LANNY KING, Magistrate Judge.
Senior Judge Thomas B. Russell referred this matter to Magistrate Judge Lanny King for ruling on all discovery motions. (Docket #23). Plaintiffs J.B. Burrell, Jr. and Marie Burrell (hereinafter "Burrells") filed a Motion to Compel certain discovery from Defendants Lindy W. Duhon, Lindy Duhon Trucking, LLC (hereinafter "Duhon"), Forward Air Inc., Forward Air Corporation, FAF, Inc. (TN), Forward Air Services, LLC, Forward Air Solutions, Inc., and Forward Air Technology and Logistics Services, Inc. (collectively "Forward Air Defendants"). (Docket #33). The Forward Air Defendants filed a Response in opposition and the Burrells filed their reply. (Docket #34, Docket #35). Fully briefed, this matter is now ripe for adjudication. For the reasons detailed below, the Plaintiffs' Motion to Compel is GRANTED in part and DENIED in part. (Docket #33).
This matter arises from an action for personal injury by Plaintiffs, team truck drivers, who were traveling on Interstate 24 in Marshall County, Kentucky on September 30, 2017 at around 2:00 a.m. Defendants' tractor-trailer, operated by Mr. Duhon, had overturned onto its side and was stationary, having come to rest in the middle of the road. The front of the vehicle was facing backward toward oncoming traffic, with the underside facing eastward. Plaintiff J.B. Burrell, driving his own tractor-trailer, came upon the Defendants' a few minutes later and collided with the overturned vehicle. Plaintiffs J.B. Burrell and Marie Burrell were both injured in the collision. On August 24, 2018, the Plaintiffs filed their lawsuit in Marshall Circuit Court, where it was subsequently removed to this Court. (Docket #1-4).
Plaintiffs assert six separate claims against Duhon and the Forward Air Defendants: (1) negligence; (2) negligence per se; (3) strict liability; (4) vicarious liability; (5) negligent hiring, retention, and training; and (6) gross negligence. (Docket #1-4 at 10-14; Docket #33 at 3). In bringing these claims, the Plaintiffs seek to clarify the relationship between Duhon and the Forward Air Defendants. Additionally, Plaintiffs state that they seek to place the fitness of Defendant Duhon into question, as well as the leasing practices between Duhon and the Forward Air Defendants. (Docket #33 at 4-6).
On November 9, 2018, Plaintiffs served their first set of discovery requests upon the Defendants. (Docket #33 at 2). Given the number of Defendants, a total of eighteen sets of requests were served by Plaintiffs. (Docket #34 at 2). Defendants served their discovery responses and objections on January 2, 2019. (Docket #33 at 2). Following discussions between the parties, Judge King held a telephonic status conference on January 25, 2019 to attempt to resolve the outstanding discovery disputes. (
Under Rule 26(b)(1) of the Federal Rules of Civil Procedure, "[p]arties may obtain discovery regarding any nonprivileged matter that is relevant to any party's claim or defense ...." FED. R. CIV. P. 26(b)(1). Relevance is to be "construed broadly to encompass any matter that bears on, or that reasonably could lead to other matter that could bear on" any party's claim or defense.
A Plaintiff may not be permitted to "go fishing" through discovery requests that are "too broad and oppressive."
Federal Rule of Civil Procedure 33 governs interrogatories while Rule 34 governs requests to produce. Rule 33(b)(3) requires the responding party to answer each interrogatory "to the extent it is not objected to." FED. R. CIV. P. 33(b)(3). Similarly, Rule 34(b)(2)(B) requires a response to a document request to "either state that inspection and related activities will be permitted as requested or state an objection to the request, including the reasons," and Rule 34(b)(2)(C) requires" [a]n objection to part of a document [request] must specify the part and permit inspection of the rest." FED. R. CIV. P. 34(b)(2)(B), (C). Federal Rules of Civil Procedure 33 and 34 are structured such that, in combination with Rule 26(g)(1), both the requesting party and the court may be assured that all responsive, non-privileged materials are being produced, except to the extent a valid objection has been made.
If a party fails to answer an interrogatory submitted under Rule 33 or a request to produce submitted under Rule 34, the discovering party may move for an order compelling an answer, or a designation, or an order compelling inspection in accordance with the request. FED. R. CIV. P. 37(a)(2)(B). Pursuant to Rule 37 of the Federal Rules of Civil Procedure, "a party may move for an order compelling disclosure or discovery," provided that the party certifies to the Court that it 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(a)(1); see
Rule 33 of the Federal Rules of Civil Procedure sets forth the process of discovery via use of interrogatories. Interrogatories may "relate to any matter that may be inquired to under Rule 26(b). FED. R. CIV. P. 33(a)(2). "Each interrogatory must, to the extent it is not objected to, be answered separately and fully in writing and under oath." FED. R. CIV. P.33(b)(3). "A party to whom an interrogatory is propounded `must provide true, explicit, responsive, complete, and candid answers.'"
Plaintiffs request Defendants identify all payments and details surrounding those payments to the Duhons in 2015, 2016, and 2017, leading up to the incident on September 30, 2017. Defendants object to this interrogatory on grounds of undue burden, relevance, and proportionality. (Docket #34-2 at 5). Over their objection, Defendants assert that the Duhons were independent contractors compensated pursuant to the terms of their contracts.
Defendants argue that they have provided detailed documentation to Plaintiff on the specific amount of driving Defendant Duhon performed in the ten-day period prior to the accident. They further argue that the specifics of Duhon's financial situation, particularly as relates to his ability to pay his lease via his work for the Forward Air Defendants, is not relevant. Plaintiffs seek to show a principal agent relationship between the Defendants to establish vicarious liability.
The Court agrees that the payments from the Forward Air Defendants to Defendant Duhon are relevant to this litigation and should be produced. The Forward Air Defendants admit that Defendant Duhon was an independent contractor in their employ at the time of the accident. This relationship is relevant to the litigation at issue. In attempting to prove liability, Plaintiffs seek to show that the Forward Air Defendants were vicariously liable for the actions of their agent/employee, Defendant Duhon, at the time of this accident. They also seek to show a failure of supervision and training by Forward Air with respect to its agent/employee, Defendant Duhon. The method by which Defendant Duhon was paid is one factor that can be considered in establishing a relationship that shows vicarious liability.
However, Loretta Duhon's financial information is not relevant to this case and not within the scope of discovery. Loretta Duhon is not a named party in this suit, nor was she driving the vehicle at the time of this collision. Additionally, the Defendants' point regarding the Plaintiffs' requests for financial information to verify the sufficiency of his finances to meet his tractor-trailer lease obligations is well-taken.
For these reasons, Plaintiffs' Motion to Compel a response to Interrogatory No. 5 is GRANTED as to Lindy Duhon and Lindy Duhon Trucking, LLC. Plaintiff's Motion to Compel a response to Interrogatory No. 5 is DENIED as to third-party Loretta M. Duhon.
Plaintiffs seek disclosure of all violations of the Federal Motor Carrier Safety Regulations ("FMCSR") by Defendants. Defendants object based on lack of relevance, as well as disproportionality. (Docket #34 at 7-8). Over his objection, Defendant Duhon volunteered that he was not assessed any FMCSR violations stemming from the accident on September 30, 2017. (Docket #33 at 6-7). At the telephonic status conference on February 1, 2019, Plaintiff's counsel offered to narrow the scope of this interrogatory to only include violations of the following regulations from 2012 to 2018:
(Docket #33 at 7).
"The majority interpretation of Rule 33 requires that a corporation furnish such information as is available from the corporation itself or from sources under its control."
The Defendants are obligated to produce information within their knowledge or control if requested in discovery and such requested information relevant. Plaintiffs have brought causes of action that implicate the fitness for duty of individuals in the Defendants' employ. The practices of the Defendants in qualifying their drivers for duty is relevant to this case. If a pattern of sending out disqualified drivers or drivers in sub-optimal health conditions exist, it may tend to prove or disprove the claims of the Plaintiffs. The Defendants do not dispute that this information is within their possession, they state only that it would take "hundreds of manhours" to comply with this request. (Docket #34 at 7-8.). The Defendants may indeed have a complex corporate structure that necessitates onerous recordkeeping. However, this information is within the custody and control of the Defendants and is relevant to this litigation. Once relevance has been established, the burden is on the responsive party to prove a lack of relevance, or a disproportionate harm from the production. Bentley, 2016 WL 762686 at *1. Defendants have done neither here.
Plaintiffs' Motion to Compel a response to Interrogatory No. 8 is GRANTED.
Plaintiffs request disclosure of all lawsuits since 2000 in which Defendants were named as a party. The Forward Air Defendants object to this interrogatory, citing relevance, proportionality, and undue burden. (Docket #34 at 8-9). Plaintiffs subsequently modified their request to only include "personal injury and/or property damage lawsuits involving collisions of Forward Air commercial vehicles from and after 2000 to the present. (Docket #35 at 3).
Plaintiffs argue that identification of Defendants' previous participation in lawsuits will "help us determine if there is a pattern of negligence, repetitive operational deficiencies, or systemic neglect that amounts to willful or wanton misconduct, to justify a claim for punitive damages." (Docket #33 at 7-8). Alternatively, the Plaintiffs argue that past litigation may uncover arguments relating to collateral estoppel, issue preclusion, and/or res judicata. (
The Court finds that the Defendants' objections to Interrogatory No. 9 are without merit. Information regarding prior personal injury and property damage lawsuits involving Defendants' commercial vehicles are relevant. Federal district courts have previously found that prior complaints, claims, and lawsuits of similar incidents may not be admissible as evidence at trial, but they are relevant and discoverable, regardless of their potential inadmissibility.
Accordingly, Plaintiff's Motion to Compel a response to Interrogatory No. 9 is GRANTED.
Interrogatory No. 13 seeks the names of persons and entities who loaded, unloaded, and secured the cargo on Defendant Duhon's vehicle on the date of the accident, as well as the shippers and consignees of the cargo. Defendants state that they have provided information responsive to this interrogatory and that they cannot produce information that they do not have. (Docket #34 at 9).
A party cannot be compelled to produce information that it does not possess.
However, Plaintiffs are entitled to a supplemental sworn statement from the Defendants affirming the lack of possession or nonexistence of these documents. Defendants must supplement their responses with a statement that they do not have any further responsive documents to this interrogatory.
Accordingly, Plaintiffs Motion to Compel further information pursuant to Interrogatory No. 13 is GRANTED in part and DENIED in part.
This interrogatory seeks production of all investigations, inspections, audits, compliance reviews, and/or inquiries by the FMCSA, DOT, NTSB, or Public Utilities Commission of any state, involving Defendants. Plaintiffs modified the interrogatory to seek disclosure of "what reviews, audits, investigations, or remedial actions were taken pursuant to 49 C.F.R. § 385 for the past 10 years" (Docket #35 at 4). Defendants objected, based on relevance, proportionality, and undue burden. (Docket #34 at 9-10).
The Court concludes that interrogatory is much too broad in scope. Plaintiffs allegations are based on the belief that Defendant Duhon was not fit to drive at the time of the accident, and that the Forward Air Defendants failed to properly train and supervise him, resulting in the accident. (Docket #1-4 at 13). The Federal Motor Carrier Safety Regulations cited by Plaintiff in their interrogatory cover a wide range of topics covering areas from supervision of mechanical fitness of equipment to transportation of hazardous materials, to use of unqualified drivers, all of which goes into the calculation of a safety rating.
This Court has addressed this situation before, finding that a request "to produce all citations charges, payments, and other documents concerning any investigation of [defendant] by the Federal Motor Carrier Safety Administration" in the prior four years, whether open or closed, was "much too broad in scope."
This Court agrees. As drafted, this interrogatory is far too broad in scope. Plaintiff may be entitled to information that more directly relates to their claims, but not all the information in these investigative documents fits that description. In their Motion to Compel, Plaintiffs state "[e]ssentially, we have asked for Forward Air to identify any efforts that were undertaken in compliance with [49 C.F.R. § 385.3(3)] for the past ten years." (Docket #33 at 8). Their Interrogatory was not phrased in this way, nor did they clarify that this specific provision classifies the specific compliance information sought. Plaintiffs may not ask for a broad category of documents with no guidance given on the actual information sought. In its current form, the interrogatory provides no specific guidance for the responding party and is not drafted in a way that requests relevant information.
For these reasons, Plaintiff's Motion to Compel a response to Interrogatory No. 15 is DENIED.
Plaintiffs seek the identities of Defendant Forward Air's employees primarily responsible for compliance with the Federal Motor Carrier Safety Act (FMCSA). Defendants objected on grounds of relevance, proportionality, and to the extent the interrogatory sought legal opinions, analysis, or conclusions. (Docket #34 at 10).
The Court finds that this information is relevant and proportional to the needs of the case and is discoverable. Plaintiffs' suit alleges that Defendants failed to properly maintain adequate safety procedures in their conduct at the time of the accident. (Docket #1-4 at 14). The employees who had knowledge of Defendants' safety procedures will have relevant information about Defendants' compliance with those procedures, as well as their compliance with federal safety standards. Further, courts in the Sixth Circuit have found that production of these lists of employees is not unduly burdensome under the Federal Rules. See
For these reasons, Plaintiff's Motion to Compel a response to Interrogatory No. 16 is GRANTED.
These interrogatories ask Defendants to identify and provide information regarding the persons and entities that assisted with or participated in the conduct of Defendants' business dealings within the past five years. Defendant objects to these interrogatories based on relevance, proportionality, and undue burden. (Docket #34 at 11-12). Defendant also objects to Interrogatory No. 20 on the basis that it seeks legal opinions or analysis, but states over its objection that it has done business with all the Defendants except FAF, Inc (OH) and that of the nineteen (19) named Defendants, only Lindy Duhon and FAF, Inc. have any involvement with or relationship to the subject accident. (
Plaintiffs argue that this information is necessary to ascertain the nature of the relationships between the Forward Air Defendants, and, their actions in maintaining FAF, Inc.'s status as an authorized carrier under the FMCSA. (Docket #33 at 9-10). Plaintiff also seeks this information to illuminate the details of the interconnectedness of the Forward Air Defendants, particularly if they "have actually observed their professed corporate relationships, or whether they are subject to the criteria for piercing their corporate veils." (
It is important to keep in mind that information subject to disclosure during discovery need not be directly tied to the merits of the claims or defenses of the parties. Information sought may concern the fact-oriented issues arising in connection with the case.
Plaintiffs state that "the extent of corporate formalities observed by the Forward Air Defendants remains an open question." (Docket #33 at 9). They go on to reference the possible need for "piercing their corporate veils." (
Plaintiffs state "We know that Defendants Forward Air, Inc. and FAF, Inc. "are both direct wholly-owned subsidiaries of Forward Air Corporation and themselves `sister companies.' Forward Air arranges all of the transportation of less than truckload shipments undertaken by FAF, Inc." (Docket #35 at 4-5 (internal citations omitted)).
It is not readily apparent why the information sought in Interrogatory No. 17 is relevant to Plaintiffs' claims. To allow extremely broad discovery of the interrelationship between corporations based on nothing more than tort claims, seems disproportionate to the needs of the case at hand. Plaintiff has not made strong arguments analyzing the applicability of the factors needed to pierce the corporate veil, nor do they argue that the parties acted as alter egos for one another, nor do they allege fraud. What they do allege is the vague possibility of a violation of corporate formalities, with no evidence supporting the assertion. Without an analysis of the factors or specific evidence of misconduct, Plaintiffs have failed to meet the threshold of relevancy as required by Rule 26 to conduct discovery into the information sought in Interrogatory No. 17.
Interrogatory No. 20 presents a different case. The Plaintiffs request a listing and description of the affiliations between the Defendants. Broadly, this information may be relevant to the vicarious liability theory brought by Plaintiffs. If Defendant Duhon and the other Forward Air entities were engaged in relationships or affiliations, it could create additional avenues for recovery by Plaintiffs. Again, these assertions are broad, but there is relevance apparent on the face of this request.
For the reasons discussed above, Plaintiff's Motion to Compel is DENIED as to Interrogatory No. 17 and GRANTED as to Interrogatory No. 20.
This interrogatory asks Defendants to produce the "Crash Indicator" rating and information that it submits to the Federal Motor Carrier Safety Administration in compliance with 49 C.F.R. §385.19. This score is factored into the computation of the final safety ratings for motor carriers maintained by the Federal Motor Carrier Safety Administration. Defendant objects to production of this information, arguing that it is unduly burdensome, irrelevant, and not proportional to the needs of this case. (Docket #34 at 12).
49 C.F.R. §385.1 "establishes the FMCSA's procedures to determine the safety fitness of motor carriers, to assign safety ratings, ... and to prohibit motor carriers receiving a safety rating of `unsatisfactory' from operating a [commercial motor vehicle]." 49 C.F.R. §385.1(a). The motor carriers are graded and given one of three possible safety ratings: satisfactory, conditional, or unsatisfactory. 49 C.F.R. §385.3. To obtain a satisfactory safety rating, "the motor carrier must demonstrate it has adequate safety management controls in place, which function effectively to ensure acceptable compliance with applicable safety requirements." 49 C.F.R. §385.5. The regulation lists several areas of risk that the rating considers, including the use of unqualified or fatigued drivers. See 49 C.F.R. §385.5(c), (g). Frequency of accidents, rates, trends, and preventability indicators are all factors that are considered in the determination of a safety rating assigned to a motor vehicle carrier. 49 C.F.R. §385.7. The final ratings are made available to the public. 49 C.F.R. §385.19.
The Court finds that this information is relevant and discoverable. In their Complaint, Plaintiffs allege negligence per se arising from the violation of these regulations and gross negligence on the part of all Defendants. (Docket #1-4 at 12-15). They also seek punitive damages. (
Here, Defendants' "crash indicator" rating speaks to their knowledge of risk in their operations. Defendants' knowledge of their safety rating speaks to their knowledge of the risk of public harm, which, if recklessly disregarded, could lead to an award of punitive damages.
For these reasons, Plaintiffs' request to compel a response to Interrogatory No. 21 is GRANTED.
Plaintiffs seek disclosure of any safety improvements or operating improvements in the hiring practices of the Defendants. Defendants objected to this interrogatory, arguing that it is unduly burdensome, seeks irrelevant information, and is disproportionate to the needs of the case. (Docket #34 at 13).
Defendants argue that this information encompasses the entirety of their business practices and would be a narrative report of all activities engaged in by Defendants since 2005. (
The Court agrees with the Defendants that this Interrogatory is far too broad. While relevance is to be construed broadly, the scope of discovery is not unlimited.
On its face, this Interrogatory does not, with specificity, identify relevant information that would assist Plaintiffs in building their claims. Plaintiff provides no reasoning other than that such a broad search could unearth facts helpful to their claims. They do not cite any authority that supports their position, nor does the Court find any that supports such a broad inquiry. Without a narrowing of this inquiry, it does not meet the parameters of relevance required under Rule 26.
For these reasons, Plaintiffs' Motion to Compel a response to Interrogatory No. 22 is DENIED.
Plaintiffs seek further information about the activities of Defendant Duhon and Loretta Duhon in the time preceding the accident. Defendants responded to this interrogatory, providing twenty-three pages of drivers logs (Bates No. 00417-00440) produced as business records pursuant to Rule 33(d). (Docket #34 at 14). Plaintiffs argue that the responses provided "do not `describe specifically and in detail all activities' of Defendant Duhon during the 48 hours prior to the accident." (Docket #33 at 11).
The Court finds that the Defendants have provided a sufficient response to Interrogatory No. 23. Plaintiffs have not provided a listing of specific information requested. They do not cite any source of authority for the proposition that this response is insufficient, nor does this Court find any authority supporting the Plaintiffs' position. If the Plaintiffs seek further information about Defendant Duhon's actions in the time prior to the accident, they may use other avenues of discovery to hone their inquiries.
For these reasons, Plaintiffs' Motion to Compel as to Interrogatory No. 23 is DENIED.
Plaintiffs seek production of various documents, including tax returns, reflecting payments and earnings of Defendant Duhon from the other Defendants. Defendants object to production of this information, arguing that it is unduly burdensome, not relevant to any issue in this action, and not proportional to the needs of the case. (Docket #34 at 14).
Plaintiffs argue that this information is relevant for three main reasons. First, evidence of Duhon's earnings "are the best indicator for his fitness for employment as mandated by 49 C.F.R. 391 et seq." (Docket #33 at 11). Second, they argue that the reasons for any fluctuations in employment might lead to discovery of reasons for the accident. (
The Sixth Circuit does not generally protect tax returns from disclosure.
With respect to the issue of relevancy, courts typically find tax returns to be relevant in actions in which a party's income is in issue. See, e.g.,
The Court finds that the information contained in tax returns specifically is not relevant to Plaintiffs' claims. Defendant Duhon's income is not at issue in this case, thus, the information contained in tax returns is irrelevant. Plaintiffs can obtain information regarding Defendant Duhon's fitness, time worked, and amount of work performed without digging into his sensitive financial information. The burden of the production of this sensitive tax and financial information is too great to allow a fishing expedition when more narrow methods of discovery will suffice.
For these reasons, Plaintiffs' Motion to Compel a response to Request for Production No. 23 is DENIED.
Plaintiffs seek production of documentation of Defendants' safety audit procedures from 2015 to present. Defendants object to this production on the grounds of undue burden, relevance, and disproportionality. (Docket #34 at 15).
Defendants argue that the records of other drivers have nothing to do with the issues in this action. (
Like Interrogatory No. 22 above, this Request for Production is overly broad. Plaintiff is correct that motor carriers are required to comply with the laws and regulations governing the industry. However, the relevancy here is limited to Defendants' safety procedures as to Defendant Duhon. Plaintiffs' claims seek only to prove malfeasance on the part of Defendants as to their actions with regard the accident at the core of this suit. The initiation of a suit does not allow Plaintiffs to dive wholesale into all of Defendants' safety record and auditing procedures, they may only access that information which is relevant to this case. Further, Plaintiffs have cited no authority, nor does this Court find any, to support the notion that Plaintiff is entitled to discovery of records pertaining to all Defendants' employees. Plaintiff is entitled to these records pertaining to Defendant Duhon.
For these reasons, Plaintiffs' Motion to Compel a response to Request for Production No. 34 is GRANTED in part and DENIED in part.
Plaintiffs seek to compel production of Defendants' employee handbooks, policies, procedures, rules, or instructions given to the employees of the Defendants. Defendants object to this production on grounds of undue burden, relevance, and proportionality. (Docket #34 at 16). Over their objections, Defendants state that "the Federal Motor Carrier Safety Regulations Handbook is copyrighted and available for purchase from J.J. Keller & Associates, Inc." (
Defendants argue that the provisions of their "internal policies, procedures, programs, rules, handbooks, and instructions for its employees do not apply to Lindy Duhon and are not at issue in this motor vehicle accident personal injury case." (
This request is overly broad in scope as it seeks all policies, procedures, programs, rules, handbooks, and/or instructions of any type. However, information on policies, procedures, programs, rules, handbooks, and instructions that applied to Defendant Duhon as an independent contractor are relevant and subject to discovery. In a similar case before this Court, discovery was permitted as to information used to train the specific employee involved in the accident.
Accordingly, Plaintiffs' Motion to Compel a response to Request for Production No. 35 is GRANTED in part and DENIED in part.
Plaintiffs seek to compel production of information or documents relating to any claims for lost cargo being transported by Defendant Duhon on September 30, 2017. This request specifically seeks those documents kept in accordance with the regulations interpreting the FMCSA. Defendants object to this request, arguing that it seeks legal opinions, analysis, or conclusions. (Docket #34 at 17).
The regulations cited in this Request for Production relate to the procedures governing claims for lost cargo, specifically, the acknowledgement, investigation, and disposition of claims for lost cargo. 49 C.F.R. §§370.5, 370.7, 370.9. These regulations require the acknowledgment of claims and results of the investigations to be kept in writing for 120 days following their disposition, amongst other requirements.
Here, Plaintiffs have failed to carry the burden of demonstrating relevancy. Plaintiffs argue in their Motion that they "are entitled to know whether any Defendant provided any reason for accepting or denying any claims that were made pertaining to the cargo the Defendants carried." (Docket #33 at 13). Plaintiffs make no claim for lost cargo, nor do they state any link between claims for lost cargo and the accident. They cite no authority to support their position that they are entitled to all information relating to the cargo, nor has this Court found any that supports them. Without a more specific demonstration of relevancy, the Plaintiffs are not entitled to production of this information.
Plaintiffs' Motion to Compel a response to Request for Production No. 36 is DENIED.
IT IS HEREBY ORDERED that Plaintiffs' Motion to Compel is GRANTED in part and DENIED in part, as described above. (Docket #33).
