Norfolk Southern Railway Company v. International Association of Sheet Metal, Air, Rail and Transportation Workers-Transportation Division et al
ORDER granting in part and denying in part Defendant's 36 Motion to Compel--Signed by Magistrate Judge Anthony P. Patti. (MWil)
UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF MICHIGAN
NORFOLK SOUTHERN RAILWAY
Case No. 2:16-cv-14278
District Judge Sean F. Cox
Magistrate Judge Anthony P. Patti
OF SHEET METAL, AIR, RAIL
WORKERS – TRANSPORTATION
DIVISION, et al.,
ORDER GRANTING IN PART AND DENYING IN PART UNION
DEFENDANT’S MOTION TO COMPEL (DE 36) AND EXTENDING THE
DISPOSITIVE MOTION DEADLINE TO AUGUST 4, 2017
This matter is before the Court for consideration of Defendant’s motion to
compel (DE 36), Plaintiff’s response (DE 39), Defendant’s reply (DE 40), and the
parties’ statements of resolved issues (DE 41 and 42). For the reasons that follow,
Defendant’s motion is GRANTED IN PART AND DENIED IN PART.
This action involves a dispute between Plaintiff, Norfolk Southern Railway
Company (“NS”), and the only remaining Defendant, International Association of
Sheet Metal, Air, Rail, and Transportation Workers – Transportation Division
(“Union”), over whether NS’s plan to use crews based in Toledo, Ohio to
implement new rail service between Toledo and three Detroit Edison (“DTE”)
plants in Michigan violates the terms of their collective bargaining agreement
(“CBA”). The decision to use Ohio-based crews apparently came as a shock to the
Union Defendants in Michigan.
The dispute in this action is governed by the Railway Labor Act, 45 U.S.C.
§§ 151-188 (“RLA”), which differentiates between major and minor CBA
disputes, with minor disputes being subject to compulsory and binding arbitration.
In this matter, the Court must therefore ultimately determine whether the instant
action involves a major or minor dispute. The Supreme Court has described the test
to determine whether a dispute is major or minor under the RLA as follows:
Where an employer asserts a contractual right to take the contested
action, the ensuing dispute is minor if the action is arguably justified
by the terms of the parties’ collective-bargaining agreement. Where,
in contrast, the employer’s claims are frivolous or obviously
insubstantial, the dispute is major.
Consol. Rail Corp. v. Ry. Labor Executives’ Ass’n, 491 U.S. 299, 307 (1989).
It is under these circumstances that Union Defendant has filed the instant
motion. The parties in this matter have engaged in some discovery up to this point
in time. The discovery matter at issue involves NS’s contract with DTE and NS’s
internal emails relating to that contract. After the parties entered into a stipulated
confidentiality agreement, NS provided the Union Defendant with heavily redacted
versions of both categories of documents. The Union Defendant asserts that the
documents are so heavily redacted that their use is limited, and now seeks a Court
order requiring NS to provide unredacted versions.
NS opposes the motion, arguing that the redacted portions of the documents
are not relevant in the instant matter and could be prejudicial if released. It points
to the stipulated confidentiality agreement, in which the Union Defendants agreed
to receive redacted versions of the DTE agreement, and asserts that its production
complied with both the Union Defendant’s discovery requests and the terms of the
This matter came before me for a hearing on June 20, 2017, at which both
parties, through counsel, presented their arguments. I took the matter under
consideration and ordered that NS provide redacted and unredacted versions of the
documents at issue for an in camera review. I received those documents on June
26, 2017 and reviewed them thoroughly. I will address each of the parties’
arguments in turn.
The scope of discovery, which permits a party to obtain “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,” is always subject to being “limited by court order[,]” and thus, within the
sound discretion of the court. Fed. R. Civ. P. 26(b)(1). The Court’s discretion is
broad. Bush v. Dictaphone Corp., 161 F.3d 363, 367 (6th Cir. 1998). Further,
discovery is more liberal than even the trial setting, as Rule 26(b) allows
information that “need not be admissible in evidence” to be discoverable. Fed. R.
Civ. P. 26(b)(1). However, the court must also balance the “right to discovery
with the need to prevent ‘fishing expeditions.’” Conti v. Am. Axle & Mfg., Inc.,
326 F. App’x 900, 907 (6th Cir. 2009) (quoting Bush, 161 F.3d at 367). Rule 37(a)
allows a party to move for an order compelling “an answer, designation,
production, or inspection” if the opposing party has failed to provide a discovery
response. Fed. R. Civ. P. 37(a)(3).
Union Defendant made the following request for production of documents,
which is currently at issue:
Any and all agreements, letters, correspondence or other
communication, in whatever form, Plaintiff has, or has entered into, or
exchanged with DET to provide the service that is in dispute in this
(DE 36-2 at ¶ 7.) The parties negotiated this request and ultimately entered into a
stipulated confidentiality agreement, which provides in relevant part that:
NS may mark as “CONFIDENTIAL” the DTE Agreement
NS may also designate as “CONFIDENTIAL –
ATTORNEYS EYES ONLY” those materials which refer to nonpublic trade secrets of NS or DTE or their affiliates or proprietary
information of a confidential nature. Moreover, NS may redact such
confidential information bearing no relation to the dispute herein
which is proprietary to either it or DTE. By way of example,
information related to pricing, penalties and service parameters agreed
to by NS and DTE shall be redacted from any documents produced.
This would not include any provisions of the DTE Agreement or emails between DTE and NS specifying locations at which NS train
crews shall report for duty.
(DE 35 at 4, ¶ 1.) As explained by NS’s counsel at the hearing, the redacted
version of the DTE agreement was marked as Confidential and no portion was
designated as Attorneys Eyes Only.
The Court must therefore determine which portions of the DTE agreement
are relevant to the issue of whether the instant dispute is major or minor, subject to
the provisions of the stipulated confidentiality agreement. Union Defendant is
entitled to 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 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.
Fed. R. Civ. P. 26(b). Here, the documents sought are minimal and there is little
concern about the burden or expense of the proposed discovery. The main issue
centers around the importance of the discovery in resolving the issues. As NS
argues, the sole issue in this case is whether its actions are arguably justified by the
terms of the CBA. NS asserts that the discovery Union Defendant has requested is
irrelevant to the existing dispute because minor disputes “may be conclusively
resolved by interpreting the existing agreement.” Consol. Rail Corp., 491 U.S. at
305. In making this argument, NS appears to assert that the dispute over whether
this issue is a major or minor one is essentially a non-issue. In fact, NS states
exactly that in its response brief, in which it posits that “[t]here can be no real
dispute that this case involves a minor dispute that must be resolved through
mandatory arbitration procedures of the RLA.” (DE 39 at 26.) However, if that
were so, then the Court would have little if anything left to decide, as arbitration
would be compulsory. Instead, the Court’s very role in this action—as framed by
the requests for declaratory relief in the respective parties’ pleadings (DE 1 and
17)—is making the major/minor dispute decision. Accordingly, Union Defendant
is entitled to some additional discovery related to the DTE Agreement.
A brief glance at the redacted and unredacted document reveals why Union
Defendant is concerned: entire pages are redacted, making it difficult to decipher
what is even being discussed and whether or not it could be relevant to determining
if NS’s actions were substantially justified or frivolous. (See pages 6, 9, 11, 29, 32,
and 34.) However, it is also clear after my in camera review that much of the
redacted information, for example, the entirety of page 6, is related to pricing,
penalties, and service parameters, as contemplated by the confidentiality
agreement. As such, I will not require NS to provide a completely unredacted
copy of the document. Based on my scrutiny of the contract, NS is ORDERED to
provide, WITHIN FOURTEEN DAYS OF THE DATE OF THIS ORDER, a
revised version of the DTE Agreement, unredacting the following sections and
designating them Attorneys Eyes Only:
1. Page 3, § 10: the provision between the phrases “successor documents,” and
“that do not conflict . . . .”
2. Page 4, § 11: the entire third paragraph must be unredacted.
3. Page 8, § 16: the entire paragraph after “(i) Receiver shall ship or cause to be
shipped, pursuant to this Contract.”
4. Page 9, § 16: the first paragraph, starting after “(iii).”
5. Page 9, § 16: the second paragraph, starting after “(iii).”
6. Page 12, § 18: paragraphs (4) and (6).
7. Page 19, § 26: the entire third paragraph.
Union Defendant’s following discovery requests, relating to NS’s internal
emails, are also at issue:
Any and all correspondence relating to the service of the
dispute as described in the Complaint, including without limitation,
reports, text messages, emails, faxes, and letters sent by any official or
employee of NS to any other official or employee of NS.
(DE 36-2 at ¶ 3.)
Any and all documents and/or agreements, electronic, written or
otherwise, that relate or refer to the allegations in the Complaint that
support and/or refute any claim made by Plaintiff, including but not
limited to internal correspondence or any communications with
Defendant or DTE as DTE is defined in the Complaint.
(Id. at ¶ 8.)
NS again asserts that the redacted information is irrelevant to Union
Defendant’s claims. A review of the emails demonstrates that NS largely complied
with Union Defendant’s relevant discovery requests in good faith, but only used
the “confidential” designation as contemplated by the confidentiality agreement.
There are several email provisions that could provide relevant information with
respect to Union Defendant’s frivolousness argument, and should cause no
prejudice to NS so long as they are designated Attorneys Eyes Only.
Accordingly, NS is ordered, WITHIN FOURTEEN DAYS OF THE DATE OF
THIS ORDER, to provide Union Defendant with a revised version of its internal
emails, unredacting the following sections and designating them Attorneys Eyes
1. Bates Stamp 000038: the paragraph beginning “Based on the above
information,” must be unredacted from “hotel or back to Toledo” to the end
of the paragraph.
2. Bates Stamp 000052: the second bullet point must be unredacted. The same
bullet point appears on pages 000055, 000059, and 000064.
3. Bates Stamp 000063: all of the first email and the first bullet point of the
December 2, 2016 email must be unredacted.
The discovery deadline in this case was JUNE 13, 2017. (DE 32.) Other
than the provision of the limited discovery as described in this order, that deadline
will not be extended. In contrast, the dispositive motion deadline is hereby
extended by three weeks to AUGUST 4, 2017, as the documents to be produced
may end up being utilized in the impending motion practice.
IT IS SO ORDERED.
Dated: June 30, 2017
s/Anthony P. Patti
Anthony P. Patti
UNITED STATES MAGISTRATE JUDGE
I hereby certify that a copy of the foregoing document was sent to parties of record
on June 30, 2017, electronically and/or by U.S. Mail.
Case Manager for the
Honorable Anthony P. Patti
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