Sherwood v. BNSF Railway Company et al
Filing
134
MEMORANDUM DECISION AND ORDER RE MOTION TO COMPEL AND MOTION TO STRIKESUPPLEMENTAL AUTHORITY (DKTS. 41 , 125 ) - Based on the foregoing, IT IS HEREBY ORDERED that Plaintiffs Motion to Compel (Dkt. 41) is GRANTED. BNSF is ordered to produce t o the Sherwoods, within 14 days of the date of this order, sworn supplemental responses to Interrogatories 6, 7, 8, and 15 as well as RFPs 11, 12, 35, and 37 as described herein.... Further, IT IS HEREBY ORDERED that Defendants Motion to Strike SupplementalAuthority (Dkt. 125) is DENIED. Signed by Judge Ronald E. Bush. (caused to be mailed to non Registered Participants at the addresses listed on the Notice of Electronic Filing (NEF) by (cjs)
UNITED STATES DISTRICT COURT
DISTRICT OF IDAHO
ROBERT WILLIAM SHERWOOD and
PAMELA LOUISE SHERWOOD, husband
and wife,
Case No.: 1:16-cv-00008-EJL-REB
MEMORANDUM DECISION AND
ORDER RE MOTION TO COMPEL
AND MOTION TO STRIKE
SUPPLEMENTAL AUTHORITY
(DKTS. 41, 125)
Plaintiffs,
vs.
BNSF RAILWAY COMPANY, a Delaware
corporation d/b/a The Burlington Northern
and Santa Fe Railway Company, and JOHN
DOES I through X,
Defendants.
Presently before the Court are Plaintiffs’ Motion to Compel (Dkt. 41) and Defendant’s
Motion to Strike Supplemental Authority (Dkt. 125). Having carefully considered the record,
heard oral argument on the motion to compel on January 17, 2018, and otherwise being fully
advised, the Court enters the following Memorandum Decision and Order:
BACKGROUND
Plaintiff Robert Sherwood alleges he was injured when thrown from his bicycle after his
wheel lodged in a gap between two concrete planks at a railroad crossing used by Defendant
BNSF Railway Company (“BNSF”) near Sandpoint, Idaho. Compl. ¶¶ 23, 24, 49–61, 65–70
(Dkt. 1). BNSF admits that Mr. Sherwood was involved in a bicycle crash on or near the
crossing, but denies various other allegations, including that it is liable for Mr. Sherwood’s
injuries. See generally Ans. (Dkt. 5).
The accident occurred on July 14, 2014. Compl. ¶ 49 (Dkt. 1); Ans. ¶ 60 (Dkt. 5). Mr.
Sherwood sued on January 6, 2016, alleging negligence. Compl. ¶¶ 90–96 (Dkt. 1). His wife,
MEMORANDUM DECISION AND ORDER RE MOTION TO COMPEL AND MOTION
TO STRIKE SUPPLEMENTAL AUTHORITY – 1
Pamela Louise Sherwood, separately alleges a claim for loss of spousal consortium. Id. ¶ 97.
This case has engendered numerous motions from each party; over a dozen are presently
pending. This decision resolves the Sherwoods’ pending motion to compel and BNSF’s motion
to strike supplemental authority. In the motion to compel, the Sherwoods seek an order requiring
BNSF to supplement its responses to several interrogatories and requests for production, and to
reopen BNSF’s corporate deposition under Federal Rule of Civil Procedure 30(b)(6). (Dkt. 41.)
Oral argument was heard on the motion to compel on January 17, 2018. 1 (Dkt. 121.) On
February 8, 2018, the Sherwoods filed a statement of supplemental authority regarding the
motion to compel. (Dkt. 123.) BNSF then moved to strike the filed supplemental authority. (Dkt.
125.) Both filings occurred after the hearing on the underlying motion to compel.
LEGAL STANDARDS
“The Federal Rules of Civil Procedure contemplate full and equal discovery so as to
prevent surprise, prejudice and perjury during trial.” Nationwide Life Ins. Co. v. Richards, 541
F.3d 903, 910 (9th Cir. 2008) (quotation marks omitted). Rule 26(b)(1) permits discovery
regarding nonprivileged matters that are relevant to any party’s claim or defense. Federal Rule of
Evidence 501 provides that “in a civil case, state law governs privilege regarding a claim or
defense for which state law supplies the rule of decision.” In this diversity action, both claims
raised by the Sherwoods arise under Idaho law. Accordingly, Idaho law on privilege applies.
Under Idaho law, “[t]he burden of showing [that] information is privileged, and therefore
exempt from discovery, is on the party asserting the privilege.” Kirk v. Ford Motor Co., 116 P.3d
27, 34 (Idaho 2005). Idaho recognizes privileges related to attorney-client communications. I.C.
1
Argument was also heard on two other motions at the same hearing. Those motions will
be addressed in a separate decision. The Court did not hear argument on the motion to strike, but
the Court’s consideration of the same does not need oral argument.
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§ 9-203(2). However, the existence of and parameters of the work-product doctrine are a matter
of federal law (the work-product doctrine is just that, and not a privilege). Hence, the Court looks
to Idaho law to determine whether a privilege is recognized, and to federal law to determine
whether it has been properly raised and preserved. Doing so requires application of Federal Rule
of Civil Procedure 26(b)(5)(A), which also applies to consideration of the work product doctrine.
Under Ninth Circuit law, failure to produce the privilege log required by Rule
26(b)(5)(A) does not lead to a “mechanistic determination” of waiver; rather, courts apply a
“holistic reasonableness analysis” that looks at all the circumstances. Burlington Northern &
Santa Fe Ry. Co. v. U.S. Dist. Ct., 408 F.3d 1142, 1149 (9th Cir. 2005). Specifically, in deciding
whether a privilege has been sufficiently asserted, courts consider (1) the degree to which the
objection enables evaluation of the claimed privilege; (2) the timeliness of the objection and
accompanying information about the withheld documents; (3) the magnitude of the document
production; and (4) any other particular circumstances of the litigation. Id.
Significantly, boilerplate objections are presumptively insufficient and providing a
privilege log within thirty days is presumptively sufficient. Id.
DISCUSSION
The Sherwoods seek discovery in five areas. First, they seek details regarding BNSF’s
general incident investigation procedures. Mem. in Supp. 2–7 (Dkt. 41-1). Second, they seek
interrogatory answers, deposition answers, and documents regarding BNSF’s incident
investigation for Mr. Sherwood’s specific incident. Id. at 8–15. Third, they seek interrogatory
answers regarding BNSF’s destruction of physical evidence. Id. at 15–17. Fourth, they seek
deposition answers regarding BNSF’s failure to preserve physical evidence. Id. at 17–18. Fifth,
they seek interrogatory answers and documents regarding BNSF’s post-crash alteration of the
MEMORANDUM DECISION AND ORDER RE MOTION TO COMPEL AND MOTION
TO STRIKE SUPPLEMENTAL AUTHORITY – 3
crossing. Id. at 18–19. Finally, the Sherwoods also seek an award against BNSF for their
expenses in bringing this motion. Id. at 19. Each of these requests will be taken up in turn.
A. Discovery Regarding General Incident Investigation Procedures
The Sherwoods’ request for production (“RFP”) number 37 sought the following:
Please produce all policies, procedures, or rules applicable to investigations
and inspections related to the crash at issue in this case.
This request does not seek policies, procedures, or rules applicable only to
investigations and inspections of crashes that occurred in some other geographic
area, at some other time, or under other circumstances (e.g. a train derailment or a
motor vehicle crash). However, to the extent that a policy, procedure, or rule was
applicable to both the investigations and inspections after the crash at issue in this
case and to crashes in other locales, at other times, and under other circumstances,
any such policy, procedure, or rule falls within the scope of this request.
This request specifically includes, but is not limited to, policies, procedures,
or rules for: forming an investigative team; creating a template in which to record
information regarding the incident; logging information about the incident in any
software program, application, or database; documenting the scene; taking and
preserving photographs; preserving physical evidence; generating incident reports;
and/or completing incident reports.
Mem. in Supp., Ex. 1 Local Rule 37.2 Addendum at 11 (Dkt. 41-2). BNSF objected to RFP 37:
OBJECTION is made because the request on its face potentially seeks materials
protected by the attorney-client privilege. FURTHER OBJECTION is also made
because the request seeks written material regarding templates, software
programs/applications/databases and other documentation regarding how BNSF
and, specifically, how its Claims department functions, and such documents are
protected as proprietary and confidential. Castillon v. Corr. Corp. of Am., 2013
U.S.Dist. LEXIS 112729 (D.Idaho 8/6/2013). The BNSF Claims department
operates under the direction of the BNSF Law Department. Any information that
could be considered “policies, procedures, or rules applicable to investigations and
inspections” are the equivalent of instructions from counsel.
Id. at 11–12.
The Sherwoods attack each of BNSF’s objections. In response, BNSF argues that
“Plaintiffs learned all there is to know on this topic via the Rule 30(b)(6) deposition of BNSF
representative Daniel Flatten.” BNSF Resp. 7 (Dkt. 52). BNSF quotes Mr. Flatten’s testimony
that “[t]he claims department doesn’t have policy. . . . The procedures that are written down are
MEMORANDUM DECISION AND ORDER RE MOTION TO COMPEL AND MOTION
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designed to be a guide, a best practice, a road map, to help point individuals in the right direction
to address issues they may encounter while conducting an investigation.” Flatten Dep. 15:8,
16:12–16 (Dkt. 100-1).2 BNSF also argues no reference guide or other document was consulted
in BNSF’s investigation of Mr. Sherwood’s incident, so there are no responsive documents to
produce. BNSF Resp. 9 (Dkt. 52).
These arguments miss the mark. RFP 37 requested “all policies, procedures, or rules
applicable to investigations and inspections related to the crash at issue,” not merely those that
BNSF says, unilaterally, were in fact applied. As the Sherwoods point out, Mr. Flatten (BNSF’s
representative) confirmed that there are “procedures that are written down.” A complete excerpt
of the relevant exchange makes clear that the procedures referenced by Mr. Flatten are within the
scope of RFP 37:
Q. Who formulates policies for the claims department?
A. The claims department doesn’t have policy. And my understanding what I think
we’ve agreed on as a term.
Q. Okay. So there is no formal written documents within the claims department that
mandate conduct?
A. No.
Q. Okay. So how is a claims representative in the field to know what he or she
ought to do in investigating an incident?
A. So we do have procedures. We do have a robust training program when we onboard people that consists largely of on-the-job training that people get boots on
the ground. They deal with individual instances and they begin to build their
universe of experience. We talked a little bit earlier about the hierarchy, the
structure of the claims department. That on-job training is supervised by somebody
within their chain of command and they are an additional resource for that
individual. And so an individual by virtue of on-the-job training and experience
ultimately begins to develop an understanding of what is necessary to deal with
issues as they present themselves.
Q. Okay. Are there any procedures that are written down or are they all, I guess,
encapsulated in the institutional knowledge of the corporation?
A. There are some procedures that are written down, but those procedures aren’t
specific to if you’re handling “X” type of event, an individual will do “Y.” The
2
Each party filed excerpts of Mr. Flatten’s deposition testimony. The full deposition
testimony was filed as an attachment to an unrelated motion.
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procedures that are written down are designed to be a guide, a best practice, a road
map, to help point individuals in the right direction to address issues that they may
encounter while conducting an investigation.
Q. Okay. So there are documents out there that are guides, best practices and road
maps that claims representatives in the field would use when conducting an
investigation; is that -MR. MITCHELL: I’m going to object, mischaracterizes his testimony. You can
answer, if you recall.
A. There are documents that are available as a resource or a reference.
Flatten Dep. 15:6–16:25 (Dkt. 100-1) (emphases added).
BNSF’s counsel defending the deposition went to great lengths to focus the questioning
on the topics listed in the notice of deposition; hence, the Court will not entertain any argument
that the procedures mentioned at the conclusion of this excerpt were somehow outside the scope
of, or otherwise distinct from, BNSF’s incident investigation procedures.
Moreover, other portions of Mr. Flatten’s testimony disclosed the existence of claims
forms (at 68:23–69:7), correspondence templates (at 97:2–17), and photo log templates (at
156:10–20). It is not immediately clear from the context, however, whether each of these is
within the scope of RFP 37.
Separately, after the oral hearing on this motion the Sherwoods filed supplemental
authority consisting of an Order and Memorandum filed February 5, 2018 in Kowalewski v.
BNSF, No. 37-CV-17-145 in the Fourth Judicial District of the State of Minnesota (Dkts. 123,
123-1). The state court judge in that case granted the planitiff’s motion for sanctions against
BNSF based on a number of “discovery and evidentiary abuses” including failure “to inspect and
preserve” physical evidence and relevant documents. Order and Mem. 5 (Dkt. 123-1). The court
also concluded that “BNSF’s behavior in the present case is clearly part of a pattern and practice
of behavior that extends nationwide.” Id. at 35. The Sherwoods would like this decision to color
this Court’s view of the present discovery dispute, and the Court has reviewed the decision. In
MEMORANDUM DECISION AND ORDER RE MOTION TO COMPEL AND MOTION
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doing so, and reviewing the Minnesota decision for any persuasive value it might have, the Court
is persuaded that certain of the findings made by the Minnesota court are directly relevant as to
whether documents exists that are called for by the Sherwoods’ discovery requests, but as to
which BNSF has so far failed to identify or failed to produce. Several stark examples are the
references in the Minnesota decision to a “BNSF Claims Manual” (Id. at 5), a “General Code of
Operating Rules (“GCOR”)”3 (Id. at 16–17), “BNSF’s Emergency Preparedness Plan” (Id. at
26), an “Emergency Response Guidebook” (Id. at 26), and a “Law Department Guide” (Id. at
31).
Even so, the Emergency Preparedness Plan in particular appears to apply only to the
specific site where the incident in the Minnesota case occurred, which is not the same site where
Mr. Sherwood’s accident occurred. Id. at 26. But at a minimum, the decision refers to
requirements in the BNSF Claims Manual to preserve and retain certain records in certain
circumstances. Id. at 22–24, 26. Such a document is inescapably responsive to a request for
“policies, procedures, or rules for . . . taking and preserving photographs [and] preserving
physical evidence.” Mem. in Supp., Ex. 1 Local Rule 37.2 Addendum at 11 (Dkt. 41-2). Other of
the documents referenced in the Order may also be responsive, although this Court does not
expressly decide that issue today.
The potential significance of the state court’s order in the Kowaleski case is emphasized
by the fact of BNSF’s motion to strike the supplemental filing from the record. (Dkt. 125.) BNSF
asserts that “[t]he alleged ‘supplemental authority’ consist of a highly contested sanction order
3
It is not clear from the Minnesota Order whether the GCOR referred to therein is BNSFspecific or is the industry standard GCOR. Even if the GCOR to which the Order referred is an
industry standard, BNSF amendments to the GCOR, if any, may well be responsive to the
Sherwoods’ discovery requests.
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from a Minnesota court in a FELA personal injury action factually and legally unrelated to Mr.
Sherwood and his claims.” Id. at 1–2. BNSF contends the “supplemental authority is irrelevant,
has no probative or dispositive value on the discovery issues in plaintiffs’ motion to compel, and
is highly prejudicial and inflammatory.” Id. at 2. In sum, BNSF argues that the Order
acknowledges the existence of a “Law Department Guide” but that BNSF has already admitted
in this action that such a document exists, that it was not used in connection with Mr.
Sherwood’s incident or investigation, that the document is not otherwise relevant to this matter,
and that the document is privileged. Mem. ISO Obj. and Mot. to Strike Suppl. Authority 3 (Dkt.
125-1).
BNSF further argues that the Order is not precedential or dispositive here. Id. at 5.
Moreover, BNSF cites three cases, including one Supreme Court case, for the proposition that
“unrelated discovery violations in other litigation do not provide a proper basis for imposing
discovery orders or sanctions in a matter presently before the Court.” Id. at 6 (citing Taylor v.
Illinois, 484 U.S. 400, 416 n.22 (1988); U.S. v. Ivory, 131 Fed. Appx. 628, 632 (10th Cir. 2005);
State v. Peterson, 2016 WL 2843012 (Minn. App. 2016) (unpublished)). BNSF supported its
motion to strike with a declaration of counsel indicating BNSF filed a pleading with the
Minnesota court “to contest, dispute and refute the contents of the Order.” Mitchell Decl. ¶ 2
(Dkt. 125-2). That pleading is attached to counsel’s declaration. (Dkt. 125-3.)
The Court has carefully reviewed BNSF’s motion to strike, but will not grant the motion.
As an initial matter, BNSF’s case citations are inapposite. All three cases dealt with discovery
violations in a criminal rather than a civil case. In Taylor, the key statement by the Supreme
Court was that “[u]nrelated discovery violations in other litigation would not, however, normally
provide a proper basis for curtailing the defendant’s constitutional right to present a complete
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defense.” 484 U.S. at 16 n.22. Here, BNSF has a strong interest in presenting the best defense it
can muster but in a civil case such as this one, the constitutional implications relevant in Taylor
are simply not present. Furthermore, Taylor did not categorically ban the consideration of
discovery violations in other litigations; it merely held that doing so would not normally be
proper – without discussing the circumstances in which it could be proper.
But the fatal blow to BNSF’s motion is that it mischaracterizes the purpose for which the
Sherwoods filed the supplemental “authority.” Contrary to BNSF’s argument, the Sherwoods do
not ask this Court to sanction BNSF for alleged discovery violations as occurred in the
Kowalewski case. The present dispute revolves around what documents exist, and the Court
considers the Kowalewski Order in that context, not as to whether discovery sanctions should be
imposed. The Kowalewski Order is appropriately considered in whether the Sherwood’s motion
to compel should, or should not, be granted.
BNSF also argues that the Minnesota decision is irrelevant because it discusses a “Law
Department Guide” whose existence has already been admitted. However, BNSF has been vague
about what documents do exist, so that this argument cannot be meaningfully evaluated. Mr.
Flatten acknowledged the existence of certain written procedures, but did not refer to them as
part of a “Law Department Guide” in either his deposition or his declaration, so it is unclear
whether he was referencing that document or some other resource. See Flatten Dep. (Dkt. 100-1);
Flatten Decl. (Dkt. 55). BNSF also cites a declaration of its Claims Agent Joshua Gore in support
of its assertion the Law Department Guide has already been acknowledged. Mem. ISO Obj. and
Mot. to Strike Suppl. Authority 3 (Dkt. 125-1). But Mr. Gore’s declaration likewise speaks
generally about a “reference guide” without calling it by name. Gore Decl. ¶ 2 (Dkt. 54).
Whether there is an institutional ambiguity, or a litigation disingenuousness, in all of that is an
MEMORANDUM DECISION AND ORDER RE MOTION TO COMPEL AND MOTION
TO STRIKE SUPPLEMENTAL AUTHORITY – 9
open question. Perhaps both Mr. Flatten and Mr. Gore were referring to the Law Department
Guide when making their remarks. But it is conceivable they were instead referring to a “Claims
Manual”4 or to some other document that has not yet been identified by name in this litigation.
Regardless, whatever moniker it carries in whatever corner of the BNSF organization, the Law
Department Guide, as described in the Minnesota Order, is responsive to RFP 37 and it was
therefore BNSF’s duty to disclose it or timely provide a privilege log describing the basis for not
producing it. BNSF’s motion to strike is denied.
Having established that at least some additional responsive documents exist, the Court
must now consider whether BNSF’s objections withstand scrutiny. In its discovery response,
BNSF objected that the request seeks materials protected by the attorney-client privilege, and,
separately, “protected as proprietary and confidential” under Castillon v. Corr. Corp. of Am.,
2013 U.S. Dist. LEXIS 112729 (D. Idaho Aug. 6, 2013). In its briefing, BNSF also argues that
the request seeks materials protected as attorney work-product. BNSF Resp. 3–5 (Dkt. 52). None
of these arguments has merit.5
4
If the “Claims Manual” is even distinct from the “Law Department Guide.” The Court
recognizes the possibility that the Claims Manual and the Law Department Guide may, in fact,
be different names for the same document. The very fact that this point is in question
underscores that BNSF’s candor and clarity leave much to be desired.
5
BNSF also argues that “the courts have determined that the question of whether a
communication is confidential – and therefore subject to protection by the attorney-client
privilege – turns on the subjective belief of the client, which must be reasonable under the
circumstances. Morningstar Holding Corp. v. G2, LLC, 2011 U.S.Dist. LEXIS 114687, *18-19
(D.Idaho 2011) (citing, Swenden v. Corey, 2011 LEXIS 41340 (D. Idaho 2011); Warner v.
Stewart, 129 Idaho 588 (1997)).” The Court does not glean the same conclusions from the cases
cited for that proposition; rather, the cases examine a (putative) client’s belief of whether there is
an attorney-client relationship, not whether a particular communication is confidential. None of
the cases addresses the confidentiality of communications. The decisions do not hold that a
subjective belief about the confidentiality of a communication determines whether it is protected
by the attorney-client privilege.
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As an initial matter, BNSF takes the position that its internal policies and procedures are
protected by the attorney-client privilege and/or as work-product because they were created by
counsel in anticipation of litigation. It is well-understood that the mere fact that a person is a
lawyer does not lay a cloak of privilege upon everything that lawyer prepares, sees, or hears.
U.S. v. Chen, 99 F.3d 1495, 1501 (9th Cir. 1996). For instance, “communications between inhouse counsel and corporate representatives, unlike those between a client and outside counsel,
are not presumed to be made for the purpose of obtaining legal advice.” Dewitt v. Walgreen Co.,
2012 WL 3837764 at *3 (D. Idaho Sept. 4, 2012) (citing U.S. v. ChevronTexaco Corp., 241
F.Supp.2d 1065, 1076 (N.D. Cal. 2002)). Conversations among BNSF personnel regarding
factual matters or business-related considerations in drafting or disseminating policy are not
privileged, regardless of whether in-house counsel is a party to the communications.
Nor does the fact that in-house counsel drafted, revised, or reviewed a document or
policy necessarily make it protected by the work-product doctrine. The doctrine does not protect
materials prepared “in the ordinary course of business, or pursuant to public requirements
unrelated to litigation, or for other nonlitigation purposes.” FED. R. CIV. P. 26(b)(3) Advisory
Committee Notes, 1970 Amendment. A corporation’s legal compliance policy that serves as a
reference or instructional guide to corporate employees is primarily a “business” policy rather
than a “legal” policy, even if based on the advice of counsel. See, e.g., In re Domestic Drywall
Antitrust Litig., MDL No. 2437, 2014 WL 5090032 at *4 (E.D. Penn. Oct. 9, 2014). “The work
product rule does not come into play merely because there is a remote prospect of future
litigation.” Dewitt, 2012 WL 3837764 at *5 (citing Fox v. Calif. Sierra Fin. Servs., 120 F.R.D.
520, 524 (N.D. Cal. 1988)).
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During oral argument, counsel for BNSF said that BNSF expects to be sued any time its
property is involved in an incident, and therefore its incident investigation procedures are
protected under the work-product doctrine because they were prepared “in anticipation of
litigation.” But expectations must have some grounding in common-sense, and even if counsel
drafted the policies in anticipation (whether possible or likely), there are also readily-apparent
business needs related to operational safety and, in some circumstances, regulatory requirements,
that call for creating and communicating such policies. Given this fact, BNSF’s blanket assertion
that its policies or procedures are privileged as attorney-client communications, or protected
from disclosure as work product, simply goes too far.
There remains, nonetheless, the potential that a particular document (or documents) is
privileged or protected. BNSF’s first objection to RFP 37 was that the requested documents are
protected by the attorney-client privilege. But BNSF did not provide a Rule 26(b)(5)(A)(ii)
privilege log “describ[ing] the nature of the documents . . . not produced or disclosed . . . in a
manner that, without revealing information itself privileged or protected, will enable other parties
to assess the claim.” Doing so was a predicate burden to asserting the privilege. Kirk, 116 P.3d at
34; see also FED. R. CIV. P. 26(b)(5)(A)(ii); Burlington Northern, 408 F.3d at 1149. Having
failed to do so, BNSF’s assertion of privilege is presumptively insufficient. Burlington Northern,
408 F.3d at 1149. Applying the Burlington Northern factors, the Court concludes that BNSF did
not provide enough information to evaluate its assertion of privilege. Further, the lack of any
privilege log or other information about the relevant documents (at least some of which were
acknowledged to exist in Mr. Flatten’s deposition) means it did not timely support its assertion.
Nor has BNSF demonstrated that the magnitude of production would be great –
especially given Mr. Flatten’s deposition testimony that “[t]he Claims department doesn’t have
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policy.” Flatten Dep. 15:8 (Dkt. 100-1). Finally, the Court concludes there are no particular
circumstances of the case weighing in BNSF’s favor. Accordingly, the Court concludes that any
privilege that might have attached to those documents responsive to RFP 37 was waived.
Next, BNSF objected that the documents sought are proprietary and confidential, and
thus protected from disclosure under Castillon. The reliance upon Castillon is misplaced,
however, because in Castillon, the court granted a protective order limiting dissemination but not
discovery in a civil rights case brought against an operating prison. Castillon MDO (Dkt. 41-4).
The protective order restricted confidential information, depending on its level of confidentiality,
from being distributed to certain categories of persons – an obvious concern in a penitentiary.
Castillon Prot. Order (Dkt. 41-3). It withheld some information from public disclosure, and some
other information from disclosure even to the inmate plaintiffs. Id. But in no instance was the
defendant protected from having to disclose such documents and information to counsel for the
plaintiffs. Id. Moreover, the court in Castillon cited the physical safety of prison employees and
their families; the privacy of inmates’ medical, institutional, and criminal records; and the
security of the prison as reasons to grant the protective order. Castillon MDO (Dkt. 41-4).6 In the
instant case, BNSF has not suggested that any safety, privacy, or security interests are at stake
here like they were in Castillon. The Court disagrees that BNSF’s interest is sufficient to justify
withholding otherwise-discoverable materials.
Finally, BNSF’s invocation of the work-product doctrine is ineffective for the same
reason its claim of attorney-client privilege is ineffective: Under the Burlington Northern factors,
BNSF waived any protection or privilege that might otherwise have applied when it did not
6
Although the court also granted the protective order on the basis that the prison had an
interest in maintaining the confidentiality of its proprietary information, nothing in the opinion
suggests this interest alone would have warranted a protective order. Id.
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seasonably provide sufficient information to evaluate its assertion. As a separate basis for
denying its claim under the work-product doctrine, the record before the Court shows that BNSF
also did not comply with Rule 26(b)(5)(A)(i), requiring it to “expressly make the claim” the
information was protected work-product. Although BNSF’s citation to Castillon in its response
to RFP 37 might be construed as asserting work-product protection, the Court is not persuaded it
was an express claim at that time. BNSF did expressly make such a claim in its briefing on this
motion, but the Court finds that claim was not timely. There is no room under the template of the
federal rules dealing with privilege logs, for a party to make generalized claims of privilege and
work product doctrine protection in the hope that the opposing party will not further pursue the
matter, and for that party to then later on seek to raise the privilege or work product doctrine
more specifically when a motion to compel is filed. The opportunity for mischief is obvious – a
party could make the generalized claim without meeting Rule 26(b)’s requirement to “describe
the nature of the documents . . . not produced or disclosed . . . in a manner that, without revealing
information itself privileged or protected, will enable other parties to assess the claim.” Then, the
opposing party is left without any way of knowing what is being withheld, and left without
enough information to judge for itself whether the claim upon which the information being
withheld is justified.
Because the Sherwoods have shown there are additional responsive documents to RFP 37
and BNSF has not shown it is entitled to withhold them, the Sherwoods’ motion to compel is
granted to the extent that it seeks the production of documents regarding BNSF’s incident
investigation procedures. At a minimum this must include (1) those documents to which Mr.
Flatten referred in his deposition; (2) the BNSF Claims Manual; and (3) the BNSF Law
Department Guide. Where more than one version of a document exists, BNSF must produce all
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versions that were either in effect as of July 14, 2014, or that may have otherwise been utilized in
BNSF’s actions regarding the July 14, 2014 incident.
The Sherwoods also requested that BNSF’s Rule 30(b)(6) deposition be reopened with an
order from the Court requiring that BNSF answer questions about its file system. Mem. in Supp.
7 (Dkt. 41-1). This request was based on Mr. Flatten’s deposition testimony that “[t]here are not
very many forms, that we have, that exist independent of our – of our file system of investigating
things in anticipation of litigation.” Flatten Dep. 161:15–18 (Dkt. 100-1). Inquiry into the details
of that file system was objected to on the grounds that it was proprietary information; counsel
instructed Mr. Flatten not to answer further questions on that topic. Id. 162:12–18, 163:11–12.
The Sherwoods contend that the refusal to allow questioning on this topic prevented them from
learning whether the facts support BNSF’s assertion of privilege. Mem. in Supp. 4 (Dkt. 41-1).
BNSF frames this request as the Sherwoods’ attempt to seek “production of (or access
to?) BNSF’s proprietary internal software, programs, and computer systems.” BNSF Resp. 11–
12 (Dkt. 52). They allege the Sherwoods “just want to go fishing around in BNSF’s computer
system to see what they can find – and such request is not permissible under the controlling law
prohibiting such ‘discovery on discovery.’” Id. at 12.
The Sherwoods do not seek an order allowing them either direct access to BNSF’s
electronic systems or license to conduct a fishing expedition. Rather, in light of counsel’s refusal
to allow further questioning after Mr. Flatten suggested BNSF’s file system includes relevant
documents, the Sherwoods seek an opportunity to inquire further about that response and about
any other relevant and nonprivileged matters related to the file system referenced. This is a
reasonable request, and the Court will grant it. BNSF is ordered to make Mr. Flatten (or a
different a corporate representative with knowledge, if the parties can agree upon such other
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representative) available for further deposition questioning on the topic of its file system as it
relates to incident investigations.
B. Discovery Regarding Specific Incident Investigation
The Sherwoods seek discovery regarding BNSF’s specific investigation of Mr.
Sherwood’s incident. Mem. in Supp. 8–15 (Dkt. 41-1). In particular, the Sherwoods seek
responses to Interrogatory 15, regarding all post-crash inspections performed pursuant to BNSF’s
policies and procedures; RFP 11, regarding all documents related to inspections; and RFP 35,
regarding documents from post-crash inspections pursuant to BNSF policies and procedures. The
Sherwoods specifically seek production of a “72-hour checklist” completed by the Claims
department, sketches of the crossing, photo logs, and documented measurements. Id. at 12–14.
Each category of requested discovery will be addressed in turn.
First, Interrogatory 15 provided:
Please list each inspection of the Crossing that occurred following the crash
at issue in this case that was related, in whole or in part, to investigating the crash
and that was performed pursuant to BNSF policies or procedures.
For each such inspection, please state: the date the inspection occurred; the
names and contact information of all BNSF employees or non-attorney agents who
participated; whether any BNSF employee or non-attorney agent took photographs
or videos; and whether any BNSF employee or non-attorney agent generated
drawings, notes, or other documents recording the participants’ observations.
Mem. in Supp., Ex. 1 Local Rule 37.2 Addendum at 7 (Dkt. 41-2). The Interrogatory requested
specific factual details about the date of any inspection, the identities of non-attorneys present,
and whether any documents were created by non-attorneys present. Id. BNSF objected on workproduct grounds, but gave limited details about one inspection on July 14, 2014. At oral
argument, BNSF counsel acknowledged another inspection on July 21, 2014. But there is no
indication that BNSF provided the Sherwoods a verified discovery response acknowledging that
inspection or another inspection the Sherwoods allege occurred on August 29, 2014. BNSF
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counsel admitted that there were photo logs created from each inspection, but denied that these
logs were requested in discovery. It is not clear whether the photo logs were created by counsel.
Regardless, RFP 11 sought “all documents related to the inspection of the Crossing and the track
in one mile in either direction from January 1, 2010 to the present.” Id. at 8. Even if the photo
logs – which were not produced – were created by counsel, BNSF was obligated either to
produce them in response to RFP 11 or to include them on a timely-provided privilege log. It did
neither of those things.
The Court’s reasoning on this issue is the same as on the issue of the general incident
investigation procedures issue, supra. Thus, the Court concludes that BNSF has not established it
was entitled to withhold documents responsive to Interrogatory 15 or RFP 11. Accordingly, the
Court will grant the Sherwoods’ motion to compel to the extent it seeks an order requiring BNSF
to supplement its responses to Interrogatory 15 and RFP 11, to be consistent with this
Memorandum Decision and Order. This must include production of the photo logs.
Next, the Court considers the Sherwoods’ request for disclosure of BNSF’s “72-Hour
Checklist” that was completed after Mr. Sherwood’s incident. This is a standard form that
BNSF’s Claims department may use when an incident occurs. It is not always, or not necessarily,
provided to counsel after it is filled out. Flatten Dep. 72:18–25 (Dkt. 100-1). BNSF asserts the
form is protected by both the attorney-client privilege and the work-product doctrine. However,
when directly asked during BNSF’s Rule 30(b)(6) deposition whether the form was generated
before or after the involvement of counsel, Mr. Flatten said it was generated “for involvement of
counsel.” Flatten Dep. 73:13–22 (Dkt. 100-1). When pressed on “whether the form was initiated
before counsel was involved in this case,” Mr. Flatten responded that “[i]t was generated at the
request of counsel to provide information specific to this case.” Id. 74:5–9. When the
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Sherwoods’ counsel sought to confirm Mr. Flatten’s answer meant that “the form was generated
after counsel was involved,” Mr. Flatten responded that “information was compiled within a 72hour format in order to provide information to counsel, yes.” Id. 74:10–21. When the
Sherwoods’ counsel continued to try to clarify the patent ambiguity in Mr. Flatten’s testimony,
BNSF’s counsel objected that the question was asked and answered and instructed Mr. Flatten
not to answer. Id. 74:22–76:11.
The Court has reviewed this document in camera. Each page of it bears an all-caps
notation at the bottom that it is an “attorney client privileged document – created at the direction
of counsel and in anticipation of litigation.” Such language, of course, is part of what the Court
considers but it is not determinative on its own. The form contains approximately thirty different
fields documenting the basic facts of the incident (who, what, where, when) as well as particular
types of data or information that might be relevant to the incident, such as whether any audio,
video, or photographs are known to exist. Approximately ten fields read “N/A”, but the
remaining fields contain various facts about the incident or evidence related to it. Nothing in the
form indicates that its purpose is to seek legal advice or that any attorney was involved in filling
it out. Nothing in the form indicates that the form could not be used for general business
purposes, including purposes related to operational safety or regulatory requirements. In short,
there is nothing whatsoever in the form that gives any indication who filled it out or why. Nor
did BNSF provide information in a privilege log that would enable either the Sherwoods or the
Court to assess its assertion of privilege.
Those facts combined with the opaque nature of the answers given by Mr. Flatten (and
the less than precise statements by BNSF’s counsel about the same during oral argument)
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convince the Court that BNSF has failed to meet its burden to establish that the document is
protected by the attorney-client privilege.
Hence, the Court will grant the Sherwoods’ request that the 72-hour form be disclosed to
them. The Court further finds that a blank copy of this form should have been produced in
response to RFP 37, discussed above. That RFP requested “policies, procedures, or rules for . . .
logging information about the incident in any software program, application, or database;
documenting the scene; taking and preserving photographs; preserving physical evidence;
generating incident reports; and/or completing incident reports.” The very existence of this form
indicates BNSF has a procedure for generating or completing incident reports, belying BNSF’s
argument that there are no other responsive documents to produce. As indicated at oral argument,
the Court will not permit BNSF to withhold responsive documents on the basis that the request
was not precisely formulated to BNSF’s satisfaction. The plaintiffs and their counsel cannot be
expected to request documents with absolute precision based upon BNSF’s own descriptors or
“form numbers,” when such descriptors and form numbers are known only to BNSF.
Accordingly, BNSF shall produce both the blank and the completed 72-hour form to the
Sherwoods.
Next, the Sherwoods seek the production of certain sketches someone from BNSF made
of the crossing. Mr. Flatten testified he knew certain sketches existed, but he had not seen them
and did not know who created them. Flatten Dep. 71:17–22 (Dkt. 100-1). BNSF has not
identified any sketches on a privilege log. Nor did it clarify in its briefing any of the relevant
circumstances surrounding the sketches; it merely states they “exist in BNSF’s counsel’s files
and are protected attorney work product.” BNSF Resp. 14 (Dkt. 52). However, at oral argument
BNSF affirmatively asserted for the first time that the sketches were created by counsel.
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Here again, BNSF is only forthcoming with information about the documents after the
time for disclosure of the fact of such documents, and after the basis for any claim of privilege or
work product protection should have been identified. These documents are a classic example of
the reason for a privilege log, and the task of identifying the fact of such sketches along with the
reason for not producing them to the Plaintiffs could have been easily done. It was not done and
the Court is troubled that BNSF did not do so in this instance until oral argument – and arguably
did not fully do so even then. On those facts, whatever privilege or work product protection
might have been available has unequivocally been waived. Accordingly, BNSF is ordered to
review its files and produce to the Sherwoods any and all sketches made of the crossing, as
referenced by Mr. Flatten in his deposition.
Next, the Sherwoods request photo logs of the photos BNSF took of the crossing during
its investigations. Mem. in Supp. 13 (Dkt. 41-1). BNSF argues the Sherwoods never asked for
photo logs through formal discovery. BNSF Resp. 15 (Dkt. 52). This argument is not persuasive.
The Sherwoods inquired “whether any BNSF employee or non-attorney generated drawings,
notes, or other documents recording the participants’ observations” at Interrogatory 15. They
further requested “all documents related to the inspection of the Crossing . . . from January 1,
2010 to the present” at RFP 11. Finally, they also requested “all documents (specifically
including, but not limited to, photographs, videos, drawings, and notes) generated by BNSF
employees or non-attorney agents during any inspection of the Crossing that occurred following
the crash at issue in this case; that was related, in whole or in part, to investigating the crash; and
that was performed pursuant to BNSF policies or procedures” at RFP 35.
The Court concludes that the photo logs are fairly covered by each of these discovery
requests and will compel BNSF to produce them, as discussed above. The Court will also order
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BNSF to review Interrogatory 15, RFP 11, and RFP 35 and its prior responses to each, and to
supplement its responses as necessary to comply with this decision and with the applicable
discovery rules.
Next, the Sherwoods seek the production of documented measurements they allege BNSF
took. Mem. in Supp. 13–14 (Dkt. 41-1). They note that inspection photos from two different
dates depict BNSF personnel with measuring devices in hand, but BNSF has not produced any
documents of measurements taken other than a single imprecise measurement in a disclosed
Report of Inspection. BNSF contends “[e]verything from these inspections has been produced.”
BNSF Resp. 15 (Dkt. 52). That statement is incorrect, as BNSF has acknowledged that there are
photo logs from those inspections it has not produced. Accordingly, the Court will order BNSF
to review its files and produce any documented measurements that exist.
Next, the Sherwoods seek documents regarding any additional inspections, including an
alleged inspection during the November 2014 rehabilitation of the crossing. Mem. in Supp. 14–
15 (Dkt. 41-1). BNSF again asserts that it has disclosed all responsive documents and that there
were no additional inspections. BNSF Resp. 16–18 (Dkt. 52). It argues that the rehabilitation was
not an “investigation” and it was therefore outside the scope of the Sherwoods’ discovery
requests. Id. at 17–18. It also notes that the Sherwoods deposed BNSF employee Arne Olson,
who worked on the crossing after the incident, and they could have questioned him about any
repairs he made to the crossing. The Sherwoods reply that even if the rehabilitation was not an
“investigation” under RFP 35, it was undoubtedly encompassed within RFP 12, which sought
“documents related to the maintenance or repair of the Crossing.” Reply in Supp. 9 (Dkt. 88).
Further, they contend that “BNSF did not reveal in written discovery that Mr. Olson was
involved in the repair. BNSF’s counsel ordered Mr. Olson to make the repair, failed to disclose
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this in response to Interrogatory No. 6, failed to have Mr. Olson document the repair – and now
blames the Sherwoods for not asking about it.” Id. The Sherwoods propounded Interrogatory 6
on May 13, 2016 and deposed Mr. Olson on November 9, 2016. It was not until October 11,
2017, more than eleven months later, that BNSF revealed for the first time that Mr. Olson had
made repairs to the crossing.7 Id.
The Sherwoods’ argument on this point is well-taken. The discovery rules are designed to
discourage parties from hiding the ball, with an order to compel as one of the court’s primary
tools to remedy such conduct. Accordingly, the Court will order BNSF to produce all documents
relevant to the November 2014 rehabilitation. The Court will also order BNSF to produce all
responsive documents regarding any other inspection, investigation, maintenance, or repair of the
crossing from January 1, 2010 to the present.
Separately, during oral argument on this motion the parties discussed whether BNSF had
complied with the Sherwoods’ discovery requests regarding certain “VOB” or “video-on-board”
recordings. These are recordings made by trains passing through the crossing shortly after the
incident occurred, including at least one video showing first responders on scene. To date, BNSF
has produced only two screenshots from these videos. It argued at the hearing that it has not
produced the videos or allowed the Sherwoods to view them because they were not requested
and because doing so would violate a third-party software licensing agreement.
7
The Court is aware that this allegation mirrors a finding by the trial judge in the pending
Minnesota case referenced earlier in this decision, that “BNSF has engaged in a pattern of
misconduct throughout this case characterized by late production of documents and witnesses...”
Order and Mem. 32 (Dkt. 123-1). That finding was based in part on the plaintiff’s assertion that
BNSF “engaged in the practice of not producing documents critical to the questioning of specific
witnesses until after their depositions were concluded.” Id. at 30.
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In this instance, the Court agrees that RFP 35 could be read as not requesting the VOB
recordings. The request seeks, in pertinent part, “videos…generated by BNSF
employees…during any inspection of the Crossing that occurred following the crash…that was
related, in whole or in part, to investigating the crash; and that was performed pursuant to BNSF
policies or procedures.”8 The record does not indicate that the VOB recordings had any
connection, in whole or in part, to investigating the crash pursuant to BNSF policies or
procedures. Rather, the record (including the hearing record) indicates that such video recordings
were simply made in the ordinary course, from a train that just happened to come through the
crossing shortly after the incident occurred. In other words, the fact of the VOB recording
happened to be coincidental to the timing of the incident, rather than precipitated by the fact of
the incident.
If those were the only details relevant to this particular issue, the Court would rule in
favor of BNSF on this issue. However, BNSF answered RFP 35 in this manner: “The documents,
photographs etc. [sic] relative to the July 14, 2014 inspection have been produced. Please also
see objection and answer to Interrogatory No. 15.” Among the items produced by BNSF were
two “screenshots” from the video – in other words, still images taken from the video. The upshot
of those facts is that there is discoverable information on the VOB, that some “pieces” of that
discoverable information – in the form of screenshots – was produced in response to RFP 35, and
that producing such information (as distinguished from the technology used to obtain such
information) can be done without violating any sort of software license agreement.
8
RFP 11 similarly sought “all documents related to the inspection of the Crossing and the
track in one mile in either direction.”
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Accordingly, the Court will order that BNSF either produce the VOB in its original form
(or a direct copy of its original form), or in a different form which maintains the same image
quality as the original form. BNSF can request a protective order as to the use of the video,
and/or the means of viewing the video, before producing the same and the Court recommends to
the parties that they seek to stipulate upon the form of such a protective order before it is
presented to the Court. Further, the Court finds that it is not necessary for BNSF to turn over the
entirety of such video, but rather BNSF is required to produce the 60 seconds leading up to
entering the crossing at issue, the period in which the train is passing through the crossing, and
the 60 seconds following the exit from the crossing. The video shall be produced in its unedited
native format (or in another format mutually agreed to by the parties), and BNSF shall provide
whatever measures are needed for Plaintiffs to view the video, if such special measures are
required, at a time and place to be agreed upon by the parties. If Plaintiffs contend that they
should be entitled to see any other portion of the video, they will need to file a separate motion
with the Court articulating reasoning and authority upon which such a request should be granted.
Finally, the Sherwoods seek an order reopening BNSF’s Rule 30(b)(6) deposition with
instructions that BNSF’s designee must answer questions about investigation activities occurring
more than 72 hours after the crash. Mem. in Supp. 15 (Dkt. 41-1). They contend that Mr. Flatten
was instructed by counsel not to answer any questions about BNSF’s investigation after counsel
became involved, which prevented the Sherwoods from learning factual details about the
investigation and from refuting the claim of privilege. Id. at 8–9. Although BNSF did not brief
this issue, counsel’s objections during Mr. Flatten’s deposition staked out the position that
everything BNSF did after counsel became involved is protected by privilege: “I’m going to put
a further objection on the record that you are delving into attorney-client privilege. As you know,
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TO STRIKE SUPPLEMENTAL AUTHORITY – 24
I’ve been working on this case since 72 hours after the incident. So anything beyond that would
be my mental impressions and my interactions with the BNSF claims team.” Flatten Dep. 37:18–
21 (Dkt. 100-1). Counsel later restated the objection: “Everything after the 72 hours, after we
were involved as counsel representing the company in this case is going to be privileged. It’s just
the way it is.” Id. at 110:19–22. BNSF maintained this position at oral argument.
As described above, BNSF has overstated the applicability of the attorney-client privilege
and work-product doctrine by asserting the protections apply to all interactions with counsel and
by refusing to allow inquiry into the factual circumstances surrounding its assertions. It bears
repeating that the mere involvement of an attorney in a matter does not cloak everything the
attorney does or says in privilege. Nor is “privilege” an incantation whose mere utterance creates
a fait accompli; an opposing party is entitled to inquire about the surrounding circumstances to
evaluate for itself whether privilege applies, and to challenge the assertion if it is appropriate to
do so. Accordingly, the Court will grant the Sherwoods’ motion for an order reopening BNSF’s
Rule 30(b)(6) deposition on the topic of investigation activities occurring more than 72 hours
after the crash. In making that decision, the Court is not ordering that the attorney-client
privileged is waived as to any communications that qualify for the privilege, but the Court is
ordering that counsel for the Sherwoods shall be permitted to inquire into the basis for the
invoking of such privilege. If a dispute arises, and the parties cannot reach agreement upon
whether a question requires an answer or not, the parties can seek the contemporaneous
involvement of the Court to resolve such disputes. If the Court concludes that either party has
taken an unreasonable position in regard to the same, that is not justified by rule or existing law,
the Court will consider imposing sanctions upon the offending party.
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C. Interrogatories Regarding Destruction of Physical Evidence
The Sherwoods seek formal answers to their interrogatories regarding destruction of
physical evidence. Mem. in Supp. 15–17 (Dkt. 41-1). Interrogatory 7 seeks information about the
chain of custody and testing of the cement planks present at the crossing on the day of the
incident, many of which were subsequently lost or destroyed. Mem. in Supp., Ex. 1 Local Rule
37.2 Addendum at 5 (Dkt. 41-2). Interrogatory 8 seeks information about the loss or destruction
of any responsive documents or physical evidence. Id. at 6. BNSF answered both Interrogatories
and later formally supplemented its answer to one of them. Id. at 5, 6. The Sherwoods contend
that new information has come to light since BNSF last formally responded to the Interrogatories
and that it has therefore violated its duty to supplement its answers. Counsel have exchanged
numerous emails regarding the subject of these Interrogatories. Mem. in Supp. 16 n.9 (Dkt. 411). But the Sherwoods argue counsel’s unsworn emails are not an adequate substitute for a
formal (i.e., sworn) response, and, regardless, the emails do not completely answer the
Interrogatories anyway. Id. at 16–17. BNSF responds that it has already provided the Sherwoods’
counsel all the information it has on these topics.
Rule 33(b)(3) provides that “[e]ach interrogatory must, to the extent it is not objected to,
be answered separately and fully in writing under oath.” Rule 26(e)(1) provides that:
A party who . . . has responded to an interrogatory . . . must supplement or correct
its disclosure or response:
(A) in a timely manner if the party learns that in some material respect the
disclosure or response is incomplete or incorrect, and if the additional or
corrective information has not otherwise been made known to the other
parties during the discovery process or in writing; or
(B) as ordered by the court.
Applying these rules, it is clear BNSF provided at least some written supplementation, which is
consistent with Rule 26(e)(1)(A) without violating Rule 33. But the Sherwoods maintain that
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these informal supplementations, aside from being improper, were also incomplete. Reply in
Supp. 9–10 (Dkt. 88). They seek an explanation of “who had custody of the planks at what times,
how half the planks mysteriously resurfaced, and why [BNSF] destroyed all of the other physical
evidence despite an alleged internal preservation request.” Id. at 10. These are salient questions.
The Court will grant the Sherwoods’ motion to compel on this subject, and BNSF is
ordered to provide sworn and formal supplementation to Interrogatories 7 and 8, in the form
required by the rules. The facts in this case disclose a possibility of spoliation. The supplemental
answers must lay out all of the responsive information, even if previously provided, and they
must be sworn.
D. Deposition Answers Regarding Failure to Preserve Physical Evidence
The Sherwoods seek to reopen BNSF’s Rule 30(b)(6) for additional questioning
regarding the preservation of physical evidence. Mem. in Supp. 17–18 (Dkt. 41-1). They note
that counsel told Mr. Flatten not to answer any questions about BNSF’s preservation of evidence
occurring more than 72 hours after the incident. Id.9
As already discussed, BNSF’s broad and preemptive assertion of privilege in such
circumstances is too broadly drawn. The Court will therefore grant the Sherwoods’ request to
reopen BNSF’s Rule 30(b)(6) deposition on the topic of preservation of evidence. BNSF is
ordered to make Mr. Flatten available, or if the parties agree, make a corporate representative
9
During the deposition, BNSF counsel objected that evidence preservation issues were
outside the scope of the topics listed on the notice of deposition. However, BNSF permitted Mr.
Flatten to answer questions on the subject, but directed him not to answer any questions about
BNSF’s preservation of evidence occurring more than 72 hours after the incident. Whatever
validity there might have been to objecting to any questions posed to Mr. Flatten on the subject
because the subject was outside the 30(b)(6) notice, it was waived by counsel permitting Mr.
Flatten to answer some questions on the subject but then instructing him not to answer others.
MEMORANDUM DECISION AND ORDER RE MOTION TO COMPEL AND MOTION
TO STRIKE SUPPLEMENTAL AUTHORITY – 27
other than Mr. Flatten available, for further deposition on the topic of evidence preservation. If
BNSF objects on privilege grounds during the re-opened deposition, it must be prepared to
provide sufficient detail about the precise circumstances surrounding its objection to allow an
evaluation of its claim of privilege. The Court will carefully scrutinize any further claims that an
assertion of privilege is unjustified or overbroad.
E. Discovery Regarding Post-Crash Crossing Alterations
The Sherwoods seek formal supplemental responses to Interrogatory 6 and RFP 12, both
regarding BNSF’s post-incident alterations of the crossing. Mem. in Supp. 18–19 (Dkt. 41-1).
They contend that, at a minimum, BNSF closed the separation between the planks and replaced
or rotated one of the crossing planks, but that it has not produced any interrogatory response or
document regarding these activities. Id.
BNSF previously responded to both Interrogatory 6 and RFP 12, raising some objections
but also disclosing certain information and documents. Additionally, in its responsive briefing
here, BNSF submitted a declaration by its employee Mr. Olson, dated October 11, 2017, who
testified that he was told by counsel on or about July 21, 2014 to close the separation between
the two crossing planks in the crossing. Olson Decl. ¶¶ 2, 3 (Dkt. 56). He further testified that he
did not recall when the separation was closed or who did it, despite having searched for relevant
records and spoken with the employees who likely would have done the work. Id. ¶¶ 4–7. He
expressly mentioned that it was difficult for anyone to recall doing the work, because it was over
three years ago. Id. at ¶ 7.
Mr. Olson’s declaration regarding the facts of his post-incident alterations to the crossing
– facts to which the Sherwoods are doubtless entitled – was filed more than three years after the
incident, and he also testifies that he no longer recalls key details because it was so long ago. In
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light of that delay, the Court will grant the Sherwoods’ motion to compel to the extent it seeks
sworn supplementations to Interrogatory 6 and RFP 12. This supplementation must also include
an explanation why Mr. Olson’s alterations were not disclosed sooner.
F. Expenses
Finally, the Sherwoods seek an award under Rule 37(a)(5) of their reasonable expenses in
making this motion. They argue that “BNSF has pervasively obstructed discovery and ignored
clear legal precedent in this case and others.” Mem. in Supp. 19 (Dkt. 41-1). BNSF did not
specifically oppose the request for fees, instead focusing on opposing the merits of the motion.
The Sherwoods’ motion to compel is granted. Therefore, the Court must, after giving an
opportunity to be heard, award the Sherwoods’ reasonable fees in bringing this motion unless an
exception applies. The Court finds no exception applies, and will grant the Sherwoods’ request
for their reasonable expenses. The Court will entertain a separate motion and briefing to establish
the amount of expenses to award.
CONCLUSION
BNSF has consistently overstated the extent of applicable privileges and protections and
has not provided the details necessary to assess its claims of privilege or protection. It has also
narrowly construed propounded discovery requests so as to avoid producing relevant and
responsive information and documents. Therefore, the Sherwoods’ motion to compel is granted
in the measure described in this decision. BNSF must supplement its discovery responses and
permit additional deposition questioning as described herein.
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ORDER
Based on the foregoing, IT IS HEREBY ORDERED that Plaintiffs’ Motion to Compel
(Dkt. 41) is GRANTED. BNSF is ordered to produce to the Sherwoods, within 14 days of the
date of this order, sworn supplemental responses to Interrogatories 6, 7, 8, and 15 as well as
RFPs 11, 12, 35, and 37 as described herein. At a minimum, these supplemental responses must
disclose the following particular documents, electronically stored information, tangible things, or
information, in addition to relevant and responsive details relating thereto:
1. Those “procedures that are written down” to which Mr. Flatten referred during his
deposition;
2. The “BNSF Claims Manual” and the “BNSF Law Department Guide”;
3. Any and all photo logs related to BNSF’s photographs of the crossing;
4. The “72 Hr Grade Crossing/Trespasser Checklist” or “72-Hour Checklist” for Mr.
Sherwood’s incident and in blank;
5. Any and all sketches of the crossing, as referenced by Mr. Flatten in his deposition;
6. Any and all documented measurements relating to Mr. Sherwood’s incident, BNSF’s
investigation, or any repair or maintenance of the crossing;
7. Complete copies of any and all VOB or “video on board” footage recording the
period during which the train is passing through the crossing on the day of Mr.
Sherwood’s incident as well as 60 seconds before and 60 seconds after such footage;
and
8. BNSF’s explanation for waiting until October 2017 to disclose that the crossing had
been altered by Arne Olson or another BNSF employee or agent in 2014.
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TO STRIKE SUPPLEMENTAL AUTHORITY – 30
BNSF is further ordered to make available a corporate representative for up to four additional
hours of deposition testimony under Federal Rule of Civil Procedure 30(b)(6) on the following
topics:
1. BNSF’s “file system” for investigating incidents;
2. BNSF’s investigation activities occurring more than 72 hours after the incident; and
3. BNSF’s evidence preservation in this matter.
This re-opened deposition is to occur within thirty days of the date of this order unless the Court
approves a date certain, presented by stipulation of the parties, that is more than thirty days
hence.
Further, IT IS HEREBY ORDERED that Defendant’s Motion to Strike Supplemental
Authority (Dkt. 125) is DENIED.
DATED: May 9, 2018.
_____________________________
Honorable Ronald E. Bush
Chief U. S. Magistrate Judge
MEMORANDUM DECISION AND ORDER RE MOTION TO COMPEL AND MOTION
TO STRIKE SUPPLEMENTAL AUTHORITY – 31
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