Opinion
CASE NO. C08-5754BHS
07-07-2016
BRENDAN MCKOWN, Plaintiff, v. SIMON PROPERTY GROUP and IPC INTERNATIONAL CORPORATION, Defendants.
ORDER GRANTING PLAINTIFF'S MOTION TO COMPEL AND FOR AN EXTENSION OF DISCOVERY AND DENYING DEFENDANT'S MOTION FOR A PROTECTIVE ORDER
This matter comes before the Court on Defendant Simon Property Group, Inc.'s ("Simon") motion for protective order (Dkt. 140) and Plaintiff Brendan McKown's ("McKown") motion to compel and extend discovery (Dkt. 156). The Court has considered the pleadings filed in support of and in opposition to the motions and the remainder of the file and hereby grants McKown's motion and denies Simon's motion for the reasons stated herein.
I. PROCEDURAL HISTORY
On November 12, 2008, McKown filed a complaint against Simon and IPC International Corporation ("IPC") (collectively "Defendants") in Pierce County Superior Court for the State of Washington. Dkt. 2. McKown asserts causes of action against Defendants for premises liability, negligent failure to provide adequate security, negligent performance of duty, negligent hiring and/or failure to provide security personnel, and breach of contract. Id. On December 17, 2008, Defendants removed the matter to this Court. Dkt. 1.
On June 10, 2010, Simon filed a motion for a protective order regarding Plaintiff's Fed. R. Civ. P. 30(b)(6) deposition notices. Dkt. 53. Simon requested that the Court enter a protective order limiting the scope of McKown's deposition notices because McKown had requested that Simon provide a witness to testify about security measures and shooting-related incidents at all of Simon's properties. Id. Simon asserted that, as one of the largest shopping mall owners in the country, it owned over 300 properties and that preparing for such an expansive deposition would require reviewing over 60,000,000 documents. Id. Simon argued that the Court should limit the scope of the deposition to the Tacoma Mall property. Id. Instead of ruling on the motion, the Court issued a show cause order setting forth a procedure for McKown to pick five properties similar to the Tacoma Mall and for Simon to produce a witness to testify regarding information relevant to those properties. Dkt. 56. The parties responded and indicated that they had worked out an agreement. Dkts. 57 & 58. Therefore, the Court denied Simon's motion without prejudice. Dkt. 60.
After the entry of summary judgment, an appeal, and the Washington Supreme Court answering certified questions, the Ninth Circuit remanded the matter for further proceedings. See McKown v. Simon Prop. Grp., Inc., 182 Wn.2d 752 (2015); Dkt. 114. On November 24, 2015, the Court issued a scheduling order setting a discovery deadline of January 4, 2016. Dkt. 117. The Court has twice granted an extension of that deadline, and the current deadline was June 7, 2016. Dkt. 131.
On December 3, 2015, McKown propounded a fourth set of discovery responses upon Simon. McKown's attorney also informed Simon's attorney that he believed the scope of discovery should be expanded based on McKown. Dkt. 150-1 at 2. Specifically, McKown's attorney stated as follows:
[T]he Court previously limited some of our discovery requests to records regarding six malls. We believe that decision should be re-evaluated in light of the Supreme Court's decision, which plainly held that both defendants must account for their institutional knowledge.Id. Simon responded to the discovery requests, objected to broadening discovery based on the Court's previous orders, and, without waiving that objection, stated that it had "no additional information to provide." Dkt. 150-2 at 2. After receiving this response, McKown did not press the issue of expanding the scope of discovery.
In April of 2016, however, McKown's expert discovered a public document outlining security programs at the Mall of America located outside Minneapolis, Minnesota. Neither of the current disputes is about this particular document or program. Simon contends that it no longer has an interest in the Mall of America and, at best, it appears that the program was implemented in 2008, which is three years after the incident in this case. The relevancy of the information is that it led McKown's counsel to question the scope of discovery in this case.
In May of 2016, McKown's counsel sent a letter to Simon's attorney requesting supplementation of Simon's responses. Dkt. 150-4. Receiving no response, McKown's attorney sent a second letter requesting supplementation and requesting eleven depositions in the final three weeks of discovery. Dkt. 150-5. On May 12, 2016, Simon's attorney responded asserting that McKown changed nothing with regard to the burdens of discovery and declining to supplement discovery beyond the five properties in the parties' earlier agreement. Dkt. 150-6.
On May 19, 2016, Simon filed a motion for a protective order to prevent discovery regarding the Mall of America or depositions of Simon's former employees who worked at the Mall of America. Dkt. 140. On May 25, 2016, McKown responded. Dkt. 149. On May 27, 2016, Simon replied. Dkt. 154.
On May 27, 2016, McKown filed a motion to compel and for a 90-day extension of discovery. Dkt. 156. On June 13, 2016, Simon and IPC responded. Dkts. 159, 160. On June 17, 2016, McKown replied. Dkt. 165.
II. DISCUSSION
"Unless otherwise limited by court order, the scope of discovery is as follows: 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 . . . ." Fed. R. Civ. P. 26(b)(1). "A party or any person from whom discovery is sought may move for a protective order . . . to protect a party or person from annoyance, embarrassment, oppression, or undue burden or expense . . . ." Id. 26(c)(1). "On notice to other parties and all affected persons, a party may move for an order compelling disclosure or discovery." Fed. R. Civ. P. 37(a)(1).
In this case, the major disputes are the scope of discovery and the timing of McKown's motion. The Court will address each issue.
A. Scope
In McKown, the Washington Supreme Court concluded that "Restatement (Second) of Torts section 344 is generally consistent with Washington law, and that comments d and f generally describe the contours of the duty owed." McKown, 182 Wn. 2d at 764. With regard to comment f, the court provided as follows:
[C]omment f, like section 344 itself, contemplates two kinds of situations that may give rise to a duty—the first is where the landowner knows or has reason to know of immediate or imminent harm, and the second is where the possessor of land knows, or has reason to know, based on the landowner's past experience, the place of the business, or the character of the business, there is a likelihood that harmful conduct of third parties will occur on his premises.Id. at 768. Although the parties focused on evidence of prior similar acts of violence at the location in question, the court stated that "proving acts of similar violence is not the only way for a plaintiff to establish a duty as provided in the Restatement and comment sections that we adopted in [Nivens v. 7-11 Hoagy's Corner, 133 Wn.2d 192 (1997)]." Id. at 770. Thus, the court implied, but didn't affirmatively state, that evidence regarding the character of a business is relevant to the question of any duty Simon owed to McKown.
In this case, the parties dispute the scope of relevant information. McKown essentially agrees with the Court's assessment of McKown and contends that evidence regarding the character of the business and landowner's past experience, or "institutional knowledge," is relevant. Dkt. 149 at 8-9; Dkt. 156 at 9. IPC does not contest this argument. Although Simon does contest the holding of McKown, its arguments are without merit because it relies on the wrong portion of the opinion and hyperbole. After the court discussed the issue of duty in general, the court further clarified the law regarding evidence of prior similar acts of violence. McKown, 182 Wn. 2d at 771-74. Simon's reliance on this portion of the opinion is not relevant to evidence of "institutional knowledge." Dkt. 160 at 1-2. Moreover, Simon asserts that
The Supreme Court has not made events which occur in the world at large a part of the duty analysis which bears directly upon this case. If it had, every event which occurred everywhere in the world would place every landowner on notice that even the most extreme third party criminal conduct was "foreseeable," thus imposing every American landowner the duty to protect their invitees from such conduct.Dkt. 160 at 8-9. This is hyperbole for numerous reasons, including the fact that the Washington Supreme Court does state the law applicable to every American landowner. Therefore, the Court concludes that, in light of McKown, the scope of relevant evidence has been broadened to include evidence of Simon's past experience, the place of the business, and the character of the business.
With regard to the prior limitations on discovery, those limitations are no longer warranted in light of McKown. The Court is not, at this time, ordering Simon to produce the alleged 60,000,000 relevant documents in its possession. McKown, however, is entitled to discover relevant information. The discovery shall be generally limited in proportion to the needs of the case and may be specifically limited based on undue hardship or other factors. If Simon seeks specific limitations, the Court will require actual evidence instead of an attorney's extrapolation on the possible number of relevant documents. The parties shall meet and confer to discuss production under the broadened scope of discovery. Therefore, the Court grants McKown's motion to compel to the extent discussed herein.
B. Timing
Defendants argue that the Court should deny McKown's request for an extension of the discovery deadline because it is untimely. "A schedule shall not be modified except upon a showing of good cause." Fed. R. Civ. P. 16(b). Defendants essentially argue that McKown has not shown good cause to extend the discovery deadline because he knew of the dispute in January of 2016 and failed to act at that time. Contrary to Defendants' position, it is not sufficiently clear that McKown was informed of Simon's position as to the scope of discovery. For example, with regard to evidence of an active shooter protocol at any Simon property, Simon objected based on the parties' previous agreement to limit relevant information to five specific locations and then stated that, without waiving that objection, it "has no additional information to provide." Dkt. 150-2 at 2. It is an entirely different matter to say that Simon objects as beyond the scope of the parties' limiting agreement. Therefore, the Court finds that the dispute was not clearly evident until May. At that time, McKown timely filed a motion to compel and to extend the deadline. While it is unfortunate that the case must be delayed yet again, it would be more unfortunate to expend resources on a long jury trial only to have the verdict set aside because the Court prevented discovery on relevant issues.
In light of the foregoing, the Court grants McKown's motion for an extension of the discovery deadline. It appears unrealistic that the parties can meet the remaining deadlines and trial date because of the additional discovery. Therefore, the parties shall meet and confer and submit a joint status report detailing the additional discovery procedures and a new trial date. Once the Court receives that report, the Court will strike the current scheduling order.
C. Protective Order
In light of the new scope of discovery, the Court is unable to determine whether information relating to the Mall of America is relevant. Therefore, the Court denies Simon's motion without prejudice.
III. ORDER
Therefore, it is hereby ORDERED that Simon's motion for protective order (Dkt. 140) is DENIED without prejudice. McKown's motion to compel and extend discovery (Dkt. 156) is GRANTED as stated herein. The parties shall meet and confer and file a joint status report as requested herein.
Dated this 7th day of July, 2016.
/s/_________
BENJAMIN H. SETTLE
United States District Judge