Tango Transport, LLC et al v. Navistar International Corporation et al
Filing
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MEMORANDUM OPINION AND ORDER. Navistar's Motion to Compel (Dkt. # 58 ) is hereby GRANTED in part. Signed by District Judge Amos L. Mazzant, III on 7/27/2018. (rpc, )
United States District Court
EASTERN DISTRICT OF TEXAS
SHERMAN DIVISION
CHRISTOPHER MOSER as Plan Trustee of
the Trust Under the Amended Joint Plan of
Liquidation of Tango Transport, LLC, ET
AL.,
v.
NAVISTAR INTERNATIONAL
CORPORATION, ET AL.
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Civil Action No. 4:17-CV-00598
Judge Mazzant
MEMORANDUM OPINION AND ORDER
Pending before the Court is Defendants’ Navistar, Inc. and Navistar International
Corporation Motion to Compel Discovery Responses (Dkt. #58). After reviewing the relevant
pleadings and motion, the Court finds that the motion should be granted in part.
BACKGROUND
In 2014, Tango Transport, LLC, Tango Logistx, LLC, Gorman Group, Inc., Tango Truck
Services, LLC, Tango Enterprises, Inc., and GMGO, LLC (collectively “Tango”) filed suit in the
United States District Court for the Western District of Louisiana. Specifically, Tango filed suit
against Navistar International Corporation, Navistar Inc., Navistar Leasing Company, Navistar
Financial Corporation, and Navistar Leasing Services Corporation (collectively “Navistar”). The
basis of the lawsuit involved alleged defects in over 450 International MaxxForce engines in trucks
purchased or leased by Tango from Navistar between 2011 and 2013. Tango later voluntarily
dismissed the case.
Later in 2014, Tango refiled its suit in Louisiana state court. Although the basis and
allegations of the lawsuit resembled the previous federal action, Tango added ITA Truck Sales &
Services, LLC as a defendant (collectively, with Navistar, “Defendants”). In August of 2015,
Tango and Defendants reached a settlement agreement that resulted in the state court dismissing
all claims with prejudice.
In April of 2016, Tango filed for bankruptcy. In November of 2016, Tango commenced
this action as an adversary proceeding in the Bankruptcy Court by filing an Original Complaint
against Defendants. Specifically, Tango sought avoidance of the settlement agreement alleging
they did not receive reasonably equivalent value for the release of their claims. In December of
2016, the Bankruptcy Court confirmed the Plan and appointed Christopher Moser (“Moser”) as
the Trustee of the Plan Trust, which succeeded Tango in this action. In April of 2017, Moser filed
an amended complaint adding recovery of the value of the defective engine claims, or in the
alternative, the return of the releases.
On June 2, 2017, Defendants, in Bankruptcy Court, filed a Motion to Withdraw the
Reference. On August 25, 2017, the Bankruptcy Court issued a Report and Recommendation,
recommending the Court withdraw reference. On December 19, 2017, United States District Judge
Ron Clark adopted the recommendation and transferred the matter to the undersigned. On
February 5, 2018, Moser produced, in pertinent part, the following to Navistar: (1) electronic
copies of emails of six former Tango employees (the “Employee Documents”), (2) emails received
from Tango’s former counsel, Bryan Cave, and Tango’s former CRO, Morris Anderson,
(“Third-Party Documents”), (3) access to hard copy documents in boxes contained in two
warehouses: Dallas (“Dallas Boxes”), with an index created by Tango, and Shreveport
(“Shreveport Boxes”), for which no index currently exists, and (4) remote access to Tango’s
operational systems (collectively, “Initial Disclosures”).
On April 6, 2018, Navistar served Moser with its Requests for Production (“RFP”) and
Interrogatories (Dkt. #58, Exhibits 5–6). On May 7, 2018, Moser provided his response (Dkt. #58,
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Exhibits 7–8). On June 18, 2018, Navistar filed a Motion to Compel (Dkt. #58). On July 2, 2018,
Moser filed his response (Dkt. #67). On July 9, 2018, Navistar filed a reply (Dkt. #71). On July
13, 2018, the Court held a hearing on Navistar’s motion to compel.
LEGAL STANDARD
Under Federal Rule of Civil Procedure 26(b)(1), parties “may obtain discovery regarding
any non[-]privileged matter that is relevant to any party’s claim or defense . . . .” FED. R. CIV. P.
26(b)(1). Relevance, for the purposes of Rule 26(b)(1), is when the request is reasonably
calculated to lead to the discovery of admissible evidence. FED. R. CIV. P. 26(b)(1); Crosby v. La.
Health & Indem. Co., 647 F.3d 258, 262 (5th Cir. 2011). The Court’s scheduling order requires
that the parties produce, as part of their initial disclosure, “documents containing, information
‘relevant to the claim or defense of any party.’” (Dkt. #25 at p. 3). Moreover, the Local Rules of
the Eastern District of Texas provide further guidance suggesting that information is “relevant to
any party’s claim or defense [if]: (1) it includes information that would not support the disclosing
parties’ contentions; . . . (4) it is information that deserves to be considered in the preparation,
evaluation or trial of a claim or defense. . . .” LOCAL RULE CV-26(d). It is well established that
“control of discovery is committed to the sound discretion of the trial court.” Freeman v. United
States, 556 F.3d 326, 341 (5th Cir. 2009) (quoting Williamson v. U.S. Dep’t of Agric., 815 F.2d
368, 382 (5th Cir. 1987)).
Rule 37 of the Federal Rules of Civil Procedure allows a discovering party, on notice to
other parties and all affected persons, to “move for an order compelling disclosure or discovery.”
FED. R. CIV. P. 37(a)(1). The moving party bears the burden of showing that the materials and
information sought are relevant to the action or will lead to the discovery of admissible evidence.
Export Worldwide, Ltd. v. Knight, 241 F.R.D. 259, 263 (W.D. Tex. 2006). Once the moving party
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establishes that the materials requested are within the scope of permissible discovery, the burden
shifts to the party resisting discovery to show why the discovery is irrelevant, overly broad, unduly
burdensome or oppressive, and thus should not be permitted. Id.
Federal Rule of Civil Procedure 34 governs requests for production of documents,
electronically stored information, and tangible things. Rule 34 requires responses to “either state
that inspection and related activities will be permitted as requested or state with specificity the
grounds for objecting to the request, including the reasons.” FED. R. CIV. P. 34(b)(2)(B). “An
objection [to the entire request] must state whether any responsive materials are being withheld on
the basis of that objection.” FED. R. CIV. P. 34(b)(2)(C). On the other hand, “[a]n objection to part
of a request must specify the part and permit inspection of the rest.” FED. R. CIV. P. 34(b)(2)(C).
After responding to each request with specificity, the responding attorney must sign their
request, response, or objection certifying that the response is complete and correct to the best of
the attorney’s knowledge and that any objection is consistent with the rules and warranted by
existing law or a non-frivolous argument for changing the law. FED. R. CIV. P. 26(g). This rule
“simply requires that the attorney make a reasonable inquiry into the factual basis of his response,
request, or objection.” Fed. R. Civ. P. 26(g) advisory committee note (1983).
The federal rules follow a proportionality standard for discovery. FED. R. CIV. P. 26(b)(1).
Under this requirement, the burden falls on both parties and the court to consider the
proportionality of all discovery in resolving discovery disputes. FED. R. CIV. P. 26(b)(1), advisory
committee note (2015). This rule relies on the fact that each party has a unique understanding of
the proportionality to bear on the particular issue. Id. For example, a party requesting discovery
may have little information about the burden or expense of responding. Id. “The party claiming
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undue burden or expense ordinarily has far better information—perhaps the only information—
with respect to that part of the determination.” Id.
ANALYSIS
Navistar alleges that Moser’s Initial Disclosures and discovery responses are insufficient
because (1) they are not limited to relevant information and fail to satisfy the requirements under
Rule 34, (2) Moser incorrectly invokes his role as trustee to avoid providing meaningful discovery
responses, and (3) Moser puts forth spurious objections to Navistar’s interrogatories and fails to
provide any substantive responses. The Court addresses each argument in turn.
I.
Moser’s Production of Documents
Navistar avers that Moser’s Initial Disclosures constitute an overproduction “of
information vastly comprised of irrelevant and/or disorganized electronic information.” (Dkt. #58
at p. 4). Based on such production, Navistar contends that Moser failed to expend any effort culling
irrelevant and immaterial information or identifying and producing relevant documents as required
by federal and local discovery rules.1 As a result, Navistar requests that the Court order Moser to
re-review his production and eliminate irrelevant documents and to specifically identify the
information that is relevant to its discovery requests.
Moser responds that Navistar fails to provide any evidence that the information produced
contains excessive irrelevant documents. Moreover, Moser argues that Navistar’s RFPs, which
broadly seek information regarding all aspects of Tango’s operations, contradict Navistar’s now
restricted concept of relevant information. Finally, Moser contends that Navistar’s request should
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Navistar also complains that Moser improperly refused to produce documents possessed by Tango’s third-party
custodians. Moser responds that he provided information that he has access to, but certain information is no longer
available to him since the third-party vendors no longer maintain a relationship with Tango. Because the information
sought by Navistar is no longer in Moser’s possession, custody, or control, by virtue of Tango’s estranged relationships
with third-party vendors, the Court finds that Moser lacks the ability to produce such information. See Villarreal v.
First Presidio Bank, No. EP-15-CV-88-KC, 2017 WL 5505383, at *1 (W.D. Tex. June 9, 2017).
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be denied because Moser produced all electronically stored documents in fully searchable and
sortable form and hard copy information in the manner for which it was kept during the usual
course of business.
A party responding to discovery requests must either produce documents “as they are kept
in the usual course of business” or “must organize and label them to correspond to the categories
in the request.” FED. R. CIV. P. 34(b)(2)(E)(i). “This rule is intended to prevent parties from hiding
‘a needle in a haystack’ and to minimize the costs associated with discovery.” United States v.
Bollinger Shipyards, Inc., No. 12-920, 2015 WL 13529562, at *3 (E.D. La. Apr. 13, 2015) (quoting
Hagemeyer N. Am., Inc. v. Gateway Data Sciences Corp., 222 F.R.D. 594, 598 (E.D. Wisc. 2004)).
A party asserting that documents are produced as kept in the usual course of business “must
provide testimony, or some other evidence, to support their position.”
Brown v. Bridges,
No. 3:12-cv-4947-P, 2014 WL 2210510, at *3 (N.D. Tex. May 27, 2014). Ideally, such evidence
includes “the identity of the custodian or person from whom the documents were obtained,
assurance that the documents have been produced in the order in which they are maintained, and
a general description of the filing system from which they were recovered.” Bollinger, 2015 WL
13529562, at *4 (citations omitted). Failure to meet this burden results in the responding party
complying with the second option and properly organizing and labeling the documents. Brown,
2014 WL 2210510, at *3.
Regarding electronically stored information produced by Moser, the Court orders Moser,
to the extent he has not already done so, to narrow the information produced to what is pertinent
to Navistar’s discovery requests. See Orchestratehr, Inc. v. Trombetta, 178 F. Supp. 3d 476, 510
(N.D. Tex. 2016) (holding that a responding party has the responsibility to provide a meaningful
response and review voluminous documents to identify those that are responsive to specific
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requests). Because Moser represents that such information is in searchable and sortable form, the
Court finds that complying with such an order is not unduly burdensome.
Concerning the Dallas and Shreveport Boxes, Navistar contends that Moser making such
boxes available for inspection rather than identifying the relevant contents and boxes is improper.
Moser responds that he produced such boxes as they were kept in the usual course of business and
that to require him to review every box to determine the relevancy of the information contained
therein would be overly burdensome. Aside from stating that the boxes were kept by Tango in the
manner that Moser produced them, Moser fails to provide any evidence to support the proposition
that the boxes were produced as kept in the usual course of business. Consequently, Moser fails
to satisfy his initial burden. See Oceaneering Int’l, Inc. v. GRI Simulations, Inc., No. 05-0258,
2008 WL 11399724, at *2 (W.D. La. Jan. 23, 2008) (“simply producing documents in boxes does
not conform to [Rule 34(b)(2)(E)(i)]”); Brown, 2014 WL 2210510, at *6 (the producing party has
the burden of demonstrating that documents, albeit in storage, are produced in the ordinary course
of business . . . that is, “Plaintiffs cannot simply open a warehouse door to a storage pile of
unorganized documents”). As such, Moser must either satisfy this burden or organize and label
the documents appropriately. If Moser satisfies his burden, he must also provide, to the extent he
has not already, a general description of the filing system and indexes for the documents.
As trustee, Moser argues that requiring him to review every box would be unduly
burdensome. The Court disagrees. Assuming Moser meets his burden of establishing that the
boxes were produced as kept in the usual course of business, an index already exists for the Dallas
Boxes, and Moser is currently creating an index for the Shreveport Boxes. As such, requiring
Moser to provide a general description of the organization of the boxes and completed indexes is
not unduly burdensome.
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II.
Responding to Discovery as the Trustee
Navistar alleges that Moser avoids adequately responding to Navistar’s discovery by
claiming that he as trustee lacks “direct information” of Tango’s business operations (Dkt. #58 at
p. 5). Navistar avers that Moser’s argument is untenable since Moser “has both the power and
obligation to call upon Tango’s knowledge to pursue his claims and to respond to discovery.”
(Dkt. #58 at p. 5). In other words, Navistar contends that Moser should have sought Tango’s
assistance in attempting to fully comply with his discovery obligations (Dkt. #58 at p. 7).
Moser responds that his objections based on his position as trustee are appropriate.
Specifically, Moser asserts that he responded to Navistar’s discovery to the best of his ability given
his relative access to the relevant information and limited resources.
For example, Moser
represents that although Tango ceased operations prior to his appointment as trustee, he has
nevertheless contacted former employees and counsel to try and obtain relevant and responsive
information.
Despite such efforts, Moser contends that his ability to draw upon Tango’s
institutional knowledge is limited.
Pursuant to Rule 26(b)(1), “[p]arties 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,
considering . . . the parties’ relative access to relevant information” and “the parties’ resources.”
FED. R. CIV. P. 26(b)(1). Although Navistar argues that Tango has an affirmative duty to cooperate
with Moser for discovery purposes, the cases Navistar relies on are distinguishable from the case
at hand since they involve Chapter 7, not Chapter 11 bankruptcy. Moreover, neither party cites to
case law, and the Court finds none, where a court enforces such an obligation on the debtor in the
context of a Chapter 11 bankruptcy. As such, the Court finds that Moser is only obligated to
respond to Navistar’s discovery to the extent that he has access to such information and in a manner
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that does not overly diminish the limited resources of the trust. Moser represents that he contacted
Tango’s former employees and counsel in an effort to adequately respond to Navistar’s counsel.
The Court finds that such effort complies with Rule 26 and the circumstances of this case.
However, the Court notes that Moser maintains the duty to supplement his discovery responses if
he comes across new and relevant information.
III.
Moser’s Responses to Navistar’s Interrogatories
Navistar alleges that rather than respond substantively to its interrogatories, Moser
“answered” with vague references to documents “previously produced” or claimed to lack direct
knowledge to provide more responsive answers (Dkt. #58 at p. 12). Additionally, Navistar
complains that Moser refused to respond to interrogatories 13 through 24 based on improper
objections as to the number of interrogatories based on his calculation of subparts. As such,
Navistar requests that the Court order Moser to specify which documents and/or information relate
to each interrogatory and to provide responses to all interrogatories. Conversely, Moser claims
that he adequately responded to Navistar’s interrogatories by either “referring to the particular
location of the information, or, where [he did] not have access to the information, stating so and
referring Navistar to particular Tango employees who would likely have the information.” (Dkt.
#67 at pp. 13–14). Furthermore, Moser avers that he properly objected to and refused to respond
to Navistar’s excess interrogatories. The Court first addresses Moser’s responses followed by the
existence, if any, of excess interrogatories.
“Typically, responses to interrogatories must be complete in themselves.” F.T.C. v. Think
All Pub., L.L.C., No. 4:07-cv-011, 2008 WL 687456, at *3 (E.D. Tex. Mar. 11, 2008) (citation
omitted). However, Rule 33(d) provides that when a party serves an interrogatory “to another
party which can be answered by examination of the responding party’s business records, and the
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burden of deriving the answer would be the same for both parties, it is sufficient to answer the
interrogatory by specifying the business records from which the answer may be derived or
ascertained.” Spectrum Creations, L.P. v. Carolyn Kinder Int’l, LLC, No. SA-05-CV-750-XR,
2006 WL 8434013, at *1 (W.D. Tex. May 9, 2006) (citing FED. R. CIV. P. 33(d); Oppenheimer
Fund, Inc. v. Sanders, 437 U.S. 340, 357 (1978)). When this happens, “the responding party must
specify the documents from which the answer may be derived in ‘sufficient detail to [enable] the
interrogating party to locate and to identify’ them” as the responding party could. Id. (quoting
FED. R. CIV. P. 33(d)).
In response to numerous interrogatories, Moser refers to various modules, sub-modules,
and/or files located within Tango’s operational system, which Moser contends Navistar has remote
access to. See (Dkt. #58, Exhibit 8). Without determining the sufficiency of Moser’s responses,
the Court cautions Moser that the specified modules and files provided as answers to Navistar’s
interrogatories should provide a clear and easily traceable answer. Navistar “should not have to
search and surmise from the specified documents the answers it seeks.” Spectrum, 2006 WL
8434013, at *2. As such, Moser is ordered to review his responses and provide supplementation
if such responses do not provide clear and straightforward direction to the answers sought.
The Court next addresses whether Navistar’s interrogatories exceed the limitation imposed
by Rule 33. Federal Rule of Civil Procedure 33(a)(1) provides that “[u]nless otherwise stipulated
or ordered by the court, a party may serve on any other party no more than 25 written
interrogatories, including all discrete subparts.” “Calculating the number of interrogatories . . . is
not an exact science.” Erfindergemeinschaft Uropep GbR v. Eli Lilly and Co., 315 F.R.D. 191,
194 (E.D. Tex. 2016). In expounding on the 25-interrogatory limit, the Advisory Committee Note
provided, in pertinent part, that
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[p]arties cannot evade this presumptive limitation through the device of joining as
‘subparts’ questions that seek information about discrete separate subjects.
However, a question asking about communications of a particular type should be
treated as a single interrogatory even though it requests that the time, place, persons
present, and contents be stated separately for each such communication.
146 F.R.D. 401, 675–76 (1993).
“When a multi-part interrogatory is challenged as being
multiplicitous, the Court must decide what constitutes ‘discrete separate subject.’”
Erfindergemeinschaft, 315 F.R.D. at 194. Although there is no precise test for determining
“discreteness” under a Rule 33(a)(1) inquiry, most courts follow the “related question” approach.
Id. at 196. The test applied under the “related question” approach is “subparts that are logically or
factually subsumed within and necessarily related to the primary question should not be treated as
separate interrogatories.” Id. Stated differently, “where the first question can be answered fully
and completely without answering the second question, then the second question is totally
independent of the first and not factually subsumed within [it].” Id. (alteration in original) (citation
omitted). Notably, “the issue of ‘discreteness’ cannot reliably be captured by a verbal formula,”
but instead “the issue turns on a case-by-case assessment of the degree to which the subpart is
logically related to the primary question in the interrogatory, as opposed to being separate and
distinct.” Id. at 197.
As discussed below, the Court finds that each of the complained-of interrogatories contain
multiple parts and should be treated as separate interrogatories.
a. Interrogatory No. 1
Concerning the allegations in the Tango Petition and the Amended Complaint
relating to representations about the Subject Vehicles, please identify the person(s)
who made said representations, detail the representation made, identify to whom
the representation was directed, identify who relied on the representation, and detail
when the representation was made. Also identify all materials that Tango reviewed
concerning the Subject Vehicles that you allege Tango relied upon in deciding to
purchase the Subject Vehicles, including a brief description of the contents of the
material, location of the material, when the material was reviewed and by whom.
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(Dkt. #58, Exhibit 6 at p. 4). This interrogatory contains two subparts: first, details surrounding
representations relating to the subject vehicles, and second, materials Tango reviewed when
considering whether to purchase the subject vehicles. The latter is neither subsumed nor dependent
upon the former. As such, this interrogatory constitutes two interrogatories.
b. Interrogatory No. 3
Please describe the [disposition] of each Subject Vehicle, including the manner in
which you or Tango parted with the Subject [Vehicle], the date of disposition, the
amount or value received in the trade-in or sale (if applicable), the last known
mileage at the time it left your or Tango’s possession, the identity and [ ] location
of the subsequent owner or possessor, and if known, the current status and location
of the vehicle.
(Dkt. #58, Exhibit 6 at p. 4). This interrogatory contains two subparts: first, a description of the
disposition of the subject vehicles, and second, the current status and location of the subject
vehicles. Although each subpart relates to the subject vehicles, each can be answered independent
of one another. As such, this interrogatory constitutes two interrogatories.
c. Interrogatory No. 5
Please describe any and all maintenance, servicing, and/or repairs performed by
anyone (at Tango or elsewhere) on the Subject Vehicles at any time. This request
calls, in part, for the identity of the individual/entity that performed the work, the
approximate date or time period of the work, the identity of the vehicle at issue (by
VIN or other identifier), the nature of the work performed, the cost of the work, and
the identity of each person having any information or Material (including receipts,
invoices, statements, records, memoranda) relating to the work.
(Dkt. #58, Exhibit 6 at p. 5). This interrogatory contains two subparts: first, a description of the
maintenance, servicing, and/or repairs of the subject vehicles, and second, the identify of persons
with information relating to such work. Although each are related, neither is dependent nor
subsumed by the other. As such, this interrogatory constitutes two interrogatories.
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d. Interrogatory No. 6
Please describe any and all maintenance, servicing, and/or repairs performed at any
time by anyone (at Tango or elsewhere) on vehicles owned or leased by Tango
other than the Subject Vehicles. This request calls, in part, for the identity of the
individual/entity that performed the work, the approximate date or time period of
the work, the identity of the vehicle at issue (by VIN or other identifier), the nature
of the work performed, the cost of the work, and the identity of each person having
any information or Material (including receipts, invoices, statements, records,
memoranda) relating to the work.
(Dkt. #58, Exhibit 6 at p. 5) (emphasis in original).
This interrogatory constitutes two
interrogatories for the same reasoning applied to Interrogatory No. 5.
e. Interrogatory No. 7
Please describe Tango’s internal policies, procedures, guidelines or practices related
to the use, operation, maintenance, or servicing of any vehicle leased or owned by
Tango, including Tango vehicles other than the Subject Vehicles. To the extent
such information is memorialized, please identify the relevant Material.
(Dkt. #58, Exhibit 6 at p. 5). This interrogatory contains two subparts: first, a description of various
materials related to numerous topics, and second, a request for any memorialized material
concerning such information. The latter is neither subsumed nor dependent upon the former. As
such, this interrogatory constitutes two interrogatories.
f. Interrogatory No. 8
Please describe any and all inspections or tests performed on each of the Subject
Vehicles, including any component part thereof, whether prior to or after the
purchase or lease of the Subject Vehicle, known to you or Tango or to persons acting
on your or Tango’s behalf, providing the identity of the person who performed the
inspection/test, the approximate date each inspection/test was performed, the
location of each inspection/test, the component parts that were inspected/tested, the
conclusions reached, if any, at each inspection/testing, and a description of any
Material created in connection with the inspection/testing.
(Dkt. #58, Exhibit 6 at pp. 5–6). This interrogatory contains two subparts: first, details concerning
all inspections or tests performed on the subject vehicles, and second, a request for any
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memorialized material concerning such information.
Because each subpart is distinct and
independent of one another, this interrogatory constitutes two interrogatories.
g. Interrogatory No. 9
Please describe all advertising performed by Tango or on Tango’s behalf related to
the hiring or retention of truck drivers from January 1, 2005, to the present. Your
response should include a description of each advertisement, the duration (if
applicable) of the advertisement, the cost of the advertisement, and the identity of
any individuals/agencies involved in handling Tango’s advertisements.
(Dkt. #58, Exhibit 6 at p. 6). This interrogatory contains two distinct and separate subparts. First,
a request for a description of all advertising related to hiring or retention of truck drivers, and
second, the identify of those involved with such advertisements. Because each subpart can be
answered independent of one another, this interrogatory constitutes two interrogatories.
h. Interrogatory No. 10
Please list by name, address, phone number, and dates of employment all drivers
employed by Tango from January 1, 2005, to the present. Please indicate the drivers
who at any time operated any of the Subject Vehicles made the basis of this lawsuit
and time period in which the driver identified operated each of the Subject Vehicles.
(Dkt. #58, Exhibit 6 at p. 6). This interrogatory contains two subparts: first, information relating
to drivers employed by Tango during a specific time period, and second, the identities of drivers
who operated the subject vehicles. Because each subpart is distinct and independent of one
another, this interrogatory constitutes two interrogatories.
i. Interrogatory No. 11
For Tango’s entire fleet of vehicles operated by Tango from January 1, 2005, until
Tango ceased operations, describe the following:
(a) the average percentage of vehicles in service at any given time;
(b) the average maximum load (in pounds) that each vehicle was required to
carry per day;
(c) the average number of days per week that each vehicle was used by Tango
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or in service to Tango in business or otherwise;
(d) the average number of miles per day that each vehicle traveled (or was
required to travel);
(e) the average number of hours per day that each vehicle was used (or was
required for use);
(f) the average number of vehicles that experienced down time at any given
time;
(g) the average number of days each vehicle experienced downtime;
(h) the average number of repairs performed on each vehicle per year for the
life of the vehicle;
(i) the number of drivers assigned to each vehicle;
(j) the number of vehicles down at any given time due to lack of drivers, lack
of orders, and/or not required or needed by Tango in the ordinary course of
business; and
(k) a description of any and all documents that were used or relied upon Plaintiff
to answer this interrogatory.
(Dkt. #58, Exhibit 6 at pp. 6–7). This interrogatory contains four subparts: first, details relating to
overall truck usage; second, information concerning the usage of specific trucks; third, data
relating to the downtime of specific trucks; and fourth, a description of all materials relied upon to
answer the aforementioned subparts. Because all subparts are distinct and independent of one
another, this interrogatory constitutes four interrogatories.
j. Interrogatory No. 12
Itemize with particularity, by date, amount and explanation, all “Break Down
Expenses” as that term is used in Paragraphs 41-44 of the Amended Complaint. To
the extent these expenses are supported by documentary evidence, please identify
those documents by Bates Number.
(Dkt. #58, Exhibit 6 at p. 7). This interrogatory contains two subparts which are neither subsumed
nor dependent upon one another. First, information relating to “Break Down Expenses,” and
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second, documentary evidence supporting such information.
Although related, each is
independent of the other. As such, this interrogatory constitutes two interrogatories.
k. Interrogatory No. 13
Please identify all customers and/or business you or Tango allege Tango lost based
on alleged breakdowns or repairs to the Subject Vehicles, as alleged in Paragraph
45 of the Amended Complaint, and describe any valuation of the associated alleged
economic loss. To the extent these claims of lost customers or business and any
associated valuation are supported by documentary evidence, please identify those
documents by Bates Number.
(Dkt. #58, Exhibit 6 at p. 7). This interrogatory contains four subparts: first, identification of
customers and/or businesses lost based on alleged breakdowns or repairs; second, evidence
supporting such response; third, the valuation of the associated alleged economic loss; and fourth,
evidence supporting such economic loss. Although the subparts are related, neither is dependent
nor subsumed by the other. As such, this interrogatory constitutes four interrogatories.
Taking into consideration the analysis above, Interrogatories No. 1 through the first subpart
of No. 13 constitute twenty-five separate interrogatories. Moser only provided responses to
interrogatories No. 1 through 12. Because a Navistar is entitled to twenty-five interrogatories,
Moser must additionally provide a response to the first interrogatory/subpart within No. 13.
However, Navistar’s request that Moser respond to all of Navistar’s originally classified
twenty-four interrogatories is declined.
CONCLUSION
It is therefore ORDERED that Navistar’s Motion to Compel (Dkt. #58) is hereby
GRANTED in part. As such, Moser is ORDERED to comply with the requirements as described
herein no later than 5:00 p.m. on Friday, August 10, 2018.
16
SIGNED this 27th day of July, 2018.
___________________________________
AMOS L. MAZZANT
UNITED STATES DISTRICT JUDGE
17
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