United States District Court,

D. Nebraska.

Phillip PETRONE, et al., Plaintiffs,

v.

WERNER ENTERPRISES, INC., d/b/a Werner Trucking, and Drivers Management, LLC, Defendants.

 

No. 8:11CV401.

Jan. 11, 2013.

 

Justin L. Swidler, Richard S. Swartz, Swartz, Swidler Law Firm, Cherry Hill, NJ, for Plaintiffs.

 

Elizabeth A. Culhane, Joseph E. Jones, Patrick J. Barrett, Fraser, Stryker Law Firm, Omaha, NE, for Defendants.

 

MEMORANDUM AND ORDER

LYLE E. STROM, Senior District Judge.

*1 This matter is before the Court on plaintiffs’ motion to compel discovery (Filing No. 79).

 

I. Background

Student drivers in defendants’ (“Werner”) training program communicate their status using coded messages over a “Qualcomm” system that connects the driver in the vehicle to Werner’s home office. Werner then uses a computer program to calculate compensation based on the coded entries made by the student drivers. Plaintiffs seek the “source code” and a “forensic copy” of the computer program. In addition, plaintiffs request “all e-mails, memorandums, notes, and other documents which discuss actual or proposed policies and practices of Defendants which related to the compensability of rest breaks, sleeping time, and time designated ‘off duty’ for purposes of DOT regulations.”

 

Defendants’ original responses refused production primarily on the basis that discovery on class certification issues had closed before the request was made. The Court subsequently consolidated the FLSA case with the state-law case and reopened discovery on class certification issues for the state-law claim with a new deadline of May 7, 2013 (Filing Nos. 83 and 104). In their brief opposing the motion to compel, defendants assert that the words “source code” and “forensic copy” are vague and ambiguous. In addition, defendants argue that any information relating to the computer program that calculates compensation is irrelevant because defendants have already produced their payroll policies. Defendants also claim some of the documents requested have already been produced or are privileged. In the alternative, defendants request a protective order to limit the publication of their proprietary software.

 

II. Legal Standard

Rule 26(b) states that “[p]arties may obtain discovery regarding any nonprivileged matter that is relevant to any party’s claim or defense.” Fed.R.Civ.P. 26(b)(1). The Court is directed to limit discovery where

 

(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 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, considering the needs of the case, the amount in controversy, the parties’ resources, the importance of the issues at stake in the action, and the importance of the discovery in resolving the issues.

 

Fed.R.Civ.P. 26(b)(2)(C). The Rule places additional limits on the production of electronically stored information, which would include the computer program at issue here, where there is a showing that the information is not reasonably accessible because of undue burden or cost. Fed.R.Civ.P. 26(b)(2)(B).

 

III. Analysis

A. Computer Program

Defendants assert that the terms “source code” and “forensic copy” are ambiguous. Defendants interpret these requests to be seeking “information about the computer program that Werner uses to process student drivers’ paychecks and how Werner identifies through that program the student driver’s compensable time.” Brief in Opposition, Filing No. 100, 4–5. Defendants also argue such information is irrelevant in light of the written compensation policies already produced. Though plaintiffs have not taken the opportunity to brief an opposition to these arguments or suggest a definition of “source code” or “forensic copy,” defendants’ “interpretation” appears to the Court to be precisely what plaintiffs are seeking. It is also highly relevant to proving the allegations in the amended complaint. Plaintiffs have alleged a systematic calculation of compensation by the defendants’ computer program in a way that is inconsistent with the written policies that defendants have provided. Consulting the written compensation policies will not reveal whether plaintiffs’ compensation was calculated correctly by the software program. The only way to confirm such an allegation is to review the workings of the computer program itself and compare the calculated compensation to Werner’s policies and the requirements of the relevant wage and hour laws.

 

*2 Aside from concerns over the protection of proprietary information, the Court has not been presented with any arguments that the production of the programs would be unduly costly or burdensome or that any of the limitations of Rule 26(b)(2)(C) apply to the requested discovery. A useable copy of the software and a copy of the un-compiled source code in the programing language which the program was written are relevant and must be produced. A protective order is appropriate and will be issued by the Court upon submission of a proposed order prepared by the parties.

 

B. Documents Discussing Pay Policies

Defendants point out that plaintiffs have previously made a substantially similar request for production of documents. Defendants contend that they have “already produced all documents responsive to this request and Werner has no additional documents that are responsive to this request.” Plaintiffs have failed to identify any specific documents that they contend are responsive but which defendants have refused to produce. In the absence of a dispute over a specific document, any further order by the Court is inappropriate at this time.

 

Defendants have also claimed that some of these documents are privileged. Plaintiffs’ motion suggests that a privilege log in conformance with Rule 26(b)(5) has not been provided. This Court has joined other district courts in assuming privilege for attorney-client communications that transpire after the initiation of litigation in situations where the plaintiff is requesting extensive discovery. Prism Technologies, LLC v. Adobe Sys., Inc., 8:10CV220, 2011 WL 5523389, *2 (D.Neb. Nov. 14, 2011) (quoting PaineWebber Group, Inc. v. Zinsmeyer Trusts Partnership, 187 F.3d 988, 992 (8th Cir.1999)). The Court sees no reason to depart from that assumption in this case. However, this does not relieve defendants of their remaining burden. To the extent that responsive documents have not been produced on the basis of privilege, a privilege log must be provided to plaintiffs so that any dispute about the scope or appropriateness of the privilege asserted can be reviewed and, if necessary, contested.

 

IT IS ORDERED:

 

1) The parties shall meet and confer regarding a proposed protective order. The parties shall submit the proposed protective order to the Court no later than February 4, 2013.

 

2) No later than 10 days after the issuance of a protective order by the Court, defendants must produce a useable copy of the software program used to calculate compensation from driver log entries and a copy of the code that was compiled to create the usable software program.

 

3) Defendants shall produce a privilege log covering all materials that they refuse to produce on the grounds of attorney client privilege or work product privilege if defendants would otherwise be required to produce such materials. The log may exclude attorney-client communications following the initiation of this litigation.

United States District Court,

M.D. Alabama,

Southern Division.

Sergey KHUDIN, Plaintiff,

v.

DJ MOVING SERVICES, INC., Defendant.

 

No. 1:12–CV–32–WKW.

Jan. 15, 2013.

 

Douglas Brett Turnbull, Kirby D. Farris, Farris, Riley & Pitt, L.L.P., Birmingham, AL, for Plaintiff.

 

Bethany Lynn Bolger, Alan Thomas Hargrove, Jr., John Evans Bailey, Rushton, Stakely, Johnston & Garrett, P.A., Montgomery, AL, for Defendant.

 

MEMORANDUM OPINION AND ORDER

W. KEITH WATKINS, Chief Judge.

*1 This dispute arose when an employee of Defendant DJ Moving Services, Inc. (“DJM”), dropped a crate on Plaintiff Sergey Khudin. The matter comes before the court on DJM’s motion for summary judgment (Doc. # 15), which has been fully briefed.

 

I. JURISDICTION AND VENUE

Subject matter jurisdiction exists under 28 U.S.C. § 1332. Personal jurisdiction and venue are uncontested.

 

II. FACTUAL AND PROCEDURAL BACKGROUND

There are 2,736 miles of highway between Portland, Oregon, and Dothan, Alabama, and Mr. Khudin, owner of his own transportation business, had just driven them all when he arrived at DJM’s facility with a shipment of moving crates. Before he could get back on the road, Mr. Khudin needed to take care of the paperwork. But when Mr. Khudin got out of his truck and went to see about getting his bill of lading signed, the forklift driver who was offloading the trailer accidentally dropped a moving crate on him.

 

The accident left Mr. Khudin with a compound fracture of his left leg, lost wages, and medical bills. To recover for his injuries, he sued DJM on a theory of respondeat superior. (The forklift driver is not a party to this action.) The matter comes before the court on DJM’s motion for summary judgment.

 

III. STANDARD OF REVIEW

Summary judgment should be granted only “if the pleadings, the discovery and disclosure materials on file, and any affidavits show that there is no genuine issue as to any material fact and that the movant is entitled to judgment as a matter of law.” Fed.R.Civ.P. 56(c). Under Rule 56, the moving party “always bears the initial responsibility of informing the district court of the basis for its motion.” Celotex Corp. v. Catrett, 477 U.S. 317, 323 (1986). The movant can meet this burden by presenting evidence showing there is no genuine issue of material fact, or by showing that the nonmovant has failed to present evidence in support of some element of its case on which it bears the ultimate burden of proof. Id. at 322–24. “[T]he court must view all evidence and make all reasonable inferences in favor of the [nonmovant].” Haves v. City of Miami, 52 F.3d 918, 921 (11th Cir.1995).

 

Once the moving party has met its burden, “an opposing party may not rely merely on allegations or denials in its own pleading; rather, its response must—by affidavits or as otherwise provided in this rule—set out specific facts showing a genuine issue for trial.” Rule 56(e)(2). To avoid summary judgment, the nonmovant “must do more than simply show that there is some metaphysical doubt as to the material facts.” Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 586 (1986). A genuine factual dispute exists if “a reasonable jury could return a verdict for the non-moving party.”   Damon v. Fleming Supermarkets of Fla., Inc., 196 F.3d 1354, 1358 (11th Cir.1999) (internal quotation marks and citation omitted).

 

IV. DISCUSSION

Because Mr. Khudin has abandoned his claim for wantonness (see Doc. # 19, at 2), the only remaining question is whether DJM is entitled to summary judgment on negligence, specifically on the issue of Mr. Khudin’s alleged contributory negligence as a matter of law.

 

*2 Summary judgment is not warranted, however, because genuine issues of material fact preclude a finding that DJM is entitled to judgment as a matter of law. For instance, although DJM contends the forklift driver’s conduct was not negligent, it is undisputed that he lost control of the crate and dropped it on Mr. Khudin. The forklift driver says the crate fell in the “blink of an eye” (Doc. # 16, at 4), but Mr. Khudin’s evidence suggests there may have been time to lower the forks and prevent the accident (Doc. # 19, at 7–8.) The forklift driver also admits he had time to give three oral warnings as the crate fell, yelling “get back, get back, get back.” (Doc. # 19, at 15.) A reasonable jury might find the forklift driver’s failure to lower the crate in time was unavoidable. Or it might conclude he could have prevented the accident by exercising due care by lowering the crate as DJM employees were trained to do. (Doc. # 19, at 8.)

 

Further, although DJM argues Mr. Khudin’s own negligence contributed to his injuries, a reasonable jury could find otherwise. It is undisputed that Mr. Khudin was standing outside of the forklift’s path and several feet away from the trailer (exactly how far is unclear) when the accident occurred. (Doc. # 16, at 4.) This is not a case of a plaintiff who walked knowingly into the path of a forklift driving in reverse. See Lafarge N. Am., Inc. v. Nord, 86 So.3d 326 (Ala.2011). Instead, there is evidence that Mr. Khudin attempted to stay out of harm’s way. Nor did Mr. Khudin place himself in the path of the forklift; he was injured by the falling cargo, not by the forklift itself. A reasonable jury could find Mr. Khudin’s efforts met his duty to exercise due care.

 

V. CONCLUSION

It is therefore ORDERED that Defendant’s motion for summary judgment is GRANTED on Plaintiff’s claim for wantonness and DENIED on the claim for negligence.