Wells et al v. FedEx Ground Package System, Inc.

Filing 99

MEMORANDUM AND ORDER: IT IS HEREBY ORDERED that Plaintiffs' Motion to Compel Responses to Plaintiffs' Third Interrogatories Relating to Damages and Third Request for Production of Documents Directed to Defendant 91 is GRANTED in part and DENIED in part. IT IS FURTHER ORDERED that Defendant shall, no later than ten (10) days from the date of this Order, provide supplemental responses to Plaintiffs' Third Interrogatories Nos. 36, 37, and 42. IT IS FURTHER ORDERED that Defendant s hall, no later than ten (10) days from the date of this Order, produce the requested documents in its possession, custody or control which are responsive to Plaintiffs' Third Request for Production of Documents Nos. 58, 59, 61, and 65. IT IS FU RTHER ORDERED that with respect to Interrogatory Nos. 40 and 41 and Request Nos. 63 and 64, the Motion is DENIED. IT IS FURTHER ORDERED that respect to the written discovery directed to FedEx Express, specifically Interrogatory Nos. 38, 39, 43 and Request Nos. 60, 62 and 66, the Motion is DENIED as moot.. Signed by District Judge John A. Ross on 10/1/12. (LGK)

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF MISSOURI
EASTERN DIVISION
DAVID WELLS, et al.,
Plaintiffs,
vs.
FEDEX GROUND PACKAGE
SYSTEM, INC.,
Defendant.

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Case No. 4:10-CV-02080-JAR

MEMORANDUM AND ORDER
This matter is before the Court on Plaintiffs’ Motion to Compel Responses to Plaintiffs’
Third Interrogatories Relating to Damages and Third Request for Production of Documents Directed
to Defendant [ECF No. 91]. The Motion is fully briefed and ready for disposition. For the following
reasons, the motion will be granted in part.
Background
Plaintiffs seek discovery of certain information relating to the compensation, benefits,
and job descriptions for persons who have driven trucks for Defendant’s sister companies, FedEx
Freight, Inc., and FedEx Express.1 Defendant has objected to each of Plaintiffs’ Third Interrogatories
and Third Request for Production of Documents on the grounds that the discovery is not reasonably
calculated to lead to the discovery of admissible evidence. Defendant further objects to Interrogatory
Nos. 36, 37, and 42 and Request Nos. 58, 59, 61, and 65 on the grounds that the information and/or
documents sought are “outside of Defendant’s possession, custody, or control.” Specifically,
Defendant argues that Defendant and its sister companies are separate and distinct. As a result, it

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Plaintiffs state that FedEx Express has produced the requested information and
documents pursuant to subpoena. (Doc. No. 92, p. 2 n.1) Accordingly, the motion to compel as it
relates to FedEx Express, and specifically Interrogatory Nos. 38, 39 and 43, and Request Nos.
60, 62 and 66, will be denied as moot.

does not have control of the requested information or documents. Finally, Defendant objects to
Interrogatory Nos. 40 and 41, and Request Nos. 63 and 64, seeking job descriptions for persons who
have driven trucks for Defendant and FedEx Home Delivery on the grounds that this information
is equally available to Plaintiffs. Defendant states Plaintiffs are aware of their job description and
that Defendant has already produced Plaintiffs’ Operating Agreements.
Discussion
With respect to Defendant’s objections based on relevance, this Court previously ruled in
the related case of Gray, et al., v. FedEx Ground Package System, Inc., 4:06CV422, that the
information sought by Plaintiffs regarding hourly wage rates, job descriptions and benefits for
employees of FedEx Freight and FedEx Express was “clearly designed to lead to the discovery of
admissible evidence.” (Doc. No. 171) Thus, the Court will overrule Defendant’s objections on this
ground.
As to whether Defendant has “possession, custody, or control” over the requested
information and/or documents, the Eighth Circuit has instructed that “[t]he rules for depositions and
discovery ‘are to be accorded a broad and liberal treatment.’ ” Orthoarm, Inc. v. Forestadent USA,
Inc., 2007 WL 1796214, at *2 (E.D.Mo. June 19, 2007) (quoting Credit Lyonnais, S.A. v. SGC Int'l,
Inc., 160 F.3d 428, 430 (8th Cir.1998)). Rule 34(a) requires a party to produce not only those
documents within its possession or physical custody, but also responsive documents that are within
the party's “control.” Id. (citing Prokosch v. Catalina Lighting, Inc., 193 F.R.D. 633, 635
(D.Minn.2000) (citing Fed.R.Civ.P. 34)). Control is defined broadly as the “ability to obtain upon
demand documents in the possession of another.” Id. (quoting Prokosch, 193 F.R.D. at 636.) The
party to whom the discovery is directed need not have legal ownership or actual physical possession,
but rather a “practical ability” to obtain the documents. Id.

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The Court finds that a sufficient relationship between Defendant and FedEx Freight exists
in order to justify an order compelling production of the requested information and/or documents,
particularly since Defendant and FedEx Freight are sister companies and wholly owned subsidiaries
of FedEx Corporation. Clearly, as between the parties, Defendant has a “practical ability” to obtain
the information Plaintiffs seek on demand.
Finally, with respect to the written discovery relating to job descriptions for truck drivers,
Plaintiffs state Defendant’s objections do not address the issue of whether such written job
descriptions actually exist and thus are not well taken. In response, Defendant confirms it does not
have any written job descriptions of persons who have driven trucks other than in the Operating
Agreement, which has already been produced. (Memorandum in Opposition, Doc. No. 93, pp. 6-7).
The motion to compel will, therefore, be denied as to Interrogatory Nos. 40 and 41 and Request Nos.
63 and 64.
Accordingly,
IT IS HEREBY ORDERED that Plaintiffs’ Motion to Compel Responses to Plaintiffs’
Third Interrogatories Relating to Damages and Third Request for Production of Documents Directed
to Defendant [91] is GRANTED in part and DENIED in part.
IT IS FURTHER ORDERED that Defendant shall, no later than ten (10) days from the date
of this Order, provide supplemental responses to Plaintiffs’ Third Interrogatories Nos. 36, 37, and
42.
IT IS FURTHER ORDERED that Defendant shall, no later than ten (10) days from the date
of this Order, produce the requested documents in its possession, custody or control which are
responsive to Plaintiffs’ Third Request for Production of Documents Nos. 58, 59, 61, and 65.

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IT IS FURTHER ORDERED that with respect to Interrogatory Nos. 40 and 41 and
Request Nos. 63 and 64, the Motion is DENIED.
IT IS FURTHER ORDERED that respect to the written discovery directed to FedEx
Express, specifically Interrogatory Nos. 38, 39, 43 and Request Nos. 60, 62 and 66, the Motion is
DENIED as moot.

Dated this 1st day of October, 2012.

JOHN A. ROSS
UNITED STATES DISTRICT JUDGE

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