United States District Court, W.D. Kentucky, Louisville Division
ROBERT L. MERRIWEATHER PLAINTIFF
UNITED PARCEL SERVICE, INC., et al. DEFENDANTS
OPINION AND ORDER
KING, MAGISTRATE JUDGE UNITED STATES DISTRICT COURT
Judge Charles R. Simpson, III referred this matter to
Magistrate Judge Lanny King for ruling on all discovery
motions. (Docket # 16). This case was consolidated with
Snipes et al. v. Tropical Express, LLC, et al.,
3:16-CV-00249-TBR-LLK, for discovery purposes. (Docket #14).
Discovery in both cases is ongoing. Plaintiff Robert L.
Merriweather (“Merriweather”) filed a Motion to
Compel certain discovery from Defendant United Parcel
Service, Inc. (“Defendant UPS”). (Docket # 26).
Defendant UPS filed its Response in opposition and
Merriweather filed his Reply. (Docket # 29; # 33). For
reasons detailed below, Merriweather's Motion to Compel
is granted in part and denied in part. (Docket # 26).
case arises out of a multi-vehicle accident that occurred on
or about May 27, 2015, on I-65. (Docket # 1-1). Merriweather
filed suit against multiple parties, including Defendant UPS
and Defendant Jeremy J. Semmler (“Defendant
Semmler”). (Id.). The Complaint alleges that
Defendant Semmler was employed by and was driving the tractor
trailer on behalf of Defendant UPS. (Id.). Count I
of the Complaint alleges that Defendant UPS was negligent in
hiring, training, entrustment, supervision, retention, and
maintenance of its driver. (Id.). Count II of the
Complaint alleges that Defendant Semmler was negligent in
driving the tractor trailer on behalf of UPS. (Id.).
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. Albritton v. CVS Caremark Corp., No.
5:13-CV-00218-GNS-LLK, 2016 WL 3580790, at *3 (W.D. Ky. June
28, 2016) (citing Oppenheimer Fund, Inc. v. Sanders,
437 U.S. 340, 351 (1978) (citation omitted)). 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.” Id.
(quoting Fed.R.Civ.P. 26(b)(2)(C)(iii)). The determination of
“the scope of discovery is within the sound discretion
of the trial court.” Cooper v. Bower, No.
5:15-CV-249-TBR, 2018 WL 663002, at *1 (W.D. Ky. Jan. 29,
2018), reconsideration denied, 2018 WL 1456940 (W.D.
Ky. Mar. 22, 2018) (quoting Chrysler Corp. v. Fedders
Corp., 643 F.2d 1229, 1240 (6th Cir. 1981)).
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. Heller v. City of Dall., 303 F.R.D. 466, 487
(N.D. Tex. 2014) (citing Evans v. United Fire & Cas.
Ins. Co., 2007 WL 2323363, at *1, 3 (E.D. La. Aug. 9,
2007) (emphasis in original)).
corporation 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 id. at
(a)(3)(B)(iii)-(iv) (providing that a party may move to
compel answers to interrogatories submitted under Rule 33 or
to compel an inspection requested under Rule 34). The party
who files a motion to compel discovery “bears the
burden of demonstrating relevance.” Albritton v.
CVS Caremark Corp., No. 5:13-CV-00218-GNS-LLK, 2016 WL
3580790, at *3 (W.D. Ky. June 28, 2016).
Rule 37.1 and Federal Rule of Civil Procedure
outset, Defendant UPS argues that Merriweather has failed to
comply with both Federal Rule of Civil Procedure 37 and Local
Rule of Civil Procedure 37.1 by not meeting and conferring
with its counsel on 1) the contents of the produced privilege
log, 2) Request to Produce (“RPD”) No. 6 under
Section IV, Trip in Question, and 3) Defendant UPS'
verification page to the first set of interrogatories, prior
to filing the Motion to Compel. Further, Defendant UPS
asserts that Merriweather failed to submit a certification of
any attempts to resolve this dispute and only attached the
pleadings and correspondence as exhibits.
Rule of Civil Procedure 37 requires a motion to compel
discovery to include a “certification that the movant
has in good faith conferred or attempted to confer” in
an attempt to resolve the dispute. Fed.R.Civ.P. 37(a)(2)(b).
Local Rule 37.1 states:
“The Court will not entertain discovery motions unless
counsel have conferred -- or attempted to confer -- with
other affected parties in an effort to resolve their dispute.
The moving party must attach to every discovery motion a
certification that counsel have conferred and are unable to
resolve their differences. The certification must detail
counsel's attempts to resolve the dispute.”
February 14, 2018, Merriweather sent a letter to Defendant
UPS seeking to resolve the parties' dispute regarding the
discovery issues, later raised in its motion to compel, and
specifically addressed the contents of the privilege log and
UPS' verification page. (Docket # 26-5). On March 16,
2018, Defendant UPS supplemented its responses to the various
interrogatories, which included a privilege log, but did not
address the verification page. (Docket # 26-6; # 26-10).
Counsel for both parties contacted the Court to discuss the
remaining discovery issues. On April 30, 2018, the Court held
a telephonic status conference to discuss Defendant UPS'
discovery responses. (Docket # 25). The Court ordered
Defendant UPS to present supplemental responses to
Merriweather's requests by April 19, 2018. (Docket # 25).
The Court further granted Merriweather leave to file a motion
to compel if needed. (Id.). On April 9, 2018,
Merriweather attempted to resolve some of the discovery
disputes and requested supplemental responses and documents.
(Docket # 26-7). Defendant UPS responded to
Merriweather's letter, agreeing to some of
Merriweather's requests and objecting to others. (Docket
# 26-8). Merriweather filed this Motion to Compel after these
attempts to resolve the remaining discovery disputes failed.
(Docket # 26).
UPS is correct; although Merriweather attached the
parties' pleadings and correspondence as exhibits, he
failed to submit any certification of the attempts to resolve
this dispute. Despite the status conference with the Court on
April 9, 2018, Merriweather was required to attach a
certificate that detailed counsel's attempts to resolve
the disputes. Nevertheless, the present motion and attached
exhibits reflect that Merriweather made a good faith effort
as contemplated by Rule 37(a)(1) to resolve the discovery
issues before resorting to court action. Furthermore, it is
clear from Defendant UPS' Response (Docket # 29) that any
further negotiations between the parties would have been
fruitless. Nowhere in its Response does Defendant UPS state
that had Merriweather requested supplemental responses to the
privilege log, verification page, and RPD, it would have
provided them. Lastly, the motion is ripe for resolution.
Therefore, Merriweather's failure to submit a certificate
will be excused.
addressing each interrogatory at issue individually,
Merriweather argues that Defendant UPS' verification to
the first set of interrogatories is insufficient because it
is evasive and includes boilerplate language.
verification page provides:
“I hereby certify that the statements and answers to
the above Interrogatories in UPS' Answers to
Plaintiff's Interrogatories are based on available
information and files, and that they are true to my best
knowledge and belief. The information in these answers is not
based solely on my personal knowledge, and includes knowledge
and information of the defendants, their agents and
representatives, and also may include information obtained
from documents and records. The particular wording and
sentence structure may be that of your attorneys who assisted
in the preparation of these answers, and therefore, does not
necessarily purport to be my own precise language. No
document provided with these answers is to be construed as an
adoptive admission. Any such documents are supplied solely in
aid of your discovery purposes.”
(Docket # 26-11). Stephanie Maymon signed the verification.
(Id.). Additionally, a notary public signed the
verification and provided her state of registration and the
date on which her commission expires. (Id.).
Rule of Civil Procedure 33(b) governs answers and objections
to interrogatories. The rule provides that interrogatories
served upon a corporate party must be answered “by any
officer or agent, who must furnish the information available
to the party.” Fed.R.Civ.P. 33(b)(1)(B). To verify the
truthfulness of the answers, “[t]he person who makes
the answers must sign them.” Fed.R.Civ.P. 33(b)(5).
argues that Defendant UPS's verification for the first
set of interrogatories was signed by an individual that is
not from Defendant UPS because it fails to indicate what the
signatory's (Ms. Maymon's) role is and whether she
has the authority to bind Defendant UPS to the answers
provided. However, Rule 33 is rather broad and does not
prescribe any particular form of verification. Rule 33 simply
requires a corporate party to designate an agent to answer
and sign the interrogatory responses. See e.g. Chatman v.
AMTRAK, 246 F.R.D. 695, 700 (M.D. Fla. 2007). The
responsibility for answering the interrogatories is upon the
corporation to which they are directed and the corporation is
the best judge to determine the identity of the person to
make answers for it. After all, the corporation is
responsible for the answers and will be bound by the answers.
Merriweather fails to provide any case law that requires
Defendant UPS to include anything more than an agent or
officer of the corporation signing under oath that the
answers provided are true to the best knowledge and belief.
Accordingly, Merriweather's request that Defendant UPS
produce an additional verification is DENIED.
Merriweather's First Set of Interrogatories
requires the party answering interrogatories to furnish
“information available to the party.”
Fed.R.Civ.P. 33(b)(1)(B); see also Murphy v. Piper,
2018 WL 2538281, at *2 (D. Minn. June 4, 2018). The party
objecting to interrogatories bears the burden of showing that
the information sought is not reasonably available to it.
Id.; Lindholm v. BMW of N. Am., LLC, 2016
U.S. Dist. LEXIS 14142, at *5 (D.S.D. Feb. 5, 2016).
“If the answering party lacks necessary information to
make a full, fair and specific answer to an interrogatory, it
should so state under oath and should set forth in detail the
efforts made to obtain the information.”
Lindholm, 2016 U.S. Dist. LEXIS 14142, at *5
(quoting Essex Builders Grp., Inc. v. Amerisure
Ins., 230 F.R.D. 682, 685 (M.D. Fla. 2005) (quotation
INTERROGATORY NO. 1: Identify the person(s)
who has (have) primary responsibility at United Parcel
Service, Inc. now, and at the time of the wreck for:
a. Operational safety;
b. Compliance with federal and state regulations (including
hours of operation);
c. Driver training;
d. Driver's Terminal Manager;
e. Records custodian for driver
personnel/discipline/qualification and other files and
records regarding drivers;
f. Information Technology and Electronically stored
g. Safety Director;
h. Director of Fleet Safety Program;
i. The dispatcher(s) for the trip which ultimately resulted
in the wreck;
requests Defendant UPS to identify the person(s) who has
(have) primary responsibility regarding various listed tasks
and job titles. Defendant UPS objects to the interrogatory as
vague, overbroad, unduly burdensome, and not proportional to
the case. (Docket # 26-2). Over its objections, Defendant UPS
identifies Chris Jones as Defendant Semmler's supervisor
at the time of the accident. (Id.).
UPS argues that Merriweather is seeking Rule 30(b)(6)
designees without stating with reasonable particularity the
issues or topics on which he would like the company to
provide testimony. Merriweather concedes that the purpose of
this interrogatory is to identify potential witnesses.
(Docket # 26). The Court agrees with Defendant.
30(b)(6) of the Federal Rules of Civil Procedure provides the
proper mechanism for an organization to designate a person
most knowledgeable, after a party properly issues notice
identifying with reasonable particularity the topics of the
deposition. Schall v. Suzuki Motor of Am., Inc.,
4:14-CV-00074-JHM, 2017 WL 4050319, at *5 (W.D. Ky. Sept. 13,
2017). A corporate designation distinguishes the testimony of
a fact witness from the testimony of a representative of the
defendant organization itself. Jecker v. Monumental Life
Ins. Co., No. 3:12-CV-219-S, 2014 WL 4063568, at *1
(W.D. Ky. Aug. 15, 2014) (citing Fed.R.Civ.P. 30(b)(6)). By
requesting the identity of persons with general
responsibilities, Merriweather is using this interrogatory to
identify potential witnesses for topics that would otherwise
be covered in a 30(b)(6) deposition. By its terms, Rule
30(b)(6) does not permit the plaintiff to designate a
deponent to speak for the corporate defendants. Dillman
v. Ind. Ins. Co., No. 3:04-CV-576-S, 2007 WL 437730, at
*1 (W.D. Ky. Feb. 1, 2007). The proper vehicle for
determining who will be an opposing party's 30(b)(6)
witness is to issue notice that describes the matters for
examination. See Fed. R. Civ. P. 30(b)(6).
Accordingly, Interrogatory No. 1 is improper.
Merriweather's request to compel a response to
Interrogatory No. 1 is DENIED.
INTERROGATORY NO. 3: State whether the
tractor or trailer contained or utilized an on-board
recording device, an on-board computer, tachograph, trip
monitor, trip recorder, trip master, video recorder,
DriveCam, or device known by any other name which records
and/or transmits information concerning the operation of the
truck? If so, state the name and address of the person having
custody of the graphs, printouts, raw data, videos, and/or
other documentary evidence produced or capable of being
produced by said machine regarding any data for any and all
parts of the trip which ultimately was involved in the wreck
which forms the basis of Plaintiff's Complaint.
requests information regarding on-board recording devices. In
responding to Interrogatory No. 3, Defendant UPS referenced
and provided an Engine Control Unit (“ECM”)
download and tachograph for the tractor that Defendant
Semmler operated. (Docket # 26-2).
argues that Defendant UPS has failed to identify whether or
not there are any other on-board recording devices,
computers, etc. Defendant UPS asserts that it fully answered
this interrogatory by providing the ECM download and the
tachograph, both of which were referenced in its answer.
Further, Defendant UPS asserts that there is no other
responsive information, which is evident from the fact that
its response to discovery references no other devices.
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.” Westinghouse Credit Corp. v.
Mountain States Mining & Milling Co., 37 F.R.D. 348,
349 (D. Colo. 1965) (citations omitted); see also Am.
Int'l Specialty Lines Ins. Co. v. NWI-I, Inc., 240
F.R.D. 401, 413 (N.D. Ill. 2007) (“Rule 33 imposes a
duty to provide full answers to interrogatories, including
all the information within the responding party's
knowledge and control.”).
Defendant UPS responded to two of the recording devices
listed in the interrogatory, it failed to include whether it
had any of the other listed devices, thereby rendering its
response incomplete. Thus, Defendant UPS must amend its
responses to include an explanation that its responses are
complete to the best of its knowledge. Merriweather's
request to compel a full response to Interrogatory No. 3 is
INTERROGATORY NO. 7: Identify all persons
and entities who audited the driver's logs for the six
months prior to the wreck and the day of the wreck, and
describe the process your company uses to audit a
requests the identities of all persons and entities who
audited Defendant Semmler's driver's logs for the six
months prior to the wreck and the day of the wreck. Defendant
UPS objects to the interrogatory as vague, ambiguous,
overbroad, and not proportional to the needs of the case.
(Docket # 26-2). Over its objections, Defendant UPS states
that Defendant Semmler's driver logs were recorded
electronically and that Indianapolis dispatch supervisors
reviewed daily reports based on Defendant Semmler's
driver logs to monitor compliance with hours of service and
other DOT regulations in the six months prior to the
accident. (Id.). In its supplemental answer,
Defendant UPS states that Rick Runnells, an employee of UPS
who may only be contracted through counsel, potentially
reviewed daily reports at that time. (Docket # 26-9).
argues that Defendant UPS' response is evasive as
Defendant UPS clearly knows whether Rick Runnells reviewed
daily reports. Merriweather contends that Defendant UPS
failed to fully identify Rick Runnells as requested in his
Interrogatories Definition Number 11. Conversely, Defendant UPS
argues that is has answered with the information that it has
responsive to this interrogatory. Defendant UPS asserts that
based on the best information available at this time
regarding events several years ago, it appears that Rick
Runnells would have reviewed daily reports, which was a list
of drivers with less than thirteen hours of available driving
time remaining in the driving week. (Docket # 26-2). Also,
based on the best available information at this time,
Defendant UPS asserts that Defendant Semmler's schedule
was such that he would not be within 13 hours of the allotted
weekly hours. (Docket # 29). Therefore, Defendant UPS asserts
that there would not have been any daily report documents
that existed regarding Defendant Semmler. (Id.).
it is unclear whether Defendant UPS is asserting that due to
Defendant Semmler's schedule there would not have been
any daily reports to review for the six months prior to the
accident or whether Defendant UPS is only referring to a
limited period. Furthermore, Defendant UPS does not actually
state whether or not Rick Runnells actually reviewed
Defendant Semmler's logs. Defendant UPS failed to provide
any explanation of its steps to make a reasonably inquiry
into who audited Defendant Semmler's driver's logs
for the six months prior to the accident and the date of the
accident. Defendant UPS is in the best position to determine
whether there were/are any daily reports for Defendant
Semmler and who reviewed those daily reports if and when they
once Defendant UPS determines who actually reviewed Defendant
Semmler's reports, it should provide to Plaintiff
Merriweather the complete identification information. A party
must provide “the name and, if known, the address and
telephone number of each individual likely to have
discoverable information-along with the subjects of that
information-that the disclosing party may use to support its
claims or defenses, unless the use would be solely for
impeachment[.]” Escalera v. Bard Medical, a
Division of C.R. Bard, Inc., 4:16-CV-00121-JHM, 2017 WL
4012966, at *6 (W.D. Ky. Sept. 12, 2017) (quoting
Fed.R.Civ.P. 26(a)(1)(A)(i)). As such, Plaintiff
Merriweather's request to compel a response to
Interrogatory No. 7 is GRANTED.
INTERROGATORY NO. 10: If you contend that
anyone other than a named Defendant has any responsibility of
any kind for the wreck, and/or for any of the damages alleged
in the Plaintiff's Complaint:
a. identify each such person and or entity;
b. describe in detail the basis for their ...