United States District Court, W.D. Kentucky, Paducah Division
J.B. BURRELL, JR., et al. PLAINTIFFS
LINDY W. DUHON, et al. DEFENDANTS
OPINION AND ORDER
King, Magistrate Judge.
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).
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
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).
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).
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)).
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.
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
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.
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.
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.
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
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
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
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.
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
• 49 CFR § 392.3 - Operating a Commercial Motor
Vehicle (CMV) while ill, fatigued, or impaired by illness or
• 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).
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
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
Motion to Compel a response to Interrogatory No. 8 is
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.
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
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.).
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.
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.
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).
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.
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.
Plaintiffs Motion to Compel further information pursuant to
Interrogatory No. 13 ...