer is provided based upon all of a logically directed search through the records of the Defendant STARBUCKS CORPORATION has not undertaken or completed a review of every document it retains, and objects to any purported requirement that it do so.

Md. Rule 2-421(b) requires that the reason for any refusal to answer an interrogatory be set forth in the answer to the interrogatory.  Defendant’s purported “General Objections” are sweeping in scope and intended apply to all of its answers.  This makes it impossible for Plaintiff to tell which individual answers these objections apply to or why, and makes it impossible to rely upon any individual answer for evidentiary purposes.  Defendant should be ordered to withdraw these “General Objections” and should be required to make any objections in the manner prescribed by Md. Rule 2-421(b), by making specific objections that are set forth in the response to each of the interrogatories that Defendant finds objectionable.

Interrogatory No. 2: Identify by name, address, phone number, date of birth and current employer, any individual you are aware of who has personal knowledge of the facts and circumstances of this case.  Include in your answer the substance of the witnesses’ knowledge.

ANSWER NO. 2 Objection. Defendant objects to the provision of personal information about any current employees of Starbucks. Subject to and without waiving any objections, the following individuals were working in the store at the time of the incident and may have knowledge regarding the facts and circumstances surrounding this occurrence: -

(1) Emily Eskay, 6:30 a.m. to 3:00 p.m., store manager, presently employed by Starbucks;

(2) Luis Batista, 4:24 a.m. to 11:19 a.m., store manager, presently employed by Starbucks;

(3) Alexander Marsh, 4:24 a1m. to 1:09 p.m., barista, presently employed by Starbucks;

(4) Julie Lutz, 7:04 a.m. to 2:31 p.m., barista, not presently employed by Starbucks;

(5) Denise Guilday, 5:34 a.m. to 1:48 p.m., barista, not presently employed by Starbucks; and

(6) Adriane Johnson, 6:54 a.m. to 3:54 p.m., barista, not presently employed by Starbucks.

SUPPLEMENTAL RESPONSE: Defendant maintains its prior objections and states that of the current employees only Emily Eskay has knowledge of this incident. Defendant further states that the last known contact information for former employees working in the store at the time of the incident that may have knowledge regarding this occurrence:

(1)  Julie Lutz — 28304 Smith Valley Way, Frederick, MD 21702 240-459-0364.

(2)  Denise Guilday — 1350-Parks Road, Knoxville, MD 21758 301-734-7742

(3)  Adriane Johnson — 126 W Frederick St., Frederick, MD 21793 301-865-2109

BASIS FOR MOTION TO COMPEL:  Defendant has failed to provide any identifying information for its current employees (notably Emily Eskay, who it admits has relevant knowledge) beyond their names. This prevents Plaintiff from doing basic investigative tasks, such as determining whether these potential witnesses have impeachable criminal convictions.  According to the “Definitions” contained in Form 2 of the Appendix to the Maryland Rules, “Identify… means that person’s full name, last known address, home and business telephone numbers, and present occupation or business affiliation.”  Defendant has no good reason not to provide basic identifying information for the witnesses it identifies.

 Interrogatory No. 8:  Do you know of any statement, conversation, comment, or report made by any party to this lawsuit or witness, including the Plaintiff, made at the time of the occurrence or following the occurrence, concerning the occurrence or facts relevant to any issue in this case?  If your answer is “yes,” state the content of such statement, conversation, comment, or report, where it took place, and the custodian of such statement.       

ANSWER NO. 8:  Subject to and without waiving any objections, none.

BASIS FOR MOTION TO COMPEL:  This answer purports to be made “subject to and without waiving any objections.”  There are no objections made in Defendant’s answer.  Defendant should be compelled to state the objections that this answer is subject to. 

Interrogatory No. 9  If you contend that any other entity or person, not a party to this lawsuit was responsible for the Plaintiff’s injuries, identify such person, persons or entities, and give a concise statement of the facts upon which you rely.

ANSWER NO. 9:  Subject to and without waiving any objections, Defendant makes no such contention at this time.

BASIS FOR MOTION TO COMPEL:  This answer purports to be made “subject to and without waiving any objections.”  There are no objections made in Defendant’s answer.  Defendant should be compelled to state the objections that this answer is subject to. 

Interrogatory No. 10:  Please indicate whether or not you were required to file a report within the regular course of business as a result of the occurrence, and whether you did in fact file such a report.

ANSWER NO. 10:   Objection. Defendant objects to this Interrogatory on the grounds that it improperly seeks information protected as attorney work product, attorney-client privilege and/or materials prepared in anticipation of litigation. Subject to and without waiving the foregoing objections, Emily Eskay prepared an Incident Report on February 22, 2008, but defendant does not contend it was made in the ordinary course of business.

SUPPLEMENTAL RESPONSE: Defendant maintains its prior objections and states that Defendant is not in possession of any telephone report involving this occurrence.

BASIS FOR MOTION TO COMPEL:  Defendant has no basis for objecting on the basis of attorney-client privilege, attorney work product, or materials prepared in anticipation of litigation.  A copy of this report was provided to Plaintiff. The report itself seems to indicate that it was done in the ordinary course of business. It appears to require telephone reporting and completion of the Incident Report Form for all incidents of “Customer/Partner Injury, Crime/Security Incidents and Property/Auto Damage.” There is nothing to indicate that this statement was prepared by or under the direction of a lawyer, that it involved any communication between a lawyer and a client, or that there was any reason to anticipate litigation when it was made. This seems to be a statement made in the ordinary course of business for every incident.  Moreover, Defendant states that it is not in possession of any telephone report, but does not say whether one was made.  If made, Plaintiff is entitled to inquire into the circumstances of the report and what happened to it.

Interrogatory No. 12:  If you know of the existence of any pictures, photographs, plats, visual recorded images, police reports, diagrams or objects relative to the occurrence, the Plaintiff’s physical condition, or the scene of the occurrence, identify the substance of such recording and the present custodian of each such item.

ANSWER NO. 12:   Defendant objects on the grounds of work product and materials prepared in anticipation of litigation. Subject to and without waiving any objections, Plaintiff is referred to the attached photographs which were taken on March 19, 2010 by Emily Eskay. The floor area, tiles and mat depicted in the photographs are the same as they were in February 2008. The configuration of the furniture in the lobby area as shown in the photographs has changed since February 2008.

SUPPLEMENTAL RESPONSE: Defendant maintains its prior objections and states that Defendant has submitted such items and refers Plaintiff to Defendant’s Privilege Log submitted in this case.

BASIS FOR MOTION TO COMPEL:  Defendant’s privilege log makes no reference to any photos that are being withheld on the basis of privilege.  Nonetheless, privilege objections are being made.  Defendant should be ordered to identify what responsive materials it is withholding on the basis of privilege or to withdraw its objections.

Interrogatory No. 13:  Identify any individual, entity, or corporation that owned, maintained or managed the Property where the Plaintiff fell.

ANSWER NO 13.:    Defendant leases the premises where the Plaintiff fell, but operates the store.

BASIS FOR MOTION TO COMPEL:  Defendant’s answer is nonresponsive.  Who owned the property?  Who maintained or managed it?  Defendant should be compelled to provide a responsive answer.

Interrogatory No. 14.:  Identify any person not already named as a party to this lawsuit whom you contend caused or contributed to the occurrence complained of, including any architect, engineer, designer, contractor, sub-contractor or others.  Specifically include in your answer whether you blame Plaintiff for Plaintiff’s own injuries.

ANSWER NO 14:     Subject to and without waiving any objections, Plaintiff failed to maintain sufficient attention to her surroundings to enable her to safely travel across an area utilized by hundreds of customers before and after her alleged occurrence on that day. Plaintiff failed to pay full time and attention, failed to maintain a proper lookout and failed to see what was there to be seen as she entered the store. Discovery may reveal additional grounds for Plaintiffs contributory negligence.

BASIS FOR MOTION TO COMPEL:  This answer purports to be made “subject to and without waiving any objections.”  There are no objections made in Defendant’s answer.  Defendant should be compelled to state the objections that this answer is subject to. 

Interrogatory No. 17: Please state whether you received notice of the defect or condition complained of by the Plaintiff  prior to the incident, and identify the date and time, the individual providing notice, how the notice was given and your relationship to the person providing the notice.

ANSWER NO. 17:    Objection to this Interrogatory to the extent that there was no defective condition complained of by Plaintiff. Subject to and without waiving any objections, this Defendant was aware that there was inclement weather outside at the time of the incident and, therefore, had placed a warning cone inside of the store’s front entrance in order to warn customers about potential water on the floor.

BASIS FOR MOTION TO COMPEL:  The answer provided is non-responsive.  Did Defendant have notice that there was water on the floor inside the store or not?  Was Defendant aware of actual water on the floor or only “potential” water?  Defendant should be compelled to say so, and if Defendant did have notice, it should be required to answer the balance of the interrogatory regarding the circumstances under which it received notice.

Interrogatory No. 18:  Please state with specificity any plan in place to inspect and supervise the area in question and include the identity of the individual(s) responsible for the area, their job title, how often the area was required to be inspected, and when the area was last inspected prior to the Plaintiff’s accident.

ANSWER NO. 18:   Subject to and without waiving any objections, the partners of the Starbucks store in question were responsible for performing periodic checks of the premises and lobby area. Due to the inclement weather on February 22, 2008, the partners of the Starbucks store in question also mopped all areas of the store through which the patrons of the store were likely to walk.

SUPPLEMENTAL RESPONSE: Defendant maintains its prior objections. Plaintiff is referred to Interrogatory Response No. 2 for a list of the partners that were working at the Starbucks store in question at the time of this occurrence.

­BASIS FOR MOTION TO COMPEL:  Defendant’s answer states that it is “[s]ubject to and without waiving any objections,” but does not state any objections. What are defendant’s objections? Moreover, the answer provided is non-responsive. Who are the individuals who “were responsible for performing periodic checks of the premises and lobby area?” Which area(s) was each of those persons responsible for? How often were the periodic checks to be conducted? What time was the last of these periodic checks conducted? Was this pursuant to any written or unwritten plan or policy? This is information called for in Interrogatory No. 18 that is not provided. Defendant should be ordered to provide a responsive answer.

Interrogatory No. 19:  State whether the premises were equipped with a video surveillance camera and, if so, whose responsibility it was on the date of the occurrence to monitor the surveillance camera and whether there are still tapes from the date of the occurrence and the week both before and after the occurrence.

ANSWER NO. 19:   Subject to and without waiving any objections, the premises which are the subject of this litigation are equipped with a video surveillance camera, however, there are no images of the front entrance on the camera as the camera is only aimed at the cash register.

                                                                               
SUPPLEMENTAL RESPONSE: Defendant maintains its prior objections and states that the surveillance tapes from the date of the occurrence do not still exist and the surveillance camera is monitored by Defendant’s security group.

BASIS FOR MOTION TO COMPEL:  Defendant’s answer non-responsive. First, it states that it is “[s]ubject to and without waiving any objections,” but does not state any objections.  Defendant states that the premises are equipped with a video surveillance camera, claims that the location of the Plaintiff’s fall was not visible. Defendant states that the camera was monitored by its security group.  Who is this?  Does it have a name and address?   If the monitoring was done by a specific individual, who?  Defendant should be ordered to provide a responsive answer.

Interrogatory No. 20:  Identify any previous or subsequent incidents of which you are aware that occurred in substantially the same manner as the incident complained of in this lawsuit, or which also occurred at the premises, including a description of all premise liability claims made involving this property over the last 10 years.

ANSWER NO. 20:   Objection. Defendant objects to this Interrogatory on the grounds that it is overly broad and burdensome and seeks information that is that is irrelevant, immaterial, and/or not reasonably calculated to lead to the discovery of admissible evidence.

SUPPLEMENTAL RESPONSE: Defendant maintains its prior objections and reserves the right to supplement.

BASIS FOR MOTION TO COMPEL:  Defendant objects to Interrogatory No. 20 on the basis that “it is overly broad and burdensome and seeks information that is irrelevant, immaterial, and/or not reasonably calculated to lead to the discovery of admissible evidence.” First, it is not overly broad because it is narrowly tailored to similar incidents and is limited to the same location. Second, if defendant claims answering is burdensome, is it talking about 1500 incidents or 5? Obviously the number of prior incidents is relevant to whether answering is burdensome. Third, this is information that clearly may lead to admissible evidence. For example, whether there have been prior incidents of a similar nature may be relevant to whether Starbucks had notice of the defect, and whether there have been subsequent incidents may be relevant to the feasibility of precautionary measures. Defendant should be ordered to provide a responsive answer to Interrogatory No. 20.

Interrogatory No. 24:  Identify any procedures which you followed, at and before the time of the incident in question, concerning the inspection, repair and cleaning of the area where Plaintiff’s injuries occurred.

ANSWER NO. 24:    Subject to and without waiving any objections, Plaintiff is referred to this Defendant’s Answer to Interrogatory No. 18.

BASIS FOR MOTION TO COMPEL:  Answer No. 24 merely refers Plaintiff to Answer No. 18, which is itself non-responsive.  Defendant should be ordered to provide responsive answers to both interrogatories.

Interrogatory No. 26:  Identify any warnings, whether verbal or written (such as by a sign, or otherwise) which were given to the Plaintiff, specifically, and/or to your customers, in general, before the accident concerning the condition which caused or contributed to the incident complained of in this lawsuit.

ANSWER NO. 26:   Subject to and without waiving any objections, Plaintiff is referred to this Defendant’s Answer to Interrogatory No. 17.
                                                                               
SUPPLEMENTAL RESPONSE: Defendant maintains its prior objections. Subject to and without waiving any objections, Defendant placed a warning cone inside the store’s front entrance in order to warn customers about potential water on the floor, and periodically mopped all areas of the store that patrons were likely to walk.

BASIS FOR MOTION TO COMPEL:  In addition to improperly referencing objections that are not stated, Answer to Interrogatory No. 26 simply refers to Answer No. 17, which is itself non-responsive.  Defendant should be ordered to state its objections, and to provide a responsive answer.

Interrogatory No. 27:  Please describe what training procedures, if any, are followed in the course of training of Defendant’s employees with regard to business invitees’ slipping and/or falling.  This includes any and all written material, slides, photographs, films, videotapes, etc. which Defendant utilizes in training its employees.

ANSWER NO. 27:   Defendant objects to this Interrogatory on the grounds that it is vague, ambiguous, overbroad, and seeks information that is proprietary and confidential.

SUPPLEMENTAL RESPONSE: Defendant maintains its prior objections and Defendant refers Plaintiff to the documents being produced subject to the Protective Order.

BASIS FOR MOTION TO COMPEL:  Defendant has objected to Interrogatory No. 27 on the basis that it is “vague ambiguous, overbroad, and Defendant cannot tell that the interrogatory is directed at discovering the training it gives its employees regarding slips and falls, and the conditions that may cause them? Defendant has also objected on the basis that Interrogatory No. 27 seeks information that is proprietary and confidential. Is Defendant really contending that the training Starbucks gives its employees about floor inspection and mopping is proprietary and confidential? Defendant must at least answer the interrogatory and indicate what materials it contends are proprietary and confidential, and state why it makes that contention. Moreover, the parties have agreed to a confidentiality order, but still Defendant has failed to provide a substantive answer.  Exhibit 3.  Defendant should be ordered to provide a responsive answer.

DOCUMENT REQUESTS

As an initial matter, Defendant’s Responses to Requests for Production of Documents is prefaced by the following eight “General Objections” that are prohibited by the Maryland Rules:

1.         Defendant STARBUCKS CORPORATION objects to all instructions and requests to the extent that they require or purport to require supplementation beyond that which is required by the applicable Rules.

2.         Defendant STARBUCKS CORPORATION objects to all instructions and requests which require or purport to require the provision of the conclusions, opinion, or contentions of counsel which pertain or require a determination of appropriate or advisable areas for inquiry and investigation of matters set forth therein. Defendant STARBUCKS CORPORATION interposes the attorney/client and attorney/work-product privileges regarding all such matters.

3.         Defendant STARBUCKS CORPORATION objects to all instructions and requests which require or purport to require the provision of home addresses and telephone numbers and other personal information regarding its directors, officers, employees, and agents as unduly burdensome, irrelevant and outside the reasonable scope of discovery, excepting for such information as reasonably necessary for Plaintiff or her attorney to contact and obtain information from such persons.

4.         Defendant STARBUCKS CORPORATION objects to all instructions and requests which require or purport to require investigation and/or inquiry of persons who are not present employees and/or agents of the Defendant as over-broad, burdensome, and outside the reasonable inquiry required under the applicable Rules.

5.         Defendant STARBUCKS CORPORATION objects to all instructions and requests which require or purport to require the provision of any information, speculation, or belief which is beyond the sworn knowledge of Defendant, as vague, over-broad, irrelevant, and beyond the scope of discovery permitted under the applicable Rules. Defendant STARBUCKS CORPORATION also interposes the work product privilege and (where applicable) the attorney/client and attorney/work-product privileges as it pertains to information sought by such instructions and interrogatories.

6.         Defendant STARBUCKS CORPORATION objects to all requests seeking identification of “all,” “each,” or “every” document or person which may be related to a specific point or points, as being unduly burdensome, over-extensive, not within the practical capabilities of Defendant to comply with, and beyond the requirements of the applicable Rules. In each case where some answer is provided, such answer is provided based upon all of a logically directed search through the records of the Defendant STARBUCKS CORPORATION has not undertaken or completed a review of every document it retains, and objects to any purported requirement that it do so.

7.         The information supplied in these Answers is not based solely on the knowledge of the executing party, but includes knowledge of the party, its agents, representatives, and
attorneys, unless privileged.

8.         The word usage and sentence structure may be that of the attorney assisting in the preparation of these Answers and thus does not necessarily purport to be the precise language of the executing party.

Md. Rule 2-422(c) requires that the reason for any refusal to answer request for production be set forth in the response to the request.  Defendant’s purported “General Objections” are sweeping in scope and intended apply to all of its answers.  This makes it impossible for Plaintiff to tell which individual answers these objections apply to or why, and makes it impossible to rely upon any individual answer for evidentiary purposes.  Defendant should be ordered to withdraw these “General Objections” and should be required to make any objections in the manner prescribed by Md. Rule 2-422(c), by making specific objections or stating its reasons for any refusals to answer in its response to each of the requests that Defendant finds objectionable. 

Request No. 4.:  Any rules, management guidelines, operating guidelines or other similar writing or document that purports to show operating procedures for the management, care, maintenance, repair and service of the premises in question.

RESPONSE NO. 4:  Objection. Defendant objects to this Interrogatory as vague, overly broad and unduly burdensome. Defendant also objects to this Interrogatory to the extent that it seeks information that is proprietary and confidential.

SUPPLEMENTAL RESPONSE: Defendant maintains its prior objections and refers Plaintiff to the documents being produced subject to the Protective Order.

BASIS FOR MOTION TO COMPEL:  Defendant has objected to Request No. 4 on the basis that it is “vague, overly broad and unduly burdensome,” and that “it seeks information that is proprietary and confidential.”  Surely defendant understands what material is sought by this request, otherwise how could it determine that it “seeks information that is proprietary and confidential?”  This request is directed at discovering documents or other materials relevant to the defendant’s policies and training regarding floor care, inspection and maintenance, such as guidelines showing how often floors are inspected, and what employees are supposed to do in the event of a hazard.  Defendant has not indicated whether any materials like this exist.  Are there any documents like these?  If there are, which ones does Defendant contend are proprietary and confidential and why?  Plaintiff has agreed to a confidentiality order, yet Defendant has still failed to produce any documents in response to this request.  Exhibit 3.  Defendant should be ordered to identify and produce any responsive materials.

Request No. 9: Any and all drawings, maps or sketches of the scene of the accident which have been made the basis of this lawsuit.

RESPONSE NO. 9:  Defendant objects on the grounds that the Request potentially seeks attorney work product and attorney-client privileged information. Subject to and without waiving such objections, no documents are being withheld pursuant these privileges.

SUPPLEMENTAL RESPONSE: Defendant maintains its prior objections, and states that no documents are being withheld that are not protected by the doctrines of attorney work product and attorney-client privileges.

BASIS FOR MOTION TO COMPEL:  Defendant has refused to respond to the request, has not identified any material being withheld to any privilege, and has not produced any documents despite Plaintiff having agreed to a confidentiality order.  Exhibit 3.  Defendant should be ordered to say what materials exist that are responsive to this request, and identify what, if any, privileges it contends apply to those materials.

Request No. 10:  A copy of any surveillance movies or photographs of the scene of the occurrence taken at the time of, immediately prior to and immediately after the occurrence. 

RESPONSE NO.10: Defendant objects on the grounds that the Request potentially seeks attorney work product information. Subject to and without waiving such objections, none are being withheld pursuant these privileges.

SUPPLEMENTAL RESPONSE: Defendant maintains its prior objections, and states that no such items are being withheld that are not protected by the doctrine of attorney work product.

BASIS FOR MOTION TO COMPEL:  Defendant has refused to respond to the request, and has not identified any material being withheld pursuant to any privilege, and has not produced any documents.  Defendant’s privilege does not identify anything that might fall within this request.  Defendant should be ordered to identify if any responsive materials exist, and if any responsive materials exist, why they are attorney work product. 

Request No. 11:  A copy of any surveillance movies or photographs which have been made of Plaintiff.
RESPONSE NO. 11:   Defendant objects on the grounds of work product. Defendant is not withholding any movies or photographs on the basis of this objection.

SUPPLEMENTAL RESPONSE: Defendant maintains its prior objections, and states that no such items are being withheld that are not protected by the doctrine of attorney work product.

BASIS FOR MOTION TO COMPEL:  Defendant has refused to respond to the request, and has not identified any material being withheld pursuant to any privilege, and has not produced any documents.  Defendant’s privilege does not identify anything that might fall within this request.  Defendant should be ordered to identify if any responsive materials exist, and if any responsive materials exist, why they are attorney work product.  Moreover, since Plaintiff’s deposition has been taken, any surveillance material must be produced pursuant  to Shenk v. Berger, 86 Md. App. 498, 587 A.2d 551 (1991).

Request No. 13:  All materials including, but not limited to, employee manuals, memoranda and correspondence pertaining to safety rules and/or regulations to be followed by the employees to ensure safety on the premises including, but not limited to, any training films, videotapes and/or DVDs used by the Defendant concerning slips, spills and/or falls.

RESPONSE NO. 13:              Defendant objects on the grounds that the Request is vague, overbroad, unduly burdensome, fails to describe the documents sought with reasonable particularity, and seeks documents that are proprietary and confidential.
                                                                               

SUPPLEMENTAL RESPONSE: Defendant maintains its prior objections and refers Plaintiff to the documents being produced subject to the Protective Order.

BASIS FOR MOTION TO COMPEL: Defendant has objected to Request No. 13 on the basis that it is “vague, overly broad and unduly burdensome, fails to describe the documents sought with reasonable particularity, and seeks documents that are proprietary and confidential.”  This request is directed at discovering documents or other materials relevant to the defendant’s policies and training regarding floor care, and slips, spills and/or falls.  Defendant has not indicated whether any materials like this exist.  Are there any documents like these?  If there are, which ones does Defendant contend are proprietary and confidential and why?  Moreover, Plaintiff has agreed to a confidentiality order, yet nothing has been produced.  Exhibit 3.  Defendant should be ordered to identify and produce any responsive materials.

Request No. 14:  All premises inspection reports or other documents relating to observation of common area safety by any person or entity, including the Defendant, for the premises in question, for a period of one year prior, and all dates subsequent, to the date of the occurrence.

RESPONSE NO. 14: Defendant objects on the grounds that the Request is vague, overbroad, unduly burdensome, fails to describe the documents sought with reasonable particularity and is not reasonably calculated to lead to the discovery of admissible evidence.

SUPPLEMENTAL RESPONSE: Defendant maintains its prior objections and refers Plaintiff to the documents being produced subject to the Protective Order.

BASIS FOR MOTION TO COMPEL:  Defendant has objected to Request No. 14 on the basis that it is “vague, overbroad and unduly burdensome, fails to describe the documents sought with reasonable particularity, and is not reasonably calculated to lead to the discovery of admissible evidence.”  Surely Defendant understands what types of materials this request is seeking?  Any documents containing recorded observations of common area safety.  Like whether there was water pooled on the floor, to use an example relevant to this case.  These kinds of materials would be likely to lead to the discovery of admissible evidence because they would be relevant to whether Defendant had notice of the defective condition.  Defendant has not indicated whether any materials like this exist.  Are there any documents like these?  Defendant should be ordered to provide a responsive answer.
The Plaintiff, requests a hearing on all issues.

Respectfully submitted,

MILLER & ZOIS, LLC

John B. Bratt
Empire Towers, Suite 1001
7310 Ritchie Highway
Glen Burnie, Maryland  21061
(410)553-6000

(410)760-8922 (fax)
johnbratt@millerandzois.com

Attorneys for the Plaintiff

Certificate of Service
I, John B. Bratt, do hereby certify that I sent a copy of the foregoing Motion to Compel Discovery Responses via U.S. first class mail, this     18th       day of       April , 2011, to:

Christopher E. Hassell, Esquire
Kimberly S. LeBlanc, Esquire

Bonner Kiernan Trebach & Crociata, LLP
1233 20th Street, N.W., Suite 800
Washington, D.C.  20036
Attorneys for Defendant
                                                                       

John B. Bratt

IN THE CIRCUIT COURT FOR
FREDERICK COUNTY, MARYLAND

CIVIL DIVISION

O R D E R

Upon consideration of the Plaintiff’s Motion to Compel Discovery Responses and to Continue Discovery, it is this ____ day of _________________________, 2011, by the Circuit Court for Frederick County, Maryland, hereby
ORDERED, that the Defendant produce complete and executed Answers to Interrogatories and a Response to the Request for Production of Documents within ______ days.

And it is further ordered that discovery shall be extended to _____________________ and the trial of this matter shall take place on _________________________.

                                                                                                                                         
                                                JUDGE, Frederick County Circuit Court

cc:        John B. Bratt, Esquire

            Christopher E. Hassell, Esquire

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