Wohl v. Vail Resorts Inc.Wohl v. Vail Resorts Inc.
Plaintiff seeks to compel Defendants’ responses to a document demand and certain deposition questions, and to produce an additional individual for deposition (the “Motion
I. BACKGROUND
On October 13, 2023, Plaintiff commenced this action by filing a Complaint alleging that he was injured when he fell while skiing and struck a wooden barrier at Hunter Mountain. Dkt. No. 1. On September 20, 2024, Defendants moved for summary judgment, Dkt. No. 22, which was denied on September 15, 2025. Dkt. No. 39. On March 11, 2026, Plaintiff moved for summary judgment. Dkt. Nо. 47. That motion is currently pending. On May 14, 2026, Plaintiff “request[ed] a discovery conference to address three (3) discrete discovery disputes that the parties have been unable to resolve.” Dkt. No. 57. The Court held a discovery conference on May 29, 2026. Dkt. Nos. 58 & 60.
II. DISCUSSION
A. Prior Accident Reports
Plaintiff seeks production of prior accident reports. Dkt. No. 61 at pp. 7-8. At the conference, “[o]n consent, the time period for the demand for prior accident reports [wa]s limited to the period from when Defendant purchased Hunter Mountain,” Dkt. No. 60, but Defendants continued to object to production of this evidence despite the temporal limitation.1 Dkt. No. 62 at pp. 1-4. Plaintiff notes that “[t]his is a fencing-collision case”
In response, Defendants argue that “the only evidence relevant to whether the fеnce at issue posed an unreasonable danger is evidence that speaks directly to the condition, placement, and characteristics of th[e] specific fence [that Plaintiff collided with] in its specific location,” such that “[o]nly incidents involving the object in question can prove whether that specific object—as opposed to objects in gеneral—created a risk above and beyond the inherent risks of skiing.” Dkt. No. 62 at p. 2.
“The scope of discovery is set forth in Rule 26 of the Federal Rules of Civil Procedure.” Twin Bridges Waste & Recycling, LLC v. Cnty. Waste & Recycling Serv., Inc., 2022 WL 5240584, at *2 (N.D.N.Y. Oct. 6, 2022). “That Rule has been amended, on several occasions, to reflect evolving judgments as to its proper ambit, and to create a balance between the need for evidence and the avoidanсe of undue burden or expense.” Id. “The touchstone of the scope of discovery is relevance; discovery sought must in the first instance be relevant to a party‘s claim or defense.” Id. (quotation omitted). “Rule 26 now defines the scope of discovery to consist of information that is relevant to a ‘claim or defense’ of the parties and that is ‘proportional to the needs of the case.‘” Id. (quoting
Defendants additionally argue that the request should be denied because any relevance of these documents “is overwhelmed by the proportionality limits of Rule 26.” Dkt. No. 62 at p. 3. Specifically, Defendants provide a declaration from their Director, Senior Litigation Counsel, Kristen Davey, indicating that, “[t]o search for documentation of collisions involving fences at Hunter Mountain dating back to 2019 (the year Vail Resorts acquired Hunter Mountain), [she] would be rеquired to manually review approximately five bankers’ boxes of incident report cards” that are “index-card-sized forms documenting every instance in which a guest requested or otherwise required care from Ski Patrol, ranging from minor cuts and scrapes or altitude sickness to serious skiing and riding injuries.” Dkt. No. 62-1 at ¶¶ 1-2. The Court does not, however, find that this information impacts its ruling. Courts have rejectеd arguments that the amount of
The Court grounds its findings on the fact that the information sought is not—based on the information presented by Plaintiff—relevant and so rejects Plaintiff‘s request to compel Defendants to produce prior accident reports.
B. Privilege
Plaintiff asks the Court to overrule objections lоdged by Defendants during Kristin Benjamin‘s deposition on April 9, 2026. Dkt. No. 61 at p. 1. The questions Plaintiff states were blocked include:
[w]hether the contributing factors of the accident were discussed at the post-incident review; [w]hether future prevention measures or future risk mitigation were discussed; [w]hether the periodic and slope-safety reviews
described in Section 7.2 of Vail‘s Risk Resource Guide werе discussed; and whether, since December 2022, the wooden fences at Hunter Mountain had been the subject of any review.
Id. at p. 2 (citing Dkt. No. 61-2 at pp. 87-88 & 91-94). In response, Defendants contend that testimony concerning Ms. Benjamin‘s “verbal communications with . . . in-house litigation counsel made during a post-incident review” conducted following Plaintiff‘s injury are attorney-client privilege. Dkt. No. 62 at p. 4 (citing Dkt. No. 62-3 at pp. 49-51, 71-73, 77, 81-83, 87-88, 91-92); see also Dkt. No. 61 at p. 1. In support of this argument, Defendants filed a declaration from Defendants’ Director, Senior Litigation Counsel, Casady Pickar, who “participated in the post-incident review meeting for the incident involving Plaintiff.” Dkt. No. 62-2 at ¶ 3.
“A party invoking the attorney-client privilege must show (1) a communication between client and counsel that (2) was intended to be and was in fact kept сonfidential, and (3) was made for the purpose of obtaining or providing legal advice.” In re Cnty. of Erie, 473 F.3d 413, 419 (2d Cir. 2007) (citation omitted). Issues may arise with respect to the third consideration “in the context of communications to and from corporate in-house lawyers who also serve as business executives.” Id. (citing cases). “[T]he question usually is whether the communication was generated for the purpose of obtaining or providing legal advice as opposed to business advice.” Id. (citation omitted). In making this determination, courts “consider whether the predominant purpose of the communication is to render or solicit legal advice.” Id. (citing cases).
Here, insofar as Plaintiff filed a copy of Defendants’ “Incident Response Handbook,” Dkt. No. 61-1, and point to it as evidencing that the meeting serves “a multi-
Defendants have made that showing here. Ms. Pickar‘s declaration makes clear that her presence at the meeting “depended principally on . . . her knowledge of and application of legal requirements and principles, rather than . . . her expertise in business or commercial matters,” and involved her both “allud[ing] to legal principles” and “engag[ing] in a legal analysis.” Vidal v. Metro-N. Commuter Ry. Co., 2014 WL 413952, at *5 (D. Conn. Feb. 4, 2014). Specifically, she explained in her declaration that the purpose of post-incident review meetings are for her to be “provide[d] . . . with information about the subject incident” and be presented with “a draft version of the incident investigation report” so that she “can provide legal advice concerning incident
That the meeting agenda also involved, in addition to “[l]egal analysis,” “[f]uture risk mitigation” and an “[a]nalysis of contributing factors,” Dkt. No. 61-1 at p. 3, does not change this analysis. “Fundamentally, legal advice involves the interpretation and application of legal principles to guide future conduct or to assess past conduct.” In re Cnty. of Erie, 473 F.3d at 419 (citation omitted).
Separately, Plaintiff asserts that Defendants failed to сomply with the portion of the Court‘s text order stating that “any party seeking to assert an attorney client/work product privilege shall submit to the Court a complete privilege log, with a copy to opposing counsel.” Dkt. No. 63 (quoting Dkt. No. 60). Defendants respond that submission of “[a] traditional log,” which “is designed for discrete documents,” is not necessary and would “require parsing the discussiоn into artificial entries.” Dkt. No. 64. Given that “the communications sought to be protected appear to be oral communications that are not memorialized in documents,” they “may not be subject to the requirement to produce a formal privilege log.” Walker v. United States, 2021 WL 4988151, at *4 (E.D.N.Y. Aug. 10, 2021).
Finally, Plaintiff seeks the deposition of Defendants’ “Director of Health & Safety.” Dkt. No. 61 at p. 3. On February 24, 2026, Plaintiff served a Notice of Deposition for Charles Firth, the Director of Health & Safety for Vail Resorts. Id.; Dkt. No. 61-3. Plaintiff claims Defendants advised that Mr. Firth was newly employed and did not hold his position on the date of the accident, and Plaintiff thereafter “ask[ed] for production of the person who did hold the position of Director of Health & Safety for Vail Resorts at the time of the accident, or in the alternative, tо identify that person and provide their last known address.” Dkt. No. 61 at p. 3. Plaintiff asserts that it repeatedly followed up with Defendants about this request and, “on May 6, 2026, for the very first time, defense counsel objected to the deposition, stating ‘this request appears aimed at obtaining a second deposition of a corporate representative without leave of cоurt as required.‘” Id. (quoting Dkt. No. 61-4 at p. 2); see also Dkt. Nos. 61-5 & 62-4 (Rule 30(b)(6) Notice to Take Deposition of Defendants by Their Designee).
Plaintiff responds that it “is not seeking a second Rule 30(b)(6) deposition.” Dkt. No. 61 at p. 3. Instead, Plaintiff insists that it “seeks the fact deposition of an individually identified witness who has personal knowledge of Vail‘s health-and-safety policies, its post-incident review processes . . . , and who is independently identified in those policies as a participant in post-incident safety reviews.” Id. Further, Plaintiff maintains that it is “entitled to question . . . about the safety issues at the heart of this case — the design, placement, inspection, maintenance, and padding of the wooden fence; Vail‘s policies for
Notwithstanding Plaintiff‘s attempts to distinguish the issues for which Plaintiff seeks to depose the Director of Health & Safety, it is apparent that they pertain to the same matters that were encapsulated in the topics included in Plaintiff‘s Rule 30(b)(6) Notice. Dkt. Nos. 61-5 & 62-4; see, e.g., Live Face On Web, LLC v. BF Advance, LLC, 2017 WL 11373380, at *2 (E.D.N.Y. Dec. 12, 2017). Defendants designated William Rod as their Rule 30(b)(6) witness to testify on Defendants’ behalf as to these topics. See generally Dkt. No. 61-6. Mr. Rod‘s responses are binding on Defendants. See Keepers, Inc. v. City of Milford, 807 F.3d 24, 34 (2d Cir. 2015); Dongguk Univ. v. Yale Univ., 270 F.R.D. 70, 74 (D. Conn. 2010). Any further discovery of these topics would be “unreasonably cumulative or duplicative” and so must be limited by the Court. Beverley v. New York City Health & Hosps. Corp., 2024 WL 2125402, at *8 (S.D.N.Y. May 13, 2024) (citing
To the extent that Plaintiff contends that Mr. Rod laсked adequate knowledge of the topics noticed for his deposition, see Dkt. No. 61 at p. 5, the Court draws attention to the fact that Mr. Rod was deposed on December 3, 2025. Dkt. No. 61-6 at p. 1. To the Court‘s knowledge, this is the first time that Plaintiff has raised issue with Mr. Rod‘s testimony. In fact, this problem was not even raised at the May 29 discovery conference.
In any event, Plaintiff has not shown that Mr. Rod was unprepared at his deposition. Much of Plaintiff‘s disdain does not appear to be the result of Mr. Rod lacking knowledge of or preparation for the topics noticed. For example, Plaintiff states:
His Vail orientation was “nothing specific to patrol” ([Dkt. No. 61-6] 21:10–11), and the slope-safety course did not cover “padding or impact mitigation devices” (id. 26:10–12). No documentation states how trail boundaries should be established — “No, there is not” (id. 88:5–7) — and the trail maps “do nоt” show what is on-trail versus off-trail (id. 90:15–22). On the date of the accident, the wooden fence was “not padded in any way.” (Id. 281:17–21.)
Dkt. No. 61 at p. 7. Similarly, Plaintiff emphasizes Mr. Rod‘s testimony that “‘individual fences are not recorded,‘” he was not “aware of . . . records of repairs, design, or purchase of materials for the fence,” “he has no construction experience,” and he did not receive “training on padding.” Id. at p. 6 (quoting Dkt. No. 61-6 at 219:16-220:3). Rather than
Plaintiff also remarks that “Mr. Rod testified he conducted no search for fence documents before the deposition.” Id. at pp. 6-7. Similarly, Plaintiff draws attention to the fact that “[o]n prior incidents . . . , Mr. Rod confirmed he did not search.” Id. at p. 6. However, a review of the portions of the transcript provided by Plaintiff shows that Mr. Rod was able to and did answer most of the questions posed to him about the topics at issue. See generally Dkt. No. 61-6. That a witness “did not prepare by reviewing documents . . . does not mean that he was unable to fulfill [defendants‘] obligation to provide a sufficiently knowledgeable witness to provide binding answers on [their] behalf” where the witness has “personal knowledge” of such information. Holden v. Port Auth. of New York & New Jersey, 2018 WL 11222516, at *1 (S.D.N.Y. Dec. 12, 2018). In fact, while not provided in full, the portions of the deposition transcript that were filed contain a statement by Defendants’ counsel that “Mr. Rod, I think, is trying to tell you that he has looked through whatever documents that may exist.” Dkt. No. 61-6 at 48:23-25. Plaintiff itself acknоwledges that Mr. Rod was able to answer Plaintiff‘s questions and “confirmed that skiers colliding with fences at Hunter Mountain has occurred with regularity.” Dkt. No. 61 at p. 6. As to any questions that Mr. Rod did not know the answer to, see, e.g., id. (stating that Mr. Rod testified that he did not know “when the fence was installed” and “when it was last repaired“), where “the deponent answers on behalf of the organization that it cannot remember a certain fact, that inability to remember is imputed to the organization but does not invalidate the deposition.” Fashion Exch. LLC v. Hybrid Promotions, LLC, 2019 WL 1533212, at *1 (S.D.N.Y. Apr. 9, 2019) (citations omitted).
The Court, therefore, denies Plaintiff‘s request to depose Defendants’ Director of Health & Safety.
III. CONCLUSION
ACCORDINGLY, for the reasons stated herein, it is hereby
ORDERED, that Plaintiff‘s Motion to Compel (Dkt. No. 61) is DENIED; and it is further
ORDERED, that the Clerk of the Court serve a copy of this Memorandum-Decision and Order upon the parties to this action.
Dated: August 5, 2026
Albany, New York
Daniel J. Stewart
U.S. Magistrate Judge