Bremmer et al v. Appleton Electric, LLC et al

Filing 35

ORDER granting in part and denying in part the plaintiffs' 30 Motion to Compel. The plaintiffs' motion is granted with regard to Interrogatory No. 3, as amended by the court, and denied in all other respects. On or before May 31, 201 3, the defendants shall amend its answer to Interrogatory No. 3 as provided in this order. Pursuant to NECivR 72.2 any objection to this Order shall be filed with the Clerk of the Court within fourteen (14) days after being served with a copy of this Order. Ordered by Magistrate Judge Thomas D. Thalken. (MKR)

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF NEBRASKA

RICK BREMMER, and
WASTE CONNECTIONS, INC.,
8:12CV436
Plaintiffs,
vs.

ORDER

APPLETON ELECTRIC, LLC, and
EMERSON ELECTRIC, LLC,
Defendants.
This matter is before the court on the plaintiffs’, Rick Bremmer (Bremmer) and
Waste Connections, Inc. (Waste Connections), Motion for Order Compelling Discovery
(Filing No. 30). The plaintiffs filed a brief (Filing No. 31) and index of evidence (Filing
No. 32) in support of the motion. The defendants, Appleton Electric, LLC, (Appleton)
and Emerson Electric, Co.1, filed a brief (Filing No. 34) in opposition. The plaintiffs did
not file a reply.

BACKGROUND
The plaintiffs’ action arises from an injury Bremmer sustained on Appleton’s
premises.

See Filing No. 1-1 - Complaint.

On May 25, 2011, Bremmer was on

Appleton’s premises to deliver a roll-off box for Waste Connections when Bremmer fell
into an open pit approximately twenty feet by twenty feet wide and five feet deep. Id. ¶¶
9-13. Bremmer alleges he sustained a torn rotator cuff and herniated disc, underwent
medical care for his injuries, and incurred medical expenses, which will continue into the
future.

Id. ¶ 19.

Additionally, Bremmer alleges he suffered lost wages, pain, and

suffering. Id. ¶¶ 20-21. Waste Connections alleges it has paid and will continue to pay
worker’s compensation benefits to Bremmer. Id. ¶ 22.
On December 20, 2012, the defendants removed this action from the District
Court of Platte County, Nebraska, to the United States District Court for the District of
Nebraska. See Filing No. 1 - Notice of Removal. On September 21, 2012, the plaintiffs

1

The defendants represent Emerson Electric, Co. is improperly named Emerson Electric, LLC.
See Filing No. 34 - Response p. 1.

served the defendants with interrogatories and requests for production.2 See Filing
Nos. 31 - Brief p. 1; 32-1 Ex. 1 - Interrogatories to Defendants, Ex. 2 - Requests for
Production. The defendants generally objected on the grounds the information sought
is privileged and the discovery requests are overly broad, unduly burdensome, vague,
and not reasonably calculated to lead to the discovery of admissible evidence. See
Filing No. 32-1 Ex. 3 - Defendant’s Objections to Plaintiffs’ First Set of Interrogatories,
Ex. 4 - Defendant Appleton Electric, LLC’s Objections to Plaintiffs’ First Set of Requests
for Production. On December 4, 2012, and January 10, 2013, the plaintiffs attempted to
resolve the discovery issues. See Filing No. 32-1 Ex. 5 - December 4, 2012, letter, Ex.
6 - January 10, 2013, letter. The plaintiffs’ counsel also called the defendants’ counsel
to resolve discovery issues. See Filing No. 32-1 Ex. 5 - Certification of Good Faith
Resolution Attempt ¶ 4. On March 8, 2013, the defendants provided supplemental
responses to the plaintiffs’ interrogatories and requests for production. See Filing No.
32-1 Ex. 7 - Defendant’s Supplemental Answers to Plaintiffs’ First Set of Interrogatories,
Ex. 8 - Defendant’s Supplemental Responses to Plaintiffs’ First Set of Requests for
Production.

The plaintiffs sent another letter on March 28, 2013, in an attempt to

resolve the defendants’ objections in the supplemental responses, but the defendants
did not respond. See Filing No. 32-1 Ex. 9 - March 28, 2013, letter. The court finds the
parties made sincere attempts to resolve their disputes prior to seeking court
involvement as required by NECivR 7.1(i) and Fed. R. Civ. P. 37(a)(1).
The plaintiffs filed the instant motion on April 17, 2013. See Filing No. 30 Motion.

The plaintiffs seek an order compelling the defendants to respond fully to

Interrogatory Nos. 3 and 15 and Request for Production No. 5. Id. at 1. The plaintiffs
argue the discovery requests seek relevant information. See Filing Nos. 31 - Brief p. 23.

The defendants argue they have sufficiently answered the plaintiffs’ discovery

requests and maintain their prior objections. See Filing No. 34 - Response p. 1-6.

ANALYSIS
“Parties may obtain discovery regarding any nonprivileged matter that is relevant
to any party’s claim or defense.” Fed. R. Civ. P. 26(b)(1). “Broad discovery is an
2

The court notes no certificates of service were filed as required by the Civil Rules of the United
States District Court for the District of Nebraska 33.1(e) and 34.1(b).
2

important tool for the litigant, and so ‘[r]elevant information need not be admissible at
the trial if the discovery appears reasonably calculated to lead to the discovery of
admissible evidence.’” WWP, Inc. v. Wounded Warriors Family Support, Inc., 628
F.3d 1032, 1039 (8th Cir. 2011) (alteration in original) (quoting Fed. R. Civ. P.
26(b)(1)). Accordingly, relevant information includes “any matter that bears on, or that
reasonably could lead to other matter that could bear on, any issue that is or may be in
the case.” Oppenheimer Fund, Inc. v. Sanders, 437 U.S. 340, 351 (1978). Mere
speculation that information might be useful will not suffice; litigants seeking to compel
discovery must describe with a reasonable degree of specificity the information they
hope to obtain and its importance to their case. See Cervantes v. Time, Inc., 464 F.2d
986, 994 (8th Cir. 1972).
Once the requesting party meets the threshold relevance burden, generally “[a]ll
discovery requests are a burden on the party who must respond thereto. Unless the
task of producing or answering is unusual, undue or extraordinary, the general rule
requires the entity answering or producing the documents to bear that burden.”
Continental Ill. Nat’l Bank & Trust Co. of Chicago v. Caton, 136 F.R.D. 682, 684-85
(D. Kan. 1991) (citation omitted). The party opposing a motion to compel has the
burden of showing its objections are valid by providing specific explanations or factual
support as to how each discovery request is improper. St. Paul Reinsurance Co., Ltd.
v. Commercial Fin. Corp., 198 F.R.D. 508, 511-12 (N.D. Iowa 2000) (objecting party
has the burden to substantiate its objections). The party resisting discovery has the
burden to show facts justifying its objection by demonstrating that the time or expense
involved in responding to requested discovery is unduly burdensome. See Wagner v.
Dryvit Sys., Inc., 208 F.R.D. 606, 610 (D. Neb. 2001). This imposes an obligation to
provide sufficient detail and explanation about the nature of the burden in terms of time,
money, and procedure required to produce the requested discovery. See id.
Generally, the court has authority to limit the scope of discovery. Roberts v.
Shawnee Mission Ford, Inc., 352 F.3d 358, 361 (8th Cir. 2003). The Federal Rules
authorize the court to limit discovery that is “unreasonably cumulative or duplicative, or
can be obtained from some other source that is more convenient, less burdensome, or
less expensive.” Fed. R. Civ. P. 26(b)(2)(C)(i). Moreover, the court may also limit
3

discovery after considering “the burden or expense of the proposed discovery
outweighs its likely benefit, considering the needs of the case, the amount in
controversy, the parties’ resources, the importance of the issues at stake in the action,
and the importance of the discovery in resolving the issues.”

Fed. R. Civ. P.

26(b)(2)(C)(iii).
Interrogatory No. 3 seeks information on all employees and visitors on Appleton’s
premises on May 25, 2011. See Filing No. 32-1 Ex. 1 - Interrogatory No. 3. The
plaintiffs state the “name and contact information of all persons on the premises when
the injury happened is particularly relevant and Defendant should be compelled to
answer.” See Filing No. 31 - Brief p. 2.
The defendants argue Interrogatory No. 3 is extremely broad, seeks little relevant
information, and is not limited in time or to people at the Appleton premises that would
have information regarding the incident. See Filing No. 34 - Response p. 3. The
defendants state Appleton operated a large industrial facility and argue accessing
records from two years ago and searching for all people on the premises on May 25,
2011, is unduly burdensome, especially when the time and expenses necessary to
properly respond is compared with the lack of value the information will provide. Id.
The plaintiffs provide a conclusory statement that the information sought in
Interrogatory No. 3 is relevant without further explaining why information on all persons
at Appleton’s premises on May 25, 2011, is important to the plaintiffs’ case.

The

interrogatory is not sufficiently limited to the relevant location where Bremmer alleges
his injury occurred.

To the extent the plaintiffs’ interrogatory seeks information on

individuals not present in the area of the alleged incident, it is overly broad. However,
the information is relevant. Therefore, the defendants shall supplement their answer to
Interrogatory No. 3 and provide the plaintiffs with information on persons visiting or
working in the portion of the facility where Bremmer allegedly sustained an injury on
May 25, 2011.
Interrogatory No. 15 requests the defendants to “describe any actions or
precautions taken by Appleton Electric, or its employees or agents, to protect visitors or
warn them of the open pits or any other dangerous conditions located inside the
Appleton Electric building.” See Filing No. 32-1 Ex. 1 - Interrogatory No. 15. In a
4

supplemental answer, the defendants stated “numerous signs warning of potential
dangers [were] at the facility instructing visitors on where to proceed when on the
premises. Appleton also informed visitors and their employers on how to proceed when
on the premises.” See Filing No. 32-1 Ex. 7 - Defendant’s Supplemental Answers to
Plaintiffs’ First Set of Interrogatories.
The plaintiffs argue information sought in Interrogatory No. 15 is relevant given
that this case concerns an injury that occurred in an open pit. See Filing No. 31 - Brief
p. 2. The plaintiffs’ ask the court to compel the defendants to answer the interrogatory
more specifically, including a description of the signs and information provided to
visitors at the Appleton premises. Id. at 2-3.
The defendants argue the plaintiffs’ very broad interrogatory justifies the
defendants’ answer. See Filing No. 34 - Response p. 1, 4-5. The defendants argue, to
the extent the plaintiffs’ motion now seeks information detailing the content of signs and
instructions referenced in the defendants’ supplemental answer, the motion should be
denied because the plaintiffs’ general interrogatory did not seek such information. Id. at
4.

The defendants argue the plaintiffs’ motion is nothing more than a follow-up

question. Id. Additionally, the defendants represent Bremmer, with his counsel, already
conducted an unrestricted onsite inspection of Appleton’s vacant facility and were able
to see all signage and warnings. Id.
The defendants sufficiently answered Interrogatory No. 15 for purposes of Fed.
R. Civ. P. 26. The defendants described the actions or precautions they took included
signs warning people of potential dangers and instructions directing visitors where to
proceed when on the premises.

If the plaintiffs require additional information, the

plaintiffs may seek the information through other discovery means.
Request for Production No. 5 seeks documents, correspondence, and emails
regarding Appleton’s removal of fixtures and equipment from its premises. See Filing
No. 32-1 Ex. 2 - Request for Production No. 5. The plaintiffs argue the information is
relevant because Bremmer’s injury may have occurred in a large hole previously
containing a fixture and equipment. See Filing No. 31 - Brief p. 3.
The defendants argue removal of fixtures or equipment from Appleton’s premises
is irrelevant because Bremmer does not allege he was injured by a fixture or equipment.
5

See Filing No. 34 - Response p. 5. The defendants also argue this request is not
limited to a specific timeframe and is therefore unduly burdensome and overly broad.
Id.
The court finds the plaintiffs failed to meet their burden of showing information
regarding Appleton’s removal of a fixture or equipment from its premises bears on
issues in this case. The plaintiffs have not explained how what may have previously
occupied the hole Bremmer allegedly fell into has any relevance to the plaintiffs’ claims
and defenses. The plaintiffs’ conclusory statements the information is within the scope
of this dispute are insufficient to compel production. Upon consideration,

IT IS ORDERED:
1.

The plaintiffs’ Motion for Order Compelling Discovery (Filing No. 30) is

granted in part and denied in part. The plaintiffs’ motion is granted with regard to
Interrogatory No. 3, as amended by the court, and denied in all other respects.
2.

On or before May 31, 2013, the defendants shall amend its answer to

Interrogatory No. 3 as provided in this order.

ADMONITION
Pursuant to NECivR 72.2 any objection to this Order shall be filed with the Clerk
of the Court within fourteen (14) days after being served with a copy of this Order.
Failure to timely object may constitute a waiver of any objection. The brief in support of
any objection shall be filed at the time of filing such objection. Failure to file a brief in
support of any objection may be deemed an abandonment of the objection.

Dated this 15th day of May, 2013.
BY THE COURT:
s/ Thomas D. Thalken
United States Magistrate Judge

6