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Burrell v. Duhon

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

May 31, 2019



          Lanny King, Magistrate Judge.

         Senior Judge Thomas B. Russell referred this matter to Magistrate Judge Lanny King for ruling on all discovery motions. (Docket #23). Plaintiffs J.B. Burrell, Jr. and Marie Burrell (hereinafter “Burrells”) filed a Motion to Compel certain discovery from Defendants Lindy W. Duhon, Lindy Duhon Trucking, LLC (hereinafter “Duhon”), Forward Air Inc., Forward Air Corporation, FAF, Inc. (TN), Forward Air Services, LLC, Forward Air Solutions, Inc., and Forward Air Technology and Logistics Services, Inc. (collectively “Forward Air Defendants”). (Docket #33). The Forward Air Defendants filed a Response in opposition and the Burrells filed their reply. (Docket #34, Docket #35). Fully briefed, this matter is now ripe for adjudication. For the reasons detailed below, the Plaintiffs' Motion to Compel is GRANTED in part and DENIED in part. (Docket #33).


         This matter arises from an action for personal injury by Plaintiffs, team truck drivers, who were traveling on Interstate 24 in Marshall County, Kentucky on September 30, 2017 at around 2:00 a.m. Defendants' tractor-trailer, operated by Mr. Duhon, had overturned onto its side and was stationary, having come to rest in the middle of the road. The front of the vehicle was facing backward toward oncoming traffic, with the underside facing eastward. Plaintiff J.B. Burrell, driving his own tractor-trailer, came upon the Defendants' a few minutes later and collided with the overturned vehicle. Plaintiffs J.B. Burrell and Marie Burrell were both injured in the collision. On August 24, 2018, the Plaintiffs filed their lawsuit in Marshall Circuit Court, where it was subsequently removed to this Court. (Docket #1-4).

         Plaintiffs assert six separate claims against Duhon and the Forward Air Defendants: (1) negligence; (2) negligence per se; (3) strict liability; (4) vicarious liability; (5) negligent hiring, retention, and training; and (6) gross negligence. (Docket #1-4 at 10-14; Docket #33 at 3). In bringing these claims, the Plaintiffs seek to clarify the relationship between Duhon and the Forward Air Defendants. Additionally, Plaintiffs state that they seek to place the fitness of Defendant Duhon into question, as well as the leasing practices between Duhon and the Forward Air Defendants. (Docket #33 at 4-6).

         On November 9, 2018, Plaintiffs served their first set of discovery requests upon the Defendants. (Docket #33 at 2). Given the number of Defendants, a total of eighteen sets of requests were served by Plaintiffs. (Docket #34 at 2). Defendants served their discovery responses and objections on January 2, 2019. (Docket #33 at 2). Following discussions between the parties, Judge King held a telephonic status conference on January 25, 2019 to attempt to resolve the outstanding discovery disputes. (Id.). During the status conference, Judge King granted leave for Plaintiffs to file a Motion to Compel discovery, to which Defendants responded on February 14, 2019 and Plaintiffs replied on February 21, 2019. (Docket #s 33, 34, & 35).

         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)). The party resisting discovery has the burden to “show that the material sought either falls beyond the scope of relevance, or is so marginally relevant that the potential harms of production outweigh the presumption in favor of broad disclosure.” Bentley v. Highlands Hosp. Corp., No. 7:15-CV-97-ART-EBA, 2016 WL 762686 at *1, (E.D. Ky. Feb. 23, 2016). 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 discovery in resolving the issues.” Albritton, 2016 WL 3580790 at *3, (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)).

         A Plaintiff may not be permitted to “go fishing” through discovery requests that are “too broad and oppressive.” Surles ex rel Johnson v. Greyhound Lines, Inc., 474 F.3d 288, 305 (6th Cir. 2007). A discovery request for otherwise relevant documents may be too broad or otherwise overly burdensome when it applies to a generally broad category or group of documents or a broad range of information, see Transamerica Life Inc. Co. v. Moore, 274 F.R.D. 602, 609 (E.D. Ky. 2011), or where it requires the producing party to incur excessive costs that outweigh the benefits to the requesting party. Fed.R.Civ.P. 26(2)(b).

         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 Dallas, 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)). Federal Rule 33 requires that objections be made with specificity. Janko Enterprises, Inc. v. Long John Silver's, Inc., 2013 WL 5308802 at *7 (W.D. Ky. Aug. 19, 2013) (“Unexplained and unsupported ‘boilerplate' objections are clearly improper.”).

         If a party 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, 2016 WL 3580790 at *3.

         The Burrells' Interrogatories[1]

         Rule 33 of the Federal Rules of Civil Procedure sets forth the process of discovery via use of interrogatories. Interrogatories may “relate to any matter that may be inquired to under Rule 26(b). Fed.R.Civ.P. 33(a)(2). “Each interrogatory must, to the extent it is not objected to, be answered separately and fully in writing and under oath.” Fed. R. Civ. P.33(b)(3). “A party to whom an interrogatory is propounded ‘must provide true, explicit, responsive, complete, and candid answers.'” Walls v. Paulson, 250 F.R.D. 48, 50 (D.D.C. 2008) (quoting Equal Rights Ctr. v. Post Properties, Inc., 246 F.R.D. 29, 32 (D.D.C. 2007)). Any objections to interrogatories must be stated “with specificity.” Fed. R. Civ. P.33(b)(4).

INTERROGATORY NO. 5: Identify the source(s), basis(s), amount(s), manner(s), and extent(s) of all compensation and payments to Defendants Lindy W. Duhon, Lindy Duhon Trucking, LLC, and Loretta M. Duhon during 2016, 2017, and specifically for the trip in question culminating in the collision on September 30, 2017.

         Plaintiffs request Defendants identify all payments and details surrounding those payments to the Duhons in 2015, 2016, and 2017, leading up to the incident on September 30, 2017. Defendants object to this interrogatory on grounds of undue burden, relevance, and proportionality. (Docket #34-2 at 5). Over their objection, Defendants assert that the Duhons were independent contractors compensated pursuant to the terms of their contracts. Id.

         Defendants argue that they have provided detailed documentation to Plaintiff on the specific amount of driving Defendant Duhon performed in the ten-day period prior to the accident. They further argue that the specifics of Duhon's financial situation, particularly as relates to his ability to pay his lease via his work for the Forward Air Defendants, is not relevant. Plaintiffs seek to show a principal agent relationship between the Defendants to establish vicarious liability.

         The Court agrees that the payments from the Forward Air Defendants to Defendant Duhon are relevant to this litigation and should be produced. The Forward Air Defendants admit that Defendant Duhon was an independent contractor in their employ at the time of the accident. This relationship is relevant to the litigation at issue. In attempting to prove liability, Plaintiffs seek to show that the Forward Air Defendants were vicariously liable for the actions of their agent/employee, Defendant Duhon, at the time of this accident. They also seek to show a failure of supervision and training by Forward Air with respect to its agent/employee, Defendant Duhon. The method by which Defendant Duhon was paid is one factor that can be considered in establishing a relationship that shows vicarious liability.

         However, Loretta Duhon's financial information is not relevant to this case and not within the scope of discovery. Loretta Duhon is not a named party in this suit, nor was she driving the vehicle at the time of this collision. Additionally, the Defendants' point regarding the Plaintiffs' requests for financial information to verify the sufficiency of his finances to meet his tractor-trailer lease obligations is well-taken.

         For these reasons, Plaintiffs' Motion to Compel a response to Interrogatory No. 5 is GRANTED as to Lindy Duhon and Lindy Duhon Trucking, LLC. Plaintiff's Motion to Compel a response to Interrogatory No. 5 is DENIED as to third-party Loretta M. Duhon.

INTERROGATORY NO. 8: Identify all violations of the FMCSR assessed against this Defendant during 2016, 2017, and 2018.

         Plaintiffs seek disclosure of all violations of the Federal Motor Carrier Safety Regulations (“FMCSR”) by Defendants. Defendants object based on lack of relevance, as well as disproportionality. (Docket #34 at 7-8). Over his objection, Defendant Duhon volunteered that he was not assessed any FMCSR violations stemming from the accident on September 30, 2017. (Docket #33 at 6-7). At the telephonic status conference on February 1, 2019, Plaintiffs counsel offered to narrow the scope of this interrogatory to only include violations of the following regulations from 2012 to 2018:

• 49 CFR § 392.3 - Operating a Commercial Motor Vehicle (CMV) while ill, fatigued, or impaired by illness or other cause;
• 49 CFR § 391.11 or § 391.15 - Driver not physically qualified, driving a CMV while disqualified, suspended for safety or non-safety related reasons;
• 49 CFR § 385.3 and § 385.11 - Identify all preliminary, proposed, conditional, unsatisfactory, or unfit final safety ratings received by any Defendant.

(Docket #33 at 7).

         “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 or control.”).[2]

         The Defendants are obligated to produce information within their knowledge or control if requested in discovery and such requested information relevant. Plaintiffs have brought causes of action that implicate the fitness for duty of individuals in the Defendants' employ. The practices of the Defendants in qualifying their drivers for duty is relevant to this case. If a pattern of sending out disqualified drivers or drivers in sub-optimal health conditions exist, it may tend to prove or disprove the claims of the Plaintiffs. The Defendants do not dispute that this information is within their possession, they state only that it would take “hundreds of man-hours” to comply with this request. (Docket #34 at 7-8.). The Defendants may indeed have a complex corporate structure that necessitates onerous recordkeeping. However, this information is within the custody and control of the Defendants and is relevant to this litigation. Once relevance has been established, the burden is on the responsive party to prove a lack of relevance, or a disproportionate harm from the production. Bentley, 2016 WL 762686 at *1. Defendants have done neither here.

         Plaintiffs' Motion to Compel a response to Interrogatory No. 8 is GRANTED.

INTERROGATORY NO. 9: Identify all lawsuits since 2000 in which this Defendant was named as a party (by jurisdiction, docket number, adverse party, and adverse counsel) and describe the type of suit, resolution, and approximate date of resolution.

         Plaintiffs request disclosure of all lawsuits since 2000 in which Defendants were named as a party. The Forward Air Defendants object to this interrogatory, citing relevance, proportionality, and undue burden. (Docket #34 at 8-9). Plaintiffs subsequently modified their request to only include “personal injury and/or property damage lawsuits involving collisions of Forward Air commercial vehicles from and after 2000 to the present. (Docket #35 at 3).

         Plaintiffs argue that identification of Defendants' previous participation in lawsuits will “help us determine if there is a pattern of negligence, repetitive operational deficiencies, or systemic neglect that amounts to willful or wanton misconduct, to justify a claim for punitive damages.” (Docket #33 at 7-8). Alternatively, the Plaintiffs argue that past litigation may uncover arguments relating to collateral estoppel, issue preclusion, and/or res judicata. (Id. at 8). The Forward Air Defendants responded that information regarding their participation in past lawsuits has nothing to do with this case and that issues of collateral estoppel, issue preclusion, and/or res judicata will not be at issue in this litigation, unless the Plaintiffs were involved in any of the previous suits. (Docket #34 at 8-9). Defendants also argue that Plaintiffs are free to conduct their own research on this issue, as Court cases are part of the public record. (Id.).

         The Court finds that the Defendants' objections to Interrogatory No. 9 are without merit. Information regarding prior personal injury and property damage lawsuits involving Defendants' commercial vehicles are relevant. Federal district courts have previously found that prior complaints, claims, and lawsuits of similar incidents may not be admissible as evidence at trial, but they are relevant and discoverable, regardless of their potential inadmissibility. Cornelius v. Consol. Rail Corp., 169 F.R.D. 250, 251-52 (N.D.N.Y. 1996); See also Laws v. Cleaver, 199 WL 33117449 *1 (D.Conn. Nov. 17, 1999) (permitting discovery of defendants' prior disciplinary hearings, administrative actions and any prior lawsuits, but only to the extent that allegations were made for excessive force or mistreating an inmate); Cox v. McClellan, 174 F.R.D. 32, 34- 35 (W.D.N.Y. June 11, 1997) (finding that prior complaints made against the defendants and incidents of excessive force by individual defendants are clearly discoverable in Section 1983 actions); Douty v. Rubenstein, 2015 WL 1541720 at *1, *8 (S.D. W.Va. Apr. 7, 2015) (finding that requests for disclosure of lawsuits with similar underlying facts against defendants was relevant and not overly broad). This information is within the bounds of discovery contemplated by Rule 26.

         Accordingly, Plaintiff's Motion to Compel a response to Interrogatory No. 9 is GRANTED.

INTERROGATORY NO. 13: Please identify the persons/entities who loaded, unloaded, and secured any cargo from the commercial motor vehicle driven by Defendant Duhon on September 30, 2017, and identify the shippers and consignees of all such cargo.

         Interrogatory No. 13 seeks the names of persons and entities who loaded, unloaded, and secured the cargo on Defendant Duhon's vehicle on the date of the accident, as well as the shippers and consignees of the cargo. Defendants state that they have provided information responsive to this interrogatory and that they cannot produce information that they do not have. (Docket #34 at 9).

         A party cannot be compelled to produce information that it does not possess. Peavey v. Univ. of Louisville, No. 3:09-CV-00484-R, 2011 WL 1106751 at *7 (W.D. Ky. Mar. 23, 2011). However, Plaintiffs are entitled to assurances that the Defendants have worked to verify that these documents are not within their possession or do not exist. Id. In response to this interrogatory, Defendants provided a “freight manifest” that contained information about the shippers and consigners of the cargo in Defendant Duhon's trailer. (Docket #33-6). Defendants have provided the information they have in response to this interrogatory and stated they have no further information. A party cannot be compelled to provide information it does not have.

         However, Plaintiffs are entitled to a supplemental sworn statement from the Defendants affirming the lack of possession or nonexistence of these documents. Defendants must supplement their responses with a statement that they do not have any further responsive documents to this interrogatory.

         Accordingly, Plaintiffs Motion to Compel further information pursuant to Interrogatory No. 13 ...

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