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Leeper v. A.J. Lines, Inc.

United States District Court, N.D. Indiana, Hammond Division

November 9, 2016

ASHLEE K. LEEPER, Plaintiff,
v.
A.J. LINES, INC, BALTIC FREIGHT CORP., and ABINET E. KEBEDE, Defendants.

          OPINION AND ORDER

          PAUL R. CHERRY, UNITED STATES DISTRICT COURT MAGISTRATE JUDGE

         This matter is before the Court on a Motion to Compel [DE 45], filed by Plaintiff Ashlee K. Leeper on August 23, 2016. Defendants A.J. Lines, Inc., Baltic Freight Corp., and AbinetE. Kebede filed a response on August 31, 2016. Plaintiff filed a reply on September 16, 2016.

         In the Motion, Plaintiff seeks to compel answers to written discovery requests, the deposition of Defendant Kebede, and a privilege log. Plaintiff also seeks $10, 000 in sanctions. Defendants oppose the Motion and request an award of reasonable expenses under Federal Rule of Civil Procedure 37.

         ANALYSIS

         Federal Rule of Civil Procedure 26(b) provides:

Unless otherwise limited by court order, the scope of discovery is as follows: Parties 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 importance of the issues at stake in the action, the amount in controversy, the parties' relative access to relevant information, the parties' resources, the importance of the discovery in resolving the issues, and whether the burden or expense of the proposed discovery outweighs its likely benefit. Information within this scope of discovery need not be admissible in evidence to be discoverable.

Fed. R. Civ. P. 26(b)(1). Federal Rule of Civil Procedure 37 provides that a "party may move for an order compelling disclosure or discovery." Fed.R.Civ.P. 37(a)(1).

         As a preliminary matter, Defendants argue that the motion should be denied because the instant motion does not comply with Northern District of Indiana Local Rule 37-l(a). This Local Rule provides:

A party filing any discovery motion must file a separate certification that the party has conferred in good faith or attempted to confer with other affected parties in an effort to resolve the matter raised in the motion without court action. The certification must include:
(1) the date, time, and place of any conference or attempted conference; and
(2) the names of the parties participating in the conference.

         N.D. Ind. L.R. 37-l(a). Defendants argue that Plaintiff has failed to identify any conference between the parties. However, Plaintiff submitted the following certification:

Pursuant to F.R.C.P. 37(a)(1) and N.D. Ind. L.R. 37-1 the parties have conferred in good faith in an effort to resolve the matter raised in plaintiffs Motion to Compel. Specifically, on August 10, 2016, plaintiffs attorney, Timothy S. Schafer, sent a letter to defense counsel, James Milstone, attempting to resolve the discovery dispute. On August 17, 2016 defense counsel responded making it clear he has no intention of disclosing most of the requested information/documents without an order from this Court.

(Mot. Compel, 6, ECF No. 45). Defendants' certification of this correspondence is sufficient to comply with Local Rule 37-1. Defendants' argument regarding Federal Rule of Civil Procedure 37 conferral in the context of Plaintiff s request to compel the deposition of Defendant Kebede will be discussed later.

         A. Written Discovery

         The Court first addresses Plaintiffs request to compel answers and responses to interrogatories and requests for production.

         Interrogatories to A.J. Lines, Inc. (in this section hereinafter referred to as "Defendant")

INTERROGATORY NO. 5[1]: Please state who the person listed in Interrogatory No. 4 above was employed by on August 8, 2015[, ] and describe in detail his position, the nature and scope of his activities the day of the accident, and include the scheduled working hours for August 7, 2015[, ] and August 8, 2015.
ANSWER: Objection. This request is overly broad and unduly burdensome. Subject to and without waiving these objections, Defendant states: Abinet Kebede was employed by A.J. Lines as a driver/operator. Defendant will supplement this response when/if responsive information is located.
Plaintiffs assertion of deficiency[2]: Failed to describe his activities the day of the crash and failed to provide the working hours for August 7, 2015[, ] and August 8, 2015.
Defendant's conferral response[3]: See Response and Objections. This request is overbroad and unduly burdensome in that it calls for the daily activities of Abinet Kebede the day of the accident. This question is better suited to a deposition. Furthermore, when/if additional information is received regarding his working hours on the requested dates we will supplement the response.

         Defendant has obj ected to the interrogatory as to the request for the Kebede's daily activities. Plaintiff does not offer any argument why the Court should overrule the objection. The Court will not make arguments on Plaintiff s behalf. The Court denies the motion as to the daily activities. This denial is due to the lack of argument presented by Plaintiff and not on the merits of Defendant's objection.

         As to Kebede's working hours, the Court cannot compel Defendant to provide information that it does not have, and Defendant has indicated that it will supplement its response as soon as it has additional information. The motion is denied as to the working hours.

INTERROGATORY NO. 8: Please state the name, address, and employer of each and every person known to you or your representatives who claims to have any knowledge of the circumstances surrounding the trip and scheduled deliveries ending with the accident of August 8, 2015.
ANSWER: Objection. This request is overly broad and unduly burdensome. Subject to and without waiving these objections, Defendant states: driver, Abinet Kebede[, ] and dispatcher, Giedre Parang who is an employee of AJ Lines, and possibly another employee may have information. Each may be reached through undersigned counsel. Defendants will supplement this information as it becomes available.
Plaintiffs assertion of deficiency: Please provide the name of the individual described as, "another employee." Defendant's conferral response: See Response and Objections. We do not have any information to identify this individual at this time, but we are working to obtain/locate the information regarding the additional individual who may have the information requested. We will supplement our response as soon as we have additional information.

         Defendant represents that it has provided all of the information it has regarding "another employee." Plaintiff has not given the Court any reason to believe that Defendant is being dishonest about its knowledge. The Court cannot compel Defendant to provide information that it does not have, and Defendant has indicated that it will supplement its response as soon as it has additional information. Plaintiffs request to compel this information is denied.

INTERROGATORY NO. 10: At the time of the incident in question was there an insurance policy, primary, excess, or "umbrella" coverage in effect that covered the Defendants, the tractor-trailer in question, state for each policy such particulars as the name, address, telephone number of the insurer(s), the names and addresses of the insured(s), the policy number, the effective dates, the nature of the coverage, the limits of liability, including coverage for one or more than one person, and the name and address of the custodian(s) of the policies at the present time.
ANSWER: Objection. This request is overly broad and unduly burdensome. This request is outside the scope of discovery as defined in Fed. R. Civ. Proc. 26 and is not reasonably calculated to lead to admissible evidence.[4] Subject to and without waiving these objections, Defendant states: See initial disclosures and prior responses.
Plaintiffs assertion of deficiency: Your prior initial disclosures and responses were not under oath (see initial disclosures and prior responses) and are inadequate and Plaintiff specifically requests that they fully answer the interrogatory under oath listing the insurers, insureds, policy numbers, limits of liability and other information requested in said interrogatory.
Defendant's conferral response: See Response and Objections. This request calls for information which is beyond the scope of discovery. See enclosed policy previously made available in Defendants' initial disclosures. See Fed. R. Civ. Proc. 26(a)(iv) for inspection and copying as under Rule 24, any insurance agreement under which an insurance business may be liable to satisfy all or part of a possible judgment in the action or to indemnify or reimburse for payments made to satisfy the judgment. We enclosed a copy of the policy at issue.

         Defendant has objected to this interrogatory, but Defendant has also provided information in the form of directing Plaintiff to Defendant's initial disclosures and prior responses. Plaintiff has not provided the Court with any reason to overrule Defendant's objections. Therefore, the request to compel Defendant to provide information not provided in the initial disclosures or prior responses is denied. However, to the extent Plaintiff requests that Defendant provide an answer under oath regarding the information provided, the motion is granted because Defendant has provided this information and has not presented the Court with any argument that, contrary to Plaintiffs asserted deficiency, Defendant should not be required to provide its partial answer under oath as required by Rule 33(b)(3).

INTERROGATORY NO. 11: Please state name, address and telephone number of any insurance company that was given notification of the August 8, 2015 accident.
ANSWER: Objection. This request is overly broad and unduly burdensome. This request is outside the scope of discovery as defined in Fed. R. Civ. Proc. 26 and is not reasonably calculated to lead to admissible evidence.
Plaintiffs assertion of deficiency: Defendant has failed to answer said interrogatory [, ] and we specifically request that the defendant answer under oath the name, address and telephone number of any insurance company that was given notice of the August 8, 2015 accident. (Including but not limited to, any notice by the defendant, defendant's representative or it's attorney).
Defendant's conferral response: See Response and Objections. This request calls for information which is beyond the scope of discovery.

         Defendant has objected and offered three bases for its objection. Plaintiff does not offer any argument why the Court should overrule the objection. The Court will not make arguments on Plaintiffs behalf. The Court denies the motion as to this request. This denial is due to the lack of argument presented by Plaintiff and not on the merits of Defendant's objection.

INTERROGATORY NO. 13: Please state the full and correct name of the Defendant's business entity, the exact nature of the entity, the date of the formation, the state in which it is incorporated (if incorporated), the exact location of the business entity, the major business of the business entity, the type and nature of the business performed, the names and addresses of all officers, directors, and partners, and the date the business entity was authorized to do business in the State of Indiana.
ANSWER: Objection. This request is overly broad and unduly burdensome. Subject to and without waiving these objections, Defendant states: See Corporation File Detail.
Plaintiffs assertion of deficiency: Defendant has failed to answer the interrogatory properly. "See corporation file detail" is inadequate and plaintiff requests] the defendant answer the interrogatory under oath.
Defendant's conferral response: See Response and Objections. This request was responded to by providing the information printed from the State's public website for the corporation. In addition, it is publically accessible and Plaintiff has equal or greater access to the information.

         Defendant has objected to this interrogatory as overly broad and unduly burdensome but Defendant has also provided information in the form of the Corporation File Detail. Plaintiff has not provided the Court with any reason to overrule Defendant's objections. Therefore, the request to compel Defendant to provide information not provided in the Corporation File Detail is denied.

         However, to the extent Plaintiff requests that Defendant provide an answer under oath regarding the information contained in the Corporation File Detail, the motion is granted because Defendant has provided this information and has not presented the Court with any argument that, contrary to Plaintiff s asserted deficiency, Defendant should not be required to provide its partial answer under oath as required by Rule 33(b)(3).

INTERROGATORY NO. 14: Please list all assets owned by defendant, A.J. Lines, Inc.
ANSWER: Objection. This request is vague, overly broad, unduly burdensome and unlikely to lead to the discovery of relevant or admissible evidence.
Plaintiffs assertion of deficiency: Defendant have [sic] failed to respond to the interrogator[y].
Defendant's conferral response: See Objections. As discussed with the Judge at the pre-trial conference, the financial status of the business is not discoverable.

         Defendant has objected and offered four bases for its objection. Defendant offered an additional basis in its conferral response. Plaintiff does not offer any argument why the Court should overrule the objection. The Court will not make arguments on Plaintiff s behalf. The Court denies the motion as to this request. This denial is due to the lack of argument presented by Plaintiff and not on the merits of Defendant's objection.

INTERROGATORY NO. 15: Please list the gross income (revenue) derived from all operations of defendant, A.J. Lines, Inc., for each year for the last five (5) years.
ANSWER: Objection. This request is vague, overly broad, unduly burdensome and unlikely to lead to the discovery of relevant or admissible evidence.
Plaintiffs assertion of deficiency: Defendant have [sic] failed to respond to the interrogator[y].
Defendant's conferral response: See Objections. As discussed with the Judge at the pre-trial conference, the financial status of the business is not discoverable.

         Defendant has objected and offered four bases for its objection. Defendant offered an additional basis in its conferral response. Plaintiff does not offer any argument why the Court should overrule the objection. The Court will not make arguments on Plaintiffs behalf. The Court denies the motion as to this request. This denial is due to the lack of argument presented by Plaintiff and not on the merits of Defendant's objection.

INTERROGATORY NO. 16: Please list the net profit derived from all operations of defendant, A.J. Lines, Inc. For each year for the last five (5) years.
ANSWER: Objection. This request is vague, overly broad, unduly burdensome and unlikely to lead to the discovery of relevant or admissible evidence.
Plaintiffs assertion of deficiency: Defendant have [sic] failed to respond to the interrogatory].
Defendant's conferral response: See Objections. As discussed with the Judge at the pre-trial conference, the financial status of the business is not discoverable.

         Defendant has objected and offered four bases for its objection. Defendant offered an additional basis in its conferral response. Plaintiff does not offer any argument why the Court should overrule the objection. The Court will not make arguments on Plaintiff s behalf. The Court denies the motion as to this request. This denial is due to the lack of argument presented by Plaintiff and not on the merits of Defendant's objection.

INTERROGATORY NO. 17: Please list the value of defendant ] A.J. Lines, Inc., total assets for each year for the last five (5) years and current total net worth or business valuation.
ANSWER: Objection. This request is vague, overly broad, unduly burdensome and unlikely to lead to the discovery of relevant or admissible evidence.
Plaintiffs assertion of deficiency: Defendant have [sic] failed to respond to the interrogator[y].
Defendant's conferral response: See Objections. As discussed with the Judge at the pre-trial conference, the financial status of the business is not discoverable.

         Defendant has objected and offered four bases for its objection. Defendant offered an additional basis in its conferral response. Plaintiff does not offer any argument why the Court should overrule the objection. The Court will not make arguments on Plaintiffs behalf. The Court denies the motion as to this request. This denial is due to the lack of argument presented by Plaintiff and not on the merits of Defendant's objection.

INTERROGATORY NO. 21: What, if any, load was contained in the semi-tractor trailer operated by the driver identified in Interrogatory No. 4 above, immediately prior to and at the time of the incident in question and state the name, address and telephone number of the broker and/or shipper of the load.
ANSWER: It is believed that the load contained furniture. Defendant will supplement this request when/if information becomes available.
Plaintiffs assertion of deficiency: Defendant has failed to answer interrogatory and plaintiff requests] they be provided the name, address, telephone number of broker and shipper of the load, and specifically describe the load as well as provide the bill of lading.
Defendant's conferral response: See Response. We provided what we have. See carrier agreement and spot contract.

         Defendant represents that it has provided all of the information it has regarding this request. Plaintiff has not given the Court any reason to believe that Defendant is being dishonest about its knowledge. The Court cannot compel Defendant to provide information that it does not have, and Defendant has indicated that it will supplement its response as soon as it has additional information. Further, Defendant directs Plaintiff to the carrier agreement and spot contract, and Plaintiff makes no argument that this production of the documents in lieu of a descriptive answer is inadequate. Plaintiffs request to compel this information is denied.

INTERROGATORY NO. 23: Please describe, in detail, what the driver did beginning on August 7, 2015 [, ] up to and including the accident on August 8, 2015 [, ] at approximately 2:19 a.m.[, ] where his trip originated from, time and date trip began, was the trailer loaded with goods, describe the load, name and address of shipper, location of each deliver, name and address of the company that received delivery, time and date of delivery, location of the delivery, last stop prior to accident and where was the intended destination, stating name and address of location.
ANSWER: Objection. This request is vague, overly broad, unduly burdensome and unlikely to lead to the discovery of relevant or admissible evidence. Subject to and without waiving these objections; It is believed that the log books and bill of lading was taken out of the vehicle by law enforcement and has not yet been returned. See attached Spot Contract and Shipping Details. Defendant will supplement this response when/if additional information becomes available.
Plaintiffs assertion of deficiency: The defendant has completely failed to respond to the interrogatory.
Defendant's conferral response: See Response and Objections. We have provided the spot contract and shipping details in response to this request.

         Plaintiff states that Defendant has "completely failed to respond" to this interrogatory. Defendant's answer, however, presented an objection, a statement that some of the information was not available, and directed Plaintiff to documents. Plaintiffs asserted deficiency does not address Defendant's objection nor does it accurately describe Defendant's answer to the interrogatory. For these reasons, and without making any determination as to the adequacy of Defendant's answer or the merits of Defendant's objection, the motion is denied as to this interrogatory.

INTERROGATORY NO. 27: Describe any contract, document or agreement under which the parties operated the date of the accident, August 8, 2015 (including but not limited to any agreement with a broker, trip lease, or permanent lease).
ANSWERS [sic]: Objection. This request is vague, overly broad, unduly burdensome and unlikely to lead to the discovery of relevant or admissible evidence. Subject to and without waiving these objections; It is believed that there was a broker and carrier agreement. Defendant will supplement this response when/if additional information becomes available.
Plaintiffs assertion of deficiency: The defendant has failed to answer interrogatory describing the contract or document under which the parties operated on the day of the accident, August 8, 2015[, ] including the date of the contract and the parties to the contract. This is not a request for production but an interrogatory which plaintiffs are [sic] entitled an answer to.
Defendant's conferral response: See Response. See enclosed Lease Agreement. The lease agreement with A J Lines has already been provided to Plaintiffs' [sic] counsel.

         Plaintiff has specified that she finds the Defendant's answer deficient because Defendant directs her to documents instead of providing an answer. Plaintiffs discovery request here is an interrogatory and not a request for production. Defendant has objected to the interrogatory, but it has also provided a lease agreement. Plaintiff did not ask for the documents; she asked for a description of them. The motion is granted as to Plaintiffs request for a description of the lease agreement and any other responsive contract, document, or agreement that is not covered by Defendant's objection. The motion is denied as to any contract, document, or agreement covered by Defendant's objection. This denial is due to Plaintiff s failure to argue that the objection should be overruled and not due to the merits of the objection.

INTERROGATORY NO. 28: Describe any contract, document or agreement (oral or written) between the defendants herein and any broker or shipper of goods carried in the truck involved in the accident, in existence on August 8, 2015 (including any trip lease or permanent lease).
ANSWERS [sic]: Objection. This request is vague, overly broad, unduly burdensome and unlikely to lead to the discovery of relevant or admissible evidence. Subject to and without waiving these objections; It is believed that the bill of lading was taken out of the vehicle by law enforcement and has not yet been returned. Defendant will ...

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