United States District Court, W.D. Kentucky, Louisville Division
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
v.
NES RENTALS HOLDINGS, INC., et al. DEFENDANTS
MEMORANDUM OPINION AND ORDER
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.
Background
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.” (Id.at ¶ 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).
Analysis
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 ...