Krupnikovic et al v. Sterling Transportation Services, Inc. et al

Filing 130

ORDER - L.W. Miller Transportation Holdings, Inc., and James Ganser's Amended Motion to Quash (Filing No. 120 ) is denied. L.W. Miller shall produce a representative in accordance with the Rule 30(b)(6) Notice of Deposition (Filing No. 110 ). However, the topics to be covered during the deposition is limited by this order as set forth above. Ordered by Magistrate Judge F.A. Gossett. (KLF)

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF NEBRASKA
BOZANA KRUPNIKOVIC, as
personal representative of the estate
of Strahinja Krupnikovic, deceased,
individually and as next of kin of
Strahinja Krupnikovic, deceased,
and as mother and guardian of A.K.,
a minor and next of kin of Strahinja
Krupnikovic, deceased,
Plaintiff,
v.
STERLING TRANSPORTATION
SERVICES, INC.; UNKNOWN
SPOUSE, HEIRS, DEVISEES,
LEGATEES, EXECUTORS,
ADMINISTRATORS, AND
ASSIGNS of Thomas House,
deceased; LW MILLER
TRANSPORTATION HOLDINGS,
INC.; and JAMES GANSER,
individually;
Defendants.

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8:14CV352
ORDER

This matter is before the court on the defendants’, L.W. Miller Transportation
Holdings, Inc., (“L.W. Miller”) and James Ganser (“Ganser”), amended motion to quash
(Filing No. 120) the plaintiff’s Rule 30(b)(6) deposition notice directed to L.W Miller.
The court previously denied the defendants’ motion to quash for failure to show
compliance with NECivR 7.1(i).1 (Filing No. 119). The defendants have refiled the
motion which now states the parties were unable to reach a resolution after a telephone
conference held March 4, 2016. The plaintiff filed no response to the amended motion.
1

The court again reminds the parties of this court’s local rule providing, “A motion raising a substantial issue of law
must be supported by a brief filed and served together with the motion. The brief must be separate from, and not
attached to or incorporated in, the motion or index of evidence.” NECivR 7.1(a)(1)(A) (Emphasis added).

For the reasons that follow, the court will deny the amended motion to quash, but limit the
scope of topics to be covered.
This case arises out of a fatal three-way tractor-trailer accident that occurred in the
early morning hours on July 3, 2012, on a highway near Silver Creek, Nebraska. Strahinja
Krupnikovic (“Strahinja”) was operating a tractor-trailer traveling westbound when his
vehicle collided with an eastbound tractor-trailer operated by Ganser and owned by L.W.
Miller. (Filing No. 121 at p. 19). The amended complaint alleges House and Ganser
were engaged in a “game of cat and mouse” during which Ganser “side-swiped”
Strahinja’s tractor-trailer, causing the initial collision. (Filing No. 64 at p. 5). After the
initial collision between Strahinja’s and Ganser’s vehicles, Strahinja’s tractor-trailer
continued westbound and collided with a tractor-trailer operated by Thomas House
(“House”) and owned by Sterling Transportation Services, Inc. (“Sterling”). (Filing No.
121 at p. 19).

Strahinja’s and House’s tractor-trailers caught fire and both parties

perished. (Filing No. 121 at pp. 19, 25; Filing No. 64 at p. 5). Strahinja’s wife, Bozana
Krupnikovic (“Krupnikovic”), filed the instant action against Ganser, L.W. Miller,
House’s estate, and Sterling to recover damages as personal representative of Strahinja’s
estate, individually, and on behalf of her minor daughter.
On March 3, 2016, Krupnikovic filed a notice of Rule 30(b)(6) deposition directed
to L.W. Miller. (Filing No. 110). The notice sets forth several topics to be covered: (1)
L.W. Miller’s corporate structure, and job titles, compensation, and responsibilities of all
employees from 2011 to the present; (2) services and goods offered by L.W. Miller from
2010 to 2013, including the date of the accident; (3) L.W. Miller’s investigation of the
collision and any associated documents; (4) L.W. Miller’s safety records from 2011
through 2013; (5) L.W. Miller’s general procedure and guidelines for selecting, retaining,
and hiring individuals to deliver loads; (6) documents identified and produced in L.W.
Miller’s and Ganser’s Rule 26(a)(1) Mandatory Disclosures and the plaintiff’s document
requests; (7) L.W. Miller’s and Ganser’s answers to the plaintiff’s interrogatories; (8)
Ganser’s work schedule for the year prior to the date of the accident; (9) Ganser’s delivery

schedule for the two months preceding the date of the accident through the month
following the accident; (10) safety and driving records of Ganser and L.W. Miller; (11) any
subject or topic mentioned, discussed, or otherwise implicated by the corporate designee
during the course of the deposition; (12) the policies, procedures, protocols, and practices
implemented by L.W. Miller for retaining, preserving, recording, copying or reproducing
any electronic data stored on electronic recording devices affixed to, or a part of, its
vehicles, trucks, and/or trailers, such as an Electronic Control Module (ECM); and (13) the
data and information contained on any electronic recording device that was on-board the
tractor-trailer driven by Ganser on or about the date of the accident.
“Parties may obtain discovery regarding any nonprivileged matter that is relevant to
any party’s claim or defense and proportional to the needs of the case[.]” Fed. R. Civ. P.
26(b)(1). 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); see Fed. R. Civ. P. 26(c)(1).
The court has discretion to limit discovery outside the scope permitted by Rule 26(b)(1).
See Roberts v. Shawnee Mission Ford, Inc., 352 F.3d 358, 361 (8th Cir. 2003); Fed. R. Civ.
P. 26(b)(2)(C)(iii).
The defendants seek to quash Krupnikovic’s notice of Rule 30(b)(6) deposition of
L.W. Miller because the proposed topics to be covered are overly broad and the deposition
appears to be a “fishing expedition” not aimed at discovering relevant evidence. (Filing
No. 120 at pp. 2-4). Krupnikovic’s amended complaint alleges various ways in which
Ganser negligently or recklessly caused the accident and alleges L.W. Miller is vicariously
liable under theories of respondeat superior and for negligently hiring, supervising,
entrusting, training, and retaining Ganser. (Filing No. 64 at pp. 6, 8-9). The defendants
argue Krupnikovic has been unable to produce any evidence reflecting that either L.W.
Miller or Ganser negligently caused the accident. (Filing No. 120 at pp. 2-4). In
particular, deposition testimony from law enforcement and a forensic report prepared for
L.W. Miller states Strahinja’s vehicle, not Ganser’s vehicle, crossed the center-line.

(Filing No. 121 at pp. 5, 29). However, pursuant to this court’s progression order,
discovery in this case is not closed. The deposition and written discovery deadlines are
September 1, 2016, and the plaintiff’s expert disclosure deadline is June 30, 2016. (Filing
No. 109 at p. 2; Filing No. 113 - Text Order). Although the defendants have produced
evidence favoring their position, Krupnikovic may still discover evidence, including expert
testimony, in support of her claims. During the discovery stage of the proceedings,
Krupnikovic is not required to rebut the defendant’s evidence in order to obtain discovery
relevant to her claims. The scope of permissible discovery is extremely broad and Rule
26(b)(1) permits discovery of any nonprivileged matter relevant to any claim and
proportional to the needs of the case. Fed. R. Civ. P. 26(b)(1). A request for discovery is
relevant “if there is any possibility that the information sought may be relevant to the
subject matter of the action.” Gladfelter v. Wal-Mart Stores, Inc., 162 F.R.D. 589, 590
(D. Neb. 1995). Krupnikovic’s claims against Ganser and L.W. Miller in the amended
complaint are still pending. Therefore, Krupnikovic should be permitted to perform
discovery relevant to those claims, including deposing a corporate representative of L.W.
Miller pursuant to Rule 30(b)(6).
Although the court finds the notice of Rule 30(b)(6) deposition of L.W. Miller
should not be quashed, the proposed topics to be covered are overbroad. The court has
discretion to limit discovery outside the scope permitted by Rule 26(b)(1). See Roberts,
352 F.3d at 361; Fed. R. Civ. P. 26(b)(2)(C)(iii). The court will limit the topics to be
covered at the deposition to items relevant to the accident and the claims against L.W. Mill
and Ganser raised in the amended complaint, including: the investigation of the collision
and any associated documents; documents identified and produced in L.W. Miller’s and
Ganser’s Rule 26(a)(1) Mandatory Disclosures and the plaintiff’s document requests; L.W.
Miller’s and Ganser’s answers to the plaintiff’s interrogatories; Ganser’s work schedule for
the year prior to the date of the accident; Ganser’s delivery schedule for the two months
preceding the date of the accident through the month following the accident; safety and
driving records of Ganser; the policies, procedures, protocols, and practices implemented

by L.W. Miller for retaining, preserving, recording, copying or reproducing any electronic
data stored on electronic recording devices affixed to, or a part of, its vehicles, trucks,
and/or trailers, such as an Electronic Control Module (ECM); and the data and information
contained on any electronic recording device that was on-board the tractor-trailer driven by
Ganser on or about the date of the accident. Accordingly,
IT IS ORDERED:

L.W. Miller Transportation Holdings, Inc., and James

Ganser’s Amended Motion to Quash (Filing No. 120) is denied. L.W. Miller shall
produce a representative in accordance with the Rule 30(b)(6) Notice of Deposition (Filing
No. 110). However, the topics to be covered during the deposition is limited by this order
as set forth above.
DATED: June 3, 2016.
BY THE COURT:
s/ F.A. Gossett
United States Magistrate Judge