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NO. 22
DONNELL BUTLER IN THE DISTRICT COURT OF
FORT BEND COUNTY, TEXAS
DILLARD’S INC. D/B/A/ DILLARD
DEPARTMENT STORES, INC. JUDICIAL DISTRICT
DEFENDANT’S RESPONSE TO PLAINTIFF’S MOTION TO COMPEL DISCOVERY
RESPONSES
TO THE HONORABLE JUDGE OF SAID COURT:
COME NOW, Defendants, DILLARD TEXAS EAST, LLC doing business as Dillard’s,
improperly named as DILLARD’S, INC. D/B/A DILLARD DEPARTMENT STORES, INC.
(hereinafter sometimes referred to as “Dillard’s”), and file this their esponse to Plaintiff’s Motion
to Compel Discovery Responses and would show unto the Court as follows:
INTRODUCTION
This is a trip and fall case. Plaintiff claims that he fell and was injured on an escalator at the
Dillard’s Department store where he was shopping. The question in this case will be whether or not
there was an unreasonably dangerous condition about which Dillards knew or should have known
about which was a proximate cause of Plaintiff’s injuries. Plaintiff has sent to Dillards a set of what
appear to be boilerplate discovery, but which seeks work product information in some instances,
and in others tailors requests in such a broad manner that the requests are burdensome and
unreasonable. Defendant Dillards has filed proper objections to such discovery, and responded to
the remainder. The objections should all be sustained.
III. Discovery Responses in Dispute
Defendant Dillards will go through each of the disputed discovery matters individually,
identifying the discovery request and objection, followed by an explanation as to why this Court
should sustain the timely objection. The initial matters are out of Plaintiff’s Request for
Production, followed by Plaintiff’s Interrogatories.
5. All documents sent or received, or correspondence (including emails) between
you (including your attorneys) and any third party, claims adjuster, and/or risk
management personnel concerning the Subject Incident.
RESPONSE: Objection. This calls for work product information.
Plaintiff’s counsel is clearly and obviously actually seeking work product information, asking for
correspondence to include correspondence with Defendant’s attorneys. Such an attempt at
discovery of work product information is improper, and challenging this objection is frankly
shocking. This court must sustain this objection.
6. True and correct copies of each document and tangible thing prepared by an
expert who you intend to call to testify at trial.
RESPONSE: Objection. Some of defendant's experts may be the Plaintiff's
treating or examining physicians. It is an unreasonable burden to require
Defendant to provide such information from Plaintiff's own doctors.
Plaintiff seeks documents from Defendant which are likely from Plaintiff’s own doctors, over
whom Defendant has no control, and with whom Defendant may not even have a conversation
because of HIPPA privacy concerns. Yet, such doctors could be called by Defendant at the trial of
this case because they would be appropriate experts in this case. It is unreasonable for Defendant to
be obligated to gather information from Plaintiff’s doctors. This court should sustain this objection.
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8. If you performed any investigations into the Subject Incident, produce any
documents or reports generated as a result of your investigation.
RESPONSE: Objection. This calls for work product information in that it is not
limited to a time prior to the reasonable anticipation of litigation.
Once again, Plaintiff is apparently consciously seeking work product information. Defendant
provided the in store investigation which was accomplished prior to anticipation of litigation, as
well as photos and a witness statement. Anything else in Defendant’s possession is work product,
and is protected from discovery. This court must sustain this objection.
10. Any letters, memoranda or other documents you provided to third parties
relating to the incident.
RESPONSE: Objection. This calls for work product information.
The only documents, not already produced, which were provided to third parties would of
necessity include work product information. Plaintiff is not entitled to Defendant’s work product
and this objection must also be sustained.
11. Any and all employee handbooks, manuals, policy guidelines, or any other
written documents given to your employees regarding safety issues for the two (2)
year period immediately preceding the date of the incident.
RESPONSE: Objection. This is overly broad and burdensome and would require
Defendant to exercise tremendous effort at great expense relating to matters that
are not reasonably calculated to lead to admissible evidence at the time of trial.
Plaintiff seeks two years worth of all documentation given to Dillard employees relating to
safety. Dillards has hundreds of stores in multiple states. Locating and identifying “any and all”
such documents that relate to safety, without regard to location, subject matter, or any
relationship at all to this incident is a per se overly broad request, which is burdensome in nature.
The effort and expense to Dillards to gather this information would be great, while the likelihood
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of anything turning up which bears on this very specific incident, which relates to an escalator, is
slim at best. Defendant has produced documents relating to inspections of escalators, which is
the only thing potentially relevant to this case. Defendant’s objection should in all things be
sustained.
15. If your employees routinely investigated the Subject Property for hazardous
conditions, and the results of those investigations were recorded in a log, please
produce the log for the date of the Subject Incident and each log that was
recorded during the thirty (30) day period leading up the date of the Subject
Incident.
RESPONSE: Objection. This is overly broad and burdensome and would require
Defendant to exercise tremendous effort at great expense relating to matters that
are not reasonably calculated to lead to admissible evidence at the time of trial.
The nature of any department store such as the one involved in this case is that there are many
and various places within the store that are evaluated on a regular basis. The loading dock, the
back rooms, the changing rooms, the bathrooms, the sales floor in the many different sections of
the store, the doorways, which include automatic doors and manual doors—all of these areas of
the store are inspected regularly, whether or not there is a log. But none of these areas have
anything to do with this incident. Defendant has produced documents relating to inspections of
escalators, the only thing potentially relevant to this case. Defendant’s objection should in all
things be sustained.
16. Any and all documents, reports, communications, notes, and/or document
concerning any other injuries occurring at the Subject Property within the past
five (5) years.
RESPONSE: Objection. This is overly broad and burdensome and would require
Defendant to exercise tremendous effort at great expense relating to matters that
are not reasonably calculated to lead to admissible evidence at the time of trial.
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Plaintiff seeks other incidents at this store for the past five years. There is no limitation to this
request as to the nature of the incident, the location of the incident, the manner in which the
incident occurred. To evaluate whether such a request is properly tailored, the court should
consider the instrumentality of injury and the potential of relevance of similar conditions.
Dillard Dept. Stores, Inc. v. Hall,_ 909 S.W.2d 491, 492 (Tex. 1995); K Mart Corp. v.
Sanderson, 937 S.W.2d 429, 431 (Tex. 1996); In re HEB Grocery Co., L.P., 375 S.W.3d 497,
502 (Tex. App.--Houston [14th Dist.] 2012, no pet.). There is no basis for five years worth of
incidents, as there is no basis for incidents that do not involve an escalator. Plaintiff’s request is
clearly and obviously overly broad, and Defendant’s objection should be sustained.
17. If you contend that that the injuries that Plaintiff seeks compensation for in
this lawsuit were caused in whole or in part to any other pre-existing injury or
accident, please produce all documents in your possession that support this
contention.
RESPONSE: Objection. This discovery places an unreasonable burden on
Defendant, requiring more than that which is permitted in the Rules of Procedure
regarding proper discovery. This discovery is premature in that it is impossible
for Defendant to know if or when Plaintiff makes a complaint or claims a
condition that is in truth pre-existing, or caused by some other occurrence,
disease or condition, since the full extent of Plaintiff’s damages and course of
treatment are not known and will not be known until Plaintiff testifies at the trial
of this case. Until then, Defendant will never be able to respond as to whether
Plaintiff has made claims which relate to conditions or complaints unrelated to
the accident made the basis of this suit, and asking Defendant to answer that
which is not capable of a complete answer is an impermissible burden on
Defendant.
Plaintiff complains of Defendant’s inability to respond at this time as to whether or not a claim is
to be made that is really from a pre-existing injury. As well explained in the objection itself, the
ability of Defendant to so respond is impossible until such a claim has been made, and Defendant
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does not fully know what claims are going to be made until Plaintiff is testifying to the jury in this
case. The request is highly premature. Plaintiff has refused to produce the Plaintiff for deposition
until these discovery matters are resolved. Defendant can hardly respond to this discovery until at
a minimum the Plaintiff’s deposition has occurred, and then Defendant cannot be sure what will
be said by Plaintiff until the actual trial of this case. Defendant’s objection should be sustained.
19. Any and all maintenance and/or service documents relating to the escalator at
issue in the instant litigation from five (5) years before the Subject Incident to
present. This request includes, but is not limited to, all maintenance and/or service
requests, reports, and invoices for work performed on the subject escalator.
RESPONSE: Objection. This is overly broad and burdensome and would require
Defendant to exercise tremendous effort at great expense relating to matters that
are not reasonably calculated to lead to admissible evidence at the time of trial.
Defendant acknowledges that the general subject matter of this request seeks relevant
information concerning this case. However, five years worth of documentation relating to the
escalator is inherently over broad and could not possibly be calculated to lead to admissible
evidence. A problem with the escalator, repaired five years before this incident, could not
possibly bear on this incident. A reasonable limitation concerning these repairs is necessary. As
is, Plaintiff’s request is overly broad and Defendant’s objection should be sustained.
6. Please state generally each factor which you now contend or will contend
caused or contributed to the Plaintiff’s damages including, but not limited to, pre-
existing or subsequently existing physical or medical condition or conditions.
ANSWER: Objection. This discovery places an unreasonable burden on
Defendant, requiring more than that which is permitted in the Rules of Procedure
regarding proper discovery. This discovery is premature in that it is impossible
for Defendant to know if or when Plaintiff makes a complaint or claims a
condition that is in truth pre-existing, or caused by some other occurrence,
disease or condition, since the full extent of Plaintiff’s damages and course of
treatment are not known and will not be known until Plaintiff testifies at the trial
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of this case. Until then, Defendant will never be able to respond as to whether
Plaintiff has made claims which relate to conditions or complaints unrelated to
the accident made the basis of this suit, and asking Defendant to answer that
which is not capable of a complete answer is an impermissible burden on
Defendant.
Like the response to Request for Production 17, Defendant is not able to fully respond to this
interrogatory because Plaintiff has not yet testified. It is unclear what Plaintiff’s claims will be
relating to injuries in this case. Therefore, it is impossible for Defendant to identify those claims
to be made, not yet made, which might actually be the result of a pre-existing condition. The
interrogatory is simply premature, and indeed until Plaintiff testifies at trial, Defendant may
never know whether Plaintiff will testify as to physical conditions extraneous to the incident
made the basis of this suit. Defendant’s objection should be sustained.
7. Please describe any prescribed cleaning, repair, storage, maintenance, and/or
safety plans, programs, or protocols that were in effect on the date of the Subject
Incident in regard to the Subject Property.
ANSWER: Objection. This is overly broad and burdensome and would require
Defendant to exercise tremendous effort at great expense relating to matters that
are not reasonably calculated to lead to admissible evidence at the time of trial.
Plaintiff seeks matters that are wildly beyond anything that could be relevant in this case. This is
a case involving a very specific instrumentality—the escalator. Seeking explanations and
descriptions of how the floors are cleaned, how fixtures are stored, how the electric doors are
maintained, and any number of other matters that are completely unrelated to the escalator is
inherently burdensome on Defendant, and does not in any way acquire meaningful information
about the escalator. Defendant’s objection should be sustained.
8. Prior to the Subject Incident, did you provide any warning to Plaintiff that
there was a dangerous condition at the Subject Property? If your answer is “yes”,
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then provide the exact warnings given and the name of the individual that gave
the warnings. If your answer is “no” please state why not. In your answer, please
set forth and describe fully the wording of any prior warnings you provided the
Plaintiff about any dangerous premises condition(s) that you discovered prior to
the incident and the manner or method you used to communicate that warning to
the Plaintiff.
ANSWER: We object to the burden of researching and identifying warnings
throughout the store when there is only one place and instrumentality that is at
issue in this case. As to the escalator, since there was nothing wrong with the
escalator, there was nothing to warn Plaintiff about except for standard
warnings that are offered and which are reflected in the discovery attached.
This is another very clear example of Plaintiff seeking information which could not possibly be
relevant in this case. Defendant identified and explained that as to the instrumentality of the
claimed injury here—the escalator—there was no warning, because there was nothing about
which to warn. But, Plaintiff complains that Defendant does not research and locate and identify
any other aspect of the store, which by definition had nothing to do with this incident, and
explain where there were other conditions about which Defendant warned its patrons. An out of
order sign on the restroom, an outside door which does not function properly so that people are
directed to another door, or a yellow caution sign on top of a spill have no bearing on this
escalator incident. Requiring Defendant to so identify, and research the same, is a ridiculous
burden which could not possibly relate to relevant evidence in this matter. Defendant’s objection
must be sustained.
12. Identify each lawsuit filed against Defendant within the last five (5) years in
which allegations were made that personal injuries resulted from the negligence
of Defendant or any of Defendant’s employees which involved personal injuries
occurring at the Subject Property. As used in this Interrogatory "identify"
includes the cause number, party names, and style.
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ANSWER: Objection. This is overly broad and burdensome and would require
Defendant to exercise tremendous effort at great expense relating to matters that
are not reasonably calculated to lead to admissible evidence at the time of trial.
Plaintiff seeks again five years worth of information about lawsuits in the store, without
reference to the nature of the lawsuit, the nature of any claimed injuries and without any
reference to something that would have a hint of relevance to this claim involving an escalator.
Plaintiff’s request is obviously broad, and overly so, and not calculated to lead to admissible
evidence. Defendant’s objection should be sustained.
14. If, after the Subject Incident, an investigation was made by or on behalf of
Defendant concerning the circumstances of the Subject Incident, please state the
name and address of each person who made such an investigation, whether a
written report of the investigation was furnished to the Defendant, and the
substance of any written reports of the investigation furnished to Defendant. This
request excludes any and all communications by and between you and your
attorney(s).
ANSWER: Objection. This calls for work product information in that it is not
limited to a time prior to the reasonable anticipation of litigation.
Once again, Plaintiff seeks work product information. Defendant has provided the in store
investigation materials conducted prior to the anticipation of litigation. But, now Plaintiff seeks
information about investigations thereafter which of necessity include work product information.
Defendant has provided all of the investigation which is not work product information. Plaintiff is
simply not entitled to a peek inside counsel’s file, which he seems intent upon. Defendant’s
objection should in things sustained.
IV. Conclusion
Clearly and obviously, Plaintiff’s discovery requests and complaints concerning the
responses of Defendant, relate to an improper desire to acquire attorney work product information
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and a desire to acquire information the only apparent purpose of which is to force Defendant to
expend tremendous effort in order to respond to matters which have no bearing on this lawsuit.
The Motion to Compel is not well taken and should in all things be denied.
WHEREFORE, PREMISES CONSIDERED, Defendant, DILLARD TEXAS EAST, LLC,
respectfully prays that this Court, in all things, deny Plaintiff’s Motion to Compel Discovery
Responses, and for such other and further relief to which Defendants might otherwise be justly
entitled.
Respectfully submitted,
THE AKERS FIRM, PLLC
By:
Brock C. Akers
State Bar No. 00953250
3401 Allen Parkway, Suite 101
Houston, Texas 77019
Telephone: (713) 877-2500
Facsimile: 1-713-583-8662
Email - bca@akersfirm.com
ATTORNEY FOR DEFENDANT
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CERTIFICATE OF SERVICE
I hereby certify that a true copy of the foregoing instrument has been served in compliance
with Rules 21 and 21a of the Texas Rules of Civil Procedure on this 31st day of May, 2023.
Brock C. Akers
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Preview
NO. 22 DONNELL BUTLER IN THE DISTRICT COURT OF FORT BEND COUNTY, TEXAS DILLARD’S INC. D/B/A/ DILLARD DEPARTMENT STORES, INC. JUDICIAL DISTRICT DEFENDANT’S RESPONSE TO PLAINTIFF’S MOTION TO COMPEL DISCOVERY RESPONSES TO THE HONORABLE JUDGE OF SAID COURT: COME NOW, Defendants, DILLARD TEXAS EAST, LLC doing business as Dillard’s, improperly named as DILLARD’S, INC. D/B/A DILLARD DEPARTMENT STORES, INC. (hereinafter sometimes referred to as “Dillard’s”), and file this their esponse to Plaintiff’s Motion to Compel Discovery Responses and would show unto the Court as follows: INTRODUCTION This is a trip and fall case. Plaintiff claims that he fell and was injured on an escalator at the Dillard’s Department store where he was shopping. The question in this case will be whether or not there was an unreasonably dangerous condition about which Dillards knew or should have known about which was a proximate cause of Plaintiff’s injuries. Plaintiff has sent to Dillards a set of what appear to be boilerplate discovery, but which seeks work product information in some instances, and in others tailors requests in such a broad manner that the requests are burdensome and unreasonable. Defendant Dillards has filed proper objections to such discovery, and responded to the remainder. The objections should all be sustained. III. Discovery Responses in Dispute Defendant Dillards will go through each of the disputed discovery matters individually, identifying the discovery request and objection, followed by an explanation as to why this Court should sustain the timely objection. The initial matters are out of Plaintiff’s Request for Production, followed by Plaintiff’s Interrogatories. 5. All documents sent or received, or correspondence (including emails) between you (including your attorneys) and any third party, claims adjuster, and/or risk management personnel concerning the Subject Incident. RESPONSE: Objection. This calls for work product information. Plaintiff’s counsel is clearly and obviously actually seeking work product information, asking for correspondence to include correspondence with Defendant’s attorneys. Such an attempt at discovery of work product information is improper, and challenging this objection is frankly shocking. This court must sustain this objection. 6. True and correct copies of each document and tangible thing prepared by an expert who you intend to call to testify at trial. RESPONSE: Objection. Some of defendant's experts may be the Plaintiff's treating or examining physicians. It is an unreasonable burden to require Defendant to provide such information from Plaintiff's own doctors. Plaintiff seeks documents from Defendant which are likely from Plaintiff’s own doctors, over whom Defendant has no control, and with whom Defendant may not even have a conversation because of HIPPA privacy concerns. Yet, such doctors could be called by Defendant at the trial of this case because they would be appropriate experts in this case. It is unreasonable for Defendant to be obligated to gather information from Plaintiff’s doctors. This court should sustain this objection. 2 8. If you performed any investigations into the Subject Incident, produce any documents or reports generated as a result of your investigation. RESPONSE: Objection. This calls for work product information in that it is not limited to a time prior to the reasonable anticipation of litigation. Once again, Plaintiff is apparently consciously seeking work product information. Defendant provided the in store investigation which was accomplished prior to anticipation of litigation, as well as photos and a witness statement. Anything else in Defendant’s possession is work product, and is protected from discovery. This court must sustain this objection. 10. Any letters, memoranda or other documents you provided to third parties relating to the incident. RESPONSE: Objection. This calls for work product information. The only documents, not already produced, which were provided to third parties would of necessity include work product information. Plaintiff is not entitled to Defendant’s work product and this objection must also be sustained. 11. Any and all employee handbooks, manuals, policy guidelines, or any other written documents given to your employees regarding safety issues for the two (2) year period immediately preceding the date of the incident. RESPONSE: Objection. This is overly broad and burdensome and would require Defendant to exercise tremendous effort at great expense relating to matters that are not reasonably calculated to lead to admissible evidence at the time of trial. Plaintiff seeks two years worth of all documentation given to Dillard employees relating to safety. Dillards has hundreds of stores in multiple states. Locating and identifying “any and all” such documents that relate to safety, without regard to location, subject matter, or any relationship at all to this incident is a per se overly broad request, which is burdensome in nature. The effort and expense to Dillards to gather this information would be great, while the likelihood 3 of anything turning up which bears on this very specific incident, which relates to an escalator, is slim at best. Defendant has produced documents relating to inspections of escalators, which is the only thing potentially relevant to this case. Defendant’s objection should in all things be sustained. 15. If your employees routinely investigated the Subject Property for hazardous conditions, and the results of those investigations were recorded in a log, please produce the log for the date of the Subject Incident and each log that was recorded during the thirty (30) day period leading up the date of the Subject Incident. RESPONSE: Objection. This is overly broad and burdensome and would require Defendant to exercise tremendous effort at great expense relating to matters that are not reasonably calculated to lead to admissible evidence at the time of trial. The nature of any department store such as the one involved in this case is that there are many and various places within the store that are evaluated on a regular basis. The loading dock, the back rooms, the changing rooms, the bathrooms, the sales floor in the many different sections of the store, the doorways, which include automatic doors and manual doors—all of these areas of the store are inspected regularly, whether or not there is a log. But none of these areas have anything to do with this incident. Defendant has produced documents relating to inspections of escalators, the only thing potentially relevant to this case. Defendant’s objection should in all things be sustained. 16. Any and all documents, reports, communications, notes, and/or document concerning any other injuries occurring at the Subject Property within the past five (5) years. RESPONSE: Objection. This is overly broad and burdensome and would require Defendant to exercise tremendous effort at great expense relating to matters that are not reasonably calculated to lead to admissible evidence at the time of trial. 4 Plaintiff seeks other incidents at this store for the past five years. There is no limitation to this request as to the nature of the incident, the location of the incident, the manner in which the incident occurred. To evaluate whether such a request is properly tailored, the court should consider the instrumentality of injury and the potential of relevance of similar conditions. Dillard Dept. Stores, Inc. v. Hall,_ 909 S.W.2d 491, 492 (Tex. 1995); K Mart Corp. v. Sanderson, 937 S.W.2d 429, 431 (Tex. 1996); In re HEB Grocery Co., L.P., 375 S.W.3d 497, 502 (Tex. App.--Houston [14th Dist.] 2012, no pet.). There is no basis for five years worth of incidents, as there is no basis for incidents that do not involve an escalator. Plaintiff’s request is clearly and obviously overly broad, and Defendant’s objection should be sustained. 17. If you contend that that the injuries that Plaintiff seeks compensation for in this lawsuit were caused in whole or in part to any other pre-existing injury or accident, please produce all documents in your possession that support this contention. RESPONSE: Objection. This discovery places an unreasonable burden on Defendant, requiring more than that which is permitted in the Rules of Procedure regarding proper discovery. This discovery is premature in that it is impossible for Defendant to know if or when Plaintiff makes a complaint or claims a condition that is in truth pre-existing, or caused by some other occurrence, disease or condition, since the full extent of Plaintiff’s damages and course of treatment are not known and will not be known until Plaintiff testifies at the trial of this case. Until then, Defendant will never be able to respond as to whether Plaintiff has made claims which relate to conditions or complaints unrelated to the accident made the basis of this suit, and asking Defendant to answer that which is not capable of a complete answer is an impermissible burden on Defendant. Plaintiff complains of Defendant’s inability to respond at this time as to whether or not a claim is to be made that is really from a pre-existing injury. As well explained in the objection itself, the ability of Defendant to so respond is impossible until such a claim has been made, and Defendant 5 does not fully know what claims are going to be made until Plaintiff is testifying to the jury in this case. The request is highly premature. Plaintiff has refused to produce the Plaintiff for deposition until these discovery matters are resolved. Defendant can hardly respond to this discovery until at a minimum the Plaintiff’s deposition has occurred, and then Defendant cannot be sure what will be said by Plaintiff until the actual trial of this case. Defendant’s objection should be sustained. 19. Any and all maintenance and/or service documents relating to the escalator at issue in the instant litigation from five (5) years before the Subject Incident to present. This request includes, but is not limited to, all maintenance and/or service requests, reports, and invoices for work performed on the subject escalator. RESPONSE: Objection. This is overly broad and burdensome and would require Defendant to exercise tremendous effort at great expense relating to matters that are not reasonably calculated to lead to admissible evidence at the time of trial. Defendant acknowledges that the general subject matter of this request seeks relevant information concerning this case. However, five years worth of documentation relating to the escalator is inherently over broad and could not possibly be calculated to lead to admissible evidence. A problem with the escalator, repaired five years before this incident, could not possibly bear on this incident. A reasonable limitation concerning these repairs is necessary. As is, Plaintiff’s request is overly broad and Defendant’s objection should be sustained. 6. Please state generally each factor which you now contend or will contend caused or contributed to the Plaintiff’s damages including, but not limited to, pre- existing or subsequently existing physical or medical condition or conditions. ANSWER: Objection. This discovery places an unreasonable burden on Defendant, requiring more than that which is permitted in the Rules of Procedure regarding proper discovery. This discovery is premature in that it is impossible for Defendant to know if or when Plaintiff makes a complaint or claims a condition that is in truth pre-existing, or caused by some other occurrence, disease or condition, since the full extent of Plaintiff’s damages and course of treatment are not known and will not be known until Plaintiff testifies at the trial 6 of this case. Until then, Defendant will never be able to respond as to whether Plaintiff has made claims which relate to conditions or complaints unrelated to the accident made the basis of this suit, and asking Defendant to answer that which is not capable of a complete answer is an impermissible burden on Defendant. Like the response to Request for Production 17, Defendant is not able to fully respond to this interrogatory because Plaintiff has not yet testified. It is unclear what Plaintiff’s claims will be relating to injuries in this case. Therefore, it is impossible for Defendant to identify those claims to be made, not yet made, which might actually be the result of a pre-existing condition. The interrogatory is simply premature, and indeed until Plaintiff testifies at trial, Defendant may never know whether Plaintiff will testify as to physical conditions extraneous to the incident made the basis of this suit. Defendant’s objection should be sustained. 7. Please describe any prescribed cleaning, repair, storage, maintenance, and/or safety plans, programs, or protocols that were in effect on the date of the Subject Incident in regard to the Subject Property. ANSWER: Objection. This is overly broad and burdensome and would require Defendant to exercise tremendous effort at great expense relating to matters that are not reasonably calculated to lead to admissible evidence at the time of trial. Plaintiff seeks matters that are wildly beyond anything that could be relevant in this case. This is a case involving a very specific instrumentality—the escalator. Seeking explanations and descriptions of how the floors are cleaned, how fixtures are stored, how the electric doors are maintained, and any number of other matters that are completely unrelated to the escalator is inherently burdensome on Defendant, and does not in any way acquire meaningful information about the escalator. Defendant’s objection should be sustained. 8. Prior to the Subject Incident, did you provide any warning to Plaintiff that there was a dangerous condition at the Subject Property? If your answer is “yes”, 7 then provide the exact warnings given and the name of the individual that gave the warnings. If your answer is “no” please state why not. In your answer, please set forth and describe fully the wording of any prior warnings you provided the Plaintiff about any dangerous premises condition(s) that you discovered prior to the incident and the manner or method you used to communicate that warning to the Plaintiff. ANSWER: We object to the burden of researching and identifying warnings throughout the store when there is only one place and instrumentality that is at issue in this case. As to the escalator, since there was nothing wrong with the escalator, there was nothing to warn Plaintiff about except for standard warnings that are offered and which are reflected in the discovery attached. This is another very clear example of Plaintiff seeking information which could not possibly be relevant in this case. Defendant identified and explained that as to the instrumentality of the claimed injury here—the escalator—there was no warning, because there was nothing about which to warn. But, Plaintiff complains that Defendant does not research and locate and identify any other aspect of the store, which by definition had nothing to do with this incident, and explain where there were other conditions about which Defendant warned its patrons. An out of order sign on the restroom, an outside door which does not function properly so that people are directed to another door, or a yellow caution sign on top of a spill have no bearing on this escalator incident. Requiring Defendant to so identify, and research the same, is a ridiculous burden which could not possibly relate to relevant evidence in this matter. Defendant’s objection must be sustained. 12. Identify each lawsuit filed against Defendant within the last five (5) years in which allegations were made that personal injuries resulted from the negligence of Defendant or any of Defendant’s employees which involved personal injuries occurring at the Subject Property. As used in this Interrogatory "identify" includes the cause number, party names, and style. 8 ANSWER: Objection. This is overly broad and burdensome and would require Defendant to exercise tremendous effort at great expense relating to matters that are not reasonably calculated to lead to admissible evidence at the time of trial. Plaintiff seeks again five years worth of information about lawsuits in the store, without reference to the nature of the lawsuit, the nature of any claimed injuries and without any reference to something that would have a hint of relevance to this claim involving an escalator. Plaintiff’s request is obviously broad, and overly so, and not calculated to lead to admissible evidence. Defendant’s objection should be sustained. 14. If, after the Subject Incident, an investigation was made by or on behalf of Defendant concerning the circumstances of the Subject Incident, please state the name and address of each person who made such an investigation, whether a written report of the investigation was furnished to the Defendant, and the substance of any written reports of the investigation furnished to Defendant. This request excludes any and all communications by and between you and your attorney(s). ANSWER: Objection. This calls for work product information in that it is not limited to a time prior to the reasonable anticipation of litigation. Once again, Plaintiff seeks work product information. Defendant has provided the in store investigation materials conducted prior to the anticipation of litigation. But, now Plaintiff seeks information about investigations thereafter which of necessity include work product information. Defendant has provided all of the investigation which is not work product information. Plaintiff is simply not entitled to a peek inside counsel’s file, which he seems intent upon. Defendant’s objection should in things sustained. IV. Conclusion Clearly and obviously, Plaintiff’s discovery requests and complaints concerning the responses of Defendant, relate to an improper desire to acquire attorney work product information 9 and a desire to acquire information the only apparent purpose of which is to force Defendant to expend tremendous effort in order to respond to matters which have no bearing on this lawsuit. The Motion to Compel is not well taken and should in all things be denied. WHEREFORE, PREMISES CONSIDERED, Defendant, DILLARD TEXAS EAST, LLC, respectfully prays that this Court, in all things, deny Plaintiff’s Motion to Compel Discovery Responses, and for such other and further relief to which Defendants might otherwise be justly entitled. Respectfully submitted, THE AKERS FIRM, PLLC By: Brock C. Akers State Bar No. 00953250 3401 Allen Parkway, Suite 101 Houston, Texas 77019 Telephone: (713) 877-2500 Facsimile: 1-713-583-8662 Email - bca@akersfirm.com ATTORNEY FOR DEFENDANT 10 CERTIFICATE OF SERVICE I hereby certify that a true copy of the foregoing instrument has been served in compliance with Rules 21 and 21a of the Texas Rules of Civil Procedure on this 31st day of May, 2023. Brock C. Akers 11