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 Inspection of Locomotive Headlight (ECF No.
222). 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
DUTY TO CONFER
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
purpose of the local rule is to encourage the parties to
satisfactorily resolve their discovery disputes prior to
resorting to judicial intervention.
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 .
. . .” 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.”
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.
served their Request to Inspect Locomotive Headlight via
email on August 11, 2017. 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
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' SUBSTANTIVE OBJECTIONS TO THE
REQUESTED LOCOMOTIVE HEADLIGHT INSPECTION
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.
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