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Commins v. NES Rentals Holdings, Inc.

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

June 28, 2018

SAMANTHA D. ROWELL COMMINS, Individually and as Next Friend, Natural Parent and Legal Guardian of N.C. and E.C., Minor Children, and as Personal Representative and Ancillary Administratrix of the Estate of Samuel Jack Commins, Deceased. PLAINTIFFS


          Dave Whalin, Magistrate United States District Court

         This is a wrongful death action brought on behalf of the estate of Samuel Jack Commins, who was fatally injured while operating a boom lift during the course of his employment with Kellogg, Brown, & Root Construction Company, against Defendant Genie Industries, the company that manufactured the boom lift, and NES Rentals Holdings, Inc., et al., the companies that leased the boom lift to Commins' employer on the job site. Plaintiff has presently filed a Motion to Compel, setting forth numerous discovery disputes with Defendant NES and a single discovery dispute with Defendant Genie (DN 84). Defendants NES (DN 87) and Genie (DN 86) have responded. Plaintiffs have replied to both Defendants. (DN 88; DN 90). This matter is ripe for adjudication.


         Late in the night on September 25, 2015, Samuel Jack Commins died while operating a Genie S-85 Boom Lift[1] that his employer, Kellogg, Brown, & Root LLC (“KBR”), had leased from NES Equipment Services Corporation about one year earlier. (DN 1, at ¶ 11).

         The facts leading up to Commins' death are somewhat disputed by the parties. Plaintiffs allege that Commins and a co-worker were “tasked with using the boom lift to add conduit at the construction site[, ]” a power plant owned by Kentucky Utilities in Ghent, Kentucky. (Id. at ¶¶ 11-12). At the time of the incident, Commins' co-worker “was fabricating conduit for the job in another part of the worksite.” (Id. at ¶ 12). According to Plaintiffs, Commins, “using the boom lift in a manner that was intended[, ] . . . backed into an I-beam that was located near the top of a metal frame structure.” ( ¶ 13). Because Commins was working in a basket attached to the end of the boom lift, “[t]he I-beam pressed against Mr. Commins' upper back and forced him on top of and into the control panel that he was using to operate the lift.” (Id.). Plaintiffs allege that Commins' co-worker returned to the job area, found Commins' pinned between the I-beam and control panel, used the controls to lower the basket containing Commins to the ground, and called the safety department. (Id. at ¶¶ 14-15). When EMS arrived around 1:23 am, Commins was unresponsive and without a pulse; he was declared dead shortly thereafter. (Id. at ¶ 15).

         Defendants Genie and NES agree that Commins extended the boom lift 20-30 feet into the air into a steel I-beam and died as a result of the tragic accident. But Defendants contest that Commins was not certified by his employer, KBR Construction, to operate the boom lift, and that he violated the warnings and instructions of Genie and KBR by extending the platform of the boom lift without watching where the platform was telescoping and without having a co-worker present to monitor the operation of the boom lift. (DN 86, at p. 2; DN 87, at p. 2).

         In September of 2016, Plaintiff Samantha D. (Rowell) Commins initiated this action on behalf of Commins' estate, alleging claims of strict liability, negligence, and gross negligence against both Genie and NES. (DN 1, at ¶¶ 30-54). Plaintiffs' Complaint specifically alleges that the boom lift (1) had inadequate warnings to protect Commins' safety; (2) did not have a protective guard to shield the lift operator that would have prevented Commins' death; and (3) lacked working lights and a working emergency horn. (Id. at ¶ 18). It is Plaintiffs' position that Defendants knew of these deficiencies and did not remedy them, which caused or contributed to Commins' death. (Id.). Plaintiffs seek punitive damages for the Defendants' gross negligence and willful conduct. (Id. at ¶¶ 52, 59, 61, 69, 76, 78).

         On September 29, 2017, Plaintiffs served their first discovery requests on Defendants. (DN 84, at p. 2). According to Plaintiffs, the discovery process with NES has been contentious from the outset. Plaintiffs state that, to date, NES has only produced a total of thirteen documents (exclusive of photographs). It appears that the parties communicated via e-mail and telephone on multiple occasions throughout January and February of 2018 in an attempt to resolve Plaintiffs' concerns as to NES's inadequate production. Specifically, Plaintiffs e-mailed NES on January 9, 2018, in advance of a meet-and-confer call to outline the perceived deficiencies in NES's discovery responses, including its written responses, document production, and interrogatory responses. (DN 87-1).

         On January 29, 2018, NES e-mailed Plaintiffs its “Second Supplemental Responses to Request for Production of Documents[, ]” indicating it had performed additional searches of electronically stored information (“ESI”) utilizing the search terms: “Genie, S-85, S85, overhead obstruction, KBR, and speed switch[, ”] as requested by Plaintiffs. (DN 84-6). NES's e-mail further indicated it was performing continuing ESI searches utilizing claimant's name and searches for information responsive to Plaintiffs' recently served Interrogatories. (DN 84-6). NES clarified it has people in multiple departments searching for responsive documents dating back to January 1, 2010, the year that NES purchased the subject Genie S-85, and that it will supplement its responses as it locates additional documents. (Id.). Plaintiffs responded and objected to NES's “Second Supplemental Responses” by e-mail on February 13, 2018. (DN 87-4). Plaintiffs expressed their dissatisfaction that NES had failed to identify “the custodians that are being searched and any other custodians with potentially responsive documents” and requested that NES apply a list of seventeen additional search terms, including term connectors, to the custodians. (Id. at pp. 1-2).

         Because these efforts to resolve the discovery disputes without Court intervention have been “fruitless[, ]” Plaintiffs filed the instant Motion to Compel. (DN 84). Plaintiffs seek the Court order NES to disclose potential document custodians, agree to reasonable search terms, conduct searches on the electronic files of its potential document custodians, and then present a Rule 30(b)(6) witness so that they can test whether NES only has thirteen documents responsive to the 25 different categories of documents listed in her requests for document production. (Id. at p. 2).

         As for the discovery process between Plaintiffs and Genie, it appears that efforts have been more successful thus far. Plaintiffs' Motion to Compel only highlights one discrete dispute with Genie, involving a single request for production that the parties have been unable to resolve. (DN 84, at pp. 7-8).


          Trial courts have wide discretion in dealing with discovery matters. 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). The “scope of discovery” encompasses “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 include “any matter that bears on, or that reasonably could lead to other matter that could bear on” any party's claim or defense. Oppenheimer Fund, Inc. v. Sanders, 437 U.S. 340, 351, 98 S.Ct. 2380, 57 L.Ed.2d 253 (1978) (citation omitted). In analyzing proportionality, the Court must consider the need for the information sought based upon “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 discovery in resolving the issues, and whether the burden or expense of the proposed discovery outweighs its likely benefit.” Fed.R.Civ.P. 26(b)(1).

         Federal Rule of Civil Procedure 37 allows a party to move for an order compelling disclosure or discovery when “a party fails to answer an interrogatory submitted under Rule 33” or “fails to produce documents . . . as requested under Rule 34.” Fed.R.Civ.P. 37(a)(3)(iii), (iv). Under this Rule, an “evasive or incomplete disclosure, answer, or response must be treated as a failure to disclose, answer, or respond.” Fed.R.Civ.P. 37(a)(4). The party seeking discovery bears the burden of proving that a discovery response is inadequate. Equal Rights Center v. Post Props, Inc., 246 F.R.D. 29, 32 (D.D.C. 2007).

         A. Plaintiffs' Discovery Issues with NES

         1. Custodians and Search Terms

         As an initial matter, Plaintiffs seek that the Court order NES to “identify by letter all potential custodians with potentially responsive documents, including those involved with [the International Powered Access Federation] or any boom lift safety efforts[.]” (DN 84, at p. 6). Plaintiffs additionally feel NES should be required to meet with them “regarding the custodians whose records will be searched[.]” (Id.). NES did not respond to this particular request. (See DN 87; DN 90, at p. 6).

         Relatedly, Plaintiffs seek that the Court order NES to “apply the search terms proposed by Plaintiffs.”[2] (DN 84, at p. 6). NES responds that it continues to search for relevant information and documents based on the search terms it listed in its January 29, 2018 correspondence (“Genie, S-85, S85, overhead obstruction, KBR, speed switch, and Samuel Commins”) and will continue to supplement its production when responsive documents are discovered. (DN 87, at pp. 3-4). But NES objects to the “30 additional search terms” and the “complex ‘connectors'” that Plaintiffs now request be applied to ESI searching because this is “unreasonable, overly broad, overly burdensome, not proportional to the needs of the case, and unlikely to yield any additional documents responsive to Plaintiff's requests.” (Id. at p. 4). NES argues that although these search requests provide “no scope of the issues” or “time frame involved in this litigation” it continues to search for relevant information based on the original search terms it identified and will continue to supplement its disclosures as relevant information and documents are discovered. (Id.). In reply, Plaintiffs assert that NES did not meet its burden in showing that its requested search terms are unreasonable. (DN 90, at pp. 4-5). According to Plaintiffs, NES has not explained what is wrong with these search terms, how these terms would produce too many hits, or how the search connectors are too burdensome in relation to the subject matter of this litigation. (Id.).

         It is clear that the parties conferred and submitted a Rule 26(f) report and proposed scheduling order (DN 51; DN 53), but the report did not address the issue of electronically stored information. Subsection (f)(3)(C) of Rule 26 explains that the discovery plan should include the parties' views and proposals on: “issues about disclosure, discovery, or preservation of electronically stored information, including the form or forms in which it should be produced[.]” Fed.R.Civ.P. 26(f)(3)(C). When this sort of two-way planning does not occur upfront, and questions about the adequacy of document production subsequently arise, “common sense dictates that the party conducting the search must share information regarding the universe of potentially relevant documents being preserved, and those that no longer exist, as well as the search terms used in collecting relevant documents and the identities of the custodians from whom the documents were retrieved.” Burd v. Ford Motor Co., No. 3:13-cv-209-76, 2015 WL 4137915, at *8 (S.D.W.V. July 8, 2015). The district court should generally not play a role in dictating the design of a search, choosing search tools, selecting search terms, or designating custodians, unless a responding party's choice “is manifestly unreasonable or the requesting party demonstrates that the resulting production is deficient.” Mortgage Resolution Servicing, LLC v. JPMorgan Chase Bank, N.A., 15 CV 0293, 2017 WL 2305398, at *2 (S.D.N.Y May 18, 2017).

         Here, it appears that NES did not reveal to Plaintiffs during the formation of their Rule 26 litigation plan which individuals it planned to designate as the custodians most-likely to possess responsive information to the Plaintiffs' ESI requests. See Fed.R.Civ.P. 26(f)(3)(C). It further does not appear that the parties exchanged proposals on the search terms that NES would run during ESI searching at the initial Rule 26 planning stage. This lack of planning has led to the present disputes over the undisclosed custodians and Plaintiffs' list of new search terms.

         After weighing these considerations, the Court finds it appropriate to grant Plaintiffs' request that NES be compelled to produce a list of custodians it has been utilizing to produce documents thus far in discovery. NES shall also identify any additional custodians likely to possess responsive information relevant to the claims in the litigation, including those involved with the International Powered Access Federation or any boom lift safety efforts. As for the list of additional search terms that Plaintiffs have proffered, the Court finds it is beyond its purview to determine whether each term is relevant.[3] Because the parties failed in their Rule 26 obligations with respect to ESI and have not made specific arguments regarding the relevance and reasonableness of the individual search terms that Plaintiff has now proposed, the Court finds it necessary to order an additional meet and confer period for the parties to develop a further plan for ESI discovery and to attempt to reach an agreement as to the disputed search terms. Plaintiff's request that NES be ordered to apply the new list of search terms is, therefore, denied without prejudice, and the parties are ordered to meet and confer within 20 days entry of this Order to work on an agreement as to ESI discovery.[4]

         2. Interrogatories

         Plaintiffs also want the Court to order NES to “supplement its interrogatory responses.” (DN 84, at p. 6). Although Plaintiffs do not identify any specific interrogatories in their Motion to Compel, their letter to NES on February 13, 2018, attached as Exhibit 7 to their Motion to Compel, indicates they believe NES's responses to Interrogatory Nos. 2, 3, 4, and 6 are “glaringly deficient.” (DN 84-7, at p. 3).

         a. Interrogatory No. 2

          This Interrogatory reads: “[p]lease identify each person or persons, including their last known address, phone number, and employer, who were or are responsible for ensuring that the equipment that NES leases or rents is safe, including but not limited to, whether such equipment includes all available safety equipment necessary to ensure the safety of operators.” (DN 84-8, at pp. 2-3). NES responded by stating:

Objection. This Interrogatory is overly broad, vague, ambiguous, seeks information that is irrelevant, and is not proportional to the needs of this case. The Interrogatory is not limited in time from 2010 when the subject Genie S-85 was purchased to the date of the subject incident on September 25, 2015, and is not limited in scope to the specific Genie telescopic boom lift (Unit #N63021, Model S-85, Serial S8510-8304) which is subject of this litigation, or Genie S-85 telescopic boom lifts in general. This Interrogatory is vague as to the use of the term ‘safe.' Further, this Interrogatory calls for a legal conclusion. The subject Genie S-85 was in the custody, care, and control of KBR for approximately 1 year prior to decedent's death. Genie is the manufacturer of the subject S-85 boom lift.

(Id. at p. 3).

         NES presently reinforces that its objection to Interrogatory No. 2 was appropriate because PLAINTIFFs both failed to limit the time frame for the information they seek and to limit the scope of the type of equipment for which the person was responsible, which would arguably require it to produce the information for “every NES employee for all time.” (DN 87, at p. 5). Further, because “reasonable care” is the standard applicable to NES in this case, rather than “safety, ” as used in the Interrogatory, NES claims Plaintiffs should be required to narrow the Interrogatory's language. (Id. at pp. 5-6). PLAINTIFFs claim these objections are merely boilerplate.[5] As for NES's concern about the relevant time period, Plaintiffs explain that the Interrogatories were expected to cover “ten years before the accident until the month the suit was filed, extending back to September 2005” because similar crushing accidents were occurring frequently then. (DN 90, at p. 3 (citing Buland Reply Decl. Ex. H (Instruction 17); Ex. I (Instruction 18)). But Plaintiffs also feel that NES improperly objected based on lack of time frame limitations because it appears NES only objected “to justify its refusal to fully search for and produce documents sought.” (Id. at p. 2). As for NES's concern about Plaintiffs' use of the term “safe, ” Plaintiffs point out that NES touts itself as “Safety First” and as promoting a “Culture of Safety, ” meaning NES clearly understands the meaning of the word “safe.” (DN 90, at p. 6).

         After reviewing Plaintiffs' first set of Interrogatories, it is clear that it intended for the relevant time period for Interrogatory No. 2 to be “September 1, 2005 to September 1, 2016.” (DN 90-3, at p. 3). Even so, the Court agrees with NES that this time period is overly broad in proportion to the claims in this case. NES first purchased the S-85 at issue at some point in 2010, and the incident that is the subject of the lawsuit occurred on September 25, 2015. It is therefore unnecessary to require NES to identify the names of each person responsible for ensuring the equipment that NES leases or rents is safe for five years before the piece of equipment at issue in this litigation was acquired by NES. The Court finds January 1, 2010 - September 1, 2016, to be a reasonable time period for this Interrogatory. NES's suggestion that Interrogatory No. 2 be limited based on “the type of equipment” that the person or persons were responsible for is also well-taken. The Court finds that limiting this Interrogatory to persons responsible for ensuring that the Genie S-85 boom lift from this case, Genie telescopic boom lifts rented by NES, and any other boom lifts rented by NES were safe. NES's objection to Plaintiffs' use of the term “safe” as vague also has some merit. Because the Court finds that “safe” can have different meanings in different contexts, Plaintiffs should be required to provide an objective definition of “safe” as it is to be applied in Interrogatory No. 2.

         In summary, Plaintiffs shall provide an objective definition of “safe” as it is to be applied in Interrogatory No. 2. Once that definition is provided, NES is required to supplement its answer within 30 days to provide the names and contact information for those individuals at NES who were or are responsible for ensuring that the Genie S-85 boom lift in this case, all Genie boom lifts rented by NES, and any other boom lifts rented by NES were safe, including but not limited to, whether ...

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