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

Filing 337

MEMORANDUM AND ORDER denying 262 Intervenor-Plaintiffs' Motion for Sanctions; granting 280 Railroad Plaintiffs' Cross-Motion for Sanctions. Railroad Plaintiffs shall have until 2/22/2018 to file a motion under Fed. R. Civ. P. 37( a)(5) and 26(c)(3) requesting their reasonable expenses incurred in opposing Intervenor-Plaintiffs' Motion for Sanctions and Motion for Protective Order, along with affidavits and documentation supporting the requested amount of reasonable expenses, including attorney's fees. Intervenor-Plaintiffs and/or their attorneys shall have 14 days thereafter to file a response. Signed by Magistrate Judge Teresa J. James on 2/7/2018. (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.

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

MEMORANDUM AND ORDER
On February 1, 2018, the Court conducted a motion hearing by telephone on the Motion
for Sanctions (ECF No. 262) filed by Intervenor-Plaintiffs, and the Cross-Motion for Sanctions
(ECF No. 280) filed by Plaintiffs National Railroad Passenger Corporation (“Amtrak”) and
BNSF Railway Company (“BNSF”) (jointly “Railroad Plaintiffs”). Intervenor-Plaintiffs
appeared through counsel, Robert L. Pottroff and C. Michael Bee. Railroad Plaintiffs appeared
through counsel, Sean P. Hamer and Craig M. Leff. Defendant Cimarron Crossing Feeders, LLC
appeared through counsel, Michael J. Judy.
This Memorandum and Order memorializes and supplements the oral rulings made at the
hearing.

1.

The parties’ requests for evidentiary hearing on the motions for sanctions are

DENIED. The Court has thoroughly reviewed the briefing and exhibits to the motions for
sanctions, as well as the parties’ witness and exhibit lists for the previously scheduled January
19, 2018 evidentiary hearing.1 Based upon this review and counsels’ answers to the Court’s
extensive questions during the February 1 telephone hearing, the Court concludes an evidentiary
hearing would not be helpful to the Court in ruling on the specific issues raised in the motions for
sanctions, and would only further delay resolution of the motions.
2.

Intervenor-Plaintiffs’ Motion for Sanctions (ECF No. 262) is DENIED and

Railroad Plaintiffs’ Cross-Motion for Sanctions (ECF No. 280) is GRANTED. The discovery
abuses alleged by Intervenor-Plaintiffs in their motion appear overstated or do not rise to the
level of sanctionable offenses. Railroad Plaintiffs have provided explanations for the discovery
abuses alleged by Intervenor-Plaintiffs, which either fully refute the allegations or provide
additional information or context, which diminishes the substance of the allegations.
With respect to specific allegations, the Court finds Railroad Plaintiffs have provided
additional material information regarding Intervenor-Plaintiffs’ allegation that Railroad
Plaintiffs’ counsel coached and altered the October 12, 2017 deposition testimony of BNSF Rule
30(b)(6) witness Duane Befort (“Befort”). Railroad Plaintiffs explain that their counsel knew
Befort testified incorrectly during his pre-break testimony regarding the slow order “date
removed” column and whether a slow order was in effect at the time of the derailment. Indeed,
Intervenor-Plaintiffs’ counsel conceded during the telephone hearing that Befort did testify

1

The Court previously granted the parties’ requests for evidentiary hearing and set a hearing for
January 19, 2018 (ECF No. 281). On January 16, 2018, Intervenor-Plaintiffs filed and the Court granted
their unopposed request to reserve evidentiary hearing and convert the January 19, 2018 hearing to a
telephone status conference (ECF No. 321). Intervenor-Plaintiffs were unable to attend the January 19
telephone status conference, so it was thereafter continued to February 1, 2018 (ECF No. 325).

2

incorrectly at the conclusion of his direct testimony. In order to correct that testimony, Railroad
Plaintiffs’ counsel took a “break” after the conclusion of direct questioning by IntervenorPlaintiffs’ counsel so that Befort could verify information concerning the track bulletin at issue.
The Court finds that some action was proper and necessary by Railroad Plaintiffs’ counsel to
correct Befort’s testimony and the record. The Court also finds that Befort did ultimately testify
truthfully in response to questions from Railroad Plaintiffs’ counsel regarding the true state of
affairs with respect to the slow order termination date. Thus, although the hour long deposition
“break” was unusual and therefore suspect, the conduct of Railroad Plaintiffs’ counsel during the
break in the Befort deposition and the questioning of Befort following the break was not
improper and/or sanctionable under the circumstances presented here.
Railroad Plaintiffs have also refuted the allegation they concealed documents until it
became advantageous to their defense or legal theory. Intervenor-Plaintiffs accused Railroad
Plaintiffs of concealing a spreadsheet containing important notations made by the track
inspector, including a notation of a “25mph slow order.” However, Railroad Plaintiffs have
clearly demonstrated that the referenced spreadsheet was produced to Intervenor-Plaintiffs on
June 2, 2017 as Bates Number BNSF005928, months before the alleged October 11, 2017
document dump and the Befort deposition. They also point out that Intervenor-Plaintiffs’ counsel
deposed BNSF track inspector Bryice Gilliam about this same spreadsheet at his June 7, 2017
deposition.
Intervenor-Plaintiffs also take issue with Railroad Plaintiffs’ alleged failure to produce
slow orders until Befort’s deposition. However, Railroad Plaintiffs objected to the early
discovery requests Intervenor-Plaintiffs served requesting slow orders over a ten-year period and
instead produced a slow order log for a limited time period. Intervenor-Plaintiffs never moved to

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compel the actual slow orders at issue in those discovery requests. In addition, Railroad Plaintiffs
point out that Intervenor-Plaintiffs’ Sixth Combined Discovery Instrument Request 57 (“Sixth
Discovery Request”), which did request specific slow orders including Bulletin 8554, was not
served until September 19, 2017. Railroad Plaintiffs’ responses to this discovery request
therefore would not have been due until October 19, 2017, a week after Befort’s October 12,
2017 scheduled deposition. Railroad Plaintiffs also point out Intervenor-Plaintiffs’ motion to
compel BNSF corporate designee (ECF No. 226), including a topic seeking testimony on slow
orders, was still pending at the time of Befort’s deposition. Railroad Plaintiffs’ counsel
suggested that the Befort deposition be postponed, but Intervenor-Plaintiffs refused. When
viewed in light of these circumstances, the Court finds that Intervenor-Plaintiffs’ own decision to
proceed with the Befort deposition on October 12, 2017, before the Railroad Plaintiffs’ discovery
responses were due and before the Court ruled on the pending motion to compel the 30(b)(6)
designee witness testimony, contributed to the events Intervenor-Plaintiffs allege as the basis for
their Motion for Sanctions.
Finally, the circumstances surrounding Railroad Plaintiffs document production on
October 11, 2017, just prior to the Befort deposition, diminish Intervenor-Plaintiffs’ allegation
Railroad Plaintiffs’ engaged in an “eleventh hour document dump.” Those circumstance include
the parties’prior agreement to delay discovery subject to the NTSB hold, Intervenor-Plaintiffs’
failure to move to compel production of documents responsive to prior discovery requests, recent
service of Intervenor-Plaintiffs’ Sixth Discovery Request on September 19, 2017, and the
pendency of Intervenor-Plaintiffs’ motion to compel Rule 30(b)(6) deposition topics. Viewed in
in light of these circumstances, the Court cannot conclude Railroad Plaintiffs’ document
production on October 11, 2017 was improper.

4

As a whole, the allegations in Intervenor-Plaintiffs’ Motion for Sanctions appear to be
based in large part upon either a mistake as to relevant facts, an incorrect assumption later shown
to have an innocent or innocuous explanation, or a tendency to jump to incorrect conclusions and
attribute nefarious motives rather than giving the other side an opportunity to address these
issues and resolve the misunderstandings. The Court does not find any of the alleged misconduct
asserted by Intervenor-Plaintiffs against Railroad Plaintiffs rises to the level of a sanctionable
offense.
Intervenor-Plaintiffs’ action in filing their Motion for Sanctions directly caused Railroad
Plaintiffs to incur significant expense in filing their response and prompted the filing of their
Cross-Motion for Sanctions. Intervenor-Plaintiffs’ motion caused Railroad Plaintiffs and the
Court to expend and waste substantial time, effort, and resources addressing the allegations of
the motion, which were refuted or found to be overstated. The Court’s denial of IntervenorPlaintiffs’ Motion for Sanctions therefore warrants granting Railroad Plaintiffs’ Cross-Motion
for Sanctions.
This decision is further supported by a number of factors, including Intervenor-Plaintiffs’
behavior in proceeding with their Motion for Sanctions without thoroughly investigating the
underlying factual bases for those allegations, such as making sure a document had not already
been produced to them. Additionally, Intervenor-Plaintiffs included inaccurate statements in their
briefing, including an inaccurate statement of the law from the District of Kansas regarding
deposition conferences and an inaccurate quotation of legal authority.2 And, they refused to
concede or withdraw erroneous positions taken on certain issues, most notably the concealed

2

In footnote 1 of their reply (ECF No. 293), Intervenor-Plaintiffs acknowledge they misquoted
Sinclair v. Kmart Corp., No. 95-1170-JTM, 1996 U.S. Dist. LEXIS 19661 (D. Kan. Dec. 9, 1996), in
their memorandum in support of their Motion for Sanctions (ECF No. 263 at 16).

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track notes spreadsheet issue. In that regard, Intervenor-Plaintiffs stated inaccurately in their
initial memorandum that Railroad Plaintiffs did not produce the complete spreadsheet until
several months after it had been produced, and persisted in making this argument in their reply
even after Railroad Plaintiffs pointed out in their response Intervenor-Plaintiffs’ error.
3.

Because Intervenor-Plaintiffs’ filing of their Motion for Sanctions directly caused

Railroad Plaintiffs to incur significant expense in opposing the motion and prompted the filing of
their Cross-Motion for Sanctions, Railroad Plaintiffs are therefore awarded their reasonable
expenses, including attorney’s fees, incurred in opposing Intervenor-Plaintiffs’ Motion for
Sanctions under the Court’s inherent authority.3
4.

In addition, consistent with the sanctions rulings above and the Court’s January

19, 2018 Memorandum and Order, which denied the portion of Intervenor-Plaintiffs’ Motion for
Sanctions requesting a protective order relieving them of their obligation to respond to Railroad
Plaintiffs’ discovery requests until further discovery,4 Railroad Plaintiffs are granted their
reasonable expenses, including attorney’s fees, incurred in opposing Intervenor-Plaintiffs’
Motion for Protective Order (ECF No. 262) under Rules 26(c)(3) and 37(a)(5)(B).
5.

Railroad Plaintiffs’ request for sanctions associated with their Motion for

Protective Order Regarding the Third Notices of Video Deposition (ECF No. 237) is DENIED.

3

See Chambers v. NASCO, Inc., 501 U.S. 32, 45–46 (1991) (“a court may assess attorney’s fees
when a party has ‘acted in bad faith, vexatiously, wantonly, or for oppressive reasons’”). See also
Raymond v. Spirit AeroSystems Holdings, Inc., No. 16-1282-JTM, 2017 WL 3895012, at *6 (D. Kan.
Sept. 6, 2017) (affirming magistrate judge’s decision to award sanctions under court’s inherent power).
4

In denying the motion for protective order, the Court ordered Intervenor-Plaintiffs to respond to
Railroad Plaintiffs’ Requests for Admissions, Third Requests for Production, and Second Set of
Interrogatories. The Court also deferred any ruling with respect to expenses, but stated it “intends to
award expenses under Rule 26(c)(3).” ECF No. 324.

6

While the Court susta
e
ained many of the Railro Plaintiff objection to the Dep
oad
fs’
ns
position Topi
ics
and Requ
uests at issue it also ove
e,
erruled a num
mber of their objections a well.
r
as
IT IS THEREFORE OR
T
RDERED THAT Interv
venor-Plainti
iff’s Motion for Sanction
ns
(ECF No 262) is DE
o.
ENIED and Railroad Plai
R
intiffs’ Cros
ss-Motion fo Sanctions (ECF No. 28 is
or
80)
GRANTE
ED.
IT IS FURTH
T
HER ORDE
ERED THA Railroad Plaintiffs sh have unt February 22,
AT
hall
til
y
2018 to file a motion under Fed. R. Civ. P. 37(a)(5) and 2
f
n
26(c)(3) req
questing their reasonable
r
e
expenses incurred in opposing In
s
ntervenor-Pla
aintiffs’ Mot
tion for Sanc
ctions and M
Motion for
Protectiv Order, alo with affid
ve
ong
davits and documentatio supporting the reques amount of
d
on
sted
reasonable expenses, including attorney's fee Interveno
,
a
es.
or-Plaintiffs a
and/or their attorneys sh
hall
have 14 days thereafter to file a response.
d
IT IS SO OR
T
RDERED.
Dated Februa 7, 2018, at Kansas Ci Kansas.
D
ary
a
ity,

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

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