Lewis v. CVS Albany, LLC

Background

Tricia Lewis alleges that, on December 30, 2019, a man attacked her inside a CVS pharmacy in Manhattan, causing permanent injuries. She brought state-law claims for negligence and negligent security against CVS Albany, LLC, which the opinion says owns and operates the store. Lewis's theory is that CVS should have known about dangers associated with the store's proximity to three homeless shelters and should have used additional security measures, such as more employees, improved cameras, or a security guard.

The court set an initial discovery deadline of June 17, 2022, and later extended it more than nine times. Lewis deposed a former CVS employee in April 2023, the store's shift supervisor in July 2023, and the store manager, Jarinder Kaur, on September 15, 2023. The court had extended the discovery deadline to September 22, 2023 and directed the parties to confirm that discovery was complete. After Kaur's deposition, Lewis sought to depose a loss-prevention employee identified as Sal and requested additional written materials and information. The court denied that request without prejudice and allowed Lewis to file a motion explaining why there was good cause to reopen discovery.

The Parties' Arguments

Lewis argued that Kaur's deposition first revealed that Sal might have information about CVS's consideration of the neighborhood before leasing the store. Lewis also argued that the deposition first revealed that CVS's loss-prevention or corporate department had information about store customer volume, security-guard decisions, and written employee training materials.

CVS argued that it had fully complied with its discovery obligations. It disputed that Sal was likely to have material information about whether the attack was foreseeable and argued that the requested written discovery concerned irrelevant issues.

Court's Analysis

A party seeking to reopen discovery must show good cause. The court considers whether the party already had an adequate opportunity to obtain discovery, whether trial is near, whether the request is opposed, possible prejudice, the party's diligence, whether the need for discovery was foreseeable, and whether the requested discovery is relevant and proportional to the case.

The court found that the opportunity for discovery weighed heavily against Lewis because this was a simple personal-injury dispute involving one incident, and the parties had conducted discovery for more than a year and a half. The court found that Lewis had made limited efforts to seek relevant discovery and that the need to investigate store security and training should have been foreseeable before Kaur's deposition. It also found that Lewis had not adequately explained why she waited until after discovery closed to make the request, and that the delayed timing of Kaur's deposition contributed to the problem.

The court further found that another deposition was unlikely to produce relevant and proportional evidence because Lewis had already obtained testimony from one former and two current CVS employees and had learned from Kaur that the store did not typically experience safety issues related to the nearby shelters. The court found that materials concerning employee dress code, register use, and employee discount cards were not relevant. It also found that daily store-visitor statistics were not relevant and, even if marginally relevant, were not proportional to the case's needs.

Some considerations favored reopening discovery: trial was not imminent, no trial had been scheduled, and CVS had not shown that reopening discovery would prejudice it. The court also determined that written security-training policies, if they existed, might be relevant and proportional and would impose little burden on CVS to produce.

Disposition

The court denied Lewis's motion to reopen discovery for the purpose of taking additional depositions. It granted the motion to the limited extent that Lewis could request and receive, if they existed, written employee training modules concerning store security and handling security incidents inside the store during the year leading up to the attack and materials in effect at the time of the attack. The court otherwise denied the motion.

CVS's deadline to produce those documents was November 10, 2023. Discovery was otherwise closed. The parties were directed to file a joint status letter by November 15, 2023 about possible dispositive-motion briefing and a settlement conference, or, if they did not plan to file dispositive motions, to request a pretrial conference from Judge Sidney H. Stein.