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
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.
reasons stated herein, Plaintiff's Third Motion to Compel
is GRANTED IN PART AND DENIED IN PART. (Docket # 98).
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.
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).
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).
have now filed a Third Motion to Compel
Discovery. (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.” (Docket # 103 at 1).
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.
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)).
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.
for Production Linked with Depositions
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
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).
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
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 ...