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Demutis v. Sally Beauty Supply LLC

March 19, 2010


The opinion of the court was delivered by: Hon. Hugh B. Scott


Before the Court are (a) plaintiff's motion to compel (Docket No. 11*fn1 ) and (b) defendant's motion for the parties to enter into a non-disclosure agreement prior to its production of certain proprietary information to plaintiff (Docket No. 19*fn2 ). Responses to plaintiff's motion initially were due on or before January 20, 2010, with any reply due on or before January 29, 2010. Plaintiff's initial request that she obtain discovery responses during the pendency of this motion was denied in part and discovery deadlines set forth in the Scheduling Order (Docket No. 9) were held in abeyance pending resolution of this motion (Docket No. 12). Upon resolution of this motion, an amended Scheduling Order with new discovery schedule will be entered (Docket No. 12; cf. Docket No. 13 (setting forth new schedule)).

The Court then erroneously learned that the discovery dispute underlying this motion was resolved (see Docket No. 13); the Court thus terminated the motion and set forth an amended Scheduling Order (id.). Upon correction, the motion was reinstated, the amendments to the Scheduling Order were rescinded, and a status conference was set for January 28, 2010 (Docket Nos. 14, 16), wherein defendant's response to this motion was reset to February 10, 2010 (Docket No. 16). Defendant indicated at that conference that it sought a non-disclosure agreement with plaintiff regarding certain proprietary information but plaintiff's counsel refused to enter into such an agreement and defendant stated that it would move for an Order (id.). Defendant thus was given until February 15, 2010, to so move and plaintiff's response to this motion was due by March 1, 2010, and all motions were deemed submitted (without oral argument unless otherwise determined by the Court) on March 1, 2010 (id.).


This is a removed diversity*fn3 personal injury action. Plaintiff alleged that, on November 5, 2006, she slipped and fell at defendant's Niagara Falls, New York, store (Docket No. 1, Notice of Removal, Ex. A, state Compl. ¶¶ 4, 10). After removing this action (Docket No. 1), defendant filed its Answer (Docket No. 4). A Scheduling Order was entered, with plaintiff's expert disclosure due by December 21, 2009, all discovery was to be completed by February 19, 2010 (Docket No. 9).

Plaintiff's Motion to Compel

Plaintiff moved, on December 14, 2009, to compel defendant to respond to all discovery demands by December 21, 2009, and to appear at a deposition by January 20, 2010 (Docket No. 11, Pl. Motion at 1). The specific scheduling portions of her motion were denied (Docket No. 12). Plaintiff also sought extension of her expert disclosure deadline until thirty days after the initial deposition of defendant and/or subsequent depositions of defendant's employees (Docket No. 11, Pl. Motion at 1). Defendant counters that it has produced much of the materials sought by plaintiff (Docket No. 18, Def. Atty. Aff. ¶¶ 7, 9) and has located other items sought by plaintiff (id. ¶¶ 10, 12). Defense counsel then advised the Court that the discovery dispute was resolved (id. ¶ 11), but this turned out to be premature. Defendant concludes that there is no dispute necessitating this motion and has no objection to discovery going forward (id. ¶ 15). Both sides seek a revised Scheduling Order to allow for conclusion of discovery (id. at page 4; Docket No. 11, Pl. Motion at 1).

Plaintiff, in reply, argues that defendant has failed to produce discovery sought since June 2009, including its false promise in November 2009 to provide discovery "in the next few days" (Docket No. 20, Pl. Atty. Reply Aff. ¶¶ 7, 8, 12). Plaintiff responds that defendant can not use the mediation process as an excuse for not responding to discovery demands and that mediation does not stay discovery (id. ¶¶ 9, 10). While these motions were pending, plaintiff sought a floor plan of the store and to schedule its inspection, but defendant has not responded to her recent inquiries (id. ¶¶ 20-21, Ex. A). Plaintiff now seeks an Order to allow for inspection of the premises, dates for deposition of defendant's employees at least thirty days after inspection, as well as response to outstanding discovery demands (id. ¶¶ 22, 23).

Defendant's Motion for a Non-Disclosure Agreement

Defendant responds to plaintiff's motion that it is willing to produce the discovery sought by plaintiff (see Docket No. 18, Def. Atty. Aff. ¶¶ 7, 8), but defendant's policy and procedure manual and training video is copyrighted proprietary information (Docket No. 19, Def. Atty. Aff. ¶¶ 2, 6-9). Defendant's corporate policy is to require all litigants to agree not to disseminate this information outside of the litigation and to return the materials at the conclusion of the case (id. ¶ 10), and defense counsel submitted a proposed agreement for plaintiff's counsel to execute (id. ¶ 10, Ex. C). Plaintiff's counsel, however, declined, stating that he has a policy of not signing non-disclosure agreements (Docket No. 18, Def. Atty. Aff. ¶ 12; cf. Docket No. 20, Def. Atty. Reply Aff. ¶ 14).

Plaintiff argues that the policies she seeks--for inspection of premises for hazardous conditions and for cleaning and removal of hazardous substances from the floor--are hardly proprietary and that defendant has the burden of proving that they were proprietary (Docket No. 20, Pl. Atty. Reply Aff. ¶¶ 13-14; Docket No. 21, Pl. Atty. Aff. ¶¶ 5, 9-14). She concludes that the so-called "proprietary" nature of these policies were raised at the last minute to avoid production (Docket No. 20, Pl. Atty. Reply Aff. ¶¶ 13, 16).


I. Plaintiff's Motion to Compel

Defendant represents that it has produced or offers to produce materials sought by plaintiff but plaintiff contends that she has not received all of the materials sought. Defendant does not object to producing this material in general (save the non-disclosure of proprietary information, ...

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