Kozlov v. Associated Wholesale Grocers, Inc. et al

Filing 182

ORDER - Defendants' Motion for Protective Order (Case No. 4:10-cv- 03211, filing 178; Case No. 4:10-cv-03212, filing 181; Case No. 8:10-cv-03191, filing 193) is granted, in part, as set forth above. Member Cases: 4:10-cv-03211-LSC-FG3, 4:10-cv-03212-LSC-FG3, 8:10-cv-03191-LSC-FG3. Ordered by Magistrate Judge F.A. Gossett. (GJG)

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF NEBRASKA
IGOR KOZLOV,
Plaintiff,
vs.
ASSOCIATED WHOLESALE
GROCERS, INC., et al.,
Defendants.
ANDREI TCHIKOBAVA,
Plaintiff,
vs.
ASSOCIATED WHOLESALE
GROCERS, INC., et al.,
Defendants.

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PAMELA SCOTT, Personal
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Representative of the Estate of Michael )
E. Scott, Deceased,
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Plaintiff,
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vs.
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IGOR KOZLOV, ALBATROSS
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EXPRESS, LLC and UNICK, LLC,
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Defendants.
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4:10-cv-03211
ORDER

4:10-cv-03212

8:10-cv-03191

Defendants Igor Kozlov (“Kozlov”), Albatross Express, LLC (“Albatross”), and
UNICK, LLC (“UNICK”) (collectively “Defendants”) have filed a motion requesting a
protective order liming the scope and nature of discovery sought through the Amended

Notice of Deposition (“Notice”) served upon Albatross by Pamela Scott (“Scott”). (Case No.
4:10-cv-03211, filing 178; Case No. 4:10-cv-03212, filing 181; Case No. 8:10-cv-03191, filing
193.) Defendants claim that the subject matters addressed in the Notice are (1) overly broad,
vague and ambiguous; (2) unduly burdensome and oppressive; and/or (3) irrelevant and not
likely to lead to the discovery of admissible evidence. For the reasons explained below,
Defendants’ motion will be granted, in part.
BACKGROUND
These consolidated civil cases arise out of a motor-vehicle accident between a tractor
trailer driven by Michael Scott, deceased, and a tractor trailer driven by Kozlov. Andrei
Tchikobava (“Tchikobava”) was a passenger in the Kozlov tractor trailer. Michael Scott’s
tractor trailer was owned by Associated Wholesale Grocers. Kozlov’s tractor trailer was
owned by Albatross and UNICK.
On March 18, 2013, Scott filed the Notice commanding Albatross to produce a
corporate representative to testify and produce certain information pursuant to Fed. R. Civ.
P. 30(b)(6). The Notice seeks to obtain information via deposition testimony covering thirtyfour subject matters. The Notice also demands that Albatross produce documents covering
twenty-seven separate categories. The deposition is set to take place on April 22, 2013.
DISCUSSION
Generally, parties may discover relevant, non-privileged information that is reasonably
calculated to lead to admissible evidence. Fed. R. Civ. P. 26. However, a court may issue
a protective order to prevent or limit discovery in order to “protect a party or person from
annoyance, embarrassment, oppression, or undue burden or expense.” Id. “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
(1984).

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1.

Deposition Testimony1

Deposition topics 1 through 4, as listed on the Notice, relate to business relationships
between various parties to this case. In particular, Scott seeks information concerning the
nature and terms of the relationships between (1) Albatross and Kozlov; (2) Albatross and
Tchikobava; (3) Albatross and UNICK; and (4) Albatross and Defendant Roadtex. Albatross
claims that these topics impose an undue burden because the potential questions are not
limited in time. Further, Albatross argues that the testimony sought includes irrelevant
information because the requests encompass relationships between parties that existed prior
to and after the accident at issue.
Scott maintains that questions related to the historical relationship between the parties
are directly related to Scott’s claims. Scott points out that her Complaint alleges that Roadtex
is vicariously liable for Albatross’ and Kozlov’s alleged negligence. The Complaint states
that Roadtex knew, or should have known, that Albatross and/or Kozlov were likely to act
negligently and that Roadtex should not have hired them.
Considering the allegations in the Complaint, the Court finds that discovery related
to the relationships between the parties is relevant, but only to a certain extent. Discovery
in this case has revealed that Kozlov was hired shortly before the accident at issue.
Defendants’ answers to interrogatories further state that Kozlov was not involved in any
accidents in the five years before the accident. For these reasons, the Court will limit the
scope of testimony concerning prior dealings between the parties to five years prior to the
accident. This time period will provide Scott with sufficient information to explore the
hiring of Kozlov and other relevant concerns regarding her negligent hiring claim.
Albatross also seeks to limit questioning on topics 29, 30, 31, and 32. Generally, these
topics seek to elicit testimony regarding Albatross’ corporate structure, Albatross’ principal
business, the identities of Albatross’ officers and directors, and whether Albatross contracts
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Defendants have not posed objections to questioning on topics 12, 13, 23, and 28,
as set forth in the Notice. Therefore, these topics will not be addressed in this Order.
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with third-parties. The Court finds that these topics, as listed on the Notice, are overly broad
and marginally relevant. Therefore, questioning on topics 29, 30, and 31 will be limited to
Albatross’ business structure as it existed at the time of the accident. The requested
testimony on topic 32 will also be restricted to information concerning Albatross’ contracts
with third-parties or companies as they existed at the time of the accident.
Albatross further objects to deposition topics 10 and 11, which seek testimony
regarding all documents, files, or data maintained or removed by Albatross relating to the
accident and Kozlov. The Court finds that these requests are ambiguous, as they do not
sufficiently specify the documents or information sought. In any event, Albatross represents
that it has already produced all such non-privileged information in its possession. Therefore,
Defendants’ motion for a protective order will be granted as to topics 10 and 11.
Defendants claim that topic 14, which seeks testimony regarding any post-accident
testing of Kozlov, is overly broad because it is not limited to testing performed by Albatross.
Albatross further maintains that it does not have knowledge or information concerning
testing performed by any other entity and that it has already produced all information
concerning testing following the accident. On account of this representation, as well as the
breadth of the request, questioning on this topic will be limited to testing performed after the
accident by or on behalf of Albatross.
Defendants further seek to limit questioning on topic 24, which requests testimony
concerning the location of Albatross’ accident register and information regarding how the
register is maintained. Defendants ask that the request be limited to information concerning
the accident register as it relates to the accident in this case. Scott maintains that the entirety
of the testimony is necessary because it may show that Kozlov was involved in other
accidents, which would be relevant to Scott’s claims for negligent training, supervision, and
retention. The Court finds that testimony on this subject matter may lead to relevant
evidence, but, given the breadth of the request, as well as the representation that Kozlov was
hired shortly before the accident and was not involved in any accidents in the five years prior
to the accident, the Court will limit questioning to a period no earlier than three years before
the accident.
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Defendants additionally object to topic 25, which seeks testimony concerning actions
taken by Albatross in response to the accident. Scott claims that, through this request, it
seeks testimony on, among other things, Albatross’ actions after the accident, including
whether Albatross sent people to the scene, whether Albatross administered a drug or alcohol
test to Kozlov, and whether Albatross took statements at the scene. The Court finds that
topic 25 is sufficient to place Albatross on notice as to the matters for examination.
Defendants also seek to limit deposition topics 5, 6, 7, 8, 9, 15, 16, 17, 18, 19, 20, 21,
22, 26, 27, 33, and 34. Generally, these topics seek information concerning Albatross’ hiring
process, supervision of drivers, safety investigations, safety policies and procedures,
document retention policies, and other safety compliance issues. The requests also seek
testimony regarding Kozlov’s education, qualifications, training, and safety compliance.
Defendants object to these requests on several grounds. First, Defendants claims that these
requests are too broad because they allow Scott to ask questions regarding Albatross’ other
employees. Defendants also complain that these requests allow Scott to ask questions
regarding Kozlov’s qualifications at any point during his career.
The Court believes that several of these topics, as listed on the Notice, lack the
requisite specificity. Nevertheless, the Court finds that testimony regarding what Albatross
knew about Kozlov’s qualifications and abilities to operate a commercial vehicle on the date
it hired Kozlov is relevant. Therefore, Scott will be permitted to elicit testimony regarding
Albatross’ hiring of Kozlov, Kozlov’s qualifications to drive a commercial motor vehicle on
the date Albatross hired him, Albatross’ knowledge of those qualifications on the date it
hired him, and Albatross’ investigation into Kozlov’s background before it hired him.
Questions regarding the identities of individuals involved in training and supervising Kozlov
while employed by Albatross, as well as materials and procedures used in training and/or
supervising Kozlov during that time period are also permissible.
Likewise, the Court finds that questioning regarding Albatross’ hiring, training, and
supervision of other, non-specific employees, and Albatross’ safety history and safety
procedures may lead to the discovery of admissible evidence. For instance, testimony
regarding Albatross’ safety program, its safety manuals, hiring standards, accident prevention
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procedures, and training programs may lead to evidence regarding whether Albatross
negligently trained or supervised Kozlov. Again, however, given the breadth of the requests,
testimony on these topics will be limited to a period no earlier than three years before the
accident.
2.

Document Production

Scott has requested that Albatross produce twenty-seven categories of documents.
With respect to categories 1, 2, 3, 4, 5, 6, 7, 8, 9, 10, 12, 13, 14, 19, 20, 21, 23, and 24,
Albatross represents that it has either already produced the responsive materials or that such
materials do not exist. Given this, Albatross’ motion for protective order will be granted with
respect to these categories of documents.
Albatross objects to producing documents in response to Request 11, which seeks all
driver accident reports related to this accident, as well as all prior accidents involving either
Kozlov or the tractor trailer involved in this case. Defendants contend that information
concerning prior accidents is irrelevant to the issues involved in this suit. The Court
disagrees. As explained previously, Scott’s Complaint includes allegations of negligent
hiring, training, and supervision. Therefore, discovery relating to Kozlov’s driving history,
Albatross’ knowledge of Kozlov’s driving history, and the operational history of the tractor
trailer is relevant. However, information concerning Kozslov’s driving history will be
limited to his time working for Albatross and/or in the five years preceding the accident.
Moreover, for these reasons, the Court will also order Albatross to produce the documents
currently in its possession responsive to Request 15, which seeks information concerning
Kozlov’s driving record, as well as Request 25 which asks for all records of discipline
imposed on Kozlov while employed by Albatross. Again, however, the document production
shall not extend to documents dated earlier than five years before the accident.
Albatross further objects to producing documents in response to Request 16, which
seeks information concerning any background or criminal checks performed on Kozlov.
Albatross claims that this Request does not describe the desired information with reasonable
particularity. Albatross points out that the Request does not specify whether Scott seeks
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documents concerning background checks performed by Albatross, third-parties, or any other
entity that may have performed such checks. The Court finds that this Request seeks relevant
information, is adequately specific, and that a response is warranted. In responding to this
Request, Albatross shall produce any information in its possession related to background
checks performed on Kozlov.
Request 17 seeks documents concerning Kozlov’s driver safety rating maintained by
the Federal Motor Carrier Safety Administration. Defendants claim that production should
not be required because the materials are public records that Scott can obtain herself.
Although these documents may be available to all, the Court finds that it should not be
unduly burdensome for Albatross to produce the responsive documents currently in its
possession.
Request 18 asks for correspondence between Albatross and Kozlov. Defendants
maintain that this Request is improper because it does not describe the requested information
with reasonable particularity. The Court agrees that this Request is insufficiently defined.
In response to Defendants’ request for a protective order, Scott explained that through this
Request she is primarily seeking evidence related to Kozlov’s job performance. Therefore,
in response to this Request, the Court will order Albatross to produce all non-privileged
documents currently in its possession reflecting or relating to communications with Kozlov
regarding his job performance, including, but not limited to, job evaluations, safety
procedures, and/or disciplinary measures. The document production will be limited to
materials generated before the accident.
Request 22 seeks any records generated by communication devices utilized by Kozlov
for the month prior to the accident, including cellular phone bills, emails, wireless device
bills, and telephone bills. Defendants claim that this Request is vague and overly broad
because it does not differentiate between Kozlov’s personal communications and any such
communications while working for Albatross. Albatross shall produce the requested
information as to records pertaining to Kozlov’s work communications.
Request 26 seeks all records reflecting traffic citations issued to Kozlov while
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working for KLC Transportation, Inc.. If Albatross possesses copies of traffic citations
issued to Kozlov while working for KLC, or documents related to the disposition of those
citations, it shall produce them.
Request 27 seeks information concerning any and all documents or correspondence
between Albatross and the Federal Motor Carrier Safety Administration involving the
involuntary revocation of Albatross’ operating authority. Defendants claim this information
is irrelevant because the revocation of Albatross’ operating authority occurred over a year
after the accident giving rise to this lawsuit. Scott maintains that the information is relevant
because the Administration may have revoked Albatross’ operating authority due to
Albatross’ operating record before the accident. The Court agrees with Scott. Therefore,
Albatross shall produce the requested information, limited to documents generated no earlier
than three years before the accident.
Accordingly,
IT IS ORDERED that Defendants’ Motion for Protective Order (Case No. 4:10-cv03211, filing 178; Case No. 4:10-cv-03212, filing 181; Case No. 8:10-cv-03191, filing 193)
is granted, in part, as set forth above.
DATED April 16, 2013.
BY THE COURT:
S/ F.A. Gossett
United States Magistrate Judge

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