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

United States District Court, D. Kansas

December 29, 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 the Motion for Protective Order Regarding Intervenor-Plaintiffs' Third Notices of Video Deposition Duces Tecum of Corporate Designee(s) (ECF No. 237) (“Motion for Protective Order”) filed by Plaintiffs National Railroad Passenger Corporation (“Amtrak”) and BNSF Railway Company (“BNSF”) (jointly “Railroad Plaintiffs”). As set forth below, the motion is granted in part and denied in part.

         I. FACTS RELEVANT TO THE DEPOSITION TOPICS AND DOCUMENT REQUESTS AT ISSUE[1]

         On September 19, 2017, Intervenor-Plaintiffs served their third notices of Rule 30(b)(6) video depositions on Amtrak and BNSF (“Notices”).[2] The Notice served upon Amtrak set out nine areas of inquiry (“Topics”) and ten requests for production of documents (“Requests”) concerning issues related to train crew performance and visibility (Exhibit C), and another ten Topics and eleven Requests concerning incentive bonuses (Exhibit D).[3] The Notice served upon BNSF set out six Topics and six Requests concerning issues regarding passenger operations (Exhibit C); ten Topics and eleven Requests concerning incentive bonuses (Exhibit D); five Topics and six Requests concerning BNSF specific track repairs (Exhibit E); and twenty-three Topics and nine Requests concerning derailment analysis and education (Exhibit F).[4] In response, on October 2, 2017, Railroad Plaintiffs timely filed their Motion for Protective Order.

         II. OBJECTIONS TO THE DEPOSITION TOPICS AND DOCUMENT REQUESTS

         Railroad Plaintiffs request a protective order prohibiting discovery into, or alternatively limiting, the deposition Topics and Requests set out in Exhibits C[5] and D to the Notice served on Amtrak, and Exhibits C, D, E, and F to the Notice served upon BNSF. Railroad Plaintiffs also object to the Intervenor-Plaintiffs' stated intent to live internet stream the depositions and the unilateral noticing of the depositions. The Court will address each of Railroad Plaintiffs' global and specific objections in turn below.

         A. Relevant Rules and Law

         Before addressing Railroad Plaintiffs' objections to 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.[6] If the deponent “cannot identify the outer limits of the areas of inquiry noticed, compliant designation is not feasible.”[7]

         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.”[8]

         When ruling on relevance objections, the court construes relevance “broadly to encompass any matter that bears on, or that reasonably could lead to other matter that could bear on” any party's claim or defense.[9] If the discovery sought appears relevant on its face, the party resisting discovery has the burden to establish the lack of relevancy by demonstrating that the requested discovery (1) does not come within the scope of relevancy as defined under Fed.R.Civ.P. 26(b)(1), or (2) is of such marginal relevancy that the potential harm occasioned by discovery would outweigh the ordinary presumption in favor of broad disclosure.[10] Conversely, when the relevancy of the discovery request is not readily apparent on its face, the party seeking the discovery has the burden to show the relevancy of the request.[11] Relevancy determinations are generally made on a case-by-case basis.[12] The party objecting to discovery bears the burden to support its objections.[13]

         B. Amtrak's Objections to Exhibit C Topics and Requests (Train crew performance and visibility)

         In its motion for protective order, Amtrak asserts global objections to all Exhibit C Topics and Requests directed at train crew performance and visibility. More precisely, Amtrak objects to all Exhibit C Topics and Requests to the extent having its designee testify or producing the documents requested would require the premature disclosure of its experts' opinions. Amtrak contends these Topics and Requests are improper because they would require the designated corporate representative to provide expert testimony that involves the expert analysis and interpretation of the event recorder data and locomotive video at issue in this case. But, in its reply, Amtrak states that on October 10, 2017 (subsequent to filing the motion at issue), it produced John Hines, its Senior Director of Compliance, as its corporate representative to testify concerning train crew performance and visibility. Amtrak asserts that Mr. Hines's testimony included a discussion of the findings made in the NTSB Event Recorder and Onboard Image Recorder Group Factual Report, and submits that Mr. Hines fully addressed the subject matter of Exhibit C in his testimony so there is no further need for any additional testimony concerning Exhibit C Topics.

         In Intervenor-Plaintiffs' response, which they filed after Mr. Hines's deposition, they argue that their Exhibit C Topics to Amtrak concern one of the central issues relative to Amtrak, which is when the train crew could first see the defect and apply the emergency brakes. They also state their motion to compel locomotive headlight inspection may resolve many of Amtrak's objections to these Topics.[14] Intervenor-Plaintiffs do not respond to Amtrak's objection that the Exhibit C Topics seek expert opinion testimony. Nor does Intervenor-Plaintiffs' response or surreply refute Amtrak's assertion that Mr. Hines fully addressed the Exhibit C Topics in his deposition testimony and therefore no further testimony is needed on these Topics.

         The Court has not been provided sufficient information to make a determination regarding whether Mr. Hines has in fact testified to the extent required with regard to all Exhibit C Topics. Although Amtrak's assertion to that effect is unrefuted, the assertion was made in Amtrak's reply (after which Intervenor-Plaintiffs filed only a brief surreply that did not address the issue), and the Court has only been provided pages from the Hines deposition substantiating that he was Amtrak's corporate designee, that he had an opportunity before his deposition to review the Exhibit C Topics, and that he was prepared to testify on those Topics during his deposition. Without access to the pages of the Hines deposition questioning regarding the substance of the Exhibit C Topics, the Court cannot determine whether objections were asserted and/or Mr. Hines otherwise refused to answer questions regarding these Topics. The Court will therefore grant Amtrak's request for protective order with respect to the Exhibit C Topics only insofar as Mr. Hines has testified fully with regard to those Topics. Thus, to the extent Mr. Hines has so testified, he (or another Amtrak representative) will not be required to attend another deposition to answer additional questions on those Topics.

         With regard to Amtrak's global objections and request for protective order on grounds that the Exhibit C Topics seek expert opinion testimony, the Court finds the request premature. Amtrak cites cases for the proposition that a corporate representative deposition cannot be used to obtain legal conclusions, expert opinion testimony, or information that is protected as attorney work product.[15] However, the Court finds that the cases cited by Amtrak do not support its request for protective order under the facts in this case or the law in this District. In the only case cited by Amtrak from this district, Independent Service Organizations Antitrust Litigation, [16] the court's ultimate holding granting a protective order was not based upon a finding that the Rule 30(b)(6) deposition notice requested expert opinion testimony but rather upon the overly broad, burdensome topic set out in the deposition notice, and the fact that the information requested could be obtained through other less burdensome methods.

         The Court notes it has previously addressed in this case a similar expert opinion objection by Railroad Plaintiffs in response to requests for admission.[17] Railroad Plaintiffs objected that the requests for admission improperly sought premature expert opinions. The Court noted a distinction between a request seeking a party's opinions versus its experts' opinions. The Court found it was improper for Railroad Plaintiffs to deny the requests for admission on this basis, and required Railroad Plaintiffs to answer “with the knowledge and information they presently possess, or can obtain after reasonable inquiry (independent of their experts), and cannot delay their responses until after their expert disclosure deadline.”[18]

         Amtrak's expert opinion objection does not address the specific information or testimony requested in any of the Exhibit C Topics. The Topics specifically ask for “the railroad's” positions on particular compelled admissions made by Amtrak-positions which may or may not be the same as its experts' positions. Amtrak also has not demonstrated and the Court does not find that any of these Topics, on their face, seek expert opinion testimony. The Court finds that Amtrak's request for protective order on this basis is therefore premature and must be denied.

         C. Amtrak's Objections to Exhibit C Topic 8 and Request 8 (NTSB Report)

         Amtrak asserts a specific objection to Exhibit C Topic 8, which seeks testimony “concerning the analysis of how the recorders group reached the conclusions that were included in the report.” Corresponding Request 8 asks Amtrak to produce “[a]ny and all documentation that would suggest the conclusions set forth in the NTSB Event and On-Board Image Recorders Group Factual Report are incorrect.” Amtrak objects to this Topic to the extent it calls for a discussion on the deliberative processes of the National Transportation Safety Board (“NTSB”), which Amtrak claims are not discoverable and it is not permitted to disclose. Intervenor-Plaintiffs do not respond to Amtrak's specific objection to Exhibit C Topic 8 and Request 8 based upon the deliberative process privilege.

         With regard to Amtrak's specific objection and request for protective order to the extent that Exhibit C Topic 8 calls for discussion regarding the deliberative processes of the NTSB, Amtrak has not cited any cases in which a non-governmental entity asserted the deliberative process privilege as a basis to withhold a governmental agency's information or documents in discovery. Even assuming Amtrak could assert such a privilege here and meet all the required elements of the deliberate process privilege, the Court finds Amtrak's request for protective order on this basis premature. In this District, courts generally deny requests for protective orders based upon objections that topics identified in the Rule 30(b)(6) deposition notice will elicit privileged or protected information, unless the requested topics on their face seek protected or privileged testimony:

Generally speaking, this Court will deny motions for protective order based on objections that the information sought in the deposition is protected by work product immunity or attorney-client privilege, unless the requested topics, on their face, call for testimony invading the work product doctrine or attorney-client privilege. Where the topics do not, on their face, seek protected or privileged testimony, the Court will ordinarily require the deponent to appear for the deposition and raise any such objections to the specific questions posed. Counsel then has an opportunity to explore background facts concerning the immunity or privilege, and the deponent can substantiate any objections.[19]

         The Court notes Amtrak originally stated in its motion that it agreed to produce a representative to discuss its review of the information discussed in the NTSB report. The Court presumes this representative was Mr. Hines, whom Amtrak produced for deposition on October 10, 2017. Consistent with the general rule set out in Miller, [20] the Court will deny Amtrak's request for protective order based simply on the possibility some questions posed during the deposition may raise deliberative process privilege concerns. Instead, during the deposition, Amtrak may assert any such objections to specific questions posed to its Rule 30(b)(6) designee(s). Counsel will then have an opportunity to explore background facts concerning the immunity or privilege, and the deponent can substantiate any objections. Amtrak's request for a protective order with respect to Exhibit C Topic 8 and Request 8 is therefore denied.

         D. Amtrak and BNSF's Objections to Exhibit D Topics and Requests (Incentive bonuses)

         Amtrak and BNSF both object to Intervenor-Plaintiffs' Exhibit D Topics and Requests concerning incentive bonuses, arguing that the Court has already addressed this issue and ruled these subject areas are irrelevant and not discoverable. They claim the present Exhibit D Topics and Requests are in violation of the Court's December 19, 2016 Memorandum and Order (ECF No. 82) (“December 19, 2016 Order”), are issued in bad faith, and intended simply to subject it to undue burden and expense.

         Intervenor-Plaintiffs take issue with Railroad Plaintiffs' characterization of the Court's December 19, 2016 Order. They claim it was solely related to production of the Master Agreement, and the Court did not hold information regarding incentive bonuses was wholesale irrelevant or undiscoverable. Instead, Intervenor-Plaintiffs contend that during oral argument the Court found that even though the Master Agreement was not discoverable, Intervenor-Plaintiffs could still inquire of witnesses about the arrangement between the railroads, Amtrak's incentive payments to BNSF, and the contents of any agreements between the entities. They contend this dictum during oral argument is noted in the Order where the Court stated, “The discovery sought by Intervenor-Plaintiffs can be obtained from the inspection of the track, through depositions, or other discovery.”

         In its December 19, 2016 Order, the Court did deny Intervenor-Plaintiffs' motion to compel BNSF to produce “the contract that provides track rights for Amtrak to travel over the La Junta Subdivision” (“Master Agreement”). The Court recognized Intervenor-Plaintiffs' contention that the Master Agreement contains information relevant to their claims that the derailment in this case was caused by BNSF's failure to properly inspect and maintain the track and that incentives were offered for keeping the track at a certain Class, which determined the speed at which trains could operate. However, the Court concluded that the potential harm from disclosure of the Master Agreement, which contains proprietary and highly confidential commercial information, outweighed Intervenor-Plaintiffs' need for the Master Agreement. The Court also did note in the Order that the discovery sought by Intervenor-Plaintiffs could be obtained from the track inspection, through depositions, or other discovery.[21]

         Thus, while the Court did rule that the Master Agreement itself was not discoverable, the Court did not rule generally, as Railroad Plaintiffs' argue in their reply, that “the subject matter of ‘incentive payments' was irrelevant and not discoverable.” However, the Court also did not rule, as Intervenor-Plaintiffs suggest, that they would be entitled to explore the Railroad Plaintiffs' incentive payments carte blanche. Indeed, in its December 19, 2016 Order, the Court agreed with Railroad Plaintiffs “that this case involves track conditions only in the particular area near Cimarron where the Derailment occurred, ”[22] and that “information included in the Master Agreement on incentives for keeping the track at a certain Class would not provide any indication whether the Train was operating at an excess speed at the time of the Derailment.”[23] Additionally, the Court's December 19, 2016 Order regarding additional discovery should be read and interpreted in the context of its preceding language:

the Court has already entered an order which allows the parties to inspect and examine the track where the Derailment occurred and within five miles on both sides of the Derailment, so that Intervenor-Plaintiffs [could] directly assess and evaluate whether the track had been properly maintained prior to the Derailment and whether the track was in a diminished condition that required the Train to be operated at a reduced speed. In short, the discovery sought by Intervenor-Plaintiffs can be obtained from the inspection of the track, through depositions, or other discovery.[24]

         The Court has reviewed Intervenor-Plaintiffs' specific Exhibit D Topics and Requests. Many of them go beyond what the Court's Order contemplated and what is relevant to the derailment and particular track at issue in this case. For example, the Exhibit D Topics and Requests include 2012 and 2013 Amtrak Audits (the derailment at issue occurred in 2016), “checkpoints” on the entire La Junta Subdivision (the Court has previously limited discovery regarding the track to the vicinity of the derailment near Cimarron, Kansas), and other matters with no specified time period or limitation. The Court finds that, with the exception of BNSF Exhibit D Topics 2 and 9, [25] the Exhibit D Topics and Requests are overly broad, unduly burdensome, and not proportional to the issues in this case. Accordingly, the Court grants Railroad Plaintiffs' request for a protective order precluding inquiry into all Exhibit D Topics and Requests, except BNSF Exhibit D Topics 2 and 9. But these two Topics shall be limited to deposition questioning about the actual or potential incentive bonuses and/or payments to which BNSF may have been entitled at the time of the derailment and for the specific section of track where the derailment occurred.

         E. BNSF's Objections to Exhibit C Topics and Requests (Passenger Operations)

         BNSF objects to all of the Exhibit C Topics and Requests concerning its passenger operations group, and specifically to Topic 5 concerning incentive bonuses, as not reasonably limited in time, not described with “reasonable particularity” as required by Rule 30(b)(6), and as requesting information that is not relevant or proportional to the needs of this case. Exhibit C Topic 5 asks BNSF to produce a corporate designee to testify regarding “who operates as the liaison between Amtrak and BNSF in general, on complaints about track conditions, [and] on payment of ‘Incentive Bonuses.'” BNSF also specifically objects to Topic 2, which would require that BNSF produce a witness to discuss the “Wessler PowerPoint, ” a 2008 BNSF presentation about trespasser prevention at locations such as railroad stations where there are pedestrian activities. BNSF contends these Topics are intended for no purpose other than to subject it to undue burden and expense.

         Intervenor-Plaintiffs argue that inquiry into BNSF's passenger operations group, its interactions with Amtrak, and its documentation of complaints about track conditions on this section of track for the years 2014 through 2016 are relevant to BNSF's prior knowledge of substandard track conditions for the operation of high-speed passenger trains on this section of track. They claim that Richard Wessler, BNSF's Director of Passenger Operations, has previously provided a declaration stating he is the liaison between BNSF and Amtrak and summarizing six categories of Wessler's job responsibilities. Intervenor-Plaintiffs claim their Exhibit C notice simply seeks a BNSF Rule 30(b)(6) designee to testify regarding Mr. Wessler's duties.

         The Court sustains BNSF's objections to Exhibit C Topics and Requests concerning its passenger operations group. BNSF has shown the referenced Exhibit C Topics and Requests are either not reasonably limited in time, not described with reasonable particularity as required by Rule 30(b)(6), and/or request information that is not relevant or proportional to the needs of this case. The Court finds none of the Exhibit C Topics and Requests to BNSF, except Request 3, appear relevant on their face. Intervenor-Plaintiffs therefore have the burden to demonstrate the relevance of the Topics and Requests. They have not done so with regard to the requested discovery concerning BNSF's passenger operations group personnel, the group's workings, responsibilities, liaison, the referenced “Noel PowerPoint, ” or the “Wessler PowerPoint.” Intervenor-Plaintiffs' bare assertion the Topics and Requests are relevant to “BNSF's prior knowledge of substandard track conditions” is far too general and not sufficient to establish relevance. Intervenor-Plaintiffs' requested inquiry into the Wessler PowerPoint, which concerns pedestrian trespasser accident prevention and bears no relationship to the claims and defenses in this case, is emblematic of the overly broad and unduly burdensome nature of Intervenor-Plaintiffs' Exhibit C Topics and Requests. The Topics and first two Requests are also overly broad and unduly burdensome because they contain no time limit.

         The Court will therefore grant BNSF's motion for a protective order precluding inquiry into Exhibit C Topics 1-6, and Requests 1, 2, 4-6. The Court will however deny the motion for protective order with respect to BNSF Exhibit C Request 3 (seeking documentation between Amtrak and BNSF that discussed complaints about track conditions from 2014 to 2016), but will limit this Request to the derailment location and five miles on either side.

         F. BNSF's Objections to Exhibit E Topics and Requests (BNSF specific track repairs)

         1. Exhibit E Topics 1(b), 2(b), and Request 1(b) (Broken joint bar)

         Exhibit E Topic 1(b) seeks deposition testimony from a BNSF designee regarding the “Broken Joint Bar from Court Ordered Inspection.” Topic 2(b) asks for “[i]dentification of all track inspection records that documented the defect, in particular the first documentation of each” of the three identified rail defects listed in Topic 1. Request 1(b) asks BNSF to produce any and all documentation concerning the “Broken Joint Bar from Court Ordered Inspection.” BNSF objects that the Court has already ruled on discovery related to this dispute in its April 20, 2017 Memorandum and Order, wherein the Court found the ...


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