Sherwood v. BNSF Railway Company et al
Filing
136
MEMORANDUM DECISION AND ORDER RE: MOTION FOR CLARIFICATION It is hereby ORDERED that at the re-opened Rule 30(b)(6) deposition ordered in the Memorandum Decision and Order Re Motion to Compel and Motion to Strike Supplemental Authority (Dkt. 134 ), Defendant BNSF's designee(s) shall bring with him, her, or them for inspection and copying documents reviewed in preparation for the reopened deposition, including but not limited to BNSF's internal preservation requests regarding the cros sing at issue in this case. No other relief is awarded based on Plaintiffs' Motion for Clarification of Memorandum Decision and Order Re: Document Request in Rule 30(b)(6) Deposition Notice (Dkt. 135 ). That motion is now resolved. 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 (jp)
UNITED STATES DISTRICT COURT
DISTRICT OF IDAHO
ROBERT WILLIAM SHERWOOD and
PAMELA LOUISE SHERWOOD, husband
and wife,
Plaintiffs,
Case No.: 1:16-cv-00008-EJL-REB
MEMORANDUM DECISION AND
ORDER RE MOTION FOR
CLARIFICATION (DKT. 135)
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.
Pending is Plaintiffs’ Motion for Clarification of Memorandum Decision and Order Re:
Document Request in Rule 30(b)(6) Deposition Notice (Dkt. 135). Having carefully considered
the record, and otherwise being fully advised, the Court enters the following Memorandum
Decision and Order:
BACKGROUND
On May 9, 2018, this Court ruled on Plaintiffs’ motion to compel (Dkt. 41), which sought
relief on numerous discovery issues. The motion was largely granted, with the Court ordering
Defendant to produce certain documents and to submit to a re-opened Rule 30(b)(6) deposition
on certain topics. (Dkt. 134.) One topic at issue in the re-opened deposition is Defendant’s
preservation of evidence. Plaintiffs now move to clarify whether Defendant’s designee(s) must
bring to the re-opened deposition any documents reviewed in preparation. (Dkt. 135.) Plaintiffs
want an order requiring Defendant to produce “All documents or communications that the
Designee(s) reviewed when preparing for this deposition.” Mot. for Clarification ¶ 4 (Dkt. 135)
MEMORANDUM DECISION AND ORDER RE MOTION FOR CLARIFICATION – 1
(quoted from Deposition Notice at Dkt. 41-34 p. 4).
DISCUSSION
Plaintiffs seek “clarification of whether their Motion to Compel is granted or denied with
respect to the request that BNSF produce documents that Mr. Flatten and any subsequent BNSF
Rule 30(b)(6) designee(s) reviewed in preparation for their depositions, including specifically
BNSF’s internal preservation requests.” Mot. for Clarification ¶ 5 (Dkt. 135). They say they
requested those documents in the Deposition Notice but that BNSF neither objected nor
complied. Id. ¶ 4. Mr. Flatten, Defendant’s Rule 30(b)(6) designee, did not bring any documents
to the deposition. Flatten Dep. 189:13–16 (Dkt. 41-7). Plaintiffs’ motion implies they believe
that Mr. Flatten did review certain documents, including internal preservation requests.
But there is no evidence before the Court that Mr. Flatten did, in fact, review such
documents in preparation for the original deposition. During that deposition, Plaintiffs’ counsel
inquired as to the documents, or categories of documents, Mr. Flatten reviewed. Id. at 187:1–3,
189:17–19. After objecting on privilege grounds (Id. at 187:4–5), Defendant’s counsel identified,
and Mr. Flatten acknowledged, several categories of documents Mr. Flatten reviewed: claims
files for prior incidents, discovery productions, discovery responses, ROC tickets, and hotline
complaints. Id. at 189:20–190:12. Thereafter, Plaintiffs’ counsel asked Mr. Flatten “Any other
documents that you reviewed besides the ones you just went through?” Id. at 190:17–19. Mr.
Flatten answered, “No.” Id. at 190:20. After additional questions about how Mr. Flatten prepared
for the deposition, focusing primarily on conversations he had, the deposition concluded. Simply
put, the Court has no reason to believe that Mr. Flatten did review any internal preservation
requests, in light of his testimony identifying several categories of documents he did review and
his assertion he reviewed no other documents.
MEMORANDUM DECISION AND ORDER RE MOTION FOR CLARIFICATION – 2
Plaintiffs’ Deposition Notice required the production of those documents Mr. Flatten
“reviewed when preparing for th[e] deposition.” Absent evidence Mr. Flatten reviewed any
internal preservation requests, the Deposition Notice provides no basis to order Defendant, now,
to produce any such documents with respect to the prior deposition.
However, Plaintiffs’ motion to compel requested that, if Defendant’s Rule 30(b)(6)
deposition were re-opened, Defendant’s designee would, again, be required to “bring with him,
her, or them for inspection and copying documents reviewed in preparation for the reopened
deposition, including but not limited to BNSF’s internal preservation requests regarding the
crossing at issue in this case.” Plfs.’ Mot. to Compel 3 (Dkt. 41). This is a reasonable and typical
request in such circumstances, and the Court will grant it.
ORDER
Based on the foregoing, IT IS HEREBY ORDERED that, at the re-opened Rule
30(b)(6) deposition ordered in the Memorandum Decision and Order Re Motion to Compel and
Motion to Strike Supplemental Authority (Dkt. 134), Defendant BNSF’s designee(s) shall bring
with him, her, or them for inspection and copying documents reviewed in preparation for the reopened deposition, including but not limited to BNSF’s internal preservation requests regarding
the crossing at issue in this case. No other relief is awarded based on Plaintiffs’ Motion for
Clarification of Memorandum Decision and Order Re: Document Request in Rule 30(b)(6)
Deposition Notice (Dkt. 135). That motion is now resolved.
DATED: May 15, 2018.
_____________________________
Honorable Ronald E. Bush
Chief U. S. Magistrate Judge
MEMORANDUM DECISION AND ORDER RE MOTION FOR CLARIFICATION – 3
Disclaimer: Justia Dockets & Filings provides public litigation records from the federal appellate and district courts. These filings and docket sheets should not be considered findings of fact or liability, nor do they necessarily reflect the view of Justia.
Why Is My Information Online?