Research, Practical Ideas, Thoughts, Strategies about the representation of the essential industry that moves America: Trucking.
Imagine this: Everything within your reach came to you by a truck. Your computer, books, water bottles, furniture, phones, food...everything! We will discuss the industry that I am proud to defend. We may also ruminate on politics, family, and friends.
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.
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).
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.
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.
Although the decision is over a year old, in NACCO Materials Handling Group, Inc. v. Lilly Co. (No. 11-2415 AV, 2011 WL 5986649, W.D. Tenn. Nov. 16, 2011), the plaintiff brought a motion to prevent further spoliation of evidence due to inadequate preservation efforts being demonstrated by the defendant.
The original lawsuit alleged unauthorized and improper access to the plaintiff’s secure dealer website. After initial 30(b)(6) depositions and e-discovery, there was evidence of data spoliation, and the plaintiff sought sanctions for both the failure to adequately prepare the 30(b)(6) witness and failure to take reasonable steps to preserve potentially relevant information.
In determining if sanctions were warranted, the court looked at a number of factors:
In order to determine if sanctions against Lilly are appropriate, the court must first determine (1) when Lilly’s duty to preserve evidence arose; (2) the scope of Lilly’s duty to preserve evidence; (3) whether Lilly’s litigation hold and search and collection efforts were sufficient; and (4) if not, whether sanctions should be imposed on Lilly… [p. 6]
The court found that Lilly’s duty to preserve arose no later than when they were served with the lawsuit.
The court next looked at scope, concluding that “given the allegations concerning computer access, which Lilly did not deny, Lilly’s duty to preserve potentially relevant ESI was very broad." The court then considered the defendant’s preservation actions, identifying a number of shortcomings:
Upon being served with the lawsuit on February 25, 2011, Lilly took no immediate action whatsoever to preserve any data, electronic or paper. In addition, upon receiving the preservation letter, approximately twelve days later, Lilly failed to issue a written company-wide litigation hold. Instead, Clark simply circulated the litigation hold letter to seven Lilly employees out of Lilly’s 160 employees without any additional instruction. The failure to issue a written litigation hold is “likely to result in the destruction of relevant evidence.”
The court went on to cite additional shortcomings, including not notifying all the “key players” who had access the secure dealer website, and that no actions were taken to prevent deletion of emails or backup data.
The court concluded:
In summary, after the duty to preserve was triggered, Lilly failed to timely issue an effective written litigation hold, to take appropriate steps to preserve any existing electronic records, to suspend or alter automatic delete features and routine overwriting features, and to timely and effectively collect ESI. Therefore, the court finds that Lilly breached its duty to preserve relevant evidence.
The court then considered the level of culpability (in this case, finding negligence) and
Louisiana law recognizes a cause of action for breach of an employer's duty to exercise reasonable care in hiring, training and retaining employees, and such cause of action is independent of a cause of action for respondeat superior (or vicarious liability) and it may be asserted directly against an employer. Roberts v. Benoit, 605 So.2d 1032 (La. 1991); Central Mutual Insurance Co. v. Caine, 377 So.2d 579 (La. 1979). BUT WAIT!!
Typically, if there was no cause of action for vicarious liability, then the claims of negligent hiring, supervision and entrustment were also dismissed.
That general rule was not followed recently in the case of Powell v Gramercy
Insurance Company, where the trial court granted defendant's summary judgment on
plaintiff's claim for vicarious liability (employee who struck defendant's
customer) but did not address other issues of employer's negligence in training
and supervision of the employee, in providing a safe place for purchaser to do
business with employer. The defendant did not raise those issues in its motion
for summary judgment or at the hearing on the motion.
In my humble opinion the Fifth Circuit of Louisiana was wrong when it ruled that the judgment was not
final. With those remaining claims, employer should not have been dismissed as
a party to the litigation. The appeal was dismissed as premature, and the
matter was remanded. No. 12-CA-564 (3/13/13).
For your information, the Fifth Circuit is comprised of four parishes, including Jefferson, St. Charles, St. James, and St. John the Baptist.
Prior decisions and arguments on negligent hiring,
supervision and entrustment:
A few weeks ago, I submitted a blog on ways to defend when CSA ratings are used against a trucking company. The post here and on Linked in created a volume of opinions. I share a few of those here:
Tom Nitza •CSA information is out there for all the world to see, even plaintiff's attorneys. CSA information doesn't prove or disprove anything, but it certainly can be used as part of a legal argument, for either side.
The only way to prevent this would be for FMCSA to make the information available only to motor carriers and enforcement personnel and take it out of the public domain. At this point that doesn't seem likely.
In reality a motor carrier can't manage their CSA score, only the data that's used to generate it. In the broader scope of things, managing the outcome of roadside inspections is part of an overall safety plan. Motor carriers that have a strong program designed to seek out the root causes of problems and eliminate them will fair better in the long run than those who don't. I think all motor carriers would be well advised to stop worrying about their scores and concentrate on the statistics gathered at roadside inspections. If I was getting on a plane and that airline was complaining that they were inspected more than others I would be concerned that they wanted less inspections -- I want a safe airplane. Michael's right: if your equipment and drivers are in compliance then an inspection has no negative consequence. Only the motor carrier can manage the root cause: violations of the regulations.
Thomas Holloway •As someone mentioned, CSA scores are used by several sources to determine the level of risk of a carrier and are used by shippers as well. But there is another aspect that was barely addressed here which costs companies millions annually.
The lack of a score or a "Rating" from a CR are also used. Shippers fail to understand that if a company does not have a rating, it simply means they have yet to have had a CR conducted on them and if they have good scores and never have a bad accident they may never have one. That being said some companies will go years before being inspected or may never have a rating. Many shippers out there will turn down a company without a rating costing them hard to come by loads and contracts. Since shippers have a lack of understanding of how the system works, in effect the FMCSA has created a Damned if you do--Damned if you don't system within the industry where you are only rated if a CR is conducted on you when your scores are low requiring a CR to be conducted!
Passenger carriers, and those that transport HM requiring a permit are the only "Mandatory" carriers to receive a CR. Common freight carriers are not inspected until something goes wrong!!
Miki Jackson • This game of statistics is just that. Our CSA scores go flying into the stratosphere and we are just supposed to sit back and let insurance companies gouge us for a ranking. All they see is the ranking not the actual performance.
CSA has several faults that I see.
One thing that helps is how drivers see CSA. One driver told me he took four warnings over a single ticket when asked how he wanted to "do this". I was floored. Drivers need to know and understand that these warnings affect them and the company the same as any citation.
Matt Planeta •Because it is public, I don't know that you can prevent the CSA data from being used all together but you can mitigate the affect it has by having and following your own policies & procedures, being proactive in addressing your violations with meaningful action, providing proper training on an on-going basis, and documenting everything that you are doing to improve the safety of your company.
In my opinion, the more you can educate people in a liability claim situation as to what an SMS score really means, what violations are driving that score, and how the score is calculated before a plaintiff attorney can "spin" the numbers into something that they are not, the better off you are. FMCSA itself has a disclaimer at the bottom of the SMS Home page stating "Readers should not draw conclusions about a carrier's overall safety condition simply based on the data displayed in this system" that can be referenced.
If you have any recent experiences with the CSA, particularly how it may be misused in litigation, please share how you have effectively defended against the abuse. Otherwise, if there is anything we can do for you in North Louisiana or Northeast Texas, don't hesitate to call day or night.
