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

United States District Court, D. Kansas

December 1, 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 BNSF Railway Corporate Designee(s) on Maintenance (ECF No. 226). Intervenor-Plaintiffs request an order compelling Plaintiff BNSF Railway Company (“BNSF”) to produce a Rule 30(b)(6) corporate designee to testify on six areas of inquiry and produce documents responsive to six corresponding document requests, all of which are related to BNSF's track maintenance, inspection, and records. As set forth below, the motion is granted in part and denied in part.


         On June 19, 2017, Intervenor-Plaintiffs served their Rule 30(b)(6) notice of video deposition duces tecum of corporate designee(s) on BNSF (“Notice”). The Notice set out nine areas of inquiry (“Topics”) and eight requests for production of documents (“Requests”) regarding BNSF's track “Maintenance, Inspection, and Records.”[2]


         Before addressing the 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.[3] If the deponent “cannot identify the outer limits of the areas of inquiry noticed, compliant designation is not feasible.”[4]

         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.”[5]

         The party objecting to discovery bears the burden to support its objections.[6]


         1. Topic 1 and Request 1 (Derailment location maintenance and inspections)

         Topic 1 requests that BNSF produce a Rule 30(b)(6) corporate designee to testify regarding “[a]ll maintenance and inspections performed at Milepost 373.07 and approximately five miles east and west of Milepost 373.07.” Request 1 similarly seeks production of “[a]ny and all documentation showing maintenance and/or inspections performed five miles east and west of Milepost 373.07.” BNSF objects to the scope of Topic 1 and Request 1 on relevance grounds and as unduly burdensome. It proposes that the scope be limited to the time period of a year before and up to the date of the derailment (March 14, 2015 to March 14, 2016) and to documents produced in discovery which cover inspections and maintenance for the same time period. It acknowledges that Intervenor-Plaintiffs have offered to limit Topic 1 to 2015 and 2016, which would include the post-derailment period, March 15, 2016 to December 31, 2016.

         Intervenor-Plaintiffs assert that BNSF's maintenance and inspection records from after the derailment are relevant. They argue that in order for their experts to know if the rail has been changed and accurately reach their opinions in light of the changed conditions, they need to know what maintenance and inspection work was completed between the time of the derailment and the time of the scene inspection in December 2016. They allege that the evidence produced in this case reveals that there was a 25 mph slow order for this section of track, which was placed on February 10, 2016, and not removed until March 31, 2016, over two weeks after the derailment. Intervenor-Plaintiffs claim that the defect(s) necessitating this slow order and BNSF's remedial action after this derailment to lift the slow order are therefore relevant.

         Intervenor-Plaintiffs have convinced the Court of the relevance of BNSF's post-derailment maintenance and inspection records for the vicinity of the derailment location. This post-derailment information is relevant to determine the nature and extent of any track repair or maintenance work after the derailment and before the parties' December 2016 track inspection. The Court also finds the requested testimony, documents, and information for the period a year before the derailment and through the December 2016 track inspection is proportional to the needs of the case. Intervenor-Plaintiffs' motion to compel is therefore granted in part as to Topic 1 and Request 1. BNSF shall produce a corporative representative to testify regarding Topic 1, limited to the time period March 14, 2015 through the date of the December 2016 track inspection, and produce all documents responsive (not previously produced) to Request 1 limited to that same time frame.

         2. Topic 2 (Appropriate time period for document production)

         Topic 2 requests a BNSF corporate designee who can testify regarding the identification of the “appropriate time period” for document productions, including a “discussion of how, where and by whom the documentation and ...

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