United States District Court, D. Kansas
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.
Teresa
J. James U.S. Magistrate Judge
ORDER MEMORIALIZING MARCH 1, 2018 DISCOVERY STATUS
CONFERENCE
On
March 1, 2018, the Court conducted a telephone discovery
conference regarding the Railroad Plaintiffs' objections
to the sufficiency of Intervenor-Plaintiffs' answers to
BNSF's Second Interrogatories. Railroad Plaintiffs
appeared through counsel, Sean P. Hamer and Craig M. Leff.
Intervenor-Plaintiffs appeared through counsel, Robert L.
Pottroff and C. Michael Bee. Defendant Cimarron Crossing
Feeders, LLC appeared through counsel, Michael J. Judy. This
order memorializes the oral rulings made during the
conference.
1.
Railroad Plaintiffs' Objections to the
Sufficiency of Intervenor-Plaintiffs' Answers to Second
Interrogatories
In an
email to the Court in advance of the telephone conference,
Railroad Plaintiffs identified Second Interrogatories 1(b),
1(c), 2(b), 2(c), and 2(d) as in dispute. After reviewing
Intervenor-Plaintiffs' supplemented interrogatory
answers, the email from Railroad Plaintiffs' counsel
outlining the alleged deficiencies, and hearing from counsel
for Intervenor-Plaintiffs and Railroad Plaintiffs, the Court
provided its guidance regarding the sufficiency of
Intervenor-Plaintiffs' supplemented answers to BNSF's
Second Interrogatories 1 and 2. The Court provided guidance
that Intervenor-Plaintiffs' answers merely referring by
mileposts to an approximately six-mile section of track are
not sufficient answers to Interrogatories 1(b) and 2(c),
which ask for the “specific location, by milepost
reference, of any condition that failed to comply with the
federal standard of care.” As discussed in more detail
at the conference, Intervenor-Plaintiffs should supplement
their interrogatory answers to more precisely identify the
milepost locations, with references to photographs, depicting
track locations with conditions they contend show a failure
to comply with the federal standard of care.
The
Court also provided guidance that Intervenor-Plaintiffs'
answers to Interrogatories 1(c) and 2(d) should be revised to
reflect that Intervenor-Plaintiffs will further supplement
their answers after obtaining refined and/or enhanced
locomotive and geometry car videos that identify specific
locations on the videos.
With
respect to their answer to Interrogatory 2(a),
Intervenor-Plaintiffs should re-review their list of BNSF
engineering instructions. If any of the cited engineering
instruction are not responsive to Interrogatory 2(a), they
should be deleted from the answer. If there are specific
subsections or portions of any cited instruction which were
allegedly violated, the answer should be supplemented with
references to the specific subsections and portions.
The
Court expressed its view Intervenor-Plaintiffs' answer to
Interrogatory 2(b) is sufficient. Railroad Plaintiffs'
objections appear to raise legal questions or issues rather
than the insufficiency of the stated answer.
The
Court expressed concern regarding the parties' propensity
in this case to file motions to compel rather than to confer
and resolve issues which, in many instances, should not have
required Court involvement. The Court strongly encouraged
counsel to attempt to resolve their differences with regard
to these disputed interrogatories without further Court
involvement. The Court also noted that counsels' time may
be better spent conducting depositions to discover details
and specifics rather than haggling over the specificity of
written discovery responses.
Intervenor-Plaintiffs
shall serve supplemental answers to Interrogatories 1(b),
1(c), 2(c), and 2(d) by March 9,
2018. If after reviewing the supplemental
answers, Railroad Plaintiffs claim Intervenor-Plaintiffs'
supplemented answers are still insufficient, their counsel
shall confer via a teleconference with
Intervenor-Plaintiffs' counsel. If unable to resolve any
remaining issues, counsel for Railroad Plaintiffs and
Intervenor-Plaintiffs shall email chambers (either jointly or
in separate emails) by close of business (5:00
pm) on March 12, 2018 advising of the status of
any remaining disputes with a brief description of each
party's position. The Court will then set another
conference on the matter, either by telephone or as an
in-person hearing.
2.
Railroad Plaintiffs' Motion to Compel Discovery
from Intervenor-Plaintiffs (ECF No. 341)
The
Court also inquired regarding the status of Railroad
Plaintiffs' motion to compel personal activity tracker
data and devices from Intervenor-Plaintiffs (ECF No. 341).
The parties advised that they resolved their disputes
concerning this motion and have agreed that
Intervenor-Plaintiffs will produce the requested personal
activity tracking data by March 19,
2018. With the agreement of the parties, the
Court will enter an order on the docket finding this motion
moot.
3.
Defendant Cimarron Crossing Feeders, LLC's Motion
to Compel (ECF No. 304)
The
Court explained its reasons in denying Defendant Cimarron
Crossing Feeders, LLC's motion to compel Railroad
Plaintiffs to produce the Operating Agreement between Amtrak
and BNSF. These reasons included the Court's finding that
the request for production at issue in Cimarron's motion
seeks the same document as its earlier request for
production, to which Railroad Plaintiffs objected and
Cimarron did not timely move to compel production in
accordance with D. Kan. Rule 37.1(b). The Court also found
that Cimarron's request for production of the Operating
Agreement between BNSF and Amtrak is not proportional to the
needs of this case. Cimarron claims the Operating Agreement
is needed to establish its defense that BNSF and Amtrak were
operating as a joint venture for purposes of comparing their
fault against Cimarron. However, given the proprietary and
confidential nature of the information contained in the
Operating Agreement, along with the amount of information in
the Operating Agreement that would not be relevant to
Cimarron's alleged defense, the Court finds there are
less burdensome and more efficient ways for Cimarron to
discover information applicable to its joint venture
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