Basra, et al v. Ecklund Logistics, Inc.

Filing 113

ORDER - Plaintiffs' Motion to Compel Issuance of Subpoena for Production of Documents to Affinity Health System (Filing No. 102 ) is granted. Ordered by Magistrate Judge F.A. Gossett. (KLF)

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF NEBRASKA
INDERJEET BASRA, individually
and as Personal Representative for the
ESTATE OF ATINDERPAL SINGH;
DILSHAAN S. REHAL, by and
through his next friend, INDERJEET
BASRA,
Plaintiffs,
v.
ECKLUND LOGISTICS, INC.,
Defendant.

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8:16CV83
ORDER

This matter is before the court on Plaintiffs’ Motion to Compel Issuance of
Subpoena for Production of Documents to Affinity Health System (Filing No. 102).
Defendant did not file a response to the motion by the April 21, 2017, deadline, and thus
the Court considers the motion ripe for review.1
Plaintiffs provided notice to Defendant of Plaintiffs’ intent to issue a subpoena to a
non-party, Affinity Health System (“Affinity”) on March 30, 2017, pursuant to NECivR
45.1(a). (Filing No. 104-5 at p. 4). Defendants objected to the issuance of the subpoena
by emails to Plaintiffs’ counsel dated April 3 and 7, 2017. (Filing No. 104-5 at pp. 2-4).
However, Defendant did not issue a certificate of service with the court in compliance with
NECivR 45.1(b).
Plaintiffs seek to issue a subpoena to produce documents to Affinity, the company
Defendant used to drug test its employees. Plaintiffs assert that Defendant’s current
Safety Director, Rob Paffenroth, was deposed on March 28, 2017, and testified that

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“Failure to file an opposing brief is not considered a confession of a motion but precludes the opposing party from
contesting the moving party’s statement of facts.” NECivR 7.1(b)(1)(C).

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Defendant used Affinity as a third party to drug test its drivers. Paffenroth testified that he
was unsure whether Freddie Galloway was drug tested after the accident or not. (Filing
No. 104-3 at p. 40). Defendant’s counsel appears to imply that Defendant did not drug
test Galloway after the accident. (Filing No. 104-5).
Plaintiffs’ Notice of issuance of subpoena did come long after the written discovery
deadline, which was January 15, 2017. (Filing No. 38). However, Plaintiffs first sought
drug testing results for Galloway on May 24, 2016, via requests for production directed to
Defendant. During depositions, various representatives of Defendant testified that at one
time it would have had a file containing Galloway’s drug testing results, but the file was no
longer in Defendant’s possession or was destroyed. Paffenroth’s testimony indicated that
Affinity may have record of Galloway’s drug testing (if such testing occurred after the
accident). Under the circumstances, the Court will permit Plaintiffs to issue the subpoena
to Affinity. Accordingly,

IT IS ORDERED:

Plaintiffs’ Motion to Compel Issuance of Subpoena for

Production of Documents to Affinity Health System (Filing No. 102) is granted.

DATED: April 25, 2017.

BY THE COURT:
s/ F.A. Gossett, III
United States Magistrate Judge

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