Newman v. Union Pacific Railroad Company et al

Filing 35

MEMORANDUM AND ORDER denying 29 Motion to Compel. Signed by Magistrate Judge Kenneth G. Gale on 3/29/2013. (df)

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF KANSAS

CARL A. NEWMAN, II,

)
)
Plaintiff,
)
)
v.
)
)
UNION PACIFIC RAILROAD
)
COMPANY,
)
)
Defendant. )
______________________________ )

Case No. 12-2518-JTM-KGG

ORDER ON DEFENDANT’S MOTION TO COMPEL DISCOVERY
Now before the Court is Defendant’s Motion to Compel Discovery from
Plaintiff and accompanying memorandum. (Docs. 29, 30.) Plaintiff’s Complaint
alleges that Defendant discriminated and retaliated against him after he engaged in
“protected activities” pursuant to the Federal Railroad Safety Act, 49 U.S.C. §
20109(d)(3) (hereinafter “FRSA”). Prior to filing this motion, the parties were
able to resolve their differences regarding discovery as to all but an interrogatory
relating to “information and documents substantiating [Plaintiff’s] claims for
attorney fees and litigation costs.” (Doc. 30, at 2; see also Doc. 30-2, Interrogatory
No. 12 and response thereto.)
Plaintiff objects that the discovery requests at issue “invade the attorneyclient privilege and work-product privilege.” (Doc. 30-2, at 8.) Defendant argues

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that Plaintiff’s “blanket” claim of the privilege is “inadequate and improper.”
(Doc. 30, at 7, 10.) Further, Defendant contends that the information requested is
both relevant and discoverable because Plaintiff is seeking attorneys fees as an
element of damages. (Id., at 8.)
Plaintiff previously submitted certain responsive information to Defendant,
including the total amount of attorneys fees billed as of February 2013, but
objected that the request as written encompasses “[e]very piece of attorney-work
product in our office pertaining to” this case. (Doc. 32, at 1-2.) Plaintiff argues
that “Defendant’s insistence on obtaining the records themselves reveals that
defendant’s true intent is to obtain documentation of what plaintiff’s counsel has
been doing in the preparation of plaintiff’s case.” (Id., at 2.) Plaintiff also
contends that Defendant misunderstands the procedure for awarding attorneys fees
pursuant to Fed.R.Civ.P. 54(d)(2) and the FRSA.
Plaintiff correctly asserts that, pursuant to the FRSA, “[t]he entitlement to an
award of attorneys fees is not triggered until and unless the employee bringing the
action prevails.” (Doc. 32, at 4.) Further, Fed.R.Civ.P. 54(d)(2) provides that a
“claim for attorney’s fees and related nontaxable expenses must be made by
motion unless the substantive law requires those fees to be proved at trial as an
element of damages.” D. Kan. Rule 54.2(f) states that “discovery may not be
conducted with motions for awards of attorney’s fees unless the court permits upon

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motion and for good cause.” Plaintiff argues that “Defendant’s claims of relevance
[of information relating to attorneys fees] flounder in light of the fact that as of yet,
the entitlement to attorneys fees has not been reached.” (Doc. 32, at 4.) The Court
agrees.
The principal of D.Kan. Rule 54.2 is that motions for attorney’s fees should
not usually require discovery, thus discovery is permitted only for good cause after
a motion has been made for fees, and after the consultation requirements of the rule
have been satisfied. Defendant’s discovery request is premature. If a motion for
attorneys’ fees is ultimately made in this case, and if the parties are unable to reach
an agreement by consultation as required by the rule, Defendant may move to
conduct discovery upon a showing of good cause. The discovery, at this point, is
simply not yet relevant. This Defendant’s motion is, therefore, DENIED.
IT IS THEREFORE ORDERED that Defendant’s Motion to Compel (Doc.
29) is DENIED.
IT IS SO ORDERED.
Dated this 29th day of March, 2013, at Wichita, Kansas.
S/ KENNETH G. GALE

HON. KENNETH G. GALE
U.S. MAGISTRATE JUDGE

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