Blair et al v. Transam Trucking, Inc.

Filing 405

MEMORANDUM AND ORDER granting in part and denying in part 363 Motion to Compel. Signed by Magistrate Judge Kenneth G. Gale on 01-30-17. (df)

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF KANSAS

LARRY BLAIR and CHARLIE DAVIS,
On Behalf Of Themselves And All Other
Persons Similarly Situated,

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Plaintiffs,
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TRANSAM TRUCKING, INC.,
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Defendant.
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___________________________________ )

Case No.: 09-2443-EFM-KGG

ORDER ON MOTION TO COMPEL RESPONSES
TO THIRD-PARTY SUBPOENA
Now before the Court is Plaintiffs’ “Motion to Compel Responses and the
Production of Responsive Documents to Subpoena Duces Tecum to TransAm
Leasing.” (Doc. 363.) Having reviewed the submissions of the parties, the Court
GRANTS in part and DENIES in part Plaintiffs’ motion.
FACTS
This is a class action case alleging violations of the Fair Labor Standards Act
(“FLSA”) and the Kansas Wage Payment Act (“KWPA”). Plaintiffs contend that
Defendant “has misclassified its Leased Drivers as independent contractors, rather
than employees, and has violated the [FLSA] by failing to pay the Leased Drivers
minimum wages and the [KWPA] by failing to pay Leased Drivers all wages due
and otherwise made unlawful deductions of pay.” (Doc. 363, at 1-2.)

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The facts of this case were recently summarized in this Court’s Order on
Defendant’s motion to strike Plaintiff’s supplemental Rule 26 disclosures. (Doc.
403.) That summary is incorporated herein by reference.
The present motion relates to the third-party subpoena Plaintiffs served on
TransAm Leasing, Inc., a wholly-owned subsidiary of Defendant. Plaintiffs
contend that
Defendant’s business model involves Leased Drivers
contemporaneously signing two agreements: an
‘Equipment Lease Agreement’ to lease a truck from
TransAm Leasing, Inc. (‘TransAm Leasing’); and an
‘Independent Contractor Agreement’ to provide driving
work for Defendant TransAm Trucking wherein the
Leased Driver also leases the truck back over to
Defendant TransAm Trucking.
(Doc. 363, at 2.) Plaintiffs argue that this “triangulation of the relationships
between TransAm Leasing, the Leased Drivers and [Defendant] TransAm
Trucking” is at the root of the “fundamental inquiry as to Leased Driver
misclassification.” (Id., at 8.)
In the context of these allegations, Plaintiffs served a third-party subpoena
on TransAm Leasing seeking the following documents:
1. Documents that identify the officers and directors of
TransAm Leasing;
2. Documents that identify employees of TransAm
Leasing;

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3. Documents that identify each truck leased from or
through TransAm Leasing that was used to perform any
services for any company, entity, person or motor carrier
other than Defendant TransAm Trucking;
4. Documents that identify drivers who leased a truck
from or through TransAm Leasing, Inc. that was used to
haul any load or otherwise perform any services for any
company, entity, person or motor carrier other than
Defendant TransAm Trucking;
5. Documents that identify drivers who leased a truck
from or through TransAm Leasing and who provided any
down payment or other financial investment or security
in order to lease said truck from TransAm Leasing, Inc.;
6. Documents that identify each driver who leased a
truck from or through TransAm Leasing and from whom
TransAm Leasing required any financial information,
security or credit information prior to or at the time of
entering into such lease;
7. Documents that identify instances when a driver
became the owner of a truck that the driver had
previously leased from or through TransAm Leasing;
8. Documents that identify instances when an individual
or driver entered into an agreement to purchase a truck
that the driver had previously leased from or through
TransAm Leasing;
9. Documents that identify instances when a driver
entered into an agreement to finance the purchase of a
truck that the driver had previously leased from or
through TransAm Leasing, Inc;
10. Documents that refer to TransAm Leasing's
requirements and/or assessments of credit worthiness of
drivers who leased trucks from or through TransAm
Leasing;
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11. Documents that constitute or refer to all versions of
leasing agreements used by TransAm Leasing;
12. Documents that relate to any individual who
purchased, or was permitted by TransAm Leasing, Inc. to
purchase, or who requested permission to purchase,
insurance from sources other than TransAm Leasing;
13. Documents that constitute or refer any requirements
or policies of TransAm Leasing regarding insurance
required on the trucks leased from or through TransAm
Leasing;
14. Documents and communications that identify the
ownership of trucks leased from or through TransAm
Leasing;
15. Documents that constitute or relate to payments or
exchanges of assets from TransAm Trucking to TransAm
Leasing;
16. Documents that constitute or relate to payments or
exchanges of assets from TransAm Leasing to TransAm
Trucking;
17. Documents that relate to any claims by Defendant or
TransAm Leasing for deficiencies with respect to trucks
leased by any Leased Driver at any time during the class
period;
18. Documents that identify or relate to any legal action
threatened, taken, or filed by TransAm Leasing in an
attempt to collect any deficiencies with respect to trucks
leased through TransAm Leasing;
19. Documents that concern the characterization of
drivers who leased trucks from or through TransAm
Leasing, and then entered into an Independent Contractor
Agreement with TransAm Trucking, as independent
contractors.
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20. Documents that concern the characterization of
drivers who leased trucks from or through TransAm
Leasing, and then entered into an Independent Contractor
Agreement with TransAm Trucking, Inc., as employees.
(Doc. Nos. 316 and 316-1).1 Plaintiffs move to compel certain responses and
documents from third-party TransAm Leasing as to the subpoena. Each relevant
category will be discussed in turn.
ANALYSIS
Fed.R.Civ.P. 26(b) states that
[p]arties 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 state 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.
As such, the requested information must be both nonprivileged and relevant to be
discoverable.
Fed.R.Civ.P. 45 governs subpoenas, with section (d) of that Rule relating to
“protecting a person subject to a subpoena” as well as “enforcement.” Subsection
(d)(1) of the Rule states that

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Plaintiffs’ briefing does not specifically address the responses to categories 1 and
2 from the subpoena. As such, the Court surmises these categories are not at issue.
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[a] party or attorney responsible for issuing and serving a
subpoena must take reasonable steps to avoid imposing
undue burden or expense on a person subject to the
subpoena. The court for the district where compliance is
required must enforce this duty and impose an
appropriate sanction – which may include lost earnings
and reasonable attorney's fees – on a party or attorney
who fails to comply.
Subsection (d)(2)(B) relates to objections to subpoenas and states that
[a] person commanded to produce documents or tangible
things or to permit inspection may serve on the party or
attorney designated in the subpoena a written objection to
inspecting, copying, testing, or sampling any or all of the
materials or to inspecting the premises – or to producing
electronically stored information in the form or forms
requested. The objection must be served before the
earlier of the time specified for compliance or 14 days
after the subpoena is served. If an objection is made, the
following rules apply:
(i) At any time, on notice to the commanded
person, the serving party may move the court for
the district where compliance is required for an
order compelling production or inspection.
(ii) These acts may be required only as directed in
the order, and the order must protect a person who
is neither a party nor a party’s officer from
significant expense resulting from compliance.
Thus, the Court must balance Plaintiffs’ needs for the information with the
potential for undue burden or expense imposed on the third party respondent.
As an initial matter, the Court notes TransAm Leasing’s statement that
during the pre-motion “meet and confer” process, “counsel for TransAm Trucking

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asked specifically for the identification of any documents Plaintiffs’ [sic] believed
were somehow missing from the production.” (Doc. 378, at 1-2.) TransAm
Leasing continues that “[n]o response was provided; the instant Motion was filed
instead.” (Id.)
TransAm Leasing appears to infer that all responsive documents must have
been produced because Plaintiffs failed to identify specific documents that had not
been provided. Such an argument is without merit. The Court acknowledges that a
requesting party is often aware of the specific documents it seeks. That stated, it is
not the responsibility of – nor is it possible for – a requesting party to always know
the exact documents in another party’s possession, custody or control.
As stated in Fed.R.Civ.P. 34(b), a document request “must describe with
reasonable particularity each item or category of items to be inspected . . . .”
(Emphasis added.) Plaintiffs have provided 20 categories of items they want to
inspect. The fact that Plaintiffs have not given TransAm Leasing a listing of the
specific documents they want TransAm Leasing to produce is irrelevant. The
Court will now turn its attention to the specific categories of documents at issue.
A.

Categories 3 and 4.
Category No. 3 seeks documents identifying “each truck leased from or

through TransAm Leasing . . . used to perform any services for any company . . .
other than Defendant . . . .” Category No. 4 seeks documents identifying “drivers

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who leased a truck” from TransAm Leasing used to conduct any services for “any
company . . . other than Defendant . . . .” (Doc. 316-1, at 5.) Plaintiffs argue that
such documents “could touch upon the Leased Driver’s economic dependence
upon Defendant generally and the Leased Driver’s opportunity for profit under the
FLSA, and . . . the right-to-control test under the KWPA.” (Doc. 363, at 13.) The
Court finds that Plaintiffs have established the relevance of the requested
documents.
TransAm Leasing objected that the category was “overly broad and unduly
burdensome,” arguing that the use of the terms “all documents” and “relate to” are
inappropriately broad. (Doc. 378, at 6.) While these terms may be considered
omnibus terms, these terms are not per se inappropriate.
Courts in this District have held that a discovery request
may be facially overly broad if it uses an ‘omnibus term’
such as ‘relating to,’ ‘pertaining to,’ or ‘concerning.’
Johnson v. Kraft Foods North America, Inc., 238
F.R.D. 648, 658 (D. Kan. 2006) (citing Cardenas v.
Dorel Juvenile Group, Inc., 232 F.R.D. 377, 382 (D.
Kan. 2005) (internal citations omitted)). ‘That rule,
however, applies only when the omnibus term is used
with respect to a general category or broad range of
documents.’ Id. See also Sonnino v. University of
Kansas Hosp. Authority, 221 F.R.D. 661, 667 (D. Kan.
2004); Aikens v. Deluxe Fin. Servs., Inc., 217 F.R.D.
533, 538 (D. Kan. 2003).
Courts want to avoid a situation in which a party upon
whom discovery is served needs ‘either to guess or move
through mental gymnastics...to determine which of many
pieces of paper may conceivably contain some detail,
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either obvious or hidden, within the scope of the request.’
Id. ‘When, however, the omnibus phrase modifies a
sufficiently specific type of information, document, or
event, rather than large or general categories of
information or documents, the request will not be deemed
objectionable on its face.’ Id.
Waters v. Union Pacific Railroad Co., 2016 WL 4479127, at *2 (D. Kan. August
25, 2016) (citing Union Pacific R. Co. v. Grede Foundries, Inc., No. 07-1279MLB-DWB, 2008 WL 4148591, at *4 (D. Kan. Sept. 3, 2008)). The terms, as
used in the subpoena categories at issue, are modified by sufficiently specific
topics and, therefore, are not objectionable on their face.2
Without waiving these objections, TransAm Leasing stated that “it believes
that documents responsive to this request have already been produced” by
Defendant TransAm Trucking. (Doc. 363-21, at 1-2 (emphasis added).) The Court
agrees with Plaintiffs that this response is improper and “amounts to essentially a
wholesale failure” by TransAm Leasing to determine whether it has responsive,
discoverable documents within its possession, custody or control. (Doc. 363, at
13.) This portion of Plaintiffs’ motion is, therefore, GRANTED.
TransAm Leasing is directed to make a specific determination whether other
documents exist and, if so, whether they have been produced by Defendant. To the

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The Court finds this to be true as to the other subpoena categories for which
Defendant raised this same objection (i.e. categories 5 - 9, 11 - 15, 17, 19 - 20 (see
generally Doc. 378.)). As such, the objection is overruled unless stated otherwise by the
Court as to a specific category of documents, infra.
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extent it has not done so, TransAm Leasing must identify by bates number any
responsive documents previously produced by Defendant. To the extent there are
responsive documents that have not been produced, TransAm Leasing is directed
to produce the same. If there are no other responsive documents, TransAm
Leasing must state so affirmatively and indicate that all responsive documents have
been identified and/or produced.3
B.

Categories 5 - 10.
These categories relate to certain financial aspects of the lease relationship

between the Leased Drivers and the TransAm Leasing and potential ownership of
trucks by Leased Drivers. (Doc. 316-1, at 5-7.) Plaintiffs contend that this
information “touch[es] upon the ostensible independence of the Leased Drivers as
arms-length business entities, separate and apart from performing driving services
for Defendant.” (Doc. 363, at 13-14.)
TransAm Leasing objected that the categories were overly broad/unduly
burdensome and/or that the use of the term “financial investment is vague and
overbroad . . . .” (Doc. 363-21, at 2.) In response to these categories, TransAm
Leasing again stated that it “believes” that responsive documents “have been
produced by [Defendant] in this litigation.” (Id.) For the reasons set forth in

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Responses referencing Bates numbers of documents produced by Defendant
should be categorized to respond to each individual request. See Rule 45(e)(1)(A).
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Section A, supra, the Court finds the TransAm Leasing relying on its “belief” to be
insufficient. This portion of Plaintiffs’ motion is GRANTED.
TransAm Leasing is directed to make a specific determination whether other
documents exist and, if so, whether they have been produced by Defendant. To the
extent it has not done so, TransAm Leasing must identify by bates number any
responsive documents previously produced by Defendant. To the extent there are
responsive documents that have not been produced, TransAm Leasing is directed
to produce the same. If there are no other responsive documents, TransAm
Leasing must state so affirmatively and indicate that all responsive documents have
been identified and/or produced.
C.

Category No. 11.
This category encompasses documents and communications regarding “all

versions of leasing agreements” used by TransAm Leasing for 2007 through the
present. (Doc. 316-1, at 7.) Plaintiffs contend that such documents “could lead to
admissible evidence that one or more purposes of the structure of those leasing
agreements was to either maintain the Leased Drivers’ economic dependence upon
Defendant or to maintain certain aspects of Defendant’s control over Leased
Drivers.” (Doc. 363, at 14.)

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TransAm Leasing objected as to overbreadth and burdensomeness as well as
seeking documents protected by the attorney-client privilege.4 (Doc. 363-12, at 3.)
Without waiving the stated objections, TransAm Leasing again stated that it
“believes” that responsive documents “have been produced by [Defendant] in this
litigation.” (Id.) For the reasons set forth in Section A, supra, the Court finds the
TransAm Leasing relying on its “belief” to be insufficient. This portion of
Plaintiffs’ motion is GRANTED.
TransAm Leasing is directed to make a specific determination whether other
documents exist and, if so, whether they have been produced by Defendant. To the
extent it has not done so, TransAm Leasing must identify by bates number any
responsive documents previously produced by Defendant. To the extent there are
responsive documents that have not been produced, TransAm Leasing is directed
to produce the same. If there are no other responsive documents, TransAm
Leasing must state so affirmatively and indicate that all responsive documents have
been identified and/or produced.
D.

Categories 12 and 13.
These categories relate to insurance. Plaintiffs contend the information

“could lead to admissible evidence as to the level of supposed independence of

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The Court notes that the applicability of the attorney-client is not at issue in
Plaintiffs’ motion.
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Leased Drivers from Defendant.” In response to Category No. 12, TransAm
Leasing once again states that it “believes” Defendant has produced the responsive
documents. As stated above, this is inappropriate. The portion of Plaintiffs’
motion relating to Category No. 12 is GRANTED.5 TransAm Leasing is directed
to make a specific determination whether other documents exist and, if so, whether
they have been produced by Defendant. To the extent it has not done so, TransAm
Leasing must identify by bates number any responsive documents previously
produced by Defendant. To the extent there are responsive documents that have
not been produced, TransAm Leasing is directed to produce the same. If there are
no other responsive documents, TransAm Leasing must state so affirmatively and
indicate that all responsive documents have been identified and/or produced.
E.

Category 14.
This category seeks “[a]ny and all documents and communications that

identify, refer or relate to the ownership of trucks leased from or through TransAm
Leasing, Inc.” from 2007 through the present. (Doc. 316-1, at 7.) TransAm
Leasing responded that the category is overly broad and unduly burdensome in that
it would be required “to produce virtually every single document in its possession,
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Given the response by TransAm Leasing to Category No. 13 of the subpoena
(Doc. 363-21, at 3) as well as the language contained in Plaintiff’s motion (Doc. 363, at
14), the Court is unaware of any specific relief requested by Plaintiff in regard to
Category No. 13. The Court does, however, overrule Defendant’s “overly broad and
unduly burdensome” objection. For the reasons set forth above, Plaintiff’s use of “all
documents” and “refer or relate to” do not constitute inappropriate omnibus terms.
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custody, or control, for the prior nine to ten years.” (Doc. 363-21, at 3.) The Court
agrees that this category, as worded, is not sufficiently narrowed or specific.
TransAm Leasing’s objection is sustained. Plaintiffs’ motion is DENIED as to
Category No. 14.
F.

Categories 15 and 16.
Categories 15 and 16 ask for documents and communications regarding

payments from Defendant or its affiliates to TransAm Leasing, or vice versa, from
2007 through the present. (Doc. 316-1, at 7-8.) TransAm Leasing responds that its
affiliates are not parties to this litigation. As such, payments between Defendant’s
affiliates and TransAm Leasing could not possibly be relevant. (Doc. 363-21, at
3.) Nothing in Plaintiffs’ motion establishes the relevance of such information.
TransAm Leasing’s objection as to affiliates is, therefore, sustained. Further,
Plaintiffs’ motion does not establish the insufficiency of TransAm Leasing’s
response as to payments between it and Defendant. The portion of Plaintiffs’
motion relating to Categories 15 and 16 is DENIED.
G.

Categories 17 and 18.
These categories seek documents relating to deficiencies with trucks leased

by Leased Drivers or legal action threatened, taken, or filed by TransAm Leasing
to collect any deficiencies with leased trucks. (Doc. 316-1, at 8.) TransAm
Leasing states that it “believes” Defendant has produced the responsive documents.

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Again, the “belief” of TransAm Leasing regarding the production of responsive
documents is not sufficient. The portion of Plaintiffs’ motion relating to
Categories 17 and 18 is GRANTED. TransAm Leasing is directed to make a
specific determination whether other documents exist and, if so, whether they have
been produced by Defendant. To the extent it has not done so, TransAm Leasing
must identify by bates number any responsive documents previously produced by
Defendant. To the extent there are responsive documents that have not been
produced, TransAm Leasing is directed to produce the same. If there are no other
responsive documents, TransAm Leasing must state so affirmatively and indicate
that all responsive documents have been identified and/or produced.
H.

Categories 19 and 20.
The final two categories request documents regarding the characterization of

drivers who leased trucks from TransAm Leasing as independent contractors
(Category 19) or employees (Category 20). (Doc. 316-1, at 8.) TransAm Leasing
argues that because it is not a party to this litigation, its classification of the drivers
“is irrelevant and not reasonably calculated to lead to the discovery of admissible
evidence.” (Doc. 363-21, at 4.) Plaintiffs merely contend that this information
“could lead to admissible evidence on the classification issue in this case.” (Doc.
363, at 15.) This does not adequately establish the relevance of the requested
information, particularly in comparison to the potential burden to TransAm

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Leasing. Given the broad nature of this request, the Court finds that the response
of TransAm Leasing was adequate. The Court sustains the objection of TransAm
Leasing.
As such, it is sufficient for TransAm Leasing to have referred Plaintiffs to
the Equipment Lease Agreements previously produced by Defendant. This portion
of Plaintiffs’ motion is, therefore, DENIED.

IT IS THEREFORE ORDERED that Plaintiffs’ Motion (Doc. 363) is
GRANTED in part and DENIED in part as more fully set forth above.

IT IS SO ORDERED.
Dated this 30th day of January, 2017, at Wichita, Kansas.
S/ KENNETH G. GALE

HON. KENNETH G. GALE
U.S. MAGISTRATE JUDGE

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