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Gray v. RaceTrac Petroleum Inc

United States District Court, N.D. Texas, Dallas Division

November 5, 2019

CLYDE GRAY, Plaintiff,
v.
RACETRAC PETROLEUM, INC. d/b/a RACETRAC Defendant.

          MEMORANDUM OPINION AND ORDER

          David C. Godbey, United States District Judge.

         This Order addresses Plaintiff Clyde Gray's (“Gray”) motion to compel discovery responses and production [20]. 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.

         I. The Discovery Dispute

         On May 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 [21], but Gray does not allege that he slipped on rainwater or mud in the store due to the weather.

         After 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 admissions.

         II. Motion to Compel Legal Standard

         Federal 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).

         Courts 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. 1990).

         III. The Court Denies Gray's Motion to Compel

         RaceTrac 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.[1]

         A. Requests for Production 33 (Third Set), 34 (Third Set), and 35 (Third Set)

         Three 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.

         RaceTrac 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 [21]. 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 [20]. Further, RaceTrac explained that its employee testified that these documents are not always maintained. Def.'s Resp. Pltf.'s Mot. Compel 6 [21]. 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).

         B. Requests for Production 33 (Second Set) ...


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