Brewer v. BNSF Railway Company

Filing 280

ORDER: IT IS ORDERED that Magistrate Judge Johnston's Findings and Recommendations are ADOPTED IN FULL. IT IS FURTHER ORDERED that Brewer's 247 Amended and Renewed Motion to Permit Discovery and Compel Production of Noncustodial Electronically Stored Information is DENIED. SEE ORDER FOR FULL DETAILS. Signed by Judge Brian Morris on 2/14/2018. (SLR)

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF MONTANA
GREAT FALLS DIVISION

DAVID BREWER
CV-14-65-GF-BMM-JTJ
Plaintiff,

v.

BNSF RAILWAY COMPANY, a
Delaware Corporation,

ORDER

Defendant.
Plaintiff David Brewer filed an Amended and Renewed Motion to Permit
Discovery and Compel Production of Noncustodial Electronically Stored
Information on November 11, 2017. (Doc. 247). United States Magistrate Judge
John T. Johnston issued Findings and Recommendations in this matter on January
11, 2018. (Doc. 260.) Judge Johnston recommended that the Court deny Brewer’s
request. Id. at 17.
The Court reviews de novo findings and recommendations to which
objections are made. 28 U.S.C. § 636(b)(1)(C). Portions of findings and
recommendations to which no party specifically objects are reviewed for clear
error. McDonnell Douglas Corp. v. Commodore Bus. Mach., Inc., 656 F.2d 1309,
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1313 (9th Cir. 1981). Where a party's objections constitute perfunctory responses
argued in an attempt to engage the district court in a relitigation of the same
arguments set forth in the original response, however, the Court will review for
clear error the applicable portions of the findings and recommendations. Rosling v.
Kirkegard, 2014 WL 693315 *3 (D. Mont. Feb. 21, 2014) (internal citations
omitted).
Brewer timely filed an objection. (Doc. 264.) The document “reiterates”
claims contained in Plaintiff’s Brief in Support of Amended and Renewed Motion
(Doc. 248) and Plaintiff’s Reply in Support of Amended and Renewed Motion to
Permit Discovery and Compel Production of Noncustodial Electronically Stored
Information (Doc. 259). Judge Johnston considered these arguments in making his
recommendation to the Court. Thus, the Court finds no specific objections that do
not attempt to relitigate the same arguments, and will review the Findings and
Recommendations for clear error.
LEGAL STANDARD
Courts have broad discretion in controlling discovery. Little v. City of
Seattle, 863 F.2d 681, 685 (9th Cir. 1988). Litigants in a civil action are entitled to
discovery, generally, “regarding any non-privileged matter that remains relevant to
any party’s claim or defense and proportional to the needs of the case.” Fed. R.
Civ. P. 26(b)(1). In determining “relevancy” and “proportionality,” a court should
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consider “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.” Id.
DISCUSSION
A. Management Compensation, Policies, and Metrics
Brewer seeks BNSF Railway Company’s (“BNSF”) records, data, statistics,
and metrics regarding BNSF’s records of compensation and its metrics for
determining compensation for managerial employees. (Doc. 260 at 6.) Judge
Johnston found that Brewer dedicated the majority of his argument to the relatively
light burden BNSF would have in producing the records and reports. This factor
alone does not determine whether the request remains proportional. Brewer’s
objection reiterates much of the same argument that Judge Johnston considered in
issuing his findings and recommendations, but asks the Court to come to a
different conclusion. (Doc. 264 at 11.)
Brewer argues that the fact that he “has now learned in addition to the
Incentive Compensation Program, the railroad had additional management goals
and rankings” does not render those requests overly broad or disproportionate. Id.
Brewer argues, instead, that the information has been narrowly tailored to the
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goals, ratings, and metrics of the people “directly involved in the railroad’s
termination of Brewer for the time period surrounding that termination.” Id. The
Court disagrees. Judge Johnston correctly determined that Brewer’s motion,
beyond what BNSF has already produced, exceeds the boundaries of this case.
B. BNSF’s Capability to Search For, Preserve, and Produce Relevant
Electronically Stored Information (“ESI”)
Brewer requests a description of BNSF’s capabilities and, use of those
capabilities, to search for, preserve, and produce information. Id. at 9. “A party
should not be required to provide discovery about its e-discovery without good
cause.” The Sedona Conference Commentary on Defense of Process: Principles
and Guidelines for Developing and Implementing a Sound E-Discovery Process,
42 (Sept. 2016) (“Sedona Conference”). Judge Johnston previously allowed
Brewer to conduct a Deposition by Written Questions in order to address BNSF’s
search capabilities and preservation of ESI. (Doc. 260 at 10.) A party seeking
discovery on discovery (“meta discovery”) must show a specific deficiency in the
other party’s production. Sedona Conference at 118.
Brewer argues, in his objection, that discovery on the existence, description,
nature, custody, condition and location of any document remains firmly entrenched
in Rule 26(b)(1) despite its removal of text from the rule. (Doc. 264 at 12.) Brewer
further argues that the Sedona Conference does not provide a basis for denial of the
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requested information. Id. at 13. The Court disagrees. Judge Johnston determined
that “responding parties are best situated to evaluate the procedures,
methodologies, and technologies appropriate for reserving and producing their own
electronically stored information.” Sedona Conference at 118. In order for the nonresponding party to overcome this presumption, the non-responding party must
show a specific deficiency in the responding party’s production. Id. Judge Johnston
correctly determined that Brewer has not shown a specific deficiency in BNSF’s
production. (Doc. 260 at 12.) The Court agrees that Brewer’s request remains
disproportionate to the needs of the case.
C. Files and Databases on BNSF’s Labor Relations and Human Resources
Brewer requests files and databases related to BNSF’s Labor Relations
and/or Human Resources. In particular, Brewer seeks files and databases
concerning disciplinary action against Brewer or other similarly situated
employees. Id. at 12. Brewer states that he has “learned through research” that
BNSF has so called “whistleblower training manuals.” He requests files and
databases related to “other similarly situated employees considered for being
charged with a rules violation.” Id.
BNSF responds that it has produced “thousands of other entries for
employees” who violated the same rules as Brewer in its records from Labor
Relations. Id. at 13. BNSF further argues that Brewer impermissibly expanded this
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topic to include “Human Resources.” Id. Judge Johnston determined that Brewer
seeks information regarding other BNSF employees who may be charged with a
rule violation, not necessarily the specific, relevant violation that BNSF claims that
Brewer committed. Id. at 14. Judge Johnston correctly determined that Brewer’s
request seeks overly broad and irrelevant information.
D. Velocity and “Best Way” Metrics
Brewer’s lastly requests BNSF’s “Velocity” data and other “Best Way”
Metrics. Id. Specifically, Brewer argues that BNSF has “at its disposal databases
and files with information, data, statistics, rankings, and or goals on a variety of
different metrics . . . and other statistical measurements which affect BNSF
management or official compensation.” Id. at 15. The Court denied as overly broad
a similar request by Brewer on November 20, 2015. Judge Johnston determined
that Brewer’s current request should be denied as overly broad and not
proportional to the needs of the case. Id. at 16. The Court agrees.
CONCLUSION
The Court has reviewed Judge Johnston’s Findings and Recommendations
for clear error. The Court finds no error in Judge Johnston’s Findings and
Recommendations, and adopts them in full.

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ORDER
Accordingly, IT IS ORDERED that Magistrate Judge Johnston’s Findings
and Recommendations (Doc. 260) are ADOPTED IN FULL.
IT IS FURTHER ORDERED that Brewer’s Amended and Renewed
Motion to Permit Discovery and Compel Production of Noncustodial
Electronically Stored Information (Doc. 247) is DENIED.
DATED this 14th day of February, 2018.

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