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

United States District Court, D. Kansas

October 12, 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 Intervenor-Plaintiffs' Motion to Compel Discovery (ECF No. 219).[1] Intervenor-Plaintiffs request an order compelling Plaintiffs National Railroad Passenger Corporation (“Amtrak”) and BNSF Railway Company (“BNSF”) (jointly “Railroad Plaintiffs”) to produce documents responsive to five requests for production of documents and to answer one interrogatory. As set forth below, the motion is granted in part and denied in part.

         I. DISCOVERY REQUESTS AND INTERROGATORY AT ISSUE

         A. Request for Complete Unedited Locomotive Video (sought by Intervenor-Plaintiffs' First Request for Production No. 1)

         Intervenor-Plaintiffs request the Court compel Amtrak to produce the “complete unedited” locomotive video downloaded and provided to the National Transportation Safety Board (“NTSB”) after the March 14, 2016 derailment. They acknowledge Amtrak previously produced a one-minute video clip from the locomotive's videorecorder depicting approximately a one mile section of the track prior to the derailment as the locomotive travelled over it. They now request that Amtrak be ordered to produce the complete one hour of video data downloaded from the locomotive videorecorder after the derailment and provided to the NTSB. They contend new issues have arisen that warrant the production of the complete unedited Amtrak locomotive video.

         Amtrak objects to Intervenor-Plaintiffs' request as an untimely and improper attempt to raise again the issue of the locomotive video that was produced over six months ago on March 10, 2017. Amtrak argues Intervenor-Plaintiffs' current “re-urged” discovery request is nothing more than an attempt to circumvent District of Kansas Local Rule 37.1, which requires motions to compel discovery be filed within 30 days. It points out Intervenor-Plaintiffs' Request No. 1 was originally served on September 6, 2016 and Amtrak responded on October 6, 2016, nearly a year ago. Amtrak also objects to the request as being overbroad in scope, not reasonably limited, and seeking information that is neither relevant nor proportional to the needs of the case. It submits that the one hour of video is completely irrelevant and in fact was not even utilized by the NTSB for the purpose of its analysis of the incident at issue in this case. This is the same video (and only video) analyzed and discussed by the NTSB in its Event and On-Board Image Recorders Group Factual Report. Amtrak acknowledges the NTSB Report also references that, under the supervision of the NTSB, one hour of onboard track image recorder video was downloaded from the Amtrak locomotive that derailed, but argues this download was made to a digital storage medium that was taken by the NTSB at the scene of the derailment and has been retained by the NTSB.

         Intervenor-Plaintiffs assert in support of their request for the full locomotive video that their experts have identified lateral sway issues and need to review the video evidence for the entire period of time this train was traveling on the allegedly substandard bolted-rail sections that were traversed immediately prior to this derailment. According to Intervenor-Plaintiffs, lateral sway in this area that covers over 50 miles of substandard track would have required the locomotive engineer to decrease speed to a level where the lateral sway was not a factor in the safe operation of the train. This did not become apparent to Intervenor-Plaintiffs until the May 2, 2017 deposition of the train engineer (and receipt of deposition transcript on July 18, 2017), and the August 16, 2017 deposition of Danny O'Connell, the corporate designee for Amtrak on operations training (and receipt of deposition transcript on August 30, 2017).

         The Court overrules Amtrak's objections to production of the complete unedited locomotive video downloaded and provided to the NTSB after the March 14, 2016 derailment. The Court finds the request is limited in scope and is relevant to Intervenor-Plaintiffs' claims in the case. Intervenor-Plaintiffs also have provided a reasonable explanation why they waited nearly six months to request the complete one-hour locomotive video after receiving the one-minute locomotive video produced by Amtrak on March 10, 2017. Intervenor-Plaintiffs' motion to compel Amtrak to produce the complete unedited locomotive video downloaded and provided to the NTSB after the March 14, 2016 derailment is granted. Amtrak shall produce a copy or link for the requested one-hour Amtrak locomotive video of the subject incident to Intervenor-Plaintiffs within fourteen (14) days of the date of this Memorandum and Order.

         B. Fifth Request for Production No. 37 to Amtrak (No. 51 to BNSF) (Southwest Chief Project correspondence)

         Intervenor-Plaintiffs next request an order compelling Amtrak to produce documents responsive to their Fifth Request No. 37 (No. 51 to BNSF), which seeks “all correspondence, including email, between Amtrak and Seneca, BNSF, KDOT and/or Garden City regarding” the Southwest Chief Project. Railroad Plaintiffs object to this request on the grounds that it is overly broad in that it is not limited to a relevant time period. But subject to their objection, they produced documents in response to Intervenor-Plaintiffs' discovery requests.

         Intervenor-Plaintiffs served identical document requests in their notices of Rule 30(b)(6) video depositions served on BNSF and Amtrak (as Request 3). In its September 26, 2017 Memorandum and Order (ECF No. 234) (“September 26 Order”), the Court sustained the Railroad Plaintiffs' objection that the request was not properly limited in scope or proportional to the needs of the case. It found the request for correspondence between Railroad Plaintiffs and multiple other entities regarding the Southwest Chief Project-a federal grant application for track improvements between Hutchinson, Kansas, and Las Animas, Colorado-should be limited to the vicinity of the derailment location. The Court granted Railroad Plaintiffs' request for protective order limiting the scope of the discovery sought in the request to the vicinity of the derailment location, which the Court defined as “five (5) miles on either side of the damaged track at the derailment site (Milepost 373.07).”

         Consistent with its earlier ruling, the Court sustains the Railroad Plaintiffs' overly broad objection to this request and imposes this same limitation on Intervenor-Plaintiffs' Fifth Request No. 37 to Amtrak (No. 51 to BNSF). The Court grants Intervenor-Plaintiffs' motion to compel as to Fifth Request No. 37 to Amtrak (No. 51 to BNSF), but limits it to correspondence regarding the Southwest Chief Project for the vicinity of the derailment location, which is defined as five miles on either side of the damaged track at the derailment site (Milepost 373.07). Railroad Plaintiffs shall produce documents responsive to Intervenor-Plaintiffs' Fifth Request No. 37 to Amtrak (No. 51 to BNSF), but subject to this limitation within fourteen (14) days of the date of this Memorandum and Order.

         C. Fifth Request for Production No. 38 to Amtrak (No. 52 to BNSF) (Southwest Chief Project documents received)

         Fifth Request No. 38 to Amtrak (No. 52 to BNSF) seeks production of “all documents received from BNSF [Amtrak] or Seneca relating to” the Southwest Chief Project. Although not clear, it appears Amtrak originally objected to the request on the grounds it is overly broad.[2]Intervenor-Plaintiffs state in their motion they are willing to limit this request to communications about track conditions and/or imminent speed reductions ...


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