Touchet v. United Specialty Insurance Company et al

1
UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF LOUISIANA
CHARLES TOUCHET
VERSUS
UNITED SPECIALTY INSURANCE
COMPANY, ET AL.
*
*
*
CIVIL ACTION
NO. 24-1020
SECTION “S” (2)
ORDER AND REASONS
Pending before me is Plaintiff Charles Touchet’s Motion to Compel the Deposition of
Defendant Dorgelys Manzano Borrell and Requested Documents Under Rule 30(b)(6) [sic]. ECF
No. 36. 	Defendants Borrell and Alive Free Transportation, LLC timely filed an Opposition
Memorandum. 	ECF No. 38. 	No party requested oral argument in accordance with Local Rule
78.1, and the court agrees that oral argument is unnecessary.
Having considered the record, the submissions and arguments of counsel, and the
applicable law, Plaintiff’s Motion to Compel the Deposition of Defendant Dorgelys Mazano
Borrell is DENIED WITHOUT PREJUDICE and Motion to Compel Requested Documents Under
Rule 30(b)([2]) is DENIED AS MOOT.
I. 	BACKGROUND
In this car accident case, Plaintiff Charles Touchet alleges that Defendant Dorgelys Mazano
Borrell, while acting in the course and scope of 	employment with Defendant Alive Free
Transportation, LLC’s (“AFT”), improperly slowed his truck down in the right lane to “check his
load,” leaving Plaintiff Touchet unable to avoid a collision in which he sustained personal injuries.
ECF No. 1 ¶¶ V-VII, X. Plaintiff asserts negligence claims against Borrell and claims of vicarious
liability and independent negligence against AFT. Id. ¶¶ VIII-IX. The April 15, 2025, Scheduling
Order, as modified, sets a December 29, 2025, discovery deadline. ECF No. 25; No. 39.
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On August 17, 2025, Plaintiff served a Rule 30(b)(6) Deposition Notice on AFT. ECF No.
36-4 at 1-2. 	The notice listed no date, time, or place. 	Plaintiff did, however, attach an exhibit
describing the deposition topics and a list of 55 items requested for production at the deposition.
Id. at 3-9. The deposition occurred on October 22, 2025. ECF No. 36-3 at 1; No. 38 at 2.
On November 3, 2025, Plaintiff filed a defective motion to compel. 	ECF No. 35. 	On
November 4, 2025, Plaintiff filed this motion, asking the Court to compel the deposition of Borrell
and produce certain categories of documents. ECF No. 36-3 at 1-2. As to the first request, Plaintiff
asserts the parties agreed to hold both AFT and Borrell’s deposition on October 22, 2025, but the
latter did not occur and Defendants’ counsel has been unable to contact him. Id. at 2. As to the
second request, Plaintiff asserts that there are 8 categories of documents outstanding and that
AFT’s representative testified she could provide the documents. Id. These are:
1) all correspondence to/from Alive Free and its insurance company with regards
to the claim
2) any documents electronic or otherwise in Alive Free's possession including
manuals, safety manuals, records of safety meetings, training materials, etc
3) copy of the remainder of the employment file of the driver including social
security card
4) Motive records which document the speed of the vehicle to coincide with the
logs that were previously produced
5) text messages from the driver on the date of the crash
6) records documenting length of employment of the driver including bills of
lading, etc
7) 	email 	correspondence 	regarding 	the 	driver 	and 	Alive 	Free 	and
livefreetrans@gmail.com
8) records of calls/texts from driver to 832-468-8440
Id. at 1-2. 	Plaintiff’s attached Rule 37(a)(1) certificate states he conferred in good faith with
opposing counsel to obtain the deposition and documents, but neither Borrell nor the outstanding
documents have been produced. ECF No. 36-2.
In their Opposition, Defendants argue Plaintiff’s certificate is defective as it does not
comply with this Court’s requirements for Rule 37(a)(1) certification and that, while there was an
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informal post-deposition discussion between counsel about the production of the documents, that
discussion does not constitute a Rule 37 conference because it was not scheduled and counsel did
not discuss when the documents would be produced. ECF No. 38 at 2-4.1 Defendants note they
produced documents before Plaintiff properly filed his motion; on November 3, 2025, Defendants
produced Borrell’s social security card (partially Category 3) and confirmed that the AFT designee
reported there are no documents responsive to Category 4. Id. at 4; see ECF No. 38-1. Defendants
also note they produced additional documents on November 10 and 11, 2025: emails responsive
to Category 1 and Second Supplemental Responses to Requests for Production addressing the
outstanding requests. ECF No. 38-3 at 4-5; No. 38-2; No. 38-4. As to the deposition of Borrell,
Defendants assert that Plaintiff did not issue a notice of deposition before filing, but the deposition
has now been noticed. ECF No. 38 at 5; No. 38-3.
II. 	APPLICABLE LAW
A. Oral Deposition Notices Accompanied by Requests for Production
Rule 30 of the Federal Rules of Civil Procedure authorizes a party to depose any person,
including a party, by oral questions generally without leave of court. FED. R. CIV. P. 30(a)(1). The
party must give reasonable written notice to every other party, stating the time and place of the
deposition, the method of recording it, and, if known, the deponent’s name and address. 	Id. at
30(b)(1), (3)(A). A party may name as the deponent an organization and, in doing so, must describe
with reasonably particularity the matters for examination. Id. at 30(b)(6). That named organization
must then designate one or more persons who will testify on its behalf, and it may set out the
matters on which each designee will testify. Id. A designee must testify about information known
1 See Motions & Oral Argument, The Honorable Donna Phillips Currault, UNITED S TATES D ISTRICT C OURT EASTERN
D ISTRICT O F LOUISIANA , http://www.laed.uscourts.gov/judges-information/judge/honorable-donna-phillips-currault
(last visited November 17, 2025).
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or reasonably available. Id.
A deposition notice directed to a party deponent may be accompanied by a request to
produce documents and tangible things within the latter’s possession, custody, or control at the
deposition. Id. at 30(b)(2); FED. R. CIV. P. 34(a)(1). That request must describe with reasonable
particularity each item or category of items to be inspected and specify a reasonable time, place,
and manner for the inspection and for performing related acts. FED. R. CIV. P. 34(b)(1)(A)-(B).
Rule 34 allots 30 days from the date of service for the respondent to respond to a request for
production, so a notice to a party deponent accompanied with requests for production must be
served at least 30 days before the deposition. See id. at 34(b)(2).2
B. Motions to Compel
Rule 37 explicitly authorizes a party to move for an order compelling disclosure or
discovery and lists the specific motions the party may file. FED. R. CIV . P. 37(a)(1), (3)(A)-(B).
It does not, “by its terms, address a motion to compel a party to appear for a deposition.”3 “The
only recourse expressly provided under the Federal Rules for a party seeking another party’s
deposition is to properly notice the deposition and file a motion under Rule 37(d)(1)(A) if and
when the deponent fails to appear.”4 Accordingly, “[a]lthough the Federal Rules of Civil Procedure
have no explicit requirement that a notice of deposition be served before a party files a motion to
compel a deposition, courts routinely impose such a requirement.”5 	And “[o]ther courts have
2 See also Thomas v. WSFM, L.L.C., No. 07-1336, 2008 WL 821948, at *1 (E.D. La. Mar. 26, 2008) (noting proper
procedure to obtain documents from a party in conjunction with a deposition is to serve a Rule 34 request, which
requires 30 days to respond); Dowling v. Cleveland Clinic Found., 593 F.3d 472, 479 (6th Cir. 2010).
3 Keplar v. Google, LLC, 346 F.R.D. 41, 47 (N.D. Tex. 2024) (citing F ED. R. CIV. P. 37(a)).
4 Id. (citation).
5 Robinson, No. 14-4187, 2016 WL 1273900, at *2 (quoting Exec. Mgmt. Servs., Inc. v. Fifth Third Bank, No. 13-
582, 2014 WL 5529895, at *13 (S.D. Ind. Nov. 3, 2014) (collecting cases)).
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denied motions to compel depositions absent a proper notice of deposition” under Rule 30(b)(1).6
In connection with a motion to compel, Rule 37(a)(1) requires: “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.” To
ensure compliance with this Rule, this Court expressly requires the parties to provide detailed
information in the required Rule 37 certificate, specifying:
(1) how the required conference was scheduled,
(2) who participated in the conference,
(3) the date and time of the conference,
(4) whether the conference was conducted by phone or in person,
(5) the duration of the conference,
(6) the specific topics that were addressed at the conference, and
(7) whether any issues were resolved, and, if so, the terms of the resolution. 7
These instructions further direct that the “meet and confer [must be] either in person or by
telephone, not simply via email exchange.”8 The failure to engage in a fulsome meet and confer
prior to filing a discovery motion constitutes sufficient reason in itself to deny the motion.9 Indeed,
courts routinely deny discovery motions for failure to comply with Rule 37(a)(1).10 Motions to
compel depositions are subject to Rule 37(a)(1)’s certification requirement.11
6 Id. (quoting Dang ex rel. Dang v. Eslinger, No. 14-37, 2014 WL 3611324, at *1 (M.D. Fla. July 22, 2014)
(collecting cases)); see also McClure v. Johnson Specialty Tools, LLC, No. 24-140, 2025 WL 2881426, at *1 (M.D.
La. Jan. 15, 2025) (“The Court will not . . . order non-party employees or former employees to attend a deposition in
the absence of properly issued deposition notices under Rule 30(b).” (citing Byrd v. Castelpoint Fla. Ins. Co., No.
15-634, 2016 WL 1559584, at *2 (M.D. La. Apr. 18, 2016) (citing Dang, No. 14-37, 2014 WL 3611324, at *1);
Home Design Servs. Inc. v. Collard Props., LLC, No. 11-11, 2012 WL 1801946, at *2 (D. Colo. May 17, 2012)
(denying motion to compel as premature insofar as it sought an order compelling depositions where no notices of
depositions were served))); Huddleston v. Bowling Green Inn of Pensacola, 333 F.R.D. 581, 588 (N.D. Fla. 2019).
7 Motions & Oral Argument, The Honorable Donna Phillips Currault, UNITED S TATES D ISTRICT C OURT EASTERN
D ISTRICT O F LOUISIANA , http://www.laed.uscourts.gov/judges-information/judge/honorable-donna-phillips-currault
(last visited November 17, 2025).
8 Id.
9 Shaw Grp. Inc. v. Zurich Am. Ins. Co., No. 12-257, 2014 WL 4373197, at *3 (M.D. La. Sept. 3, 2014) (stating the
Rule 37 certification is a prerequisite).
10 See, e.g., Greer v. Bramhall, 77 F. App’x 254, 255 (5th Cir. 2003) (finding the district court did not abuse its
discretion in denying motion to compel for failing to follow Rule 37); D.H. Griffin Wrecking Co., Inc. v. 1031 Canal
Dev., L.L.C., No. 20-1051, 2020 WL 8265341, at *3 (E.D. La. Apr. 16, 2020) (citing cases).
11 See Riverbend Env’t Servs., LLC v. Crum & Foster Specialty Ins. Co., No. 22-31, 2023 WL 2563228, at *3 (S.D.
Miss. Mar. 17, 2023) (finding motion to compel deposition was subject to Rule 37(a)(1)’s certification requirement);
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III. 	ANALYSIS
Plaintiff’s Rule 37 certificate fails to comply with this Court’s requirements for motions to
compel before it. And while Plaintiff notes his counsel and Defendants’ counsel conferred about
outstanding discovery at the AFT deposition, there is no discussion of what the parties addressed
and resolved. 	See ECF No. 36-3 at 2. 	Further, Plaintiff apparently did not notice Borrell’s
deposition until after he filed his Motion to Compel, which renders that motion premature. See
ECF No. 38-3. And while Plaintiff has now noticed Borrell’s deposition, it is not scheduled until
November 21, 2025. Id. Thus, the motion is premature as Borrell has not yet failed to appear.
With regard to the Motion to Compel directed to the documents requested for AFT’s
deposition, Plaintiff has informed Chambers that Defendants’ production has mooted that issue.
IV. 	CONCLUSION
Accordingly, for the foregoing reasons,
IT IS ORDERED that Plaintiff’s Motion to Compel the Deposition of Defendant Dorgelys
Manzano Borrell (ECF No. 36) is DENIED WITHOUT PREJUDICE.
IT IS FURTHER ORDERED Plaintiff’s Motion to Compel Requested Documents Under
Rule 30(b)([2]) (ECF No. 36) is DENIED AS MOOT.
Dated this ________ day of November, 2025.
___________________________________
DONNA PHILLIPS CURRAULT
UNITED STATES MAGISTRATE JUDGE
Magnum Exps. V. Harvest King Trading USA, No. 22-2043, 2022 WL 17190185, at *4 (C.D. Cal. Aug. 31, 2022)
(denying requests for sanctions pursuant to Rule 37(a)(5) because plaintiff filed its motions, including motion to
compel deposition, before completing a good-faith attempt to meet and confer).
18th
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