Dennis v. Collins, II et al
ORDER granting in part and denying in part 35 Motion to Compel; granting 35 Motion for Attorney Fees. IT IS ORDERED that within the next seven days, defendant designate a Rule 30(b)(6) representative on the topics noticed by plaintiff, and the deposition take place within the next 21 days, unless the parties mutually agree to take the deposition beyond the deadline. IT IS FURTHER ORDERED that the written discovery component of the motion is DENIED, as moot. IT IS FURTHER ORDERED that De fendants and/or their counsel remit the sum of $300 to plaintiff, via her counsel, within the next seven days and file proof of payment in the record within seven days thereafter. Signed by Magistrate Judge Karen L Hayes on 9/19/16. (crt,Crawford, A)
UNITED STATES DISTRICT COURT
WESTERN DISTRICT OF LOUISIANA
CIVIL ACTION NO. 15-2410
JUDGE S. MAURICE HICKS
ERNEST COLLINS II, ET AL.
MAG. JUDGE KAREN L. HAYES
Before the undersigned Magistrate Judge, on reference from the District Court, is a
motion to compel discovery responses and Rule 30(b)(6) deposition [doc. # 35], plus an
associated request for fees, filed by plaintiff Yolanda Dennis. The motion is opposed. For
reasons detailed below, the motion is GRANTED IN PART and DENIED IN PART.1
On June 12, 2015, Yolanda Dennis filed the instant suit against Ernest Collins, II;
Greyhound Lines, Inc. (“Greyhound”); and National Union Fire Insurance Company of
Pittsburgh, PA in the 1st Judicial District Court for the Parish of Caddo, State of Louisiana.
Defendants subsequently removed the case to federal court on the basis of diversity jurisdiction,
28 U.S.C. § 1332. (Compl. for Removal). Dennis alleges that on June 15, 2014, she was a
passenger in a vehicle that was struck by a “1999 MCJ or MCI vehicle” driven by Collins, owned
by Greyhound, and insured by National Union. (Petition, ¶¶ 3-5). Plaintiff attributes fault for the
accident to defendants, and seeks to recover her resulting damages. Id., ¶¶ 6-14.
As this motion is 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).
Plaintiff filed the instant motion on June 24, 2016. She alleges that defendants failed to
supplement their responses to her written discovery initially propounded on June 12, 2015,
despite their agreement to do so. Plaintiff further alleges that defendants did not respond to her
second set of written discovery that she propounded on May 27, 2016. Finally, plaintiff contends
that defendants ignored her request to designate a 30(b)(6) representative for defendant,
On July 13, 2016, defendants filed their opposition to the motion to compel in which they
represented that, just one day earlier, they responded to all of plaintiff’s written discovery
requests with all responsive information in their possession. (Defs. Opp. Memo., Exh. B).
Defendants, however, objected to plaintiff’s motion to designate a 30(b)(6) representative,
because, according to defendants, the stated discovery topics are irrelevant, and/or subject to
Greyhound’s “self-critical analysis” privilege
Plaintiff did not file a reply brief, and the time to do so has lapsed. (Notice of Motion
Setting [doc. # 36]). Accordingly, the matter is ripe.
In light of defendants’ representation that they now have responded in full to plaintiff’s
written discovery requests that formed the basis for the motion, combined with the lack of a reply
brief by movant contesting same, the court necessarily finds that the written discovery
component of the motion to compel is moot.
Rule 30(b)(6) Deposition
A party may, by oral questions, depose any person, including another party, but must
provide reasonable written notice to every other party. Fed.R.Civ.P. 30(a) &(b)(1). In addition, a
party may name an entity as a deponent so long as the party also describes with reasonable
particularity the matters for examination. Fed.R.Civ.P. 30(b)(6). The named entity/deponent
then must designate one or more persons or officials and the matters upon which each will
testify. Id. A party seeking discovery may move for an order compelling a Rule 30(b)(6)
designation if a corporation or other entity fails to do so. Fed.R.Civ.P. 37(a)(3)(B)(ii).
Under Rule 26(b),
[u]nless otherwise limited by court order, the scope of discovery is as follows:
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.
Fed. R. Civ. P. 26(b)(1).
The courts understand the rule to provide for broad and liberal discovery. See Schlagenhauf v.
Holder, 379 U.S. 104, 114-5 (1964); Hickman v. Taylor, 329 U.S. 495, 507, 67 S.Ct. 385 (1947).
Nonetheless, the scope of discovery is limited by relevance, albeit “relevance” is to be broadly
construed. Wyatt v. Kaplan, 686 F.2d 276, 284 (5th Cir. 1982).
Upon a showing of good cause, a court may issue an order to “protect a party or person
from annoyance, embarrassment, oppression, or undue burden or expense, including [an order] . .
. forbidding inquiry into certain matters, or limiting the scope of disclosure or discovery to
certain matters . . . ” Fed.R.Civ.P. 26(c)(1)(D). The party seeking the protective order must
establish good cause for the entry of the order by making a “particular and specific demonstration
of fact, as distinguished from stereotyped and conclusory statements.” Gulf Oil Co. v. Bernard,
452 U.S. 89, 102 n. 16, 101 S.Ct. 2193 (1981); see also, In re Terra Int'l, Inc., 134 F.3d 302, 306
(5th Cir. 1998). Furthermore, “Rule 26(c) confers broad discretion on the trial court to decide
when a protective order is appropriate and what degree of protection is required.” Seattle Times
Co. v. Rhinehart, 467 U.S. 20, 36, 104 S.Ct. 2199 (1984).
Plaintiff seeks to depose Greyhound on the following topics:
The collision of June 15, 2014, involving the vehicles occupied by
Plaintiff and operated by Defendant Driver, including the reason
for Defendant Driver’s use of a commercial vehicle on the day of
the of collision, observations at the scene, statements made by any
party or witness, the identify [sic] of any witnesses and any
photographs of any person or thing involved in the collision;
Defendant’s policy, practice, and procedure, and procedure of
training commercial drivers, and all other personnel involved in the
accident processing and/or investigation;
The extent of Defendant Driver’s prior driving experience and any
investigation into his competence to operate a commercial vehicle.
The extent of any company and procedure into the handling of a
commercial vehicle accident.
Defendant driver’s past driving history and work performance for
Greyhound’s investigation of the collision that is [the] subject of
(Schedule A; M/Compel, Exh. 1).
Defendants contend that issues regarding Greyhound’s training and supervision of
Collins, its employee, (i.e., deposition topics 3 and 5), are not relevant to this litigation because
plaintiff’s independent claim against Greyhound for negligent training and supervision is
redundant and subject to dismissal, when, as here, Greyhound has more or less stipulated that it
is vicariously liable for any negligence attributable to Collins. In fact, this very issue forms the
basis for a pending motion for partial summary judgment filed by defendants. [doc. # 37].
Be that as it may, at this juncture, plaintiff’s claim against Greyhound for negligent
training and supervision remain pending and viable. Until such time as those claims are
dismissed, plaintiff is entitled to conduct discovery regarding them. See Angus Chem. Co. v.
Glendora Plantation, Inc., 782 F.3d 175, 179 n3 (5th Cir.2015) (intimating that the viability of a
party’s claim for damages should not be resolved in the context of a motion to compel when the
same issue is before the district court in a motion for partial summary judgment). In any event,
evidence regarding Collins’ experience and driving history are potentially relevant to plaintiff’s
claim against Collins.
Defendants further argue that discovery regarding Greyhound’s post-accident internal
investigation, findings and disciplinary action (i.e., deposition topics 1, 4, and 6) are not
discoverable pursuant to Louisiana and federal law, which purportedly provides a privilege for a
company’s self-critical analysis.
The court observes, in this regard, that parties are permitted to obtain relevant,
nonprivileged discovery. Fed.R.Civ.P. 26(b)(1). In this diversity case, Louisiana provides the
applicable law of privilege. Exxon Mobil Corp. v. Hill, 751 F.3d 379, 381 (5th Cir.2014) (citing
Fed.R.Evid. 501). Greyhound cite two Louisiana Supreme Court decisions to support its theory
that the requested discovery is subject to the self-critical analysis privilege. The first case, Rader
v. Regional Transit Authority, reads, in its entirety:
Granted. Trial judge correctly denied discovery of RTA's internal evaluation as to
whether the accident was “preventable” and any post-accident disciplinary action
taken against the driver. However, the case is remanded to the district court with
instructions to the trial judge to conduct an in-camera inspection of the subject
documents and to order disclosure of any containing relevant evidence or likely to
lead to the discovery of relevant evidence. See Ogea v. Jacobs, 344 So.2d 953
Rader v. Reg'l Transit Auth., 595 So.2d 644 (La.1992)
However, the decision does not explain the basis for the trial court’s denial of discovery.
Moreover, in Ogea v. Jacobs – the case cited by Rader – the Louisiana Supreme Court permitted
a party to discover an accident report prepared by defendant, which included defendant’s opinion
as to the cause of the accident and the data he collected from witnesses. Ogea v. Jacobs, 344
So.2d 953, 960 (La.1977).
The second Louisiana case cited by defendants, Smith v. Lincoln General Hosp., is
premised on Louisiana statutes that confer confidentiality on certain hospital committee meetings
and records. Smith v. Lincoln Gen. Hosp., 605 So.2d 1347, 1348 (La.1992). There is no
indication that the deposition topics identified by plaintiffs are likely to implicate the statutory
protections at issue in Smith.
In fact, as it turns out, “[n]either Louisiana courts nor the Fifth Circuit has embraced a
self-critical analysis privilege . . .” Hawthorne Land Co. v. Occidental Chem. Corp., Civ Action
No. 01-0881, 2003 WL 21510426, at *1 (E.D. La. June 24, 2003). Further, “[a]ll of the courts in
this Circuit confronting the issue have declined to find that the self critical analysis privilege
exists, even in the instance of a post-accident investigation.” Ganious v. Apache Clearwater
Operations, Inc., No. 98-207, 2004 WL 287366, at *2 (E.D. La. Feb. 11, 2004). Moreover,
subsequent remedial measures are discoverable. Breaux v. Haliburton Energy Servs., Civ.
Action No. 04-1636, 2006 WL 2700057, at *2 (E.D. La. Sept. 18, 2006). Certainly, while some
of the evidence sought by plaintiff may not be admissible at trial, see Fed.R.Civ.P. 407, that does
not undermine its discoverability. See Fed.R.Civ.P. 26(b)(1); Broussard v. Tetra Applied Techs.,
L.P., Civ. Action 09-1422, 2010 WL 3463084, at *2 (W.D. La. Aug. 25, 2010) (“self-critical
analysis” privilege does not provide a valid reason for withholding production of documents).
Defendants’ objections are overruled.
Rule 37 provides that if a motion to compel is granted –
or if the disclosure or requested discovery is provided after the motion was filed-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
(iii) other circumstances make an award of expenses unjust.
Fed. R. Civ. P. 37(a)(5)(A) (emphasis added).
Here, defendants did not respond fully to plaintiff’s written discovery until after the
instant motion was filed. In addition, defendants’ objections to designating a Rule 30(b)(6)
representative were not well taken. Moreover, defendants have not established any other
circumstances that would make an award of expenses unjust. Accordingly, the court finds that an
award of $300 is warranted and appropriate to ameliorate the reasonable expenses and fees
incurred by plaintiff in prosecuting the instant motion.
For the foregoing reasons,
Plaintiff’s motion to compel discovery responses and the Rule 30(b)(6) deposition of
defendant, Greyhound, [doc. # 35], and associated request for fees, is hereby GRANTED IN
PART and DENIED IN PART, as follows,
IT IS ORDERED that within the next seven (7) days from the date of this order,
defendant, Greyhound Lines, Inc., shall designate a Rule 30(b)(6) representative(s) on the topics
noticed by plaintiff, and the deposition taken within 21 days from the date of this order, unless
the parties mutually agree to take the deposition beyond the deadline.
IT IS FURTHER ORDERED that the written discovery component of the motion to
compel is DENIED, as moot.
IT IS FURTHER ORDERED that within seven (7) days from the date of this order,
defendants Ernest Collins, II, Greyhound Lines, Inc., and National Union Fire Insurance
Company of Pittsburgh, PA and/or their counsel shall remit the single sum of $300 to plaintiff
Yolanda Dennis, via her counsel, and file proof of payment in the record of these proceedings
within seven (7) days thereafter.
In Chambers, at Monroe, Louisiana, this 19th day of September 2016.
KAREN L. HAYES
UNITED STATES MAGISTRATE JUDGE
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