Petrone v. Werner Enterprises, Inc. et al

Filing 239

MEMORANDUM AND ORDER - No later than May 27, 2014, defendants shall produce the documents indicated in plaintiffs Fourth Set of Requests for Production of Documents, Request Number 2. Plaintiff's motion to compel (8:11CV401, Filing No. 192; 8:12CV307, Filing No. 95) is otherwise denied. Member Cases: 8:11-cv-00401-LES-FG3, 8:12-cv-00307-LES-FG3. Ordered by Senior Judge Lyle E. Strom. (GJG, )

IN THE UNITED STATES DISTRICT COURT FOR THE
DISTRICT OF NEBRASKA
PHILLIP PETRONE, et al.,

)
)
Plaintiffs,
)
)
v.
)
)
WERNER ENTERPRISES, INC., and )
DRIVERS MANAGEMENT, LLC,
)
)
Defendants.
)
______________________________)
PHILLIP PETRONE, et al.,
)
)
Plaintiffs,
)
)
v.
)
)
WERNER ENTERPRISES, INC., and )
DRIVERS MANAGEMENT, LLC,
)
)
Defendants.
)
______________________________)

8:11CV401

8:12CV307

MEMORANDUM AND ORDER

This matter is before the Court on the motion of
plaintiffs to compel discovery (8:11CV401, Filing No. 192;
8:12CV307, Filing No. 95).

Plaintiffs seek three sets of

information.
First, a CSV formatted file containing an array of
information regarding changes in duty status that would have been
sent by plaintiff drivers to defendants using the defendants’
electronic “Qualcomm” messaging system.

Plaintiffs argue such

data is necessary to calculate precise “un-rounded” intervals for
break periods by drivers because only this original data would

include the exact time each duty status change was sent by the
drivers.

The business records retained and produced by

defendants thus far consist of break times for each driver that
have been automatically rounded to the nearest 15-minute start
and stop time by defendants’ system or rounded by Werner
employees who made manual entries.

Significantly, defendants’

system does not retain the exact times submitted by the drivers
in a format that associates the Qualcomm messages with specific
drivers; in fact, the information plaintiffs request is stored
across many different files and even in different systems -- much
of it in unwieldy back-up files.

Creating the driver-specific

duty change status information in the format requested by the
plaintiffs would require an immense programming effort and
considerable human hours to reconcile data points for each driver
across the file system and across time.

Nor does Werner rely

exclusively on change in duty status messages logged in the
Qualcomm system to calculate compensation; for instance, manual
logs and corrections are not reflected in the Qualcomm data.

The

immense time, effort, and expense necessary to compile the
requested information in the format requested by plaintiffs
presents a significant burden to defendants.
In addition, the end product would be of questionable
value considering that driver status changes can be altered in
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ways that are not accurately recorded by the Qualcomm system such
as when a driver submits a correction to their duty status that
must be approved by an employee in defendants’ log department.
Further eroding the usefulness of this discovery is that
defendants have testified by 30(b)(6) deposition that, for many
of the non-Qualcomm duty status changes, no un-rounded original
record exists.
Under Federal Rule of Civil Procedure 26(b)(2)(B), “[a]
party need not provide discovery of electronically stored
information from sources that the party identifies as not
reasonably accessible because of undue burden or cost.”

The

Court may, nonetheless, order discovery if the moving party makes
a showing of good cause, subject to the other considerations in
Rule 26(b)(2)(C) such as where the discovery sought is
“unreasonably cumulative,” is available from a less burdensome
source, or where “the burden and expense . . . outweighs its
likely benefit.”

Further, Federal Rule of Civil Procedure

34(b)(2)(E) requires that “[i]f a request does not specify a form
for producing electronically stored information, a party must
produce it in a form or forms in which it is ordinarily
maintained or in a reasonably usable form or forms.”
Plaintiffs request not only a specific form, but the
compilation of many data sources into a single file that
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associates the distinct data sets with individual drivers.
Plaintiffs are requesting not only the data, but an extraordinary
amount of time and effort in compiling the data into a form
usable for plaintiffs’ purposes -- a feat which Werner’s 30(b)(6)
representative estimated might be impossible.

Given the

considerable burden and the questionable value of the end
product, the Court finds that compelling discovery of the duty
status change data in the compiled format requested by plaintiffs
is inappropriate.
Second, plaintiffs seek a CSV formatted file containing
GPS data denoting the periodically reported position of every
truck driven by the class members during the class periods.

To

make use of such data, plaintiffs also request information about
when each class member was driving a particular truck.
Plaintiffs claim this information can be used to determine
whether drivers were engaged in an uninterrupted period of work
for 24 hours or more.

Again, this information is significantly

burdensome to produce, especially considering the difficulty of
determining which GPS entries to associate with the student
driver and the instructor.

Regardless, given that the Court is

granting the request below, such discovery would be cumulative.
Third, plaintiffs seek Qualcomm data indicating when
student drivers were picked up and dropped off.

Plaintiffs have

provided a colorable legal theory as to how this data can be used

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to determine tour of duty start and stop times regardless of
layovers and other interruptions in driving time.

As defendants

point out in their brief, summary judgment is a more appropriate
vehicle for making important decisions about the merits of
plaintiffs’ legal theory than a motion to compel in which the
issues are inadequately briefed.

The Court recognizes this

presents a significant burden to the defendants.

However, the

Court finds this information is highly relevant to damage
calculations for periods in the sleeper berth, and the Court has
not been made aware of any other less burdensome source.

The

Court finds that there is good cause to compel the discovery
despite the burden.

Accordingly,

IT IS ORDERED:
1) No later than May 27, 2014, defendants shall produce
the documents indicated in plaintiffs’ Fourth Set of Requests for
Production of Documents, Request Number 2.
2) Plaintiff’s motion to compel (8:11CV401, Filing No.
192; 8:12CV307, Filing No. 95) is otherwise denied.
DATED this 31st day of March, 2014.
BY THE COURT:
/s/ Lyle E. Strom
____________________________
LYLE E. STROM, Senior Judge
United States District Court

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