CRST Expedited, Inc v. Swift Transportation Co, Inc
Filing
100
ORDER granting in part and denying in part 81 Motion to Compel (see text of Order). Signed by Judge CJ Williams on 9/18/2018. (skm)
IN THE UNITED STATES DISTRICT COURT
FOR THE NORTHERN DISTRICT OF IOWA
CEDAR RAPIDS DIVISION
CRST EXPEDITED, INC.,
Plaintiff,
No. 17-CV-25-CJW
vs.
SWIFT TRANSPORTATION CO. OF
ARIZONA, LLC,
ORDER
Defendant.
____________________
This matter is before the Court on plaintiff’s Motion to Compel. 1 (Doc. 81).
Defendant timely filed its resistance (Doc. 89), plaintiff timely filed a reply (Doc. 96;
see also Docs. 94-95), and with leave of the Court, defendant filed a sur-reply. (Doc.
99). For the following reasons, plaintiff’s motion is granted in part and denied in part.
I.
INTRODUCTION
Both plaintiff and defendant are trucking companies that rely upon drivers to
transport goods. These drivers must either hold or obtain commercial driver’s licenses.
Plaintiff alleges that it has established a driver training program to allow individuals to
obtain such licenses. (Doc. 43, at 2). Plaintiff further alleges that in exchange for
plaintiff training its drivers, the drivers sign a contract in which they agree to a ten-month
exclusive employment term with plaintiff. (Id., at 2-3). The contract also appears to
contain a liquidated damages provision. (Doc. 2-1, at 2-3).2 Plaintiff alleges that
1
The Court also notes that defendant filed a motion to compel (Doc. 61), and that defendant’s
motion to compel is still pending. Defendant’s motion is not contemplated in this Order.
2
This citation is to Exhibit A of plaintiff’s original complaint. Although the original complaint
defendant has wrongfully recruited—and continues to recruit—plaintiff’s drivers to
breach their contracts with plaintiff in favor of working for defendant. (Doc. 43, at 4).
As such, plaintiff brought claims against defendant for intentional interference with
prospective economic advantage, unjust enrichment, and intentional interference with
contract, and seeks a permanent injunction enjoining defendant “from any further or
continued interference with [plaintiff’s] prospective economic advantage and/or contracts
with its drivers.” (Doc. 43). The parties have encountered a number of discovery
disputes, and plaintiff now seeks to compel responses to certain of plaintiff’s requests for
production and answers to certain of plaintiff’s interrogatories.
II.
APPLICABLE LAW
Federal Rule of Civil Procedure 26(b) provides the scope and limitations of
discovery:
Parties may obtain discovery regarding any nonprivileged matter that is
relevant to any party’s claim or defense and proportional to the needs of the
case, considering the importance of the issues at stake in the action, the
amount in controversy, the parties’ relative access to relevant information,
the parties’ resources, the importance of the discovery in resolving the
issues, and whether the burden or expense of the proposed discovery
outweighs its likely benefit. Information within this scope of discovery
need not be admissible in evidence to be discoverable.
“In a discovery context, relevancy ‘has been construed broadly to encompass any
matter that bears on, or that reasonably could lead to other matter that could bear on, any
issue that is or may be in the case.’” In re Motion to Quash Subpoena to Bergan, Paulsen
& Co., Nos. 7:10-cv-00434, 11-mc-00072-JSS, 2012 WL 117120, at *1 (N.D. Iowa Jan.
13, 2012) (quoting Oppenheimer Fund, Inc. v. Sanders, 437 U.S. 340, 351 (1978)). The
no longer governs this case, the Court understands that the representative employment contract
(Exhibit A) attached to the original complaint is the same contract that continues to be at issue
in this case.
2
scope of discovery is liberal in nature, and the party resisting discovery bears the burden
of showing, specifically, “that the requested documents either do not come within the
broad scope of relevance defined pursuant to [Federal Rule of Civil Procedure 26(b)(1)]
or are of such marginal relevance that the potential harm occasioned by discovery would
outweigh the ordinary presumption in favor of broad disclosure.” St. Paul Reinsurance
Co. v. Comm. Fin. Corp., 198 F.R.D. 508, 511-12 (N.D. Iowa 2000). In spite of the
broad scope of discovery, however, the propounding party must make “[s]ome threshold
showing of relevance . . . before parties are required to open wide the doors of discovery
and to produce a variety of information which does not reasonably bear upon the issues
in the case.” Hofer v. Mack Trucks, Inc., 981 F.2d 377, 380 (8th Cir. 1993).
III.
DISCUSSION
Plaintiff served interrogatories and requests for production on defendant on June
6, 2018. (Doc. 81, at 1). Defendant provided objections to the requests for production
on July 10, 2018, and provided unverified interrogatory answers and objections on July
26, 2018. (Id.). Plaintiff asserts that defendant has yet to provide verified answers, and
defendant does not dispute this contention. (Doc. 81-1, at 2). Plaintiff now makes a
number of arguments regarding defendant’s allegedly deficient discovery responses.
First, plaintiff argues that defendant waived any right to object to plaintiff’s third set of
interrogatories by failing to timely make such objections. Further, plaintiff argues that
certain discovery requests are relevant to damages, certain are relevant to defenses
defendant may raise, and that plaintiff’s attempts to expand the electronically stored
information (“ESI”) protocol are proper. As will be discussed infra, plaintiff made
certain other discovery requests with which defendant has since agreed to comply.
Notably, plaintiff has not sought to compel verification of defendant’s interrogatory
answers.
3
A.
Waiver of Objections
Plaintiff first argues that defendant “waived its untimely objections to
interrogatories because [defendant] cannot show good cause for the late response.” (Doc.
81-1, at 10). Although it is unclear whether defendant’s answers to plaintiff’s third set
of interrogatories have been verified at the present time, the parties agree that the
objections were untimely.
(Docs. 81-1, at 11; 89, at 7-8).
Plaintiff served its
interrogatories on defendant on June 6, 2018, making defendant’s responses due on July
9, 2018. (Doc. 81-3, at 24). FED. R. CIV. P. 6(a)(1), 33(b)(2). Defendant, however,
served its answers and objections on July 26, 2018, which was seventeen days after the
deadline to timely answer and object. (Doc. 81-3, at 40). Although the answers do not
appear to have been verified by July 26, 2018, the objections were signed by defendant’s
counsel in compliance with Federal Rule of Civil Procedure 33(b)(5).
Federal Rule of Civil Procedure 33(b)(4) provides that “[a]ny ground not stated in
a timely objection is waived unless the court, for good cause, excuses the failure.” In
determining whether good cause exists to excuse a failure to timely respond, the Court
considers: 1) the length of the delay; 2) the reason for the delay; 3) whether the
responding party acted in bad faith or engaged in any dilatory action; 4) whether the
requesting party has been prejudiced; 5) whether the request was overly burdensome; and
6) whether waiver would impose a harsh result on the defaulting party. E. Iowa Plastics,
Inc. v. PI, Inc., No. C12-2088, 2014 WL 2121502, at *3 (N.D. Iowa May 21, 2014).
Further, modern cases trend toward allowing trial courts great discretion in determining
whether a waiver of discovery objections has been effected. See id.; Cargill, Inc. v. Ron
Burge Trucking, Inc., 284 F.R.D. 421, 425-26 (D. Minn. 2012).
In the instant case, five of the six factors weigh in favor of excusing defendant’s
failure to timely object to plaintiff’s interrogatories. The delay was seventeen days,
which, although not insignificant, is not extreme. It does not appear as though defendant
4
acted in bad faith in delaying, as is evidenced by defendant’s communication with plaintiff
throughout the process of responding to the interrogatories. (See Doc. 81-1, at 10-11).
Likewise, the interrogatories propounded were thorough, and defendant’s responses
encompassed fifty-six double-spaced pages, with twelve-point font. This, together with
defendant’s statements that defendant required more time to respond, indicate that the
delay was due to the scope of the interrogatories and of defendant’s responses thereto.
(Doc. 81-3, at 41-96).
The Court has not been called upon to individually assess the burden on defendant
in responding to each interrogatory propounded, and the Court will, therefore, decline to
determine whether the burden was undue. The Court notes, however, that the burden
defendant would incur in responding to the interrogatories is not so minimal as to preclude
any finding of good cause for defendant’s delay.
At the time plaintiff filed its motion, discovery was set close on August 22, 2018,
approximately one month after defendant served its interrogatory answers and objections.
(Doc. 40). Since plaintiff filed its motion, however, the Court has continued the trial
and all then-existing deadlines, including the deadline for completing discovery. (Docs.
86, 87). As such, discovery is now set to close on January 14, 2019, which allows
plaintiff approximately six months from the date defendant served its answers and
objections to evaluate and contest defendant’s objections. Plaintiff does not assert any
basis for its claim of prejudice aside from the then-impending discovery deadline. (See
Doc. 81-1, at 10-11). As such, the Court finds that plaintiff has not been prejudiced by
defendant’s delay in objecting to plaintiff’s interrogatories.
Finally, if the Court were to hold that defendant waived its objections by virtue of
its untimely responses, such a holding would result in an impermissibly harsh remedy.
The Court recognizes that this has been a contentious litigation with delays on both sides
and that the sheer scope of this case has made compliance with deadlines difficult, though
5
not impossible. Based on the nature of this case and the course of litigation thus far, the
Court finds that it would be too harsh a penalty to strike all of defendant’s objections to
plaintiff’s third set of interrogatories, especially where the Court has not imposed such
sanctions on plaintiff for similar delays.
The Court therefore declines to strike
defendant’s objections to plaintiff’s third set of interrogatories. (see Doc. 81-3, at 4196).
B.
Financial Information
Turning now to the first of plaintiff’s more specific arguments, plaintiff seeks to
compel the production of financial information sought in Interrogatory Number Eighteen,
and Request for Production Numbers Fifty-One through Fifty-Four. The discovery
requests at issue are as follows:
Interrogatory [Eighteen]: For the 2016 calendar year, state [defendant’s]
average profit per driver in its fleet, including the identification of all driver
counts and revenue and expense descriptions and amounts utilized to make
that computation.
(Doc. 81-3, at 8).
[Request for Production Fifty-One]: [Defendant’s] income statement for
each of the years 2012 through 2017.
[Request for Production Fifty-Two]: Each document [defendant] used to
answer [plaintiff’s] Interrogatory 18.
[Request for Production Fifty-Three]: A copy of each financial statement
that contains [defendant’s] operating revenues for each of the years 2012
through 2017.
[Request for Production Fifty-Four]: A copy of each financial statement
that contains [defendant’s] operating expenses for each of the years 2012
through 2017.
(Doc. 81-3, at 31-33).
6
Plaintiff argues that the information sought in these discovery requests is a
“constituent part of [plaintiff’s unjust enrichment damages] calculation, and directly
relevant to [plaintiff’s] damages in this matter.” (Doc. 81-1, at 12-13). Defendant, in
response, contends that the information sought in Interrogatory Number Eighteen and
Request for Production Fifty-Two is not maintained and defendant, therefore, cannot
produce the information or respond to the Interrogatory.3 (Doc. 89, at 10-11). Further,
defendant contends that the information sought in each of the aforementioned requests
for production is publicly available, and defendant claims that it need not produce
information that is publicly available. (Id., at 9-10).
1.
Non-Existence
Defendant asserts that the information sought in Interrogatory Number Eighteen
and Request for Production Fifty-Two does not exist, and plaintiff has not provided a
basis for its belief otherwise.
Plaintiff’s statement that defendant “has institutional
knowledge . . . upon which it can make this average profit per driver calculation in
response to [plaintiff’s] Interrogatory [Eighteen], and possesses financial statements
directly responsive to request[ ] . . . [Fifty-Two] . . .” is not evidence, and the Court
cannot compel defendant to produce the information sought based on plaintiff’s mere
3
Defendant makes two separate statements with respect to the subject information. Defendant
first states that the information sought is not maintained “in the ordinary course of business.”
(Doc. 89, at 10). Defendant goes on to further explain as follows: “The fact that [plaintiff] may
maintain this information does not mean [defendant] does. [Defendant] cannot produce what
does not exist.” (Id.). Additionally, defendant includes a parenthetical citation explaining that
in a cited case, this Court “den[ied a] motion to compel where documents did not exist.” (Id.
(citing Joint Venture v. Fireman’s Fund Ins. Co., No. 13-CV-4106-CJW, 2017 WL 562418, at
*2 (N.D. Iowa Feb. 10, 2017))). Although defendant never explicitly states that the information
does not exist, defendant certainly implies as such. The Court will therefore proceed as though
any ambiguity as to whether the information exists is unintentional, and the Court will proceed
as though the information does not exist.
7
assertions.4 (Doc. 81-1, at 13). See also Minneapolis Firefighter’s Relief, Ass’n v.
Medtronic, Inc., No. 08-6324 PAM/AJB, 2012 WL 12897388, at *1 (D. Minn. Jan. 19,
2012) (denying motion to compel on ground that plaintiffs did not establish that the
information sought existed in a format maintained by defendant). As defendant maintains
that the information sought does not exist and there is no indication to the contrary, the
Court has no avenue by which to grant plaintiff’s motion as to Interrogatory Eighteen and
Request for Production Fifty-Two.
See Joint Venture, 2017 WL 562418, at *2
(confronting the same issue of alleged non-existence and itemizing seven cases supporting
the proposition that the Court has no ability to compel production of that which does not
exist).
The Court finds it possible that defendant has raw data from which it could
calculate its average profit per driver. To the extent plaintiff seeks the raw data upon
which an average profit per driver calculation could be based, as plaintiff views such a
calculation, Interrogatory Eighteen and Request for Production Fifty-Two have not been
tailored to request such specific information. As such, plaintiff’s motion is denied with
respect to Interrogatory Eighteen and Request for Production Fifty-Two.
2.
Public Availability
With respect to Requests for Production Fifty-One through Fifty-Four, defendant
argues that because the information sought is publicly available, defendant need not
produce the information. Defendant, however, is mistaken. Although courts in other
circuits have declined to compel production of publicly available documents, 5 courts in
4
In its reply brief, plaintiff again suggests that defendant should have the necessary information
to enable defendant to complete the calculations requested. (Doc. 96, at 3). Plaintiff, however,
offers no basis for the belief that defendant is capable of responding to the Interrogatory in full.
5
See, e.g., Bleecker v. Standard Fire Ins. Co., 130 F. Supp.2d 726, 738-39 (E.D.N.C. 2000)
(denying motion to compel where information sought was publicly available); Dushkin Publ’g
Grp., Inc. v. Kinko’s Serv. Corp., 136 F.R.D. 334, 335 (D.D.C. 1991) (same); S.E.C. v.
8
the Eighth Circuit have explicitly rejected that position. Indeed, this very Court has held
“the fact that [documents that are the subject of an appropriate discovery request] are
publicly available is not a substantial justification for untimely production, nor does it
make the failure to timely produce them harmless.” Transamerica Life Ins. Co. v.
Lincoln Nat’l Life Ins. Co., 255 F.R.D. 645, 652 (N.D. Iowa 2009).
See also
CitiMortgage, Inc. v. Allied Mortg. Grp., Inc., No. 4:10CV01863 JAR, 2012 WL
1554908, at *4 (E.D. Mo. May 1, 2012) (requiring production of publicly available
information because defendant was in the best position to identify information responsive
to the discovery request). As such, the Court finds that the public availability of the
documents does not preclude defendant from being required to produce the documents,
if the requests are otherwise proper.
3.
Other Objections to Requests for Production Fifty-One Through
Fifty-Four
Defendant objects to Requests for Production Fifty-Three and Fifty-Four because
the requests purportedly “seek[ ] confidential and sensitive business information,” and
contain certain terms that are vague. (Doc. 81-3, at 33). Defendant has failed to
substantiate these objections, however, and the Court is unable to ascertain the bases for
these objections. As such, defendant has not met its burden with respect to objecting on
the basis of “confidential and sensitive business information” and vagueness.
See
Daughetee v. CHR Hansen, Inc., No. C09-4100-MWB, 2012 WL 12904379, at *2 (N.D.
Iowa June 15, 2012) (“The responding party may object to improper requests [for
production] but has the burden to substantiate its objections.”).
Defendant also objects to Requests for Production Fifty-One through Fifty-Four
on the bases that the requests are “overbroad and seek[ ] information that is not
proportional to the needs of the case.” (Doc. 81-3, at 31-33). Specifically, defendant
Samual H. Sloan & Co., 369 F. Supp. 994, 995-96 (S.D.N.Y. 1973) (same).
9
argues that financial statements and income statements pertaining to years 2012 through
2015 are not relevant to plaintiff’s claims because plaintiff “has not put forth any
allegations that [defendant] may have improperly recruited [plaintiff’s] drivers prior to
2016, [and,] therefore[, plaintiff’s] request for [documents] that contain [information] for
the years 2012-2015 are not relevant to [plaintiff’s] claims or Defendant’s defenses.”
(Id.).
In determining whether a discovery request is proportionate to the needs of the
case, the Court is to consider “the importance of the issues at stake, the amount in
controversy, the parties’ relative access to relevant information, the parties’ resources,
the importance of the discovery in resolving the issues, and whether the burden or
expense of the proposed discovery outweighs its likely benefit.”
FED. R. CIV. P.
26(b)(1). The Court is satisfied—and the parties seem to agree—that the issues at stake
in this case are of great importance and that the amount in controversy is significant.
Likewise, the litigation thus far has shown that both parties have substantial resources
and have taken advantage of those resources in furtherance of this case. Plaintiff asserts
that the information sought goes to its damages calculation, and defendant does not argue
that the expense of producing the information would outweigh any probative value the
information may have. As such, the Court will assume that the expense of producing the
information sought does not outweigh the information’s likely benefit.
The final remaining factor is significant here. Defendant contends that plaintiff
has ready access to the information sought and even provides the web address at which
the information can purportedly be found. (See Doc. 89, at 9 n.2). In its reply, plaintiff
elaborates on the requests at issue and explains that plaintiff seeks defendant’s “(detailed)
income statements as well as financial statements containing (detailed) operating revenues
and operating expenses for the time period of 2012-2017.” (Doc. 96, at 2). Plaintiff
further explains that the information available online is “consolidated (summary)
10
information.” (Id.). Finally, plaintiff explains that defendant “knows from discussion
and [plaintiff’s] production of detailed financials,” that the information plaintiff seeks is
not the “consolidated” information available online. (Id.).
As the Court has not been a party to discovery and to the parties’ discussions
regarding the scope of the requests at issue, the Court is not in a position to evaluate what
defendant should understand the requests to mean.
Assuming, however, that the
information is not available online, plaintiff would not have access to the information
sought aside from through discovery. As such, this factor would weigh in favor of
granting plaintiff’s motion to compel with respect to Requests for Production Fifty-One
through Fifty-Four. If the information is available online, the final factor would weigh
against compelling production. If available online, however, the burden on defendant in
producing the information would be so low that the balance would again tip in favor of
granting production. Either way, the balance of the factors would counsel in favor of
proportionality.
As such, the Court finds that the requests at issue are not
disproportionate to the needs of the case.
To the best of the Court’s understanding, defendant’s overbreadth objection rests
on the notion that plaintiff’s claims relate only to 2016 forward. The Court disagrees
that plaintiff limited its claims to involve those actions occurring only from 2016 onward,
and the Court therefore declines to limit discovery as strictly as defendant requests. The
Court has previously addressed the relevant period of discovery and again imposes the
same time limitation. (See Doc. 70, at 6). As such, defendant is directed to respond in
full to Requests for Production Fifty-One, Fifty-Three, and Fifty-Four for each of the
years 2013 through 2017.
C.
Independent Contractor Agreements
Plaintiff next seeks “[defendant’s] form independent contractor agreements for
trucking services for 2016 onward . . . because they typically include a daily value [that]
11
the trucking company charges an independent contract[or] if the independent contractor
does not return a trailer as scheduled.” (Doc. 81-1, at 14 (recounting information sought
in Request for Production Fifty-Six)). Further, plaintiff argues that “[t]he existence of a
value [that defendant] assigns to each day without a truck . . . has the tendency to show
[plaintiff’s] injury and damages from being deprived [of] a driver to fulfill [plaintiff’s]
own customer demands.” (Id.). In response, defendant argues, inter alia, that this case
addresses only employee drivers, not independent contractors used by defendant, and,
therefore, information pertaining to those independent contractors is irrelevant. (Doc.
89, at 11).
The Court finds that plaintiff has not met its burden of showing some threshold
level of relevance. See Hofer, 981 F.2d at 380. Plaintiff’s Second Amended Complaint
never once refers to independent contractors, and all references to the drivers at issue
concern those drivers who signed an employee contract with plaintiff, which allegedly
included a restrictive period during which the driver-signatory could not work for
plaintiff’s competitors. (See generally Doc. 43, & Doc. 43, at 3). The existence of the
non-competition provision is one indicator that this suit, in truth, concerns employees, as
opposed to independent contractors. See Nationwide Mut. Ins. Co. v. Darden, 503 U.S.
318, 323-24 (1992) (listing factors to be considered when determining whether a
relationship is that of an employer and employee).
Moreover, plaintiff has not alleged that this suit concerns independent contractors,
nor has plaintiff drawn a connection between defendant’s use of independent contractors
and plaintiff’s damages. Although plaintiff argues that a liquidated damages clause in the
form independent contractor agreement would show the value defendant places on “each
day without a truck,” which, plaintiff argues, would be probative on plaintiff’s damages,
12
plaintiff’s logic is flawed. (Doc. 81-1, at 14). Any liquidated damages provision6 in the
independent contractor agreement would be based on the damages incurred as a result of
a breach when considering all factors involved in the agreement, including the
employment status of the driver. Whether a driver is an employee or an independent
contractor is a material difference that could affect any applicable liquidated damages
provision. Plaintiff has failed to show that the level of damages incurred as a result of a
breach by an independent contractor is probative on the level of damages plaintiff
incurred as a result of allegedly being deprived of its employee-drivers. As such, plaintiff
has failed to make a threshold showing of relevance, and plaintiff’s motion to compel
with respect to Request for Production Fifty-Six is denied.
D.
ESI Protocol
Plaintiff next “seeks email correspondence from [defendant’s] personnel which
would show knowledge of [plaintiff’s] noncompetition provisions and tortious intent.”
(Doc. 81-1, at 14).
Specifically, Request for Production Fifty-Seven requests
“Documents containing any ESI Search Term and resulting from an ESI search of all
electronic mail accounts for [defendant’s] employees within [defendant’s] recruiting
department.”
(Doc. 81-3, at 35).
Request for Production Fifty-Eight requests
“Documents containing any ESI Search Term and resulting from an ESI search of all
electronic mail accounts for all persons having authority in the chain of command above
[defendant’s] recruiting department.” (Id.).
Although defendant does not argue that the documents sought are irrelevant,
defendant does argue that the two requests are excessively burdensome and
disproportionate to the needs of the case. (Doc. 89, at 11-13). Turning to the same five
6
Defendant contends that its form independent contractor agreement does not “include a daily
value which the trucking company charges an independent contract[or] if the independent
contractor does not return a trailer as scheduled.” (Doc. 89, at 11 (internal quotation marks and
alteration omitted)).
13
factors the Court consulted, supra, in determining proportionality, the Court finds that
with respect to the two instant Requests for Production, the turning point is the burden
on defendant in responding to the discovery requests, and the importance of the
documents sought.
Defendant has shown that producing the documents sought would be a daunting
task that could lead to the need to review over one million documents prior to production.7
(Id., at 12-13). Comparatively, defendant was previously called upon to produce 41,450
documents, which were produced over a span of approximately seven months. Based on
the number of employees whose email accounts would need to be searched in order to
comply with the two Requests for Production, the Court finds credible defendant’s
assertion that the task would be monumental and would likely be incredibly expensive.
As such, this factor weighs heavily in favor of denying plaintiff’s motion with respect to
Requests for Production Fifty-Seven and Fifty-Eight, as written.
Although the aforementioned considerations weigh heavily in favor of denying the
motion, a showing that the discovery would be invaluable could be sufficient to tip the
balance toward granting plaintiff’s motion as to this issue. Here, however, plaintiff has
failed to show that the probative value of the documents would be so great that the Court
should compel compliance with the two Requests. The Court does not doubt that the
responsive documents could be relevant, but this, alone, is insufficient to compel a party
7
Plaintiff argues that defendant has exaggerated the scope of defendant’s ESI production thus
far. (Doc. 96, at 4-5 n.6). The Court takes no position on this allegation. Even assuming
defendant has exaggerated the extent of its ESI production, however, the Court’s position does
not change. First, in asserting that defendant has exaggerated its ESI production, plaintiff relies
on the number of pages produced (Id.), while defendant’s figures are based on the number of
documents reviewed for production. (Doc. 89, at 12-13). These discrepancies largely account
for defendant’s assertion that compliance would be more burdensome than plaintiff realizes.
Further, defendant is in a better position than plaintiff to estimate the burden defendant would
be subjected to in complying with the Requests.
14
to incur such a great expense as would be incurred here. Plaintiff does not offer an
explanation for why defendant should be compelled to respond to the Requests for
Production as written, aside from the suggestion that defendant’s failure to respond to a
compromise offer warrants the Court mandating full compliance. Such a suggestion is
not sufficient to tip the balance in favor of granting plaintiff’s motion with respect to
Requests for Production Fifty-Seven and Fifty-Eight. As such, the Court declines to
compel compliance with Requests for Production Fifty-Seven and Fifty-Eight, as written.
E.
Dates and Circumstances of Avoidance
Plaintiff next seeks to compel defendant to answer Interrogatory Number
Nineteen, which provides as follows: “If [defendant] contends that a driver identified in
this case successfully avoided a contract with [plaintiff], completely describe the manner
in which each driver avoided the contract, including the identification of each driver and
the date of successful avoidance.” (Doc. 81-3, at 44). Since the time plaintiff filed its
motion, defendant has apparently agreed to provide the date of alleged avoidance for each
driver. (Doc. 96, at 6). Plaintiff has consequently narrowed its request to the Court and
now only seeks to compel defendant “to specify which manner of alleged avoidance
applies to [each] driver,” instead of simply providing a generic statement as to means of
avoidance employed by the body of drivers as a whole. (Id.). Defendant argues that it
is unable to determine whether a contract has been avoided without first knowing whether
a driver was “under contract” with plaintiff at the time of the alleged avoidance. (Doc.
89, at 13-15). Defendant further argues that the meaning of “under contract,” as used
by plaintiff, is ambiguous and defendant is, therefore, unable to answer the Interrogatory.
(Id.). The Court rejects defendant’s position.
First, the ability of defendant to provide the date of each alleged avoidance
undercuts defendant’s assertion that it is unable to ascertain whether a driver was “under
contract” on the date of the alleged avoidance. Second, although defendant may not be
15
able to definitively ascertain at this stage whether a driver was under contract on any
given day, defendant is capable of identifying those actions that could be considered acts
of avoidance, assuming a driver was under contract on the date or dates of alleged
avoidance. Therefore, for each driver for whom defendant may wish to argue avoidance
as a defense, defendant is directed to completely describe the manner of alleged
avoidance.
The Court recognizes that if defendant wishes to preserve its option to argue
avoidance as a defense, defendant may be required to draw some assumptions regarding
whether avoidance was effected. As the Court has not been called upon to resolve the
meaning of “under contract,” however, such assumptions are necessary. Reliance on
these assumptions may cause defendant to feel compelled to provide a greater deal of
information than defendant would provide if the meaning of “under contract” had already
been determined. Although this is possible, and although this could create a greater
burden on defendant, the Court finds it likely that this burden would not be excessive due
to the relatively small number of drivers at issue.
The Court also recognizes that
defendant may intend to advance an alternative theory that does not involve arguing
avoidance as a defense. If so, there would be no drivers for whom defendant may wish
to argue avoidance as a defense, and defendant would therefore not be required to provide
any additional information with respect to Interrogatory Number Nineteen. As such,
plaintiff’s motion to compel with respect to Interrogatory Number Nineteen is granted.
F.
Retention and Recruiting Data
Plaintiff’s Interrogatory Number Twenty states as follows: “For each of the
calendar years 2012 through 2017, identify all driver-related figures kept by [defendant’s]
recruiting or human resource department. [Defendant’s] answer may include
[defendant’s] driver turnover ratio, the number of drivers [defendant] hired, and the
number of qualified applicants [defendant] received for driving positions.” (Doc. 81-3,
16
at 48). Although defendant initially resisted the Interrogatory on numerous grounds,
defendant has since agreed to provide the information sought in the Interrogatory for the
years 2016 and 2017, which eliminates the need for the Court to address defendant’s
substantive objections. (Doc. 89, at 15).
Defendant also objects to providing the information for the years 2012 through
2015 on the basis that these years are irrelevant to the claims asserted. (Id.). Because
defendant now rests only on its objection as to the temporal scope of the Interrogatory
and no longer contests the Interrogatory on any other basis, the Court will address only
the temporal scope of the Interrogatory. The Court disagrees with defendant’s position
that the years prior to 2016 are irrelevant to this suit and will therefore impose the same
time constraints it has imposed previously. To the extent defendant has not already
provided such information, defendant is directed to respond to Interrogatory Number
Twenty for each of the years 2013 through 2017.
G.
Compliance with Interrogatory Number Twenty-One
The scope of the parties’ dispute with respect to Interrogatory Number TwentyOne is narrow and non-substantive in nature. The Interrogatory provides as follows:
“For each Rule 34 production request served by [plaintiff] in this case, identify each
Document that [defendant] produced pursuant to that request by bates number.” (Doc.
81-3, at 49). Defendant does not object to complying with the Interrogatory, but the
parties are in agreement that the information has yet to be provided. (Docs. 81-1, at 18;
89, at 16; 96, at 6). Plaintiff asserts that defendant “first agreed to supplement its
discovery responses to identify the bates numbers of responsive documents on March 14,
2018, and did not do so, which forced [plaintiff] to serve Interrogatory No. 21 on June
6, 2018.” (Doc. 96, at 6). Defendant offers no explanation for why it has not yet
provided the information. As defendant does not object to the Interrogatory, defendant
is ordered to provide the information sought in the Interrogatory no later than October
17
18, 2018.
IV.
CONCLUSION
For the aforementioned reasons, plaintiff’s Motion to Compel is granted in part
and denied in part.
IT IS SO ORDERED this 18th day of September, 2018.
__________________________________
C.J. Williams
United States District Judge
Northern District of Iowa
18
Disclaimer: Justia Dockets & Filings provides public litigation records from the federal appellate and district courts. These filings and docket sheets should not be considered findings of fact or liability, nor do they necessarily reflect the view of Justia.
Why Is My Information Online?