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J.B. Burrell v. Duhon

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

October 16, 2019

J.B. BURRELL, JR., et al. PLAINTIFFS
v.
LINDY W. DUHON, et al. DEFENDANTS

          OPINION AND ORDER

          LANNY KING, MAGISTRATE JUDGE

         Judge Thomas B. Russell referred this matter to Magistrate Judge Lanny King for ruling on all discovery motions. (Docket # 23). This matter is before the Court on Plaintiffs J. B. Burrell, Jr. and Marie Burrell's Third Motion to Compel Discovery. (Docket # 98). Defendants Lindy W. Duhon, Lindy Duhon Trucking, LLC, Forward Air, Inc., Forward Air Corporation, and Forward Air Technology and Logistics Services, Inc., have responded. (Docket # 103). This matter is ripe for adjudication.

         For the reasons stated herein, Plaintiff's Third Motion to Compel is GRANTED IN PART AND DENIED IN PART. (Docket # 98).

         Factual Background

         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).

         Relevant Procedural Background

         Following removal, Judge Russell referred all discovery matters to Magistrate Judge King. (Docket #23). Plaintiffs filed a Motion to Compel certain discovery from Defendants. (Docket # 33). Judge King issued an Opinion and Order granting in part and denying in part Plaintiff's Motion to Compel. (Docket # 62). Defendants then filed Objections to Judge King's Opinion and Order. (Docket # 66). Judge Russell issued a Memorandum Opinion and Order sustaining in part and overruling in part the objections to Judge King's Opinion and Order. (Docket # 105).

         Plaintiffs have now filed a Third Motion to Compel Discovery.[1] (Docket # 98). Plaintiffs seek to compel production of information responsive to requests for production of documents, which were subpoenaed, along with notices of the Rule 30(b)(6) deposition of Forward Air, the deposition of Timothy Parker, and the deposition of Forward Air Senior Vice President of Safety, Matt Casey. (Id.). Defendants have filed a response, arguing that Plaintiffs' Motion “is without substantive merit and appears to be duplicative of issues raised in their previous motions to compel, and/or are the subjects of the pending Objections to the Magistrate's Order filed with the Court on June 13, 2019.”[2] (Docket # 103 at 1).

         Legal Standard

         The Relevance Standard

         Rule 26(b)(1) of the Federal Rules of Civil Procedure allows parties to “obtain discovery regarding 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); see also FED.R.CIV.P.26(b) Advisory Committee's Note to 2015 Amendment. 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 proponent of a motion to compel discovery bears the initial burden of demonstrating relevance. See Gruenbaum v. Werner Enters., Inc., 270 F.R.D. 298, 302 (S.D. Ohio 2010); Anderson v. Dillard's, Inc., 251 F.R.D. 307, 309-10 (W.D. Tenn. 2008). The spirit and purpose of the Federal Rules of Civil Procedure demonstrate that the relevance threshold is a relatively low one. See John Wiley & Sons, Inc. v. Book Dog Books, LLC, 298 F.R.D. 184, 186 (S.D.N.Y. 2014); Wrangen v. Pa. Lumbermans Mut. Ins. Co., 593 F.Supp.2d 1273, 1278 (S.D. Fla. 2008).

         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.” 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 party 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).

         Standard for Production Linked with Depositions

         Rule 30 permits parties to conduct discovery through use of depositions. When a corporation is the party to be deposed, a party must name the entity and “describe with reasonable particularity the matters for examination.” Fed.R.Civ P.30(b)(6). “The named organization must then designate one or more officers, directors, or managing agents, or designate other persons who consent to testify on its behalf; and it may set out the matters on which each person designated will testify.” Id. A corporate designation under this Rule serves to distinguish the testimony of a fact witness from the testimony of the representative of the corporate entity itself. Jecker v. Monumental Life Ins. Co., No. 3:12-CV-219-DJH, 2014 WL 4063568, at *1 (W.D. Ky. Aug. 15, 2014) (citing FED.R.CIV.P.30(b)(6)).

         Additionally, a party may serve a subpoena seeking production of documents related to the subject matter of a deposition. FED.R.CIV.P.30(b)(2). The request must “describe with reasonable particularity each item or category of items to be inspected.” Consumer Financial Protection Bureau v. Borders & Borders, PLC, Civil Action No. 3:13-CV-1047-CRS, 2016 WL 9460471, at *3 (W.D. Ky. June 29, 2016) (citing Great Amer. Ins. Co. of New York v. Vegas Const. Co Inc., 251 F.R.D. 534, 541 (D. Nev. 2008)). The party who seeks discovery pursuant to the Rule must describe the matters to be explored in the deposition with “reasonable particularity” sufficient to enable the responding corporation or business entity to produce a representative witness who can testify to the entity's knowledge on the topics so identified. Consumer Financial Protection Bureau, 2016 WL 9460471, at *3 (citing QBE Ins. Corp. v. Jorda Enterprises, Inc., 277 F.R.D. 676, 687-92 (S.D. Fla. 2012)) (setting forth the 37 fundamental principles for 30(b)(6) depositions “into a de facto Bible governing corporate depositions.”). A party has 30 days after being served with the notice and subpoena to respond to the requests. FED.R.CIV.P.34(b)(2)(A).

         Analysis

         Plaintiffs seek to compel production as relates to various requests attached to deposition notices. For ease of organization and comprehension, the Court has categorized the requests into three broad groups: (1) Requests for Production to which Defendants assert that they have provided all responsive information within their possession, custody, or control; (2) Requests for Production explicitly addressed in Judge Russell's Memorandum Opinion and Order (Docket # 105); and (3) Requests for Production to which Defendants have objected.

         I. Items 20, 26, 34, the Organizational Chart, and the List of Employees requested with the Notice of 30(b)(6) Deposition Notice for Corporate Representative Matt Casey; Items 18, 20, 22, 23, and 31 requested in the Notice of Deposition of Timothy Parker; Items 9, 10, 11, and ...


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