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

Filing 448

ORDER REGARDING DISCOVERY DISPUTES CONCERNING VERBALLY ISSUED FORM A SLOW ORDER AND POST-DERAILMENT LOCOMOTIVE VIDEO. Intervenor-Plaintiffs may conduct the deposition of BNSF employee Tim Abel, not exceeding 4 hours, on the specific issues set out in this Order. Counsel shall confer and notify the Court by 8/10/2018, of the date and time the Abel deposition will be conducted and, if any disputes arise during the deposition, counsel shall contact the Court during the deposition for a rulin g. The expert report of Intervenor-Plaintiffs' track maintenance expert, Alan Blackwell, may supplemented or amended before 8/31/2018 for the purposes set forth herein. The Court will address Intervenor-Plaintiffs' requests regardin g the Wolf deposition in a separate order after the filing of Intervenor-Plaintiffs' response to Railroad Plaintiffs' 444 Motion to Quash the Notice of Deposition of Wolf. The Court will not grant any relief in response to Intervenor-Plaintiffs' letter to the Court regarding the post-derailment locomotive video. See Order for more details and information. Signed by Magistrate Judge Teresa J. James on 8/3/2018. (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.

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Case No. 16-cv-1094-JTM

ORDER REGARDING DISCOVERY DISPUTES CONCERNING
VERBALLY ISSUED FORM A SLOW ORDER
AND POST-DERAILMENT LOCOMOTIVE VIDEO
On July 20, 2018, counsel for Intervenor-Plaintiffs sent a letter to the undersigned
Magistrate Judge advising of three discovery disputes the parties were unable to resolve and
seeking expedited resolution of these issues. Railroad Plaintiffs submitted their response on July
24, 2018 and Intervenor-Plaintiffs submitted their reply on July 26, 2018. The Court then
requested additional documents and information from Intervenor-Plaintiffs and Railroad
Plaintiffs, which they provided on July 27 and July 30, 2018. After reviewing the letters and all
materials submitted, the Court makes the following rulings with respect to the disputes
concerning Railroad Plaintiffs’ late production of a “Verbally Issued Form A Restriction” slow
order (“Form A”) and post-derailment video.

1.

Late Production of the Form A Slow Order

The slow order log Railroad Plaintiffs produced in this case included not only slow orders
for the railroad track leading up to the point of derailment, but also slow orders for track east of
the point of derailment that was not traversed by the train prior to the derailment, which
encompassed the area of the “Warp 62” defect at issue (milepost 372.3 to 373.0). The slow order
log also included slow orders placed as early as October 5, 2015. The Form A slow order at issue
here, placed October 23, 2015, should have been included on Railroad Plaintiffs’ slow order log
produced on October 6, 2016, or otherwise produced and identified in discovery.
Railroad Plaintiffs produced the Form A slow order to Intervenor-Plaintiffs by email on
April 25, 2018, preceding the April 26, 2018 deposition of Intervenor-Plaintiffs’ track
maintenance expert, Alan Blackwell. Counsel for Railroad Plaintiffs questioned Blackwell
regarding this slow order and Intervenor-Plaintiffs had the opportunity to redirect Blackwell
during the deposition. Railroad Plaintiffs state they have no objection to Blackwell
supplementing his expert report regarding issuance of the Form A and that Railroad Plaintiffs do
not intend to impeach Blackwell on this issue. Railroad Plaintiffs also advise they are willing to
make BNSF employee Tim Abel available for deposition on issues limited to this Form A and
associated repair work.
Railroad Plaintiffs’ expert, Gary Wolf, was deposed on June 8, 2018. During this
deposition, counsel for Intervenor-Plaintiffs inquired about the subject Form A, which was
attached as an exhibit to Wolf’s May 4, 2018 rebuttal report. When asked about the timing of
when he received this Form A, Wolf testified he did not remember when he received it. In
response to the Court’s inquiries, Railroad Plaintiffs produced an email showing Form A was

sent to Wolf’s assistant on April 25, 2018. Wolf was also asked questions regarding the
railroads’ use of verbal slow orders generally and the defect that was the subject of this particular
Form A. Intervenor-Plaintiffs have therefore already had some opportunity to inquire regarding
the subject Form A. Additionally, in his deposition, Wolf identified Tim Abel as the BNSF
employee who placed the Form A slow order.1
Due to Railroad Plaintiffs’ late production of Form A and to mitigate any potential
resulting prejudice to Intervenor-Plaintiffs, the Court will allow Intervenor-Plaintiffs to conduct
additional discovery on this issue, but strictly limited to the following: Intervenor-Plaintiffs may
conduct the deposition of Tim Abel regarding the Form A issued October 23, 2015 and repairs
performed as a result of that Form A, including how Abel received the data from the FRA
geometry car, how he identified FRA geometry car defects, how Abel issued and removed the
Form A, the names of workers who performed the repairs (to the extent known by Abel), and
whether ballast was restored as a result of this Form A. Deposition questions of Abel shall not
include questions regarding incentive bonuses. The Abel deposition shall be limited to 4 hours
and no continuances of the deposition will be allowed. Counsel shall confer and notify the Court
by August 10, 2018, of the date and time the deposition will be conducted and, if any disputes
arise during the deposition, counsel shall contact the Court during the deposition for a ruling.
Additionally, the Court orders that the expert report of Intervenor-Plaintiffs’ track
maintenance expert Blackwell may be supplemented or amended on or before August 31, 2018,
solely for the purpose of correcting any statements and opinions regarding the railroad’s failure
to issue a slow order or to document repairs to the track that is the subject of the Warp 62 defect.
1

Wolf dep. 193:11–21, ECF No. 444-6.

In addition, the Court orders that Railroad Plaintiffs shall not use this topic to impeach Blackwell
at trial.
2.

Continuation of Wolf Deposition and Production of Publications

Intervenor-Plaintiffs request leave to reconvene the deposition of Gary Wolf and for an
order compelling production of the highlighted publications on Wolf’s curriculum vitae. Railroad
Plaintiffs have filed a Motion to Quash the Notice of Deposition of Gary Wolf (ECF No. 444).
The Court will address Intervenor-Plaintiffs’ requests regarding the Wolf deposition in a separate
order after Intervenor-Plaintiffs file their response to the motion to quash.
3.

Late Disclosure of Additional Post-Derailment Locomotive Video

Intervenor-Plaintiffs also advise the Court that less than a month ago, Railroad Plaintiffs
disclosed more video from the lead locomotive at the site of the derailment. This newly produced
post-derailment video is being used by Railroad Plaintiffs to rebut one of the alternate theories
Intervenor-Plaintiffs have raised concerning visibility. In response, Railroad Plaintiffs argue that
the post-derailment locomotive video footage at issue was not within the scope of the Court’s
prior order relating to the locomotive video, which required Railroad Plaintiffs to produce only
the unedited video from the one hour before the derailment that had been provided to the NTSB.
They further state that Amtrak timely and properly produced the one-hour video provided to the
NTSB as ordered by the Court.
The Court finds that the one-hour locomotive video leading up to the derailment, which
Railroad Plaintiffs previously produced was what the Court understood Intervenor-Plaintiffs
were requesting in their earlier motion and what the Court ordered produced in its October 12,
2017 Memorandum and Order (ECF No. 242). Railroad Plaintiffs’ recent production of the

additional post-derailment video footage was to rebut Intervenor-Plaintiffs’ proposed claims the
locomotive’s lights were on dim at the time of the accident—claims Railroad Plaintiffs argue
were asserted for the first time in May 2018 in the proposed pretrial order. Even if some of
Intervenor-Plaintiffs’ earlier discovery requests may be reasonably read to contemplate
production of all locomotive video, including any post-derailment video, Intervenor-Plaintiffs
have not convinced the Court that they will be unduly prejudiced by the late production of the
post-derailment video, nor have they requested any specific relief. Accordingly, the Court will
not grant any relief in response to Intervenor-Plaintiffs’ letter to the Court regarding the postderailment locomotive video.
IT IS SO ORDERED.
Dated August 3, 2018, at Kansas City, Kansas.

Teresa J. James
U. S. Magistrate Judge