Ast v. BNSF Railway Company

Filing 90

MEMORANDUM AND ORDER denying 69 Motion for Leave to Depose Plaintiff. See Order for details. Signed by District Judge Eric F. Melgren on 10/25/2011. (cm)

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF KANSAS

ROBERT ALLEN AST
Plaintiff,

vs.

Case No. 09-2519-EFM/DWB

BNSF RAILWAY COMPANY,
Defendant.

MEMORANDUM AND ORDER
Plaintiff Robert Ast filed the instant action against Defendant BNSF Railway Company
seeking damages under the Federal Employer’s Liability Act (“FELA”). Presently before the Court
is BNSF’s Motion for Leave to Depose Plaintiff (Doc. 69). For the reasons set forth below, the
Court denies the motion.
I. Factual and Procedural Background
Ast alleges that he was injured in the course of his employment as a conductor with BNSF
when he attempted to operate a “hard-to-throw” railroad switch. Ast filed the instant action under
the Federal Employers’ Liability Act (“FELA”), claiming that BNSF negligently allowed the switch
in question to become defective. According to Ast, BNSF knew or should have known the switch
was defective and hazardous to employees. Ast seeks damages for lost earnings and benefits, lost
household services, and non-economic damages related to past and future pain and suffering, lost
-1-

quality of life, and emotional damages. BNSF denies that Ast’s alleged injuries and damages were
caused by a workplace injury; alternatively, BNSF denies the alleged injury was foreseeable and
contends that Ast was contributorily negligent.
Ast filed suit on October 6, 2009 and was first deposed on February 18, 2010. At the time
of his deposition, trial was scheduled for April 12, 2011. Since the deposition, the trial date has been
continued three times, and is currently scheduled to begin February 14, 2012. BNSF now requests
leave to depose Ast a second time. BNSF’s motion presents two issues: (1) whether the Court
should limit discovery because the information to be uncovered is unreasonably cumulative, could
have been obtained by discovery, or is unduly burdensome; and (2) whether BNSF has shown good
cause to modify the Court's scheduling order.1 The Court denies BNSF’s motion because Rule
26(b)(2)(C) of the Federal Rules of Civil Procedure requires courts to limit discovery that is
unreasonably cumulative, untimely, and overly burdensome.
II. Legal Standard
Pursuant to Fed. R. Civ. P. 30(a)(2)(A)(ii), a party must obtain the Court’s leave to depose
a party who has already been deposed in a case. “Courts generally disfavor repeat depositions,”2
but courts must also “ ‘be careful not to deprive a party of discovery that is reasonably necessary to
afford a fair opportunity to develop and prepare the case.’ ”3 When deciding whether to grant leave

1

The second issue was not raised by the parties, but because the Court would have to re-open discovery to
permit the request deposition, BNSF’s motion implicitly asks the Court to modify the scheduling order in this case. Rule
16(b)(4) of the Federal Rules of Civil Procedure provides that “[a] schedule may be modified only for good cause and
with the judge’s consent.”
2

Dixon v. Certainteed Corp., 164 F.R.D. 685, 690 (D. Kan. 1996) (internal quotation marks omitted) (citation

omitted).
3
Foreclosure Mgmt. Co. v. Asset Mgmt. Holdings, LLC, No. 07-2388, 2008 WL 3895474, * 3 (D. Kan. Aug.
21, 2008) (quoting Fed. R. Civ. P. 26 advisory comm. comments to 1983 amend.).

-2-

under Rule 30(a)(2), courts must apply the standard for limiting discovery set out in Rule 26(b)(2),4
which states that discovery should be limited if the court determines that:
(i) the discovery sought is unreasonably cumulative or duplicative, or can be obtained from
some other source that is more convenient, less burdensome, or less expensive; (ii) the party
seeking discovery has had ample opportunity to obtain the information by discovery in the
action; or (iii) the burden or expense of the proposed discovery outweighs its likely benefit,
considering the needs of the case, the amount in controversy, the parties’ resources, the
importance of the issues at stake in the litigation, and the importance of the proposed
discovery in resolving the issues.5
Courts have “considerable discretion” when applying the principles set out in Rule 26(b)(2)(C).6
III. Analysis
Analyzing BNSF’s motion for leave to depose Ast a second time presents some difficulty
because it is unclear what information BNSF intends to solicit from Ast. In BNSF’s memorandum
in support of its motion, BNSF asserts that it is “entitled to re-depose plaintiff as to the limited issue
of any changes in his status.”7 Ast, however, responded: “There has been no change in Mr. Ast’s
condition or activities since his first deposition.”8 Ast went on to rebut BNSF’s claim that the
passage of time necessitated a second deposition.9 In reply, BNSF offered a new reason as to why
it must re-depose Ast— documents BNSF discovered after Ast’s deposition conflict with statements

4

Fed. R. Civ. P. 30(a)(2).

5

Fed. R. Civ. P. 26(b)(2)(C)(i–iii).

6

Foreclosure Mgmt. Co., 2008 WL 3985474, at *4.

7

Doc. 70.

8

Doc. 73.

9

BNSF claims that this requested update is necessary due to the length of time passed since Ast’s first
deposition. Interestingly, BNSF also states that “no significant changes in the status of plaintiff's claims would be
expected to occur” in the 14 months between the original deposition and the anticipated trial date of April 12, 2011.
(Doc. 70.) BNSF fails to explain, however, why the passage of eight more months now calls into question the status of
Ast’s claims.

-3-

Ast made during his deposition. Namely, BNSF alleges that VA records show that prior to Ast’s
deposition, Ast was diagnosed with service-related PTSD that prevented him from obtaining gainful
employment and made him eligible for disability benefits. Because BNSF fails to state why it must
re-depose Ast in light of these documents, and more importantly, because this explanation was
offered in BNSF’s reply brief rather than its initial motion, the Court will assume that BNSF wishes
to re-depose Ast to ascertain “any changes in [Ast’s] status.”
A.

Unreasonably Cumulative
First, BNSF bears the burden of proving that discovery already conducted in this case is

insufficient and that a second deposition of Ast will not be cumulative.10 “Cumulative evidence is
defined as evidence which goes to prove what has already been established by other evidence.”11
The proposed deposition in this case is cumulative because BNSF seeks to discover information
already in its possession. Ast’s response to BNSF’s motion states that Ast’s status has not changed
since the February 2010 deposition. Furthermore, the new information about Ast’s VA claims
discussed in BNSF’s reply brief is already in BNSF’s possession. To the extent BNSF wishes to
question Ast about inconsistencies between this information and Ast’s deposition testimony, the
appropriate forum to address such evidentiary conflicts is during cross-examination.12

10

See Clay v. Bd. of Tr. of Neosho Cnty. Comm. Coll., No. 94-2282, 1995 WL 646817, *2 (D. Kan. Sept. 26,

1995).
11

Smith v. Sec. of New Mexico Dep’t of Corr., 50 F.3d 801, 829 (10th Cir. 1995) (internal quotation marks
omitted) (citations omitted).
12

See Martial Arts Industry Ass'n, LLC v. Scott, No. 09-140, 2010 WL 2721034, *1 (W.D. Okla. July 7, 2010).

-4-

B.

Opportunity to Obtain the Information by Discovery
Second, the Court must limit discovery if the party seeking discovery had ample opportunity

to obtain the requested information during discovery.13

BNSF claims it “has not had any

meaningful opportunity to obtain such additional information [about Ast's current status], as
discovery has now been closed for nearly nine months.”14 Ast responds that he has supplemented
discovery five times in the time between his deposition and August 2011.
A status update likely could not have been accomplished through discovery. BNSF claims
that the passage of time that necessitates a second deposition. Because discovery has been closed
since November 2010, BNSF had no means by which it could compel information from Ast.15 To
the extent BNSF relies on post-deposition discovery, BNSF did not reveal the precise date the VA
documents were obtained-simply that the information was discovered “subsequent” to Ast’s
deposition on February 18, 2010. Although courts do not presume intentional delay or bad faith,16

13

Fed. R. Civ. P. 26(b)(2)(C)(ii).

14

Doc. 70.

15

BNSF’s motion fails to articulate when a status update became necessary. BNSF emphasizes the trial
continuances in this case. But reliance on these continuances leads to the implicit assertion that a second deposition
would not be required had the trial taken place in April 2011—fourteen months after Ast’s deposition. Instead, it appears
the critical date at which BNSF could expect “significant changes in the status of plaintiff's claims” occurred in the last
two months. BNSF moved to continue the trial from April 12, 2011 until August 9, 2011. Notably, BNSF did not
request the Court to open discovery or grant leave to re-depose Ast at that time. It can thus be inferred that BNSF saw
no reason to expect “significant changes in the status of plaintiff’s claims” during this four-month continuance. And
BNSF has failed to explain why it is reasonable to expect a relevant change in Ast’s status in the time between August
2011 and February 2012.
16

See Dixon, 164 F.R.D. at 692.

-5-

BNSF has not shown that it lacked the opportunity to obtain the desired information during the nine
months of discovery that followed Ast’s deposition.17
C.

Cost-Benefit Analysis
Third, under FRCP 26(b), the Court must limit discovery if the burden of the movant’s

request outweighs the proposed benefit of discovery.18 BNSF argues that its request to re-depose
Ast is not unduly burdensome:
The deposition will not be lengthy, and counsel for defendant is willing to travel to
plaintiff’s residence in Emporia, Kansas to conduct the deposition. By contrast the
burden on defendant if this additional discovery is not allowed could be great, as it
will have no chance to discover how, if at all, plaintiff’s circumstances have changed
in the eighteen months since he was last deposed.19
BNSF’s analysis is incomplete because it fails to articulate the relevance of Ast’s current
circumstances to the present case.20

BNSF’s liability under FELA will turn on past events

surrounding Ast’s injury rather than his present condition. Ast’s current status—as well as his PTSD
claim with the VA—is relevant only to his claim for damages. BNSF has long contended that Ast’s
alleged injuries were pre-existing and requested apportionment of any damages sought and
awarded.21 Therefore, because BNSF’s request to re-depose Ast offers no benefit to BNSF, a second
deposition is overly burdensome.

17

BNSF could have learned more about Ast’s service-related disabilities through other methods of discovery.
For example, with appropriate releases, BNSF could have deposed one of Ast’s doctors or VA officials. See, e.g., Scott,
2010 WL 2721034, at *1 (stating that a motion for leave to re-depose a witness was cumulative in part because “plaintiffs
could have taken the deposition of a [third-party] representative regarding these documents”).
18

Fed. R. Civ. P. 26(b)(2)(C)(iii).

19

Doc. 70.

20

See, e.g., Trentadue v. F.B.I., 572 F.3d 794, 808 (10th Cir. 2009) (denying a plaintiff's discovery request
when the plaintiff failed to demonstrate the relevance of proposed depositions).
21

See, e.g., Doc. 51, filed Sept. 23, 2010.

-6-

In conclusion, the Court denies BNSF’s motion to depose Ast because the information BNSF
seeks to uncover in the second deposition is cumulative and irrelevant to the pending litigation.22
Ast informed BNSF that his circumstances have not changed since his first deposition. To the extent
BNSF wishes to tread new ground in light of post-deposition discovery, it will have a chance to
examine Ast on the witness stand.
IT IS ACCORDINGLY ORDERED this 25th day of October, 2011 that Defendant’s
Motion for Leave to Depose Plaintiff (Doc. 69) is hereby DENIED.
IT IS SO ORDERED.

ERIC F. MELGREN
UNITED STATES DISTRICT JUDGE

22

Because the Court finds that BNSF is not entitled to re-depose Ast pursuant to Fed. R. Civ. P. 30(a)(2)(A)(ii),
the Court need not decide whether BNSF has shown good cause for modifying the Court’s scheduling order as required
by Rule 16(b)(4).

-7-