Thursday, October 3, 2013

Truckers and Sex Trafficking



Just what happens at those truck stops? Are there really prostitutes knocking on the doors of truck cabs? Do truck drivers encourage trafficking or prevent it?


How serious is the problem?
 
 
Last year the American Trucking Association announced plans for a national policy to encourage truckers to be part of the solution. For more information, review the October 2012 posts at this site.


Federal agents say truck stops are a common place to find human sex trafficking. It’s also at truck stops that everyday heroes can be found — the nation’s eyes and ears. The nonprofit Truckers Against Trafficking is calling upon truckers to report what they see so victims can get help.
 
At truck stops across America Chris Striker says prostitution is easily found. Striker, who owns his own transportation company, Centurion Transport, says it’s heartbreaking to see young girls.
 
Human trafficking, a term for modern-day slavery, is a $32-billion worldwide industry with more than 27 million people enslaved. It has been reported in all 50 states, and the number of victims in the United States is estimated in the hundreds of thousands. This website has been created to enable members of the trucking/travel plaza industry and other travelers learn what you can do to help stop this atrocity.
 
Around the world, there are an estimated.  27 million slaves today. This is more than at any other time in world history. Modern-day slavery, when it results in people being bought and sold for forced labor or commercial sex, is called human trafficking.


Thursday, September 5, 2013

How NOT To Be a BORING Conference Speaker


Well, it's been three weeks since I last blogged. I am sorry to all of you who expect a weekly blog on trucking issues, but I have been swamped with several cases and transition in personnel.
Usually, I try to provide some practical advice to my clients and colleagues. Many of you will be asked to make presentations at upcoming conferences. May I give you some advice on being a memorable presenter? I cannot take credit for the following, but I certainly want to share it.



The Legal Marketing Association's Los Angeles chapter's CME (Continuing Marketing Education) program provided excellent content from many memorable presentations.  During the program, I watched carefully as my industry friends and colleagues presented their expertise in wide-ranging areas important in law firm marketing.
Cheryl Bame, Principal of Bame Public Relations, provides some takeaways and pointers for delivering a memorable presentation and being a great speaker:
1.            Don't just educate, entertain. 
People have short attention spans so it is important to not only provide valuable content but also to keep people engaged by interjecting creative anecdotes  and some humor without  offending anyone.
2.            Get personal with the audience. 
Tell stories that illustrate your points and offer a meaningful way to connect with the audience.
3.            Be passionate. 
That means show enthusiasm when you speak.   Your audience will know when you are bored or tired of speaking about your topic.  It will show in your face and body language. I can still recall one of the better presentations by my friend Phil Bond, who was/is passionate about trucking AND the insurance industry. If you're in this industry, there must be something you like about it so SHOW it.  Judy Burkhalter of Old Dominion was/is also very passionate about the industry and she inspires!

Thursday, August 15, 2013

Mandatory DNA Testing in Louisiana?

NO. Unless you're arrested for a felony offense, you do  NOT have to voluntarily give a DNA sample for testing.
 
DNA analysis has come a long way since I was prosecutor in the late 1980s and early 1990s. In 1992 I successfully convicted a serial rapist in the first case in the Parish of Caddo using  DNA evidence. At that time only, only one or two other parishes had used DNA evidence because the science was still fairly new.

So new that very few state crime labs were qualified to evaluate and testify about DNA evidence. We had the analysis and testimony p by an expert from the United States Federal Bureau of Investigation. In order to ensure the admissibility of the evidence and the qualifications of the expert, I spent several hours laying a foundation.

 
As I recall, the probability that the DNA evidence would match anyone else was less than 1 in 1 billion. At that time, the FBI wouldn't analyze any more if probability went beyond 1:1 billion. That makes sense, there aren't even a billion people living in America. According to the United State Census there approximately 316,000,000 in the United States as 2013.
 
There are only about 300,000 in the Parish of Caddo, but we didn't rely on the DNA evidence only. We also had eyewitness testimony and fingerprint evidence. So likelihood that anyone else could have committed the crime with a positive identification, fingerprint match and DNA match in Caddo Parish was astronomically improbable.




 
Of course, NOW DNA evidence is consider the gold-standard. Fortunately, many people who were wrongfully identified have now been released. Unfortunately, DNA evidence can also be rock-solid evidence of guilt.
 
Legislation is sweeping across the nation with nearly half of the states currently requiring the pretrial collection of DNA samples from individuals who are arrested for various crimes but not yet convicted.

Thursday, August 8, 2013

SIX Louisiana Cities Have the Highest Healthcare Costs in the Nation!

Louisiana should pass a similar statute enacted in Texas in which only the actual PAID medical expenses are reimbursable in a tort action. Presently the incurred expenses, even if  not actually paid, are reimbursable (unless Medicaid paid the costs).
 
We ALL know that often what was incurred is never actually PAID. If there were some way to curtail pre-litigation expenses, then perhaps we would see a quicker resolution to cases.
 
Often a  plaintiff, with a minor soft-tissuei njury, will see a chiropractor for several months incurring a bill of $5000 to $10,000, to be paid at the conclusion of the case. We KNOW that these bills are likely discounted significantly, but presently the insurance companies are required to pay the entire cost of INCURRED EXPENSES.
 


Recently, I had  case in which a plaintiff went to a chiropractor AND a physical therapist, often on the SAME DAY, getting the same treatment. I am not sure it rises to the level of fraud, but it certainly seems VERY close. I could hire an expert to review the costs of treatment, but he cannot testify about whether the treatment was necessary; only if the costs were reasonable.


This may be worth doing in some cases, but by the time we hire the expert, evaluate the costs, report his findings then we have incurred additional defense costs. That does not even get us to the trial stage, where  we may have to call the expert to testify.

 
For a case that probably should settle for UNDER $15,000 for four months of treatment with chiropractic treatment, settlements may be more than $20,000 just because the medical costs are so high. Even though many of the costs are for duplicative treatment, they were INCURRED COSTS.
 
I am certain that if the plaintiff or her attorney Actually PAID those costs, then the expenses would NOT have  incurred. This problem bleeds over into the overall cost of health care in Louisiana.
 
SIX out of the TOP TEN cities in the nation with the highest healthcare costs were from Louisiana. Rebecca Catalanello, of The New Orleans Times-Picayune, reported:
Six of the 10 most expensive places to buy health care in the nation are in Louisiana, including Metairie, Baton Rouge and Lafayette.


That’s according to a new Institute of Medicine study that attempted to examine geographic differences in health care spending among Medicare, Medicaid, privately insured and uninsured populations.


With Louisiana near the top of many of the country’s "worst of" health lists — asthma, diabetes, heart disease, obesity — it could be tempting to credit this distinction to our state’s particularly unhealthy population. But the study, which was commissioned under the terms of the federal Patient Protection and Affordable Care Act, found that differences in traditional, fee-for-service health care spending exist in spite of age, sex and health status.


Jonathan Skinner, a professor of economics at Dartmouth College, who has studied variations in health care spending for years, said that Louisiana has several strikes against it, even when studies like this one control for poverty, race and health status.


Besides having an incredibly unhealthy population, he said, individual patient care between hospitals and community clinicians is often fragmented, leading to high percentages of hospital readmissions soon after discharge. Louisiana also has a robust market for what he called "entrepreneurial home health providers" that clearly plays a role.


"To me," Skinner said of the study, "the spending differences are important, but what worries me more is that this is an indicator of poor care."


Thursday, August 1, 2013

So What's the Big Deal About Texting and Driving? Okay, Maybe JUST Talking on the Cell Phone, Right?


Texting and driving seems to be fairly innocuous doesn't it? I mean, what's the big deal?

In 2010, The National Safety Council announced today that at least 28% of all traffic crashes – or at least 1.6 million crashes each year – involve drivers using cell phones and texting. NSC estimates that 1.4 million crashes each year involve drivers using cell phones and a minimum of 200,000 additional crashes each year involve drivers who are texting.

In 2011, U.S. Transportation Secretary Ray LaHood today announced a final rule specifically prohibiting interstate truck and bus drivers from using hand-held cell phones while operating their vehicles. Many of the largest truck and bus companies, such as UPS, Covenant Transport, Wal-Mart, Peter Pan and Greyhound already have company policies in place banning their drivers from using hand-held phones.

U.S. News and World Report covered a recent study by the National Safety Council. The study, conducted in partnership with Nationwide, shows that cell-phone-related car crashes are drastically under-reported, and that as many as 1 in 4 car crashes involve cell phone distraction. 

According to the NSC, the number of fatal vehicle crashes caused by driver distraction due to cell-phone usage could be much higher than many think – largely due to “coding errors” on the part of regulators. For example: Even when drivers admitted cell-phone use during a fatal crash, NSC’s analysis found that in almost half of such cases, the crash wasn’t coded in the National Highway Traffic Safety Administration's Fatal Analysis Reporting System(FARS) to reflect the distracted usage of such devices.

One of the first questions asked of drivers and plaintiffs in trucking accidents is to identify their cell number and service provider. Then a subpoena is issued for the day of the accident. If you know the approximate time of the accident, or with GPS data, the exact time of the accident, then you can easily determine if your driver or the plaintiff was on the cellphone.

This can be a vital piece of evidence to determine the actual (or contributing cause) of an accident. NEVER, forget to obtain this information. Good or bad, you need to know.

So how bad, can it get? My friend and client, Mehdi Arradizadeh, Risk Director of Anderson Trucking Service, Inc. recently sent out an e-mail blast about the train collision in Madrid Spain:

Thursday, July 18, 2013

Rapid RESOLUTION To Catastrophic Accidents (Part I)

Sorry about missing the blog post for last week, but I was out of state attempting to resolve a catastrophic accident only a few weeks following the incident. Obviously, I cannot go into the details of the case, but I wanted to share some ideas and  practical bullet points to assist you in resolving these kind of cases, if possible.
Let's face it, when a big truck is involved, the  injuries are potentially devastating. Obviously, fatal accidents involve intensely raw emotions, but companies who care will reach out early with a genuine and authentic attitude to help the family to begin the process of closure.


 

Timing and Sensitivity are of paramount importance. You can't expect the family to make major life decisions in the early stages of grief. On the other hand, you must gather essential facts and as much background information on everyone involved.
Keep a realistic, unemotional approach to what the case is worth; however, BE GENUINELY SYMPATHETIC. How would you feel if your wife, son, sister or father were killed in an accident?
The following is not an exclusive list of what to do, but it is certainly a great start:
1. Reach out to the pastor or priest for the family, and use them to assist in communicating to the family, as this has been a good resource in the past. Even if the clergyman can get in contact with someone close to the family to speak to you, (if the immediate family won’t) it’s worth a shot.
2. Paying for a funeral expenses or grief counselling are always good gestures. John Spiros of Roehl Transportation says: "We have paid funeral expenses and offered to pay any other bills that may need paying to reduce the stress from the plaintiff."

3. A company representative  (even if the person is not with the company) going to the hospital or trying to make contact with the family as soon as possible. Be careful there those who think this was very thoughtful, while others felt it was bothersome. Spiros goes on to say:


"Nothing against attorneys, but the best resolution is made with the plaintiff and the company official meeting in a room without attorneys. The company official really has to be the type that can show sympathy and be empathetic wholly! "

There is no reason to start a battle between lawyers too soon. Advise your client, but let the client negotiate the early resolution process. Sometimes your client may want you to be at an early conference, but if so, you MUST be thoughtful, kind, compassionate and NON-argumentative.
5. A  proposal to pay legal fees to for someone to else to evaluate the settlement should only be used when you have suggested a very fair settlement number and the plaintiff needs  the opportunity to review this with another attorney.
 
6. Finally, I quick point on the driver giving a statement: An attorney should take an UNRECORDED interview of the driver at the scene or right after. Tell your drivers to inform law enforcement that they will give a statement after the  attorney arrives.  Spiros says "This has helped is in 99% of the times we used it, and of course there is always that 1% of officers who think they are larger than the law!"
Next week, I will share some  practical bullet points/list  to have available in  a rapid resolution. In the meantime, if there is anything I can do for you in North Louisiana or Northeast Texas, feel free to call me day or night.
Mark Perkins
Perkins & Associates, LLC
318-222-2426
318-617-1960

Thursday, June 27, 2013

Crazy Busy, but Don't Forget to Preserve the Evidence!

I wish I had the time to blog  a more informative post this week, but since last week, the following  have inundated me:
  • problems with my father
  • problems with the server in the cloud
  • stepfather diagnosed with Lou Gehrig's disease
  • medical issues with my father-in-law
  • clerical person with back injury
  • attorney recovering from surgery from appendicitis
  • fatality accident to investigate in Northeast Louisiana
  • five new assignments in other cases
  • remote attorney unable to connect to server to do work
This is not an exclusive list, just the things I could think of in the moment,
 
So, right now, I am overworked, understaffed and overwhelmed; however, I am so thankful to the many clients who trust us to handle their legal concerns and issues. We get the job done, even if do have obstacles.
 
So even though things are crazy busy right now, I want to take the time to remind  you of some basic information to request in a preservation letter if your client is involved in an accident with a personal vehicle. We have another form with more detailed information we request if our clients are involved in an accident with another tractor/trailer, but for personal vehicle, be sure you immediately demand preservation of the following:


1.                   The actual vehicle driven by the adverse party

2.                  The  Event Data Recorder in  the vehicle be preserved for examination and    
inspection by an expert.

3.                  Photographs of vehicle/accident scene

4.                  Accident reconstruction measurements/notes/photographs/ECM download

5.                  Autopsy report/toxicology analysis

6.                  Social Media of the decedent for a period of six months before the accident date

7.                  Registration records of the adverse vehicle

8.                  Preservation of the actual cell phone/cell phone records of adverse driver

9.                  Personal items/prescriptions on her person or in the car at the time of the accident
 
10.         Weather information

Thursday, June 20, 2013

Epidemic of Depressed Lawyers!

This is no joke!

I am not posting about trucking specific topics today because I am out of the office on an "ancestry search" with my seventy-nine year old father, who recently suffered the passing of his girlfriend of over 30 years.

Yes, "girlfriend." He never married her, but he was with her longer than he was married to my mother. As you can imagine, he suffered with extreme depression, but eventually, he went to his "go to" medication: alcohol.

I am fifty one. My entire memory of my father is associated with alcohol. I have never seen him go a day without a drink. He often drinks a "Bloody Mary" or "Screwdriver" in the morning. He drinks beer, wine and, of course, "hard liquor." He drinks in the afternoon and evening, but he is a "functional alcoholic" in the sense that he was always able to work.

No matter, every night before coming home, my father would stop off at the "Rusty Nail", "The Pirogue Lounge" or  "The Hob Nob". Now, he haunts "Shenannigans." These are places where he has friends. Where "everyone knows your name."

I don't know why my father has always drunk alcohol. Perhaps, he has dealt with depression or anxiety or some other uncomfortable emotion. Who would know?

I have never been a heavy drinker, but I could see how I could. I have learned that I have a condition called "dysthymia." I thought I was just a moody-blues kid because I have always been a bit melancholy, but now I know it's more than that. The number one cause of depression is genetics, but as I said, who would know that my father was depressed since he drank all the time? When he drinks, he is a "happy drunk." He is not mean, rude or belligerent. He IS the life of the party: telling jokes, dancing, laughing.

His life partner died of alcohol neuropathy. He would never admit that during her final days. Even now, unless he is in a particularly emotional mood, he will not admit that she struggled with alcohol. He will certainly never admit that he struggles with alcohol. How can it be a struggle if he functions well? How would anyone know if he functions well without a substance if he has never been without a substance?

Because of a multitude of more recent  life stressors, my "general melancholy" mood morphed into full blown a chronic  major depression disorder. For me, it was never to the point of incapacity; however, it was very real. I thought it was all situational. I thought, "When the cash flow improves, my mood will improve." When things are better with staff, attorneys, work, family, etc, then my mood would improve.

Perhaps another time, I will talk about the struggles that I had with "getting help" for this mood disorder because of the stigma. Because I am a Christian, I am SUPPOSED to have the "joy of the Lord." Because I am an attorney, I am SUPPOSED to handle this. Others do!
 
 
Do they?

Thursday, June 13, 2013

Superior or Sub-par Service? You decide!

No matter how you slice it, lawyers are in the service industry. We are judged not only on our knowledge, expertise and results, but also on how well we PERFORM those services. How do we get along with our clients, adversaries, staff and vendors? I suppose some lawyers have such a grandiose view of themselves that they don't care what others think, but I am not one of those people.
 
I genuinely care about what my clients think. Of course, I cannot please all of my clients all of the time. It seems there are times when I am golden and other times when I feel like a cow manure. No matter how I feel, I have a duty to give my best to my client...every day.
 
How do we rank in service? How do YOU rank? I welcome your responses about us or even your thoughts on how well you're doing in serving your clients. Consider the following questions and rate us or yourself on a scale from 1-5 (1 meaning "not at all" and 5 meaning "regularly").
 
As you can see, I  am asking about both the GOOD and the BAD, so on the "bad" scale your numbers should be low and on  the "good" scale your numbers should be high. Rate yourself and rate us.  How will you do?
 
Bad:
1.            I don’t trust him.
               (1....2....3....4....5)
2.            He is not responsive and very difficult to track down.
               (1....2....3....4....5)
3.            He doesn’t listen to me.
                (1....2....3....4....5)
 
4.            He always talks about himself.
                (1....2....3....4....5)
5.            He doesn’t understand our business or me.
                (1....2....3....4....5)
6.            He is always trying to get new business from us rather than just focusing on the current project.
                (1....2....3....4....5)
7.            He is arrogant and talks down to me.
                (1....2....3....4....5)
8.            He talks about his other clients behind their back.
                (1....2....3....4....5)
9.            He is not an innovator.
                (1....2....3....4....5)
10.          He only tells me we can’t do something rather than searching for another way to accomplish the     same goal.
                (1....2....3....4....5)
 
11.          He overcharges us.
                (1....2....3....4....5)
12.          He is sloppy and does not proofread his work.
                (1....2....3....4....5)
 
 
Uh oh, how did you do? If your self-score was over 30, then you have some work to do. Obviously, we hope your score about us is 12-20. If WE scored over 30, then WE have a  lot of improvements to make.
 
 
Now, consider the GOOD things. Score yourself and us. In THIS case, you want your scores to be high. Low scores would indicate and need for improvement, so let's see how you do and also score US. Remember, a 1 means "not at all" and 5 means "regularly" so in THIS case, you (and we) want a HIGH score, but be honest.
 
GOOD:
 
1.            Responsive
               (1....2....3....4....5)
2.            Accessible (Yes, that means 24/7)
               (1....2....3....4....5)
3.            Places client interests ahead of your own
               (1....2....3....4....5)
4.            Listens intently and actively
               (1....2....3....4....5)
5.            Visits and calls them rather than only communicating by email
                (1....2....3....4....5)
6.            Performs the legal work efficiently, effectively and economically
                (1....2....3....4....5)
7.            Accurately bills
               (1....2....3....4....5)
8.            Doesn't  surprise the client
                (1....2....3....4....5)
9.            Understands the client's  business and industry
                (1....2....3....4....5)
10.          Anticipates problems and suggests ways to resolve them proactively
               (1....2....3....4....5)
 
 
So, how did you do? Obviously, you hope to have a perfect "good" score of 50, but surely you/we are doing better than a 30. If not, we have much work to do. Any suggestions on how you/we can improve?
 
 
I really would like your input here on in person. Feel free to make a post as it can be anonymous. If you would like to discuss how you/we can improve service, let's talk about it. Call me at 318-222-2426 or e-mail me at perkins@perkinsfirm.com.
 
 
In the meantime, if there is anything I can do for you in North Louisiana or Northeast Texas, feel free to call at any time.
 
 
Mark Perkins
Perkins & Associates, LLC
318-222-2426

Thursday, June 6, 2013

Checklist for Great Jury Instructions

In the past, I have blogged about and shared "standard voir dire" questions, but the following is to assist with instructions given to the jury. I am not presenting actual suggestions of what should be in the instructions because the law will vary as to the facts; however, it's extremely important to consider the jury instructions even before discovery begins so that you can focus the case in the direction you want it end.

Similarly, I always advise the attorneys in my office to review winning cases on summary judgment or at trial so we can emulate those cases as much as possible. Although I may be considered a "seasoned" trial attorney having practiced law over 25 years, I continue to learn  from excellent attorneys and experts in trial analysis, such as Dr. Paula Gabier, in preparing the themes based on applicable jury instructions.

The following is revised from a checklist by Julie Brook, Esq. to help with  effective jury instructions in every case. Often times, attorneys will use only the "form instructions" because it's easy, but that is short-sighted method. We're not paid to be clerks who can copy and paste. We are paid to evaluate, analyze and apply legal principles to factual issues. 

The following is just a checklist on how to analyze and ensure you do your best, but it's nothing more than a tool. What sets you apart from the average lawyer is your ability to make this checklist come to life in a specific case.
  1. ___ Review form instructions before drafting instructions to see whether any of them fit the issues in the case. Make sure  to review recent revisions.
  2. ___ Prepare instructions well before trial so that you can focus your attention on them and avoid drafting last-minute instructions.
  3. ___ Review pleadings and discovery before drafting instructions to determine what the issues are. Reread the complaint, answer, any cross-complaints and answers, the pretrial conference order (if one was entered), answers to all contention interrogatories, all requests for admission, and any orders on any motions to see if any of the pleaded issues have been removed from the case.
  4. ___Determine who bears the burden of proof on each issue or element of each claim and affirmative defense, and prepare burden of proof instructions.
  5. ___ When drafting original instructions, use simple language, cite authority accurately, and read the instructions to non attorneys to make sure the jurors can understand them.

Thursday, May 30, 2013

Hours of Service Changes Effective July 1, 2013

I empathize with truck driver who has to keep up with continuing changes in hours of service. It seems that every few months there is change or a proposed change. Don't get me wrong, I am 100% for ensuring safety on the highways and preventing fatigue is absolutely essential to that goal.
 
However, minor violations of hours of service rules when there are so many changes so often is a major burden on the industry. Additionally, the cost of transportation will likely increase due to the extended rest periods needing additional drivers to make up the difference, especially for food products that need to be moved quickly.
 
Consider the following report from Vicki Boyd of "The Packer" website at www.thepacker.com:
 
 

The revised national hours of service regulation, expected to become effective July 1, would increase the amount of rest truck drivers would be required to take in many cases, said Steve Lohman, North American transportation manager for Chiquita Fresh North America, Charlotte, S.C.

 

Drivers who have put in 60 hours during seven consecutive days or 70 hours during eight consecutive days would be required to take off 34 consecutive hours before hitting the road again. But those 34 hours now will have to include two periods between 1-5 a.m. — something that didn’t used to be required. [emphasis added]

 

If a driver finishes in the morning, the rest period could extend to as long as 51 hours before he could legally climb behind the wheel again. But if the driver doesn’t come off duty until the evening, the period could be as short as 34 hours. In the case of Chiquita, Lohman said about 80% of the loads are picked up or delivered during the morning.

 

Thursday, May 23, 2013

Another Battle Over the Discoverability of Social Media

I cannot understand how anyone can make the argument with a straight face that social media posts of the plaintiff are not relevant.

Surely the posts of a the plaintiffs's activities before and after an accident are relevant! They are much more reliable than what they say in  a deposition because they are made from their own initiative and volition. No one has asked them a question. They are generally spontaneous.
 
Additionally, it's relevant electronic information that MUST be preserved. We all know that Facebook will not provide the information, so we must obtain it via discovery from the plaintiff. There are very easy means to obtain the information and it does not cost much for the plaintiff to download the data on a CD.
 
We have recently been fighting, and unfortunately losing this battle with some judges. Particularly, judges in rural parishes tend to be reluctant to give us this information. Perhaps, we're just suffering the wrath of being "defense counsel," but we MUST educate the judges on the relevance and ease of getting this information.
 
Failure of a plaintiff to provide us with the information, should result in sanctions (as I discussed in last week's blog post).
 
The most recent decision from a  Louisiana  is:
 
In the Matter of the Complaint of WHITE TAIL OILFIELD SERVICES, L.L.C., as Owner and Operator of M/V Whitetail I, her Engines, Tackle, Appurtenances, Furniture, Etc., Praying for Exoneration from or Limitation of Liability. 2012 WL 4857777 (U.S. E.D. LA) Civil Action No. 11–0009
 
United States Magistrate Judge, Karen Wells Roby, issued the following opinion:
 
Before the Court is a Motion to Compel Production of Social Media Discovery (R. Doc. 128), filed by Petitioner, White Tail Oilfield Services, LLC, (“White Tail”) seeking an order from the court compelling Defendant/Claimant, Joshua Pellegrin, (“Pellegrin”), to produce information from his Facebook page.
 
The motion is unopposed.
 
The motion was heard by oral argument on Tuesday, October 9, 2012.
 
I. Background
 
This suit involves White Tail's petition for exoneration of liability, specifically for damages which it anticipated that would be brought against it after the M/V Whitetail I sank. Pellegrin's claim is for personal injuries arising in connection with the accident. The specific injuries Pellegrin alleges are immaterial to the disposition of the instant motion.
 
As to the instant motion, White Tail seeks an order from the court compelling Pellegrin to produce information from her Facebook page.
 
II. Standard of Review
 
Federal Rule of Civil Procedure (“Rule”) 26(b)(1) provides that “[p]arties may obtain discovery regarding any non-privileged matter that is relevant to any party's claim or defense.” Rule 26(b)(1). The Rule specifies that “[r]elevant information need not be admissible at the trial if the discovery appears reasonably calculated to lead to the discovery of admissible evidence.” Id. The discovery rules are accorded a broad and liberal treatment to achieve their purpose of adequately informing litigants in civil trials. Herbert v. Lando, 441 U.S. 153, 177, 99 S.Ct. 1635, 60 L.Ed.2d 115 (1979). Nevertheless, discovery does have “ultimate and necessary boundaries.” Oppenheimer Fund, Inc. v. Sanders, 437 U.S. 340, 351, 98 S.Ct. 2380, 57 L.Ed.2d 253 (1978) (quoting Hickman v. Taylor, 329 U.S. 495, 507, 67 S.Ct. 385, 91 L.Ed. 451 (1947)). Further, it is well established that “control of discovery is committed to the sound discretion of the trial court ...” Freeman v. United States, 556 F.3d 326, 341 (5th Cir.2009); Coleman v. Am. Red Cross, 23 F.3d 1091, 1096 (6th Cir.1994).
 
Under Rule 26(b)(2)(c), discovery may be limited if:
(1) the discovery sought is unreasonably cumulative or duplicative, or is obtainable from another, more convenient, less burdensome, or less expensive source;
(2) the party seeking discovery has had ample opportunity to obtain the discovery sought; or
(3) the burden or expense of the proposed discovery outweighs its likely benefit. Id.
 
In assessing whether the burden of the discovery outweighs its benefit, a court must consider:
(1) the needs of the case;
(2) the amount in controversy;
(3) the parties' resources;
(4) the importance of the issues at stake in the litigation; and
(5) the importance of the proposed discovery in resolving the issues. Id. at 26(b)(2)(C)(iii).
 
Rule 34 provides that parties may request documents and electronically stored information, but requires that a party who requests such information “must describe with reasonable particularity each item or category of items to be inspected.” Rule 34(a)(1)(A).
 
Rule 37 permits a party to move the court to compel discovery “[o]n notice to other parties and all affected persons.” Rule 37(a)(1). “The motion must include a certification that the movant has in good faith conferred or attempted to confer with the person or party failing to make disclosure or discovery in an effort to obtain it without court action.” Id.
 
III. Analysis
In support of its Motion, White Tail argued that it originally propounded an Interrogatory No. 3, which requested that Pellegin “provide the following information for every social or professional networking or blogger site you have used,” and Interrogatory No. 5, which requested that Pellegrin “provide the following information for every bulletin board system (BBS), internet forum, message board, or other online messaging or posting system you have used.”
 
Both of these Interrogatories requested the following information:
 
a. Name and uniform resource locator (URL) address of the site;
b. The specific URL address of your account profile on the site;
c. Your account name and real names or pseudonyms you have used to identify yourself on the site;
d. Your user ID or logon and password used to access your account on the site;
e. The dates that you used the site;
f. The email address(es) used by you in registering for the site;
g. Your account Used ID number or Friend ID number, if applicable;
h. Any account identification other than that listed above.
 
White Tail also included in the instant motion a copy of a Request for Production No. 1 which it propounded upon Pellegrin, in which it stated “[f]or each Facebook account maintained by you, please produce your account data for the period of September 1, 2010, through present.” 
 
In that Request for Production, White Tail explained that this data could be accessed by Pellegrin by (1) logging onto a given Facebook account,
(2) selecting “account settings” under the triangle-shaped tab on the top right corner of the homepage, (3) clicking on a link entitled “download a copy of your Facebook data,” and
(4) following the directions on the data download page.
 
White Tail argued that although Pellegrin originally objected to these requests,  Pellegin withdrew his objections once White Tail filed a Motion to Compel. Pellegrin agreed to produce all information from his Facebook page by September 1, 2012; however, White Tail argues that Pellegrin had not yet provided the information.
 
According to White Tail, Pellegrin's explanation for his failure to provide the data was that he did not know how to use the “download a copy of your Facebook data” function. White Tail argued that it then sent a subpoena to Facebook, which included a sworn authorization by Pellegrin that he was unable to download his information.
 
White Tail stated that Facebook did not accept Pellegrin's explanation, but stated that because Pellegrin was responsible for creating the content himself, only he could download it. Facebook agreed to contact him directly to resolve the downloading issue. White Tail noted  that communications from Facebook's counsel to Pellegrin's counsel went unreturned.
 
White Tail further argued that in a September 24, 2012 discovery conference, Pellegrin's counsel offered to have his paralegal contact Facebook's counsel to learn how to download the information. White Tail further argued that many courts have required litigants to either download and produce third-party information, or consent to disclosure, as the information is within the user's control. There was no reason why he could not download and share the information, or else contact experts at Facebook to reconcile any downloading issues.
 
 
At oral argument, counsel for White Tail reiterated his positions, and also stated that White Tail was willing to pay an Information Technology specialist to walk Pellegrin through the process of downloading his information from Facebook. White Tail also argued that despite the fact that it had Pellegrin's password for the Facebook account, it could not obtain the information because simply printing screens from Pellegrin's Facebook page would not capture deleted data, and while using Facebook's “download your information” feature would capture deleted material, this information would be emailed only to Pellegrin.
 
 
The Court ordered counsel for Pellegrin to produce the information within seven (7) days of the issuance of this Order. The Court noted that, because Pellegrin and his computer were located in Houma, and because White Tail already had Pellegrin's Facebook password, White Tail could itself access the “download your information” button and have a copy of the requested Facebook data emailed to Pellegrin. Pellegrin would then be obligated to forward all of the Facebook data he received in the email to White Tail's counsel.
 
 
IV. Conclusion
Accordingly,
IT IS ORDERED that Petitioner, White Tail Oilfield Services, LLC's, (“White Tail”) Motion to Compel Production of Social Media Discovery (R. Doc. 128) is GRANTED.
 
Defendant/Claimant, Joshua Pellegrin, (“Pellegrin”) is to produce the information requested in White Tail's Motion within seven (7) days of the issuance of this Order and as instructed herein
 
 
Now on a personal note, go Whitetail and the attorneys for them!
 
William Bryon Schwartz, Jedd Spencer Malish, Laurent J. Demosthenidy, Scott L. Sternberg, Baldwin, Haspel, Burke & Mayer, LLC, Andrew C. Wilson, Simon, Peragine, Smith & Redfearn, LLP, New Orleans, LA, John Martin Ribarits, Preis & Roy, PLC, Houston, TX, were for the petitioners, Whitetail.
 
There are times when we have to fight these fights to get accurate information about the plaintiffs. We know they will not give it to us voluntarily, so we have to fight for it and make THEM pay the sanctions for not willingly giving it to us.
 
Don't let an attorney's objections stop you from fighting the good fight. For example, just because they  SAY something is not relevant is not a basis to prevent its discoverability! For example, recently, the plaintiff's attorney argued that his client OB-GYN records were not relevant and would not sign a release. I issued a subpoena and found evidence of prescriptions for pain medication and anti-depressants before the accident.
 
Relevant? I think so!