LANNY KING, Magistrate Judge.
Judge Thomas B. Russell referred this matter to Magistrate Judge Lanny King for ruling on all discovery motions. (Docket # 23). This matter is before the Court on Plaintiffs J. B. Burrell, Jr. and Marie Burrell's Third Motion to Compel Discovery. (Docket # 98). Defendants Lindy W. Duhon, Lindy Duhon Trucking, LLC, Forward Air, Inc., Forward Air Corporation, and Forward Air Technology and Logistics Services, Inc., have responded. (Docket # 103). This matter is ripe for adjudication.
For the reasons stated herein, Plaintiff's Third Motion to Compel is
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).
Following removal, Judge Russell referred all discovery matters to Magistrate Judge King. (Docket #23). Plaintiffs filed a Motion to Compel certain discovery from Defendants. (Docket # 33). Judge King issued an Opinion and Order granting in part and denying in part Plaintiff's Motion to Compel. (Docket # 62). Defendants then filed Objections to Judge King's Opinion and Order. (Docket # 66). Judge Russell issued a Memorandum Opinion and Order sustaining in part and overruling in part the objections to Judge King's Opinion and Order. (Docket # 105).
Plaintiffs have now filed a Third Motion to Compel Discovery.
Rule 26(b)(1) of the Federal Rules of Civil Procedure allows parties to "obtain discovery regarding any nonprivileged matter that is relevant to any party's claim or defense and proportional to the needs of the case." FED. R. CIV.P.26(b)(1); see also FED.R.CIV.P.26(b) Advisory Committee's Note to 2015 Amendment. 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.
However, the scope of discovery is not unlimited. "On motion or on its own, the court must limit the frequency or extent of discovery . . . if it determines that . . . the burden or expense of the proposed discovery outweighs its likely benefit, considering the needs of the case, the amount in controversy, the parties' resources, the importance of the issues at stake in the action, and the importance of the discovery in resolving the issues."
A party may not be permitted to "go fishing" through discovery requests that are "too broad and oppressive."
Rule 30 permits parties to conduct discovery through use of depositions. When a corporation is the party to be deposed, a party must name the entity and "describe with reasonable particularity the matters for examination." FED.R.CIV P.30(b)(6). "The named organization must then designate one or more officers, directors, or managing agents, or designate other persons who consent to testify on its behalf; and it may set out the matters on which each person designated will testify."
Additionally, a party may serve a subpoena seeking production of documents related to the subject matter of a deposition. FED.R.CIV.P.30(b)(2). The request must "describe with reasonable particularity each item or category of items to be inspected."
Plaintiffs seek to compel production as relates to various requests attached to deposition notices. For ease of organization and comprehension, the Court has categorized the requests into three broad groups: (1) Requests for Production to which Defendants assert that they have provided all responsive information within their possession, custody, or control; (2) Requests for Production explicitly addressed in Judge Russell's Memorandum Opinion and Order (Docket # 105); and (3) Requests for Production to which Defendants have objected.
Plaintiffs seek production of documents stemming from the depositions of Matt Casey as a Rule 30(b)(6) representative of the Forward Air entities, Timothy Parker, the Forward Air Safety Director, and Matt Casey, in his capacity as Senior Vice President of Safety for the Forward Air Entities. (Docket # 98). Defendants have responded that they have fully produced all documents in their possession, custody, or control that are responsive to these requests. (Docket # 103). They further state that the production took place within the prescribed 30-day period required by FED.R.CIV.P.34(b)(2)(A). (
To be required to produce information, a party must have "possession, custody, or control" of such information. Fed.R.Civ.P.34(a)(1). See
If Defendants have not already done so, Plaintiffs are entitled to a certification under Federal Rule of Civil Procedure 26(g)(1) and 34(a) that all responsive documents in the possession, custody or control of Defendants have been produced following a reasonable inquiry. See
For these reasons, Plaintiffs' Motion to Compel production of these items is
Plaintiffs seek to compel production of documents related to "the retention of records concerning Lindy Duhon, Loretta Duhon, and Lindy Duhon Trucking, LLC as required by 49 CFR § 391" from Matt Casey's 30(b)(6) deposition (Docket # 98 at 3) and "all documents, records, and electronically stored information for all accidents for which violations of the FMCSR
However, Judge Russell has already addressed these items in his Memorandum Opinion and Order on Judge King's Order on the Motion to Compel. (Docket # 105). For this reason, Plaintiffs' Motion to Compel as to these items is
The parties scheduled the October 29, 2019 deposition of Matt Casey, in his capacity as Senior Vice President of Safety for the Forward Air entities, on September 11, 2019, during a telephonic status conference conducted by the Court. (Docket # 96). Rule 30 dictates that the responsive party shall have 30 days to provide the documents requested in the Notice of Deposition. FED.R.CIV.P.34(b)(2)(A). This means that Defendants had until October 11, 2019 to respond to Plaintiffs' request for production. The Court addresses each contested item in turn.
As an initial matter, the Court will note the use of boilerplate objections utilized by Defendants in their responses to Plaintiffs' discovery requests. Usage of boilerplate objections to interrogatories and request for production is not permitted under the Federal Rules of Civil Procedure. See FED.R.CIV.P.33(b)(4). By definition, "boilerplate" is "[r]eady-made or all-purpose language that will fit in a variety of documents." Boilerplate, Black's Law Dictionary (7th ed. 1999).
Judge Cleland in our sister district, the Eastern District of Michigan, recently commented on the usage of boilerplate objections, which he referred to as "nothing less than `a waste of effort and the resources of both the parties and the court.'"
The
Additionally, Magistrate Judge Lindsay addressed the use of boilerplate objections to discovery requests, finding that their usage violates Federal Rule of Civil Procedure 33(b)(4)'s requirement that objections to interrogatories be made with specificity and Federal Rule of Civil Procedure 34(b)(2)(B)'s requirement that objections to requests for production "state with specificity" the grounds for objecting to the request.
Though this Court declines to find that Defendants have waived objections through use of boilerplate objections in this case, it does note that their objections have made frequent use of boilerplate language.
Plaintiffs seek to compel production of the above-described documents, each of which were a component of Defendant Duhon's orientation training with the Forward Air entities. (Docket # 98 at 7). Defendants respond with an objection that the request is "vague, overbroad, and unduly burdensome, and is not proportional to the needs of the case." (Docket # 103 at 6).
This request is similar to one previously addressed by this Court in its Opinion and Order on the First Motion to Compel. (Docket # 62 at 25-26). There, this Court found that "information on policies, procedures, programs, rules, handbooks, and instructions that applied to Defendant Duhon as an independent contractor [were] relevant and subject to discovery." (
Accordingly, Plaintiffs' Motion to Compel a response to Item No. 8 is
Plaintiff seeks production of these responsive documents, which presumably connect to the potential liability of the Forward Air Defendants for negligent hiring, retention, and training.
The burden rests with the moving party to establish the relevance of an item of discovery sought. See
On its face, the Court notes that the safety information requested here is broadly relevant, as it would broadly govern the supervision of the agent/employee Duhon by principal/employer Forward Air. As discussed above, this Court has recently found that the training materials used to train a specific employee involved a trucking accident were relevant to the claims in that case.
The safety systems, rules, policies, procedures, practices, controls, methods, or guidelines in place at the time of the accident are likely relevant to the needs of the case, are in the possession of the Forward Air Defendants, and are proportional to the needs of the case. Therefore, the Court will
Plaintiffs seek production of these documents, again presumably in connection with their claims for negligent hiring, retention, and training lodged against the Forward Air Defendants. (Docket # 98 at 7). Defendants respond that this request is "vague, overbroad, unduly burdensome, seeks information that is irrelevant to any issue in this action, and is not proportional to the needs of the case." (Docket # 103 at 7-8).
This request is, on its face, drafted quite similarly to the request in Item 22. The Court sees no need to deviate from its reasoning with regard to that item here. Plaintiff's Motion to Compel a response is
Plaintiffs seek production of this information documenting violations of the Federal Motor Carrier Safety Regulations (FMCSR) issued or assessed against the Forward Air Defendants. (Docket # 98 at 7). Defendants respond with an objection "on grounds that the request is vague, overbroad, unduly burdensome, seeks information that is irrelevant to any issue in this action, and is not proportional to the needs of the case." (Docket # 103 at 8).
This request is similar to one raised in the first Motion to Compel by Plaintiffs. (Docket # 33 at 8). Judge King granted the request for Defendants to "Identify all violations of the FMCSR assessed against this Defendant during 2016, 2017, and 2018." (Docket # 62 at 7). Judge Russell, in his Memorandum Opinion and Order addressing the ruling, expanded the scope of that interrogatory to include violations of chapter 395 of the FMCSR assessed against Defendants from 2012 to 2018. (Docket # 105 at 8).
Given the similarity of the request here, the Court sees no need to deviate from the reasoning underlying Judge Russell's Memorandum Opinion and Order. (
Plaintiff seeks production of this information, presumably to build their case that the Forward Air entities were not properly following safety procedures in the regulation of the driver's routes and safety. (Docket # 98 at 7). Defendants object, again arguing that the "grounds that the request is vague, overbroad, unduly burdensome, seeks information that is irrelevant to any issue in this action, and is not proportional to the needs of the case." (Docket # 103 at 8).
The Court agrees that this interrogatory, on its face, is far too broad. Relevance is to be construed broadly, but the scope of discovery is not unlimited.
For these reasons, Plaintiffs' Motion to Compel production of documents related to the inquiry of Item 30 is