Kozlov v. Associated Wholesale Grocers, Inc. et al

Filing 300

ORDER - IT IS ORDERED that AWG's motions for protective orders (Case No. 4:10- cv-03211, filing 269 & 271; Case No. 4:10-cv-03212, filing 272 & 274; Case No. 8:10-cv-03191, filing 288 & 290) are granted, in part, and denied, 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. (TCL )

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.
PAMELA SCOTT, Personal
Representative of the Estate of
Michael E. Scott, Deceased,
Plaintiff,
vs.
IGOR KOZLOV, ALBATROSS
EXPRESS, LLC and UNICK, LLC,
Defendants.

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4:10-cv-03211
ORDER

4:10-cv-03212

8:10-cv-03191

This matter is before the Court upon two motions filed by Associated
Wholesale Grocers, Inc. (“AWG”) seeking protective orders. (Case No. 4:10-cv03211, filing 269 & 271; Case No. 4:10-cv-03212, filing 272 & 274; Case No. 8:10cv-03191, filing 288 & 290.) AWG requests that the Court preclude Andrei
Tchikobava’s (“Tchikobava”) attorneys from questioning AWG’s corporate
representative about particular subject matters during a deposition. AWG also asks
that the Court strike Tchikobava’s document production requests. For the reasons
explained below, AWG’s motions will be granted, in part.
BACKGROUND
These consolidated civil cases arise out of a motor-vehicle accident which
occurred between a tractor trailer driven by Michael Scott (“Mr. Scott”), deceased,
and a tractor trailer driven by Igor Kozlov (“Kozlov”). At the time of the accident,
Mr. Scott was working for AWG. Andrei Tchikobava (“Tchikobava”) was a
passenger in the tractor driven by Kozlov. Tchikobava filed suit against Mr. Scott’s
Estate and AWG, alleging that Mr. Scott acted negligently, thereby causing the
accident. (Case No. 4:10-cv-3212, filing 104.)
On June 25, 2014, Tchikobava issued a Notice of Deposition Duces Tecum to
AWG, requesting a corporate representative deposition of AWG. (Case No. 4:12-cv3212, filing 269.) AWG objects to several of the subject matters for the deposition,
and also objects to the document requests attached to the Notice.1 In particular, AWG
objects to topics pertaining to Mr. Scott’s physical condition or health. AWG also
objects to questions regarding medical reports from Dr. Pro and Dr. Koprivica. As for
the document requests, AWG complains that the requests are untimely as they were
not made within 30 days of the deposition. AWG also argues that the requests seek
Tchikobava has withdrawn a couple discovery requests to which AWG
objected. Therefore, AWG’s objections with respect to those discovery requests will
not be addressed in this Order.
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irrelevant information, particularly those requests seeking documents related to
shipments delivered, or scheduled to be delivered, by Mr. Scott in the year before the
accident.
DISCUSSION
1.

Deposition Subject Areas
A.

Mr. Scott’s Physical Condition & Health

With respect to anticipated areas of inquiry during the deposition, Paragraph 10
of the Notice states: “All knowledge and information concerning Scott’s physical
condition from the time of that [sic] he was injured in 1997, through his return to work
in a diminished capacity as a non-truck driver, and up through his subsequent return
to truck driving.” (Case No. 4:12-cv-3212, filing 269.) AWG argues that this
Paragraph is vague and overbroad because it is not limited to any specific physical
issue, and is not limited to a physical condition which could affect Mr. Scott’s ability
to drive.
Similarly, AWG maintains that Paragraph 12 of the Notice is vague, ambiguous
and overbroad. AWG also claims that the request violates the physician-patient
privilege. Paragraph 12 states: “If there is a chief medical officer or similar person
employed by or retained by AWG, produce that individual and all the medical
information concerning Scott from January 1, 1997, through the date of his death in
2010.” (Case No. 4:12-cv-3212, filing 269.) AWG complains that the request is not
limited to any specific health issue and, even if the request was so limited, there is no
evidence in this case that the accident was caused by any health issue on the part of
Mr. Scott.
The Court previously determined that information related to the injuries Mr.
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Scott received in the 1997 accident is relevant to this litigation. However, in
connection with specific discovery requests relating to AWG’s receipt of medical
records during the pendency of Mr. Scott’s workers’ compensation claim, the Court
concluded that what AWG knew about Mr. Scott’s medical condition in 1999 is
irrelevant because it is not indicative of what AWG knew about Mr. Scott’s health in
2006 when he was examined by a physician and re-certified to drive.
It is difficult to anticipate the exact questions which will be posed regarding
these matters. Therefore, at this time, the Court will permit limited questioning in
these areas. If there are objections to specific questions posed during the deposition,
the Court will address those particular inquiries following the deposition. The parties
are advised to keep the Court’s previous rulings in mind during the deposition.
B.

Medical Reports of Dr. Pro and Dr. Koprivica

Paragraph 11 of the Notice relates to medical reports prepared by Dr. Pro and
Dr. Koprivica in connection with a workers’ compensation claim filed by Mr. Scott
in 1999. This Paragraph requests: “All knowledge and information concerning the
medical reports from Dr. Pro and Dr. Koprivica as set forth in Exhibits 1 and 2,
attached.” (Case No. 4:12-cv-3212, filing 269.) AWG maintains that this request is
vague, ambiguous and overbroad. AWG also believes that this request violates an
order entered by this Court on March 11, 2014, regarding a motion to compel. The
order states:
The Court agrees with AWG that these RFAs, as written, could plausibly
include information protected by the attorney-client privilege . . . In any
event, it is unclear to the Court how information related to AWG’s
receipt of a particular medical report during the workers’ compensation
claim is relevant to the claims in this litigation. What AWG knew about
Mr. Scott’s medical condition in 1999 has no bearing on what AWG
knew about Mr. Scott’s condition when he was re-certified and returned
to driving in 2006. Prior to his DOT re-certification in 2006, 2008, 2009
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and 2010, Mr. Scott was examined by a physician, who declared Mr.
Scott fit to return to driving.
(Case No. 4:10-cv-3212, filing 235.)
The Court agrees with AWG that information pertaining to AWG’s knowledge
of the medical reports issued in connection with the 1999 workers’ compensation
proceeding is irrelevant to the claims involved in this action.
2.

Document Requests

AWG objects to all of the document requests attached to the Notice for the
reason that the requests were not made within 30 days of the deposition. The Court
rejects AWG’s timeliness argument. The parties agreed that AWG’s deposition would
be taken on July 7, 2014. On June 18, 2014, AWG was provided an informal list of
subject matters for the deposition and document requests. Therefore, AWG was aware
as early as June 18, 2014, that documents were being requested in connection with the
deposition. However, AWG did not raise any concerns with respect to the timeliness
of the document requests until the formal Notice was filed on June 25, 2014.
AWG also specifically objects to Request 4, which asks for “[a]ll shipping
documents, including without limitation bills of lading, freight bills, manifests, and
any other additional shipping information and documents, used for the shipments
delivered, or scheduled to be delivered, by AWG agent Scott, for the dates of the
accident and day prior (August 8 and 9, 2010) and one year prior to the collision.”
(Case No. 4:12-cv-3212, filing 269.) AWG argues that the request is overbroad to the
extent that it seeks shipping documents for the year before the accident. AWG also
claims that the request is not reasonably calculated to lead to the discovery of
admissible evidence.
The Court agrees that this request is overly broad. It is unclear how shipping
documents extending back a year before the accident in question is relevant to the
issues involved in this litigation. Therefore, the request is limited to such documents
relating to shipments on August 8 and 9, 2010.
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Additionally, AWG asserts that Request 7, which relates to Mr. Scott’s
workers’ compensation claim, violates the attorney-client privilege and is not
reasonably calculated to lead to the discovery of admissible evidence. The Request
states: “All medical records, reports, and information in the possession of AWG, or
its representatives, used to determine Scott’s workers’ compensation claim, and his
fitness for subsequent employment.” (Case No. 4:12-cv-3212, filing 269.) AWG also
argues that the request violates the Court’s March 11, 2014 order.
The Court finds that this request is overly broad and seeks irrelevant
information. As previously explained, Mr. Scott was examined by a physician and recertified to drive in 2006. What AWG knew about Mr. Scott’s medical condition in
1999 has no bearing on what AWG knew about Mr. Scott’s condition when he was
re-certified and returned to driving.
Accordingly,
IT IS ORDERED that AWG’s motions for protective orders (Case No. 4:10cv-03211, filing 269 & 271; Case No. 4:10-cv-03212, filing 272 & 274; Case No.
8:10-cv-03191, filing 288 & 290) are granted, in part, and denied, in part, as set forth
above.
DATED July 22, 2014.
BY THE COURT:
S/ F.A. Gossett
United States Magistrate Judge

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