Ferguson v. Swift Transportation Co of Arizona et al

Filing 90

MEMORANDUM ORDER: Motion for Protective Order 80 which is granted in part and denied in part as set forth below. Plaintiff's Second Motion to Compel 82 is pending but is not yet fully briefed. Counsel shall confer in good faith by telephon e and determine which issues in the Plaintiff's motion were not resolved by the above ruling. The parties are directed to file supplemental briefs to discuss any issues that remain despite the court's ruling. The briefs shall not to exceed seven pages and leave of court is hereby granted in advance for their filing. The parties shall not use the supplemental briefs to reargue issues that were decided above. The supplemental briefs are due by July 8, 2020. See Memorandum Order for details. Signed by Magistrate Judge Mark L Hornsby on 6/30/2020. (crt,Keller, J)

UNITED STATES DISTRICT COURT
WESTERN DISTRICT OF LOUISIANA
SHREVEPORT DIVISION
TONY FERGUSON

CIVIL ACTION NO. 17-cv-1570

VERSUS

CHIEF JUDGE HICKS

SWIFT TRANSPORTATION CO. OF
ARIZONA ET AL

MAGISTRATE JUDGE HORNSBY

MEMORANDUM ORDER
Before the court is Defendants’ Motion for Protective Order (Doc. 80) which is
granted in part and denied in part as set forth below. Also pending is Plaintiff’s Second
Motion to Compel (Doc. 82). The motion to compel is not yet fully briefed, but due to
overlapping issues with the motion for protective order, the court has provided instructions
to the parties with regard to that motion at the end of this order.
In the motion for protective order, Defendants ask the court to limit the topics in
Plaintiff’s Rule 30(b)(6) deposition notice because some of the topics are irrelevant and
not proportional to the needs of this case. Most of Defendants’ relevancy objections are
based on Defendants’ admissions of fault for the accident. More specifically, Swift admits
their driver was solely at fault in causing the accident, and it also admits that their driver
was acting in the course and scope of this employment at the time of the accident.
The undersigned has considered the applicable precedent regarding the effect of
Defendants’ admissions. Those cases include Thomas v. Chambers, 2019 WL 1670745
(E.D. La. 2019)(Vance, J.) and Dennis v. Collins, 2016 WL 6637973 (W.D. La. 2016
(Hicks, J.), which generally hold that once the employer stipulates that its employee was

in the course and scope of his employment, then Plaintiff cannot maintain claims directly
against the employer.
Judge Cain, sitting in the Lake Charles division of this court, recently issued two
rulings in which he found that a plaintiff may maintain claims against the employer for
negligent hiring, training, or supervision despite a stipulation of vicarious liability. In Roe
v. Safety National, 18-cv-1353 (W.D. La. 2020), the plaintiff moved to amend to assert
claims of negligence directly against the employer. The magistrate judge denied leave to
amend based on futility because defendants had stipulated to vicarious liability. Judge
Cain reversed the magistrate judge’s order and permitted the amendment. In doing so, he
noted that the Louisiana Supreme Court has recognized direct claims against an employer
for negligent hiring, training, and supervision as stand-alone claims distinct from the claim
for vicarious liability, citing Harris v. Pizza Hut, 455 So.2d 1364 (La. 1984). See also
Gordon v. Great West, 18-cv-967 (W.D. La. 2020)(denying the employer’s motion for
summary judgment on claims for negligent entrustment, hiring, and training, even though
the employer had stipulated to vicarious liability)(Cain, J.).
Fortunately, the undersigned need not reconcile these decisions, because this case
is unique: Swift has admitted that it is vicariously liable, and it has also admitted that the
accident was caused solely by the fault and negligence of its driver. Answer, Doc. 77, ¶¶
12-16. That means Swift is 100 percent liable for whatever damages the jury finds Plaintiff
suffered as a result of the accident. No evidence of Swift’s negligent hiring, training,
supervision, or entrustment can raise Swift’s percentage of fault above 100. Under these

Page 2 of 6

circumstances, the only discernable reason to press other claims directly against Swift is to
inflame or prejudice the jury.
Plaintiff takes issue with whether Defendants entered into a “real” stipulation. The
undersigned finds that they have done more than simply enter a stipulation: Defendants
have admitted in their Answer that their driver was solely at fault for causing the accident
and that Swift is vicariously liable. The admissions are sufficient to bind Defendants, and
they will not be allowed to withdraw or amend those admissions. Plaintiff may rely on
those admissions as substantive evidence at trial.
This does not mean that Plaintiff should be precluded from taking the Rule 30(b)(6)
deposition of Swift. It does mean, however, that topics that are designed solely to show
Swift was independently negligent are completely irrelevant. Each disputed topic is
addressed in turn.
Disputed Topics
Topic 2 (other persons Defendants contend are at fault): Irrelevant.
Topic 5 (financial condition and net worth of Swift): Irrelevant. There is no claim
for punitive damages, and Defendants have produced their certificate of insurance.
Topic 6 (information on supervision of driver): Irrelevant.
Topic 7 (standards of conduct and supervision of driver): Irrelevant.
Topic 8 (routes and foreseeability of accident): Irrelevant.
Topic 9 (driver’s pre-accident conduct and reckless disregard for safety): Irrelevant.
Topic 10 (Swift’s understanding and appreciation of its driver’s conduct;
foreseeability; feasibility of alternative conduct): Irrelevant.
Page 3 of 6

Topic 11 (driver distraction and fatigue): Irrelevant.
Topic 12 (inadvertence; distracted driving): Irrelevant.
Topic 17 (why driver was distracted): Irrelevant.
Topic 28 (statements made by the driver or Plaintiff): This topic is acceptable,
although Defendants may protect the attorney-client privilege.
Topic 29 (surveillance of Plaintiff):

This topic is acceptable.

Impeachment

evidence is subject to discovery under Rule 26(b).
Topic 30 (accident reports regarding the wreck): This topic is acceptable.
Topic 33 (any and all reports generated regarding the wreck): Overbroad as written.
Topic 34 (appraisals and bills for repair of Swift’s truck): This topic is acceptable.
Topic 35 (removal of parts from Swift’s truck): This topic is acceptable.
Topic 36 (storage of Swift’s truck):

This topic is acceptable.

Defendants’

timeliness objection is overruled.
Topic 45 (black box data): This topic is acceptable.
Topic 48 (Detroit Assurance data): The topic is acceptable to the extent any
representative of Defendant has the information.
Topic 49 (chain of custody for downloaded truck data): Plaintiff may inquire only
with regard to Swift’s standard procedure for downloading data and whether that standard
procedure was followed for this wreck.
Topic 50 (metadata). Unduly burdensome and irrelevant due to the admission of
fault.

Page 4 of 6

Topics 51-55 (five employees who handled data): Plaintiff vaguely alleges in his
brief that Defendants’ representatives failed to preserve evidence or that they destroyed
evidence. Evidence of what? Of the driver’s fault? If so, it is irrelevant, due to Defendants’
admissions, unless the specific questions go to medical causation or damages.
Topic 56 (discuss Defendant’s answer): Too vague. The request to re-depose a
witness, buried in the text of Plaintiff’s opposition brief, is not properly before the court.
Defendants’ Objections to Document Requests
RFP 17 (surveillance of Plaintiff): Overruled. Impeachment evidence is subject to
discovery under Rule 26(b).
RFP 18 (any document concerning Plaintiff): Sustained. Too broad.
RFP 19 (any and all medical records): Moot. Defendants have already produced
them.
RFP 20 (all accident/incident reports): Overruled. However, counsel’s notes and
thoughts must still be protected.
RFP 21 (any drawings or sketches): Overruled, except those made by counsel.
RFP 22 (post-crash inspections): Overruled, except as to counsel’s notes.
RFP 23 (any and all reports): Sustained. Too broad.
RFP 28 (driver’s manual): Overruled.
RFP 39 (Detroit Assurance data): Sustained. Defendants do not have it. They are
expected to make reasonable efforts to get and produce it.
RFP 40 (all Swift employees knowledgeable about the investigation or preservation
of data): Sustained. Too broad.
Page 5 of 6

RFP 41 (metadata): Sustained. Unduly burdensome and irrelevant due to the
admission of fault.
RFPs 42-46 (all documents regarding the employment of several individuals):
Sustained. Too broad.
RFP 47 (names of all supervisors of certain listed employees):

Overruled.

Defendants shall provide a list of the names for the relevant time period.
Plaintiff’s Second Motion to Compel
Plaintiff’s Second Motion to Compel (Doc. 82) is pending but is not yet fully
briefed. That motion raises many of the same issues that were pending in Defendants’
motion for protective order, which was decided above. Counsel shall confer in good faith
by telephone and determine which issues in the Plaintiff’s motion were not resolved by the
above ruling. The parties are directed to file supplemental briefs to discuss any issues that
remain despite the court’s ruling. The briefs shall not to exceed seven pages and leave of
court is hereby granted in advance for their filing.

The parties shall not use the

supplemental briefs to reargue issues that were decided above. The supplemental briefs
are due by July 8, 2020.
THUS DONE AND SIGNED in Shreveport, Louisiana, this 30th day of June, 2020.

Page 6 of 6