National Railroad Passenger Corp. et al v. Cimarron Crossing Feeders, LLC. et al
MEMORANDUM AND ORDER granting in part and denying in part 56 Intervenor-Plaintiffs' Motion to Compel Against BNSF Railway Company and National Railroad Passenger Corporation. The motion is GRANTED with respect to Intervenor-Plaintiffs' Re quest for Production No. 26 and DENIED with respect to Intervenor-Plaintiffs' Request for Production Nos. 1 and 7 and Interrogatory No. 7. BNSF shall produce all documents responsive to Request No. 26 within fourteen (14) days from the date of this Memorandum and Order. Signed by Magistrate Judge Teresa J. James on 12/19/2016. (byk)
UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF KANSAS
NATIONAL RAILROAD PASSENGER
CORP. and BNSF RAILWAY COMPANY,
CIMARRON CROSSING FEEDERS, LLC,
NATIONAL RAILROAD PASSENGER CORP.
d/b/a AMTRAK; and BNSF RAILWAY
Case No. 16-cv-1094-JTM-TJJ
MEMORANDUM AND ORDER
This matter is before the Court on Intervenor-Plaintiffs’ Motion to Compel Against
BNSF Railway Company (“BNSF”) and National Railroad Passenger Corporation (“Amtrak”)
(jointly “Railroad Plaintiffs”) (ECF No. 56). Intervenor-Plaintiffs ask the Court to compel
Railroad Plaintiffs to respond to an interrogatory and produce documents responsive to three
requests for production. As set forth below, the Court grants the motion to compel with respect to
Intervenor-Plaintiffs’ Request for Production No. 26, but denies the rest of the motion.
The complaint1 in this case alleges that in the early hours of Monday, March 14, 2016,
Intervenor-Plaintiffs were riding as passengers on an eastbound Amtrak train (the “Train”) that
was traveling through Gray County, Kansas. Amtrak owned and operated the Train on railroad
tracks owned and maintained by BNSF. The BNSF tracks that the Train was operating over run
in a generally east-west direction through Cimarron, Gray County, Kansas.
The BNSF track located west of Cimarron has highways on both sides with U.S.
Highway 50 running parallel along the north side of the tracks. There is no fencing or other
protective barriers between the BNSF tracks and Highway 50 to prevent vehicles from entering
BNSF’s right-of-way or its track. Cimarron Crossing Feeders, LLC (“CCF”) owns and operates
a cattle feeding facility west of Cimarron and north of Highway 50 in the general location where
the incident giving rise to this litigation occurred. The CCF cattle feeding facility sits atop a hill,
resulting in a steep decline from the facility to Highway 50.
At approximately 9:00 a.m. on March 13, 2016, CCF employees were loading a truck
owned and operated by CCF. The CCF employees left the truck unattended, out of gear, and
without any brakes applied. That truck rolled downhill to the south, crossed over U.S. Highway
50, and struck the BNSF rail tracks, causing damage to the tracks. CCF retrieved the truck that
struck the BNSF rail track at some time on March 13, 2016.
Intervenor-Plaintiffs allege the track structure was left in a defective condition, violating
federal regulations, industry standards, and BNSF’s own rules for over twelve hours.
The facts in this section are from the allegations contained in the Fourth Amended Complaint in
Intervention (ECF No. 69). The original Complaint (ECF No. 1) was filed by Amtrak and BNSF against
Cimarron Crossing Feeders, LLC. Subsequent amendments were filed as various Intervenor-Plaintiffs
entered the case. See ECF Nos. 22, 37, and 45.
At approximately 12:02 a.m. on March 14, 2016, the Train proceeded over the allegedly
defective track, applied the brakes, and derailed the last six cars on the Train (“Derailment”). The
Derailment resulted in serious injuries to Intervenor-Plaintiffs.
Intervenor-Plaintiffs allege general liability, negligence, gross negligence, and intentional
disregard for public safety against Amtrak, BNSF, and CCF. In addition, they allege negligence
per se against BNSF. For purposes of deciding the instant motion only, the Court summarizes
Intervenor-Plaintiffs’ claims against the Railroad Plaintiffs and Defendant CCF generally as
follows: As to Amtrak, failure to exercise reasonable care, failure to properly operate the Train,
and intentional disregard for public safety. As to BNSF, failure to exercise reasonable care,
failure to properly inspect, maintain and repair the rail tracks where the Derailment occurred, and
intentional disregard for public safety. And, as to CCF, failure to take proper steps and
procedures to prevent its truck from damaging the rail tracks, failure to notify after the damage
occurred, and intentional disregard for public safety.
Federal Rule of Civil Procedure 26(b)(1) sets out the general scope of discovery:
Parties may obtain discovery regarding any nonprivileged matter that is relevant
to any party’s claim or defense and proportional to the needs of the case,
considering the importance of the issues at stake in the action, the amount in
controversy, the parties’ relative access to relevant information, the parties’
resources, the importance of the discovery in resolving the issues, and whether the
burden or expense of the proposed discovery outweighs its likely benefit.
Information within this scope of discovery need not be admissible in evidence to
Fed. R. Civ. P. 26(b)(1).
Discovery requests must be relevant on their face.3 Relevance is “construed broadly to
encompass any matter that bears on, or that reasonably could lead to other matter that could
bear on” any party’s claim or defense.4 When the discovery sought appears relevant, the party
resisting discovery has the burden to establish the lack of relevancy by demonstrating that the
requested discovery (1) does not come within the scope of relevancy as defined under Fed. R.
Civ. P. 26(b)(1), or (2) is of such marginal relevancy that the potential harm occasioned by
discovery would outweigh the ordinary presumption in favor of broad disclosure.5 Conversely,
when the relevancy of the discovery request is not readily apparent on its face, the party seeking
the discovery has the burden to show the relevancy of the request.6 Relevancy determinations
are generally made on a case-by-case basis.7
Federal Rule of Civil Procedure 26 requires the court to limit the frequency or extent of
discovery if the court determines that: (i) the discovery sought is unreasonably cumulative or
duplicative, or can be obtained from some other source that is more convenient, less
burdensome, or less expensive; (ii) the party seeking discovery has had ample opportunity to
obtain the information by discovery in this action; or (iii) the proposed discovery is outside the
scope permitted by the rule.8
Waters v. Union Pac. R.R. Co., No. 15-1287-EFM-KGG, 2016 WL 3405173, at *1 (D. Kan.
June 21, 2016).
Oppenheimer Fund, Inc. v. Sanders, 437 U.S. 340, 351 (1978).
Gen. Elec. Cap. Corp. v. Lear Corp., 215 F.R.D. 637, 640 (D. Kan. 2003).
McBride v. Medicalodges, Inc., 250 F.R.D 581, 586 (D. Kan. 2008).
Brecek & Young Advisors, Inc. v. Lloyds of London Syndicate, No. 09-cv-2516-JAR, 2011 WL
765882, at *3 (D. Kan. Feb. 25, 2011).
Fed. R. Civ. P. 26(b)(2)(C).
DISCOVERY REQUESTS AND RESPONSES IN DISPUTE
Intervenor-Plaintiffs’ Request for Production Nos. 1 and 79
Request for Production No. 1 [to BNSF]: Please produce the contract that
provides track rights for Amtrak to travel over the La Junta Subdivision. This
request includes the Master Agreement, all supplemental agreement(s), and
[r]elated documentation of any agreements.
RESPONSE: BNSF objects to this Request for the reason that in requesting
the entire content of any Master Agreement with Amtrak, the Request seeks
information that is not relevant to any parties’ claim or defense, is not
proportional to the needs of the case and furthermore requires the disclosure
of proprietary or other confidential commercial information.10
Intervenor-Plaintiffs assert that BNSF’s Master Agreement is highly relevant to the claims
in this case that the track at issue was inadequately inspected and maintained. They claim “BNSF
had an incentive to not slow order or downgrade the Class of this track, even though it should
have due to the conditions of the track, because it was profiting from Amtrak’s use.”11 They
contend the following items contained in the Master Agreement are of importance: the rates
Amtrak paid to BNSF, the maintenance responsibility for the track at issue, incentives for
keeping the track at a certain Class, and the percentage of payments directed towards track
maintenance. They also note that the Railroad Plaintiffs expressed concerns over the proprietary
or confidential nature of the Master Agreement can be addressed with the Protective Order
entered in this case. Finally, Intervenor-Plaintiffs argue that BNSF’s proportionality objection is
“boilerplate” and therefore improper.
Request Nos. 1 and 7 are identical in all material respects, except that they are directed to the
individual Railroad Plaintiffs, BNSF and Amtrak, respectively. Likewise the responses to these Requests
contain essentially identical objections. Amtrak’s Answers & Objs., ECF No. 57-2 at 6.
BNSF’s Answers & Objs,, ECF No. 57-1 at 6.
Intervenor-Pls.’ Mem. in Supp. of Mot. to Compel, ECF No. 57 at 5.
In response, Railroad Plaintiffs argue this case involves the derailment of an Amtrak train
after CCF’s truck struck the tracks near Cimarron, and does not involve track conditions or
track issues at any other location. Railroad Plaintiffs explain that Amtrak must rely upon track
systems owned by freight railroads and must enter into agreements with such railroads for use
of the tracks and facilities at agreed upon rates. Because of the unique circumstances in each
situation, each agreement has unique terms, conditions and rates. Railroad Plaintiffs maintain
that production of the entire Master Agreement between Amtrak and BNSF would disclose
proprietary and highly confidential commercial information that is not relevant to any claim or
defense in this case, nor is the request proportional to the needs of this case.
With regard to the specific items contained in the Master Agreement that IntervenorPlaintiffs contend are relevant to their claims, Railroad Plaintiffs argue the rates Amtrak pays to
BNSF are not relevant and that Intervenor-Plaintiffs have not articulated how this information is
relevant to their claims. They argue it is undisputed that BNSF was responsible for the
inspection and maintenance of the track at issue, that its obligation to do so is set by federal
regulation, that the standards by which BNSF was to inspect and maintain the track are
governed by the Federal Railroad Administration rather than by contract between Amtrak and
BNSF, and that federal regulations may preempt many claims asserted by Intervenors-Plaintiffs.
The Court agrees with Railroad Plaintiffs that this case involves track conditions only in
the particular area near Cimarron where the Derailment occurred. The entire Master Agreement
between BNSF and Amtrak governs much broader rights and obligations than those related to
the track at issue in this case. Although Intervenor-Plaintiffs make a general statement that the
agreement “is highly relevant to the claims in this case that the track at issue was inadequately
inspected and maintained,” they offer no explanation regarding the relevance of the entire
agreement. The Court finds that the entire Master Agreement on its face does not appear to be
Intervenor-Plaintiffs therefore have the burden to show the relevancy of their request.
The Court is aware that Intervenor-Plaintiffs contend there is certain specific information
contained in the Master Agreement which is relevant to their claims that the Derailment in this
case was caused by BNSF’s failure to properly inspect and maintain the track,12 and/or by their
operation of the Train at an excessive speed.13 But even if the rate information in the Master
Agreement could be extrapolated to the specific area of track at issue (and it is not clear that it
could), that information would not provide any indication whether the track where the
Derailment occurred was properly inspected and maintained. The same is true with regard to
information that may be included in the Master Agreement regarding the scope of BNSF’s
responsibility for track maintenance14 and the percentage of payments directed toward track
maintenance. Similarly, information included in the Master Agreement on incentives for
keeping the track at a certain Class would not provide any indication whether the Train was
operating at an excessive speed at the time of the Derailment.
Moreover, the Court has already entered an order which allows the parties to inspect and
examine the track where the Derailment occurred and within five miles on both sides of the
Derailment, so that Intervenor-Plaintiffs can directly assess and evaluate whether the track had
Intervenor-Plaintiffs reference provisions of the Master Agreement regarding the rates Amtrak
paid to BNSF, the maintenance responsibility for the track, and the percentage of payments directed
toward track maintenance.
Intervenor-Plaintiffs reference provisions of the Master Agreement offering incentives for
keeping the track at a certain Class, which determines the speed at which trains can be operated.
Railroad Plaintiffs state it is undisputed that BNSF was responsible for inspection and
maintenance of the track at issue, and Railroad Plaintiffs will be bound by that representation. IntervenorPlaintiffs need not obtain the Master Agreement to prove BNSF was responsible for inspecting and
maintaining the track at issue.
been properly maintained prior to the Derailment and whether the track was in a diminished
condition that required the Train to be operated at a reduced speed. In short, the discovery
sought by Intervenor-Plaintiffs can be obtained from the inspection of the track, through
depositions, or other discovery. The potential harm to Railroad Plaintiffs from disclosure of the
Master Agreement, which they claim contains proprietary and highly confidential commercial
information, outweighs Intervenor-Plaintiffs’ need for the requested information.15
For the reasons discussed above, the Court sustains Railroad Plaintiffs’ objections to IntervenorPlaintiffs’ Request for Production Nos. 1 and 7.
Intervenor-Plaintiffs Interrogatory No. 7
Interrogatory No. 7 [to BNSF]: Please itemize all payments made to your
railroad, in the ten years prior to the Cimarron Derailment, for allowing
Amtrak to travel over the tracks from Dodge City to La Junta. If necessary,
identify the percentage of any payments that can be attributed to the track
between Dodge City and La Junta, and what formula you need to calculate
ANSWER: BNSF objects to this interrogatory as overly broad on the grounds it
is not reasonably limited in time, nor sufficiently limited in scope. BNSF further
objects to this request on the grounds it is vague and ambiguous as to what
information is being sought. Moreover, BNSF objects to the extent this request
seeks information which is irrelevant and immaterial to Plaintiff's claims and/or
the issues in this case. Lastly, BNSF objects to the extent this request purports to
require the disclosure of trade secrets or other confidential commercial
The Court is aware of BNSF’s arguments that its maintenance obligations are set by federal
regulation, that the standards by which BNSF was to inspect and maintain the track are governed by the
Federal Railroad Administration rather than by contract between Amtrak and BNSF, and that federal
regulations may possibly preempt many claims asserted in this case. The parties have not briefed those
issues, and the Court need not address them in order to decide this motion to compel.
BNSF’s Answers & Objs., ECF No. 57-1 at 4.
Railroad Plaintiffs argue the information regarding rates paid by Amtrak to BNSF is not
relevant. Additionally, they argue that this Interrogatory request for ten years of itemized
payments is overwhelmingly burdensome and intended to burden, oppress and harass Railroad
Plaintiffs by requiring them to provide proprietary and confidential information that will not
support Intervenor-Plaintiffs’ claims.
Intervenor-Plaintiffs claim Interrogatory No. 7 seeks highly relevant information
regarding Amtrak’s payments to BNSF for use of the track at issue. They do not elaborate on
this point. Again, they contend any concerns Railroad Plaintiffs may have regarding the
confidential or proprietary nature of this information can be addressed by the Protective Order
entered in this case.
As noted above, this case involves track conditions only in that particular area near
Cimarron where the Derailment occurred and, even if the itemized payment information
requested by Intervenor-Plaintiffs could be extrapolated to the specific area of track at issue (and
it is not clear that it could), that information would not provide any indication whether the track
where the Derailment occurred was properly inspected and maintained. The Court finds that
Intervenor-Plaintiffs’ request for an itemization of payments Amtrak made to BNSF for allowing
Amtrak to travel over the tracks from Dodge City to La Junta does not appear relevant on its
The burden is therefore on Intervenor-Plaintiffs to show the relevancy of the information
requested. However, they have offered no explanation for why or how information regarding
Amtrak’s payment to BNSF for track usage is relevant to their claims. Nor have they provided
any support for their request for ten years of payment information, which the Court finds overly
broad and unduly burdensome given the single Derailment that is the basis for IntervenorPlaintiffs’ claims.
The Court finds the track payment information requested by Intervenor-Plaintiffs is not
relevant on its face, and they have not met their burden to show the relevancy of the request.
The Court therefore sustains BNSF’s objections to Interrogatory No. 7.
Intervenor-Plaintiffs’ Request for Production No. 26
Request for Production No. 26 [to BNSF]: Please produce all manuals utilized
by BNSF regarding how to investigate train derailments. This should include, but
is not limited to, the BNSF Train Derailment Cause Finding Manual and the AAR
Train Derailment Cause Finding Manual.
RESPONSE: BNSF objects to this request on the grounds that it is overly broad
in that it is not limited to a relevant time period. BNSF further objects on the
grounds that this request is vague and ambiguous as to what is being requested.
BNSF objects to the request on the grounds that the documents sought are
protected by the attorney-client privilege and the work-product doctrine. Finally,
the documents requested are proprietary and confidential in nature and beyond the
scope of discoverable information.17
BNSF contends the actions of CCF caused the Derailment. Intervenor-Plaintiffs assert
claims against the Railroad Plaintiffs and CCF for causing the Derailment. The cause of the
Derailment is clearly at issue. Request for Production No. 26 thus appears relevant on its face.
Therefore, BNSF bears the burden of showing that the documents requested are not relevant to
the claims and defenses in this case.
BNSF does not dispute the relevance of Request No. 26. However, BNSF argues this
particular request should be denied in any event, because Intervenor-Plaintiffs filed their motion
to compel without making any good faith effort to confer regarding whether BNSF had produced
the requested materials as to the procedures BNSF utilizes to investigate derailments.
BNSF’s Answers & Objs., ECF No. 57-1, at 15.
BNSF’s response states counsel for Railroad Plaintiffs and Intervenor-Plaintiffs discussed
each of Intervenor-Plaintiffs’ discovery responses on October 13, 2016 and agreed
supplementation would be provided for several requests, including Request No. 26. Counsel for
Railroad Plaintiffs stated they would produce engineering instructions setting forth the procedures
followed by BNSF to investigate derailments, but indicated they were unaware of any current
document entitled “BNSF Train Derailment Cause Finding Manual” (“BNSF Manual”). Railroad
Plaintiffs also advised they were unclear as to what the “AAR Train Derailment Cause Finding
Manual” (“AAR Manual”) was and requested clarification from Intervenor-Plaintiffs’ counsel.
Immediately after the parties’ call on October 13, 2016, Intervenor-Plaintiffs’ counsel e-mailed
Railroad Plaintiffs’ counsel the cover page of the AAR Manual, but did not mention the BNSF
Manual or that production of the engineering instructions as to the procedures for derailment
investigations was insufficient. Nor did a follow up letter on October 17, 2016, from IntervenorPlaintiffs’ counsel to Railroad Plaintiffs’ counsel, memorializing the parties’ October 13, 2016
discussion, mention those items. BNSF notes the letter did state that Intervenor-Plaintiffs’
counsel would identify the specific engineering instructions they sought, but Intervenor-Plaintiffs
did not do so before filing the instant motion.
Based upon its review of BNSF’s summary of events, including the October 13, 2016 email and October 17, 2016 letter from Intervenor-Plaintiffs’ counsel, the Court finds BNSF’s
failure to confer in good faith argument unpersuasive. Counsel for the parties conferred regarding
Request No. 26 on October 13. Following that conversation, BNSF produced its engineering
instructions and Intervenor-Plaintiffs sent BNSF the cover page of the AAR Manual, clearly
indicating that counsel for both parties realized Request No. 26 was still at issue. BNSF notes that
Intervenor-Plaintiffs’ October 17 letter did not mention the BNSF Manual or that production of
ructions as to the procedu for dera
stigations wa insufficien
That letter, however, also did not state that In
ntervenor-Plaintiffs were withdrawin their Requ
beyance their request for documents responsive t
No. 26 or that they were willing to hold in ab
uest, as Interv
tiffs explicitl stated in th letter that they would do with regard
to a num of other outstanding discovery re
equests. BN SF clearly h not respo
to Reque No. 26. The adequacy or inadequ
uacy of the re
esponse was still in dispu BNSF
cannot av produci documen responsiv to a clearl relevant re
equest in reli
or-Plaintiffs’ oversight, failing to not in its Octo
ober 17 lette that the eng
instructio BNSF pr
roduced wer insufficien
ction to Requ for Prod
duction No. 2 is therefo overruled BNSF shal
produce all documen responsiv to the requ within fo
fourteen (14) days of entr of this ord
RDERED THAT Interv
venor-Plaintif Motion t Compel
IT IS THEREFORE OR
Against BNSF Railw Compan and Nation Railroad Passenger C
Corporation (ECF No. 56 is
granted in part and denied in part The motio is GRAN
NTED with re
espect to Inte
ervenorPlaintiffs Request fo Production No. 26 and DENIED w respect to Interveno
Request for Producti Nos. 1 an 7 and Inte
errogatory N 7. BNSF shall produc all docum
responsiv to Reques No. 26 wit
thin fourtee (14) days from the date of this M
IT IS FURTH
ERED THA each part shall bear its own expenses related to
IT IS SO ORD
mber 19, 2016 at Kansas City, Kansa
Teresa J. James
U. S. M
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