Certain Underwriters at Lloyd's and those companies severally subscribing to Boeing Policy Number MARCW150053 and related policies governing the cargo et al v. Southern Pride Trucking, Inc. et al

Filing 85

ORDER regarding discovery dispute hearing schedule. Ordered by Magistrate Judge Cheryl R. Zwart. (Zwart, Cheryl)

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF NEBRASKA
CERTAIN UNDERWRITERS AT
LLOYD'S AND THOSE COMPANIES
SEVERALLY SUBSCRIBING TO
BOEING POLICY NUMBER
MARCW150053 AND RELATED
POLICIES GOVERNING THE CARGO,
AND THE BOEING COMPANY,

8:16CV116
ORDER

Plaintiffs,
vs.
SOUTHERN PRIDE TRUCKING, INC.,
THUNDER ROLLS EXPRESS, INC.,
BAUER BUILT, INC., AND ROAD
STAR CARRIER, INC.,
Defendants.
The court has reviewed the parties’ submissions of their discovery issues and
makes the following comments and related orders:
Bauer Built v. Thunder Rolls Express, Inc.
The chart completed by Bauer Built and Thunder Rolls reflects these parties’
disputes are ripe for the court’s consideration. The issues are finite and can be discussed
without meeting in-person.

Boeing v. Bauer Built

1)

As to the claims by Boeing against Bauer Built, the parties have not

submitted a jointly signed chart of their discovery disputes. By completing the form
together, neither party is agreeing to the other’s position. The parties are simply making
it easier for the court to compare the parties’ positions without scrolling through reams of
briefing. As to counsel for Boeing and Bauer, the inability to agree on the mere outline

of their respective positions suggests a lack of good faith effort toward resolving their
discovery disputes, which violates counsel’s responsibilities under Rule 1 of the Federal
Rules of Civil Procedure.

2)

As to Boeing #4,1 the parties cannot agree on when the request was made or

if it is now resolved. Bauer Built states it will list any documents withheld on a privilege
log. The court does not know if that log has been served, if the parties have discussed the
log, and if this dispute is resolved.

3)

As to Boeing #52 and #6,3 the parties cannot agree on when the requests

were made. Bauer Built states it “is in the process of searching its records for any
responsive documents. We hope to have a response to plaintiffs’ request by November 4,
2016.” The court does not know if that occurred, and if # 5 and #6 are now resolved.

Bauer Built & Road Star v. Certain Underwriters & The Boeing Company
As to Bauer Built’s and RoadStar’s issues #2 (“Plaintiffs’ have improperly
withheld documents based on relevancy objections”), and #3 (“Plaintiffs’ have failed to
provide a privilege log of withheld documents”), Certain Underwriters and Boeing state
they will provide a privilege log. Defendants reserve these issues “pending receipt and
review of plaintiffs’ privilege log,” and Plaintiffs state “[t]his log will be submitted
before the Court Conference.”

1

“Communications between Bauer Built and its insurance company concerning
the cargo or the incident (Request #13).”
2

“Bauer Built has failed to produce documents pertaining to the weight of the
service vehicle at issue for Federal certification purposes (Request #1).”
3

“Documents concerning interactions with any state authorities regarding the
decision by Bauer Built not to require its drivers of the vehicle at issue to obtain
commercial driver’s licenses (Request #1).”
2

As to issues #2 and #3, until the log is submitted and the parties discuss it and
determine if a dispute exists, there is nothing for the court to resolve.

Conclusion

To promote the efficient and economical litigation of this case, the hearing
between Bauer Built and Thunder Rolls will be held by webinar rather than in chambers.
To assist in reading the parties’ submission during that hearing, the court has re-formatted
their chart (see attached).

The discovery disputes by Bauer Built & Road Star against Certain Underwriters
and Boeing, and by Boeing against Bauer Built are not currently ripe for court
intervention and resolution. And the court is not inclined to convene serial hearings on
discovery disputes, particularly where the parties have not fully explored and jointly
identified what is actually in dispute.
Accordingly,
IT IS ORDERED:
1)

As to the discovery dispute claims by Boeing against Bauer Built:
a.

On or before November 9, 2016, Bauer Built shall serve its privilege
log (issue #4), and the documents requested in Boeing’s issues #5
and #6;

b.

The parties shall immediately confer as to the privilege log and all
other discovery issues;

c.

On or before November 14, 2016, the parties shall chart and jointly
sign their discovery issues and respective positions using the
Discovery Disputes Form posted online. The completed chart(s)
shall be emailed to [e-mail] (in MS Word format).
Any known and outstanding discovery disputes that are not timely
identified in the Discovery Disputes Form will be deemed waived.
3

2)

As to the discovery dispute claims by Bauer Built and Road Star against
Certain Underwriters and Boeing:
a.

On or before November 9, 2016, Certain Underwriters and Boeing
Bauer Built shall serve their privilege log (issues #2 and #3);

b.

The parties shall immediately confer as to the privilege log and all
other discovery issues;

c.

On or before November 14, 2016, the parties shall provide an
updated and jointly signed chart of their discovery issues and
respective positions using the Discovery Disputes Form posted
online. The completed chart(s) shall be emailed to
[e-mail] (in MS Word format). Any known and
outstanding discovery disputes that are not timely identified in the
Discovery Disputes Form will be deemed waived.

3)

As to the discovery disputes between Bauer Built and Thunder Rolls, the
hearing before Cheryl R. Zwart, United States Magistrate Judge, will be
held by internet/telephonic conferencing (rather than in chambers) at 1:00
p.m. (CST) on November 9, 2016. The parties shall use the conferencing
information assigned to this case, (see Filing No. 74), to participate in the
conference.

4)

As to the discovery disputes by Boeing against Bauer Built and by Bauer
Built and Road Star against Certain Underwriters and Boeing:
a.

The hearing before Cheryl R. Zwart, United States Magistrate Judge,
is continued, and it will be held in the Special Proceedings
Courtroom, Roman L. Hruska Federal Courthouse, 111 South 18th
Plaza, Omaha, Nebraska, at 1:00 p.m. on November 16, 2016.

b.

The parties shall bring a copy of all documents for which a claim of
privilege is in dispute to the hearing for the court’s immediate
review.

November 7, 2016.
BY THE COURT:
s/ Cheryl R. Zwart
United States Magistrate Judge

4

Moving Party:

Defendants, Bauer Built

Certain Underwriters at Lloyd’s, et al. v. Southern Pride Trucking, Inc., et al.
Case No.: 16-cv-00116 (USDC Nebraska)
To assist the Court in more efficiently addressing the parties’ discovery dispute(s), the parties shall meet and confer, and jointly complete the
following chart. The purpose of this chart is to succinctly state each party’s position and the last compromise offered when the parties met and
conferred. The fully completed chart shall be e-mailed to chambers at [e-mail].

The moving party is:

Defendants, Bauer Built, Inc.

The responding party is:

Defendant, Thunder Rolls Express, Inc

Moving Party:

Defendants, Bauer Built
Court’s ruling

#1 Thunder Rolls objects to the production of a HIPAA authorization for the medical records of Joseph Womack
(second set of requests to produce, request “q”).
Relevant The medical records of Joseph Womack are relevant and discoverable, inasmuch as Mr. Womack’s
To
physical health is at issue as a cause of the accident in this matter. Bauer Built seeks Mr. Womack’s
Prove
medical records from 2005 to the present.
Bauer
Federal Rule 34(a) provides that, “A party may serve on any other party a request within the scope of
Built’s
Rule 26(b) … to produce and permit the requesting party or its representative to inspect, copy, test, or
argument
sample the following items in the responding party's possession, custody, or control:
(A) any designated documents or electronically stored information.”
Mr. Womack is the sole owner and operator of Thunder Rolls, and therefore he is authorized to
execute a HIPAA authorization for his own medical records. Defendant’s objections based on
relevancy and privacy do not support the refusal to provide the requested authorization.
Thunder Rolls
Responding party is under no duty to execute and provide a HIPPA authorization. The medical
Argument
records of Joseph Womack are not relevant and violate his privacy rights.
There is no evidence that the accident was caused due to Mr. Womack suffering a medical
condition. He has clearly testified as to what he was experiencing, seeing and comprehending in
the moments leading up the accident and during the accident. He testified about his health during
his day long deposition.
Bauer Built’s
Mr. Womack’s health is directly at issue given that he must provide federal and/or state
compromise
certification of his health and medical conditions each time he drives. Thus, each time he
drives he puts his medical condition at issue.

Thunder Rolls
compromise

Furthermore, Bauer Built recently learned that Mr. Womack may have had a cardiac event on
the day of the accident. It remains unknown whether this event occurred before or after the
accident, and whether any associated physical symptoms may have contributed to the
occurrence of the accident. Therefore, Mr. Womack’s physical health is at issue as a potential
direct cause of, or contributing factor to, the accident in this matter.
Mr. Womack's driver qualification including medical documents provided to the DOT
have already been produced.
Mr. Womack did not have a cardiac event on the day of the incident. Counsel has been
advised Mr. Womack was feeling ill many hours after the incident for which physicians
told him he was sick due to stress from the accident and failing to eat all day.
Mr. Womack has testified that he was alert, awake and that no physical condition of any
kind contributed to the incident.

Moving Party:

Defendants, Bauer Built
Court’s ruling

#2 Thunder Rolls objects to the production of “any and all documents provided to or by the U.S Department of
Transportation that refer or relate to Joseph Womack’s medical status from 2005 to the present.”
(second set of requests to produce, request “p”)
Relevant Documents reflecting the medical status of Joseph Womack are relevant and discoverable, inasmuch
To Prove as Mr. Womack’s physical health is at issue as a cause of the accident in this matter.
Bauer
Defendant’s relevancy and other objections do not support withholding production of these
Built’s
documents given the relevancy of the request and Thunder Rolls’ possession, custody, or control of
argument
such documents.
Thunder Rolls
The medical records of Joseph Womack are not relevant and violate his privacy rights.
Argument
There is no evidence that the accident was caused due to Mr. Womack suffering a medical
condition. He has clearly testified as to what he was experiencing, seeing and comprehending in
the moments leading up the accident and during the accident. His medical records going back to
2005 have no relevance to this action. He testified about his health during his day long deposition.

Bauer Built’s
compromise

Furthermore, if the accident had been caused due to a medical condition, Thunder Rolls would
have asserted this as a defense.
Mr. Womack’s health is directly at issue given that he must provide federal and/or state
certification of his health and medical conditions each time he drives. Thus, each time he
drives he puts his medical condition at issue.
Furthermore, Bauer Built recently learned that Mr. Womack may have had a cardiac event on
the day of the accident. It remains unknown whether this event occurred before or after the
accident, and whether any associated physical symptoms may have contributed to the
occurrence of the accident. Therefore, Mr. Womack’s physical health is at issue as a potential
direct cause of, or contributing factor to, the accident in this matter.

Thunder Rolls
compromise

Records pertaining to a CDL medical examination are discoverable and not within the scope of
the physician-patient privilege. See Jackson v. Wiersema Charter Serv., 2009 U.S. Dist. LEXIS
45597, at *3 (E.D. Mo. June 1, 2009).
Mr. Womack's driver qualification including medical documents provided to the DOT
have already been produced.
Mr. Womack did not have a cardiac event on the day of the incident. Counsel has been
advised Mr. Womack was feeling ill many hours after the incident for which physicians
told him he was sick due to stress from the accident and failing to eat all day.
Mr. Womack has testified that he was alert, awake and that no physical condition of any
kind contributed to the incident.

Moving Party:

Defendants, Bauer Built
Court’s ruling

#3 Thunder Rolls should produce Joseph Womack, the owner and sole operator of Thunder Rolls Express, for his
deposition pursuant to Federal Rule 30(b)(6), and to continue his deposition as a fact witness for the purpose of
examining his medical condition before and after the accident.
Relevant Mr. Womack has relevant information related to the location, condition, and transportation of the subject
To
engine after the accident occurred, as well as relevant information concerning the packaging and
Prove
securing of the load on Mr. Womack’s trailer prior to shipment from Peebles, Ohio.
In addition, Bauer Built only recently learned, after Mr. Womack’s deposition was completed, that Mr.
Womack may have had a heart attack on the evening of the accident. Therefore, Mr. Womack’s physical
health is at issue as a cause of the accident in this matter.
Bauer
Federal Rule 30(b)(6) permits a party to direct a deposition notice to a party organization, including a
Built’s
private corporation like Thunder Rolls Express, Inc. Joseph Womack is the sole owner and operator
argument
of Thunder Rolls, and the driver of the load that was involved in the accident at issue. Mr. Womack
has information on behalf of Thunder Rolls that is subject to examination under Rule 30(b)(6). Mr.
Womack’s prior deposition as a fact witness does not preclude his subsequent deposition as a Rule
30(b)(6) representative for Thunder Rolls.
Bauer Built also reserves the right to continue Mr. Womack’s deposition as a fact witness regarding
his medical condition before and after the accident at issue.
Thunder Rolls
There has been no deposition notice for a 30(b)(6) witness for Thunder Rolls at this time so this
Argument
request is premature. In addition, Mr. Womack was already deposed for an entire day regarding
the incident, his employment, his company, his training and his background.
Mr. Womack will not be produced for a second deposition as he is the sole owner of Thunder
Rolls and there would be no new topics or information that was not already covered in his
deposition as an individual.
Requiring Mr. Womack to take another day off from work would burden him and all of the parties
with unnecessary costs and would only further delay this case from proceeding. Mr. Womack
provided a full day's worth of testimony.
Finally, Mr. Womack did not suffer a heart attack on the evening. Mr. Womack also testified
extensively regarding the accident sequence and that the accident was not caused by any medical
condition. There is no basis to re-open Mr. Womack's deposition as a fact witness. All counsel
were present at his deposition and could have asked him at that time about any medical
conditions before and after the accident.
Any medical conditions he may have suffered after the accident have no relevance and would only
invade his privacy.

Moving Party:
Bauer Built’s
compromise

Thunder Rolls
compromise

Defendants, Bauer Built

Bauer Built notes that plaintiffs’ already noticed the 30(b)(6) deposition of Thunder Rolls.
However, if that notice is withdrawn, Bauer Built will provide its own notice to Thunder Rolls.
Bauer Built anticipates that the 30(b)(6) deposition of Thunder Rolls would cover, among other
topics, the contracts between Southern Price and Thunder Rolls, Thunder Rolls insurance and
insurance limits, and Thunder Rolls’ approval as a transporter for Boeing engines.
Bauer Built withdraws its request concerning the continuation of Mr. Womack’s fact witness
deposition at this time.
Requiring Mr. Womack to appear for a second deposition would be duplicative and
burdensome on Mr. Womack and all parties.
Mr. Womack is the sole owner of Thunder Rolls. He already testified at his individual
deposition that he had no insurance at the time of the accident and all insurance was
provided by Southern Pride Trucking.
The insurance policies have been provided and this information has been provided in
discovery responses.

Counsel for Defendant, Bauer Built:

Troy Lundquist & Collin Woodward

Counsel for Defendant, Thunder Jennifer Tricker, Richard Moreno &
Rolls Express:
Steven McEvoy