UNITED STATES DISTRICT COURT

NORTHERN DISTRICT OF INDIANA

HAMMOND DIVISION

TINA ZABIELSKI-SCHROEDER and )

ROY SCHROEDER, )

Plaintiffs, )

)

v. ) CAUSE NO. 2:13-CV-451-RLM-JEM

)

MENARD, INC., )

Defendant. )

OPINION AND ORDER

This matter is before the Court on three motions:

(1) Plaintiffs’ Motion to Compel Production [DE 11], filed by Plaintiffs on April 22,

2014; 

(2) Defendant’s Motion to Strike Plaintiff’s Motion to Compel Production and Motion

for Sanctions [DE 14], filed by Defendant on May 6, 2014; and 

(3) Defendant’s Motion to Strike Section II(C)(3) and Exhibits E and I to the Plaintiff’s

Memorandum of Law in Support of Plaintiffs’ Response to Defendant’s Motion to

Strike Plaintiff’s Motion to Compel Production and Motion for Sanctions [DE 24],

filed by Defendant on May 30, 2014. 

Plaintiff Tina Zabielski-Schroeder alleges that she slipped and fell at a store controlled by

Defendant due to Defendant’s negligence on July 21, 2013. Plaintiffs filed a lawsuit in state court

in Lake County, Indiana, on November 15, 2013. The case was removed to this Court on December

9, 2013. 

Plaintiff filed their Motion to Compel on April 22, 2014, seeking an order compelling

Defendant to produce surveillance video footage taken at the Defendant’s store on the day of the
alleged slip and fall at the center of this lawsuit. On May 6, 2014, Defendant filed a response

opposing Plaintiffs’ Motion. The same day, it filed its first Motion to Strike, seeking to have

Plaintiff’s Motion stricken for failing to comply with Local Rule 37-1(a) and for being filed

prematurely. On May 7, 2014, Plaintiffs filed its Local Rule 37-1(a) certification to accompany its

Motion to Compel. On May 20, 2014, Plaintiffs filed their reply in support of their Motion to

Compel and a response to Defendant’s Motion to Strike. On May 30, 2014, Defendant filed its reply

in support of its Motion to Stike and also filed a second Motion to Strike, seeking to have portions

of Plaintiffs’ response to the first Motion to Strike stricken. Plaintiffs did not respond to the second

Motion to Strike. All Motions are now ripe for ruling.

ANALYSIS

In addition to directly responding to the merits of Plaintiffs’ Motion to Compel, Defendant

filed a Motion to Strike the Motion to Compel in its entirety that the Court must dispose of first.

A. Defendant’s Motions to Strike

Defendant argues that the Motion to Compel should be stricken because it fails to comply

with the Federal Rules of Civil Procedure and the Local Rules for the Northern District of Indiana. 

In particular, Defendant argues that the Motion to Compel failed to include the certification required

by Local Rule 37-1 and that the Motion to Compel was premature because its response to written

discovery—including the request for production of the surveillance video—was not due until May

8, 2014, sixteen days after the Motion was filed.

Federal Rules require that a party filing a motion to compel “include a certification that the

movant has in good faith conferred or attempted to confer with the person or party failing to make

disclosure or discovery in an effort to obtain it without court action.” Fed. R. Civ. P. 37. Local

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Rules require that the certification be filed in a separate document and include “the date, time, and

place of any conference or attempted conference[] and . . . the names of the parties participating in

the conference.” N.D. Ind. L.R. 37-1(a). If no certification is filed, a court may deny the motion to

compel. N.D. Ind. L.R. 37-1(b).

In the Motion to Compel, Counsel for Plaintiffs states that he informallyasked multiple times

from the outset of litigation for access to the surveillance video that showed the activity referred to

by the claims adjuster. Mot. to Compel ¶6. Plaintiffs also requested production of the video in

written discovery served on Defendant on February 21, 2014. Mot. to Compel ¶6. Counsel for

Plaintiffs states that he again requested in email and in phone conversations on April 10, 15, and 16,

that Defendant provide a copy of the surveillance video. Counsel for Plaintiffs further asserts that

counsel for Defendant explicitly stated in response to those requests that the surveillance video

would not be produced by the deadline for written discovery, but would be produced only after

Plaintiffs had been deposed, leading to the filing of the instant Motion to Compel on April 22, 2014.

The parties agreed to two extensions of time to respond to the written discovery, and the

Court granted a further extension of time through May 8, 2014. The deadline for the completion of

all discovery in this case is set for August 31, 2014.

Although no separate Rule 37-1 certification was filed contemporaneously with the Motion

to Compel, Plaintiffs stated in the Motion that counsel for Plaintiffs Chase Colvin e-mailed counsel

for Defendant David Kalimuthu on April 10, 2014 regarding the surveillance video and that the two

attorneys discussed the dispute over the video by phone on April 15 and 16. Plaintiff also attached

copies of the relevant e-mails. Also, on May 7, 2014, after Defendant filed its Motion to Strike,

Plaintiffs filed a certification meeting the requirements of Local Rule 37-1(a). The Court finds that

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these submissions effectively comply with the purpose of Rule 37(a) and Local Rule 37-1 to resolve

the discovery dispute without the Court’s intervention. Accordingly, the Court declines to strike

Plaintiffs’ Motion solely for its lack of a separate Rule 37 certification.

Defendant also argues that the Motion to Compel should be stricken as untimely because the

time to respond to Plaintiffs’ written discovery requests—including the request to produce the

surveillance video—had not yet passed when the Motion was filed. Plaintiffs respond that their

counsel had repeatedly asked for the surveillance video and had repeatedly been told that the video

would not be produced until after Plaintiffs had been deposed, after the deadline for written

discovery would have passed. Because these arguments go to the merits of the Motion to Compel,

they are more appropriately addressed in ruling on that Motion rather than by striking it. 

Accordingly, the Court will deny Defendant’s Motion to Strike.

As further distraction from the merits of the Motion to Compel, Defendant also filed a second

Motion to Strike, asking the Court to strike Section II(C)(3) and Exhibits E and I of Plaintiffs’

response to the first Motion to Strike because it is irrelevant, immaterial, and scandalous. See Fed.

R. Civ. P. 12(f)(permitting a court to strike from a pleading any“redundant, immaterial, impertinent,

or scandalous matter.”) In Section II(C)(3), Plaintiffs’ counsel states that he is familiar with the firm

representing Defendant, Bruce P. Clark and Associates, from past cases and that “[d]efense counsel

is known to withhold information and evidence and unnecessarily delay litigation by seeking

extension after extension without providing complete and non-evasive responses to relevant

discovery.” Resp. 8. Exhibits E and I contain seventeen orders on motions to compel filed in

various Indiana state courts and one order from another court in the Northern District of Indiana

against parties represented by various attorneys with the firm Bruce P. Clark & Associates, including

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one in which a state circuit court judge concludes that counsel was “deliberately evading discovery

by artifice and skullduggery.” Resp. Exh. 5 at 2.

While Rule 12(f) by its own terms only applies to pleadings, some courts have nonetheless 

considered motions to strike portions of other types of documents using Rule 12(f) standards. See

City of Sterling Heights Gen. Emps’ Ret. Sys. v. Hospira, Inc., No. 11 C 8332, 2013 WL 566805

(N.D. Ill. Feb. 13, 2013) (“While Rule 12(f) does not explicitly authorize a motion to strike

documents other than pleadings, courts routinely entertain such motions.”) (citing cases). Federal

Rule of Civil Procedure 12(f) permits a court to strike from a pleading any “redundant, immaterial,

impertinent, or scandalous matter.” Fed. R. Civ. P. 12(f). Motions to strike are generallydisfavored,

in part to discourage their potential use to delay judicial proceedings. Heller Fin., Inc. v. Midwhey

Powder Co., Inc., 883 F.2d 1286, 1294 (7th Cir. 1989); United States v. 416.81 Acres of Land, 514

F.2d 627, 631 (7th Cir. 1975) (notingRule 12(f)motions’ “potential as a dilatory tactic”). Therefore,

scandalous or immaterial matter will not ordinarily be stricken unless the moving party can also

show it causes them prejudice. See Talbot v. Robert Matthews Distrib. Co., 961 F.2d 654, 664-65

(7th Cir. 1992); Charles Alan Wright, 5C Fed. Prac. & Proc. Civ. § 1382 (3d ed.) (“[T]here appears

to be general judicial agreement . . . that [motions to strike] should be denied unless the challenged

allegations may cause some form of significant prejudice to one or more of the parties to the

action.”) Whether to strike scandalous or immaterial portions of a pleading is within the sound

discretion of the court. Talbot, 961 F.2d at 665.

Defendant argues that disputed exhibits are irrelevant because they contain orders from

completely unrelated cases in which Defendant’s counsel did not participate and provide none of the

necessary context for the Court to determine whether those orders were actually justified. 

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Accordingly, Defendant argues they provide no substantive support to Plaintiffs’ response but were

“included for the sole purpose of attempting to embarrass, humiliate, and/or create undue prejudice

upon” its counsel. Mot. to Strike 4. Defendant does not, however, provide any argument for how

this information creates any prejudice to it. Accordingly, the Court sees no reason to strike the

disputed material.

II. Plaintiffs’ Motion to Compel

With the Motions to Strike out of the way, the Court can move on to the real substance of the

dispute in this matter. Before filing the instant lawsuit, Zabielski-Schroeder first sought

compensation for the alleged resulting injury through Defendant’s internal claims program. 

However, the claims adjuster who investigated Zabielski-Schroeder’s claim concluded that Menards

was not liable for her injury. In a letter dated September 9, 2013, the claims adjuster wrote:

Another guest with a flatcart ran into a display of lemonade. 

Immediatelyseveral employees are there cleaning and put up multiple

wet floor signs. There is a lot of activity with employees cleaning,

mopping and using the scrubber to get all the liquid off the floor. 

Your client passes this area 3 times, 2 times from 1 direction and the

3rd from another. She stops, looks around and on the 3rd pass

through speaks with one of the employees.

Your client was clearly aware of the situation as she passed through

this area more than once. Multiple wet floor signs were out an

employees were vigorously cleaning the area.

Mot. to Compel, Exh. 1. Plaintiffs’ Motion to Compel Production seeks an order compelling

Defendant to produce the surveillance video to which the claims adjuster refers. Plaintiffs state that

they have repeatedly asked Defendant to produce the video, both informally from the outset of the

litigation and formally through a Request for Production served on Defendant on February 21, 2014. 

Plaintiffs further represent that counsel for Defendant has stated that the video would not be

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produced until after Defendant had taken Plaintiffs’ depositions, regardless of discovery deadlines.

Federal Rule of Civil Procedure 26(b)(1) permits discovery “regarding any nonprivileged

matter that is relevant to any party’s claim or defense.” Fed. R. Civ. P. 26(b)(1). Relevancy is

“construed broadly to encompass any matter that bears on, or that reasonably could lead to other

matter that could bear on, any issue that is or may be in the case.” Oppenheimer Fund, Inc. v.

Sanders, 437 U.S. 340, 351 (1978) (citing Hickman v. Taylor, 329 U.S. 495, 501 (1947)). A party

may seek an orderto compel discoverywhen an opposing party fails to respond to discoveryrequests

or provides evasive or incomplete responses. See Fed. R. Civ. P. 37(a). A party objecting to the

discovery request bears the burden of showing why the request is improper. See McGrath v. Everest

Nat. Ins. Co., 625 F. Supp. 2d 660, 670 (N.D. Ind. 2008). The Court has broad discretion when

deciding discovery matters. Thermal Design, Inc. v. Am. Soc’y of Heating, Refrigerating &

Air-Conditioning Eng’rs, Inc., ___ F.3d ___, No. 13-2519, 2014 WL 2748054 (7th Cir. June 18,

2014); Rennie v. Dalton, 3 F.3d 1100, 1110 (7th Cir. 1993)).

Defendant does not contest the relevance of the video to Plaintiffs’ case but provides four

reasons for its objection to being compelled to produce the surveillance video before it has taken

Plaintiffs’ depositions. First, it argues the Motion should be denied because the Motion failed to

include certification that Plaintiffs in good faith conferred or attempted to confer with Defendant in

an effort to obtain the video without court action asrequired by Federal Rule Civil Procedure 37 and

Local Rule 37-1(a). However, as discussed above, the Court findsthat Plaintiffs effectively complied

with these rules so that denial on minor technical groundsis unwarranted. Defendant also argues that

the Motion is premature because the discovery deadline had not yet passed when the Motion wasfiled;

that Defendant should be permitted to withhold the video until after Plaintiffs have been deposed in

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order to preserve its impeachment value; and that the video is protected from disclosure by the work

product doctrine. The Court addresses each argument in turn below.

1. Timing of the Motion to Compel

Defendant argues that the Motion to Compel is premature because it was filed before its

deadline to respond to Plaintiffs’ requests for production had passed. Plaintiffs served written

discovery requests that included a request to produce the surveillance video at issue on Defendant on

February 21, 2014. The parties agreed to extend the time to respond to written discovery requests

throughApril 17, 2014. Counsel for Plaintiffsrepresentsthat he inquired specificallyabout production

of the surveillance video on April 10 and April 15, 2014, and was told by counsel for Defendant that

it would not be produced until after Defendant had taken Plaintiffs’ depositions. On April 30, 2014,

Defendant filed a motion requesting an additional extension of time to respond to Plaintiffs’ written

discovery requests. In it, Defendant represented that the parties had orally agreed to an extension

through April 30, 2014, and attached an email dated April 16, 2014, from Defense counsel to

Plaintiffs’ counsel that purported to memorialize that agreement. The Motion requested an additional

week extension, and the Court granted an extension through May 8, 2014.

Because the instant Motion to Compel was filed on April 22, 2014, sixteen days before the

deadline to respond to Plaintiffs’ written discovery requests, Defendant argues it should be denied as

premature. Plaintiffsreplythat because Defendant informed themthat it had no intention of producing

the video before the written discovery deadline, it should not have needed to wait to file the Motion

toCompel. A letter from Plaintiffs’ counsel to Defendant’s counsel dated May 13, 2014, and attached

to Plaintiffs’ reply brief confirms that Defendant did not, in fact, produce the video by the deadline to

respond to Plaintiffs’ written discovery requests. The Court will not deny the motion merely because

it was filed before the discovery deadline. Plaintiffs had no reason to doubt that Defendant would

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continue to withhold the video even after the deadline had passed. Additionally, if Defendant planned

to use the video in support of its defense, as the letter from its claims adjuster stated, it was required

to disclose the video as part of its initial disclosures well before the Motion to Compel was filed. See

Fed. R. Civ. P. 26(a)(1)(A)(ii), (C). Accordingly, the Court declines to deny the Motion to Compel

because of its timing.

2. Preservation of Impeachment Value

Defendant next argues that the Court should use its broad discretion regarding discovery

matters to permit Defendant to withhold the surveillance video until after it has deposed Plaintiffs. It

states Plaintiffs have not yet provided information on the specific location of the alleged fall or a

description of the substance that allegedly caused the fall and arguesthat “providing [the] video prior

to the plaintiffs’ depositions will provide the plaintiffs with an improper opportunity to alter their

testimony to fit the contents of the . . . surveillance video.” Resp. 2. It argues that permitting it to

withhold the video temporarilywould serve to balance itsinterest in preserving the impeachment value

of the video against the Plaintiffs’ need for the video. Plaintiffs respond that they cannot properly

evaluate their case or make expert witness decisions without the requested video and argue that

Defendant should not be permitted to withhold it just because it is tactically convenient to do so.

Normally, “methods of discovery may be used in any sequence” and “discovery by one party

does not require any other party to delay its discovery.” Fed. R. Civ. P. 26(d). However, “the court

may order otherwise for the parties’ and witnesses’ convenience and in the interest of justice.” Fed.

R. Civ. P. 26(d). To support its argument for withholding the surveillance video until after

Plaintiffs’ depositions, Defendant cites two cases in which the courts used their discretion to dictate

a specific sequence of discovery. However, the circumstances in those two non-precedential cases

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are distinguishable from those in this case. In both cases, the defendants objected to producing secret

video taken for the sole purpose of showing the plaintiffs’ injuries were not as severe as they

claimed. Snead v. Am. Exp.-Isbrandtsen Linece, Inc., 59 F.R.D. 148, 149 (E.D. Penn. 1973); Pioneer

Lumber, Inc. v. Bartels, 673 N.E.2d 12 (Ind. Ct. App. 1996). The defendants argued they needed

to withhold the videos from the plaintiffs so that the plaintiffs could not alter their deposition

testimony to fit the video, destroying the impeachment value of the videos at trial. Id. On the other

hand, because video can be manipulated or deceptive, the plaintiffs had a need to view the videos

prior to trial to be prepared to attack the accuracy or authenticity of the tapes. Id. The judges chose

to balance these competing needs by compelling the defendants to produce the videos but allowing

them to wait until the plaintiffs’ depositions were taken, thereby preserving the impeachment value

of the videos. Id.

In this case, however, balancing Plaintiffs’ need for the video with Defendant’s interest in

withholding it warrants a different result. The plaintiffs’ need for the videos in the cases relied on

by Defendant—and the timing of the need for those videos—depended completely on whether the

videos would be produced at trial. In this case, however, Defendant has already indicated that it

plans to use the video not just for impeachment purposes at trial, but substantively to defeat

Plaintiffs’ case by showing Zabielski-Schroeder was “clearly aware of the situation.” Mot. to

Compel, Exh. 1. Accordingly, Plaintiffs have a greater need to access the video and to do so

immediately to prepare the substance of their case, not just to prepare to counter the potential effects

of the videos at trial. The Court’s primary goal in ruling on discovery matters should be to facilitate

“the parties . . . obtain[ing] the fullest possible knowledge of the issues and facts before trial.” 

Hickman v. Taylor, 329 U.S. 495, 501 (1947); see also United States v. Procter & Gamble Co., 356

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U.S. 677, 682 (1958). (“Modern instruments of discovery . . . . together with pretrial procedures

make a trial less a game of blind man’s buff and more a fair contest with the basic issues and facts

disclosed to the fullest practicable extent.”) The Court is not persuaded by the reasoning in the cited

cases that the balancing of interests in this case warrants interfering with the goal of facilitating the

fullest possible disclosure merely to preserve a potential tactical advantage for Defendant. 

Accordingly, the Court declines to permit Defendant to continue to withhold the surveillance video

for the sole purpose of preserving its impeachment value.

3. Work Product Doctrine

Finally, Defendant argues that even if the Court finds its interest in preserving the

impeachment value of the video unpersuasive, it should deny the Motion to Compel because the

surveillance video at issue is protected by the attorney work product privilege. Materials created in

anticipation of litigation are considered attorneywork product and protected by a qualified privilege

against discovery. Logan v. Commercial Union Ins. Co., 96 F.3d 971, 976 (7th Cir. 1996); see also

Fed. R. Civ. P. 26(b)(3) (“Ordinarily, a party may not discover documents and tangible things that

are prepared in anticipation of litigation or for trial.”) A document is considered “prepared in

anticipation of litigation” if it “can fairly be said to have been prepared or obtained because of the

prospect of litigation.” Logan, 96 F.3d at 977 (citing Binks Mfg. Co. v. Nat’l Presto Indus., Inc., 709

F.2d 1109, 1118 (7th Cir.1983)). When determining whethersomething was prepared in anticipation

of litigation, the Court must distinguish between investigative materials created “as a precaution for

the ‘remote prospect of litigation’ and materials prepared because ‘some articulable claim, likely to

lead to litigation ... ha[s] arisen.’” Id. (quoting Binks Mfg. Co., 709 F.2d at 1120). The burden is on

the party asserting the privilege to show that the materials were made in anticipation of litigation.

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Hamdan v. Ind. Univ. Health N., LLC, No. 1:13-CV-00195-WTL, 2014 WL 2881551, at *2 (S.D.

Ind. June 24, 2014).

Defendant admits that the “surveillance video was not captured specifically” for purposes of

this case at the time it was captured, but it argues the Court should still find it was prepared in

anticipation of litigation because “store surveillance is conducted due to the potential for all kinds

of claims, both criminal and civil.” Resp. 5. Defendant cites two cases from district courts outside

this Circuit for the proposition that “surveillance videos, by nature, are generally prepared in

anticipation of litigation,” and therefore generally constitute work product. Resp. 4. In both cases,

however, the video was taken after the accident at issue in the case occurred and for the purpose of

investigating the plaintiffs’ claims. Ward v. CSX Transp., Inc., 161 F.R.D. 38, 39 (E.D.N.C. 1995);

Wegner v. Cliff Viessman, Inc., 153 F.R.D. 154, 156 (N.D. Iowa 1994). In this case, Defendant

admits that the store surveillance served multiple purposes and makes no assertion that it was not

recorded in the ordinary course of business or only “as a precaution for the ‘remote prospect of

litigation.’” Logan, 96 F.3d at 977. If Defendant wishes to argue that all store surveillance is

necessarily done in anticipation of litigation, it has not met its burden of doing so. Accordingly, the

Court finds the disputed surveillance video is not protected from discovery by the work product

doctrine.

Because the Court is unpersuaded by any of Defendant’s justifications for withholding the

surveillance video or it arguments for otherwise denying the Motion to Compel, the Motion will be

granted.

CONCLUSION

For the foregoing reasons, the Court hereby:

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(1) GRANTS Plaintiffs’ Motion to Compel Production [DE 11];

(2) ORDERS Defendants to serve on Plaintiffs, on or before July 14, 2014, the video

responsive to Plaintiffs’ Requests for Production 2, 5, and 12; 

(2) ORDERS Defendant to file a brief on or before July 23, 2014, explaining why

expenses should not be awarded pursuant to Federal Rule of Civil Procedure

37(a)(5)(A);

(3) DENIES Defendant’s Motion to Strike Plaintiff’s Motion to Compel Production and

Motion for Sanctions [DE 14]; and

(4) DENIES Defendant’s Motion to Strike Section II(C)(3) and Exhibits E and I to the

Plaintiff’s Memorandum of Law in Support of Plaintiffs’ Response to Defendant’s

Motion to Strike Plaintiff’s Motion to Compel Production and Motion for Sanctions

[DE 24]

SO ORDERED this 7th day of July, 2014.

s/ John E. Martin 

MAGISTRATE JUDGE JOHN E. MARTIN

UNITED STATES DISTRICT COURT

cc: All counsel of record

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