Patricia L. Hongsermeier v. USA Truck, Inc. et al
MEMORANDUM AND ORDER granting 25 Plaintiff's Motion to Compel. Within ten (10) days of the date of this Order, Defendant Duclona shall produce documents responsive to Plaintiff's First Request for Production of Documents No. 11 or provid e Plaintiff with signed cell phone authorizations allowing Plaintiff to obtain responsive documents from third-party cell phone service providers. It is further ordered that each party shall bear its own expenses incurred in connection with filing or responding to the Motion to Compel. Signed by Magistrate Judge Teresa J. James on 1/26/2017. (byk)
UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF KANSAS
PATRICIA L. HONGSERMEIER,
as an heir at law of RODNEY A.
HONGSERMEIER, deceased, and
as the Personal Representative of the
Estate of RODNEY A. HONGSERMEIER,
USA TRUCK, INC., and
Case No. 16-cv-2321-JWL-TJJ
MEMORANDUM AND ORDER
Plaintiff brings this wrongful death and survival action alleging negligence against
Defendant Fednor Duclona (“Duclona”), and asserting claims for negligent hiring, training,
supervision, and retention of Duclona against Defendant USA Truck, Inc. (“USA Truck”).
Duclona was driving the semi-tractor trailer owned and operated by Defendant USA Truck
involved in a January 17, 2015 truck-on-truck collision in Thomas County, Kansas, resulting in the
death of Rodney Hongsermeier.
This matter is before the Court on Plaintiff’s Motion to Compel (ECF No. 25). Plaintiff
requests an order compelling Defendant Duclona to produce discovery responsive to Plaintiff’s
First Request for Production No. 11, which seeks “[t]he billing records and monthly statements for
any phone number or calling card used by [Duclona] on August 27, 2014 and December 1, 2014.”1
Defendant Duclona objects to the request, claiming the phone or calling card records sought are
“irrelevant as the accident at issue occurred on January 17, 2015.”2 He further states in his
response: “Without waiving said objections, none in my possession.”3 For the reasons set forth
below, the motion is granted.
Defendant Duclona reasserts his relevance objection in response to Plaintiff’s Motion to
Compel, arguing that the request seeks cell phone records for August 27, 2014 and December 1,
2014, two dates completely unrelated to the January 17, 2015 accident at issue in this case. He also
argues that his August 27, 2014 traffic citation was not a moving violation, but for “parking on the
shoulder of an interstate without triangles or lights on,” and his December 1, 2014 traffic citation
was merely for driving on the shoulder of the roadway. Thus, Duclona argues his cell phone
records on those dates will not provide evidence of negligence, noncompliance with rules and
patterns of past unsafe driving, reveal any of his actual conversations, or provide any relevant
information concerning his driving behavior or communications.
Plaintiff argues that Defendant Duclona’s cell phone records on the two dates he received
traffic citations will show whether he was talking or texting on his cell phone at the time he
Def.’s Resp. to Pl.’s First Req. for Produc. of Docs., ECF No. 32-1.
received the citations. Plaintiff argues this discovery is relevant to a pattern of past unsafe driving
by Defendant Duclona, and whether Defendant USA Truck knew or should have known about it.
Plaintiff maintains such evidence is vital to evaluating whether Duclona was adequately trained
and supervised, and whether his driving history put USA Truck on notice that he required further
training, supervision, and/or dismissal.
Federal Rule of Civil Procedure 26(b)(1) governs the scope 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.4
Discovery requests must be relevant on their face.5 When the discovery sought appears relevant
on its face, the party resisting discovery has the burden to establish the lack of relevancy by
demonstrating that the requested discovery (1) does not come within the scope of relevancy as
defined under Fed. R. Civ. P. 26(b)(1), or (2) is of such marginal relevancy that the potential harm
occasioned by discovery would outweigh the ordinary presumption in favor of broad disclosure.6
Conversely, when the relevancy of the discovery request is not readily apparent on its face, the
Fed. R. Civ. P. 26(b)(1).
Nat'l R.R. Passenger Corp. v. Cimarron Crossing Feeders, LLC, No. 16-CV-1094-JTM-TJJ,
2016 WL 7336409, at *2 (D. Kan. Dec. 19, 2016).
Gen. Elec. Capital Corp. v. Lear Corp., 215 F.R.D. 637, 640 (D. Kan. 2003).
party seeking the discovery has the burden to show the request’s relevancy.7 Relevancy
determinations are generally made on a case-by-case basis.8
The Court finds the discovery sought by Plaintiff’s Request No. 11 (billing records and
monthly statements for any phone number or calling card used by Defendant Duclona on both
August 27, 2014 and December 1, 2014) is facially relevant to Defendant Duclona’s driving
history. These records will show whether Defendant Duclona was using his cell phone on or about
the time he received two earlier traffic citations. While the records sought are not for the actual
date of the truck collision, both of the traffic citations issued to Defendant Duclona were within six
months preceding the collision at issue. Those records are relevant to the negligence, negligent
hiring, training, supervision, and retention claims asserted by Plaintiff.
Although one of the December 2014 traffic citations was for a non-moving violation,
Plaintiff points out that Defendant Duclona received a second citation at the same time for “wrong
turn inside weigh station.” Defendant Duclona also argues that he was sleeping at the time he
received the August 27, 2014 citation. But his cell phone records at or about the time of the citation
may shed light on the circumstances surrounding the citation. Defendant Duclona’s relevance
objection to Plaintiff’s Request No. 11 is therefore overruled.
Unreasonably Cumulative and Duplicative Objections
Defendant Duclona also argues in his response in opposition to Plaintiff’s motion to
Id.; McBride v. Medicalodges, Inc., 250 F.R.D. 581, 586 (D. Kan. 2008).
Brecek & Young Advisors, Inc. v. Lloyds of London Syndicate 2003, No. 09-cv-2516-JAR, 2011
WL 765882, at *3 (D. Kan. Feb. 25, 2011).
compel that Request No. 11 is unreasonably cumulative or duplicative, and not proportional to the
needs of this case. Defendant Duclona further argues that he has already produced an abundance of
other discovery that will provide Plaintiff with the information sought. Thus, according to
Defendant Duclona, Plaintiff’s request for cell phone records on two prior unrelated dates is
unreasonably cumulative and/or duplicative of other discovery already produced.
In this case, the Court finds Defendant Duclona has not shown the cell phone records
sought to be unreasonably cumulative or duplicative of other discovery already produced in the
case. Defendant Duclona states that he has already produced log books; six months’ worth of trip
and operational documents, including GPS records and fuel records, relating to cargo movement
and/or the tractor trailer; all computer run dispatch documents; all administrative driver’s logs
audits or summaries; his entire driver qualification file; personnel file; drug and alcohol testing
file; accident file; all documents relating to any traffic citations, criminal charges, terminal or road
equipment violations and driver compliance inspections, warnings, citations or violations of the
Federal Motor Carrier Safety Regulations or any state regulations; all training and materials; and
the driver’s manual and various policies and procedures.
The Court finds it does not appear any of the aforementioned discovery already produced
by Defendant Duclona would show whether he was talking or texting on his cell phone around the
time the two prior traffic citations were issued. Plaintiff’s Request No. 11 for cell phone records
would therefore not be unreasonably cumulative or duplicative of other discovery already
produced in the case.
Plaintiff argues that Defendant Duclona waived his objections that the discovery sought is
unreasonably cumulative or duplicative, and not proportional to the needs of this case by failing to
assert them in his original discovery response to Request No. 11. The Court need not decide this
issue because the Court has already ruled on the merits, that the cell phone billing records and
statements sought in Request No. 11 do not appear to be unreasonably cumulative or duplicative
under Rule 26(b)(2)(C)(i).9 Plaintiff’s Motion to Compel Defendant Duclona to produce
discovery responsive to Plaintiff’s Request No. 11 is therefore granted.
Expenses Under Fed. R. Civ. P. 37(a)(5)(A)
Finally, the Court considers whether an award of expenses incurred by Plaintiff is
appropriate. Under Fed. R. Civ. P. 37(a)(5)(A), if a motion to compel is granted:
the court must, after giving an opportunity to be heard, require the party or
deponent whose conduct necessitated the motion, the party or attorney
advising that conduct, or both to pay the movant's reasonable expenses
incurred in making the motion, including attorney's fees.
But the court must not order this payment if:
(i) the movant filed the motion before attempting in good faith to obtain the
disclosure or discovery without court action;
(ii) the opposing party's nondisclosure, response, or objection was
substantially justified; or
(iii) other circumstances make an award of expenses unjust.
Plaintiff has not requested an award of expenses incurred in making the motion. The Court
further finds an award of expenses is not warranted here because, even although ultimately
See Fed. R. Civ. P. 26(b)(2)(C)(i) (“On motion or on its own, the court must limit the frequency or
extent of discovery otherwise allowed by these rules or by local rule if it determines that:(i) the discovery
sought is unreasonably cumulative or duplicative, or can be obtained from some other source that is more
convenient, less burdensome, or less expensive.”) (emphasis added).
overruled Defendant Duclona was substantia justified in making h relevance objection.
ngly, under Rule 37(a)(5)(A), the Co must not order the p
payment of P
reasonable expenses incurred in making the motion.
IT IS THER
RDERED THAT Plaint
tiff’s Motion to Compel (ECF No. 2 is
GRANTE Within ten (10) days of the da of this O
ndant Duclon shall prod
documen responsiv to Plaintif First Req
quest for Pro
oduction of D
Documents N 11 or pro
Plaintiff with signed cell phone authorization allowing P
Plaintiff to o
rd-party cell phone service providers
IT IS FURTH
ERED THA each part shall bear its own expenses incurr in
connectio with filin or respond
ding to the Motion to Co
IT IS SO ORD
Dated January 26, 2017, at Kansas Ci Kansas.
Tere J. James
U. S. Magistrate Judge
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