Bish et al v. Indiana Harbor Belt Railroad

Filing 39

OPINION AND ORDER: GRANTS IN PART and DENIES IN PART 26 MOTION to Compel . The Court ORDERS Pat Daily and David Flores to answer questions as outlined in Opinion and Order. The Court ORDERS that the deadline for non-expert discovery be ex tended to 12/2/2016, for the limited purpose of concluding Pat Daly's and David Flores's depositions. The Court DENIES the request for a protective order made in Defendant's Response to Plaintiffs' Motion to Compel and for a Prot ective Order [DE 31]. The Court declines to consider awarding fees under Federal Rule of Civil Procedure 37(a)(5), on the ground that such an award would be unjust. Fed. R. Civ. P. 37(a)(5)(A)(iii). Signed by Magistrate Judge John E Martin on 11/14/2016. (lhc)

UNITED STATES DISTRICT COURT
NORTHERN DISTRICT OF INDIANA
HAMMOND DIVISION
DAVID BISH and
PETER WOZNICKI,
Plaintiffs,
v.
INDIANA HARBOR BELT RAILROAD,
Defendant.

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) CAUSE NO.: 2:15-CV-262-JD-JEM
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)

OPINION AND ORDER
This matter is before the Court on Plaintiffs’ Motion to Compel [DE 26], filed on July 12,
2016. Plaintiffs do not plainly state whom they would like the Court to compel or what they would
like the Court to compel that person(s) to do, but the only reasonable interpretation of the motion is
that Plaintiffs want the Court to compel two non-party witnesses to answer certain questions during
their deposition testimony. Defendant has responded based on that interpretation, and Plaintiffs have
replied.
I.

Background
Plaintiffs worked for Defendant, a railroad company, until they were fired in 2014. They then

sued, alleging that Defendant fired them for engaging in activity protected by the Federal Railroad
Safety Act, or FRSA.
Plaintiffs sought to learn during discovery: (1) whether their supervisors had a financial
motivation to retaliate against employees who participated in FRSA-protected activity; and (2)
whether their supervisors have a history of acting on such a motivation.
To that end, Plaintiffs deposed Defendant’s general manager, Pat Daly, and sought to ask
Daly questions about how his compensation is affected by employees’ engaging in FRSA-protected

activity. Plaintiffs also deposed their former supervisor David Flores and asked Flores whether he
had ever been disciplined—an effort, Plaintiffs say, to determine whether Flores was ever disciplined
for retaliating against employees who engaged in FRSA-protected activity.
Daly and Flores declined to answer those questions, and Plaintiffs now seek an order
compelling them to answer. Defendants oppose the motion to compel, argue that Plaintiffs are
engaged in a “fishing expedition,” and ask for a protective order.
II.

Analysis
A party may obtain discovery regarding “any nonprivileged matter that is relevant to any

party’s claim or defense.” Fed. R. Civ. P. 26(b)(1). The scope of permissible discovery is broad:
relevant information “need not be admissible in evidence to be discoverable.” Id. And courts
construe relevancy “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).
But while the scope of permissible discovery is broad, it is not unlimited. The discovery rules
“were never intended to be an excursion ticket to an unlimited exploration of every conceivable
matter that captures an attorney’s interest.” Miller UK Ltd. v. Caterpillar, Inc., 17 F. Supp. 3d 711,
721 (N.D. Ill. 2014). “[I]rrelevant questions . . . may unnecessarily touch sensitive areas or go
beyond reasonable limits,” in which case “refusing to answer may be justified.” Eggleston v.
Journeymen Plumbers’ Local Union No. 130, U.A., 657 F.2d 890, 903 (7th Cir. 1981).
If a witness does refuse to answer a question during a deposition, the asking party may seek
an order compelling an answer. Fed. R. Civ. P. 37(a)(3)(B)(i). The objecting party bears the burden
of showing why the request is improper. McGrath v. Everest Nat’l Ins. Co., 625 F. Supp. 2d 660, 670
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(N.D. Ind. 2008).
In ruling on a motion to compel discovery, the Court has broad discretion. Patterson v. Avery
Dennison Corp., 281 F.3d 676, 681 (7th Cir. 2002). 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.” Id. (quotation omitted). Particularly in the context
of nonparty discovery, the Court should protect witnesses from harassment and from disclosure of
confidential information. See Dart Indus. Co. v. Westwood Chem. Co., 649 F.2d 646, 649 (9th Cir.
1980); Barr v. Illinois Co., No. 84-2076, 1986 U.S. Dist. LEXIS 30896, *3 (N.D. Ill. Jan. 2, 1986).
A.

Compensation

Defendant’s general manager, Pat Daly, declined to answer questions from Plaintiffs’ lawyer
about his compensation structure as it relates to the amount of FRSA-protected activity occurring
on his watch. Plaintiffs ask the Court to compel these answers so Plaintiffs can learn whether
Defendant’s compensation structure motivates supervisors to suppress FRSA-protected activity. If
Daly’s compensation is affected by the amount of FRSA-protected activity that takes place on his
watch, Plaintiffs say, then that information is relevant to show that Daly had a motive to suppress
FRSA-protected activity.
The Court agrees with Plaintiffs that information regarding Daly’s compensation structure
could be relevant to Plaintiffs’ claims. For example, if Daly’s bonus is based on low numbers of
FRSA-reportable injuries, that information could be relevant to show that Daly had a motive to
retaliate against employees who declined to underplay the nature of their injuries. E.g., Hayes v.
Compass Group USA, Inc., 202 F.R.D. 363, 365 (D. Conn. 2001) (“With respect to [the deponent’s]
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salary and bonus compensation structure, to the extent that his compensation gives him an incentive
to evaluate his subordinates on the performance of their accounts, it could be relevant to a claim of
discrimination.”).
Defendant argues that Plaintiffs have not alleged any injury in this case, so the manner in
which injuries affect a manager’s compensation is irrelevant. But Plaintiffs have alleged that Bish
became a “marked man” after he filed a FRSA complaint against Defendant in 2013, and that his
2014 termination is a continuation of that discrimination. So whether and to what extent Daly has
a financial incentive to discipline employees who engage in FRSA-protected activity—injury-related
or not—could be relevant to Plaintiffs’ claims.
Defendant also argues that information about Daly’s compensation structure is irrelevant
because Daly himself is not alleged to have discriminated against Plaintiffs. But Daly is Defendant’s
general manager, and he testified that all of Defendant’s employees ultimately report to him, whether
directly or indirectly. E.g., Daly Dep. at 8 (“Q: How many employees indirectly report to you? A:
There’s a total of 673 employees . . . at this time. Q: At the end of the day, they all report to you,
ultimately? A: I’m it. I’m the guy.”). Further, Defendants asserted in their response to Plaintiffs’
Interrogatories that Daly was involved in the decision to fire Plaintiffs. See Defendant’s Answers to
Plaintiffs’ Interrogatories, at 2 (“Rick Grover, IHB’s Chief Engineer, and Pat Daly, IHB’s General
Manager, were involved in the decision to terminate Plaintiffs.”).
Defendant also notes that its counsel offered to produce—and then did produce—Defendant’s
bonus formula to the extent it is based on injuries. But Plaintiffs say this formula is insufficient
because it does not reveal what percentage of Daly’s income his bonus comprises, and Defendant
has not demonstrated that the formula alone satisfies Plaintiffs’ request. See McGrath, 625 F. Supp.
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2d at 670 (party objecting to discovery request bears burden of showing why request is improper).
In sum, considering the totality of the circumstances, the Court finds that the value of the
information Plaintiffs seek outweighs the burden of providing it. Daly must answer questions
regarding his compensation structure as it relates to FRSA-protected activity occurring on his watch.
B.

Discipline

Plaintiffs’ lawyer asked Plaintiffs’ former supervisor, David Flores, if he has ever been
disciplined by Defendant. See Flores Dep. at 41 (“Have you been disciplined by [Defendant] in the
past?”). Flores declined to answer. The question could lead to the discovery of admissible evidence,
because the answer could reveal previous instances of discrimination similar to the discrimination
alleged here. For example, Flores’s answer could show either (a) that Flores has been disciplined for
retaliating against employees who engaged in FRSA-protected activity; or (b) that Flores himself has
been disciplined for engaging in FRSA-protected activity. Indeed, in an earlier deposition, another
supervisor, Eric Ritter, testified that he had filed an OSHA complaint against Defendant alleging that
he had been disciplined for failing to misreport an injury.
In light of this, the Court finds that the value of information relating to Flores’s disciplinary
history—as it relates to FRSA-protected activity, not his disciplinary history in general—outweighs
the burden of providing it.
Plaintiffs argue that the Court should compel Flores to answer questions about his
disciplinary history in general, because courts commonly find that personnel files of supervisors
alleged to be directly involved in termination decisions are discoverable, and allowing Plaintiffs to
question Flores about his disciplinary history in general would be less invasive than allowing
Plaintiffs to review his entire personnel file. See Modjeska v. UPS, No. 12-1020, 2014 U.S. Dist.
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LEXIS 84212, *8 (E.D. Wisc. June 19, 2014) (collecting cases); McCowan v. Educ. Servs. of Am.,
No. 08-55, 2009 U.S. Dist. LEXIS 86045, *9 (N.D. Ind. Sept. 21, 2009) (defendant’s employee’s
“performance evaluations may lead to the discovery of admissible evidence concerning whether [she]
was ever counseled for any discriminatory conduct” like that alleged by plaintiff); Jones v. Hamilton
County Sheriff’s Dep’t, No. 02-808, 2003 U.S. Dist. LEXIS 10100, *21 (S.D. Ind. June 12, 2003)
(allowing discovery of personnel files of defendants who allegedly played roles in plaintiff’s
termination).
But the evidence before the Court does not support the conclusion that Flores was directly
involved in the decision to terminate Plaintiffs. Plaintiffs’ Complaint does not allege that Flores was
involved at all in the decision to terminate Plaintiffs, and Flores himself testified that he had no role
in the decision. See Flores Dep. at 10 (“Q: Did you have any role in the decision to charge Mr. Bish
with a workplace rule violation as a result of the incident on July 12th of 2014? A: No.”).
Plaintiffs argue that Flores chose to “escalate” Plaintiffs’ discipline up the chain of command
after interviewing them. But the deposition transcripts provided to the Court do not support this
view. Flores did testify that he “may or may not” give input to his superiors on whether he thinks an
employee should be disciplined, depending on the circumstances. See Flores Dep. at 9-10. But on
the record before the Court, the most the Court can find is that Flores was briefly involved in
Defendant’s initial investigation into Plaintiffs’ supposed wrongdoing. So the Court cannot find that
Flores was directly involved in the decision to terminate Plaintiffs such that discovery into Flores’s
full disciplinary history is warranted.
At the same time, the Court cannot find that Flores was so far removed from Plaintiffs’
discipline that information about Flores’s disciplinary history with respect to FRSA-protected
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activity would be irrelevant. So Flores must answer questions about his disciplinary history as it
relates to FRSA-protected activity, but he need not answer questions about his disciplinary history
in general. This will allow Plaintiffs to obtain relevant discovery without allowing Plaintiffs to probe
into irrelevant matters. See Order, Henman v. Indiana Harbor Belt Railroad Company, No. 2:14-cv434, DE 36 (N.D. Ind. Oct. 22, 2015) (Martin, J.) (denying motion to compel answers from nonparty
witness regarding disciplinary history) (“Questions of employer discipline for events other than those
related to the occurrence [at issue] are not relevant to any claim or defense in this case . . .”).
III.

Conclusion
For the reasons above, the Court GRANTS in part and DENIES in part Plaintiffs’ Motion

to Compel [DE 26]. The Court ORDERS Pat Daly to answer questions relating to how his
compensation is or is not affected by the number of injuries that occur under his watch or by any
other FRSA-protected activity. The Court ORDERS David Flores to answer questions about his
disciplinary history with respect to FRSA-protected activity, but Flores need not testify about his
disciplinary history in general.
Because non-expert discovery closed on October 28, 2016, see DE 16, the Court ORDERS
that the deadline for non-expert discovery be extended to December 2, 2016, for the limited purpose
of concluding Pat Daly’s and David Flores’s depositions.
Because the Court largely grants Plaintiffs’ requested relief, the Court DENIES the request
for a protective order made in Defendant’s Response to Plaintiffs’ Motion to Compel and for a
Protective Order [DE 31].
The Court declines to consider awarding fees under Federal Rule of Civil Procedure 37(a)(5),
on the ground that such an award would be unjust. Fed. R. Civ. P. 37(a)(5)(A)(iii). Plaintiffs’ counsel
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did not attempt to confer with Defendant’s counsel again after the depositions ended—Plaintiffs’
counsel merely argued with Defendant’s counsel during the depositions—and after the depositions
Defendant’s counsel made efforts to resolve the compensation dispute without motion practice by
offering to produce Defendant’s bonus formula. See DE 26-1, Plaintiffs’ Meet-and-Confer Statement
on Motion to Compel; DE 32, Defendant’s Local Rule 37-1 Certification. Plaintiffs argue that
Defendant’s continued opposition to their motion reveals that it would have been pointless to try to
confer after the depositions, but the point of meeting and conferring is to determine whether the
parties can resolve the issue without the Court’s intervention. A party should not file without
conferring and then claim that the opposing party’s opposition justifies the failure to confer.
SO ORDERED this 14th day of November, 2016.
s/ John E. Martin
MAGISTRATE JUDGE JOHN E. MARTIN
UNITED STATES DISTRICT COURT
cc:

All counsel of record

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