Defending Excessive Discovery in Trucking Accident Litigation: The Best Defense is a Good Offense

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1 I suggest the following simple ten ways to avoid malpractice TRANSPORTATION in litigation: February 2014 IN THIS ISSUE Curtis L. Ott and James E. Brogdon, III discuss several strategies to utilize when defending against excessive and burdensome discovery requests from plaintiffs in truck accident litigation. Defending Excessive Discovery in Trucking Accident Litigation: The Best Defense is a Good Offense ABOUT THE AUTHORS Curtis L. Ott earned his law degree, cum laude, from Boston University and his B.A. degree from Davidson College. Curtis has more than 20 years of litigation experience including commercial, transportation, product liability and commercial cases. He has taken 75 cases to verdict in state and federal courts as well as briefed and argued before the South Carolina Supreme Court and the South Carolina Court of Appeals. Curtis is the President of the South Carolina Defense Trial Attorneys Association. He practices with the complex litigation and appellate teams at Gallivan, White & Boyd, P.A., in Columbia, South Carolina. He can be reached at James E. Brogdon, III earned his law degree, cum laude, from the University of South Carolina School of Law and his B.A. degree from Clemson University. James has four years litigation experience including personal injury, trucking, construction defects, fire losses, business disputes and commercial practice. James has tried multiple personal injury cases to verdict and handled countless party and expert depositions as well as mediations. He practices with Gallivan, White & Boyd, P.A., in Columbia, South Carolina. He can be reached at ABOUT THE COMMITTEE This IADC Committee was formed to combine practices of aviation, rail, maritime with trucking together to serve all members who are involved in the defense of transportation including aviation companies (including air carriers and aviation manufacturers), maritime companies (including offshore energy exploration and production), railroad litigation (including accidents and employee claims) and motor carriers and trucking insurance companies for personal injury claims, property damage claims and cargo claims. The Committee is dedicated to taking advantage of networking and referral opportunities as well as providing substantive knowledge to our members. Learn more about the Committee at To contribute a newsletter article, contact: Dennis Woods Vice Chair of Publications and Newsletters Scheer & Zehnder LLP (206) The serves a distinguished, invitation-only membership of corporate and insurance defense lawyers. The IADC dedicates itself to enhancing the development of skills, professionalism and camaraderie in the practice of law in order to serve and benefit the civil justice system, the legal profession, society and our members.

2 - 2 Our law firm is defending a case with the discovery posture described above, and unfortunately, this scenario is becoming more common. Indeed, it appears these excessive discovery requests are cut and pasted from a form generated and circulated by the plaintiffs bar. This article discusses several strategies to consider when defending against these abusive discovery tactics. You arrive at your office early one morning and open an containing a new state court lawsuit against one of your clients. The case is captioned Ciley Myrus v. Rocky Rhoad and Wrecking Ball Trucking Co. A review of the Complaint reveals the Plaintiff Myrus alleges the truck driver, Rhoad, negligently caused the accident while in the course of his employment, thereby making the trucking company, Wrecking Ball, vicariously liable. Myrus also alleges a boilerplate cause of action against Wrecking Ball for negligently hiring, training, supervising and entrusting the tractor to Rhoad. So far, it appears to be a fairly typical new assignment. However, as you continue through the file materials you notice Mryus served multiple discovery requests with her complaint. These include a subpoena to Wrecking Ball demanding production of documents described in twenty-five (25) separate categories; fifty-four (54) interrogatories, including sub-parts, and sixty-one (61) requests for production to Wrecking Ball; and an additional 56 interrogatories and 33 requests for production to Rhoad. Myrus requests hazardous materials certifications and training materials although hazardous materials were not being transported. She also seeks every document related to every accident Wrecking Ball, which employs hundreds of drivers, has ever had. Finally, Myrus served Wrecking Ball with a corporate deposition notice requiring production of documents in forty-five (45) different categories and requesting Wrecking Ball designate a representative to testify concerning twenty-two (22) separate topics. Because you enjoy responding to discovery as much as getting poked in the eye with a sharp instrument, you cringe at the prospect of sifting through and answering this discovery. A. BEAT YOUR OPPONENT TO THE PUNCH Often these voluminous requests cover many topics that are unrelated to the underlying accident. The predicament is trying to limit the discovery topics early in a case when the plaintiff is relying on the broad allegations of her complaint, especially regarding the negligence count directly against the company, to justify the fishing expedition. Initially, if you successfully remove your case to federal court, be mindful that a party s discovery requests will not be permitted before the initial scheduling conference pursuant to the Federal Rules of Civil Procedure. See Fed. R. Civ. P. 26(d)(1) and 26(f). Therefore, be prepared to serve your discovery requests immediately after the Rule 26(f) conference. If your case remains in state court, a good strategy right out of the gate is to file your responsive pleading quickly, and with it serve your discovery requests to the plaintiff. These initial requests should attempt to flesh out the particulars of negligence against the driver as well as the bases for the various negligence claims against the company. By quickly serving your discovery requests to the plaintiff, you may establish the deadline for your opponent s discovery responses before your deadline. 1 Armed with a plaintiff s discovery 1 Many state procedural rules extend the time for a defendant to answer written discovery that a plaintiff serves with the complaint. See, e.g., Rules 33(a) and

3 - 3 answers, which likely will include minimal factual support for the additional causes of action pled against the company, you can frame meaningful objections in response to a plaintiff s discovery requests. These objections may include relevancy and that a specific interrogatory is not reasonably calculated to lead to the discovery of admissible evidence. This timing sequence also provides beneficial factual and legal support for a motion for a protective order or defending against a motion to compel. B. PROCEDURAL LIMITS ON DISCOVERY interrogatories and Wrecking Ball with fiftyfour (54) interrogatories, she is forced to seek court approval under Federal Rule 33. Not only should you immediately go on the offensive by promptly serving an answer and discovery requests, but you should also utilize the procedural rules which place limits on a party s discovery requests. For example, Federal Rule of Civil Procedure 33 limits the number of interrogatories a party may serve to twenty-five (25), including all discrete subparts. It is wise to closely analyze whether one listed interrogatory contains subparts that may count as a separate interrogatory as [p]arties cannot evade this presumptive limitation through the device of joining as subparts questions that seek information about discrete separate subjects. Fed. R. Civ. P. 33 advisory committee note (1993); see also, e.g., Collaboration Props., Inc. v. Polycom, Inc., 224 F.R.D. 473, 475 (N.D. Cal. 2004) (holding that a single interrogatory that requested information regarding twenty-six products constituted twenty-six discrete subparts). If Myrus wishes to serve Rhoad with fifty-six (56) 34(b), South Carolina Rules of Civil Procedure ( SCRCP ) (answers to interrogatories and requests for production due within thirty days of service, but extended to forty-five days if served on the defendant with the complaint). Many state procedural rules employ similar limitations. For example, in South Carolina a party is limited to fifty (50) interrogatories, including all subparts, in cases where the amount in controversy is not less than $25,000. In matters where the amount in controversy is less than $25,000, parties are only permitted to use standard interrogatories delineated in Rule 33. See Rule 33(b), SCRCP. As under the Federal Rule, if a party wishes to serve more than the allowed number of interrogatories, it must seek court approval. Id. Likewise, the rules specify the discovery methods available against parties and nonparties. The subpoena requesting documents served on your client, Wrecking Ball, is improper because a subpoena issued pursuant to Rule 45 of the Federal Rules of Civil Procedure is a discovery method to seek information from non-parties. Rule 26 of the Federal Rules of Civil Procedure outlines the methods of discovery to a party and does not include a subpoena. Again, state procedural rules have similar provisions. See, e.g. Rule 26(a), SCRCP. C. MOTION TO LIMIT DISCOVERY UNDER FEDERAL RULE 26(b)(2) If, after conferring with opposing counsel, a plaintiff remains unwilling to limit the types of discovery requests to a more reasonable number or otherwise tailor the requests to the specific issues relevant to the litigation, Federal Rule 26 provides the vehicle to seek relief from the court. See Fed. R. Civ. P. 26. In addition to the procedural limits on discovery, subsection (b) of Federal Rule 26 mandates the court, upon motion or on its

4 - 4 own, to limit the frequency or extent of discovery otherwise allowed by the rules if it determines: (i) the discovery sought is unreasonably cumulative or duplicative, or can be obtained from some other source that is more convenient, less burdensome, or less expensive, (ii) the party seeking the discovery has had ample opportunity to obtain the information by discovery in the action; or (iii) the burden or expense of the proposed discovery outweighs its likely benefit.... Fed. R. Civ. P. 26(b)(2)(C). In the factual scenario provided above, much of the information sought from Rhoad and Wrecking Ball, especially through Myrus s duplicative discovery methods, should be prohibited by Federal Rule 26(b). When in federal court, Federal Rule 26(b)(2)(C) is a powerful tool that can be used to thwart an overzealous plaintiff s attempt to submerse you in duplicative, unduly burdensome and overreaching discovery requests like those of Myrus. See, e.g. Behler v. Hanlon, 199 F.R.D. 553, 561 (D. Md. 2001) (finding the scope of information sought by the plaintiff was overkill and thus properly limited pursuant to Rule 26(b)(2) or Rule 26(c)); see also Rogers v. U.S. Navy, 223 F.R.D. 533, 536 (S.D. Cal. 2004) ( Because Plaintiff does not persuasively explain the need to learn Dr. Schwab's private financial information, the scope of inquiry is properly limited pursuant to Rule 26(b)(2)(iii) and Rule 26(c). ). Unfortunately, many states have yet to follow suit and add the prohibitive language that was incorporated into the Federal Rules by amendment in Interestingly, the proposed amendments to Federal Rule 26(b) move the factors listed in 26(b)(2)(C)(i)- (iii) to the scope of allowable discovery under subsection 26(b)(1). This change would effectively switch the burden to the party serving the discovery requests to show the information sought was in accord with Federal Rule 26(b)(1) as opposed to having the D. MOTION FOR PROTECTIVE ORDER In addition to the above limits on discovery, subsection (c) of Federal Rule 26 provides another procedural option for a litigant seeking protection from excessive discovery requests. Federal Rule 26(c) allows a court for good cause to issue an order to protect a person or party from annoyance, embarrassment, oppression, or undue burden or expense[.] Fed. R. Civ. P. 26(c). The Rule goes on to address ways a court may provide protection to a party, including forbidding the discovery, limiting the scope of discovery and disclosure, and prescribing an alternative discovery method to obtain the discovery, to name a few. Most states have a procedural rule in effect that essentially mirrors that of Federal Rule 26(c). See, e.g. Rule 26(c), SCRCP. To warrant protection under Federal Rule 26(c), a party must first show good cause for the protection sought from the court. For good cause to exist, the party seeking protection bears the burden of showing specific prejudice or harm will result if no protective order is granted. Phillips ex rel. Estates of Byrd v. Gen. Motors Corp., 307 F.3d 1206, (9th Cir. 2002) (citing Beckman Indus., Inc. v. Int l Ins. Co., 966 F.2d 470, 476 (9th Cir. 1992) (holding that broad allegations of harm, unsubstantiated by specific examples or articulated reasoning, do not satisfy the Rule 26(c) test )); see also San Jose Mercury News, Inc. v. U.S. Dist. Court N. Dist. (San Jose), 187 F.3d 1096, 1102 (9th Cir. 1999) (holding that to gain a protective order the party must make particularized showing of good cause with respect to any individual document ). party being served with the requests having to seek relief under current Federal Rule 26(b)(2)(C)(i)-(iii).

5 - 5 drivers. See S. 865, 120th Leg., 2d. Sess. E. LEGISLATION (S.C. 2014). South Carolina is in the minority of states that allows these direct actions Of course, the final line of defense against against the company, even when the company abusive discovery tactics is to seek changes in admits the driver was acting in the course and protection through lobbying and legislation. scope of employment and the company would Admittedly, it is a more general approach and be vicariously responsible for any negligence likely will not help you against Myrus and her proven against the driver. See, e.g., James v. myriad of discovery. Nevertheless, seeking Kelly, 661 S.E.2d 329 (S.C. 2008). This bill legislative action now could help save you would operate to limit superfluous and valuable time in future litigation, for prejudicial evidence that could be introduced inevitably the same discovery issues will against the company beyond that which is arise. For instance, recent proposed related to the driver s conduct during the amendments to the Federal Rules of Civil subject accident. Although the Procedure seek to limit the number of aforementioned amendments and bill have not depositions to five (5), the number of been passed to date, it is encouraging that the interrogatories to fifteen (15) and the number legislative and judicial communities around of requests to admit to twenty-five (25). See the nation are recognizing and reacting to the Report of the Advisory Committee on Civil concerns arising from excessive discovery. Rules, Fed R. Civ. P. 26 (proposed May 8, 2013). F. CONCLUSION Likewise, monitor your local jurisdictions for potential legislation. In South Carolina, for example, the South Carolina Trucking Association, Inc. is supporting a proposed bill captioned the CDL Employment Protection Act. This bill seeks to limit the exposure trucking companies face regarding direct negligence actions against the company, specifically the direct claims related to a company s retention and supervision of its To thwart plaintiffs efforts to drown you and your clients in unnecessary and improper discovery requests, you must have a good understanding of your options. As you can see, existing federal and state procedural rules provide avenues of recourse. However, to use the rules most effectively, you must immediately go on the offensive, because remember, the best defense is a good offense.

6 - 6 PAST COMMITTEE NEWSLETTERS Visit the Committee s newsletter archive online at to read other articles published by the Committee. Prior articles include: DECEMBER 2013 Complete Operations--Loading and Unloading: When is the Beginning the Beginning? Jay Barry Harris and Lee Applebaum NOVEMBER 2013 Workers Compensation Bar of Action Applies in Cases of Personal Injury and Death Governed by Canadian Maritime Law A. William Moreira and Scott R. Campbell AUGUST 2013 Admissibility of FMCSA s Compliance, Safety, Accountability (CSA) Ted L. Perryman and Jennifer A. Wood MAY 2013 The Locomotive Video Stars in Successful Motion for Summary Judgment Tim Daniels MARCH 2013 Driving Logs: Can Deficiencies Expose Motor Carriers and Their Drivers to Criminal and Civil Liability? Mary Anne Mellow and Natalie J. Kussart FEBRUARY DOUBLE ISSUE The MCS-90 Endorsement: Protecting the Public from Motor Carrier Negligence in the Absence of Insurance Coverage David M. Wilson and Drew Feeley Keep on Trucking- Deceit, Speculation and Discovery Abuse Result in Exclusion, Sanctions and Dismissal Michael H. Gladstone and J. Matthew Haynes, Jr. NOVEMBER 2012 So You Think You ll Be Sued A Practical Checklist To Help Navigate The E-Discovery Labyrinth Richard M. Dunn and Mary Teresa Soltis

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