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Smith v. Old Dominion Freight Line, Inc

United States District Court, W.D. Kentucky, Louisville Division

May 31, 2017

AMY C. SMITH, Plaintiff,


          Colin Lindsay, Magistrate Judge

         The Court conducted a telephonic status conference in this case on April 19, 2017. After the conference, the Court entered an order permitting the parties to, among other things, file simultaneous briefs on the issue of whether Plaintiff Amy C. Smith (“Plaintiff”) should be granted leave to reopen a Rule 30(b)(6) deposition of Defendant Old Dominion Freight Line, Inc. (“Old Dominion”). (DN 131 at 2.) On May 10, 2017, Plaintiff filed a brief in support of a renewed 30(b)(6) deposition (DN 134), and Old Dominion, joined by Defendant Danny Webb (“Webb”) (collectively, “Defendants”), filed a brief in opposition to a renewed deposition (DN 133). The purpose of the instant opinion and order is to resolve that dispute. For the reasons set forth below, Plaintiff's motion to reopen the 30(b)(6) deposition (DN 134) is granted in part and denied in part.


         This case stems from a March 7, 2015 highway collision that led to the death of a twenty-one-year-old man, Nicholas A. Smith (“Smith”). It is undisputed that a tractor-trailer driven by Webb ran into the back of the car driven by Smith, crushing the car and, after some period of time in which he remained alive and conscious, killing Smith. This Court conducted a settlement conference in May 2016, and the parties participated in a private mediation in February 2017.

         Neither effort was successful. Additionally, a number of discovery disputes have arisen; the Court has resolved many such disputes others remain pending. Several potentially dispositive motions are pending as well. In short, all parties, their counsel, and the Court have expended significant time and resources on the case.

         On April 12, 2016, Plaintiff took the Rule 30(b)(6) deposition of Old Dominion's designated representative, Vice President of Safety and Compliance Sam Faucette (“Faucette”). According to Plaintiff, prior to the deposition, Plaintiff requested several times, including as early as January 20, 2016, that Old Dominion produce documentation of its “post-accident interview” related to the crash underlying this case. But, Plaintiff says, Old Dominion only produced the document mid-way through the April 12, 2016 deposition. (DN 134-1 at 2; see DN 134-3 (post-accident interview form).) On the post-accident interview form, the question, “Was cell phone/handheld in use [at the time of the crash]?” is marked “Yes.” (DN 134-3 at 1.) According to Plaintiff, reviewing this form during Faucette's deposition[1] confirmed to her that Webb was using his cell phone at the time of the collision. Further, Plaintiff contends that the document is evidence that Old Dominion maintains internal records of accidents involving its drivers and the use of cell phones. (DN 134-1 at 2.) The form includes a section entitled “Driver Statement.” (DN 134-3 at 2.) Old Dominion redacted the contents of this section prior to producing the document to Plaintiff; Plaintiff does not appear to argue that she is entitled to review an unredacted version.

         After reviewing the post-accident interview form, Plaintiff requested a forensic examination of Webb's cell phone. The Court ordered a third-party forensic review of the cell phone for the period of March 6, 2015 at 9:00 p.m. through March 7, 2015 at 6:00 a.m. Subsequently, after in camera review, the Court ordered Old Dominion to produce the forensic review materials to Plaintiff. (See DN 41, 56.) Plaintiff's position is that the cell phone records revealed that Webb was actively sending and receiving text messages while operating the tractor-trailer on the night of the crash, and that some of these text messages were exchanged with other Old Dominion drivers. (DN 134-1 (citing DN 111-4).) On September 20, 2016, Plaintiff served on Defendants a second set of interrogatories and requests for production of documents, which, in Plaintiff's words, “focused on cellphone communications between Old Dominion drivers leading up to the crash, telephone reports of accidents, and relevant recordkeeping pertaining to accidents and/or collisions involving Old Dominion drivers and cellphone manipulation and/or texting.” (DN 134-1 (citing DN 111-8, 111-9).) Plaintiff filed a motion to compel responses and production in relation to that set of discovery requests; that motion is pending (DN 111). On February 13, 2017, Plaintiff served on Defendants a second Rule 30(b)(6) deposition notice. (DN 134-4.) Not having obtained agreement from Old Dominion to reconvene the 30(b)(6) deposition, and in light of the Court's standing order that parties participate in a conference with the Court prior to filing discovery-related motions, Plaintiff requested a conference. This was the impetus for the April 19, 2017 telephone conference.

         During the April 19, 2017 telephone conference, the parties presented their positions on the propriety of reopening the 30(b)(6) deposition. The Court indicated that it was inclined to allow the 30(b)(6) deposition to be reopened. The Court stated that, in its view, reopening the deposition would help the case to move forward, as would reconvening a settlement conference and entering rulings on any still-pending discovery-related and potentially dispositive motions. The Court encouraged the parties to work together to resolve any disputes regarding the scope of the deposition notice and, if they could not come to an agreement on such disputes, permitted them to file briefs on whether the deposition should be reopened. The Court's decision to permit briefing on this issue was largely related to Plaintiff not having informed Defendants prior to the conference as to the issues that were to be discussed. While defense counsel ably argued Defendants' position on the 30(b)(6) deposition issue, counsel stated that until the call began, he was not aware of the purpose of the call.[2] For that reason, the Court allowed the parties to brief the issue rather than entering a ruling at that time. Consistent with the Court's statements that it was inclined to permit the deposition to go forward and that it wished to move the case along, the Court set an expedited briefing schedule, ordering the parties to “file simultaneous briefs on the disputed issues related to Plaintiff's desire to reconvene the [30(b)(6)] deposition” if they could not reach agreement on their own. (DN 131 at 2.)


         1. The Parties' Arguments

         Plaintiff argues that even though she previously took the deposition of Faucette, Old Dominion's designated representative, she should be permitted to reopen the deposition as a result of information that she obtained -- through no fault of her own -- only after the original deposition began. Plaintiff argues that as a result of that new information, she knows more about “both the duration and extensiveness of improper cellphone use and text messaging by [] Webb, ” as well as “the frequency of improper cell phone use and text messaging by other active Old Dominion drivers on the same shift, ” and “recordkeeping attendant to the use of hand-held mobile devices by drivers involved in commercial truck crashes.” (DN 134-1 at 4.) Plaintiff avers that the second deposition notice includes nine topics, which she describes as pertaining to “Old Dominion policies, procedures and/or manuals regarding cellphone and text messaging communications, alterations and/or changes implemented by Old Dominion regarding the same and [related to certain provisions of the Code of Federal Regulations], Old Dominion training materials related to hand-held mobile device use, and citations/warnings related to hand-held mobile device use by Old Dominion drivers.” (Id.) The deposition notice also includes nine document requests, some of which correlate exactly with the deposition topics, and others that are less directly related.

         Plaintiff argues that if she is not permitted to reexamine Faucette, then there is a risk of substantial prejudice to Plaintiff in the form of surprise testimony at trial. (DN 134-1 at 4-5.) Further, Plaintiff contends that the topics and documents identified in the deposition notice are within the reasonable and permissible scope of discovery as set forth in Rule 26(b)(1) of the Federal Rules of Civil Procedure, and emphasizes the Court's discretion in dealing with discovery matters. (Id. at 5-6.) Plaintiff also looks to Rule 406 of the Federal Rules of Evidence, arguing that the information she seeks is directly related to Old Dominion's routine practices as a company or organization. (Id. at 6-7.) Finally, Plaintiff argues that the discovery she seeks through a renewed deposition will be admissible under at least one exception to the prohibition of “other acts” evidence found in Rule 404(b) of the Federal Rules of Evidence.

         In response, Defendants first argues that Plaintiff should not be permitted to take the deposition of Old Dominion's president. (DN 133 at 2-5.) The Court already addressed this issue in the post-April 19, 2017 telephone conference order. (DN 131 at 2 (“The stay of discovery SHALL NOT be lifted to permit Plaintiff to take the deposition of Old Dominion's president.”).) Defendants urge the Court to “permanently stay that deposition.” (DN 133 at 2.) The Court declines to do so. The Court does not join Defendants in concluding that Plaintiff seeks to depose Old Dominion's president purely as a mode of harassing Old Dominion. Moreover, the Court did not invite briefing on this issue, and for that reason, the Court does not have the benefit of reviewing written argument from Plaintiff on this issue. As is clear from a number of orders in the record, discovery in this case has been stayed, and the Court has lifted the stay only for discrete purposes. The stay of discovery stands. The Court rejects Defendants' request that it “permanently stay” a deposition by Plaintiff of Old Dominion's president. If, after completing a renewed 30(b)(6) deposition, or at some other time, Plaintiff renews her request to depose Old Dominion's president, the Court will address the issue in more depth. There is no need to do so at this time.

         Defendants devote the majority of their brief in opposition to reopening the 30(b)(6) deposition to breaking down each of the nine topics identified in the deposition notice. The Court will address Defendants' specific arguments as needed in the discussion below.

         2. Legal Standard

         If a deponent “has already been deposed in [a] case, ” then “[a] party must obtain leave of court” in order to take the deposition. Fed.R.Civ.P. 30(a)(2)(A)(ii). “[T]he court must grant leave [to resume the deposition] to the extent consistent with Rule 26(b)(1) and (2).” Id. at (a) (2). Rule 26(b)(1) is the touchstone for the scope of civil discovery. Rule 26(b)(1) provides as follows:

(1) Scope in General. Unless otherwise limited by court order, the scope of discovery is as follows: Parties may obtain discovery regarding any nonprivileged matter that is relevant to any party's claim or defense and proportional to the needs of the case, considering the importance of the issues at stake in the action, the amount in controversy, the parties' relative access to relevant information, the parties' resources, the importance of the discovery in resolving the issues, and whether the burden or expense of the proposed discovery outweighs its likely benefit. Information within the scope of discovery need not be admissible in evidence to be discoverable.

Fed. R. Civ. P. 26(b)(1). Rule 26(b)(2) addresses limitations on the frequency and extent of discovery; subpart (b)(2)(A) gives the court discretion to alter limits on written discovery and the length of depositions under Rule 30, and subpart (b)(2)(B) sets forth limitations on electronically stored information. Id. at (b)(2)(A)-(B). Finally, subpart (b)(2)(C) provides that, “[o]n motion or on its own, the court must limit the frequency or extent of discovery otherwise allowed . . . if it determines that: (i) the discovery sought is unreasonably cumulative or duplicative, or can be obtained from some other source that is more convenient, less burdensome, or less expensive; (ii) the party seeking discovery has had ample opportunity to obtain the information by discovery in the action; or (iii) the proposed discovery is outside the scope permitted by Rule 26(b)(1) [set forth above].” Fed.R.Civ.P. 26(b)(2)(C)(i)-(iii).

         Plaintiff captioned her deposition notice and motion as pursuant to Rule 30(b)(5)-(6). Rule 30(b)(5) relates to the duties of an officer before whom a deposition is conducted. See Fed. R. Civ. P. 30(b)(5). Rule 30(b)(6) contains the substantive rule in relation to which Old Dominion selected Faucette to represent it in the deposition noticed by Plaintiff. In this memorandum opinion and order, the Court primarily refers to the deposition that Plaintiff seeks as a Rule 30(b)(6) deposition, though the Court acknowledges that the deposition notice cites subpart (b)(5) as well. Rule 30(b)(6) provides as follows:

(6) Notice or Subpoena Directed to an Organization. In its notice or subpoena, a party may name as the deponent a public or private corporation, a partnership, an association, a governmental agency, or other entity and must describe with reasonable particularity the matters for examination. 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. A subpoena must advise a nonparty organization of its duty to make this designation. The persons designated must testify about information known or reasonably available to the organization. This paragraph (6) does not preclude a deposition by any other procedure allowed by these rules.

Fed. R. Civ. P. 30(b)(6).

         Plaintiff also argues that Rules 406 and 404(b) of the Federal Rules of Evidence weigh in favor of the Court granting her leave to reopen the 30(b)(6) deposition. Rule 406 provides, “Evidence of a person's habit or an organization's routine practice may be admitted to prove that on a particular occasion the person or organization acted in accordance with the habit or routine practice.” Fed.R.Evid. 406. Plaintiff argues that reopening the 30(b)(6) deposition may lead to testimony and documentary evidence of Old Dominion's habits or routine practices in relation to the use of hand-held devices for calls and/or text messaging by its drivers. Finally, Plaintiff contends that the testimony and documentary production resulting from reopening the deposition may lead to “other acts” evidence that could be admissible under one of the purposes for which such evidence is permitted under Rule 404(b), such as “proving motive, opportunity, intent, preparation, plan, knowledge, identity, absence of mistake, or lack of accident.” Fed.R.Evid. 404(b)(2).

         3. Application to This Case

         As is set forth above, during the April 19, 2017 telephone conference, the Court stated that it was inclined to grant Plaintiff leave to reopen the 30(b)(6) deposition. This remains the Court's conclusion after reviewing the parties' briefs, the exhibits thereto, and relevant case law. The Court will grant Plaintiff leave to reopen the 30(b)(6) deposition of Old Dominion as to some of the topics and document requests set forth in the deposition notice. See Fed. R. Civ. P. 30(a)(2)(A)(ii). The Court is persuaded by Plaintiff's argument that she did not and could not fully depose Faucette in April 2016 due to certain information that she received only after that deposition began. Specifically, the Court credits Plaintiff's statements that only during Faucette's deposition did she receive a copy of the post-accident interview form, despite Plaintiff having requested the document as many as three months earlier.

         Moreover, even though Webb admitted during his deposition -- which took place on March 25, 2016, less than three weeks before the original 30(b)(6) deposition -- that he was talking on the phone at the time of the collision, [3] the Court credits Plaintiff's assertion that only upon receipt of the post-accident interview form during Faucette's deposition did she have evidence that Old Dominion had a record of Webb's cell phone use during the accident.[4] It is not a great leap to conclude from a review of this form, as Plaintiff does, that Old Dominion maintains records of all of the accidents involving its drivers and that it documents whether the drivers were using cell phones at the time of the accidents. The Court is persuaded that it should grant Plaintiff leave to reopen her 30(b)(6) deposition so that she may pursue additional questioning stemming from the evidence that became available to her only at the time of the original 30(b)(6) deposition.

         Having determined that Plaintiff may resume the 30(b)(6) deposition, the Court must now determine the scope of the deposition, taking into consideration Rule 26(b)(1). See Fed. R. Civ. P. 26(a)(2) (“[T]he court must grant leave [to resume the deposition] to the extent consistent with Rule 26(b)(1) and (2).”). Rule 26 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). Relevance is to be “construed broadly to encompass any matter that bears on, or that reasonably could lead to other matter[s] that could bear on any party's claim or defense.” Oppenheimer Fund, Inc. v. Sanders, 437 U.S. 340, 351 (1978) (citing Hickman v. Taylor, 329 U.S. 495, 501 (1947)). The Court has wide discretion when dealing with discovery matters, including when deciding whether information might be relevant. See S.S. v. E. Ky. Univ., 532 F.3d 445, 451 (6th Cir. 2008); Chrysler Corp. v. Fedders Corp., 643 F.2d 1229, 1240 (6th Cir. 1981). Critically, Rule 26 was recently amended to include a proportionality provision. Albritton v. CVS Caremark Corp., 2016 U.S. Dist. LEXIS 83606 at *4 (W.D. Ky. June 28, 2016) (“Proportionality is the touchstone of the revised Rule 26(b)(1)'s scope of discovery provisions.”).

         a. Deposition Notice Topics

         1) All ODFL policies, procedures and manuals pertaining to CMV driver and/or operator hand held device usage, including cellphone and text messaging communications in CMV's;

         The Court concludes that Plaintiff will not be permitted to address the first deposition notice topic at the time of the renewed 30(b)(6) deposition. Plaintiff seeks to question Old Dominion's representative about all Old Dominion policies, procedures, and manuals related to use of hand-held mobile devices, including cell phone use and text messaging, by CMV driver/operators. Old Dominion concedes that it does not have in place a policy, procedure, or manual regarding the use of hand-held mobile devices. (See DN 133 at 7 (“There is no specific cellphone policy in the manual. The requirement to use a hands-free device is a federal regulatory requirement and Old Dominion makes it clear in its Handbook that all drivers are to comply with and follow all Federal Motor Carrier Safety Administration regulations.”).) Old Dominion's position is clear from its briefing and Faucette's deposition testimony to date. It believes that its drivers must comply with federal regulations and that it need not maintain its own policies regarding matters that are covered by the federal regulations, including the use of mobile devices while operating vehicles. (See, e.g., DN 133-4 at 4 (“Q. What about him being on the phone at the same time? A. As long as he was within the federal guidelines and using a hands-free device, I -- he's within the regulation.”); id. at 10 (“Q. [] What is your understanding of the Federal Motor Carrier Safety regulations in the operation of a phone[?] A. That handheld mobile communication devices are illegal to be used while operating a commercial motor vehicle.”); id. at 13-14 (“Q. Same set of facts, and add in there the fact that he was on his cell phone, Old Dominion still doesn't have a problem with his conduct. A. If he was not violating the federal regulations, he's within his right to be on a wireless headset.”).)

         Based a review of the parties' briefs and the deposition transcript excerpts that are in the record, the Court finds that to permit Plaintiff to re-depose Faucette on this issue would be unreasonably cumulative or duplicative and that Plaintiff already had “ample opportunity to obtain the information” during the original 30(b)(6) deposition. See Fed. R. Civ. P. 26(b)(2)(C)(i)-(ii). Old Dominion's position and rationale related to the lack of an internal policy related to cell phone use is clear and was clear at the time of Faucette's original deposition. The mid-deposition discovery of additional information about Webb's use of a cell phone did not hamper Plaintiff's counsel's opportunity or ability to further question Faucette about this particular issue.

         Finally, having resolved the issue of the first noticed deposition topic for the reasons set forth above, the Court need not address Old Dominion's argument that it has no “duty [as] a motor carrier to formulate a policy that is already addressed (and therefore made unnecessary) by a specific federal regulation which allows the use of a hands-free device, which every commercial driver is required to follow.” (DN 133 at 9 (parenthetical in original).) The issue of Old Dominion's duty of care is not before the Court at this time.

         2) All changes, alterations, modifications, deletions and/or additions to ODFL's policies, procedures and manuals as a result of 49 CFR 392.82;

         With the second and third deposition notice topics, Plaintiff seeks to question Faucette regarding changes to its policies, procedures, and manuals as a result of two provisions of the Code of Federal Regulations. The first provision, 49 CFR 392.82, provides as follows: § 392.82 Using a hand-held mobile telephone.

(a) (1) No driver shall use a hand-held mobile telephone while driving a CMV.
(2) No motor carrier shall allow or require its drivers to use a hand-held mobile telephone while driving a CMV.
(b) Definitions. For the purpose of this section only, driving means operating a commercial motor vehicle on a highway, including while temporarily stationary because of traffic, a traffic control device, or other momentary delays. Driving does not include operating a commercial motor vehicle when the driver has moved the vehicle to the side of, or off, a highway and has halted in a location where the vehicle can safely remain stationary.
(c) Emergency exception. Using a hand-held mobile telephone is permissible by drivers of a CMV when necessary to communicate with law enforcement ...

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