Roth v. 2810026 Canada Limited Ltd et al

Filing 69

DECISION AND ORDER. Plaintiffs' motion (Dkt. 58) is DISMISSED as moot in part and DENIED in part; and Defendant/Third-Party Plaintiff's motion (Dkt. 59) is deemed WITHDRAWN and, as such, is DISMISSED as moot. Signed by Hon. Leslie G. Foschio on 1/18/2017. (SDW)

UNITED STATES DISTRICT COURT
WESTERN DISTRICT OF NEW YORK
_____________________________________
JEFFREY ROTH,
Plaintiff,
v.
13-CV-901A(F)
2810026 CANADA LIMITED LTD.,
2810034 CANADA LIMITED,
FREDERICK GROUP INC.,
SINGH AMARJIT,
Defendants
Third-Party Plaintiffs,

DECISION
and
ORDER

v.
PAMELA J. BAUMAN,
Third-Party Defendant.
_______________________________________
PAMELA BAUMAN,
Plaintiff,
v.

15-CV-374A(F)
2810026 CANADA LIMITED,
2810034 CANADA LIMITED,
FREDERICK GROUP INC.,
SINGH AMARJIT,
Defendants
_____________________________________
APPEARANCES:

DAVID W. POLAK, ESQ.
Attorney for Plaintiffs
3686 Seneca Street
West Seneca, New York 14224
WILSON ELSER MOSKOWITZ EDELMAN & DICKER LLP
Attorneys for Defendants
BEATA SHAPIRO, of Counsel
260 Franklin Street, 14th Floor
Boston, Massachusetts 02110
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FELDMAN KIEFFER, LLP
Attorney for Third-Party Defendant
ADAM C. FERRANDINO, of Counsel
110 Pearl Street, Suite 400
Buffalo, New York 14202

In this personal injury collision case involving Plaintiffs’ auto and Defendants’
tractor-trailer, by papers filed November 23, 2016 (Dkt. 58), and November 28, 2016
(Dkt. 59), Plaintiffs Roth and Bauman (“Plaintiffs”)1 moved, respectively, to compel
production of certain documents requested during the depositions of Defendant Singh,
the tractor-trailer driver, and Mr. Keith Goodyear (“Goodyear”), as a Rule 30(b)(6)
deponent for Defendant 2810026 Canada Limited, d/b/a Defendant Frederick Group,
Inc. (“Frederick Trucking”). Specifically, Plaintiffs seek (1) copies of all contracts
between Singh and Frederick Trucking, (2) the address of Frederick Trucking’s offices
in Moline, Illinois, (3) Frederick Trucking’s driver policies and procedures, (4) copies of
any computer internet transmissions (Qualcom report) or other statements by Singh
concerning the collision, (5) verifications of correct VINs for the tractor-trailer in order to
confirm Defendants’ insurance coverage, and (6) contact information for Singh’s
accountant (“Plaintiffs’ requests”).2
During oral argument, conducted December 21, 2016, Defendants’ counsel
offered to provide supplemental responses to Plaintiffs’ requests in order to avoid the
need for a judicial determination of Plaintiffs’ motions. Dkt. 64. Accordingly, on
December 30, 2016, Defendants informed Plaintiffs that Defendants (1) lack any
Qualcom reports regarding the collision with Plaintiffs, (2) provided a copy of Singh’s

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2

Plaintiff Bauman moved in 13-CV-901A(F) as Third-Party Defendant and as Plaintiff in 15-CV-374A(F).
This letter request was made only by Plaintiff’s counsel in 15-CV-374A(F).
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handwritten memorandum as Singh’s only statement regarding the circumstances of the
collision, (3) confirmed Plaintiffs have previously been provided with all relevant driver
policies and procedures manuals as Plaintiffs’ and Third-Party Defendant Bauman
previously requested, and (4) confirmed that the previously provided VINs match the
insurance policies and driver’s log previously provided to Plaintiffs thereby rendering
unnecessary the need for Plaintiffs to serve further discovery upon Frederick Trucking in
Moline, Illinois regarding this issue. Dkt. 65-1, 1-6 (“Defendants’ Submission”).
Based on Defendants’ Submission, counsel to Plaintiff Bauman representing
Bauman, as Third-Party Defendant, found Defendants’ Submission satisfactory and, on
January 4, 2017, withdrew the motion on behalf of Bauman as Third-Party Defendant.
Dkt. 68. Receiving no similar communication from Plaintiff Roth and Bauman’s counsel
as Plaintiffs, the court directed Plaintiff Roth and Bauman’s counsel to inform the court
by January 6, 2017 as to whether Plaintiffs were satisfied with Defendants’ Submission
and whether Plaintiffs’ motion was also withdrawn. By letter of Plaintiffs’ counsel, dated
January 10, 2017, Roth and Bauman disputed the accuracy of the Singh written
statement provided by Defendants in Defendants’ Submission, reiterated Plaintiffs’
complaint about Defendants’ lateness in production of the requested documents and
information during the deposition, disputed Goodyear’s assertion that no Qualcom
report had been transmitted to Federick Trucking at the time of the collision and
requested Goodyear’s entire claim file in the matter, and repeated Plaintiffs’ demands
for copies of responsive policies and procedures based on Singh’s previously stated
inability to produce such documents (Dkt. 66).

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However, whether a response to a production request pursuant to Fed.R.Civ.P.
34(a) is sufficient, does not depend on a requesting party’s agreement with the contents
of the documents produced. Additionally, it is well-established that a party may not be
compelled to produce documents that do not exist. See Hallmark v. Cohen &
Slamowitz, 302 F.R.D. 295, 299 (W.D.N.Y. 2014) (defendant not required to have
audited financial statements, which did not exist, prepared so as to comply with
plaintiff’s discovery request (citing cases)). Thus, that Plaintiffs wish to contest the
authenticity or accuracy of Singh’s hand-written statement, Dkt. 65-1 at 5-6, which
Defendants represent is the only statement Singh made, is irrelevant to the merits of
Plaintiffs’ motion as are Plaintiffs’ repeated demands for copies of the Defendants’
driver’s policies and procedures manuals, which Defendants represent were previously
provided to Plaintiffs and are no longer in Defendants’ possession. Plaintiffs do not
dispute that Defendants’ Submission with regard to the tractor-trailer’s VINs and related
insurance coverage is satisfactory. Thus, the only possible unresolved issue arising on
Plaintiffs’ motion is Plaintiffs’ purported request asserted in Plaintiffs’ November 11,
2016 e-mail to Defendants’ attorney, for the name of Singh’s accountant. See Dkt. 58-3
at 2. However, that demand according to Plaintiffs was made at page 48 of Singh’s
deposition and a copy of such transcript page was not included in Plaintiffs’ motion
papers. Accordingly, as Plaintiffs’ papers do not support this request, the court is
unable to find that Defendants improperly failed to provide this information. Further, as
Plaintiffs’ request to amend the Scheduling Order, Dkt. 66 at 3, is not in the form of a
motion, it is also not considered by the court at this time.

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Finally, although Plaintiffs also request costs and expenses of Plaintiffs’ motion,
Dkt. 58 at 3, pursuant to Fed.R.Civ.P. 37(a)(5) (“Rule 37(a)(5)”), the court finds that
given the existence of contrasting caselaw within the Second Circuit with regard to the
obligation of a party to respond to an oral production request made initially during a
deposition and later confirmed by letter, compare Schwartz v. Marketing Publishing
Company, 153 F.R.D. 16, 21 (D.Conn. 1994) (“Schwartz”) (refusing to enforce oral
deposition and letter request for production absent properly served Rule 34(a)
production request), with Employers Ins. Company of Wausau v. Nationwide Mutual
Fire Ins. Co., 2006 WL 1120632, *2 (E.D.N.Y. Apr. 26, 2006) (“Wausau”) (enforcing
defendant’s oral request made at deposition followed by confirming letter in lieu of
formal Rule 34(a) production request being served on plaintiffs), Defendants’ failure to
earlier respond to Plaintiffs’ requests was substantially justified thereby negating the
prerequisite for an award of sanctions pursuant to Rule 37(a)(5). A party refusing
discovery is substantially justified in refusing discovery where a “genuine dispute”
existed or “‘if reasonable people could differ as to the appropriateness of the contested
action,’” Parsi v. Daioleslam, 778 F.3d 116, 126 (D.C. Cir. 2015) (quoting Pierce v.
Underwood, 487 U.S. 552, 565 (1988) (internal citations and brackets omitted)), such as
where a party believed caselaw supported its position. Id. (citing Maddow v. Proctor &
Gamble Co., 107 F.3d 846, 853 (11th Cir. 1997)). “Whether a party was substantially
justified in resisting discovery is determined by an ‘objective standard of
reasonableness and does not require that the party have act in good faith.’” Underdog
Trucking, L.L.C. v. Verizon Services Corp., 273 F.R.D. 372, 377 (S.D.N.Y. 2011)
(quoting Bourne of New York City, Inc. v. AmBase Corp., 161 F.R.D. 258, 262 (S.D.N.Y.

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1995) (citing Pierce, 487 U.S. at 565)). Here, the contrasting rulings on whether
Defendants were required to respond to Plaintiffs’ demands as stated in the Schwartz
and Wausau cases supports that Defendants’ failure was substantially justified for the
purposes of Rule 37(a)(5). Accordingly, the court finds Defendants’ failure to timely
respond to Plaintiffs’ oral and letter requests for follow-up document production was
substantially justified and does not warrant an award of Plaintiffs’ costs and reasonable
attorneys fees.

CONCLUSION
Based on the foregoing, Plaintiffs’ motion (Dkt. 58) is DISMISSED as moot in part
and DENIED in part; and Defendant/Third-Party Plaintiff’s motion (Dkt. 59) is deemed
WITHDRAWN and, as such, is DISMISSED as moot.
SO ORDERED.
/s/ Leslie G. Foschio
________________________________
LESLIE G. FOSCHIO
UNITED STATES MAGISTRATE JUDGE
Dated: January 18, 2017
Buffalo, New York

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