Sandoval et al v. Bridge Terminal Transport Inc et al

Filing 53

ORDER signed by Judge Rudolph T. Randa on 6/10/2015. 44 Sandoval's Amended MOTION to Compel Discovery Responses from Defendant BTT, Inc. GRANTED; 45 BTT's MOTION for Protective Order DENIED. (cc: all counsel)(cb)

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF WISCONSIN
JOSE SANDOVAL,
Plaintiff,
UNITED WISCONSIN INSURANCE
COMPANY, COMPCARE HEALTH
SERVICES INSURANCE CORP. d/b/a
ANTHEM BLUE CROSS AND BLUE SHIELD,
Involuntary plaintiffs,
-vs-

Case No. 14-C-639

BRIDGE TERMINAL TRANSPORT, Inc.,
CURTIS PARKER, MAERSK TRUCKING
HOLDING, Inc., NATIONAL UNION FIRE
INSURANCE COMPANY OF PITTSBURGH, PA,
Defendants.
DECISION AND ORDER
Jose Sandoval was injured at work while loading a commercial
motorized vehicle that unexpectedly began to drive away. The CMV
belonged to Bridge Terminal Transport, Inc. (“BTT”), and was being driven
by one of its employees, Curtis Parker. Sandoval brings claims against
Parker and BTT for negligence. This matter was removed from Milwaukee
County Circuit Court on the basis of diversity jurisdiction. Now before the
Court are Sandoval’s motion to compel discovery and BTT’s corresponding

motion for a protective order. Sandoval’s motion is granted, and BTT’s
motion is denied.
The federal discovery rules are liberal to further the parties’ interest
in preparing a case for trial or in settling their disputes in advance of trial.
See Bond v. Utreras, 585 F.3d 1061, 1075 (7th Cir. 2009). Parties “may
obtain discovery regarding any nonprivileged matter that is relevant to any
party’s claim or defense. … Relevant information need not be admissible at
the trial if the discovery appears reasonably calculated to lead to the
discovery of admissible evidence.” Fed. R. Civ. P. 26(b)(1). The burden rests
upon the objecting party to show why a particular discovery request is
improper. Kodish v. Oakbrook Terrace Fire Prot. Dist., 235 F.R.D. 447, 450
(N.D. Ill. 2006). The Court may, “for good cause, issue an order to protect a
party or person from annoyance, embarrassment, oppression, or undue
burden or expense, …” Fed. R. Civ. P. 26(c)(1).
Sandoval

served

written

discovery

seeking

information

and

responsive materials related to other instances of property damage or
injury to a person where BTT’s truck prematurely pulled away from a dock.
BTT argues that this information is not relevant because Sandoval’s
employer, D.R. Diedrich, controlled the procedure at the dock, not BTT.
According to BTT, those procedures require that drivers remain in the
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tractor while it is being loaded. Sandoval disputes this assertion, arguing
that drivers went into the building before loading to announce their arrival
and after loading to sign the billing paperwork. Moreover, Sandoval’s
expert testified about the industry standard that requires a driver to get
out of his tractor and make sure that nothing has developed underneath,
around, or inside his vehicle after the “blind time” spent in the truck while
it was being loaded.
“Other accident” evidence is “generally deemed admissible both to
prove the existence of a defect or danger in a location or a product and to
show that the defendant had notice of the defect or danger, so long as the
other accidents are ‘substantially similar’ to the accident at issue in the
litigation.” Mihailovich v. Laatsch, 359 F.3d 892, 908 (7th Cir. 2004); see
also Lobermeier v. Gen. Tel. Co. of Wis., 349 N.W.2d 466, 476 (Wis. 1984).
Evidence that other BTT drivers prematurely pulled away from docks is
relevant because it suggests a pattern or practice of unsafe loading
practices. Even if Sandoval’s employer controlled the loading procedure,
Parker and BTT still have a duty of care with respect to Sandoval. Hoida,
Inc. v. M&I Midstate Bank, 688 N.W.2d 691, 696 (Wis. Ct. App. 2004) (“In
Wisconsin, everyone owes a duty to all others to refrain from any act that
will cause foreseeable harm to others”). BTT’s attempt to deflect blame to
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D.R. Diedrich is a factual issue for trial.
Next, BTT argues that it will be subject to undue burden and
expense because Sandoval’s requests are overbroad. For example, Sandoval
requests information about accidents involving all 28 BTT terminals
located across the country; about accidents that occurred over a 25-year
time frame; and about accidents that resulted in property damage, as
opposed to personal injury. As a result, BTT argues that it will be forced to
manually search through 19,033 reports that are contained in a database
dating from September 30, 1991 through the sale of BTT in September
2013. BTT estimates that it will take approximately 3,172 hours to perform
the initial review to respond to Sandoval’s discovery request (10 minutes
per report).
In this context, the Court must “compare the hardship to the party
against whom discovery is sought, if discovery is denied.” Marrese v. Am.
Academy of Orthopaedic Surgeons, 726 F.2d 1150, 1159 (7th Cir. 1984).
BTT argues that Sandoval would be subject to minimal hardship because
he already deposed witnesses with direct knowledge of Diedrich’s
procedures at the dock and who witnessed the accident. As the Court
already explained, evidence of other accidents involving BTT trucks and
deliveries is clearly relevant to Sandoval’s claims. This would encompass
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incidents where people and things fell from a departing truck. Sandoval’s
request does not encompass other types of incidents, including on-the-road
accidents or collisions with property or persons.
As to time, BTT admits that it has a searchable database, but
argues that because the reports were drafted by different people who did
not necessarily use the same verbiage, each report must be reviewed
individually to determine whether it is responsive to Sandoval’s requests.
Counsel for the plaintiffs, however, offered to inspect the documents
themselves. Thus, based on the offer from plaintiff’s counsel, BTT would
not be subject to any burden, much less an undue burden, if it merely
accepted Sandoval’s offer to determine which documents meet the criteria
of person or property falling from a dock on departure. Therefore, BTT can
accept plaintiff’s offer or incur the expense by conducting its own review of
the records.
Finally, BTT argues that the requested documents are privileged
pursuant to the self-analysis privilege, the purpose of which is to “protect
from disclosure documents containing candid and potentially damaging
self-criticism.” Tice v. Am. Airlines, Inc., 192 F.R.D. 270, 272 (N.D. Ill.
2000). The privilege does not apply, as here, to voluntary routine safety
reviews. Dowling v. Am. Hawaii Cruises, Inc., 971 F.2d 423, 426 (9th Cir.
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1992).
NOW, THEREFORE, BASED ON THE FOREGOING, IT IS
HEREBY ORDERED THAT:
1.

Sandoval’s motion to compel [ECF No. 44] is GRANTED; and

2.

BTT’s motion for a protective order [ECF No. 45] is DENIED.

Dated at Milwaukee, Wisconsin, this 10th day of June, 2015.
BY THE COURT:
__________________________
HON. RUDOLPH T. RANDA
U.S. District Judge

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