Henman v. Indiana Harbor Belt Railroad Company
Filing
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OPINION AND ORDER: DENYING 28 MOTION to Compel ANSWERS TO DEPOSITION QUESTIONS by Pla Cory Henman. GRANTING 31 RESPONSE to Motion re 28 MOTION to Compel Deposition Testimony and Motion for a Protective Order filed by Indiana Harbor Belt Railroad Company and ORDERING Pla, as outlined in Order. ORDERING Dft to FILE, by 11/5/2015, an itemization of its costs and fees, as outlined in Order, with Pla to FILE a response to Dft's request for expenses by 11/19/2015. Signed by Magistrate Judge John E Martin on 10/22/2015. (lhc)
UNITED STATES DISTRICT COURT
NORTHERN DISTRICT OF INDIANA
HAMMOND DIVISION
CORY HENMAN,
Plaintiff,
v.
INDIANA HARBOR BELT
RAILROAD COMPANY,
Defendant.
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CAUSE NO. 2:14-CV-434-JTM-JEM
OPINION AND ORDER
This matter is before the Court on a Plaintiff’s Motion to Compel Answers to Deposition
Questions [DE 28], filed by Plaintiff on June 25, 2015. Defendant’s Response to Plaintiff’s Motion
to Compel and Motion for a Protective Order was filed by Defendant Indiana Harbor Belt Railroad
Company (IHB) on July 15, 2015, and on July 22, 2015, Plaintiff filed a reply.
I.
Background
This is an action under the Federal Employers’ Liability Act for an injury Plaintiff sustained
at Defendant’s rail yard as a result of an accident. Michael Jovanovich is an employee of Defendant
who was at the yard office at the time of the occurrence. He did not witness the accident or any of
the train movements relating to the occurrence, but provided assistance to emergency response
personnel in moving Plaintiff to an ambulance. Neither Jovanovich nor anyone else was disciplined
by IHB as a result of the occurrence. Jovanovich appeared at a deposition at the request of Plaintiff.
Counsel for Plaintiff questioned Jovanovich about his disciplinary history with IHB and Jovanovich
declined to answer. Plaintiff now seeks to compel answers to those questions.
II.
Analysis
Plaintiff argues that if Jovanovich had received favorable treatment in his disciplinary
history, he might be inclined to give testimony favorable to Defendant. Defendant argues that
questions about any discipline unrelated to the occurrence is irrelevant to any claims or defenses in
this case. Defendant argues that because the questions are a fishing expedition designed to obtain
prejudicial information, the motion to compel should be denied, and Defendant also seeks a
protective order barring inquiry into unrelated disciplinary matters of IHB employees.
Federal Rule of Civil Procedure 26(b) provides, in relevant part: “Parties may obtain
discovery regarding any nonprivileged matter that is relevant to any party’s claim or defense. . .
Relevant information need not be admissible at the trial if the discovery appears reasonably
calculated to lead to the discovery of admissible evidence.” Fed. R. Civ. P. 26(b)(1). Relevancy
is “construed broadly to encompass any matter that bears on, or that reasonably could lead to other
matter that could bear on, any issue that is or may be in the case.” Oppenheimer Fund, Inc. v.
Sanders, 437 U.S. 340, 351 (1978) (citing Hickman v. Taylor, 329 U.S. 495, 501 (1947)). A party
may seek an order to compel discovery when an opposing party fails to respond to discovery
requests or provides evasive or incomplete responses. See Fed. R. Civ. P. 37(a). A party objecting
to the discovery request bears the burden of showing why the request is improper. See McGrath v.
Everest Nat. Ins. Co., 625 F. Supp. 2d 660, 670 (N.D. Ind. 2008). The Court has broad discretion
when deciding whether to compel discovery. See Patterson v. Avery Dennison Corp., 281 F.3d 676,
681 (7th Cir. 2002) (citing Packman v. Chi. Tribune Co., 267 F.3d 628, 646-47 (7th Cir. 2001);
Rennie v. Dalton, 3 F.3d 1100, 1110 (7th Cir. 1993)).
Federal Rule of Civil Procedure 26(c) also allows the Court, for good cause, to issue an order
to protect a party from discovery “from annoyance, embarrassment, oppression, or undue burden
or expense,” including “forbidding inquiry into certain matters.” Fed. R. Civ. P. 26(c)(1)(D). Rule
26(c) “essentially operates to balance the public’s interest in open proceedings against an
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individual’s private interest in avoiding annoyance, embarrassment, oppression, or undue burden
or expense.” Felling v. Knight, 211 F.R.D. 552, 554 (S.D. Ind. 2003) (quotations omitted). “The
party moving for a protective order must establish that good cause exists for the Court to exercise
its discretion in entering a protective order.” Nieves v. OPA, Inc., 948 F. Supp. 2d 887, 891 (N.D.
Ill. 2013).
Plaintiff seeks information from witness Jovanovich about whether he has ever been
disciplined by IHB for events other than those that are the subject of the instant lawsuit. Defendant
argues that any discipline of witnesses for events unrelated to the occurrence that gave rise to
Plaintiff’s injury is irrelevant, making Plaintiff’s questions nothing more than a fishing expedition
for prejudicial information. Plaintiff argues that if any railroad witness has been given favorable
treatment in discipline history, that witnesses’ credibility might be affected, and that the broad scope
of discovery allows for this kind of questioning. Counsel for Plaintiff admits that he has no reason
to think that there has been any exchange of favorable treatment for favorable testimony. At the
deposition, Jovanovich was not asked whether there was any reason for him to give favorable
testimony or if he had received any favorable treatment in exchange for his testimony; instead,
Plaintiff’s questions were targeted specifically to Jovanovich’s discipline history and other personal
employment issues.
Plaintiff is correct that the scope of discovery is broad, but it is not unlimited. Broad
discovery rules “were never intended to be an excursion ticket to an unlimited exploration of every
conceivable matter that captures an attorney’s interest . . . [and] ‘[d]iscovery of matter not
reasonably calculated to lead to the discovery of admissible evidence is not within the scope of Rule
26(b)(1).’”
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Miller UK Ltd. v. Caterpillar, Inc., 17 F. Supp. 3d 711, 721 (N.D. Ill. 2014) (quoting Oppenheimer
Fund, 437 U.S. at 352). As Defendant argues, Plaintiff does not provide any reason to think that
Jovanovich may be biased, and was asking him for personal information. The deponent was a
witness to activities that occurred after the accident, and was being deposed in that role. Although
Plaintiff argues broadly that he is entitled to determine whether there is any bias, counsel for
Plaintiff admits that he has no reason to think that Jovanovich might be biased. He did not seek any
information in discovery about the witness’s disciplinary history, and there was no apparent reason
to suspect that he was biased at all, let alone that the bias was caused by IHB’s treatment of him in
disciplinary proceedings. His unsubstantiated desire to find anything in the background of
Jovanovich, a person who is not a party to this case and is only testifying as to his role and
observations in events that happened after the occurrence, does not justify such a personal fishing
expedition into his background, does not appear to be calculated to lead to the discovery of
admissible evidence, and is likely to invade his right to privacy. See, e.g., Baker v. Town of
Middlebury, 753 N.E.2d 67, 72 (Ind. Ct. App. 2001) (noting the important “public policy protecting
the privacy rights of individuals with respect to sensitive personnel matters” when finding a right
to private employee evaluations in Indiana).
Plaintiff also argues that lack of relevance is not a valid reason for counsel for Defendant to
advise the deponent that he need not answer the questions. Although that is generally correct,
“irrelevant questions, however, may unnecessarily touch sensitive areas or go beyond reasonable
limits . . . [and] refusing to answer may be justified.” Eggleston v. Chi. Journeymen Plumbers’
Local Union No. 130, U. A., 657 F.2d 890, 903 (7th Cir. 1981). Likewise, Federal Rule of Civil
Procedure 30 provides that “[a]t any time during a deposition, the deponent or a party may move to
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terminate or limit it on the ground that it is being conducted in bad faith or in a manner that
unreasonably annoys, embarrasses, or oppresses the deponent or party.” Fed. R. Civ. P. 30(d)(3)(A).
Questions of employer discipline for events other than those related to the occurrence are not
relevant to any claim or defense in this case, particularly where there is no reason to believe that
there is any connection between disciplinary history and bias. “Before restricting discovery, the
court should consider the totality of the circumstances, weighing the value of the material sought
against the burden of providing it, and taking into account society’s interest in furthering the
truthseeking function in the particular case before the court.” Patterson, 281 F.3d at 681 (quotation
omitted). In this case, the Court concludes that there is no reason to think that the information being
sought by Plaintiff – bias because of prior disciplinary treatment – exists. Instead, those questions
are likely to cause unreasonable annoyance, embarrassment, and oppression of the deponent, as well
as invading his privacy. Not only was it appropriate for the deposition to be limited, but Defendant
has also shown good cause for a protective order barring inquiry into unrelated disciplinary matters
of other IHB employees to be deposed in this case. See, e.g., Matter of Ingram Barge Co., 306
F.R.D. 184, 187 (N.D. Ill. 2014) (denying a motion to compel and granting a protective order upon
a finding that a “personnel file and the draft workplace investigation report [we]re not relevant”
where they implicated privacy concerns and did not address the accident being litigated).
III.
Conclusion
For the foregoing reasons, the Court hereby DENIES Plaintiff’s Motion to Compel Answers
to Deposition Questions [DE 28]. The Court GRANTS Defendant’s Motion for a Protective Order
[DE 31] and ORDERS that Plaintiff may not question IHB employee witnesses regarding their
disciplinary history unrelated to the occurrence that is the subject of this litigation.
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Because the motion to compel was denied and a protective order entered, the Court “must,
after giving the opportunity to be heard, require the movant, the attorney filing the motion, or both
to pay the party or deponent who opposed the motion its reasonable expenses incurred in opposing
the motion, including attorney’s fees” unless “the motion was substantially justified or other
circumstances make an award of expenses unjust.” Fed. R. Civ. P. 37(a)(5)(B). Accordingly, the
Court hereby ORDERS Defendant to FILE, on or before November 5, 2015, an itemization of its
costs and fees, including attorney’s fees, incurred in opposing the Motion to Compel along with
argument as to why those expenses are reasonable in this situation, with Plaintiff to FILE a response
to Defendant’s request for expenses on or before November 19, 2015.
SO ORDERED this 22nd day of October, 2015.
s/ John E. Martin
MAGISTRATE JUDGE JOHN E. MARTIN
UNITED STATES DISTRICT COURT
cc:
All counsel of record
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