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Giegerich v. National Beef Packing Co., LLC

United States District Court, Tenth Circuit

January 9, 2014

SHAWN GIEGERICH, Plaintiff,
v.
NATIONAL BEEF PACKING COMPANY, LLC, Defendant.

MEMORANDUM AND ORDER

KAREN M. HUMPHREYS United States Magistrate Judge

This matter is before the court on two motions: (1) plaintiff’s motion to compel responses to his document requests (Doc. 33), and (2) defendant’s motion to compel responses to discovery and for an order permitting ex parte communications with plaintiff’s healthcare providers (Doc. 35). For the reasons set forth below, plaintiff’s motion shall be GRANTED IN PART and DENIED IN PART and defendant’s motion shall be GRANTED.

Background[1]

In January 2012, while he was employed as an over-the-road truck driver, plaintiff was injured when he picked up a trailer at defendant’s Liberal, Kansas facility. Plaintiff claims the muddy and uneven surface on which the trailer was located, combined with the tightly parked location of the trailers, caused the trailer to jerk and strike him in the head.

As a result of the head injury, plaintiff claims serious permanent and progressive injuries to his head and neck. Based on these injuries, plaintiff seeks recovery for pain and suffering, past and future medical expenses, lost income, and diminished enjoyment of life.

Plaintiff’s Motion to Compel Discovery Responses (Doc. 33)

Plaintiff’s motion seeks to compel defendant’s responses to plaintiff’s First Request for Production of Documents. Counsel both agree that the requirements of D. Kan. Rule 37.2 have been met and that Request Nos. 9 and 20 remain at issue.

Request No. 9 seeks all time records for the date of plaintiff’s injury, to reflect which employees might have been present. Defendant objects, arguing that the request is unduly burdensome and seeks confidential information about its employees. Defendant also objects on the basis of relevance.

Defendant explains that the “loaded ready line” (“line”), the area of defendant’s facility where plaintiff’s injury occurred, is the only location plaintiff could have accessed. The line is situated so that employees working in other areas of the facility can neither access the line nor see it from other locations. Defendant argues that the time records for all employees working in other areas are not reasonably calculated to lead to the discovery of admissible evidence. Additionally, defendant asserts that it does not keep time records for all employees, but rather keeps only time records for its hourly employees. Without waiving its objection, defendant identified four individuals who were working on the line on the date of plaintiff’s injury, and provided the names and contact information for each individual. Defendant also provided a time sheet which reflected its hourly employees and/or agents working on the line on the date in question.

Plaintiff argues that discoverable information should be interpreted broadly and that the request is narrowly tailored to one date and one location. He asserts that the information is reasonably calculated to lead to admissible evidence and also is essential because the condition of the trailer staging area is directly at issue.

Plaintiff’s argument is contained in a single paragraph, and barely meets his burden to show facial relevance.[2] The burden then shifts to defendant to specifically demonstrate how the request is not reasonably calculated to lead to the discovery of admissible evidence.[3] To meet that burden, defendant provided affidavits explaining the segregated nature of the line. Defendant also produced the time records of those employees working on the line, as well as the names and last known addresses of the four agents who were assigned to the line at the time of plaintiff’s injury. Plaintiff did not respond to that information in a reply or acknowledge in his motion that the information had been produced. Defendant has met its burden to dispute relevance and plaintiff’s motion regarding Request No. 9 is therefore DENIED.

Request No. 20 seeks copies of all incident reports involving injuries in defendant’s trailer staging area for the three years preceding plaintiff’s injury. Defendant objected but produced the only incident report in its possession.

Plaintiff’s sole complaint is that the names of the reporting employee and the injured party were redacted from the incident report. Defendant later provided a copy which reveals the reporting employee’s name so that the only remaining redaction is the name of the injured party. Defendant argues that this person should not be identified because the report discusses the third-party’s medical condition and that person has not consented to disclosure. Defendant also asserts that the incident report contains sufficient facts for the court to determine that the incident was not “substantially similar” to plaintiff’s accident, so that the incident report is not relevant because it is not admissible.

Defendant misstates the standard for discovery. Discoverable information need not be admissible but only likely to lead to admissible evidence.[4] Although defendant asserts that there is nothing in the incident report to suggest whether or not the condition of the line contributed to that accident, there are not enough facts supplied to make a conclusion. In addition, any privacy concerns can be addressed by making such disclosure subject ...


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