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

United States District Court, D. Kansas

October 19, 2017

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.


          Teresa J. James U.S. Magistrate Judge

         This matter is before the Court on Intervenor-Plaintiffs' Motion to Compel Inspection of Locomotive Headlight (ECF No. 222).[1] Intervenor-Plaintiffs request an order compelling daytime and night-time inspections of the headlight of the Amtrak locomotive involved in the derailment at issue, or a “substantially similar locomotive, ” and permitting sight distance, conspicuity, and illumination testing of the headlight. Plaintiffs National Railroad Passenger Corp. (“Amtrak”) and BNSF Railway Co. (collectively “Railroad Plaintiffs”) oppose the motion on several grounds. As set forth below, the Court denies the motion on relevance and proportionality grounds.

         I. DUTY TO CONFER

         Fed. R. Civ. P. 37(a)(1) requires any motion to compel discovery to 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.” In conjunction with Fed.R.Civ.P. 37, District of Kansas Local Rule 37.2 provides:

The court will not entertain any motion to resolve a discovery dispute pursuant to Fed.R.Civ.P. 26 through 37, . . . unless the attorney for the moving party has conferred or has made reasonable effort to confer with opposing counsel concerning the matter in dispute prior to the filing of the motion. Every certification required by Fed.R.Civ.P. 26(c) and 37 and this rule related to the efforts of the parties to resolve discovery or disclosure disputes must describe with particularity the steps taken by all attorneys to resolve the issues in dispute.
A “reasonable effort to confer” means more than mailing or faxing a letter to the opposing party. It requires that the parties in good faith converse, confer, compare views, consult, and deliberate, or in good faith attempt to do so.

         The purpose of the local rule is to encourage the parties to satisfactorily resolve their discovery disputes prior to resorting to judicial intervention.[2]

         The Court finds Intervenor-Plaintiffs' stated efforts to confer before filing their motion appear minimal. Intervenor-Plaintiffs state in the body of their motion: “[c]ounsel certifies . . . that he conferred with [Railroad Plaintiffs'] counsel via telephone call regarding the inspection at issue . . . and that the parties were unable to resolve the dispute regarding the inspection . . . .”[3] At the end of their Motion, Intervenor-Plaintiffs add a “Meet and Confer Statement, ” certifying that their counsel met and conferred with Railroad Plaintiffs' counsel “telephonically on August 17, 2017.”[4]

         Railroad Plaintiffs describe the meet and confer efforts differently. They contend their counsel had informal discussions with Intervenor-Plaintiffs' counsel regarding the request for a train headlight inspection before the request to inspect was served on August 11, 2017, but no agreement was reached. Railroad Plaintiffs contend that, while their counsel and Intervenor-Plaintiffs' counsel did have a telephone conference on August 17, 2017, they did not specifically discuss the terms of Intervenor-Plaintiffs' request to inspect the locomotive headlight.

         Intervenor-Plaintiffs served their Request to Inspect Locomotive Headlight via email on August 11, 2017.[5] Under Fed.R.Civ.P. 34(b)(2)(A), Railroad Plaintiffs' response to this request to inspect the headlight was due within 30 days, on September 11, 2017. Intervenor-Plaintiffs filed the instant motion on September 6, 2017, before Railroad Plaintiffs had served their response.

         The Court does not condone Intervenor-Plaintiffs filing their motion to compel before Railroad Plaintiffs served their written objections to the request to inspect the locomotive headlight. Intervenor-Plaintiffs' motion to compel was premature, filed without the knowledge of Railroad Plaintiffs' specific written objections. Nonetheless, Intervenor-Plaintiffs allege there were discussions between the parties over the last several months regarding their request for a locomotive headlight inspection, and Railroad Plaintiffs acknowledge at least one such discussion took place. The Court therefore finds Intervenor-Plaintiffs have minimally satisfied their D. Kan. Rule 37.2 duty to confer and will take up the motion on its merits.


         Railroad Plaintiffs object that Intervenor-Plaintiffs' requested locomotive headlight inspection will be conducted under conditions that did not exist at the time of the derailment and the results therefore cannot be relevant to the claims or defenses in this case. They also object that the request is burdensome, harassive, and seeks discovery that is not proportional to the needs of the case. They contend the requested inspections would subject Amtrak to the undue burden and excessive expense of removing a locomotive from service and normal business operations, and would subject non-party, fare-paying Amtrak passengers to delays and significant disruption. Finally, Railroad Plaintiffs assert Intervenor-Plaintiffs have ample evidence of the actual conditions at the time of the derailment that Intervenor-Plaintiffs' experts can utilize effectively to reach their opinions. They note this evidence includes the locomotive video depicting the subject train approaching the derailment scene, which shows the actual visibility, lighting conditions and track conditions involved in the derailment.

         Intervenor-Plaintiffs argue that the conspicuity of the locomotive's headlight is one of the central questions to their claims against Amtrak. They contend an inspection and test of the headlight is important to accurately determine what the train crew saw or should have seen in front of them, at what distance the track defect was visible, and whether the train crew saw or should have seen the defect in sufficient time to apply the emergency brakes and slow or stop the locomotive to prevent the derailment.

         A. ...

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