United States District Court, D. Kansas
NATIONAL RAILROAD PASSENGER CORP. and BNSF RAILWAY COMPANY, Plaintiffs,
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
J. James U.S. Magistrate Judge.
matter is before the Court on Intervenor-Plaintiffs'
Motion to Compel Discovery (ECF No. 219).
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.
DISCOVERY REQUESTS AND INTERROGATORY AT ISSUE
Request for Complete Unedited Locomotive Video (sought by
Intervenor-Plaintiffs' First Request for Production No.
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.
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.
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).
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
Fifth Request for Production No. 37 to Amtrak (No. 51 to
BNSF) (Southwest Chief Project correspondence)
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
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
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.
Fifth Request for Production No. 38 to Amtrak (No. 52 to
BNSF) (Southwest Chief Project documents received)
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.Intervenor-Plaintiffs state
in their motion they are willing to limit this request to
communications about track conditions and/or imminent speed