Charles v. Target Corporation ( 2021 )

1 2 3 4 UNITED STATES DISTRICT COURT 5 NORTHERN DISTRICT OF CALIFORNIA 6 7 CHERYL CHARLES, Case No. 20-cv-07854-HSG (JSC) 8 Plaintiff, ORDER RE: DISCOVERY DISPUTE v. 9 Re: Dkt. No. 28 10 TARGET CORPORATION, Defendant. 11 12 13 Now pending before the Court is a discovery dispute joint letter regarding Plaintiff’s 14 request to inspect and test the aisle where Plaintiff allegedly slipped and fell. (Dkt. No. 28.) After 15 reviewing the parties’ submission, the Court concludes that oral argument is not necessary. See 16 N.D. Cal. Civ. L.R. 7-1(b). 17 “A party may serve on any other party a request within the scope of Rule 26(b): . . . (2) to 18 permit entry onto designated land or other property possessed or controlled by the responding 19 party, so that the requesting party may inspect, measure, survey, photograph, test, or sample 20 the property or any designated object or operation on it.” Fed. R. Civ. P. 34(a)(2) (emphasis 21 added). Thus, Plaintiff’s request is made in accordance with the Federal Rules of Civil Procedure. 22 Defendant’s insistence that Plaintiff must show substantial similarity between the test she 23 seeks to take and the accident conditions before she is allowed onto the premises to conduct her 24 test is not persuasive. The case Defendant cites addresses the admissibility into evidence of tests, 25 not a party’s ability to stop the opposing party from even conducting the test. See Johnson v. Am. 26 Honda Motor Co., No. CV 10-126-M-JCL, 2012 WL 1027588, at *12 (D. Mont. Mar. 26, 2012). 27 If, once the test is performed and the expert report disclosed, Defendant believes the test results 1 Defendant also demands that Plaintiff first provide it with a detailed protocol identifying 2 || the equipment to be used for the testing and how it will be used. This demand is premature. 3 Should Plaintiff's expert decide to rely on the test, then all must be revealed in the expert report 4 and Defendant will have the opportunity to challenge the process and result. Plaintiff must, 5 however, ensure that when the inspection and testing are complete the floor is in the same 6 || condition as before the testing. 7 Plaintiff has not shown good cause for inspection of the video system. 8 Accordingly, Plaintiff's motion to compel is granted in part. Defendant shall allow 9 || Plaintiff to inspect Aisle A21 beginning at 7:00 a.m. (before store opening time). On or before 10 || June 25, 2021 the parties shall agree to an inspection date. 11 This Order disposes of Docket Nos. 23, 28. 12 IT IS SO ORDERED. 13 Dated: June 23, 2021 , 5 5 u CQUELINE SCOTT CORIAY nited States Magistrate Judge 16 19 20 21 22 23 24 25 26 27 28