Jackson et al v. Y R C Inc et al

Filing 101

MEMORANDUM ORDER granting in part and denying in part 93 Motion to Compel: IT IS ORDERED that the motion to compel discovery responses and Rule 30(b)(6) deposition of defendant, YRC, Inc., and request for costs [doc. # 93] filed by plaintiff Li sa Mallard is GRANTED IN PART. Within the next thirty days (30) days from the date of this order, defendant YRC, Inc., shall produce a corporate representative for deposition regarding the information as detailed in the body of this opinion. IT IS FURTHER ORDERED that the motion [doc. # 93], including the request for fees, expenses, and/or costs, otherwise is DENIED. Signed by Magistrate Judge Karen L Hayes on 6/27/16. (crt,DickersonSld, D)

UNITED STATES DISTRICT COURT
WESTERN DISTRICT OF LOUISIANA
SHREVEPORT DIVISION
ANTONIO JACKSON and JAMARIO
LOUGIN

:

CIVIL ACTION NO. 14-1045

VS.

:

JUDGE S. MAURICE HICKS

YRC, INC. d/b/a YRC FREIGHT, ET
AL.

:

MAG. JUDGE KAREN L. HAYES
(consolidated with)

CALVIN L. FISHER

CIVIL ACTION NO. 15-1060

VS.
YRC, INC. d/b/a YRC FREIGHT, ET AL.
(consolidated with)
LISA MALLARD

CIVIL ACTION NO. 15-1219

VS.
YRC, INC. d/b/a YRC FREIGHT, ET AL.
MEMORANDUM ORDER
Before the undersigned Magistrate Judge, on reference from the District Court, is a
motion to compel YRC, Inc.’s Rule 30(b)(6) deposition and assess costs [doc. # 93] filed by
plaintiff, Lisa Mallard. The motion is unopposed. For reasons assigned below, the motion is
GRANTED IN PART.1
Background

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As these motions are not excepted in 28 U.S.C. § 636(b)(1)(A), nor dispositive of any
claim on the merits within the meaning of Rule 72 of the Federal Rules of Civil Procedure, this
ruling is issued under the authority thereof, and in accordance with the standing order of this
court. Any appeal must be made to the district judge in accordance with Rule 72(a) and LR
74.1(W).

The instant discovery dispute is between plaintiff Lisa Mallard and defendant YRC, Inc.
(“YRC”). Plaintiff alleges that William Dearman, in the course and scope of his employment
with YRC, struck the back of the vehicle which she was a passenger. [doc. # 93-2, p. 2].
a)

Plaintiff’s Rule 30(b)(6) Deposition of Corporate Representative
On an unspecified date, plaintiff sent served YRC with a Rule 30(b)(6) deposition notice.

Id. Plaintiff listed several topics in the notice including Topic 6 regarding “[i]nformation
contained on William Dearman’s cell phone/smart phone in relation to his driving and on duty
activities for YRC.” [doc. # 93-1, p. 21]. YRC objected to this topic on the following grounds:
This topic is overly broad, vague, and unduly burdensome. It is YRC’s
understanding that plaintiff received voluminous production of documents and
data from the Caddo Parish Sheriff’s Department from a download of Mr.
Dearman’s cell phone following the subject accident. As written, this topic would
require YRC’s corporate representative to review hundred’s of pages of
documents that YRC did not generate and the authenticity of which the witness
can not confirm. Furthermore the vast majority of these documents have nothing
to do with the subject accident. YRC will not present a witness to provide
testimony on this topic.
Id. at 24. On February 12, 2016, during the deposition of Terry Budimlija, YRC’s Corporate
Representative, counsel for plaintiff introduced an exhibit designated as Exhibit 15. Id. at 41.
The exhibit contained certain excerpts of phone records downloaded from Dearman’s phone. Id.
at 29-38. Counsel for YRC instructed Budimlija not to answer any questions related to these
documents on the basis that these documents were not produced by YRC and Budimlija had not
reviewed them prior to the deposition. Id. at 43.
b)

Plaintiff’s First Request for Production
Plaintiff served YRC with a request for production of documents that sought “[p]rofit and

loss statements from 2012 until the current date.” (See Request No. 86 [doc. # 93-1, p. 49]). On

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September 28, 2015, YRC responded, “[d]efendants object to this request on the grounds that it
is overly broad, unduly burdensome, and not reasonably calculated to lead to the discovery of
admissible evidence.” Id.
c)

Instant Motion
Accordingly, on May 30, 2016, plaintiff Lisa Mallard filed the instant motion to compel

defendant YRC to produce a Corporate Representative pursuant to Rule 30(b)(6) to respond to
questions concerning William Dearman’s telephone records and require YRC to produce
documents related to YRC Inc.’s net worth. [doc. # 93-2]. Additionally, plaintiff seeks sanctions
and the reimbursement of appropriate costs associated with the deposition. YRC failed to
respond to the motion, and the time do so has lapsed. See Notice of Motion Setting [doc. # 97].
Accordingly, the motion is deemed unopposed. Id.
Analysis
I.

Plaintiff’s Rule 30(b)(6) Deposition of Corporate Representative
Rule 30(b)(6) allows parties to obtain testimony from a corporation, provided the party

describes with reasonable particularity the matters for examination. FED. R. CIV. P. 30(b)(6).
Once the corporation is notified, it must designate one or more representatives to testify on its
behalf. Id. The designated individual must testify about information known or reasonably
available to the organization. Id. Rule 30(b)(6) is designed “‘to avoid the possibility that several
officers and managing agents might be deposed in turn, with each disclaiming personal
knowledge of facts that are clearly known to persons within the organization and thus to the
organization itself.’” Brazos River Authority v. GE Ionics, Inc., 469 F.3d 416, 433 (5th Cir. 2006)
(quoting 8A Charles A. Wright, Arthur R. Miller & Richard L. Marcus, Federal Practice and
Procedure § 2103, at 33 (2d ed. 1994)).
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As a result, once in receipt of a 30(b)(6) notice of deposition, a corporation “must make a
conscientious good-faith endeavor to designate the persons having knowledge of the matters
sought by [the party noticing the deposition] and to prepare those persons in order that they can
answer fully, completely, unevasively, the questions posed . . . as to the relevant subject matters.”
Id. (internal quotations omitted) (alteration in original).
Here, YRC objects that the information contained in Topic 6 is not within the Corporate
Representative’s knowledge. However, as noted above, “the duty to present and prepare a Rule
30(b)(6) designee goes beyond matters personally known to that designee or to matters in which
that designee was personally involved.” Brazos, 469 F.3d at 433. Additionally, YRC stated in
their written objections that the information contained in Topic 6 was unduly burdensome.
Plaintiff has stated in her motion to compel that, “[p]laintiff agrees to limit the questions to
information contained in Exhibit 15 to the Deposition of Terry M. Budimlija.” Thus, the court
finds that YRC shall produce a Corporate Representative for deposition prior to trial to answer
questions related to Topic 6.
II.

Plaintiff’s First Request for Production
Rule 34 dictates that “a party may serve on any other party a request within the scope of

Rule 26(b) . . . to produce . . . any designated documents or electronically stored information . . .
or any tangible things” that are within the “party’s possession, custody, or control . . .” FED. R.
CIV. P. 34(a)(1). Rule 34’s definition of “possession, custody, or control,” includes more than
actual possession or control of the materials; it also contemplates a party’s “legal right or
practical ability to obtain the materials from a nonparty to the action.” White v. State Farm Mut.
Auto. Ins. Co., 2011 WL 3423388 (M.D. La. Aug. 4, 2011 (citations omitted). A party must
“make a reasonable search of all sources reasonably likely to contain responsive documents.” Id.

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A party also is “charged with knowledge of what its agents know or what is in records available
to it.” Autery v. SmithKline Beecham Corp., 2010 WL 1489968 (W.D. La. Aug. 4, 2011) (citation
omitted).
A party objecting to discovery “must state with specificity the objection and how it relates
to the particular request being opposed . . .” Reyes v. Red Gold, Inc. 2006 WL 2729412 (S.D.
Tex. Sept. 25, 2006) (citations omitted). In other words, to escape the production requirement, a
responding party must interpose a valid objection to each contested discovery request. McLeod,
Alexander, Powel & Apffel, P.C. v. Quarles, 894 F.2d 1482, 1485 (5th Cir. 1990) (citation
omitted). Conclusory objections that the requested discovery is “overly broad,” “burdensome,”
“oppressive,” and “irrelevant,” do not suffice. Id. Furthermore, in the absence of good cause,
when a party fails to object timely to interrogatories, production requests, or other discovery
efforts, then any objections thereto are waived. In re: United States of America, 864 F.2d 1153,
1156 (5th Cir. 1989); see also FED. R. CIV. P. 33(b)4).
Finally, a party seeking discovery may move for an order compelling an answer,
production, or inspection if a party, inter alia, fails to answer an interrogatory or fails to produce
requested documents. FED. R. CIV. P. 37(a)(3)(B)(iii-iv). An evasive or incomplete answer or
response is treated as a failure to answer or respond. FED. R. CIV. P. 37(a)(4).
In this case, where plaintiff claims entitlement to punitive damages, she has moved to
compel defendant to produce information related to YRC’s financial condition and net worth due
to the fact that there is a claim by plaintiff for punitive damages. [doc. # 93-2]. However, a party
must make a factual showing that a viable claim for punitive damages exists before a Court can
allow discovery of a party’s sensitive financial information. See Moore v. Wayne Smith Trucking
Inc., 2015 WL 6438913, at *4 (E.D. La. Oct. 22, 2015); see also Smith v. Schmidt & McGarland

5

Firm, 2008 WL 1716646, at *1 (N.D. Miss. Apr. 9, 2008) (“a conclusory demand for punitive
damages is normally insufficient to require disclosure of sensitive financial data”). Plaintiff failed
to submit sufficient facts for the court to determine if plaintiff has a viable claim for punitive
damages. Thus, the motion to compel documents concerning YRC’s net worth is denied at this
time.2
Conclusion
For the foregoing reasons,
IT IS ORDERED that the motion to compel discovery responses and Rule 30(b)(6)
deposition of defendant, YRC, Inc., and request for costs [doc. # 93] filed by plaintiff Lisa
Mallard is GRANTED IN PART. Within the next thirty days (30) days from the date of this
order, defendant YRC, Inc., shall produce a corporate representative for deposition regarding the
information as detailed in the body of this opinion.
IT IS FURTHER ORDERED that the motion [doc. # 93], including the request for fees,
expenses, and/or costs, otherwise is DENIED.
In Chambers, at Monroe, Louisiana, this 27th day of June 2016.

__________________________________
KAREN L. HAYES
UNITED STATES MAGISTRATE JUDGE

2

Further, the Court declines to impose sanctions under the circumstances.
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