Nelson v. Acosta-Corrales et al

Filing 99

ORDER granting 85 plaintiff's motion to compel defendant to sign an authorization to obtain his employment information from the Social Security Administration. Signed by Magistrate Judge James P. O'Hara on 9/19/2013. (mb)

UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF KANSAS
AMANDA NELSON, et al.,
Plaintiffs,
v.

Case No. 12-1419-JAR

JOSE T. ACOSTA-CORRALES and
DEANGELO BROTHERS, INC.,
Defendants.
ORDER
This action arises out of a motor vehicle accident that resulted in the death of
Christopher Hays. Plaintiffs, heirs-at-law of the deceased, allege that the driver of one of
the vehicles, defendant Jose Acosta-Corrales, was negligent and acting in the course and
scope of his employment with defendant DeAngelo Brothers, Inc. at the time of the
accident. Plaintiffs bring negligence claims against both defendants. Plaintiff Amanda
Nelson1 has filed a motion for an order compelling defendant2 to sign an authorization to
obtain his employment information from the Social Security Administration (doc. 85).
This information cannot be obtained pursuant to a subpoena.3

Defendant argues

plaintiff’s motion should be denied because the information she seeks is irrelevant. For
the reasons discussed below, plaintiff’s motion is granted.

1

Reference in this order to “plaintiff” is only to plaintiff Amanda Nelson.

2

Reference in this order to “defendant” is only to defendant Jose T. AcostaCorrales.
3

See 20 C.F.R. § 401.180.

12-1419-JAR-85.docx

1

Plaintiff served interrogatory requests upon defendant, asking him to identify his
employment history for the past twenty years.4 Defendant identified his employment
history from 1982 until 2005.5 Subsequently, plaintiff asked defendant questions about
his employment history during his deposition.6

Defendant identified employment

information that was not previously provided in response to the interrogatory.7
Additionally, defendant was unable to identify some of his past employment
information.8 Accordingly, plaintiff filed the instant motion to compel defendant to sign
an authorization for detailed earnings information from the Social Security
Administration to obtain a complete and accurate account of his employment history.
Plaintiff argues defendant’s employment history is relevant to determine: 1)
whether defendant was reprimanded or terminated from any of his jobs; 2) whether
defendant received any type of safety training on these jobs; 3) whether defendant drove
a commercial motor vehicle and, if so, what investigation was done prior to hiring him;
4) whether defendant had any accidents on the job and who his supervisor was; 5)
whether an investigation was done prior to hiring defendant; and 6) what address
defendant claimed he lived at when he was hired.

4

See Doc. 85-2.

5

Id.

6

See Docs. 85-3 and 95-1.

7

Doc. 95-1.

8

Doc. 85-3.

12-1419-JAR-85.docx

2

Additionally, plaintiff asserts that defendant was operating a commercial motor
vehicle (CMV) at the time of the accident. Prior to hiring an employee to drive a CMV,
an employer must complete the following investigative steps set forth in 49 C.F.R. §
383.35: 1) obtain a list of the names and addresses of the applicant’s previous employers
that required him to operate a CMV; 2) obtain the dates the applicant was employed by
those employers; and 3) obtain the reason for leaving that employment. Plaintiff argues
that, to show defendant DeAngelo Brothers, Inc. failed to comply with this regulation and
others, it is necessary to know defendant’s full employment history.
Defendant responds that plaintiff’s motion should be denied because plaintiff
“already conducted discovery on defendant Acosta’s previous employment record going
back to 1982 in the form of interrogatories and questions during his deposition.”
Defendant also disputes the relevancy of this information. Defendant argues that plaintiff
has “made no showing that obtaining additional information concerning Mr. Acosta’s
employment history is necessary or would be relevant.” In addition, defendant argues the
information sought is irrelevant because plaintiff was not required to have a commercial
driver’s license; therefore, he was not subject to the same rules and regulations as a
commercial driver.
Under Fed. R. Civ. P. 26(b)(1), discovery may be obtained “regarding any
nonprivileged matter that is relevant to any party’s claim or defense.” Relevancy is
broadly construed for pretrial discovery purposes. “A party does not have to prove a
prima facie case to justify a request which appears reasonably calculated to lead to the

12-1419-JAR-85.docx

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discovery of admissible evidence.”9 At least as a general proposition then, “[a] request
for discovery should be allowed unless it is clear that the information sought can have no
possible bearing on the claim or defense of that party.”10
When the discovery sought appears relevant, the party resisting discovery
has the burden to establish lack of relevance by demonstrating that the
requested discovery (1) does not come within the scope of relevance as
defined under Fed. R. Civ. P. 26(b)(1), or (2) is of such marginal relevance
that the potential harm occasioned by discovery would outweigh the
ordinary presumption in favor of broad disclosure.11
The past employment information of defendant appears to be relevant. Defendant
may have been operating a commercial motor vehicle at the time of the accident.12
Pursuant to 49 C.F.R. § 383.35, employers are required to request employment
information from all persons applying for employment as a commercial motor vehicle
operator for the ten years preceding the date an application is submitted. Additionally,
this information may have bearing on plaintiff’s claim that defendant was negligent in the
manner that it “employed, retained, trained, monitored, and supervised its employee.”13

9

Mackey v. IBP, Inc., 167 F.R.D. 186, 193 (D. Kan. 1996).

10

Sheldon v. Vermonty, 204 F.R.D. 679, 689-90 (D. Kan. 2001) (internal
quotations and citations omitted).
11

Hammond v. Lowe’s Home Ctrs., Inc., 216 F.R.D. 666, 670 (D. Kan. 2003)
(citations omitted).
12

See 49 U.S.C. § 31132(1)(A) (defining a CMV, in part, as a vehicle with a
weight rating or gross vehicle weight of at least 10,001 pounds, whichever is greater); see
also doc. 95-2 at 6 (identifying the actual weight of the vehicle in question as 19,000
pounds).
13

Doc. 1 at 4.

12-1419-JAR-85.docx

4

Because the discovery sought appears relevant on its face, it is defendant’s burden
to establish lack of relevance. Defendant fails to meet his burden. Defendant argues the
information is irrelevant because he was not required to have a commercial driver’s
license. However, plaintiff established that certain regulations apply to employers of
CMV drivers and defendant may have been driving a CMV at the time of the accident
while under the employment of DeAngelo Brothers, Inc.
Defendant also argues this information is irrelevant because driving was not part
of his previous jobs. However, his application with DeAngelo Brothers, Inc. states
otherwise.14
Finally, defendant argues the information sought is irrelevant because it has
already been provided to plaintiff in his answer to an interrogatory and during his
deposition. Defendant did respond to interrogatories and answer questions during his
deposition but his answer to his interrogatory was incomplete and his answers during his
deposition were confusing. Defendant explains that he has a language barrier and was
having difficulty understanding and answering many of the deposition questions.
Plaintiff suggests defendant may have simply forgotten some of his prior employers.
Regardless of the reason, this information appears relevant and has not been previously
provided to plaintiff in a clear, complete, and consistent manner.
The issue remains as to whether defendant’s earnings history for the past twenty
years is relevant. Plaintiff makes no argument as to why she needs this information for

14

Doc. 96-2 at 2.

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the past twenty years. Defendant asserts that even if he had been a commercial driver for
DeAngelo Brothers, Inc., the duty of his employer to investigate his background as a
commercial driver would have only gone back ten years.
defendant.

The court agrees with

Defendant started working for DeAngelo Brothers, Inc. in 2005.

The

accident occurred in 2012. Therefore, only his employment information from 1995 to
2012 is relevant.
Defendant also argues that the documents plaintiff seeks are not in his control.
Defendant asserts that the documents plaintiff seeks are government documents that have
never been in his care, custody, or control. Plaintiff argues that a “party need not have
actual possession of documents to be deemed in control of them. A party that has a legal
right to obtain certain documents is deemed to have control of the documents.”15
The court may order a party to sign a release for his Social Security records. 16
Federal district courts have authority to order defendants to request release of their
records from parties maintaining them so defendants can comply with discovery
obligations.17 In light of defendant’s inability to recall his past employers and the dates
of his employment, defendant is ordered to sign the release and return it to plaintiff’s

15

Doc. 85 (citing DirecTV, Inc. v. Hess, No. 04-2233, 2005 WL 375668, at *1 (D.
Kan. Feb. 9, 2005).
16

See Bradley v. Val-Mejias, No. 00-2395, 2001 WL 1249339, at *8 (D. Kan. Oct.
9, 2001); see also Rodriguez v. IBP, Inc., 243 F.3d 1221, 1230 (10th Cir. 2001) (district
court has authority to order plaintiff to provide consent for release of Social Security
records).
17

Rodriguez, 243 F.3d at 1230 (citing United States ex rel. Woodard v. Tynan, 776
F.2d 250, 252 (10th Cir. 1985) (en banc)).
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counsel within five days of the date of filing of this order. Plaintiff has volunteered to
pay the necessary fee for the information and provide a copy, free of charge, to every
other party in the case.
In consideration of the foregoing, plaintiff’s motion to compel defendant to sign
an authorization allowing all parties to obtain his certified, detailed earnings information
from the Social Security Administration (doc. 85) is granted. Defendant shall sign and
return the release to plaintiff’s counsel within five days of filing of this order. Defendant
need only authorize access to his records for the years 1995-2012. Plaintiff shall pay the
necessary fee for the information and provide a copy, free of charge, to every other party
in the case.
IT IS SO ORDERED.
Dated September 19, 2013 at Kansas City, Kansas.
s/ James P. O’Hara
James P. O’Hara
U.S. Magistrate Judge

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