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J.S.H., A Minor Child and Sole Heir of Steven Hornung, Deceased, By v. Ben E. Keith Company and Hartford Fire Insurance Company

April 19, 2013

J.S.H., A MINOR CHILD AND SOLE HEIR OF STEVEN HORNUNG, DECEASED, BY AND THROUGH HER NATURAL PARENT AND LEGAL GUARDIAN, NELDA E. FLORES, PLAINTIFF,
v.
BEN E. KEITH COMPANY AND HARTFORD FIRE INSURANCE COMPANY, DEFENDANTS,



The opinion of the court was delivered by: Karen M. Humphreys United States Magistrate Judge

MEMORANDUM AND ORDER

This matter is before the court on plaintiff's motion to compel complete responses to various production requests. (Doc. 44). For the reasons set forth below, the motion shall be GRANTED IN PART and DENIED IN PART.

Background

The genesis of this case is a two-vehicle collision that killed the drivers of both vehicles. Highly summarized, Steven Hornung, father of J.S.H., was driving his pickup truck westbound on Highway US-50 near Wright, Kansas on July 9, 2010. Raul De La Torre, an employee of the Ben E. Keith Company ("Keith"), was driving a tractor-trailer eastbound on Highway US-50 at the same time. Plaintiff alleges that Mr. De La Torre negligently drove his tractor/trailer across the center line and collided with Mr. Hornung's truck. Plaintiff contends that Keith is vicariously liable for the negligence of Mr. De La Torre and directly liable for its own negligence in failing to comply with the Federal Motor Carrier Safety Act and Regulations.

Plaintiff's Motion to Compel (Doc. 44)

Plaintiff served defendants with a set of production requests and defendants provided responses and supplemental responses. As explained in greater detail below, plaintiff moves for an order overruling defendants' objections based on privilege and relevance and seeks production of additional documents. The issues are addressed in the order in which the parties have categorized the disputed documents.

Daily Log Reports

Plaintiff requested the daily log reports showing the hours Mr. De La Torre was on and off duty for the six-month period before the accident. (Production Request Nos. 3a, 5, 8, and 44). Keith produced the log reports for the one-week period prior to the accident but objected to producing log reports for the entire six month period, arguing the request was overly board as to time and scope and sought irrelevant information. Plaintiff contends that the six-month period is relevant because the daily logs may demonstrate that Mr. De La Torre was too exhausted and too tired to be driving safely.

The court agrees that the request for six months of daily log reports is overly broad, given the needs of this case and plaintiff's relevance explanation. The one-week period immediately before the accident is sufficient to show Mr. De La Torre's on-duty/off-duty status and whether he was likely exhausted on the day of the accident. Plaintiff's motion to compel a six-month period of time for Mr. De La Torre's daily log reports shall be DENIED.

Prior Violations of Federal Motor Carrier Safety Regulations (FMCSR)

Plaintiff served Keith with a request for production of all documents related to violations of the FMCSR or State Motor Carrier Safety Regulations by Keith or Mr. De La Torre on or before July 9, 2010. (Production Request No. 19). Keith objected that the request was overly broad as to time and scope. Notwithstanding this objection, Keith represented that it would supplement its response to "Request No. 19 for a reasonable time period."

Plaintiff asserts that no documents have been produced and moves to compel. Plaintiff suggests that a five-year period before the accident is a reasonable period of time for information concerning this discovery request. Keith opposes the motion, arguing for the first time that the information is irrelevant, inadmissible, overly broad and "not tailored to the facts in this case."

As noted above, Keith represented in its original response to the production request that it would produce documents responsive to Production Request No. 19 "for a reasonable time period." Keith is bound by this representation and the court rejects the trucking company's assertion of new objections in its response brief. With respect to the issue of a reasonable scope of time for this request, the court concludes that two years prior to the accident is a reasonable period of time, given the nature of this case and the parties' claims and defenses. Accordingly, plaintiff's motion to compel ...


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