Lowther v. Marten Transport - Court Compels Deposition of Claims Investigator

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April 9, 2026 Get Citation Alerts Download PDF Add Note

Paula Lowther v. Marten Transport, LTD and Thomas Doster

District Court, W.D. Oklahoma

• Citations: None known
• Docket Number: 5:24-cv-01206

• Precedential Status: Unknown Status

• Opinion

• Authorities (5)

• Cited By (0)

• Summaries (0)

• Similar Cases (37.8K)

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Trial Court Document

IN THE UNITED STATES DISTRICT COURT
FOR THE WESTERN DISTRICT OF OKLAHOMA

PAULA LOWTHER, )
)
Plaintiff, )
)
v. ) Case No. CIV-24-1206-SLP
)
MARTEN TRANSPORT, LTD, and )
THOMAS DOSTER, )
)
Defendants. )

O R D E R

Before the Court is Plaintiff’s Motion to Compel Deposition Testimony of Ryan
McGee Doc. No. 48. The matter has been fully briefed and is at issue. See
Resp. [Doc. No. 57]; Reply [Doc. No. 61]; Sur-Reply [Doc. No. 69]; Sur Sur-Reply [Doc.
No. 72]. For the reasons that follow, the Motion is granted.
I. Introduction
This action involves various negligence-based claims against Defendants Marten
Transport, LTD (Marten Transport) and Thomas Doster (Doster) relating to a motor vehicle
accident that occurred on Interstate 35. Doster was driving a semi-truck on behalf of
Marten Transport when his vehicle collided with Plaintiff’s vehicle.
In her Motion, Plaintiff seeks to compel the deposition of non-party Ryan McGee
(McGee), an employee of Marten Transport. Plaintiff asserts that the deposition of McGee
is relevant for primarily two reasons: (1) as part of his role at Marten Transport, McGee
conducts investigations of collisions involving Marten Transport vehicles, including
determining fault and liability of parties to the collision; and (2) McGee determines
whether or not data is downloaded from the semi-truck’s event data recorder after a
collision, and would have personal knowledge as to the decision not to download the data

from Doster’s vehicle. See generally Mot. [Doc. No. 48] at 1-2. Defendants assert that
McGee’s testimony is not relevant to the claims and/or defenses, is not proportional to the
needs of the case, and is protected by the attorney-client privilege. The Court will address
each of Defendants’ arguments in turn.
II. Governing Law

Civil litigants “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. . .” Fed.
R. Civ. P. 26(b)(1). [R]elevance is broadly construed to include “any matter that bears on,
or that reasonably could lead to other matter that could bear on any party’s claim or
defense.” Miller v. Legacy Bank, No. CIV-20-946-D, 2023 WL 6204541 (W.D. Okla.

Sept. 22, 2023) (citations omitted). The proportionality analysis considers “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.” Fed. R. Civ. P. 26(b)(1).

III. Analysis
1. Relevancy and Proportionality
First, the Court finds that McGee’s potential testimony is discoverable. As to
McGee’s potential testimony regarding his pre-suit investigation of the incident,
Defendants assert the testimony is not admissible because McGee has not been identified
as an expert witness and cannot render expert opinions in the matter. See Resp. [Doc. No.
57] at 5. Further, they state McGee cannot offer any lay opinion as such an opinion would

not be based on his own perceptions of the incident as contemplated by Rule 701 of the
Federal Rules of Evidence. Id. The Court finds these arguments not well taken.
“Information within [the scope of Rule 26(b)(1)] need not be admissible in evidence to be
discoverable.” Fed. R. Civ. P. 26(b)(1). Instead of addressing relevancy, Defendants
solely focused on the admissibility of McGee’s proposed testimony. The fact that McGee’s

proposed testimony may not be admissible does not mean it cannot be discoverable. It
also appears that McGee’s non-legal work as a claims handler investigating and making
determinations for Marten Transport collisions is relevant to Plaintiff’s claims. As such,
the Court finds McGee’s investigation of the subject incident and involvement in the
handling of the subsequent claim is discoverable and relevant information to the extent

such information is not privileged.
The Court also finds McGee’s potential testimony regarding the treatment of data
downloaded (or not) from Doster’s vehicle is relevant. Plaintiffs assert that such testimony
is relevant as McGee has personal knowledge as to why data was not downloaded from the
event data recorder of Doster’s vehicle. See Mot. [Doc. No. 48] at 2-3. In response,

Defendants focus on the testimony of their accident reconstruction expert, Matthew
Arbour. Arbour testified that using Doster’s dash cam video of the incident, as well as
GPS data, the speed of Doster’s vehicle could be determined. See Resp. [Doc. No. 57] at
5-6. Arbour then states that the rate at which Doster’s vehicle slowed would not have
triggered the event data recorder during the collision, and no data would have been
recorded. Id. at 6. However, the Court agrees with Plaintiff that the underlying reasons
for McGee’s decision not to download data from the event data recorder of Doster’s vehicle

are relevant. Even if event data was not recorded from the incident, Plaintiff is entitled to
know why the individual responsible for downloading such data for Marten Transport
made the decision not to. Such testimony is relevant to the treatment of evidence in the
matter. Accordingly, the Court finds that McGee’s proposed testimony is relevant to
Plaintiff’s claims.

Next, the Court finds that the proposed testimony of McGee is proportional to the
needs of the case. Defendants assert that the deposition of McGee would be unduly
burdensome. 1 Because the Court has found that the information sought is relevant,
Defendants must demonstrate “that the potential harm occasioned by [the requested
discovery] would outweigh the ordinary presumption in favor of broad disclosure.”

Simpson v. Univ. of Colorado, 220 F.R.D. 354, 359 (D. Colo. 2004). Defendants focus on
logistical complications with the preparation and presentation of McGee for deposition,
rather than substantive undue burdens associated with the proposed testimony. See Resp.
[Doc. No. 57] at 7-8. Preparation and attendance at a deposition seeking relevant
information is not an undue burden on its own.2 See, e.g., Young v. Pepe Tools, Inc., No.

1 Defendants do not address any of the other proportionality factors outlined in Rule 26(b)(1).

2 Defendants assert that litigation counsel will undergo an undue burden “prevent[ing] the
disclosure of privileged material” during the deposition of McGee. See Resp. [Doc. No. 57] at 7-
8. This argument is not well taken as, discussed below, Defendants have not demonstrated how
the requested deposition topics are protected by the attorney client privilege.
25-MC-887, 2025 WL 3513914, at *6 (D. Utah Dec. 8, 2025) (collecting cases); see also
Sentry Ins. v. Shivers, 164 F.R.D. 255, 257 (D. Kan. 1996) (“That defendants will incur
additional expense by attending the . . . depositions does not show undue burden[.]”).

Defendants’ proportionality arguments are undeveloped, do not cite to any authority, and
do not demonstrate the burdens of deposing McGee outweigh the relevant proposed
testimony. Accordingly, the Court finds that McGee’s proposed testimony is both relevant
and proportional to the needs of the case.
2. Attorney-Client Privilege

Lastly, Defendants assert that McGee’s potential testimony is protected under the
attorney-client privilege because, in his role as a claims adjuster for Marten Transport, he
assisted litigation counsel with the claim since counsel had been retained. “The burden of
establishing the applicability of [the attorney-client] privilege rests on the party seeking to
assert it.” In re Grand Jury Proc., 616 F.3d 1172, 1183 (10th Cir. 2010) (citations omitted

and brackets in original). Because this is a diversity action under Oklahoma law, the Court
will look to Oklahoma law regarding the assertion of the attorney-client privilege. See
Seneca Ins. Co. v. W. Claims, Inc., 774 F.3d 1272, 1275 (10th Cir. 2014); Fed. R. Evid.
501. Relevant here, Defendants may assert the privilege in situations where “confidential
communications [between an attorney and a representative of Marten Transport were]

made for the purpose of facilitating the rendition of professional legal services to [Marten
Transport.] See Okla. Stat. tit. 12 § 2502(B). However, “the mere fact that an attorney
was involved in a communication does not automatically render the communication subject
to the attorney-client privilege . . . rather, the communication between a lawyer and client
must relate to legal advice or strategy sought by the client.” In re Grand Jury Proceedings, 616 F.3d at 1182 (cleaned up and citations omitted).
In his affidavit attached to Defendants’ response brief, McGee states in his “position

as a Claims Manager, [he] investigate[s] vehicle collisions, advise[s] other adjusters under
[his] supervision, and assist[s] the risk management department in determining liability
after a motor vehicle collision occurs.” Aff. of Ryan McGee [Doc. No. 57-2] at ¶ 5.
Further, he states he “work[s] in cooperation with, and assist[s], litigation counsel when a
lawsuit is filed or anticipated to be filed.” Id. at ¶ 6. However, McGee states in his affidavit

attached to Defendants’ sur-reply brief that he retained litigation counsel to represent
Marten Transport on November 1, 2024. See Aff. of Ryan McGee [Doc. No. 69-1] at ¶ 5.
The subject incident occurred on February 9, 2023. See, e.g., Pet. [Doc. No. 1-3] at ¶ 1.
Defendants do not address how McGee’s investigation and determination as to fault and
liability were a part of McGee’s role in assisting legal counsel. Defendants have failed to

show how any investigation conducted by McGee prior to the retention of litigation counsel
would be privileged. Even after litigation counsel was retained, Defendants have not
shown how McGee’s investigation and determinations as to fault and liability were used to
facilitate the rendition of legal services. See, e.g., Leblanc v. Texas Brine Co., LLC, No.
CIV-16-1026-D, 2017 WL 913801, at *3 (W.D. Okla. Mar. 7, 2017) (“The attorney-client

privilege protects ‘confidential disclosures [made by the client] to an attorney . . . in order
to obtain legal assistance.’”) (quoting Fisher v. United States, 425 U.S. 391, 403 (1976)).
It appears such duties are a part of McGee’s role as claims manager regardless of whether
counsel is retained. See Aff. of Ryan McGee [Doc. No. 57-2] at ¶ 5. Defendants also do
not address how McGee’s potential testimony regarding the event data recorder is
privileged. Accordingly, the Court finds that Defendant has not demonstrated how
Plaintiff's proposed deposition topics are protected by the attorney-client privilege.
IV. Extension of Time to Conduct Deposition
The Motion and corresponding briefs were filed before the expiration of the April
1, 2026, discovery deadline set forth in the Court’s Second Amended Scheduling Order
[Doc. No. 42]. Because the Court finds the requested relief in the Motion warranted, the
Court, acting sua sponte, will extend the discovery deadline only for the purpose of
conducting McGee’s deposition. The parties are cautioned that all other deadlines in the
Second Amended Scheduling Order [Doc. No. 42] remain in effect absent further order
from the Court.
Conclusion
IT IS THEREFORE ORDERED that Plaintiffs Motion [Doc. No. 48] is
GRANTED. The Court, acting sua sponte, grants Plaintiff leave of Court to take the
deposition of Ryan McGee out of time by April 23, 2026. Should the parties require more
time to conduct the deposition, either party may file a motion requesting such relief.
IT IS SO ORDERED this 9" day of April, 2026.

SCOTT L. PALK
UNITED STATES DISTRICT JUDGE