BNSF Railway Company v. San Joaquin Valley Railroad Company

Filing 170

ORDER DENYING SJVR's Motion to Compel Further Responses to Interrogatories and Requests for Production re BNSF's Fuel Surcharge Information 133 , signed by Magistrate Judge Sandra M. Snyder on 6/25/2010. (Herman, H)

1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 Defendants. 16 17 18 19 20 21 22 23 24 25 26 27 28 Defendant San Joaquin Valley Railroad's motion to compel, filed on March 8, 2010, was originally set by the moving party to be heard before the district court trial judge, the Honorable Anthony W. Ishii, on April 16, 2010. The matter was moved to the vs. SAN JOAQUIN VALLEY RAILROAD COMPANY, et al., BNSF RAILWAY COMPANY, Plaintiff, ) ) ) ) ) ) ) ) ) ) ) 1:08-cv-01086-AWI-SMS ORDER DENYING SJVR'S MOTION TO COMPEL FURTHER RESPONSES TO INTERROGATORIES AND REQUESTS FOR PRODUCTION RE BNSF'S FUEL SURCHARGE INFORMATION (Doc. 133) IN THE UNITED STATES DISTRICT COURT FOR THE EASTERN DISTRICT OF CALIFORNIA

appropriate case management/discovery presiding magistrate judge, the Honorable Sandra M. Snyder, to be heard on April 16, 2010. Counsel were directed by minute order (Doc. 135) to prepare and file a joint statement re: discovery disagreement pursuant to Local Rule 251(a). // / 1

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To accommodate counsels' vacation schedules, this motion to compel was continued to April 30, 2010 (Doc. 136), reminding counsel to comply with the Local Rule 251 requirements. The joint

statement re: discovery disagreement was filed on April 23, 2010 (Doc. 144), as were Plaintiff's fuel surcharge information exhibits filed under seal (Doc. 141), and the declaration of Weldon E. Hale in opposition to the motion to compel (Doc. 142). That same date,

defendant, in support of the motion, filed notice of withdrawal of certain portions of the motion to compel (Doc. 146), as well as notice of lodging deposition transcripts, and the declaration of defendant's counsel James Hicks (Doc. 145). SJVR's evidentiary

objections to Hale and Hemming declarations were filed on April 27, 2010 (Doc. 147). The hearing for April 30, 2010 was continued yet again to Friday, May 7, 2010 at 11:00 a.m. (Doc. 149). A telephonic status

conference was held on that date, on the record, initially to clarify whether SJVR's entitlement to share in BNSF's fuel surcharges would or would not be a topic to be addressed in the upcoming summary judgment motions (Doc. 150). To that end, the

Court entertained focused and limited oral argument regarding the herein motion to compel. BNSF represented that it had produced

everything in its custody and care related to the fuel surcharge rates. SJVR argued that the declaration of BNSF's former employee BNSF

James Shefelbine establishes that more information exists.

pointed out that Shefelbine does not and could not have personal knowledge because he left BNSF in 1996 and was not a BNSF employee at the time that the fuel surcharge rates were established (2002). // 2

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Near the conclusion of the telephonic hearing, Attorney Hicks all but conceded the issue of the remoteness of Shefelbine's experience and knowledge of the business of BNSF due to his departure date, as well as acknowledging the word, as officers of the court, of counsel for BNSF that they had produced all they had in their care, control and custody regarding fuel surcharge information. Mr. Hicks wanted Messrs. Hemming and Thornton to

swear under penalty of perjury that that was so, and he would accept their position. This Court believes Attorneys Hemming and

Thornton as officers of the court and will require no further averment to these facts and this issue. Finally, even if this Court misheard Attorney Hicks regarding perceived concessions, nonetheless by review of the court docket, it would appear Mr. Hicks has filed a Rule 56(f) request re: the pending summary judgments motions (Doc. 167), re-couching his arguments regarding fuel surcharge data in the custody of BNSF, arguing that at least in the past, BNSF has calculated and retained movement-specific fuel costs information at a carload level. Again, these are the same points raised before this Court informally in telephonic conference(s) and during this hearing. BNSF wholesale denies these arguments. It would appear to the

undersigned that Mr. Hicks would have counsel and/or experts for BNSF create this information for production. directed to do so. BNSF shall not be

SJVR has the burden to show that the evidence See Employers

exists, not that it could be created or might exist.

Teamsters Local Nos. 175 & 505 Pension Trust Fund v. Clorox Co., 353 F.3d 1125, 1129-30 (9th Cir. 2004). // 3

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GOOD CAUSE APPEARING, the Court accepting the proffer of Plaintiff's counsel that BNSF has provided all the information it has in its care, control and custody regarding the fuel surcharges collected on shipments to or from Table 1 stations, Defendant's motion to compel is DENIED.

IT IS SO ORDERED. Dated: icido3 June 25, 2010 /s/ Sandra M. Snyder UNITED STATES MAGISTRATE JUDGE

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