This case arises out of a commercial motor vehicle accident that occurred on November 11, 2017. On December 23, 2020, the trial Court granted summary judgment in favor of Defendants Western Express and Mr. Anthony on all claims except for negligence. (ECF No. 139). In the present Motion, Plaintiffs move the Court to Order Defendants to comply with the following:

(ECF No. 127, at 1–2).

In response, Defendants generally argue the documents are irrelevant to the remaining claims, or that they are not in possession, custody, or control of the documents.[1] (ECF No. 143).

Under Rule 26 of the Federal Rules of Civil Procedure, parties to a lawsuit “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.” Fed. R. Civ. P. 26(b)(1). After the 2015 amendments to Rule 26 the scope of discovery is no longer defined by any information that is “reasonably calculated to lead to admissible evidence.” Brandt v. Von Honnecke, No. 15-CV-02785-RM-NYW, 2018 WL 510277, at *3 (D. Col. Jan 3, 2018). The applicable test now consists of two parts: whether the discovery sought is relevant to any party's claim or defense, and whether the requested discovery is proportional to the needs of the case. Id.; Fed. R. Civ. P. 26(b)(1).

*2 Relevant evidence is defined as “evidence having any tendency to make the existence of any fact that is of consequence to the determination of the action more or less probable than it would be without the evidence.” Brandt, 2018 WL 510277 at * 3; Fed. R. Evid. 401. Further, the burden of “addressing all proportionality considerations” is not on the party seeking discovery, rather, the burden to prove disproportionality remains with the party resisting discovery. See Fed. R. Civ. P. 26 (advisory committee notes to the 2015 amendments); Nat'l R.R. Passenger Corp. et al v. Cimarron Crossing Feeders, et al, 16-cv-1094-JTM-TJJ, 2017 WL 4770702, at *4 (D. Kan. Oct. 19, 2017) (discussing the change from the 2015 amendments was to restore “proportionality to the definition of the scope of discovery.”).

The district court has broad discretion over the control of discovery. Cummings v. Gen. Motors Corp., 365 F.3d 944, 952 (10th Cir. 2004). “The purpose of this rule is to allow broad discovery of relevant information, even if that information is not admissible at trial.” Hedquist v. Patterson, 215 F. Supp. 3D 1237, 1243 (D. Wyo. 2016). Broad discovery is not unlimited however, and a court has considerable discretion to balance the rights of both the plaintiff and defendant. Gomez v. Martin Marietta Corp., 50 F.3d 1511, 1520 (10th Cir. 1995); Fed. R. Civ. P. 37(a). “[A] party's right to obtain discovery of ‘any matter, not privileged, that is relevant to the claim or defense of a party,’ ... may be constrained where the court determines that the desired discovery is unreasonable or unduly burdensome given the needs of the case, the importance of the issues at stake in the litigation, and the importance of the proposed discovery in resolving the issues.” Simpson v. Univ. of Colo., 220 F.R.D. 354, 356 (D. Colo., 2004) (internal citations omitted).

If a party fails to provide documents through proper discovery, a non-responsive party may move to compel production under Rule 37. See Lane v. Page, 727 F. Supp. 2d 1214, 1236 n.15 (D. N.M. 2010). Rule 37(a)(3)(B) provides: “A party seeking discovery may move for an order compelling an answer, designation, production, or inspection. This motion may be made if ... (iii) a party fails to answer an interrogatory submitted under Rule 33; or (iv) a party fails to produce documents ... as requested under Rule 34.” Fed. R. Civ. P. 37(a)(3)(B). In short, Rule 37(a) provides an enforcement mechanism for Rule 33 and 34 and allows a party to move a court to compel a response in situations where the opposing party has failed to respond to an interrogatory or request for production. Landry v. Swire Oilfield Servs., L.L.C., 323 F.R.D. 360, 383 (D. N.M. 2018). Evasive or incomplete responses, answers, or disclosures are to be treated as a failure to respond, answer, or disclose. Id. (internal citations omitted). Rule 37 vests broad discretion with the trial court. Woodworker's Supply, Inc. v. Principal Mutual Life Insurance Co., 170 F.3d 985, 993 (10th Cir. 1999).

The purpose of discovery is to “remove surprise from trial preparation so the parties can obtain evidence necessary to evaluate and resolve their dispute.” U.S. ex rel. Schwartz v. TRW, Inc., 211 F.R.D. 388, 392 (C.D. Cal. 2002). A trial court has broad discretion with respect to discovery and a reviewing court will not set aside a trial court's decision unless it abused its discretion. Shaklee Corp. v. Gunnel, 748 F.2d 548, 550 (10th Cir. 1984).

Plaintiffs seek to compel five different categories of documents. Each of Plaintiffs' requests will be addressed in turn.

(1) To remove all redactions to the cell phone records produced by Adrian Anthony

*3 Plaintiffs seek Mr. Anthony's fully redacted “cellular and telephone records and bills for the day of the incident and the month prior and the month after incident.” (ECF No. 127, RFP No. 11). Plaintiffs argue the records are relevant to “(1) demonstrating the frequency with which he called Western Express dispatch before and after the day of collision, (2) to test the truth of his testimony that he never uses his cell phone while driving, (3) to determine his pattern of using his cell phone while driving, (4) to determine whether calls to and from Western Express dispatch is a usual, or unusual event, (5) to review his post-accident calls relating to the events at issue, (6) to issues relating to negligent hiring, training, supervision and retention.” (ECF No. 127, at 10). In response, Defendants argue the cell phone records are not relevant to the remaining claim in the case. Additionally, Defendants argue Plaintiffs' reasoning runs afoul of Federal Rule of Evidence 404(b).

The sole remaining issue is whether Mr. Anthony was negligent on the day of the accident, November 11, 2017. Cell phone records from November 11, 2017 are relevant to determine if Mr. Anthony's cell phone use played a role in the accident. However, Plaintiffs' request for his cell phone records the month prior to and the month following the accident is overbroad. The only records relevant to the remaining claim of negligence would be any calls that occurred around the time of the accident. A pattern of Mr. Anthony's cell phone usage before or after the accident has nothing to do with whether he was negligent on November 11, 2017. See also Fed. R. Evid. 404(b). Further, Plaintiffs' claims of negligent hiring, training, supervision and retention have been dismissed. Thus, Defendant shall provide unredacted cellular and telephone records and bills for November 11, 2017 only through the time of the accident.

(2) To produce Western Express' phone records for the telephone numbers called by Adrian Anthony the day of and following the collision, November 11 & 12, 2017, and in the alternative if not available, to require Western Express to provide the carrier identity for all the requested numbers and authorize Plaintiff to subpoena the missing records.

Plaintiffs request Western Express phone records for telephone numbers called by Defendant the day of and following the collision, or, in the alternative, to produce carrier identity and allow Plaintiffs to subpoena the records. Defendants have informed Plaintiffs the records do not exist because they were destroyed when a tornado destroyed the company's headquarters in Nashville, Tennessee. Defendant also explains they do not object to Plaintiffs' counsel subpoenaing the records from the carrier.[2]

In its reply, Plaintiff states the Court does not need to address the redacted records from before the collision. (ECF. No. 151, at 4). However, Plaintiff asserts they need the carrier identity for each of the questioned numbers in order to subpoena the records. Additionally, Plaintiff wants to know if the records are “available at another location, on other media, scanned, or that the post-collision SWAT team did not collect that information or that the information is not in possession of their internal claims management personnel, outside claims manager, or their counsel.” Id.

Here, Western Express phone records for the numbers Mr. Anthony called leading up to the accident on November 11, 2017 are relevant. However, the request for Western Express phone records for the numbers Mr. Anthony called following the accident is overbroad. Defendant shall provide the name of the carrier to Plaintiffs so they can subpoena the records for the time frame leading up to the accident on November 11, 2017 only. In the alternative (even though Defendants have represented the records do not exist), to the extent there is any other source within their control and custody, Defendants shall disclose the records to Plaintiffs.

(3) To identify all persons receiving photographs taken by Mr. Anthony immediately following the collision and to produce the native text messages and/or emails to or from those individuals together with attachments.

*4 Plaintiffs request the identity of the persons receiving photographs taken at the accident by Mr. Anthony. Plaintiffs assert this is relevant to identify the person and the times transmissions were sent and received by Western Express employees.

Here, Defendants have represented to Plaintiffs they cannot identify who received the photographs or exchanged messages with Defendant. (ECF No. 143) (“[a]ll of this has been fully addressed during the course of discovery and was further elaborated upon by Mr. Easterday, while under oath, as Western Express' Rule 30(b)(6) representative. Exhibit A at pp. 28:25-35:7, 82:13-87:2, 118:1-120:4, 171:10-174:18, 177:2-182:3.”). Additionally, the identities of the persons receiving this information is not relevant nor proportional following the dismissal of the claims for punitive damages and direct negligence against Western Express. Thus, this request is denied.

(4) To provide the name of all persons Western Express employees that interviewed Adrian Anthony, and to produce their notes of those interviews conducted at or near the time of the collision date of November 11, 2017

Defendants have advised Plaintiffs' counsel that no Western Express employee interviewed Mr. Anthony following the collision. Thus, this request is denied.

(5) To produce all electronic records which identify all Western Express employees who open, read or sent Qualcomm messages to or from Adrian Anthony the morning of the collision date of November 11, 2017. And, to provide the data showing when the emails were opened and sent, as applicable.

Plaintiff requests the identity of who exchanged Qualcomm messages with Mr. Anthony the morning of the accident, as well as when the messages were opened and sent. Defendant represents this data was purged within six months of the accident, based on Western Express' standard operating procedures. This information is relevant for the morning of November 11, 2017 through the accident. Thus, to the extent there is any other source within Defendants' control and custody, Defendant shall disclose the records to Plaintiff.

NOW, THEREFORE, IT IS ORDERED Plaintiffs' Motions to Compel numbers (1) and (2) are DENIED in part and GRANTED in part.

IT IS FURTHER ORDERED Plaintiffs' Motion to Compel number (5) is GRANTED.

IT IS FURTHER ORDERED Plaintiffs' Motion to Compel numbers (3) and (4) are DENIED.

IT IS FURTHER ORDERED Defendants shall proceed as outlined in this Order. If Defendants cannot produce the requested information or documentation, they shall certify no such information exists or certify the documents or information did exist but have been lost, withheld, or destroyed. Defendants shall comply with this Order no later than March 1, 2021.

Dated this 18th day of February, 2021.

Considering the recent trial date extension in this matter, the Court declines to address Defendants' argument that Plaintiffs' Motion is untimely.

The Court notes Plaintiffs have issued subpoenas to obtain call detail records for various telephone numbers from AT&T Wireless, and Shoretel, Inc. (ECF No. 155). The Court further notes the time frames requested in the subpoenas exceed the time frames requested to Defendants.