Wonch v. Meyer et al

Filing 45

ORDER denying the plaintiff's 39 Motion to Compel. Ordered by Magistrate Judge Cheryl R. Zwart. (MKR)

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF NEBRASKA
JEREMY J. WONCH,
Plaintiff,

8:14CV166

vs.
ORDER
DEREK K. MEYER, Individually; and
NAVAJO EXPRESS, INC., a Colorado
Corporation;
Defendants.
Plaintiff Wonch has moved to compel responses to written discovery served on the
defendants. (Filing No. 39). For the reasons discussed below, the motion will be denied.

BACKGROUND
Plaintiff’s complaint alleges that on April 24, 2012, a semi-truck driven by Defendant
Meyer rear-ended Plaintiff’s vehicle.

The accident occurred as Meyer was driving

westbound on Interstate 80 in Keith County, Nebraska. Meyer was allegedly driving the
truck in the course and scope of his employment for Defendant Navajo Express, Inc. (Filing
No. 1).

The plaintiff served written discovery on Defendant Meyer in November of 2014.
The discovery requests and objections at issue on this motion to compel are:
INTERROGATORY NO. 4: Please describe in detail each motor vehicle
accident you have been involved in as a driver during your driving life time.
ANSWER: Objection. Overly broad and not reasonably calculated to lead to
the discovery of admissible evidence. Without waiving this objection, none as
a professional driver predating April 24, 2012.
INTERROGATORY NO. 13: Identify the user name and e-mail address for
any Facebook, MySpace, Twitter, LinkedIn, Instagram, or other social media
service maintained by you from January 1, 2012 through the present.

ANSWER: Objected to as overly broad and not reasonably calculated to lead
to the discovery of admissible evidence.
INTERROGATORY NO. 14: Identify the name and service provider for any
mobile communication device in your vehicle at the time of the accident – for
which you would and/or could have also received a detailed billing statement
for the month of accident herein question, including the date and time in
question -- and annex a true copy of said complete billing statement.
ANSWER: Objected to as overly broad and not reasonably calculated to lead
to the discovery of admissible evidence.
REQUEST NO. 4: Please produce any and all documents that you and/or the
Interrogatories referred to and/or identify in your Answer to Interrogatories.
RESPONSE: None.
(Filing No. 39, at CM/ECF p. 2). 1

ANALYSIS

Relevance for discovery purposes is a broader concept than relevance for
admissibility at trial. But even in the context of discovery, the requesting party must make
“[s]ome threshold showing of relevance . . . before parties are required to open wide the
doors of discovery and to produce a variety of information which does not reasonably bear
upon the issues in this case.” Farmers Co-op Co. v. Barlett Grain Co. L.P., 2011 WL 612060,
*7 (2011) (citing Hofer v. Mack Trucks, Inc., 981 F.2d 377, 380 (8th Cir. 1992).

Wonch requests a detailed description of every motor vehicle accident Meyer has
been involved in as a driver—both before and after April 24, 2012—along with copies of the
accident reports. Wonch believes this information, reviewed in conjunction with Meyer’s
mobile device billing statements, may reveal whether Meyer has been in other accidents
while using a mobile device. Wonch further claims Meyer’s billing statements will reveal
1

Plaintiff also moved for an order requiring Meyer to sign his Interrogatory
answers under oath. That dispute has since been resolved. Meyer’s notarized
verification of his Interrogatory Answers was delivered to Plaintiff’s counsel by e-mail
on April 27, 2015. (Filing No. 43-1, ¶6).

2

whether Meyer was using a mobile communication device when the accident at issue
occurred. The discussion in Plaintiff’s motion does not explain why he needs the identity
and access information for Meyer’s social media services. 2
As explained in his motion, the plaintiff wants to explore whether Meyer “was
engaged in some sort of social communications either by phone, texting, and/or email at the
time of the accident” which would “bear directly on the Defendant Meyer’s ability to have
his vehicle under reasonable control and/or to keep a proper lookout – among other things”
(Filing No. 39, at CM/ECF p. 3). Based on the evidence of record, at the time and location
of the accident, westbound interstate traffic had been re-routed to an eastbound lane, and a
“wind/dust storm had limited visibility to almost none at all.” (Filing No. 43-3, at CM/ECF
pp.1-2). The plaintiff’s vehicle came to a complete stop in the traffic lane, and Meyer’s truck
rear-ended Wonch’s vehicle. (Filing No. 43-3, at CM/ECF p. 3). There is nothing of record
indicating the Plaintiff’s accident may have occurred because Meyer was distracted—due to
using a mobile communications device or for any other reason. And even if there was, the
scope of plaintiff’s discovery far exceeds revealing whether Meyer was using a device when
the accident occurred. Rather than requesting discovery targeted to the date and time of the
accident, Wonch’s motion3 demands three years of billing statements to discover “Defendant
Meyer’s driving habits at the time of the accident . . . and/or generally speaking.” Wonch
claims “the amount of cell time usage by Defendant Meyer in any given month – would also
be an indication of his phoning/texting/driving habits.” (Filing No. 39, at CM/ECF p. 4).

At most, the question presented is whether Meyer was on the phone, texting, or
emailing when the accident occurred. To that end, Meyer has offered to produce his mobile
phone billing statement (if able) for the date and time of the accident. (Filing No. 42, at
2

The plaintiff has not explained why he needs Meyer’s social media information
from three months prior to the accident until now, and the purpose is not readily apparent to
the court. Issues listed in a motion but not briefed or otherwise explained by the moving
party are deemed abandoned. NECivR 7.1(a)(1)(A).
3

As the defendant points out, Interrogatory 14 does not limit the time span of
records requested: It does not request billing records for three years.
3

CM/ECF p. 5). If that statement shows Meyer was not on the phone when the accident
occurred, any alleged habitual use of a mobile device while driving is irrelevant.
The court is not convinced that a collection of billing statements reflecting Meyer’s
cell phone habits is within the scope of relevant discovery. For similar reasons, the plaintiff
has failed to make a threshold showing that Meyer’s lifetime motor vehicle accident history,
both before and after the accident at issue, has any bearing on why his truck rear-ended
Wonch’s vehicle on April 24, 2012. Other accidents could be relevant to any issue of notice
only if they occurred prior to the Plaintiff’s accident, and only if they arose from or involve
similar circumstances. Meyer was not involved in any accidents as a professional driver
prior to April 24, 2012. (Filing No. 43-2, at CM/ECF p. 2, Interrogatory 4).

The court finds Plaintiff’s discovery requests at issue are both irrelevant and
overbroad.
Accordingly,
IT IS ORDERED that the plaintiff’s motion to compel, (Filing No. 39), is denied.
May 21, 2015.

BY THE COURT:
s/ Cheryl R. Zwart
United States Magistrate Judge

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