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Merriweather v. United Parcel Service, Inc.

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

July 25, 2018

ROBERT L. MERRIWEATHER PLAINTIFF
v.
UNITED PARCEL SERVICE, INC., et al. DEFENDANTS

          OPINION AND ORDER

          LANNY KING, MAGISTRATE JUDGE UNITED STATES DISTRICT COURT

         Senior 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).

         This 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.).

         Analysis

         Legal Standard

         Under 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)).

         Federal 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)).

         If a 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).

         Local Rule 37.1 and Federal Rule of Civil Procedure 37(a)(2)(b)

         At the 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.

         Federal 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.”

LR 37.1.

         On 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).

         Defendant 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.

         UPS' Verification Page

         Before 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.

         UPS' 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.).

         Federal 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).

         Merriweather 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.

         Moreover, 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.

         Plaintiff Merriweather's First Set of Interrogatories

         Rule 33 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 omitted).

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 information;
g. Safety Director;
h. Director of Fleet Safety Program;
i. The dispatcher(s) for the trip which ultimately resulted in the wreck;[1]

         Merriweather 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.).

         Defendant 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.

         Rule 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.

         Merriweather 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).

         Merriweather 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.

         “The 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.”).[2]

         Although 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 GRANTED.

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 driver's logs.

         Merriweather 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).

         Merriweather 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.[3] 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.).

         Here, 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 existed.[4]

         Moreover, 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 ...

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