United States District Court, N.D. Texas, Dallas Division
MEMORANDUM OPINION AND ORDER
C. Godbey, United States District Judge.
Order addresses Plaintiff Clyde Gray's
(“Gray”) motion to compel discovery responses and
production . Because Gray's requested discovery is
either not relevant or not in Defendant RaceTrac Petroleum,
Inc.'s (“RaceTrac”) possession, the Court
denies Gray's motion.
The Discovery Dispute
27, 2016, Plaintiff Gray alleges he entered one of
RaceTrac's Dallas stores and slipped and fell on a wet
floor. Pltf.'s Orig. Pet. 2 [1.B]. Gray claims the floor
had been mopped by a store clerk who did not put out any
“wet floor” signage. Id. RaceTrac notes
that the weather was rainy on the day of Gray's incident
and that Gray allegedly fell near the store entrance,
Def.'s Resp. Pltf.'s Mot. Compel 1 , but Gray
does not allege that he slipped on rainwater or mud in the
store due to the weather.
filing suit, Gray served several sets of discovery requests
for production and admissions. RaceTrac objected to some of
these requests, and Gray filed this motion to compel
responses to six requests for production and six requests for
Motion to Compel Legal Standard
Rule of Civil Procedure 26 allows parties to “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 litigant
may request the production of documents falling “within
the scope of Rule 26(b)” from another party if the
documents are in that party's “possession, custody,
or control.” Fed.R.Civ.P. 34(a). To enforce discovery
rights, a “party seeking discovery may move for an
order compelling an answer, designation, production, or
inspection.” Id. at 37(a)(3). The Fifth
Circuit requires the party seeking to prevent discovery to
specify why the discovery is not relevant or show that it
fails the proportionality requirement. McLeod, Alexander,
Powel & Apffel, P.C. v. Quarles, 894 F.2d 1482, 1485
(5th Cir. 1990); see also Merrill v. Waffle House,
Inc., 227 F.R.D. 475, 476 (N.D. Tex. Mar. 22, 2005).
construe relevance broadly, as a document need not, by
itself, prove or disprove a claim or defense or have strong
probative force to be relevant. Samsung Elecs. Am. Inc.
v. Yang Kun Chung, 321 F.R.D. 250, 280 (N.D. Tex. June
26, 2017). A district court has wide discretion to supervise
discovery, however, and may limit discovery if it would be
unreasonably cumulative, could be obtained more easily from a
different source, or if the burden or expense of proposed
discovery outweighs its potential benefit. Fed.R.Civ.P.
26(b)(2)(C); Landry v. Air Line Pilots Ass'n
Int'l AFL-CIO, 901 F.2d 404, 436 n.114 (5th Cir.
The Court Denies Gray's Motion to Compel
has successfully shown that each of Gray's contested
discovery requests is either not relevant or not in
RaceTrac's possession. The Court thus denies Gray's
motion to compel discovery.
Requests for Production 33 (Third Set), 34 (Third Set), and
35 (Third Set)
of the six production requests Gray seeks to compel relate to
sweeping and mopping records and employee punch cards and
checklists from the RaceTrac store in question on the date of
the incident. These requests are clearly relevant to
Gray's lawsuit, as he allegedly slipped on a mopped
floor, and are proportional to the needs of the case.
argues, however, that it does not possess any responsive
records, as it indicated in its responses to Gray's
discovery requests. Def.'s Resp. Pltf.'s Mot. Compel
6 . Gray states that a RaceTrac employee admitted in a
deposition to having these records, but he has produced no
evidence of that testimony. Pltf.'s Mot. Compel 7 .
Further, RaceTrac explained that its employee testified that
these documents are not always maintained. Def.'s Resp.
Pltf.'s Mot. Compel 6 . Because a “party or
non-party cannot produce what it does not have” and
because there is no evidence that contradicts what RaceTrac
has told both Gray and this Court, the Court declines to
compel production of these apparently nonexistent documents.
ORIX USA Corp. v. Armentrout, 2016 WL 4095603, at *5
(N.D. Tex. Aug. 1, 2016) (internal quotation marks omitted).
Requests for Production 33 (Second Set) ...