Parker v. Bill Melton Trucking, Inc.
Parker v. Bill Melton Trucking, Inc.
2017 WL 6554139 (N.D. Tex. 2017)
February 3, 2017
Toliver, Renee Harris, United States Magistrate Judge
Summary
The court ordered Plaintiff to produce all ESI in her possession, custody, or control that was responsive to the requests. Additionally, the court awarded Melton Trucking 65 percent of its reasonable costs and fees incurred in prosecuting the motion to compel, and directed the parties to confer in an effort to reach agreement regarding the amount of attorney's fees. ESI was important in determining the amount of attorney's fees incurred in the prosecution of the motion.
Brianna PARKER, Plaintiff,
v.
BILL MELTON TRUCKING, INC., et al., Defendants
v.
BILL MELTON TRUCKING, INC., et al., Defendants
Civil Action No. 3:15-CV-2528-G-BK
United States District Court, N.D. Texas, Dallas Division
Signed February 03, 2017
Counsel
Aubrey Nick Pittman, The Pittman Law Firm PC, James Gregory Marks, Guajardo & Marks, LLP, Dallas, TX, for Plaintiff.Richard M. Mosher, Dirrell S. Jones, Chris Gabriel, Russell Lee Dennis, Thompson Coe Cousins & Irons LLP, Dallas, TX, George Christian Gabriel, Phelps Dunbar LLP, Southlake, TX, for Defendants.
Toliver, Renee Harris, United States Magistrate Judge
ORDER
*1 Pursuant to the District Judge’s Standing Order of Reference, Doc. 52, Melton Trucking’s Motion to Compel Discovery, Doc. 61, is now before the Court. For the reasons that follow, the motion is GRANTED IN PART.
I. BACKGROUND
Plaintiff filed this action in state court on April 22, 2015, asserting various claims arising from injuries allegedly sustained in a highway accident (“the Accident”) involving a Freightliner tractor-trailer. Doc. 1 at 1. After Defendants removed the case to this Court, Plaintiff amended her complaint twice. Doc. 14; Doc. 80. Plaintiff’s Second Amended Complaint alleges that her injuries were caused by the actions of both the owner and the operator of the tractor-trailer, Defendant Bill Melton Trucking, Inc. (“Melton Trucking”) and Charles Edward Thacker (“Mr. Thacker”), respectively.[1] Doc. 80 at 2-3. Specifically, Plaintiff alleges that Defendants negligently transported a load of forklifts, which struck an Interstate Highway 30 overpass, toppled onto Plaintiff’s vehicle, and injured her. Doc. 80 at 2-3. The second amended complaint alleges claims of (1) negligence, negligence per se, strict liability, and gross negligence; (2) intentional infliction of emotional distress and mental anguish; and (3) vicarious liability.[2] Doc. 80 at 4-8.
During the discovery process, Melton Trucking served on Plaintiff a variety of Requests for Admission, Requests for Production, and Interrogatories. Unsatisfied with Plaintiff’s responses and/or objections thereto, Melton Trucking now seeks an order compelling responses to each. Plaintiff has filed a response in opposition to the motion, Doc. 65, and Melton Trucking has replied, Doc. 70. Thus, the motion is now ripe for consideration.
II. LEGAL STANDARD
The Federal Rules of Civil Procedure specify the scope of discovery in all civil cases. Unless otherwise limited by the court,
[p]arties 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). A party seeking discovery may move for an order compelling the inspection or production of documents as requested. FED. R. CIV. P. 37(a)(3)(B)(iv). The party seeking to compel compliance with a discovery request has the burden to demonstrate that the material sought is relevant. Spiegelberg Mfg., Inc. v. Hancock, No. 3:07-CV-1314, 2007 WL 4258246, at *1 (N.D. Tex. Dec. 3, 2007) (Fish, J.). A party resisting discovery on the grounds that it fails the proportionality calculation bears the burden of coming forth with specific information to address the proportionality considerations outlined in Rule 26(b)(1). McKinney/Pearl Rest. Partners, L.P. v. Met. Life Ins. Co., No. 3:14-CV-2498-B, 2016 WL 98603, at *3 (N.D. Tex. Jan. 8, 2016) (Horan, J.).
III. DISCUSSION
*2 Melton Trucking seeks to compel responses to Interrogatory Nos. 6, 9, 22, and 24; Request for Production Nos. 2-5, 7-10, 13-16, 24, and 26; and Request for Admission Nos. 33, 47, and 49.[3]
A. Request for Production Nos. 3, 8, 15, and 24
Melton Trucking argues that Plaintiff did not object to RFP Nos. 3, 8, 15, and 24, and stated that she would “produce documents responsive to a reasonable reading of this request, if any, in her possession, custody or control.” Doc. 61 at 7-8; see, e.g., Doc. 61 at 30. As Plaintiff has yet to provide such documents, Melton Trucking asks that Plaintiff be compelled to amend her responses and either produce the requested documents or clarify that she does not possess responsive documents. Doc. 61 at 8. In response, Plaintiff contends this request is moot, given that she already told counsel for Melton Trucking that any responsive documents that were found have already been produced. Doc. 65 at 6.
As indicated by the letter attached to Plaintiff’s response, Plaintiff previously informed Melton Trucking that she had produced all responsive documents for any requests to which she originally responded she “would produce relevant documents, if any, in her possession, custody or control,” i.e. RFP Nos. 3, 8, 15, and 24. Doc. 65-1 at 2. Accordingly, Melton Trucking’s motion is DENIED AS MOOT with respect to RFP Nos. 3, 8, 15, and 24.
B. Request for Production Nos. 2, 4, 5, 9, 13, 14, and 16
Next, Melton Trucking, citing Heller v. City of Dallas, 303 F.R.D. 466 (N.D. Tex. 2014) (Horan, J.), asks that the Court overrule Plaintiff’s objections to RFP Nos. 2, 4, 5, 9, 13, 14, and 16. Melton Trucking argues that Plaintiff’s objection and simultaneous answer to these requests “subject to” her objections is improper under Heller. Doc. 61 at 8. Accordingly, Melton Trucking demands the production of all documents responsive to these requests. Doc. 61 at 8. Plaintiff counters that with each occurrence of the “subject to” language, she objected to some but not the entire request, and that her objections made clear what documents she agreed to produce, should they be found. Doc. 65 at 7. Because Plaintiff later informed Melton Trucking that these documents were not found, she argues that Melton Trucking’s request as to these RFPs is moot. Doc. 65 at 7.
As Melton Trucking correctly notes, the all-too-common practice of responding to an inquiry “subject to” or “subject to and without waiving objection” is confusing and disfavored. Heller, 303 F.R.D. at 486-87 (cited and quoted cases omitted). With this in mind, the Court turns to the disputed responses.
RFP No. 2 seeks “[a]ll documents created or signed by Defendants or its employees, agents or representative.” Doc. 61 at 30. Plaintiff’s responded:
Plaintiff objects to this request to the extent it would require Plaintiff to produce information that has been created or signed by Defendant’s attorneys or insurance carrier. If that is the intent of the request, this information is already in the hands of the Defendant and its counsel. Subject to these objections, Plaintiff will produce documents responsive to a reasonable reading of this request, if any, in her possession, custody or control.
*3 Doc. 61 at 30. Plaintiff’s response makes clear that she would not produce documents created or signed by Defendant’s attorneys or insurance carrier, as they are already in Melton Trucking’s possession, but would produce other responsive documents within her possession, custody, or control. Doc. 61 at 30. There is no confusion regarding the documents Plaintiff has objected to producing—those created or signed by Melton Trucking’s attorneys or insurance carrier—and which documents she has agreed to produce—all others. Heller, 303 F.R.D. at 487. Plaintiff’s objection to RFP No. 2 is SUSTAINED. Further, based on the subsequent letter from counsel for Plaintiff to counsel for Melton Trucking indicating that no other responsive documents exist, Doc. 65-1 at 2, Melton Trucking’s motion is DENIED AS MOOT with respect to RFP No. 2.
RFP No. 4 seeks:
All unprivileged documents that constitute or reflect, refer, relate to, support and/or refute any of your claims for damages, including, but not limited to: (a) All documents relating to bill or expenses allegedly incurred as a result of the incident; (b) All documents relating to or sustaining your assertion that, in reasonable probability, you will incur bills and expense in the future as a result of the incident; (c) All documents from the last 10 years relating to past or present injuries or physical, mental or emotion pain or anguish that you allegedly suffered as a result of the incident; and (d) All documents relating to any future injuries or physical, mental or emotion pain or anguish which you claim you will suffer as a result of the incident.
Doc. 61 at 30-31. Plaintiff responded:
Plaintiff objects to this request on the grounds that it is overly broad and burdensome by requesting “[a]ll documents.” Plaintiff also objects to this request to the extent it prematurely requests information that may be in the hands or control of experts or other third parties. Subject to and without waiving said objections, Plaintiff will produce unobjectionable documents, if any, responsive to a reasonable reading of this request that are relevant to the claims or defenses in this matter and reasonably calculated to lead to the discovery of admissible evidence.
Doc. 61 at 31. Here, Plaintiff’s use of the phrase “subject to” makes it difficult to determine which documents she is withholding, and which she has agreed to produce. Heller, 303 F.R.D. at 487. Moreover, Plaintiff’s bare contention that the request is broad and burdensome fails to satisfy the requisite showing. See S.E.C. v. Brady, 238 F.R.D. 429, 437 (N.D. Tex. Oct. 16, 2006) (Ramirez, J.) (citations omitted) (party asserting undue burden typically must present an affidavit or other evidentiary proof of the time or expense involved in responding to the discovery request).
For these reasons, Plaintiff’s objections to RFP No. 4 are OVERRULED. To the extent such documents exist and she has not already done so, Plaintiff is ORDERED to produce all documents in her possession, custody, or control responsive to RFP No. 4 by no later than March 6, 2017.
RFP No. 5 seeks “[a] copy of [Plaintiff’s] federal income tax returns for the past 10 years, including copies of all W-2 forms and attendant schedules.” Doc. 61 at 31. In response, Plaintiff stated: “Plaintiff objects to this request to the extent it is overly broad and seeks irrelevant information. Not waiving said objections and insisting on the same, Plaintiff will produce some of her tax return information to the extent it is relevant to the issues in this lawsuit.” Doc. 61 at 31. Here, the phrase “subject to” makes it is difficult to determine the contours of Plaintiff’s objections and exactly how many tax returns she has provided. Heller, 303 F.R.D. at 487. Thus Plaintiff’s objections to RFP No. 5 are OVERRULED. Accordingly, Melton Trucking’s motion is GRANTED with respect to RFP No. 5. To the extent such documents exist and she has not already done so, Plaintiff is ORDERED to produce all documents in her possession, custody, or control responsive to RFP No. 5 by no later than March 6, 2017.
*4 RFP No. 9 seeks “[a]ll documents that constitute, refer or relate to all drawings, maps, sketches of the scene of the accident which form the basis of this lawsuit.” Doc. 61 at 32. Plaintiff objected to this request “to the extent it seeks information protected by the attorney-client, work-product, or testifying expert privileges. Subject to these objections, Plaintiff will produce documents responsive to a reasonable reading of this request, if any, in her possession, custody or control.” Doc. 61 at 32.
Here, it is difficult to determine the contours of Plaintiff’s objections, and the extent to which she is withholding potentially responsive documents. Heller, 303 F.R.D. at 487. Additionally, Plaintiff fails to properly claim a privilege. See FED. R. CIV. P. 26(b)(5)(A) (party claiming privilege must “expressly make the claim” and “describe the nature of the documents, communications, or tangible things not produced or disclosed ... without revealing information itself privileged or protected, [so as to] enable other parties to assess the claim”).
Therefore, Melton Trucking’s motion to compel is granted as to RFP No. 9. By no later than March 6, 2017, Plaintiff shall produce all non-privileged documents responsive to RFP No. 9 and a “privilege log” meets the requirements of Rule 26(b)(5)(A) for any documents withheld on the basis of privilege. Any non-privilege objections are prospectively overruled as untimely and thus waived.
RFP No. 13 seeks “[a] copy of any unprivileged diaries, calendars, memoranda, correspondence, or other documents or tangible things in possession of the Plaintiffs [sic] memorializing or documenting the incident or damages involved in this case.” Doc. 61 at 33. RFP No. 14 seeks “[a]ll wage loss statements or other unprivileged documents reflecting wages, salary, or income loss of you [sic] due to the subject matter of this lawsuit.” Doc. 61 at 33.
Plaintiff responded identically to each: “Plaintiff objects to this request on the grounds that it is overly broad, burdensome, and harassing. Subject to and without waiving said objections, Plaintiff will produce relevant documents responsive to a reasonable reading of this request, if any, in her possession, custody or control.” Doc. 61 at 33. Once again, Plaintiff’s use of the phrase “subject to” makes it difficult to determine the contours of Plaintiff’s objections, and the extent to which she is withholding potentially responsive documents. Heller, 303 F.R.D. at 487. Additionally, Plaintiff’s bare contention that the request is broad, burdensome, and harassing is insufficient. Brady, 238 F.R.D. at 437. Thus, Plaintiff’s objections to RFP Nos. 13 and 14 are OVERRULED. To the extent such documents exist and she has not already done so, Plaintiff is ORDERED to produce all documents in her possession, custody, or control responsive to RFP Nos. 13 and 14 no later than March 6, 2017.
RFP No. 16 seeks “[a]ll documents that constitute, reflect, refer, relate to, support and/or refute your claim that the Defendant, or any of its employees, caused you to suffer any damages or injuries.” Doc. 61 at 33. Plaintiff responded:
Plaintiff objects to this request on the basis that the phrase ‘[a]ll documents that constitute, reflect, refer, relate to, support and/or refute your claim’ make it vague and/or overly broad and unduly burdensome. It also requires Plaintiff to speculate regarding the information requested by Defendant since the request does not adequately describe the specific information being sought. Plaintiff also objects to the extent it requests documents or communications protected from disclosure by the attorney-client privilege, the work-product doctrine, the consulting expert privilege, or any other applicable privilege or immunity.
*5 Subject to and without waiving said objections, Plaintiff will produce unobjectionable documents, in any, responsive to a reasonable reading of this request that are relevant to the claims or defenses in this matter and reasonable calculated to lead to the discovery of admissible evidence.
Doc. 61 at 33-34.
Again, it is difficult to determine the contours of Plaintiff’s objections, and the extent to which she is withholding potentially responsive documents. Heller, 303 F.R.D. at 487. Additionally, Plaintiff fails to properly support her contention that the request is overly broad and burdensome, or properly claim a privilege. Brady, 238 F.R.D. at 437. For these reasons, Plaintiff’s objections to RFP No. 16 are OVERRULED. To the extent such documents exist and she has not already done so, Plaintiff is ORDERED to produce all documents in her possession, custody, or control responsive to RFP No. 16, or, if necessary, a privilege log in compliance with Rule 26(b)(5)(A) by no later than March 6, 2017.
C. Request for Production No. 7
RFP No. 7 seeks “all documents furnished to any insurance company which refer or relate to the alleged injuries or damages sustained by you or the decedent as a result of the [Accident.]” Doc. 61 at 31 (emphasis added). Plaintiff objected claiming that the phrases “alleged injuries” and “decedent” rendered the request “vague and unintelligible.” Doc. 61 at 31. Melton Trucking contends that because the meaning of this request is clear, Plaintiff’s objections should be struck, and she should be compelled to provide complete responses without objection. Doc. 61 at 11.
In response, Plaintiff states that it was not clear Melton Trucking was referring to Thacker since he did not die in the Accident. Doc. 65 at 8. Additionally, Plaintiff alleges that she and Melton Trucking are both insured by Progressive Insurance (“Progressive”); moreover, Melton Trucking’s counsel in the current action has been retained by Progressive. Doc. 65 at 8. Therefore, Plaintiff maintains that Melton Trucking has—through its counsel—“unfettered access to all documents furnished” to Progressive. Doc. 65 at 8.
The Court finds Plaintiff’s responses unpersuasive. Thus, to the extent she has not already done so, Plaintiff is ORDERED to produce all documents in her possession, custody, or control responsive to RFP No. 7 by no later than March 6, 2017.
D. Request for Production No. 26 & Interrogatory No. 24
RFP No. 26 and Interrogatory No. 24 seeks information related to Plaintiff’s cell phone usage at the time of the accident. Specifically, RFP No. 26 seeks copies of Plaintiff’s cell phone records, including all text, voice, and data usage on the date of the Accident, Doc. 61 at 36; and Interrogatory No. 24 seeks information about any phones in Plaintiff’s car during the accident, including names of the provider, telephone number, and account number, Doc. 61 at 50. Plaintiff objected, stating that both requests constitute a harassing fishing expedition that seeks personal, confidential, and irrelevant information. Doc. 61 at 36, 50.
Melton Trucking argues that the request is relevant to the question of contributory negligence, as such records could show whether Plaintiff was distracted by her phone at the time of the Accident. Doc. 61 at 9. Plaintiff argues that this request is an unwarranted fishing expedition because (1) there is no evidence that she was distracted or contributed to the collision, and (2) she has testified that she was not on her phone during the Accident. Doc. 65 at 4. Upon review, the Court finds a portion of the requested information discoverable. Melton Trucking’s motion focuses on the relevance of RFP No. 26, but fails to explain why it needs the provider, phone number, and account number of cell phones in the car at the time of the accident requested in Interrogatory No. 24. Still, the records sought in RFP No. 26, which are limited in nature, are relevant to the issue of contributory negligence. However, Melton Trucking fails to state why data usage records from the whole day of the accident are needed to determine whether Plaintiff was distracted at one moment.
*6 For the foregoing reasons, the motion to compel is DENIED as to Interrogatory No. 24 and GRANTED as to RFP No. 26, as modified to limit the request to those records for the period beginning one hour before the Accident and ending one hour after the Accident. See, e.g., Coleman & Cherokee Ins. Co. v. Reed, No. CIV-15-1014-M, 2016 WL 4523915, at *2 (W.D. Okla. Aug. 22, 2016) (where party requested cell phone usage records for three-day period to determine if driver was, inter alia, distracted, court limited discovery of such records to the “one hour time period immediately before and during the accident”). Plaintiff is ORDERED to produce the responsive records by no later than March 6, 2017.
E. Interrogatory No. 6
Interrogatory No. 6 seeks the names, addresses, and telephone numbers of “all doctors or other practitioners of healing arts” that Plaintiff has seen for treatment for the ten years prior to the Accident. Doc. 61 at 45. Plaintiff objected on the grounds that the request sought personal, confidential, and irrelevant information. Doc. 61 at 45. Melton Trucking argues that because Plaintiff claims she suffered and continues to suffer personal injuries, her physical, emotional, and mental state both before and after the Accident are relevant to issues in this action. Doc. 61 at 10. In response, Plaintiff contends that this request impinges on her privacy, and is unnecessary since she has already provided her complete medical history and treatment related to the collision, as well as information regarding a facial scar she received in 1994. Doc. 65 at 3.
To the extent Plaintiff objects to release of such information on privacy grounds, such complaints are unavailing as it was she who put her medical condition at issue. See Cummins v. Lollar, No. 4:12-CV-560-Y, 2015 WL 12731746, at *2 (N.D. Tex. Jan. 5, 2015) (Cureton, J.) (“[T]he Court concludes that Defendants are entitled to seek medical information relating to Consequently, she has waived any privilege to which she may other[wise] have been entitled as to her privacy interests in her medical records.”) (citation omitted). Conversely, Melton Trucking fails to explain why it needs the names of every individual who treated Plaintiff ten years ago. Accordingly, the Court concludes that only a portion of the information sought is relevant. Thus, Melton Trucking’s motion to compel is GRANTED IN PART as to Interrogatory No. 6.
Accordingly, to the extent she has not already done so, Plaintiff is ORDERED to answer Interrogatory No. 6, limited to individuals who treated Plaintiff from May 22, 2008 (five years before the accident) to the present, and only to the extent those individuals treated Plaintiff for physical or mental injuries and conditions Plaintiff alleges she suffered as a result of the Accident, or for previous, similar injuries as those Plaintiff claims she suffered as a result of the Accident. See id. (finding that any preexisting causes of a plaintiff’s health issues could be “sufficiently evaluated by examination of her medical records from five years prior to the date of the alleged injuries”).
F. Interrogatory No. 9
Interrogatory. No. 9 asks Plaintiff to describe her activities for the 24-hour period leading up to the Accident, including witnesses to any of these activities. Doc. 61 at 46. Plaintiff objected on the grounds that the request was overly broad; a fishing expedition; and seeks personal, confidential, and irrelevant information. Doc. 61 at 46. Plaintiff argues that such information is relevant to causation issues and will allow it to determine whether she engaged in activities that may have caused her to be distracted and/or caused or contributed to the injuries or damages she now claims. Doc. 61 at 9-10. In response, Plaintiff states she already told Melton Trucking at her deposition where she was coming from and going to when the Accident occurred. Doc. 65 at 4. Plaintiff further avers that no one has suggested she caused the load of forklifts to crash down on her automobile, and that Melton Trucking fails to demonstrate that this information is material, relevant, and necessary. Doc. 65 at 4.
*7 The Court finds that this sufficiently-limited inquiry into Plaintiff’s activities in the hours leading up to the Accident is relevant to determine whether other factors contributed the Accident and/or the injuries she claims. Thus, Plaintiff is ORDERED to respond fully to Interrogatory No. 9 by no later than March 6, 2017.
G. Interrogatory No. 22 & Request for Admission Nos. 47-49
Interrogatory No. 22 and RFA Nos. 47-49 seek information related to Plaintiff’s social media accounts. Interrogatory No. 22 asks Plaintiff to “[i]dentify all public social media websites and/or online internet forums on which [she is] a registered user and/or [has] been a registered user in the past (10) years, including in [her] answer each ... registered usernames for each applicable website.” Doc. 61 at 50. RFA Nos. 47-49 instruct Plaintiff to “Admit or Deny that [she has] a [Facebook, Myspace, or Twitter] profile.” Doc. 61 at 63-64. Plaintiff objected to each request on the grounds that they were a harassing fishing expedition that sought personal, confidential, and irrelevant information. Doc. 61 at 50, 63-64.
Melton Trucking argues that “the content of the Plaintiff’s social networking sites, if any, [is] relevant to both the liability and damages claimed in the case.” Doc. 61 at 11. For example, “often the photographs and posts shared on social media platforms are excellent indicators of the Plaintiff’s physical and mental state both before and after an accident.” Doc. 61 at 15. Furthermore, Melton Trucking maintains that social media information is neither private, nor confidential. Doc. 61 at 15. The Court agrees with Melton Trucking.
Generally, social media content is neither protected nor privileged and is discoverable. Gondola v. USMD PPM, LLC., No. 3:15-CV-411-M, 2016 WL 3031852, at *13 (N.D. Tex. May 27, 2016) (Horan, J.) (citing Johnson v. PPI Tech. Servs., L.P., No. 11-2773, 2013 WL 4508128, at *1 (E.D. La. Aug. 22, 2013)); Moore v. Wayne Smith Trucking Inc., No. Civ. A. 14-1919, 2015 WL 6438913, at *2 (E.D. La. Oct. 22, 2015). Such access nevertheless should be limited. “A party is no more entitled to such “unfettered access” to an opponent's social networking communications than it is to “rummage through the desk drawers and closets” in his opponent’s home.” Moore, 2015 WL 6438913, at *2 (quoting Ogden v. All-State Career Sch., No. 2:13cv406, 2014 WL 1646934, at *1 (W.D. Pa. Apr. 23, 2014)).
Melton Trucking is not seeking “unfettered access,” nor is it seeking any content whatsoever. Moreover, the request is limited to “public social media websites and/or online internet forums.” Doc. 61 at 50 (emphasis added). Accordingly, Plaintiff’s objections are OVERRULED. Plaintiff is ORDEREDto respond to Melton Trucking’s Interrogatory No. 22 and RFA Nos. 47-49 by no later than March 6, 2017.
H. Request for Admission No. 33
RFA No. 33 asks Plaintiff to admit or deny whether she has been gainfully employed since the Accident. Doc. 61 at 61. Plaintiff objected, stating that the vagueness of the term “gainfully employed” prevented her from admitting or denying the request. Doc. 61 at 61. Melton Trucking contends that this objection should be overruled, as the term “gainfully employed” is not vague.[4] Doc. 61 at 14-15. In response, Plaintiff states that the term is vague because—as she explained in her deposition—she is unable to obtain “the type of employment and speaking opportunities that she would have were it not for the collision.” Doc. 65 at 9.
*8 Despite Plaintiff’s argument, the Court does not find the term “gainfully employed” to be so vague that it prohibits response. See also Keycorp. v.Holland, No. 3:16-CV-1948-D, 2016 WL 6277813, at *13 (N.D. Tex. Oct. 26, 2016) (Horan, J.) (overruling respondent’s vagueness objections where they did not “reflect that she made an effort to attribute ordinary definitions to the terms and phrases utilized, to include any reasonable definition of the term or phrase at issue to clarify her answers, or attempted to obtain clarification prior to objecting on this ground”) (citing Heller, 303 F.R.D. at 491-92).
Accordingly, Plaintiff’s vagueness objection is OVERRULED. Given the relevancy of the information, Plaintiff is ORDERED, to the extent she has not already done so, admit or deny RFA No. 33 by no later than March 6, 2017.
IV. ATTORNEY'S FEES
Each party seeks attorney’s fees and costs related to bringing and defending this motion, pursuant to FED. R. CIV. P. 37(a)(5). See Doc. 61 at 16; Doc. 65 at 10. Plaintiff alleges that Melton Trucking’s counsel failed to conference before bringing what it refers to as a “meritless motion.” Doc. 65 at 1. Melton Trucking contends, and attaches records in support, that it made repeated attempts to resolve this discovery dispute before filing the motion sub judice. Doc. 70 at 2-3. Where, as here, a party’s motion to compel is granted in part and denied in part, “the court ... may, after giving the opportunity to be heard, apportion the reasonable expenses for the motion.” FED. R. CIV. P. 37(a)(5)(C). Upon review, given the relative merits of each parties' arguments for and against the motion, the Court concludes that Plaintiff’s positions were mostly untenable. Accordingly, Melton Truck is awarded 65 percent of its reasonable costs and fees incurred in prosecuting the motion to compel.
To that end, the parties are DIRECTED to confer in an effort to reach agreement regarding the amount of attorney’s fees. If the parties are unable to reach agreement within 21 days of the date of this Order, Melton Trucking is DIRECTED to file documentation of the attorney’s fees incurred in the prosecution of her motion to compel, with sufficient detail to permit the Court to evaluate the reasonableness of the fees claimed through the lodestar method. Plaintiff may file a response to the same no later than 14 days following Melton Trucking’s submission. Both submissions may be filed under seal.
SO ORDERED on February 3, 2017.
Footnotes
Plaintiff’s Second Amended Complaint names Frankie Thacker as a defendant to represent the estate of the now-deceased Mr. Thacker. Doc. 80 at 1. For purposes of this motion, “Defendants” refers to Mr. Thacker and Melton Trucking.
Beyond its inclusion in the list of discovery requests it seeks, Melton Trucking fails to discuss or advance arguments in support of RFP No. 10. Accordingly, Plaintiff’s motion is DENIEDwith respect to RFP No. 10. Spiegelberg Mfg., 2007 WL 4258246, at *1.
In its motion, Melton Trucking notes that Merriam-Webster defines “gainfully employed” as “provided with a job that pays wages or salary.” Doc. 61 at 15. As such, the Court notes that a meaningful conference between the parties should have resolved the issue.