Baumann et al v. Slezak et al

Filing 57

ORDER - Plaintiffs' Motion to Compel (filing 47 ) is denied. Ordered by Magistrate Judge F.A. Gossett. (GJG)

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF NEBRASKA
BRADLEY B. BAUMANN,
individually, co-special administrators
of these Estates, NANCY R.
BAUMANN, individually, co-special
administrators of these Estates, and
DONNA J. COSTLEY, individually,
co-special administrators of these
Estates,

)
)
)
)
)
)
)
)
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Plaintiffs,
)
)
V.
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JOSEF SLEZAK, VLADIMIR
)
ZHUKOV, SWIFT-TRUCK LINES,
)
LTD., NORTH METRO TRUCK
)
LEASING, LLC, LONG HAUL
)
TRUCKING, INC., JOHN DOES 1 )
10, AKI TRUCKING, INC., and MTR )
EXPRESS, INC.,
)
)
Defendants.

Case No. 8:12CV383

ORDER

This matter is before the Court on Plaintiffs’ Motion to Compel Rule 26(a)
Disclosures (filing 47). For the reasons set forth below, as well as the reasons expressed
during the Planning Conference held on March 25, 2013, Plaintiffs’ motion will be denied.
BACKGROUND
This case arises out of a motor vehicle accident which resulted in the deaths of
Christopher and Diana Schmidt, their sons, Samuel and Connor, and Diana Schmidt’s loss
of pregnancy. The Complaint alleges negligence per se and vicarious liability against
Defendants Josef Slezak and AKI Trucking, Inc. (collectively “Defendants”) for violations
of the Federal Motor Carrier Safety Administration Regulations, 49 C.R.F. § 392.2. (Filing
1.)

ANALYSIS
Plaintiffs argue that Defendants’ Fed. R. Civ. P. 26 disclosures are deficient because
they only list three witnesses and, other than an insurance policy issued by American
Southern Insurance Company, identify no documents. Based on their disclosures, it appears
that Defendants do not intend to use any other documents, data compilations or tangible
things that are now in their custody or control to support their claims or defenses - unless
solely for impeachment. If this is the case, Defendants do not have an obligation to identify
further documents or individuals at this time. Therefore, Plaintiffs Motion to Compel (filing
47) will be denied. Defendants are reminded, however, that pursuant to Fed. R. Civ. P.
37(c)(1), if a party fails to provide information or identify a witness as required by Rule
26(a), “the party is not allowed to use that information or witness to supply evidence on a
motion, at a hearing, or at a trial, unless the failure was substantially justified or is harmless.”
Fed. R. Civ. P. 37. “This provision has been characterized as an ‘automatic’ sanction, to be
applied unless the offending party's failure to disclose was ‘substantially justified’ or if the
failure was ‘harmless.’” Credit Suisse Securities (USA) LLC v. Hilliard, No. 8:07CV17, 2007
WL 1362455, *4 (D. Neb. Apr. 25, 2007) (citation omitted).
Accordingly,
IT IS ORDERED that Plaintiffs’ Motion to Compel (filing 47) is denied.
DATED March 26, 2013.
BY THE COURT:
S/ F.A. Gossett
United States Magistrate Judge

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