Johnson v. Predator Trucking, LLC et al
MEMORANDUM re First MOTION to Compel Discovery 17 filed by Robert Johnson (Order to follow as separate docket entry) Signed by Honorable Sylvia H. Rambo on 02/10/14. (ma)
IN THE UNITED STATES DISTRICT COURT
FOR THE MIDDLE DISTRICT OF PENNSYLVANIA
PREDATOR TRUCKING, LLC; and :
Civil No.: 1:13-CV-1683
Judge Sylvia H. Rambo
In this civil action invoking this court’s diversity jurisdiction, Plaintiff
has sued Defendants for injuries allegedly sustained as a result of an incident
involving a tractor and trailer allegedly operated by Defendant Pareja and owned by
Defendant Pareja’s employer, Defendant Predator Trucking. Presently before the
court is Plaintiff’s motion to compel. For the reasons stated herein, Plaintiff’s
motion (Doc. 17) will be granted in part and denied in part.
Plaintiff filed a complaint against Defendant Pareja sounding in
negligence (Count I), and against Defendant Predator Trucking sounding in
negligence based on vicarious liability (Count II) and negligent
hiring/retention/supervision (Count III).2 (Doc. 1.) The parties are currently
engaged in fact discovery, which is set to conclude on June 16, 2014. (See Doc. 15.)
Because the court writes primarily for the parties, it will only outline the background
essential to this memorandum.
A motion for leave to file an amended complaint is pending. The motion seeks to amend
Plaintiff’s complaint by adding two additional counts and one additional defendant, inter alia.
This case concerns an accident that occurred on January 3, 2012, at
Beck Aluminum Alloy LTD’s recycling center, located within the Middle District of
Pennsylvania. Defendant Pareja, employed by Defendant Predator Trucking, was
operating a vehicle, owned by Defendant Predator Trucking. The vehicle had been
backed into the Beck Aluminum facility as the freight was being unloaded.
Defendant Pareja allegedly caused the vehicle to move forward, which resulted in
the rear tires of the trailer to strike Plaintiff, who was operating a forklift near
Defendant Pareja’s vehicle. Plaintiff allegedly suffered serious injuries as a result of
The motion sub judice concerns various documents that Defendants
have refused to produce during the course of discovery. The court has previously
disposed of several issues previously raised. (See Doc. 20.) Pertinent to the
outstanding dispute, Plaintiff requests3 that the court order Defendants to produce:
1) the complete set of Michael Pareja’s Driver’s Logs from December 15, 2011,
through January 18, 2012; 2) certain photographs taken following the incident,
including a set depicting a re-enactment of the incident and a set included in a report
by Defendant Predator Trucking’s insurance adjuster; 3) Defendant Predator
Trucking’s insurance adjuster’s report, dated March 10, 2012; 4) the claim file of
Defendant Predator Trucking’s insurance adjuster pertaining to the January 3, 2012
incident; 5) documentation of safety training, courses, certifications, and internal
safety policies and materials; 6) information pertaining to electronic communication
As is not uncommon when litigating matters presented by zealous and clearly capable
attorneys, the exact parameters of Plaintiff’s motion to compel have become somewhat muddled through
the parties’ artful – yet cautious – brief writing. To the extent the court fails to address an issue that has
already been raised in the motion to compel, Plaintiff is invited to advise the court of its oversight.
devices in Defendant Pareja’s tractor at the time of the incident; and 7) DOT audits
and exit reports for Defendant Predator Trucking, created from January 2007 to the
present.4 (See Docs. 17, 18 & 23.) Pursuant to the court’s order dated December 12,
2013, Defendants have submitted the outstanding documents to the court for an in
Rule 26(b)(1) of the Federal Rules of Civil Procedure defines both the
scope and limitations governing the use of discovery in a federal civil action:
Parties may obtain discovery regarding any nonprivileged
matter that is relevant to any party’s claim or defense –
including the existence, description, nature, custody,
condition, and location of any documents or other tangible
things and the identity and location of persons who know
of any discoverable matter. For good cause, the court may
order discovery of any matter relevant to the subject matter
involved in the action. Relevant information need not be
admissible at trial if the discovery appears reasonably
calculated to lead to the discovery of admissible evidence.
Fed. R. Civ. P. 26(b)(1). Issues relating to the scope of discovery permitted under
the Rules rest in the sound discretion of the court. Wisniewski v. Johns-Manville
As highlighted by Defendants in their duly authorized sur-reply, the argument concerning
the DOT Audits was raised for the first time in Plaintiff’s reply brief. Although the court agrees that a
reply brief is an inappropriate mechanism in which to raise new arguments or requests, it will exercise
its discretion applicable to its ability to oversee discovery and overrule any objection raised by
Defendants to the request based on this procedural technicality.
Defendants submitted Defendant Pareja’s logs from December 26, 2011, through January
31, 2012, despite the court’s order specifically directing Defendants to “submit Defendant Pareja’s
driver logs from December 15, 2011, to January 18, 2012 . . . to the court for an in camera review.”
(Doc. 20, ¶ 3.) The court assumes this was either an innocent oversight or due to the nonexistence of the
logs for the eleven days preceding December 26, 2011.
Corp., 812 F.2d 81, 90 (3d Cir. 1987). This discretion is guided, however, by
certain basic principles. Thus, at the outset, it is clear that Rule 26's broad definition
of that which can be obtained through discovery reaches only “nonprivileged matter
that is relevant to any party’s claim or defense.” Therefore, valid claims of privilege
still cabin and restrict the court’s discretion in ruling on discovery issues.
Furthermore, the scope of discovery permitted by Rule 26 embraces all “relevant
information,” a concept which is defined in the following terms: “Relevant
information need not be admissible at trial if the discovery appears reasonably
calculated to lead to the discovery of admissible evidence.” Fed. R. Civ. P. 26(b)(1).
The party resisting production bears the burden of establishing lack of relevancy,
and must demonstrate that the requested documents either do not come within the
broad scope of relevancy defined under subsection (b)(1) or else are of such
marginal relevance that the potential harm occasioned by discovery would outweigh
the ordinary presumption of broad disclosure. Continental Life Ins. Co. v. Shearson
Lehman Hutton, Inc., Civ. No. 88-cv-9279, 1990 WL 209290, *2 (E.D. Pa. Dec. 13,
The work product protection, which derives from Federal Rule of Civil
Procedure 26(b)(3), states that “documents and tangible things otherwise
discoverable,” but which were “prepared in anticipation of litigation or for trial by
or for another party or by or for that other party’s representative” are not
discoverable. Raso v. CMC Equip. Rental, Inc., 154 F.R.D. 126, 127 (E.D. Pa.
1994). The party asserting the work product protection has the burden of
demonstrating that the documents were “prepared in anticipation of litigation,”
Conoco, Inc. v. United States Dep’t of Justice, 687 F.2d 724, 730 (3d Cir. 1982).
The mainstay of work product protection, and the gravamen of the instant dispute,
lies in the deceivingly simple phrase, “in anticipation of litigation.” To determine
whether a document was “prepared in anticipation of litigation,” the appropriate
inquiry is “whether in light of the factual situation in the particular case, the
document can fairly be said to have been prepared or obtained because of the
prospect of litigation.” Maertin v. Armstrong World Indus., Inc., 172 F.R.D. 143,
148 (D.N.J. 1997). Litigation need not be imminent as long as the main purpose
behind the creation of the document was to aid in future litigation; however, the
mere possibility of future litigation is insufficient to meet the “in anticipation of
litigation” standard. Leonen v. Johns-Manville, 135 F.R.D. 94, 97 (D.N.J. 1990);
United States v. Rockwell Int’l, 897 F.2d 1255, 1266 (3d Cir. 1990). Thus, a
document that was prepared “in the ordinary course of business” may not be found
to have been prepared in anticipation of litigation.
At the outset, the court notes that several of the aforementioned
requested materials are no longer in dispute. Specifically, based on Defendants’
representations in their sur-reply, Defendants have fulfilled Plaintiff’s requests
pertaining to documentation of safety training, courses, certifications, and internal
safety policies and materials and information pertaining to electronic
communication devices in Defendant Pareja’s tractor at the time of the incident.
Defendant Pareja’s Driver’s Logs
Plaintiff requested that Defendants produce Defendant Pareja’s Driver’s
Logs from December 15, 2011, through January 3, 2012.6 Defendants objected on
the basis of relevancy, arguing that the Federal Motor Carrier Safety Provisions
require a commercial driver to retain a copy of his logs for only the previous seven
consecutive days. Defendants reason that anything beyond seven days preceding the
January 3, 2012 incident is irrelevant. Defendants, as the objecting party, have
failed to sustain their burden in demonstrating the additional Driver’s Logs lack
At this stage of the litigation, the court will exercise its discretion in
accordance with the broad scope of discovery. While the court questions whether
Defendant Pareja’s Driver’s Logs for December 15, 2011, through December 26,
2011, will be admissible as relevant in and of themselves, the court cannot
definitively conclude that such evidence will not lead to the discovery of admissible
evidence. Accordingly, Defendants will be compelled to produce Defendant
Pareja’s Driver’s Logs from December 15, 2011, through January 3, 2012. If
Defendants do not have a Driver’s Log for any date within the aforementioned
period, Defendants will certify that such a document does not exist, and further
certify whether one was ever created.
Plaintiff originally requested logs through January 18, 2012. Plaintiff has since conceded
that any logs documenting Defendant Pareja’s status following the incident is not reasonably calculated
to produce admissible evidence, and has therefore abandoned his request pertaining to Driver’s Logs
from January 3, 2012, through January 18, 2012.
Photographs Depicting Reenactment of Incident
Plaintiff requested that Defendants produce photographs related to the
January 3, 2012 incident. Defendants objected insofar as they claimed certain
photographs depicting a reenactment of the incident were protected as nondiscoverable by the work product protection. The court agrees with Defendants.
Defendants represent that the set of photographs was taken on April 5,
2012, over three months following the incident and after defense counsel was
retained. Additionally, the photographs depict a reenactment of the incident, which
is reasonably assumed to be related to defending the instant action. The court has
little trouble concluding that the photographs were prepared in anticipation of
litigation by Defendants’ representative. Accordingly, Defendants will not be
ordered to provide copies of the photographs depicting a reenactment of the January
3, 2012 incident.
Frontier Adjuster Report
Plaintiff requested Defendants produce the insurance adjuster report
prepared by Peter P. Tarsi. Defendants objected, claiming that the report was
protected as non-discoverable work product. The court agrees with Defendants.
The court concludes that the report was prepared in anticipation of
litigation. The report is dated March 10, 2012, which was over two months from the
date of the accident. Furthermore, the report indicates that Attorney William L.S.
Ross, counsel for Beck Aluminum Alloys, had contacted Defendant Predator
Trucking on February 28, 2012, and relayed that Plaintiff had obtained counsel in
connection with the January 3, 2012 incident. Although the report was created
several weeks prior to Defendants’ retaining defense counsel, the chance of
litigation was certainly more than a “mere possibility.” Accordingly, the court will
not compel Defendants to produce the March 10, 2012 report.
The same cannot be said of the photographs contained in the report.
The court will compel Defendants to produce the photographs attached to the March
10, 2012 report. The report itself indicates that these photographs were created by
the South Lebanon Police. Although the March 10, 2012 report was created by
Defendants’ representative, the same cannot be said for the photographs attached
thereto. Accordingly, Defendants will be compelled to produce the photographs
attached to the March 10, 2012 report.
TCS-ONE Claims File
Plaintiff’s broad request for discovery also includes a Claims File,
which contains, inter alia, a document titled “Major Loss Report.” Defendants
objected, claiming that the report was protected as non-discoverable work product.
After review, the court concludes that the file contains documents that were
prepared in the ordinary course of business and are, therefore, discoverable. A
document, prepared by Wendy Griffin, was prepared on February 16, 2012, slightly
more than a month following the January 3, 2012 incident, and before Defendants
became aware that Plaintiff had retained counsel. (See supra, Part III.C.) While
there may have been a possibility of litigation as of February 16, 2012, as there is
following any injury-causing event, the court cannot conclude the document was
prepared in anticipation of litigation.
However, the February 16, 2012 document also contains work product
of the adjusters in the nature of assessments. The court concludes this information
to be non-discoverable and will permit Defendants to redact any work product in the
nature of valuations, reserves, opinions, and mental impressions. Furthermore,
Defendants will be entitled to withhold any portion of the claims file that the court
has ruled is non-discoverable. Accordingly, Defendants will be compelled to
produce, subject to redaction and exclusion in accordance with this memorandum,
the claims file that was submitted to the court as Exhibit D for its in camera
Plaintiff requested that Defendants provide all DOT audits and exit
reports from January 3, 2007, through the present. Defendants objected, claiming
the request was overly broad and unduly burdensome. Plaintiff has since limited his
request to coincide with the dates of Defendant Pareja’s employment, i.e., October 9,
2010, until January 3, 2012. The court finds that Defendants have failed to sustain
their burden in demonstrating that Plaintiff’s request would be overly burdensome.
At this stage of the litigation, the court will exercise its discretion in
line with the broad scope of discovery. While the court questions whether the audits
for October 9, 2010, through January 3, 2012, will be admissible as relevant in and
of themselves, the court cannot definitively conclude that such evidence will not
lead to the discovery of admissible evidence. Accordingly, Defendants will be
compelled to produce DOT audits from October 9, 2010, through January 3, 2012.
If Defendants do not have a corresponding audit for any time within the
aforementioned period, Defendants will certify that such a document does not exist.
Based on the foregoing reasons, Plaintiff’s motion to compel will be
granted to the extent it seeks production of: (a) Defendant Pareja’s Driver’s Logs
from December 15, 2011, through January 3, 2012 (see supra, Part III.A); (b)
photographs taken by the South Lebanon Police Department that are attached to the
March 10, 2012 report (see supra, Part III.C); (c) the claims file, including the
February 16, 2012 report completed by Wendy Griffin, subject to redactions for
adjuster’s work product and otherwise limited by this memorandum (see supra, Part
III.D); and (d) DOT Audits from October 9, 2010, through January 3, 2012 (see
supra, Part III.E). Plaintiff’s motion to compel will be denied in all other respects.
An appropriate order will issue.
S/Sylvia H. Rambo
United States District Judge
Dated: February 10, 2014.
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