National Railroad Passenger Corp. et al v. Cimarron Crossing Feeders, LLC. et al

Filing 248

MEMORANDUM AND ORDER denying 222 Intervenor-Plaintiffs' Motion to Compel Inspection of Locomotive Headlight. Signed by Magistrate Judge Teresa J. James on 10/19/2017. (byk)

UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF KANSAS
NATIONAL RAILROAD PASSENGER
CORP. and BNSF RAILWAY COMPANY,
Plaintiffs,
and
EVERETT OWEN,
et al.,
Intervenor-Plaintiffs,
v.
CIMARRON CROSSING FEEDERS, LLC,
Defendant,
and
NATIONAL RAILROAD PASSENGER CORP.
d/b/a AMTRAK; and BNSF RAILWAY
COMPANY,
Defendants and
Intervenor-Defendants.

)
)
)
)
)
)
)
)
)
)
)
)
)
)
)
)
)
)
)
)
)
)

Case No. 16-cv-1094-JTM-TJJ

MEMORANDUM AND ORDER
This matter is before the Court on Intervenor-Plaintiffs’ Motion to Compel Inspection of
Locomotive Headlight (ECF No. 222).1 Intervenor-Plaintiffs request an order compelling
daytime and night-time inspections of the headlight of the Amtrak locomotive involved in the
derailment at issue, or a “substantially similar locomotive,” and permitting sight distance,
conspicuity, and illumination testing of the headlight. Plaintiffs National Railroad Passenger
Corp. (“Amtrak”) and BNSF Railway Co. (collectively “Railroad Plaintiffs”) oppose the motion

1

For a more detailed discussion of the facts, see the Court’s December 19, 2016 Memorandum &
Order (ECF No. 82). Nat'l R.R. Passenger Corp. v. Cimarron Crossing Feeders, LLC, No. 16-CV-1094JTM-TJJ, 2016 WL 7336409, at *1 (D. Kan. Dec. 19, 2016).

on several grounds. As set forth below, the Court denies the motion on relevance and
proportionality grounds.

I.

DUTY TO CONFER
Fed. R. Civ. P. 37(a)(1) requires any motion to compel discovery to include a
“certification that the movant has in good faith conferred or attempted to confer with the person
or party failing to make disclosure or discovery in an effort to obtain it without court action.” In
conjunction with Fed. R. Civ. P. 37, District of Kansas Local Rule 37.2 provides:
The court will not entertain any motion to resolve a discovery dispute pursuant to
Fed. R. Civ. P. 26 through 37, . . . unless the attorney for the moving party has
conferred or has made reasonable effort to confer with opposing counsel
concerning the matter in dispute prior to the filing of the motion. Every
certification required by Fed. R. Civ. P. 26(c) and 37 and this rule related to the
efforts of the parties to resolve discovery or disclosure disputes must describe
with particularity the steps taken by all attorneys to resolve the issues in dispute.
A “reasonable effort to confer” means more than mailing or faxing a letter to the
opposing party. It requires that the parties in good faith converse, confer, compare
views, consult, and deliberate, or in good faith attempt to do so.
The purpose of the local rule is to encourage the parties to satisfactorily resolve their discovery
disputes prior to resorting to judicial intervention.2
The Court finds Intervenor-Plaintiffs’ stated efforts to confer before filing their motion
appear minimal. Intervenor-Plaintiffs state in the body of their motion: “[c]ounsel certifies . . .
that he conferred with [Railroad Plaintiffs’] counsel via telephone call regarding the inspection at
issue . . . and that the parties were unable to resolve the dispute regarding the inspection . . . .”3
At the end of their Motion, Intervenor-Plaintiffs add a “Meet and Confer Statement,” certifying
2

Pro Fit Mgmt., Inc. v. Lady of Am. Franchise Corp., No. 08-CV-02662-JAR-DJW, 2011 WL
5825423, at *1 (D. Kan. Nov. 17, 2011).
3

Mot. at 1, ECF No. 222.

2

that their counsel met and conferred with Railroad Plaintiffs’ counsel “telephonically on August
17, 2017.”4
Railroad Plaintiffs describe the meet and confer efforts differently. They contend their
counsel had informal discussions with Intervenor-Plaintiffs’ counsel regarding the request for a
train headlight inspection before the request to inspect was served on August 11, 2017, but no
agreement was reached. Railroad Plaintiffs contend that, while their counsel and IntervenorPlaintiffs’ counsel did have a telephone conference on August 17, 2017, they did not specifically
discuss the terms of Intervenor-Plaintiffs’ request to inspect the locomotive headlight.
Intervenor-Plaintiffs served their Request to Inspect Locomotive Headlight via email on
August 11, 2017.5 Under Fed. R. Civ. P. 34(b)(2)(A), Railroad Plaintiffs’ response to this request
to inspect the headlight was due within 30 days, on September 11, 2017. Intervenor-Plaintiffs
filed the instant motion on September 6, 2017, before Railroad Plaintiffs had served their
response.
The Court does not condone Intervenor-Plaintiffs filing their motion to compel before
Railroad Plaintiffs served their written objections to the request to inspect the locomotive
headlight. Intervenor-Plaintiffs’ motion to compel was premature, filed without the knowledge
of Railroad Plaintiffs’ specific written objections. Nonetheless, Intervenor-Plaintiffs allege there
were discussions between the parties over the last several months regarding their request for a
locomotive headlight inspection, and Railroad Plaintiffs acknowledge at least one such
discussion took place. The Court therefore finds Intervenor-Plaintiffs have minimally satisfied
their D. Kan. Rule 37.2 duty to confer and will take up the motion on its merits.
4

Id. at 2.

5

See Req. to Inspect Locomotive Headlight, ECF No. 223-1.

3

II.

RAILROAD PLAINTIFFS’ SUBSTANTIVE OBJECTIONS TO THE
REQUESTED LOCOMOTIVE HEADLIGHT INSPECTION
Railroad Plaintiffs object that Intervenor-Plaintiffs’ requested locomotive headlight
inspection will be conducted under conditions that did not exist at the time of the derailment and the
results therefore cannot be relevant to the claims or defenses in this case. They also object that the
request is burdensome, harassive, and seeks discovery that is not proportional to the needs of the

case. They contend the requested inspections would subject Amtrak to the undue burden and
excessive expense of removing a locomotive from service and normal business operations, and
would subject non-party, fare-paying Amtrak passengers to delays and significant disruption.
Finally, Railroad Plaintiffs assert Intervenor-Plaintiffs have ample evidence of the actual
conditions at the time of the derailment that Intervenor-Plaintiffs’ experts can utilize effectively
to reach their opinions. They note this evidence includes the locomotive video depicting the
subject train approaching the derailment scene, which shows the actual visibility, lighting
conditions and track conditions involved in the derailment.
Intervenor-Plaintiffs argue that the conspicuity of the locomotive’s headlight is one of the
central questions to their claims against Amtrak. They contend an inspection and test of the
headlight is important to accurately determine what the train crew saw or should have seen in
front of them, at what distance the track defect was visible, and whether the train crew saw or
should have seen the defect in sufficient time to apply the emergency brakes and slow or stop the
locomotive to prevent the derailment.

A.

Relevancy Objection

Intervenor-Plaintiffs argue that the requested locomotive headlight inspection would
provide information relevant to the following claims against Amtrak: (1) failing to keep a proper
lookout prior to the derailment; (2) failing to slow or stop the train to avoid “a specific,
4

individual hazard” prior to the derailment and/or failing to approach the derailment site prepared
to stop due to “an essentially local safety hazard;” and (3) failing to immediately apply the
emergency brakes. They argue “[t]he ability of the train crew to see the defect in enough time to
stop prior to the defect or substantially reduce speed so as [not to] derail the train or substantially
reduce the derailment forces is critically relevant to this case and related to [their negligence]
claims.”6
Intervenor-Plaintiffs request four hours for their headlight inspection, two hours during
daylight hours and two hours during the night-time. Thus, the Court will first consider Railroad
Plaintiffs’ relevance objection to the proposed daytime headlight inspection of the subject
locomotive’s headlight. Railroad Plaintiffs challenge the relevance of a headlight inspection
during daylight hours as the derailment at issue occurred shortly after midnight. IntervenorPlaintiffs have not explained why a daytime inspection of the headlight is needed or what
additional relevant information it would provide. The Court therefore sustains Railroad
Plaintiffs’ relevancy objection to Intervenor-Plaintiffs’ request for a daylight inspection of the
locomotive headlight.
Railroad Plaintiffs also dispute the relevance of a night-time inspection of the headlight
from the subject locomotive or a “substantially similar locomotive.” With respect to a night-time
inspection, Railroad Plaintiffs argue that any information obtained from such inspection and
testing would not be relevant because the track defect has been repaired and the exact conditions
on the night of the derailment cannot be re-created. Railroad Plaintiffs also contend IntervenorPlaintiffs are seeking to compel the inspection of “some random locomotive to assess the

6

ECF No. 240 at 3.

5

visibility of a defect that no longer exists under conditions that did not exist on the night of the
derailment.”7
The Court finds Railroad Plaintiffs have raised valid concerns regarding the relevancy of
information that potentially could be obtained from an inspection of a “substantially similar
locomotive” headlight or even of the actual headlight of the subject locomotive. IntervenorPlaintiffs never address the changed conditions of the track at issue. Railroad Plaintiffs are
correct that the defect in the track has been repaired. Intervenor-Plaintiffs simply cannot recreate
the condition of the defective track to inspect and test whether the defect could have been seen or
reacted to, at any particular distance. The Court also questions Intervenor-Plaintiffs vague
assertion that they could closely approximate the night-time visibility conditions on the night of
the derailment for purposes of measuring how far the locomotive’s headlight illuminates the
track. The Court has additional concerns regarding the plausibility of identifying and utilizing a
“substantially similar locomotive” headlight for inspection and testing purposes. Again, it may
be impossible to accurately and reliably recreate the illumination of the actual locomotive
headlight on the night of the derailment using a “substantially similar locomotive” headlight. For
example, differences in the age, placement, and quality of individual locomotive headlights,
among other differences, even if the locomotive’s headlight lamps are the same wattage and
voltage, call into question how relevant any data from a “substantially similar locomotive”
headlight would be in this case.
The Court thus sustains Railroad Plaintiffs’ relevance objection to inspection of a
“substantially similar locomotive” headlight. Additionally, with regard to Intervenor-Plaintiffs’
proposed night-time inspection of the actual locomotive headlight at issue, due to the repair of
7

ECF No. 231 at 15.

6

the track defect and the inability to recreate conditions the night of the derailment, the Court
finds the requested inspection will likely yield information of only potentially marginal relevance
to the claims in this case. The Court turns now to the proportionality analysis of this request.

B.

Proportionality Objection

Railroad Plaintiffs also object that the disproportionate burden and prejudice upon them
to coordinate a night-time headlight inspection of the Amtrak locomotive at issue outweighs any
possible benefit an inspection may yield. They contend the Court should therefore deny
Intervenor-Plaintiffs’ request on proportionality grounds.
Federal Rule of Civil Procedure 26(b)(1) allows parties to “obtain discovery regarding
any nonprivileged matter that is relevant to any party’s claim or defense and proportional to the
needs of the case.” As further provided in the Rule, proportionality is to be determined by
considering, to the extent they apply, the following six factors: (1) the importance of the issues at
stake in the action, (2) the amount in controversy, (3) the parties’ relative access to relevant
information, (4) the parties’ resources, (5) the importance of the discovery in resolving the
issues, and (6) whether the burden or expense of the proposed discovery outweighs its likely
benefit.8
Rule 26(b)(1) was amended effective December 1, 2015. One of the changes restored
proportionality to the definition of the scope of discovery and was intended to reinforce the
parties’ Rule 26(g) obligation to consider the proportionality factors in discovery.9 The advisory
committee’s note to the 2015 amendments clarified that “the change does not place on the party

8

Fed. R. Civ. P. 26(b)(1); Fish v. Kobach, No. 15-9300-JAR-JPO, 2016 WL 893787, at *1 (D.
Kan. Mar. 8, 2016).
9

Fed. R. Civ. P. 26(b) advisory committee’s note to the 2015 amendment.

7

seeking discovery the burden of addressing all proportionality considerations.”10 The party
resisting discovery bears the burden to support its objections based upon proportionality; it
cannot refuse discovery “simply by making a boilerplate objection that [the discovery sought] is
not proportional.”11 The advisory committee’s note also recognizes the parties may have
“informational asymmetry,” meaning that one party may have very little information on a
specific factor, while the other party may have vast amounts of information. For example, a
party claiming undue burden or expenses ordinarily has far better information —perhaps the only
information—with that aspect of the [proportionality] determination.”12 On other proportionality
factors, the party seeking the discovery by claiming that a request is important to resolve the
issues “should be able to explain the ways in which the underlying information bears on the
issues as that party understands them.”13
Railroad Plaintiffs cite three cases from other Districts analyzing the Rule 26
proportionality requirement in an inspection context.14 Those cases found the requested
inspection, or certain steps of the inspection, would be disproportionately burdensome even
10

Id.

11

Id.

12

Id.

13

Id.

14

See, e.g., United States v. 400 Acres of Land, No. 2:15-cv-01743-MMD-NJK, 2017 WL
955187, at *1–3 (D. Nev. Mar. 10, 2017) (denying motion to compel inspection of land near a classified
national defense area where court determined that requested inspection was not proportional to the needs
of the case); Lopez v. United States, No. 15-CV-180-JAH(WVG), 2017 WL 1062581, at *6 (S.D. Cal.
Mar. 21, 2017) (denying attorney’s request to inspect elevator platform aboard U.S. Navy warship finding
requested inspection was not proportional to the needs of the case given the quality of the discovery
already provided and defendant’s willingness to stipulate to critical facts); Duvall v. BOPCO, L.P., No.
CV 15-2404, 2016 WL 1268343, at *2 (E.D. La. Apr. 1, 2016) (finding three steps of plaintiff’s proposed
inspection of barge equipment were unduly burdensome, hazardous, and disruptive of barge owner’s
operations in a manner that outweighed their likely benefit to the case).

8

where the inspection could potentially uncover relevant evidence. The Court has reviewed those
cases and finds them helpful to its analysis. While the cases are all factually distinguishable, the
Court agrees that a proportionality analysis in inspection cases such as these requires balancing
“the degree to which the proposed inspection will aid in the search for truth” against the burdens
and dangers created by it.15
Consistent with the above-cited cases, the Court will focus its Rule 26(b)(1)
proportionality analysis on the fifth and sixth factors discussed above. After careful
consideration of these factors, the Court concludes the heavy burden and expense that would be
imposed on Railroad Plaintiffs from the proposed inspection outweighs any potential benefit of
evidence that might be obtained by Intervenor-Plaintiffs. Railroad Plaintiffs have demonstrated
that it would be unduly burdensome and expensive to take the subject Amtrak locomotive out of
service for the length of time necessary to conduct such night-time inspection and that
conducting the inspection while the train is in service would not be feasible due to the impact on
Amtrak’s passengers. In their reply, Intervenor-Plaintiffs state they are willing to conduct the
inspection at the derailment scene or another mutually convenient location where there is tangent
track for at least a mile, similar to the track at the derailment site. But this concession does not
obviate the burden or expense that Railroad Plaintiffs would incur in arranging the inspection or
in actually removing the subject locomotive from service for inspection. Additionally, moving
the inspection to a location different from where the derailment occurred would further minimize
the potential relevance and reliability of the information and data obtained.
With regard to the “importance” proportionality factors, Intervenor-Plaintiffs have not
convinced the Court of the importance of the discovery to be obtained from the requested
15

400 Acres of Land, 2017 WL 955187, at *2; Lopez, 2017 WL 1062581, at *3.

9

headlight inspection in resolving Intervenor-Plaintiffs’ claims against Amtrak. As Railroad
Plaintiffs point out, Intervenor-Plaintiffs have access to video evidence from the lead locomotive
on the subject Amtrak train, which was equipped with an LDVR video that recorded the train
traveling over the damaged track at the derailment site. The video of the actual derailment shows
the visibility of the track conditions at the time of the derailment from the vantage point of the
train crew. This video shows two seconds elapsed between when the track defect is first visible
on the video and when the locomotive swayed as it passed over the misalignment of the track
traveling 60 mph. The video reflects the “actual” conditions and defect on the night of the
accident. On the other hand, it is simply not possible for Intervenor-Plaintiffs to recreate these
conditions with their requested inspection.
There are also numerous photographs and other measurements, taken at the derailment
scene on the night of the incident and the day after, which have been provided to IntervenorPlaintiffs. The event recorder data from the subject locomotive has been provided in discovery,
which documented the speed, distance traveled and operating events of the train’s movement.
Intervenor-Plaintiffs have inspected the rails that were damaged in the derailment and conducted
a two-day inspection of the derailment area. This inspection included riding 10 miles of tracks in
a hy-rail vehicle, detailed surveying of the trackage at the derailment scene, scanning the rails
and taking aerial photographs.
Intervenor-Plaintiffs assert that a physical inspection and testing of the headlight is still
needed because the locomotive video was recorded at a low resolution and the video would not
accurately depict what can be seen by the human eye, such reflections on the rail as the normal
human eye would see. They also claim the video does not show what the train crew were actually
viewing as they approached the track defect due to the poor quality of the locomotive video.

10

They argue the NTSB report describes when the video first depicts the defect, not when the
defect is visible to the train crew.
Irrespective of the purported poor quality, low resolution, and other limitations of the
locomotive video depicting the train approaching and traveling over the track defect, there is
significant information and data available to Intervenor-Plaintiffs. The Court is not persuaded
that the requested inspection would yield additional relevant and reliable information. As noted
in the relevance discussion above, the Court has concluded that the data and information
Intervenor-Plaintiffs might obtain through the requested inspection is of only potentially
marginal relevance to the issues of when the train crew saw or should have seen the track defect
and whether they could have prevented the derailment. While these are important issues at stake
in this case, the Court is not convinced that the proposed inspection would be probative to
establish the distance at which the Amtrak train crew saw or should have seen—while traveling
60 mph on a different night—a track defect described as a “displacement of the railroad tracks of
over one foot.”16
When considering the burden of the requested inspection and the availability of other
evidence, as compared with the likely benefit to be obtained, the Court concludes the requested
inspection is not proportional to the needs of the case and Railroad Plaintiffs should not be
compelled to permit the requested inspection of the locomotive headlight.
IT IS THEREFORE ORDERED THAT Intervenor-Plaintiffs’ Motion to Compel
Inspection of Locomotive Headlight (ECF No. 222) is DENIED.

16

See Complaint ¶ 17 (ECF No. 1).

11

IT IS FURTH
T
HER ORDE
ERED THA each part shall bear its own expenses related to
AT
ty
d
this motion.
IT IS SO OR
T
RDERED.
Dated Octobe 19, 2017, at Kansas City, Kansas.
D
er
C

Teresa J. James
U. S. M
Magistrate Ju
udge

12