# GARDNER v. BOONE

> District Court, E.D. Pennsylvania · February 9, 2023

URL: https://www.frixlaw.com/law-library/cases/10404768

## Case

- **Court:** District Court, E.D. Pennsylvania
- **Decided:** February 9, 2023
- **Opinion:** 100trialcourt
- **Cited by:** 0 later opinions in the Frix Law Library

## Citator (automated)

- No negative treatment found by the automated citator. That is not the same as a confirmation that the case is good law; read the citing cases.
- Full citator and citing cases: https://www.frixlaw.com/law-library/cases/10404768

## How later opinions describe it (automated extraction)

- stating that courts should consider extent to which information is known outside of owner’s business, extent to which it is known by employees and others involved in business, and extent of measures taken by owner to guard secrecy of information
- stating that request for entire employment file is overly broad on its face

## Opinion text

IN THE UNITED STATES DISTRICT COURT
FOR THE EASTERN DISTRICT OF PENNSYLVANIA

DOROTHY GARDNER, : CIVIL ACTION
Plaintiff, :
:
v. : No.: 19-cv-5572
:
CHAD T. BOONE, et al., :
Defendants. :

MEMORANDUM

SITARSKI, M.J. February 9, 2023

Presently pending before the Court are Defendant’s Motion for Protective Order (Def.’s
Mot. for Protective Order, ECF No. 53), Plaintiff’s Motion to Compel Depositions and
Production of Documents (Pl.’s Mot. to Compel, ECF No. 54), additional documents submitted
in support of Defendant’s Motion for Protective Order (Def.’s Amended Doc., ECF No. 55),
Defendant’s opposition to the Motion to Compel (Def.’s Resp., ECF No. 56), Plaintiff’s
opposition to the Motion for Protective Order (Pl.’s Resp., ECF No. 56), and Defendant’s reply
brief in further support of its Motion for Protective Order (Def.’s Reply, ECF No. 58). For the
reasons that follow, Defendant’s Motion for Protective Order and Plaintiff’s Motion to Compel
Depositions and Production of Documents shall be GRANTED IN PART and DENIED IN
PART.

I. RELEVANT FACTUAL AND PROCEDURAL HISTORY
This case arises out of a traffic accident that occurred on or about July 12, 2019.
According to the Amended Complaint, Defendant Chad T. Boone, the operator of a tractor
trailer, “t-boned” Plaintiff’s Dorothy Gardner’s vehicle, causing her to sustain serious, painful,
and permanent injuries requiring surgery and inpatient hospitalization and rehabilitation. (Notice
of Removal, ECF No. 1, Ex. 1 at ¶ 24).
On or about November 5, 2019, Gardner filed a Complaint in the Philadelphia County
Court of Common Pleas against Boone and Defendant Schneider National Carriers, Inc.

(“Schneider”), a private, interstate, common carrier licensed by the United States Department of
Transportation that allegedly entrusted the tractor trailer to Boone. (Notice of Removal, ECF
No. 1, Ex. 1 at ¶¶ 4, 24). The matter was removed on November 26, 2019, and Gardner filed an
Amended Complaint on December 17, 2019. (Notice of Removal, ECF No. 1; Am. Compl.,
ECF No. 9). Gardner advances three claims: (1) a claim of negligence against Boone; (2) a
vicarious liability claim against Schneider (based, inter alia, on its responsibilities as an interstate
motor carrier under the “Federal Motor Carrier Safety Administration Regulations”); and (3) a
claim for “direct corporate liability” against Schneider. (Id. at 5-13) (emphasis omitted).
Defendants moved to dismiss in part, but their motion was denied by Judge Jones on
September 22, 2020. (Defs.’ Mot. to Dismiss, ECF No. 11; Pl.’s Resp., ECF No. 12; Order, ECF

No. 13). On October 21, 2020, Defendants answered the Amended Complaint. (Answer, ECF
No. 14). The parties consented to my jurisdiction on January 12, 2022. (Consent & Order, ECF
No. 27).
On June 10, 2022, Gardner propounded by e-mail Requests for Production of Documents
(“First RFPs”). (Pl.’s Mot. to Compel, ECF No. 54-1, Ex. A at 1-2). A second set of Requests
for Production of Documents (“Second RFPs”) was e-mailed on or about July 8, 2022. (Id. at 1).
On July 15, 2022, Schneider set forth its objections to the “June 10, 2022 demands, as modified
on July 8, 2022,” adding that “the assertion of the objections does not mean that responses are
not forthcoming.” (Pl.’s Mot. to Compel, ECF No. 54-1, Ex. B at 1). On July 28, 2022, it then
provided “our response to your July 9, 2022 e-mail request for Supplemental Discovery” as well
as “our response to your June 10, 2022 e-mail request for discovery, as modified on July 8,
2022.” (Pl.’s Mot. to Compel, ECF No. 54-1, Ex. D at 1; Def.’s Mot. for Protective Order, ECF
No. 53-2, Ex. A at 1). In an e-mail dated August 30, 2022, Gardner’s counsel challenged the

sufficiency of the document production and asked for supplemental written responses and
production. (Pl.’s Mot. to Compel, ECF No. 54-1, Ex. E at 1). He also requested deposition
dates for seven individuals employed by Schneider (including the “Corporate Designee”). (Id. at
3). Schneider’s counsel responded by e-mail on September 7, 2022, and, on September 20,
2022, Gardner’s attorney e-mailed the topics for the proposed Rule 30(b)(6) deposition. (Pl.’s
Mot. to Compel, ECF No. 54-1, Ex. F at 1-2; Ex. G at 1).
A pretrial conference was held on September 19, 2022, and the Court entered an order the
same day directing the parties to meet by October 3, 2022, to have a substantive and meaningful
conversation about their discovery disputes. (Minute Entry, ECF No. 51; Order, ECF No. 52, at
1). Counsel met, conferred, and exchanged additional e-mails, but they were unable to resolve

their discovery disputes. (See Def.’s Mot. for Protective Order, ECF No. 53, Certif. of Counsel;
Pl.’s Mot. to Compel, ECF No. 54, at 3; Def.’s Resp., ECF No. 56, Certif. of Counsel; Pl.’s
Resp., ECF No. 57, at ¶ 9). On October 11, 2022, Schneider filed its Motion for Protective
Order (Def.’s Mot. for Protective Order, ECF No. 53), and Gardner moved to compel depositions
and the production of documents (Pl.’s Mot. to Compel, ECF No. 54). Schneider filed two
affidavits in support of its discovery motion on October 12, 2022, and it filed its response to
Gardner’s Motion to Compel on October 18, 2022. (Am. Document, ECF No. 55; Def.’s Resp.,
ECF No. 56). On October 21, 2022, Gardner filed her opposition to Schneider’s motion, and
Schneider submitted its reply brief in further support of a protective order. (Pl.’s Resp., ECF No.
57; Def.’s Reply, ECF No. 58).

II. LEGAL STANDARDS
Rule 26 of the Federal Rules of Civil Procedure governs the scope of discovery in federal

litigation. Rule 26(b)(1) provides:
Parties 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).
Although the scope of discovery is broad, it is not unlimited. Inventio AG v.
Thyssenkrupp Elevator Ams. Corp., 662 F. Supp. 2d 375, 381 (D. Del. 2009); see also Eisai Inc.
v. Sanofi-Aventis U.S., LLC, Civil Action No. 08-4168(MLC), 2012 WL 628320, at *3 (D.N.J.
Feb. 27, 2012) (“Discovery is not without bounds . . . and courts will not permit parties to engage
in fishing expeditions . . . .”) (quoting MacDermid Printing Sols., L.L.C., v. E.I. du Pont de
Nemours & Co., 2008 WL 323764, at *1 (D.N.J. Feb. 5, 2008)). Upon a party’s motion or of its
own accord, the Court must limit the frequency or extent of discovery if it determines that:
(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 proposed discovery is outside the scope permitted by Rule
26(b)(1).
Fed. R. Civ. P. 26(b)(2)(C).
A party who has received evasive or incomplete discovery responses may seek a court
order compelling disclosure or discovery of the materials sought. See Fed. R. Civ. P. 37(a). The
moving party must initially demonstrate the relevance of the information sought to a particular
claim or defense. See, e.g., Bostwick v. Shoop, Civ. No. 1:09-CV-2212, 2010 WL 4536977, at

*2 (M.D. Pa. Nov. 3, 2010). Relevance in this context has been “construed broadly to
encompass any matter that could bear on, or that could reasonably lead to other matter that could
bear on any issue that is or may be in the case.” Oppenheimer Funds, Inc. v. Sanders, 437 U.S.
340, 351 (1978) (citing Hickman v. Taylor, 349 U.S. 495, 501 (1947)). “The burden then shifts
to the opposing party, who must demonstrate in specific terms why a discovery request does not
fall within the broad scope of discovery or is otherwise privileged or improper.” Peay v. Fisher,
Civil No. 3:15-cv-00345, 2016 WL 3876634, at *1 (M.D. Pa. July 15, 2016) (citing Goodman v.
Wagner, 553 F. Supp. 255, 258 (E.D. Pa. 1982)).
Similarly, “the party seeking discovery must first demonstrate . . . relevance before the
party seeking a protective order must demonstrate good cause.” Bell v. Lockheed Martin Corp.,

270 F.R.D. 186, 195 (D.N.J. 2010), aff’d, Civil No. 08-6292 (RBK/AMD), 2010 WL 3724271
(D.N.J. Sept. 15, 2010). Once the discovering party demonstrates relevance, the party seeking a
protective order must show that good cause exists to limit or foreclose discovery by
demonstrating a particular need for protection. See, e.g., Cipollone v. Liggett Group, Inc., 785
F.2d 1108, 1121 (3d Cir. 1986). In determining whether good cause exists for a protective order,
courts employ a balancing test, weighing the requesting party’s need for information against the
injury that might result if disclosure is compelled. See, e.g., Pansy v. Borough of Stroudsburg,
23 F.3d 772, 786-87 (3d Cir. 1994). Injury includes annoyance, embarrassment, oppression, or
undue burden or expense. See Fed. R. Civ. P. 26(c)(1). The alleged injury must be “clearly
defined and serious” and “so unreasonable as to justify restricting discovery.” Publicker Indus.,
Inc. v. Cohen, 733 F.2d 1059, 1071 (3d Cir. 1984) (citing Zenith Radio Corp. v. Matsushita Elec.
Indus. Co., 529 F. Supp. 866, 890 (E.D. Pa. 1981)); DeFelice v. Consol. Rail Corp., 124 F.R.D.
603, 604 (W.D. Pa. 1989) (citing 8 Charles Alan Wright & Arthur R. Miller, Federal Practice &

Procedure § 2035 (1970)). When the information and materials sought are relevant, a court
should scrutinize any claim that production would impose a disproportionate burden or expense.
See, e.g.,8 Charles Alan Wright & Arthur Miller, Federal Practice & Procedure § 2008.1 (3d ed.
2022) (footnote omitted). “Broad allegations of harm, unsubstantiated by specific examples or
articulated reasoning,” do not establish good cause. Cipollone, 785 F.2d at 1121 (citations
omitted).
Under Rule 26(c)(1), the Court “may, for good cause, issue an order to protect a party or
person from annoyance, embarrassment, oppression, or undue burden or expense, including . . .
(G) requiring that a trade secret or other confidential research, development, or commercial
information not be revealed or be revealed only in a specified way.” The Third Circuit has set

forth a list of seven factors that a trial court may consider in determining if good cause exists to
issue a protective order:
1) whether disclosure will violate any privacy interests;

2) whether the information is being sought for a legitimate purpose
or for an improper purpose;

3) whether disclosure of the information will cause a party
embarrassment;

4) whether confidentiality is being sought over information
important to public health and safety;

5) whether the sharing of information among litigants will promote
fairness and efficiency;
6) whether a party benefitting from the order of confidentiality is a
public entity or official; and

7) whether the case involves issues important to the public.

Glenmede Tr. Co. v. Thompson, 56 F.3d 476, 483 (3d Cir. 1995) (quoting Pansy, 23 F.3d at 787-
91).
This list is not “exhaustive,” but neither is it “mandatory.” Id. The trial court “is best
situated to determine what factors are relevant to” any given dispute, but it must always balance
private and public interests. Id. (quoting Pansy, 23 F.3d at 789) (internal citation omitted).
“When the risk of harm to the owner of [a] trade secret or confidential information
outweighs the need for discovery, disclosure [through discovery] cannot be compelled, but this is
an infrequent result.” Pansy, 23 F.3d at 787 (quoting Arthur R. Miller, Confidentiality,
Protective Orders, and Public Access to the Courts, 105 Harv. L. Rev. 427, 433–35 (1991)).
Rather, if the court determines that disclosure is warranted, the issue becomes whether disclosure
should be limited as set forth in Rule 26(c)(1). See, e.g., id. “Courts also have a great deal of
flexibility in crafting the contents of protective orders to minimize the negative consequences of
disclosure and serve the public interest simultaneously,” including, most commonly, by limiting
who may access the information and for what purpose. Pansy, 23 F.3d at 787 (quoting Miller,
supra, at 433-35).
In ruling on a discovery motion, the Court must take the facts alleged in the complaint as
true. See, e.g., Venneman v. BMW Fin. Servs., NA, LLC, No. 2:09-CV-5672-ES-SCM, 2013 WL
3188878, at *1 n.1 (D.N.J. June 21, 2013).

III. DISCUSSION
In its motion, Schneider seeks a protective order providing: (1) that its “Best Practices
Guide” and 2018 and 2019 “Checks for Learning” be produced subject to a confidentiality order;
and (2) that Schneider need not produce any algorithms or equations used to generate “Critical
Events” and for Schneider to conduct its “Driver Safety Reviews” (or, in the alternative order an
in camera review of such documents). (Def.’s Mot. for Protective Order, ECF No. 53, at 10).

Gardner opposes the motion and asks the Court in its response to order Schneider to produce full
and complete responses to her requests for production within twenty days. (Pl.’s Resp., ECF No.
57, at 11). She also moves for an order compelling production of responsive documents within
ten days and the completion of certain depositions within thirty days. (Pl.’s Mot. to Compel,
ECF No. 54, at 7). In addition to filing an opposition to the Motion to Compel, Schneider
submitted a reply brief in further support of its own discovery motion. (Def.’s Resp., ECF No.
56; Def.’s Reply Br., ECF No. 58). Schneider requests that the Court (1) protect it from having
to produce the Best Practices Guide and “Checklists for Learning” without a confidentiality
order, (2) order that Schneider does not have to produce a “Critical Event” algorithm or equation
“that does not belong to it and is not its possession,” and (3) protect Schneider’s “Driver Safety

Review” algorithm or equation as an irrelevant trade secret. (Def.’s Reply Br., ECF No. 58, at 5-
6).
Schneider’s Motion for Protective Order and Gardner’s Motion to Compel are granted in
part and denied in part. Initially, the Court grants the Motion for Protective Order and denies the
Motion to Compel as to First RFP Nos. 3 and 10 and Second RFP No. 12. Schneider shall
produce the Best Practices Guide and Checks for Learning but shall do so subject to the entry of
a stipulated confidentiality order, to be submitted by the parties within seven days of the date of
this memorandum and accompanying order. The Best Practices Guide and Checks for Learning
shall be produced within twenty days of the date of entry of the confidentiality order. The Court
grants Schneider’s Motion for Protective Order and denies Gardner’s Motion to Compel as to
First RFP No. 11. The Court denies the Motion for Protective Order as to First RFP No. 13. The
Motion to Compel is granted as to First RFP No. 13 to the extent that Schneider is ordered to
produce the algorithms and equations for the “Driver Safety Reviews” subject to the entry of the

stipulated confidentiality order. Schneider shall produce the algorithms and equations within
twenty days of the date of entry of the confidentiality order. The Court also denies the Motion to
Compel as to First RFP Nos. 1, 2, 4, 5, and 7 and Second RFP Nos. 1, 3, 4, 5, 6, 8, 9, 10, and 11.
Finally, it denies Gardner’s motion insofar as it seeks an order compelling the completion of
depositions.
A. Schneider’s Best Practice Guide and Checklists to Learning
In her first set of RFPs, Gardner asks for the “Schneider Training Book – Highway to
Success” (First RFP No. 3) as well as for the following materials: “Table of Contents for all
Schneider Human Resources, Operational, Safety, Regulatory Compliance, Accident
Investigation and/or Risk Management Policies, Procedures, Practices, Procedures [sic], and/or

Guidelines.” (First RFP No. 10). (Pl.’s Mot. to Compel, ECF No. 54-1, Ex. A at 1-2). In Second
RFP No. 12, she requests: “Any/all Schneider training or instructional documents related and/or
pertaining to co-driving and/or hours of service.” (Id. at 1). Schneider raised relevance and
confidentiality objections, but indicated its willingness to produce its “Best Practices Guide
(August 2017)” (“Best Practices Guide”) subject to a confidentiality agreement. (Pl.’s Mot. to
Compel, ECF No. 54-1, Ex. B at RFP No. 3; Def.’s Mot. for Protective Order, ECF No. 53-2,
Ex. A at First RFP No. 3). As to RFP No. 10 and Second RFP No. 12, Schneider raised the same
objections and offered to produce the “Annual Business Owner Operator Safety Compliance
Commitment 2018 & 2019 Check for Learning [(‘Checks for Learning’)] and the Best Practices
Guide (August 2017)” on the condition that the parties execute a confidentiality agreement.
(Pl.’s Mot. to Compel, ECF No. 54-1, Ex. B at RFP No. 3; Def.’s Mot. for Protective Order, ECF
No. 53-2, Ex. A at RFP No. 10; Pl.’s Mot. to Compel, ECF No. 54-1, Ex. D at RFP No. 12).
Counsel for Gardner subsequently claimed that Schneider has failed to provide any basis for

confidentiality, and Schneider’s counsel reiterated its position that it will produce the documents
with a confidentiality agreement. (Pl.’s Mot. to Compel, ECF No. 54-1, Ex. E at 2-3; Ex. C at 1-
2).
Relying on an affidavit from Dan Drella, its Director of Safety, as well as the
acknowledgement form executed by Boone, Schneider argues that the Best Practices Guide and
the Checks for Learning are confidential and proprietary trade secrets that should be produced
only under a confidentiality order. (Def.’s Mot. for Protective Order, ECF No. 53, at ¶¶ 19-25)
(citing Def.’s Am. Doc., ECF No. 55, Ex. C at ¶ 4; Def.’s Reply Br., ECF No. 58-1, Ex. A).
According to Schneider, Gardner’s refusal to consider a confidentiality order suggests that her
counsel intends to publish or share its trade secrets. (Id. at ¶ 24). Quoting Judge Gallagher’s

ruling in Mains v. Sherwin Williams Co., Civil No. 5:20-cv-00112-JMG, 2022 WL 1443391
(E.D. Pa. May 6, 2022), Schneider contends that its competitors should not be permitted to
“plumb through” federal court dockets and “pluck” proprietary information from the filings.
(Id.) (quoting Mains, 2022 WL 1443391, at *1). Schneider also emphasizes that Boone is
prohibited from disclosing or reproducing the Best Practices Guide under the terms of an
“Acknowledgement of Receipt” document he had signed before he received the document. (Id.
at ¶ 20).
Gardner argues that Schneider has failed to substantiate its confidentiality claims. (Pl.’s
Mot. to Compel, ECF No. 54, at 5; Pl.’s Resp., ECF No. 57, at ¶¶ 7-8). She contends that the
documents implicate safety concerns and the public interest. (Pl.’s Resp., ECF No. 57, at ¶¶ 7,
19). According to Gardner, the fact that the documents were provided to Boone subject to “a
private non-disclosure agreement” executed by Defendants is not determinative of whether the
Court should enter a confidentiality order. (Id. at ¶¶ 20-21). She also asserts that Schneider has

failed to meet its obligation to produce a privilege log under Federal Rule of Civil Procedure
26(b)(5). (Id. at ¶ 21). Finally, Gardner attempts to distinguish Mains on the grounds that the
documents at issue here do not concern proprietary information about the development of a
“specific, unique product” manufactured by Schneider but instead address standard operating
policies, procedures, and data related to driver safety. (Id. at ¶ 24) (addressing Mains).
In its reply brief, Schneider asserts that trade secrets are not limited to manufactured
products. (Def.’s Reply Br, ECF No. 58, at 1). It further argues, “[e]ven if some of Schneider’s
policies and procedures are in the public domain, ie., to the extent that they address the Federal
Motor Carrier Safety Regulations, ‘the precise configuration, juxtaposition, and assemblage of
this information is sufficient to constitute trade secrets.’” (Id. at 2). Schneider cites Safety

Director Drella’s affidavit and Boone’s acknowledgement form to argue that the Best Practices
Guide and Checks for Learning rise to the level of trade secrets that must be kept confidential as
opposed to mere standard operating policies and procedures. (Id. at 2-3) (citing Def.’s Am.
Doc., ECF No. 55, Ex. C; Def.’s Reply Br, ECF No. 58, Ex. A).
Rule 26(c)(1)(G) provides that this Court may issue an order “requiring that a trade secret
or other confidential research, development, or commercial information not be revealed or be
revealed only in a specified way.” It is undisputed that “[a] trade secret may consist of any
formula, pattern, device, or compilation of information which is used in one’s business, and
which gives him an opportunity to obtain an advantage over competitors who do not know or use
it.” Smith v. BIC Corp., 869 F.2d 194, 199 (3d Cir. 1989) (quoting SI Handling Sys., Inc. v.
Heisley, 753 F.2d 1244, 1255 (3d Cir. 1985)). Several factors should be considered in deciding
whether information constitutes a trade secret:
(1) the extent to which the information is known outside of the
owner’s business; (2) the extent to which it is known by employees
and others involved in the owner’s business; (3) the extent of
measures taken by the owner to guard the secrecy of the information;
(4) the value of the information to the owner and to his competitors;
(5) the amount of effort or money expended by the owner in
developing the information; and (6) the ease of difficulty with which
the information could be properly acquired or duplicated by others.

Id. at 199 (quoting SI Handling, 753 F.2d at 1256).
Initially, Gardner challenges Schneider’s reliance on Mains, arguing that this case does
not concern “proprietary information related to the development of a specific, unique product
manufactured” by the defendant. (Pl.’s Resp., ECF No. 57, at ¶ 24). In Mains, Judge Gallagher
partially granted defendant’s motion for sanctions because plaintiff’s counsel had violated a
confidentiality order by publicly filing “confidential product composition information.” Mains,
2022 WL 1443391, at *1-*5. Gardner points out that Mains was a products liability case against
a paint manufacturer and that the manufacturer sought protection for “information related to
‘tests, experiments, reports, and/or studies made’ by Sherwin-Williams as to the product at issue,
as well as ‘written specifications and composition’ of the product.” (Id.) (quoting Pl.’s Resp.,
ECF No. 57-4, Ex. C). However, it is clear that trade secrets are not limited to a manufacturer’s
“unique products.” On the contrary, “[[a] trade secret may consist of , , , [a] compilation of
information which is used in one’s business, and which gives him an opportunity to obtain an
advantage over competitors who do not know or use it.” Smith, 869 F.2d at 199 (quoting SI
Handling, 753 F.2d at 1255). Accordingly, customer lists, quality control or safety test
information, manuals, and operating procedures may rise to the level of trade secrets. See, e.g.,
id. at 199-201; BIEC Int’l, Inc. v. Global Steel Servs. 791 F. Supp. 489, 542-43 (E.D. Pa. 1992).
As Gardner notes (Pl.’s Resp., ECF No. 57, at ¶ 21), Schneider did not submit a log. But
the rule she cites applies by its own terms “[w]hen a party withholds information otherwise
discoverable,” Fed. R. Civ. P. 26(b)(5)(A). Schneider is willing to produce the Best Practices

Guide and the Checks for Learning subject to a confidentiality order. In any event, Schneider
has—in its motion, reply brief, and the affidavit sworn by Safety Director Drella—“substantiated
by specific examples or articulated reasoning” its trade secret and confidentiality allegations,
Cipollone, 785 F.2d at 1121.
One of the factors to be considered in determining whether certain information
constitutes a trade secret is “the amount of effort or money expended by the owner in developing
the information.” Smith, 869 F.2d at 199. Drella averred that the Checks for Learning and the
Best Practices Guide were developed for internal use to assist Schneider’s owner-operators and
are the result of years of extensive knowledge and work undertaken by Schneider employees.
(Def.’s Am. Doc., ECF No. 55, Ex. C at ¶¶ 8-9). This information has significant value to

Schneider as well as its competitors, see, e.g., id. Drella stated that the materials include
“unique” strategies designed to promote safety, enhance the driver experience, and assist the
owner operators in handling his or her position with the carrier. (Id. at ¶¶ 10-11). The materials
thereby promote Schneider’s reputation and its commitment to innovation and improvement,
helping it recruit and retain owner-operators. (Id. at ¶¶ 12-14). Schneider is one of the largest
motor carriers in the United States, and its competitors look to what it is doing as an innovator to
attract and retain owner-operators. (Id. at ¶ 14). In fact, “[c]ompetition for qualified owner
operators is particularly important at this time as there is a well-publicized industry-wide driver
shortage.” (Id. at ¶ 15). Without protection, competitors could take Schneider’s strategies,
harming Schneider’s position in an already highly competitive market. (Id. at ¶¶ 16-17).
Schneider acknowledges that “some of Schneider’s policies and procedures” may be “in
the public domain, ie., to the extent that they address the Federal Motor Carrier Safety
Regulations” (Def.’s Reply Br., ECF No. 58, at 2), but points out that it has taken steps to

maintain the secrecy of the “precise configuration, juxtaposition, and assemblage” of its policies
and procedures, BIEC Int’l, 791 F. Supp. at 543. See, e.g., Smith, 869 F.2d at 199 (stating that
courts should consider extent to which information is known outside of owner’s business, extent
to which it is known by employees and others involved in business, and extent of measures taken
by owner to guard secrecy of information). The Best Practices Guide “was provided to Chad
Boone as an owner-operator only after receipt of a signed confidentiality agreement.” (Def.’s
Am. Doc., ECF No. 55, Ex. C at ¶ 4) (citing Def.’s Reply Br., ECF No. 58-1, Ex. A). In this
signed agreement, Boone acknowledged receipt of the Best Practices Guide (or “Manuals”), and
expressed his understanding that the “Manuals” constitute Schneider’s “confidential and
proprietary information” and that unauthorized use or disclosure of the Manuals is “strictly

prohibited.” (Def.’s Reply Br., ECF No. 58-1, Ex. A). He agreed to return the Manuals at the
time of any separation—together with any other “confidential or proprietary” documentation.
(Id.). Schneider also emphasizes its intention to take disciplinary and legal action to protect its
information from disclosure by its owner-operator, indicating that it would take disciplinary
action, including termination or cancellation of his lease, and pursue all legal remedies available
to it. (Id.).
“As a general rule courts ‘have not given trade secrets automatic and complete immunity
against disclosure, but have in each case weighed their claim to privacy against the need for
disclosure.’ Notes of Advisory Committee on Rules, Fed. R. Civ. P. 26(c).” Smith, 869 F.2d at
199. However, the information also need not constitute trade secrets to be eligible for protection
under Rule 26(c)(1)(G) (“a trade secret or other confidential research, development, or
commercial information”) (emphasis added). Whether the documents are trade secrets or not,
Schneider must still show good cause for a protective order. See, e.g., id. The Court concludes

that, even if the materials at issue here do not rise to the level of trade secrets, Schneider has met
its burden under Rule 26(c) and the Pansy/Glenmede factors to show “good cause” for
production of the Best Practices Guide and Checks for Learning subject to the entry of a
confidentiality order.
The first Pansy/Glenmede factor (whether disclosure will violate any privacy interests)
weighs in favor of Schneider. Given the manner in which Schneider has developed the Best
Practices Guide and Checks for Learning, the purposes of the information set forth in the
documents (and the harm that could result from disclosure), and the steps taken to protect the
information from disclosure, “disclosure [without a confidentiality order] will violate
[Schneider’s] privacy interests,” Glenmede Tr. Co., 56 F.3d at 483. Because the materials

consist of a company’s business documents, the “embarrassment” factor does not weigh in favor
of Schneider’s motion. See, e.g., Pansy, 23 F.3d at 787 (“As embarrassment is usually thought
of as a nonmonetizable harm to individuals, it may be especially difficult for a business
enterprise, whose primary measure of well-being is presumably monetizable, to argue for a
protective order on this ground.”) (citing Cipollone, 785 F.2d at 1121). With respect to the
“purpose” factor, there is no indication that Gardner is seeking the information for an illegitimate
or improper purpose. See, e.g., Glenmede Tr. Co., 56 F.3d at 483. Additionally, “[s]haring the
information among litigants will promote fairness and efficiency,” id. However, the “fairness
and efficiency” and “purpose” factors ultimately weigh in favor disclosure subject to a
confidentiality order because Gardner will be able to utilize the documents in this litigation.
Citing to two district court opinions, Gardner argues that the interest in public safety
weighs against confidentiality and that, as a large motor carrier, Schneider’s safety policies and
procedures are of particular interest to other drivers. (Pl.’s Resp., ECF No. 57, at ¶¶ 19, 21)

(citing In re FCA US LLC Monostable Elec. Gearshift Litig., 377 F. Supp. 3d 779, 787 (E.D.
Mich. 2019); Castellani v. City of Atl. City, 102 F. Supp. 3d 657, 669 (D.N.J. 2015)). These
cases relied upon by Gardner are unavailing. The FCA court denied the defendant car
manufacturer’s motion to seal in a prospective class action involving alleged dangerous defects
affecting more than 800,000 vehicles. FCA, 377 F. Supp. 3d at 787. The FCA court further
reasoned that, “[u]nlike information merely exchanged between the parties, ‘[t]he public has a
strong interest in obtaining the information contained in the court record.’” Id. at 784 (quoting
Shane Grp, Inc. v. Blue Cross Blue Shield of Mich., 825 F.3d 299, 305 (6th Cir. 2016)); see also,
e.g., In re Avandia Mktg., Sales Practices, & Prods. Liab. Litig., 924 F.3d 662, 677 (3d Cir.
2019) (“We conclude that by conflating the Pansy factors with the common law right of access

standard [applicable to judicial records], the District Court committed an error of law.”). The
other case cited by Gardner, Castellani, concerned allegations of police misconduct, a topic of
great interest to the general public. Castellani, 102 F. Supp. 3d at 669.
Although the documents at issue in this case may involve the policies and practices of a
large motor carrier as well as federal statutes and regulations, this case itself still concerns claims
filed by one plaintiff against a single tractor truck driver and carrier for injuries allegedly
sustained in a traffic accident. See, e.g., Lopez v. CSX Transp., Inc., Civil Action No. 3:14-257,
2015 WL 3756343, at *7 (W.D. Pa. June 16, 2015) (rejecting plaintiff’s argument that railroad
was seeking to perpetuate policy of secrecy surrounding numerous train collisions because
accident before it did not implicate significant public policy concerns justifying exposure of
discovery materials to widespread public dissemination).
This Court has flexibility in crafting a protective order balancing the possible harm to the
party seeking protection with the importance of disclosure to the public. See, e.g., Pansy, 23

F.3d at 787. Given the circumstances, the Court grants Schneider’s Motion for Protective Order
and denies Gardner’s Motion to Compel as to First RFP Nos. 3 and 10 and Second RFP No. 12.
Schneider shall produce the Best Practices Guide and Checks for Learning but shall do so subject
to the entry of a stipulated confidentiality order, to be submitted by the parties within seven days
of the date of this memorandum and accompanying order. It shall produce the documents within
twenty days of the date of entry of the confidentiality order.
B. Algorithms and Equations for Critical Events and Driver Safety Reviews
In First RFP No. 11, Gardner requests “Schneider Critical Event Document including
any/all algorithms and/or equations.” (Pl.’s Mot. to Compel, ECF No. 11, Ex. A at 2). First RFP
No. 13 asks for “[a]ny/all algorithms and/or equations for all Schneider ‘Driver Safety Review.’”

(Id). Schneider claimed that the requests are overly broad and seek irrelevant proprietary
information, but it also attested that “there are no Critical Events for the subject accident” and
that there are no unedited videos from the tractor trailer from the time period beginning July 6,
2019 and ending July 12, 2019. (Pl.’s Mot. to Compel, ECF No. 54-1, Ex. B at RFP Nos 11, 13;
Def.’s Mot. for Protective Order, ECF No. 53-2, Ex. A at RFP Nos. 11, 13). In a follow-up e-
mail, Gardner’s counsel asked for the production of “the critical event calculation, criteria,
algorithm and/or equation,” indicating that it is entitled to this information in order to determine
how Schneider reached its “self-serving” determination that Boone was a “safe driver” (a
characterization that Schneider purportedly will present to the jury). (Pl.’s Mot. to Compel, ECF
No. 54, Ex. E at 2) (citing Pl.’s Resp., ECF No. 57-5, Ex. D at 109:1-6, 110:5-7, 126:22-128:7).
In her e-mail, Schneider’s counsel stated that, as to First RFP No. 11, “[t]here is none.” (Pl.’s
Mot. to Pl.’s Mot. to Compel, ECF No. 54, Ex. C at 1).
In its Motion for Protective Order, Schneider asserts that it produced the “Driver Safety

Review” it had considered after the accident in preparation for a “skill review” meeting with
Boone. (Def.’s Mot. for Protective Order, ECF No. 53, at ¶ 28) (citing Def.’s Mot. for Protective
Order, ECF No. 53-2, Ex. D). One of the components considered in the review is “Critical
Events.” (Id. at ¶ 29). According to Schneider, Boone did not have any Critical Events either
before or after the accident. (Id. at ¶ 30) (citing Def.’s Mot. for Protective Order, ECF No. 53-2,
Ex. D). Schneider claims that no “Critical Event” document exist and that the algorithm or
equation is thereby irrelevant because of the absence of any Critical Event, and further argues
that “[a]ny and all algorithms or equations used to create a ‘critical event’ are proprietary to the
manufacturer of the truck engine and are not in possession of Schneider.” (Id. at ¶ 32) (citing
Def.’s Am. Doc., ECF No. 55, Ex. E).

As to First RFP No. 13, Schneider contends that the equations for the Driver Safety
Reviews are not relevant because the reviews “are used to facilitate further skill review to help
improve safety” and not “to say that a driver is safe.” (Id. at ¶ 35) (citing Def.’s Am. Doc., ECF
No. 55, Ex. E). Second, it asserts that the equations are not relevant because his score at the time
of the accident was “0.” (Id. at ¶ 36). Finally, Schneider argues that its “Driver Safety Review”
algorithms and equations are trade secrets, which must be protected from public dissemination.
(Id. at ¶¶ 37- 40).
Gardner claims that the information concerning exactly when Critical Events are (or are
not) triggered and how Driver Safety Reviews are conducted is directly relevant to her claims of
vicarious and direct corporate negligence. (Pl.’s Mot. to Compel, ECF No. 54, at 4; Pl.’s Resp.,
ECF No. 57, at ¶¶ 27, 30-31, 34, 36). She discusses the deposition testimony of Clark Brown, a
Schneider safety training manager, who testified that, despite Boone running a red light and t-
boning Gardner’s car, no Critical Events (such as a critical braking event) were created as a

result of the accident and Boone’s driver safety score was “as good as it gets.” (Id.) (quoting
Pl.’s Resp., ECF No. 57-5, Ex. D at 110:2-15). Gardner responds that it assumes Schneider will
thereby waive any objections to a third-party subpoena if the “Critical Event” algorithms and
equations were in fact not in Schneider’s possession but were held by a third party. (Id. at ¶ 32).
Finally, she takes issue with that Schneider’s purportedly self-serving and conclusory assertions
that the requested discovery is confidential and proprietary on the same grounds that she raises
concerning the Best Practices Guide and Checks for Learning. (Id. at ¶ 37).
Schneider insists that it does not possess the “Critical Event” algorithm, which belongs to
and is in the possession of the truck manufacturer. (Def.’s Resp., ECF No. 56, at 2 (citing Def.’s
Mot. for Protective Order, ECF No. 53; Pl.’s Mot. to Compel, ECF No. 55); see also Def.’s

Reply Br., ECF No. 58, at 3-4). It further argues that its “Driver Safety Review” algorithm is
irrelevant and that the raw data used in calculating Boone’s “Driver Safety Score” has already
been produced. (Def.’s Resp., ECF No. 56, at 3; Def.’s Reply Br., ECF No. 58, at 4-5). Finally,
Schneider asserts that “Driver Safety Review” algorithm is a confidential trade secret that must
be protected from disclosure. (Def.’s Resp., ECF No. 56, at 3; Def.’s Reply Br., ECF No. 58, at
4-5).
The Court grants the Motion for Protective Order and denies the Motion to Compel as to
First RFP No. 11. Schneider stated in its response to this RFP that “there are no Critical Events
for the subject accident.” (Def.’s Mot. for Protective Order, ECF No. 53-2, Ex. A at RFP No.
11). Schneider cannot produce something that does not exist. It is also clear that Schneider does
not possess the algorithms or equations that are used to generate “Critical Events.” Schneider
Safety Director Drella averred that the “Critical Events” are “generated” by the truck itself and
that any algorithms or equations used to generate a “Critical Event” constitute proprietary

information of the manufacturer of the truck engine and are not in Schneider’s possession.
(Def.’s Am. Doc., ECF No. 55, Ex. E at ¶ 9). “Under ordinary circumstances, a party’s good
faith averment that the items simply do not exist, or are not in his possession, custody or control,
should resolve the issue of failure of production.” Margel v. E.G.L. Gem Lab Ltd., No. 04 Civ.
1514(PAC)(HBP), 2008 WL 2224288, at *3 (S.D.N.Y. May 29, 2009) (quoting Zervos v. S.S.
Sam Houston, 79 F.R.D. 593, 595 (S.D.N.Y. 1992)). The Court accordingly accepts Schneider’s
representation that it does not possess the “Critical Event” algorithm or equation.
However, the Court denies the Motion for Protective Order as to First RFP No. 13. The
Motion to Compel is granted as to First RFP No. 13 to the extent that Schneider is ordered to
produce the algorithms and equations for the “Driver Safety Reviews” subject to the entry of the

stipulated confidentiality order. Schneider shall produce the algorithms and equations within
twenty days of the date of entry of the confidentiality order.
Relevance in the discovery context has been “construed broadly to encompass any matter
that could bear on, or that could reasonably lead to other matter that could bear on any issue that
is or may be in the case.” Oppenheimer Funds, 437 U.S. at 351. Relying on an affidavit from
Drella, Schneider asserts that the “Driver Safety Review” process is not used to determine if a
driver was safe or qualified. (See Def.’s Mot. for Protective Order, ECF No. 53, at ¶ 35; Def.’s
Am. Doc., ECF No. 55, Ex E at ¶¶ 3-4; Def.’s Reply Br., ECF No. 58, at 4). Yet Schneider also
acknowledges that the Driver Safety Review is used as a continuing evaluation of its owner-
operators to monitor their activity and then facilitate further skill review to help improve safety.
(Def.’s Reply Br., ECF No. 58, at 4) (citing Def.’s Am. Doc., ECF No. 55, Ex. E at 1).
Evaluating the driver’s activities operating the vehicle involved in the accident and facilitating a
review of his driving skills to help improve safety could bear on, or at least could reasonably lead

to other matter that could bear on, the issue of whether the driver’s actions (or inaction) rose to
the level of negligence as well as whether motor vehicle carrier had adequate policies and
procedures in place at the time of the accident. Federal Rule of Evidence 407 does provide that
“[w]hen measures are taken that would have made an earlier injury or harm less likely to occur,
evidence of the subsequent measure is not admissible to prove” either “negligence” or “culpable
conduct.” The rule, however, goes on to state that “the court may admit this evidence for another
purpose, such as impeachment or—if disputed—proving ownership, control, or the feasibility of
precautionary measures.” In any event, “[i]nformation within this scope of discovery need not
be admissible in evidence to be discoverable,” Fed, R. Civ. P. 26(b)(1). See, e.g., Bistrian v.
Levi, CIVIL CASE NO. 08-3010, 2015 WL 13867259, at *2 (E.D. Pa. Jan. 30, 2015) (rejecting

challenge to discoverability of alleged subsequent remedial measures).
Schneider argues that its “Driver Safety Review” algorithm or equation is not relevant
because it has already produced all of the “raw data” and the driver’s score at the time of the
accident was zero. (Def.’s Mot. for Protective Order, ECF No. 53, at ¶ 36; Def.’s Reply Br.,
ECF No. 58, at 4). The Court does not agree.
It is undisputed that, as Drella explained in his affidavit:
The Driver Safety Review is [a] mathematical equation containing
numerous factors, including, but not limited to, the number of
preventable accident [claims], the number of non-preventable
accident claims, the number of lost time injuries, the number of
workers compensation claims in the past five years, the number of
hours of service log violations in the preceding six months, the
number of vehicle incidents, the number of preventable critical
events in the last six months, and the number of continuing
education courses overdue.

(Def.’s Am. Doc., ECF No. 55, Ex. E at ¶ 7). For each factor, a numerical value is used to
represent the number of times the event specified in the factor has occurred. (Id. at ¶ 8). “For
example, if there are no hours of service log violations in the preceding six months, the number
‘0’ will be used.” (Id. at ¶ 8). Similarly, if the driver had a “vehicle incident,” the number “1”
will be entered under the “number of vehicle incidents” factor. Based on the numerical values
that have been entered for the various factors, the “Driver Safety Review” equation then
generates a numerical value for the driver’s “Driver Safety Score.”
Schneider produced a “Driver Safety Review” chart for Boone for the week the accident
occurred. (Def.’s Mot. for Protective Order, ECF No. 53-2, Ex. D). The “Driver Safety Score”
was “0,” with zeros being entered in the “Preventable Accident Claims,” “# Non Preventable
Accident Claims,” “# Lost Time Injuries,” “# Hours of Service Log Violations (Last 6 Months),”
“# Logs False (Last Six Months),” “# Vehicle Incidents,” “Preventable Critical Events (Last Six
Months),” and “# Continuing Education Overdue” columns. (Def.’s Mot. for Protective Order,
ECF No. 53-2, Ex. D at 1). The “# Work Comp Claims – 5 years” and “Safety MVR Status”
columns were left blank, and the document also showed that Boone’s “Driver Safety Score 13
Weeks Ago” was “1” (with “-100%” entered for “Driver Safety Score Current to 13 Week
Variance”). (Id.).
It appears that Schneider thereby has identified (at least some of) the factors it uses in its
“equation” to calculate the “Driver Safety Score.” It disclosed that for Boone zeros were entered
for (most of) the factors and that Boone’s “Driver Safety Score” was also zero. However, the
specific equation that Schneider uses to calculate the score is relevant under Rule 26. In other
words, how exactly Schneider uses the numerical values for the various factors in its equation to
calculate the numerical “Driver Safety Score” could still bear on (or at least lead to evidence
relating to) the adequacy of Schneider’s process for scoring the “safety” of its own drivers. As
Gardner emphasizes in her response to the Motion for Protective Order (Pl.’s Resp., ECF No. 57,

at ¶ 27), Brown (a safety training manager employed by Schneider) testified that Boone’s
“current safety score . . . is zero,” stating “[t]hat’s as good as it gets” (Def.’s Mot. for Protective
Order, ECF No. 53-2, Ex. D at 1; Pl.’s Resp., ECF No. 57-5, Ex. D at 110:2-15). Brown’s
testimony that Boone’s current score is “as good as it gets” indicates that Schneider’s process for
arriving at such a score (a score it uses to facilitate review of the driver’s skills and improve
safety) is relevant for purposes of discovery.
Schneider invokes the same confidentiality issues that it raises with respect to its Best
Practices Guide and Checks for Learning. (Def.’s Mot. for Protective Order, ECF No. 53, at 10;
Def.’s Reply Br, ECF No. 58, at 5-6). Assuming arguendo that the algorithm rises to the level of
a trade secret, the Court determines that Schneider has not established good cause for an order

protecting it from disclosure.
The Glenmede/Pansy factors weigh in favor of disclosure and against the entry of an
order protecting Schneider from turning over the “Driver Safety Review” equation. Trade
secrets do not receive automatic protection from disclosure, and the Court must still weigh the
interests in privacy against the need for disclosure. See, e.g., Smith, 869 F.2d at 199. According
to Schneider and Drella, its “Driver Safety” algorithm or equation was created and used solely by
Schneider for its own benefit and must be protected from public dissemination so that it can
continue to promote safety and remain competitive in an already “tight” market for attracting and
retaining owner-operators. (Def.’s Mot. for Protective Order, ECF No. 53, at ¶¶ 37-40; Def.’s
Resp., ECF No. 56, at 3; Def.’s Reply Br., ECF No. 58, at 5; Def.’s Am. Doc., ECF No. 55, Ex.
E at ¶¶ 5-6, 10-15). However, Schneider’s “privacy” interest in its proprietary methodology can
be adequately protected by limiting disclosure of the algorithm or equation with the entry of a
confidentiality order, see, e.g., Glenmede Tr. Co., 56 F.3d at 483. There is no indication that

Gardner is seeking the information for an illegitimate or improper purpose, and sharing this
relevant information among the litigants will promote fairness and efficiency, see, e.g., id.
Furthermore, the “embarrassment” factor does not weigh in favor of Schneider. See, e.g., Pansy,
23 F.3d at 787 (indicating that business may find it difficult to argue for protective order on
grounds of “embarrassment”). The fact that the equation is used by Schneider (one of the largest
motor carriers in the United States) to promote safety also weighs in favor of disclosure (Def.’s
Am. Doc., ECF No. 55, Ex. E at ¶¶ 6, 12). See, e.g., Glenmede Tr. Co., 56 F.3d at 483 (“whether
disclosure is being sought over information important to public health and safety”); Lopez, 2015
WL 2015 WL 3756343, at *7 (noting that defendant railroad does not object to plaintiff seeking
discovery but only to its public dissemination). Accordingly, the Court orders disclosure of the

“Driver Safety Review” algorithms and equations subject to the entry of the stipulated
confidentiality order.
C. Non-Existing Documents and Spoliation
The parties further dispute the adequacy of Schneider’s responses to multiple document
requests. Schneider responded that there are no responsive documents (or, in one instance,
produced the responsive documents and indicated that there are no additional materials
responsive to the RFP). (Def.’s Mot. for Protective Order, ECF No. 53-2, Ex. A at RFP Nos. 1,
2, 4, 5, 7; Pl.’s Mot. to Compel, ECF No. 54-1, Ex. D at RFP Nos. 1, 4, 6, 8, 9). In her Motion to
Compel, Gardner contends that “Defendant has simply not yet produced” the documents
requested in First RFP No. 5 (requesting “Schneider PBSA Document for driver Chad Boone
from 7/6/19 – 7/12/19”) and Second RFP No. 4 (asking for “[a]ny messaging or other
correspondence to, from and/or between Schneider, Sabrina Miller and/or Chad Boone from
7/6/19 to present”). (Pl.’s Mot. to Compel, ECF No. 54, at 4). As to the other RFPs, she asserts

that Schneider was on notice of its obligation to preserve information because of a spoliation
letter provided on July 30, 2019. (Id. at 6). “Plaintiff seeks to understand whether the
information was destroyed or whether it never existed, to determine whether defendants
spoliated evidence.” (Id.). Claiming that “none” is an insufficient response, she requests an
instruction for Schneider to identify whether the respective documents existed and were
destroyed or whether they never existed in the first place. (Id.). With respect to Second RFP No.
4, Schneider’s opposition states the following: “Undersigned counsel has confirmed that there is
none.” (Def.’s Resp, ECF No. 56, at 3). Concerning the other RFPs, Schneider observes that
Gardner seeks documents that do not exist and that a party cannot be compelled to produce non-
existing documents. (Id. at 2-3). Schneider asserts that the fact no documents exist does not

mean that there has been some sort of “nefarious activity.” (Id.). Arguing that Rule 34 mandates
production of the responsive documents as opposed to an explanation for why there no
responsive documents, Schneider contends that, if further inquiries are desired, follow-up
questions can be asked during the deposition of the corporate designee. (Id.). The Court denies
the Motion to Compel as to First RFP Nos. 1, 2, 4, 5, and 7 and Second RFP Nos. 1, 4, 6, 8, and
9. Under Federal Rule of Civil Procedure 34(a)(1)(A), a party may serve on any other party a
request to produce “any designated documents or electronically stored information.” Schneider
has complied with its obligations under the rule by providing complete responses to Gardner’s
requests for production of documents. It has done so by either stating that there are no
responsive documents or, with respect to Second RFP No. 4, producing the driver messages for
both Boone and Miller and subsequently clarifying that there are no additional responsive
documents. (Def.’s Mot. for Protective Order, ECF No. 53-2, Ex. A at RFP Nos. 1, 2, 4, 5, 7;
Pl.’s Mot. to Compel, ECF No. 54-1, Ex. D at RFP Nos. 1, 4, 6, 8, and 9; Def.’s Resp., ECF No.

56, at 3). “Under ordinary circumstances, a party’s good faith averment that the items simply do
not exist, or are not in his possession, custody or control, should resolve the issue of failure of
production.” Margel, 2008 WL 2224288, at *11. “This Court cannot compel the production of
documents that do not exist.” Banks v. Beard, Civ. No. 3:CV-10-1489, 2013 WL 3773837, at *2
(M.D. Pa. Jul. 17, 2013) (citing Susquehanna Commercial Fin., Inc. v. Vascular Res., Inc., No.
09-2012, 2010 WL 4973317, at *6 (M.D. Pa. Dec. 1, 2010)). Schneider has done all it was
required to do in answering the applicable requests for production of documents. As Schneider
observes, Gardner’s counsel can ask follow-up questions during the corporate designee
deposition. (Def.’s Resp., ECF No. 56, at 4).
D. Miller Documents

Gardner moves for an order to compel production of documents regarding Sabrina Miller
requested in Second RFP Nos. 3, 5, 10, and 11. Specifically, she requests her tracking reports
from July 6, 2019 to July 12, 2019 (Second RFP No. 3), Miller’s “[d]river file” (Second RFP No.
5), and Schneider Driver Safety Reviews for Miller from “hire to present” (Second RFP Nos. 10-
11). (Pl.’s Mot. to Compel, ECF No. 54-1, Ex. A at 1). Producing Boone’s tracking reports,
Schneider objected to Second RFP No. 3 as overly broad and claims that it seeks documents of a
non-party. (Pl.’s Mot. to Compel, ECF No. 54-1, Ex. D at RFP No. 3). It raised similar
objections to the other requests. (Id. at RFP Nos. 5, 10, 11). Counsel for Gardner subsequently
restated his client’s requests, claiming that Miller was present and contributed to the “co-driving
scenario” causing the crash. (Pl.’s Mot. to Compel, ECF No. 54-1, Ex. E at 2-3). Schneider’s
counsel responded that “Sabrina was not driving” and referred Gardner to its response to the
RFPs. (Pl.’s Mot. to Compel, ECF No. 54-1, Ex. C at 1).
Gardner argues that Miller was Boone’s co-driver, an agent of Schneider, and like Boone,

was fired by a prior employer for “violations of hours-of-service logs.” (Pl.’s Mot. to Compel,
ECF No. 54, at 6). She claims that there is an issue in this case of whether service hours were
properly logged and tracked. (Id.) Emphasizing that Miller was Boone’s co-driver, was not
driving at the time of the accident, and has not been named a party to this action, Schneider
argues that her private personal history (from “hire to present”) is not relevant. (Def.’s Resp.,
ECF No. 56, at 4-6). As to the “hours-of-service” issue, it claims that this is a new allegation
without any factual basis other than the assertion that Boone and (presumably) Miller were fired
from a prior employer for log violations. (Id. at 5). In any event, it has already provided the
documents needed to evaluate the claim of log violations as to Boone himself. (Id.).
The Court concludes that Gardner has failed to meet her burden of establishing the

relevance of the Miller documents and that, even if the documents may have some relevance to
this case, her requests are unduly burdensome. It is undisputed, that, although she was Boone’s
“co-driver,” Miller was not actually driving the tractor-trailer at the time of the accident, and she
is not a party to this litigation. Gardner does not explain why the various documents she seeks
concerning such an individual are relevant to her claims against the actual driver and the motor
carrier. In any event, Schneider has already produced Miller’s driver logs, driver messages, and
“RAIR” report. (Pl.’s Mot. to Compel, ECF No. 54-1, Ex. D at RFP Nos. 2, 4, 7). Yet Gardner
asks for “Schneider Driver Safety Reviews for Samira [sic] Miller from hire to present.” (Pl.’s
Mot. to Compel, ECF No. 54-1, Ex. A at 1) (emphasis added). Gardner also requests Miller’s
entire “[d]river file” (Pl.’s Mot. to Compel, ECF No. 54-1, Ex. A at 1). Her file nevertheless
contains private personal information about an owner-operator who is not a named party to this
litigation. See, e.g., Singletary v. Sterling Transp. Co., 289 F.R.D. 237, 241-42 (E.D. Va. 2012)
(stating that request for entire employment file is overly broad on its face).

Accordingly, the Court denies Gardner’s Motion to Compel as to Second RFP Nos. 3, 5,
10, and 11.
E. Depositions
Gardner also requests an order compelling the completion of depositions within thirty
days. (Pl.’s Mot. to Compel, ECF No. 54, at 7).
The Court denies Gardner’s motion to the extent that it seeks an order compelling the
completion of depositions. Gardner acknowledges in her motion that there is no apparent
problem with scheduling depositions and that she is seeking judicial intervention merely because
the depositions have not yet been scheduled. The Court fully expects that the parties will work
cooperatively to schedule the remaining depositions as expeditiously as possible, and therefore

denies the motion to compel depositions without prejudice.

IV. CONCLUSION
For the foregoing reasons, Schneider’s Motion for Protective Order and Gardner’s
Motion to Compel are granted in part and denied in part.
BY THE COURT:

_/s/ Lynne A. Sitarski__________
LYNNE A. SITARSKI
United States Magistrate Judge

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Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/10404768. Public record. Not legal advice.