White v. Union Pacific Railroad Company

Filing 82

MEMORANDUM AND ORDER granting 66 Plaintiff's Third Motion to Compel; denying 79 Defendant's Motion for Protective Order. Signed by Magistrate Judge Kenneth G. Gale on 4/14/2011. (df)

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF KANSAS

JACOB WHITE,

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

Case No. 09-1407-EFM-KGG

MEMORANDUM AND ORDER
Plaintiff has filed his Third Motion to Compel Discovery (Doc. 66),
requesting an order compelling Defendant to permit the inspection of certain rail
cars on its property pursuant to Fed. R. Civ. Proc. 34. Although Defendant
initially interposed several objections to this request, all of those issues apparently
have been resolved by the parties except for Defendant’s request that, as a
condition to the inspection, Plaintiff’s inspecting personnel each execute a waiver
of liability in favor of Defendant and the owner of any rail car inspected, or
provide a surety indemnifying Defendant against liability. In addition to being the
basis for Defendant’s opposition to Plaintiff’s motion, it is also the subject of
Defendant’s Motion for Protective Order (Doc. 79). Defendant has provided

copies of orders from other courts imposing such a requirement. (See Docs. 80-2,
80-3, 80-4, 80-5, 80-6, 80-7.)
The Court has the discretion to enter a protective order imposing conditions
for the requested inspection. However, the Court considers it neither necessary or
wise to require Plaintiff to, as a condition to conducting a proper inspection, waive
any and all legal duties which Defendant might otherwise have in hosting the
inspection. While Defendant has not provided the Court a proposed release, it
would presumably allow Defendant to negligently cause injury the visitors on site
without legal ramifications. It is impossible to imagine that such a waiver would
enhance the safety of the inspection.
Certainly, a railroad yard is an industrial setting and, as such, contains
hazards requiring care. Plaintiff is responsible for ensuring that persons
participating have the necessary training, skill and/or preparation to safely perform
the inspections. Furthermore, Plaintiff’s inspectors should be prepared to obey
reasonable and necessary safety rules imposed by Defendant, and should advise
Defendant in advance of the nature of inspection intended so both side can work
together minimize the risk of the inspection.

IT IS THEREFORE ORDERED that Plaintiff’s motion to compel (Doc.
66) is GRANTED. Consequently, Defendant’s Motion for Protective Order (Doc.

79) is DENIED.
IT IS SO ORDERED.
Dated at Wichita, Kansas, on this 14th day of April, 2011.
S/ KENNETH G. GALE

KENNETH G. GALE
United States Magistrate Judge