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National Railroad Passenger Corp. v. Cimarron Crossing Feeders, LLC

United States District Court, D. Kansas

September 26, 2017

NATIONAL RAILROAD PASSENGER CORP. and BNSF RAILWAY COMPANY, Plaintiffs,
v.
CIMARRON CROSSING FEEDERS, LLC, Defendant, and EVERETT OWEN, et al., Intervenor-Plaintiffs, and NATIONAL RAILROAD PASSENGER CORP. d/b/a AMTRAK; and BNSF RAILWAY COMPANY, Defendants and Intervenor-Defendants.

          MEMORANDUM AND ORDER

          Teresa J. James U.S. Magistrate Judge

         This matter is before the Court on the Motion for Protective Order and/or Motion to Limit Discovery Regarding Intervenor-Plaintiffs' Notice of Video Deposition Duces Tecum of Corporate Designee(s) (ECF No. 206) (“Motion for Protective Order and/or to Limit Discovery”) filed by Plaintiffs National Railroad Passenger Corporation (“Amtrak”) and BNSF Railway Company (“BNSF”) (jointly “Railroad Plaintiffs”). As set forth below, the motion is granted in part and denied in part.

         I. FACTS RELEVANT TO THE DEPOSITION TOPICS AND DOCUMENT REQUESTS AT ISSUE[1]

         On July 12, 2017, Intervenor-Plaintiffs served identical notices of Rule 30(b)(6) video depositions on Amtrak and BNSF (“Notices”).[2] The Notices set out thirteen areas of inquiry (“Topics”) and eight requests for production of documents (“Requests”) primarily concerning the Southwest Chief Route Improvement Project (“Southwest Chief Project”).[3] In response, on July 24, 2917, Railroad Plaintiffs timely filed their Motion for Protective Order and/or to Limit Discovery.

         The Southwest Chief Project is a reference to the 2014 grant application by the City of Garden City, Kansas for United States Department of Transportation funds through a program known as the Transportation Investment Generating Economic Recovery Discretionary Grant Program (“TIGER”). The funds were to be used for track improvements to the La Junta Subdivision, which is the section of BNSF track between Hutchinson, Kansas and Las Animas, Colorado. Garden City was a necessary sponsor of the application because private organizations, such as BNSF and Amtrak, cannot apply for TIGER grant funds. Garden City's TIGER grant application was prepared by the Seneca Group, LLC, a Washington, D.C. consulting firm which claims that the “[a]pplication preparation was performed in close cooperation with project stakeholders including state DOT's, Amtrak and the BNSF Railway.”[4]

         II. OBJECTIONS TO THE DEPOSITION TOPICS AND DOCUMENT REQUESTS

         Railroad Plaintiffs make several arguments in support of their request for a protective order prohibiting discovery into, or alternatively limiting, the deposition Topics and Requests set out in Intervenor-Plaintiffs' Notices. They argue that Intervenor-Plaintiffs should not be permitted to ask deposition questions or obtain documents related to track safety, speed, conditions, and inspection activities because those Topics and Requests are regulated by and preempted by federal law. They also argue that deposition questions and document requests regarding the 2014 TIGER grant application are irrelevant, excessively broad, unduly burdensome, and not proportional to the needs of the case. They further set out their specific objections to each enumerated Topic and Request. Finally, they object to the Intervenor-Plaintiffs' stated intent to live internet stream the depositions.

         A. Global Federal Preemption Objections to Discovery

         Railroad Plaintiffs assert a global federal preemption objection to all the deposition Topics and Requests pertaining to track safety, speed, conditions, and inspection activities. Under the Federal Railroad Safety Act (“FRSA”), laws, regulations, and orders related to railroad safety are to be “nationally uniform to the extent practicable.”[5] Therefore, Railroad Plaintiffs argue a duty under state law is preempted if the Secretary of Transportation, acting through the Federal Railroad Administration (“FRA”), has issued a regulation that covers the claim being asserted under state law. Railroad Plaintiffs contend the FRA found that they were in compliance with the FRA Track Safety Standards imposed by the FRA in 49 C.F.R § 213.1, et. seq., and therefore Intervenor-Plaintiffs' claims pertaining to track safety, speed, or other conditions covered in those sections are preempted by federal law. They argue the Court should therefore prohibit discovery on Topics and Requests seeking testimony regarding track safety, speed, conditions, and inspection activities.

         Intervenor-Plaintiffs argue that federal preemption is not an appropriate objection for refusing to produce corporate representatives for deposition. This is because prohibiting discovery based on an assumption that Railroad Plaintiffs will be successful in establishing federal preemption as an affirmative defense is premature and not appropriate at the discovery stage. Intervenor-Plaintiffs claim they have alleged in their complaint that the Railroad Plaintiffs were negligent in failing to comply with federal standards of care established by federal regulations and Railroad Plaintiffs' own internal rules created pursuant to such regulation. In support of their argument, Intervenor-Plaintiffs state that in 2007, Congress amended 49 U.S.C. § 20106(b) to clarify that the FRSA can no longer be used to shield railroads from liability for harm resulting from violations of FRA standards, applicable state law, and internal railroad operating rules.

         The Court finds the asserted federal preemption objections to discovery are premature and unsupported. Railroad Plaintiffs cite no cases in which a court prohibited or limited discovery based on a similar preemption argument. Railroad Plaintiffs argue that state law duties having to do with railroad safety are subject to federal preemption, but Intervenor-Plaintiffs have alleged BNSF was negligent in failing to comply with federal standards of care established by federal regulations, 49 C.F.R. 213 et seq., and internal rules created pursuant to such regulations.[6] Intervenor-Plaintiffs have also cited statutory authority that provides “clarification regarding state law causes of action, ” 49 U.S.C. § 20106(b), which supports their argument against federal preemption here. In any event, Intervenor-Plaintiffs are not required to show that they will ultimately prevail on Railroad Plaintiffs' federal preemption argument in order to request and obtain relevant discovery on track conditions and inspection activities. Railroad Plaintiffs' federal preemption objections to the deposition Topics and Requests are overruled.

         B. Objections to Specific Topics

         Before addressing Railroad Plaintiffs' objections to specific Topics and Requests, the Court sets out the relevant Rules applicable to its rulings.

         Federal Rule of Civil Procedure 26(b)(1) sets out the general scope of discovery:

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.

         When a party seeks to depose an organization, Rule 30(b)(6) requires that the deposition notice “describe with reasonable particularity the matters for examination.” This means the requesting party must take care to designate, with painstaking specificity, the particular subject areas that are intended to be questioned, and that are relevant to the issues in dispute.[7] If the deponent “cannot identify the outer limits of the areas of inquiry noticed, compliant designation is not feasible.”[8]

         Rule 34(b)(1)(A) likewise requires that a request for production “must describe with reasonable particularity each item or category of items to be inspected.” Though what qualifies as “reasonabl[y] particular” depends at least in part on the circumstances of each case, a discovery request should be sufficiently definite and limited in scope that it can be said “to apprise a person of ordinary intelligence what documents are required and [to enable] the court . . . to ascertain whether the requested documents have been produced.”[9]

         The party objecting to discovery bears the burden to support its objections.[10]

         1. Topic 1 (Southwest Chief Project support)

         Topic 1 for Amtrak's Rule 30(b)(6) deposition seeks testimony on the “support” Amtrak provided to Seneca, BNSF, The Kansas Department of Transportation (“KDOT”), and/or Garden City for the Southwest Chief Project. Likewise, Topic 1 for BNSF's Rule 30(b)(6) deposition seeks testimony on the “support” BNSF provided to Seneca, Amtrak, KDOT, and/or Garden City for the Southwest Chief Project. Railroad Plaintiffs objected that Topic 1 is

not described with reasonable particularity as required by Rule 30 (b)(6), is not properly limited in scope and is not proportional to the needs of this case. The topic does not define or provide any guidance concerning what Intervenor-Plaintiffs intend to inquire about the ‘support, ' if any, BNSF or Amtrak provided to the entities identified in the topic.

         Railroad Plaintiffs' objections to Topic 1 are sustained. First, the Court agrees that Topic 1 is not stated with reasonable particularity. The lone term “support” without more limiting language is too imprecise and, even applying a dictionary, common-sense definition of the word, leaves too much ambiguity. “Support” could mean financial support, documentary support, administrative support, staffing support, political support, or a host of other types of “support.” Second, Topic 1 is not properly limited in scope or proportional to the needs of the case, as the Southwest Chief Project includes many miles of railroad track not relevant to this case. Additionally, Intervenor-Plaintiffs have not shown the relevance of support provided to all four of the listed entities as it relates to the section of track at issue. Railroad Plaintiffs' request for a protective order precluding deposition questioning on Topic 1 is granted.

         2. Topics 2, 3, and 10 (Southwest Chief Project employees and documents)

         Topic 2 requests a corporate designee to provide testimony on the identification of the BNSF [Amtrak] employees who were involved in the Southwest Chief Project application process. Topic 3 similarly seeks identification of any persons BNSF [Amtrak ]worked with at Seneca, Amtrak, KDOT and Garden City on the Southwest Chief Project. Topic 10 requests identification of “any and all documents related to” the Southwest Chief Project.

         Railroad Plaintiffs object to these Topics as already provided in discovery and specifically refer to an interrogatory sent by Defendant Cimarron to the Railroad Plaintiffs asking for the identity of each employee or agent that assisted with or provided information concerning the project. Railroad Plaintiffs thus claim they have already responded to this inquiry and there is no need to impose the cost and expense for them to produce a corporate representative to supply information previously provided.

         Intervenor-Plaintiffs argue that Railroad Plaintiffs' production of some documentation concerning their involvement in the TIGER grant process does not relieve them of the duty to produce a prepared corporate designee to testify to the topics and provide corporate interpretation of the documents and subjective beliefs and positions.

         The Court has reviewed the referenced prior interrogatory answers in Exhibits C and D and finds they do not fully address the Topics.[11] Exhibit C is BNSF's interrogatory response and Exhibit D is Amtrak's interrogatory response to Cimarron Interrogatory 14, which asks BSNF or Amtrak to identify employees who assisted, prepared, or provided information or records to Garden City or anyone acting on its behalf in connection with the TIGER grant application. A comparison of the interrogatories to Topics 2 and 3 shows that the Topics are broader in scope than the interrogatories. The Court also finds the fact that Railroad Plaintiffs have already provided information through other written discovery to Intervenor-Plaintiffs concerning a particular deposition topic does not, in itself, make that topic an impermissible subject of a 30(b)(6) deposition.[12] While a Rule 30(b)(6) deposition topic must be “reasonably particular” and cannot be “unreasonably cumulative or duplicative, ”[13] a deposition by its very nature and purpose permits a broader and more flexible range of questions than interrogatories and requests for production, and may be used to elicit explanations or additional information regarding answers to interrogatories or other discovery responses.

         The Court finds that the testimony Intervenor-Plaintiffs seek would not be unreasonably cumulative or duplicative and that the likely benefit of the testimony on these Topics outweighs any burden or expense the deposition might impose. Railroad Plaintiffs' objections to these Topics are overruled. Railroad Plaintiffs' request for a protective order precluding deposition questioning on Topics 2, 3 and 10 is denied.

         3. Topic 4 (Southwest Chief Commission)

         Topic 4 requests testimony regarding “[t]he rol[e] of the Southwest Chief Commission and the identification of all members of the Southwest Chief Commission that BNSF [or Amtrak] worked with.” Railroad Plaintiffs object to this topic as entirely irrelevant and not proportional to the needs of the case. They explain that the Southwest Chief Commission is a commission established by the State of Colorado Department of Transportation to address the continuing existing Southwest Chief line in the State of Colorado and expansion of the line to include a stop in Pueblo, Colorado. Obviously, the derailment at issue here occurred in Cimarron, Kansas and does not involve track in the State of Colorado.

         The Court sustains the objection to Topic 4. Based on Railroad Plaintiffs' description of the Southwest Chief Commission, the request does not appear relevant. Intervenor-Plaintiffs do not rebut the argument in their response. Railroad Plaintiffs' request for a protective order precluding deposition questioning on Topic 4 is granted.

         4. Topics 5 and 11 (History and ...


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