Wooten v. BNSF Railway Company
FINDINGS AND RECOMMENDATIONS re 99 MOTION for Partial Summary Judgment and 105 First MOTION for Summary Judgment, 102 MOTION for Summary Judgment. ORDER re 115 MOTION for Sanctions, 153 Supplemental MOTION for Protective Order, 162 First MOTION for Protective Order, 181 MOTION for Protective Order and MOTION to Quash. Signed by Magistrate Judge Jeremiah C. Lynch on 5/29/2018. (APP)
IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF MONTANA
BNSF RAILWAY COMPANY,
This matter comes before the Court on the parties’ motions for partial
summary judgment and several evidentiary motions.
Plaintiff Zachary Wooten alleges he suffered an on-the-job injury on July
31, 2015 while working as a conductor for BNSF Railway Company. In the early
morning hours of July 31, 2015, Wooten departed Whitefish, Montana aboard a
train headed to Havre and powered by lead locomotive BNSF 6867. When the train
arrived in Coram, Montana, Wooten exited the lead locomotive to perform a rollby inspection of another train passing in the opposite direction. Wooten claims that
when he opened the locomotive door, he heard a pop and felt pain in his right wrist
because the door latch became stuck or otherwise failed to open. Wooten alleges
that while he was attempting to climb back onto the locomotive after performing
the inspection, his injured wrist gave way and he fell back onto the track ballast.
Wooten claims that as a result of his fall, he suffered severe and disabling injuries
to his arm and wrist.
The engineer working with Wooten that night, Matt Roth, reported
Wooten’s injury to dispatch and BNSF directed the train to Belton, Montana,
where Wooten was picked up by an ambulance and taken to the hospital.
Meanwhile, BNSF called in a replacement crew and the train continued on as
scheduled, arriving in Havre early on the evening of July 31, 2015. At some point
that evening, BNSF claims representative Nancy Ahern took several photographs
to document the condition of BNSF 6867. The next day, a 3-Man Inspection team
inspected BNSF 6867 and found no defects. On August 2, 2015, Wooten
completed a Personal Injury/Occupational Illness Report Form stating that he had
suffered a work-related injury to his right wrist.
In the meantime, Wooten’s supervisor and Superintendent of Operations
James Pino had been notified of Wooten’s injury and spoke with both Roth, and
Wooten about the incident. Pino also obtained a written statement from Roth, and
watched BSNF video footage showing Wooten as he arrived for work on July 31,
2015. Pino’s investigation led him to believe that Wooten was dishonest in
reporting his injury, and had injured his wrist prior to reporting for work on July
On August 3, 2015, Wooten gave a statement to BNSF claims representative
Scott Jacobsen, and BSNF provided Wooten with a Notice of Investigation to
determine his “responsibility, if any, in connection with [his] alleged dishonest
report of a personal injury.” (Doc. 101-3). As a result of its formal investigation,
BNSF determined that Wooten had injured his wrist before reporting to work on
July 31, 2015. BNSF terminated Wooten’s employment on September 29, 2015,
for making a “dishonest report of a personal injury.” (Doc. 101-4).
Wooten commenced this action against BNSF in October 2016, alleging
three claims for relief. First, Wooten alleges he was injured as a result of BNSF’s
negligence, and brings a personal injury claim under the Federal Employers’
Liability Act (“FELA”), 45 U.S.C. § 51 et seq. Second, Wooten alleges that BSNF
violated the Locomotive Inspection Act, 49 U.S.C. § 20701 (“LIA”) by using a
locomotive that was not in proper condition and/or safe to operate without
unnecessary danger of personal injury. Third, Wooten alleges that BNSF retaliated
against him for reporting his injury and a hazardous safety condition, and brings a
retaliation claim under the Federal Railroad Safety Act (“FRSA”), 49 U.S.C. §
20109. Wooten seeks compensatory and other damages, including an award of
punitive damages on his FRSA claim.
The parties have filed cross-motions for partial summary judgment on
Wooten’s FRSA claim (Count II), and BSNF has moved for summary judgment on
Wooten’s LIA claim (Count III). The following motions are also pending: (1)
Wooten’s motion for discovery sanctions based on spoliation of evidence (doc.
115); (2) Wooten’s motion to exclude or limit expert testimony based on timeliness
and sufficiency of expert disclosure (doc. 151); (3) BNSF’s supplemental motion
for protective order and sanctions (doc. 153); (4) BNSF’s motion for protective
order that the deposition of litigation paralegal Linda Harvey not be had; (5)
BNSF’s motions in limine concerning Wooten’s expert witnesses (doc. 164); (6)
BNSF’s motions in limine (doc. 166); (7) Wooten’s motions in limine (doc. 168),
and; (8) Wooten’s motion for protective order precluding depositions. (Doc. 181).
On May 22, 2018 and May 23, 2018, the Court held oral argument on all of
the above motions, and made several rulings and recommendations from the bench.
This Findings & Recommendation and Order memorializes the Court’s oral rulings
and recommendations on the parties’ summary judgment motions (docs. 99, 102,
& 105), Wooten’s motion for discovery sanctions (doc. 115), BNSF’s
supplemental motion for protective order and sanctions (doc. 153), and the parties’
motions for protective orders to preclude various depositions (docs. 161, & 181).
The parties’ motions in limine to exclude or limit expert testimony and other
evidence (docs. 151, 164, 166, & 168) will be addressed in a separate order.
Summary Judgment Motions
Under Federal Rule of Civil Procedure 56(a), a party is entitled to summary
judgment “if the movant shows that there is no genuine dispute as to any material
fact and the movant is entitled to judgment as a matter of law.” The party seeking
summary judgment bears the initial burden of informing the Court of the basis for
its motion, and identifying those portions of the pleadings, depositions, answers to
interrogatories, and admissions on file, together with the affidavits, if any, which it
believes demonstrate the absence of any genuine issue of material fact. Celotex
Corp. v. Cattrett, 477 U.S. 317, 323 (1986). A movant may satisfy this burden
where the documentary evidence produced by the parties permits only one
conclusion. Anderson v. Liberty Lobby Inc., 477 U.S. 242, 251 (1986).
Once the moving party has satisfied its initial burden with a properly
supported motion, summary judgment is appropriate unless the non-moving party
designates by affidavits, depositions, answers to interrogatories or admissions on
file “specific facts showing that there is a genuine issue for trial.” Celotex, 477
U.S. 317, 324 (1986). The party opposing a motion for summary judgment “may
not rest upon the mere allegations or denials” of the pleadings. Anderson, 477 U.S.
In considering a motion for summary judgment, the court “may not make
credibility determinations or weigh the evidence.” Reeves v. Sanderson Plumbing
Prods., 530 U.S. 130, 150 (2000); Anderson, 477 U.S. at 249-50. The Court must
view the evidence in the light most favorable to the non-moving party and draw all
justifiable inferences in the non-moving party’s favor. Anderson, 477 U.S. at 255;
Betz v. Trainer Wortham & Co., Inc., 504 F.3d 1017, 1020-21 (9th Cir. 2007).
When presented with cross motions for summary judgment on the same
matters, the court must “evaluate each motion separately, giving the nonmoving
party in each instance the benefit of all reasonable inferences.” American Civil
Liberties Union of Nevada v. City of Las Vegas, 333 F.3d 1092, 1097 (9th Cir.
Cross-Motions for Partial Summary Judgment on Plaintiff’s
FRSA Claim (Docs. 99 & 105)
Prima Facie Case
To establish a prima case under the FRSA’s anti-retaliation provisions, a
plaintiff must show by a preponderance of the evidence that (1) he engaged in a
protected activity as defined by statute; (2) the employer knew he engaged in the
protected activity; (3) he suffered an unfavorable personnel action; and (4) the
protected activity was a contributing factor in the unfavorable personnel action. 49
U.S.C. § 42121(b); Araujo v. N.J. Transit Rail Operations, Inc., 708 F.3d 152, 157
(3d. Cir. 2013). If the plaintiff makes this showing, “the burden shifts to the
employer to demonstrate ‘by clear and convincing evidence, that the employer
would have taken the same unfavorable personnel action in the absences of that
behavior.’” Araujo, 708 F.3d at 157 (quoting 49 U.S.C. § 42121(b)(2)(B)(ii)).
Wooten moves for summary judgment on the second, third, and fourth
elements of his prima facie case, and BNSF has cross-moved for summary
judgment on the fourth element. 1 Notably, neither party moves for summary
judgment on the first element, which requires Wooten to show that he engaged in a
protected activity. The FRSA defines a protected activity to include reporting “a
work-related personal injury” in “good faith.” 49 U.S.C. § 20109(a), (a)(4). The
parties do not dispute that Wooten reported a work-related injury to BNSF, but
whether Wooten made that report in good faith is hotly contested. As both parties
thus recognize, whether Wooten reported his injury in good faith is a factual issue,
and one that is not subject to summary judgment. (See Doc. 101, at 15 n. 98; Doc.
106, at 14 n. 1).
Notwithstanding this factual dispute, Wooten maintains he is entitled to
summary judgment on the second element of his prima facie case, which requires
evidence that BNSF knew he engaged in the protected activity. Clearly, BNSF
knew about Wooten’s injury report. But whether Wooten made that injury report in
good faith, thereby engaging in protected activity, is disputed. Because the parties
Wooten argues BNSF’s motion on the FRSA claim should be denied
because it was filed serially with its motion for summary judgment motion on the
LIA claim in an attempt to evade the word limit set forth in Local Rule 7.1. (Doc.
132, at 7). Wooten also argues the motion should be denied because BNSF filed its
Statement of Undisputed Facts 15 hours after it filed its supporting brief, in
violation of Local Rule 56.1 which requires simultaneous filing. (Doc. 132, at 9).
Both arguments are without merit.
dispute whether Wooten engaged in a protected activity in the first place, it cannot
be said as a matter of law that BNSF knew he engaged in a protected activity.
Wooten’s motion for summary judgment on this element should be denied.
Wooten also moves for summary judgment on the third element, which
requires proof of an unfavorable personnel action. There is no dispute that Wooten
was discharged from his employment with BNSF, which means this element is
satisfied. But because this element is not in dispute and evidence that Wooten was
discharged will undoubtedly be introduced at trial, granting summary on this
element alone would not eliminate any issues or serve any other useful purpose.
Wooten’s motion for summary judgment on this element should be denied.
Wooten and BNSF both seek summary judgment on the fourth element,
which requires proof that the alleged protected activity was a contributing factor in
the unfavorable personnel action. The parties disagree on the proof this element
requires. Wooten argues the standard is a lenient one, and cites BNSF Ry. Co. v.
U.S. Dep’t of Labor, 816 F.3d 628, 639 (10th Cir. 2016) for the proposition that a
plaintiff need only show by a preponderance of the evidence that the protected
activity “was one of the factors that tended to affect in any way the personnel
action.” (Doc. 101, at 17). Wooten maintains this burden can be met with
circumstantial evidence, including evidence of temporal proximity. (Doc. 101, at
17, citing DeFrancesco v. Union Pacific R.R., ARB No. 10-114, 2012 WL 694502
*3 (Feb. 29, 2012)).
Wooten further argues the “contributing factor” standard is satisfied if “the
protected activity and the adverse action are ‘inextricably intertwined’.” (Doc. 101,
at 18 (citing Stallard v. Norfolk S. Ry. Co., ARB No. 16-028, 2017 WL 4466937, at
*8 (Sept. 29, 2017)). Wooten maintains it is not possible to explain BNSF’s
decision to terminate his employment without reference to his report of a personal
injury, which means the two are inextricably intertwined and he is entitled to
summary judgment on the contributory factor element of his FRSA claim.
BNSF takes the position that a more stringent standard applies, and contends
that in order to satisfy the contributing factor element a plaintiff must prove
“intentional retaliation prompted by the employee engaging in protected activity.”
(Doc. 106, at 15, citing Kuduk v. BNSF Ry. v. Co., 768 F.3d 786, 791 (8th Cir.
2014). BNSF maintains a plaintiff must also prove that the protected activity was
the “proximate cause” of the adverse employment action, and claims evidence of
temporal proximity alone is not sufficient. Kozaria v. BNSF Ry. Co., 840 F.3d
873, 877-78 (7th Cir. 2016). Even assuming Wooten engaged in protected activity,
BNSF argues Wooten cannot establish proximate cause or intentional retaliation
because the undisputed evidence shows that it discharged Wooten based on its
good faith belief that he had been dishonest in reporting an on-the-job injury, not
because he engaged in protected activity.
As consistently applied by district courts in the Ninth Circuit even after the
Kuduk and Kozaria decisions, the contributing factor element “does not require
that the employee conclusively demonstrate the employer’s retaliatory motive.”
Despain v. BNSF, 2018 WL 1894708 *6 (Feb. 20, 2018 D. Ariz.) (citing Araujo,
708 F.3d at 158-59). See also Coppinger-Martin v. Solis, 627 F.3d 745, 750 (9th
Cir. 2010). “Rather, the employee need only make ‘a prima facie showing that
protected behavior or conduct was a contributing factor in the unfavorable
personnel action alleged in the complaint.” Coppinger-Martin, 627 F.3d at 750.
Evidence of the requisite degree of discriminatory animus on the part of the
employer may be circumstantial, including evidence of temporal proximity.
Despain, 1894798 *6. “Other possibilities include ‘indications of pretext such as
inconsistent application of policies and shifting explanations, antagonism or
hostility toward protected activity, the relation between the discipline and the
protected activity, and the presence of intervening events that independently justify
discharge.’” Despain, 2018 WL 1894708 *6 (quoting Loose v. BNSF Ry. Co., 865
F.3d 1106, 1112013 (8th Cir. 2017)). In Despain, for example, the court found on
summary judgment that retaliatory animus was inferable based on circumstantial
evidence, including “the weakness of BNSF Railway’s assertion that the injury
claim was dishonest.” Despain, 2018 WL 1894708 *6.
Under this standard, neither party is entitled to summary judgment on the
contributing factor element of Wooten’s FRSA claim because there is a genuine
issue of material fact as to whether BNSF acted with the requisite degree of
retaliatory animus. Evidence of the temporal proximity between Wooten’s injury
report and the date of his discharge is relevant for purposes of showing retaliatory
intent and satisfying the contributing factor element. In addition, Wooten
submitted a heavily redacted copy of BNSF’s 2015 end-of-year performance
review for Pino, who describes himself as “the lead on driving [the] investigation
and ultimately terminating” Wooten. (Doc. 123). In the self-assessment safety
section of the review, Pino explains that “the numbers are inflated by an injury that
was falsely reported” and “if we consider the falsely reported injury” they “would
be approaching 1 year injury free.” (Doc. 123). The unredacted version of Pino’s
2015 end-of-year performance review shows that he received an “On Target”
safety rating from his manager, Dan Fransen. 2 But on Pino’s 2015 mid-year
At the February 22, 2018, hearing, BNSF was ordered to provide the Court
with unredacted copies of 2014 and 2015 performance reviews for several
employees, including Pino and Fransen, for in camera review. The Court reviewed
BNSF’s in camera submission, and at the hearing on May 23, 2018, directed BNSF
to provide Wooten with unredacted copies of the relevant portions of Pino’s and
Fransen’s mid-year and end-of-year performance reviews for 2015.
performance review, which was completed on July 28, 2015 just a few days before
Wooten’s injury report, Fransen gave Pino a “Needs Improvement” safety rating.
Fransen stated that the trending “improvement in safety which would include
reportable injuries along with our total injuries…must continue through the
remainder of 2015 as I believe we can have a very successful year.” Fransen’s
safety rating also improved during this period. He received an “On Target” safety
rating on his 2015 mid-year performance review, and an “Exceeds Target” rating
on his 2015 end-of year-review. The Incentive Compensation Program example
submitted by BNSF for in camera review and disclosed to Wooten’s counsel shows
that such individual performance ratings can result in a Performance Management
Process adjustment, thereby affecting compensation.
Drawing all inferences in Wooten’s favor, this evidence suggests that BNSF
may have incentivized retaliation by managers and supervisors by linking their
individual performance reviews to the number of on-the-job injuries reported.
Assuming Wooten engaged in protected activity by reporting an on the job injury
in good faith, he has come forward with sufficient evidence to raise a genuine issue
of material fact as to whether BNSF retaliated again him for doing so. In light of
these factual issues, neither party is entitled to summary judgment on the
contributory factor element of Wooten’s FRSA claim.
Alternatively, BNSF moves for summary judgment on the ground that it has
established by clear and convincing that it would have taken the same unfavorable
personnel action even in the absence of Wooten’s alleged protected activity. The
alleged protected activity here is the good faith reporting of an on-the-job injury. It
is undisputed that BSNF discharged Wooten for making a “dishonest report of a
personal injury.” (Doc. 101-4). Assuming Wooten engaged in protected activity by
reporting an on-the-job injury in good faith, BNSF does not point to any evidence
that it would have discharged him for other legitimate reasons.
To the extent BNSF argues it would have discharged Wooten for dishonesty
even if he had not submitted an injury report, BNSF has not established that it is
entitled to summary judgment. BNSF explains that dishonesty is a stand-alone
dismissible event under its Policy for Employee Performance Accountability
(PEPA), and cites comparator information showing that it consistently applies and
enforces its discipline policies, including prohibitions against dishonesty. In
response, Wooten submits evidence that railroad managers have discretion in
assessing “levels of dishonesty” and comparator information showing that BNSF
does not consistently impose identical discipline on all employees who violate the
prohibition against dishonesty. (Doc. 100, ¶¶ 50-52, 86-92). This evidence is
sufficient to raise a genuine issue of material fact.
Failure to Mitigate
Wooten moves for summary judgment on BNSF’s affirmative defense of
failure to mitigate. The parties agree that Wooten had a duty to mitigate his
damages by using “reasonable diligence in finding other suitable employment.”
Ford Motor Co. v. E.E.O.C., 458 U.S. 219, 231 (1982). While the duty to mitigate
lies with the injured party, the burden of proving a failure to mitigate lies with
employer. See Sangster v. United Air Lines, Inc., 633 F.2d 864, 868 (9th Cir. 1980).
In most cases, an employer satisfies this burden by establishing that (1) “there were
substantially equivalent jobs available, which [the plaintiff] could have obtained,”
and (1) the plaintiff “failed to use reasonable diligence in seeking one.” EEOC v.
Farmer Bros. Co., 31 F.3d 891, 906 (9th Cir. 1994).
Wooten argues BNSF’s failure to mitigate defense fails as a matter of law
because BNSF has not provided enough evidence to create a question of fact as to
(1) whether any alternative employment was available to Wooten; (2) whether
Wooten failed to use reasonable efforts to secure such employment; and (3) the
amount by which damages would have been reduced had Wooten satisfied his
Contrary to Wooten’s argument, BNSF has presented sufficient evidence on
all three of these points to survive summary judgment. 3 With respect to
Because BNSF has presented sufficient evidence on all three points, the
Court need not address BNSF’s argument that it is not required to show alternative
substantially equivalent employment, BNSF has submitted evidence from damages
expert Katherine Dunlap that alternate and equivalent employment opportunities
were available in the railroad industry in various cities in Washington, Utah, Idaho,
and Wyoming. 4 (Doc. 134, ¶ 98). While Wooten argues he should not have been
required to relocate to any of these locations, whether it would have been
reasonable to expect that he do so under the circumstance is a question for the trier
As to the reasonableness of Wooten’s efforts to secure alternative
employment, BNSF points to evidence that he submitted only one employment
application, which was for a job at car dealership, and did not actively seek out any
other employment. While Wooten is now working as an insurance agent, BNSF
claims that is only because he was offered the job by a former acquaintance. (Doc.
134, ¶ ¶95, 96). In addition, Dunlap states in her expert report that diligence
obtaining equivalent employment should entail engaging in job search activities on
a full-time basis. (Doc. 134, ¶ 97). According to BNSF, Wooten did not meet this
employment was available if it can demonstrate that Wooten failed to use
Wooten objects to Dunlap’s expert report on the ground that it is unsworn
and inadmissible. (Doc. 101, at 26). Even assuming that would preclude the Court
from considering the report on summary judgment, BNSF has cured any defect by
filing Dunlap’s declaration attesting to her report. (Doc. 134-13).
time commitment. The reasonableness of Wooten’s mitigation efforts is for the
jury to consider.
Finally, Wooten argues that even if he failed to mitigate, BNSF has not
presented any evidence showing the amount by which his damages should be
reduced. But Dunlap addresses damages in her expert report, which is sufficient for
summary judgment purposes. Wooten argues that Dunlap’s conclusions are not
supported, but such arguments are for the trier of fact to consider. Wooten’s
motion for summary judgment on BNSF’s affirmative defense of failure to
mitigate should be denied.
BNSF moves for summary judgment on Wooten’s request for punitive
damages. To recover punitive damages under the FRSA, Wooten must prove that
BSNF acted “[w]ith malice or ill will or with knowledge that its actions violated
federal law or with reckless disregard or callous indifference to the risk that its
actions violated federal law.” Worcester v. Springfield Terminal Railway
Company, 827 F.3d 179, 182 (1st Cir. 2016) (quoting Smith v. Wade, 461 U.S. 30,
56 (1983)). BNSF maintains that the undisputed evidence establishes that it
followed its written policies prohibiting retaliation (doc. 111), and argues Wooten
has not come forward with any evidence upon which a jury might find that it acted
with the requisite level of intent to support an award of punitive damages.
In response, Wooten points to evidence showing that BNSF anticipated
litigation on the very day he was injured. (Doc. 90-6). Wooten also cites
deposition testimony from Pino explaining that within 24 hours of the alleged
incident, he had determined based on video taken as Wooten arrived to work on the
night in question that Wooten was injured before he showed up for work. (Doc. 907, at 2). The Court also remains mindful, as previously discussed, that Wooten has
established the existence of a genuine issue of material fact as to whether BNSF
acted with discriminatory animus in terminating his employment. Thus, viewing
the evidence in the light most favorable to Wooten and drawing all inferences in
his favor, a reasonable trier of fact could find that BNSF, through its employees,
acted with reckless disregard in terminating Wooten’s employment. Whether the
standard for punitive damages is satisfied is better left to the jury.
Exhaustion of Administrative Remedies
Finally, BNSF moves for summary judgment on Wooten’s FRSA claim
based on failure to exhaust his administrative remedies. The FRSA states that an
employee “may seek relief in accordance with the provisions of this section, with
any petition or other request for relief under this section to be initiated by filing a
complaint with the Secretary of Labor.” 49 U.S.C. §20109(d)(1). “The text of the
statute therefore makes clear that to receive relief under the FRSA, litigants must
first file a complaint with OSHA alleging unlawful discrimination.” Foster v.
BNSF Railway Company, 866 F.3d 962, 966 (8th Cir. 2017); See 49 U.S.C.
§20109(d)(2); 49 U.S.C. § 42121(b)(1); 29 C.F.R. § 1982.103. The FRSA’s
exhaustion requirements are met “where the retaliation claim is reasonably related
to the administrative complaint.” Finley v. Salazar, 2013 WL 1209940, at *2 (D.
Mont. Mar. 25, 2013); See also Vasquez v. County of Los Angeles, 349 F.3d 634,
644 (9th Cir. 2004).
Wooten filed an OSHA complaint alleging he engaged in protected activity by
notifying BNSF that he had suffered a work-related personal injury. In his
Complaint in his case, Wooten alleges he also engaged in protected activity by
“reporting in good faith a hazardous safety condition” by reporting a “defective
latch on a locomotive door.” (Doc. 1 § 22). BNSF argues Wooten cannot raise
those claims in this case because he did not include similar allegations in his
But because Wooten’s report of a personal injury stated that he injured his wrist
as a result of a door latch that was not functioning properly, his claim that he
engaged in protected activity by reporting a hazardous safety condition is
reasonably related to his OSHA complaint. Therefore, BNSF’s motion for
summary judgment on failure to exhaust administrative remedies should be denied.
BNSF’s Motion for Summary Judgment on Plaintiff’s LIA Claim
BNSF moves for summary judgment on Wooten’s claim under the
Locomotive Inspection Act (“LIA”), 49 U.S.C. § 20701. The LIA provides that
“[a] railroad carrier may use…a locomotive…on its railroad line only when the
locomotive…and its parts and appurtenances are in proper condition and safe to
operate without unnecessary danger of personal injury.” 49 U.S.C. § 20701(1).
Thus, “[i]n order to state a violation of the LIA, the plaintiff must show that the
complained of condition created a safety hazard.” Glow v. Union Pac. R.R. Co.,
652 F. Supp. 2d 115, 1143 (E. D. Cal. 2009) (citing Oglseby v. S. Pac. Transp. Co.,
6 F.3d 603, 609 (9th Cir. 1993).
BNSF argues that Wooten’s LIA claim fails for two reasons. First, BNSF
maintains there is no evidence that the door latch was defective or in an unsafe
condition, as those terms are construed under the LIA. To the contrary, BNSF
claims the undisputed evidence shows the door latch on BNSF 6867 was working
properly on the night of Wooten’s alleged injury. For example, BNSF points out
that the engineer working with Wooten that night, Matt Roth, testified at his
deposition that he did not notice anything out of the ordinary with respect to the
door latch. (Doc. 104-1). Consistent with Roth’s testimony, the 3-Man Inspection
team responsible for inspecting BNSF 6867 the day after the incident found no
defects and determined that no repairs to the locomotive were needed. (Doc. 1046). Because the inspection team did not find any defects, BNSF 6867 remained in
service. (Doc. 104-9). Through August, September, and October of 2015, BNSF
did not receive any reports that the door latch in question ever malfunctioned or
was otherwise defective. (Doc. 104-8). BNSF argues the evidence described above
establishes as a matter of law that BNSF’s door latch was not defective or in an
But Wooten testified at his deposition that as he went to exit BSNF 6867 to
perform the roll-by inspection, the locomotive door failed to open on his first
attempt and when he tried again, the door swung open and he heard a pop in his
wrist. (Doc. 101-5, at 7). Wooten’s testimony is sufficient to raise a genuine issue
of material fact as to whether the locomotive door latch was in proper condition
and safe to operate within the meaning of the LIA. 5
Second, BNSF argues the only physical evidence of a door latch defect on
BNSF 6867 was the result of later manipulation. On October 27, 2015 –
approximately three months after Wooten’s injury – BSNS employee Mark
Voelker recognized BNSF 6867 as the locomotive on which Wooten claimed he
was injured and decided to examine the door latch. Voelker described his
BNSF argues in a footnote that to the extent Wooten argues the design of
the locomotive door is defective his claim is precluded under the LIA. (Doc. 103,
at 13 n. 3). For support, BNSF cites Law v. General Motors Corp., 114 F.3d 908,
910-11 (9th Cir. 1997), which holds that state common law design defect claims are
preempted by the LIA. Wooten is not bringing a state common law design defect
observations in an email the next day to Wooten’s counsel, stating that “[t]he
inside handle and mechanism was loose and all four of the screws holding the
mechanism to the door were working their way out and were loose as well.” (Doc.
104-10). Because the 3-Man Inspection team did not find any defects when it
inspected BNSF 6867 the day after Wooten reported his injury, BNSF argues the
latch must have been manipulated at some later date. For further support, BNSF
points to the deposition testimony Matt Roth, who was the conductor on BNSF
6867 and was present when Voelker examined the door latch. Roth testified that to
him, it appeared as if someone had recently taken a tool and loosened the bolts on
the locomotive door latch. (Doc. 104-15). Likewise, the conductor and engineer
on BNSF 6867 during the October 27, 2015 shift have both stated that they did not
recall any issues with the door latch. (Docs. 104-16; 104-17).
But Voelker’s credibility, and whether the condition of the door latch as
described by Voelker was the result of manipulation after the date of Wooten’s are
for the trier of fact to consider. For summary judgment purposes, Voelker’s
observations and Wooten’s testimony are sufficient to create a genuine issue of
material fact as to whether the locomotive door latch was in proper condition and
safe to operate without unnecessary danger of personal injury as required by under
the LIA. BNSF’s motion for summary judgment on Wooten’s LIA claim should be
Plaintiff’s Motion for Discovery Sanctions (Doc. 115)
Plaintiff has filed a motion for discovery sanctions pursuant to Federal Rule
of Civil Procedure 37 based on the alleged spoliation of evidence. “Spoliation of
evidence is the destruction or significant alteration of evidence, or the failure to
preserve property for another’s use as evidence, in pending or future litigation.”
Bel Air Mart v. Arnold Cleaners, Inc., 2014 WL 763185 *3 (E.D. Cal. Feb. 21,
2014) (quoting Kearney v. Foley & Lardner, LLP, 590 F.3d 638, 649 (9th Cir.
2009)). “The duty to preserve material evidence arises not only during litigation
but also extends to that period before the litigation when a party reasonably should
know that the evidence may be relevant to anticipated litigation.” Bel Air Mart,
2014 WL 763185 *3 (quoting World Courier v. Barone, 2007 WL 1119196 (N.D.
Cal. Apr. 16, 2007)).
Where a party to subsequent litigation loses or destroys evidence before
litigation commences, the court may impose spoliation sanctions pursuant to its
inherent authority. See Leon v. IDX Systems Corp., 464 F.3d 951, 959 (9th Cir.
2006); Unigard Security Ins. Co. v. Lakewood Engineering & Manufacturing
Corp., 982 F.2d 363, 368 (9th Cir. 1992). This inherent authority gives the court
“broad discretion to make discovery and evidentiary rulings conducive to the
conduct of a fair and orderly trial.” Unigard Security Ins. Co., 982 F.2d at 368.
“The moving party has the burden of demonstrating sanctionable conduct
and prejudice.” Bel Air Mart, 2014 WL 763185 *4 (quoting Rev 973 LLC v.
Mouren-Laurens, 2009 WL 273205 *1 (C.D. Cal. 2009). To support a finding that
spoliation has taken place, “the evidence destroyed must be relevant or ‘material
evidence.’” Lavell Enterprises, Inc. v. American Credit Card Processing Corp.,
2007 WL 4374914 *11 (D. Mont. Dec. 11, 2007) (citing Silvestri v. General
Motors Corp., 271 F.3d 583, 592 (4th Cir. 2001)). “Absent a finding that the
destroyed evidence was relevant or material, a sanction for spoliation cannot be
imposed.” Lavell, 2007 WL 4374914 *11.
“The court may impose a range of sanctions for spoliation of evidence
depending on the culpability of the party responsible for its destruction and the
prejudice caused to the opposing party.” Maxim v. FP Holdings, LP, 2014 WL
200545 *2 (D. Nev. Jan. 2, 2014). In particular, the court may: (1) order the
exclusion of certain evidence; (2) admit evidence of the circumstances surrounding
the destruction of evidence; or (3) instruct the jury that it may draw an adverse
inference against the spoliating party. Peschel v. City of Missoula, 664 F. Supp.2d
1137, 1141 (D. Mont. 2009). In addition, “[d]ismissal is an available sanction
when ‘a party has engaged deliberately in deceptive practices that undermine the
integrity of the judicial proceedings’ because ‘courts have inherent power to
dismiss an action when a party has willfully deceived the court and engaged in
conduct utterly inconsistent with the orderly administration of justice.’” Leon, 464
F.3d at 958 (quoting Anheuser-Busch, Inc. v. Natural Beverage Distributors, 69
F.3d 337, 348 (9th Cir. 1995)).
Drawing from Leon and Halaco Engineering Co. v. Costle, 843 F.2d 376,
380 (9th Cir. 1988), this Court has held that the following factors are to be
considered before a dispositive sanction can be imposed for the spoliation of
evidence (1) the presence of extraordinary circumstances; (2) willfulness, bad
faith, or fault by the offending party; (3) the relationship between the misconduct
and the matters in controversy; (4) the risk of prejudice to the party seeking
sanctions; (5) the public policy favoring disposition of cases on their merits, and;
(6) the efficacy and availability of lesser sanctions. Peschel, 664 F.Supp.2d at
Wooten claims that BNSF spoliated three categories of evidence: (1)
original videos recorded on several BNSF Lococam video modules on July 31,
2015, and August 1, 2015; (2) original digital data and metadata evidence
regarding photographs that BNSF alleges were taken by claims agent Nancy Ahern
and mechanical officer Matt Collins on July 31, 2015, and August 1, 2015, and; (3)
the locomotive door and door handle on BNSF 6867. (Doc. 116, at 6-7). Wooten
argues this evidence was directly relevant to the parties’ claims and defenses, and
BSNF either decided to destroy or failed to preserve the evidence. Wooten asks the
Court to impose sanctions against BNSF “by entering judgment in his favor, or in
the alternative, imposing the highest sanction which the Court finds warranted.”
(Doc. 116, at 25).
BNSF does not dispute that it recognized the prospect of litigation
immediately after Wooten reported his injury, thereby triggering its duty to
preserve relevant evidence. BNSF argues it did just that, and took reasonable steps
to collect and preserve evidence that might be relevant to future litigation. Even if
Wooten could establish that it spoliated evidence, BNSF argues sanctions are not
warranted because he has not shown any substantial prejudice as a result.
Wooten contends that BNSF failed to preserve video evidence from three
BNSF locomotives: (1) BNSF 6867, the lead locomotive on which Wooten claims
he was injured; (2) BNSF 4080, the locomotive directly behind BNSF 6867, and;
(3) BNSF 7421, the lead locomotive on a train moving past Wooten’s location in
the opposite direction at about the time of his roll-by inspection.
All three locomotives were equipped with General Electric Company (“GE”)
camera systems, which hold up to 72 hours of video taken from the front and both
sides of a locomotive, and automatically stop recording five minutes after a
locomotive has stopped moving. Video footage from the GE camera systems can
be preserved either by pulling the physical video module from the locomotive and
uploading the original video, or by remotely downloading video in 12 second clips
through a system called Wi-Tronix. (See Docs. 146-9; 146-10).
BNSF pulled the physical module from BNSF 6867 and uploaded original
video taken at about the time of Wooten’s alleged injury while the train was at
Coram. (Docs. 83, at 46; 146-9, at 2). Wooten cannot be seen on the uploaded
video, which shows the top portion of the locomotive door opening and closing but
did not capture alleged incident. (Doc. 146-11). The physical module from BNSF
6867 has apparently been placed back in service on a different locomotive.
Instead of pulling the physical modules from BNSF 4080, BNSF preserved
partial Wi-Tronix video downloads taken while the train was at Coram. Because
BNSF 4080 was directly behind BNSF 6867, the camera’s field of vision was
obscured and the video does not show anything relevant. (Doc. 146-11).
BNSF also preserved partial Wi-Tronix video downloads from BNSF 7421
as it passed Wooten’s location shortly after the alleged incident. (Doc. 146-11).
The video from BNSF 7421 shows the light from Wooten’s lantern for
approximately six seconds, and Wooten is visible for approximately four seconds.
Wooten argues BNSF should have pulled the physical modules from all
three locomotives and preserved all 72 hours of video. In particular, Wooten faults
BNSF for failing to preserve any video from BNSF 6867 and 4080 while the train
was in Whitefish, where he boarded at the beginning of his shift, in Belton, where
he received help getting off the train after the alleged incident, or in Havre, where
locomotive 6878 was inspected. Wooten argues video from those locations may
have contained relevant footage showing him both before and after the alleged
incident, and claims BNSF’s failure to preserve such footage constituted
In response, BNSF argues that its preservation of locomotive video was both
reasonable and proportional to the needs of the case. See Rimkus Consulting
Group, Inc. v. Cammarata, 688 F.Supp.2d 598, 612 (S.D. Tex. 2010) (stating that
reasonableness and proportionality should be considered in the spoliation analysis).
BNSF’s evidence preservation manager, Larry Fernandes, detailed the logistical
and technological burdens associated with pulling the video modules and saving 72
hours of video. (Docs. 146-9; 146-13). BNSF explains that it decided what video to
collect and preserve based on a number of factors affecting the likelihood that the
video would contain relevant footage, including each camera’s field of vision and
the fact that recording automatically stops after a locomotive is idle for five
Wooten also challenges BNSF’s decision to provide Wi-Tronix video
downloads from BNSF 4080 and 7421, instead of uploading original video directly
from the physical modules. According to Fernandes, BNSF does not alter or edit
videos, include video downloaded through W-Tronix. But Wooten nevertheless
questions the “foundation” and “accuracy” (doc. 116, at 17) of Fernandes’
statement and BNSF’s Wi-Tronix video downloads. Wooten claims that BNSF
produced Wi-Tronix video from another locomotive, BNSF 8197, that was
obviously edited because it showed the same footage twice in succession. (Docs.
116, at 18; 116-20). Wooten argues the only way to check the authenticity and
foundation for accuracy of the video BNSF saved in this case would be to compare
it to the full original video that has been destroyed.
Again, BNSF steps forward with an explanation. BNSF acknowledges that
the video from BNSF 8197 shows the same footage twice, but as Fernandez
explains it, “[p]ulling video though Wi-Tronix is not an exact science” and
sometimes multiple requests for video will have to be made to get all of the footage
sought. When that happens, the video repeats because overlapping footage was
pulled through Wi-Tronix. (Docs. 146-9, 146-13).
For the most part, Wooten’s concerns regarding the preservation, accuracy,
and foundation of the locomotive video at issue can be adequately addressed at
trial, on cross-examination. Nevertheless, the Court finds based on the argument
and evidence presented, that it is appropriate to allow Wooten to put on evidence
as to the circumstances surrounding the alleged spoliation of BNSF 6867’s video
module and the other locomotive video at issue. The jury will be allowed to draw
whatever reasonable inferences may follow from the evidence presented. In
addition, admitting this evidence at trial will give the Court the opportunity to
further consider giving an adverse inference instruction should the Court determine
it is warranted.
Locomotive Inspection Photographs
Wooten next argues that BNSF failed to preserve original digital media with
metadata from photographs taken by Ahern and BNSF’s 3-Man Inspection team
while inspecting BNSF 6867 in Havre after the alleged incident.
Matt Collins was the mechanical floor supervisor at the Havre Diesel Shop
who arranged the 3-Man Inspection of BNSF 6867, which was carried out by three
diesel shop employees and took place on July 31, 2015. (Doc. 146-3). The 3-Man
Inspection Report found no defects with the locomotive door or door handle on
BNSF 6867. (Doc. 104, ¶ 7). During the inspection, the 3-Man crew took several
photographs of the locomotive, including the door. (Doc. 146-3, at 7). It was later
realized that the date stamp on the camera was not set correctly when the
photographs were taken, making it appear that they were taken in 2009. (Doc.
BNSF claims representative Nancy Ahern also took several photographs of
BNSF 6867 to document its condition on July 31, 2015. (Doc. 146-5). At her
deposition, Ahern testified that the “believe[d]” she took the photographs with her
iPhone (doc. 146-5, at 4), but underlying data from the photographs demonstrates
that they were taken with a Canon PowerShot A2000. Ahern has a Canon
PowerShot A2000 that she sometimes used to take photographs for her
investigations. Based on the photograph data, Ahern later attested that she used the
Canon PowerShot A2000 camera to take the photographs of BNSF 6867. (Doc.
BNSF states that it has provided Wooten with the original inspection
photographs taken by Ahern and the 3-Man Inspection team. (Doc. 146, at 17).
According to BNSF, those photographs show there were no defects or other
problems with the locomotive door handle on which Wooten claims he was injured
on July 31, 2015. BNSF also states that it provided Wooten with the metadata for
the inspection photographs on January 17, 2017, and explained in a letter to
Wooten’s counsel that the file names had been changed, but the photographs and
data had not been modified. (Doc. 146-14).
Wooten nevertheless challenges the foundation and authenticity of the
photographs provided by BNSF, and stands by his position that whatever metadata
BNSF has produced thus far is not sufficient. Wooten’s expert, Edward Baker,
explains that unlike original metadata, reproduced metadata on photographs
showing the “date taken” can be easily altered on any computer. (Doc. 116-20).
Wooten maintains that he needs the “original SD/media cards and digital
photographic metadata media originally captured” by the cameras used by Ahern
and the 3-Man Inspection team in order to establish the actual date on which the
photographs were taken. (Doc. 160, at 9).
As directed by the Court at the hearing on May 21, 2018, if the original
SD/media card from the camera used by Ahern to take photographs of BNSF 6867
is in BNSF’s possession, BNSF must produce it for Wooten on or before June 1,
2018. Otherwise, the Court finds that Wooten’s arguments about the foundation
and authenticity of BNSF’s inspection photographs are not a sufficient basis for
imposing spoliation sanctions. Wooten’s concerns regarding the accuracy and
foundation of those photographs can be adequately addressed at trial, through
expert testimony and on cross-examination.
Locomotive door and handle
Wooten claims he was injured on July 31, 2015, when he tried to open the
door on BSNF 6867 and the “door latch became stuck or otherwise failed to open.”
(Doc. 1, ¶ 9). Wooten points out that BNSF was aware of this claim by the time
the train arrived in Havre just hours after his alleged injury, and argues BNSF
should have removed the locomotive door and/or door handle and component parts
on July 31, 2015 to preserve them as the best evidence for use in future litigation.
BNSF explains that it did not immediately remove the locomotive door
because the 3-Man Inspection did not find any mechanical defects, and a
replacement door was not immediately available. (Doc. 146-5, at 2). BNSF
ordered a replacement door, which arrived at the Havre Diesel Shop approximately
three months later, in late October 2015. (Docs. 146-5; 146-7). In the meantime,
BNSF 6867 remained in service and no other problems or defects were reported.
(Doc. 104, ¶¶ 10-11). When the replacement door arrived in late October 2015,
BNSF removed the locomotive door and preserved it for evidence. (Doc. 146-5).
At trial, Wooten is certainly entitled to challenge BNSF’s explanation and
the reasonableness of its decision to keep BNSF 6867 in service while waiting for
a replacement door. But under the circumstances, he has not shown that BNSF
engaged in sanctionable spoliation.
BNSF’s Supplemental Motion for Protective Order and Sanctions
BNSF moves the Court to enter a protective order and impose sanctions
pursuant to its inherent authority and under Federal Rule of Civil Procedure 37(c).
In short, BNSF claims that ex-BNSF management employee, Michael Hart,
misappropriated several thousand privileged, confidential, and proprietary BNSF
documents upon his termination and wrongfully shared more than two hundred of
those documents with Wooten’s counsel. While BNSF certainly has a bone to pick
with Hart and has apparently initiated litigation against him in Texas, Hart’s
conduct is not the subject of this motion. Instead, BNSF’s motion addresses the
conduct of Wooten’s counsel. BNSF claims that Wooten’s counsel violated
professional ethics rules, federal and local disclosure requirements, and principles
of fair play by accepting the misappropriated BNSF documents from Hart and
attempting to use them in this litigation. BNSF asks the Court to (1) order Wooten
to return all of the misappropriated documents to BNSF; (2) prohibit Wooten and
his counsel from disseminating and/or using the documents during this or future
litigation; (3) impose monetary sanctions; (4) award BNSF its attorney fees and
costs incurred filing this motion; and (5) disqualify Wooten’s counsel, or
alternatively, order the deposition of Wooten’s counsel and require in camera
inspection of documents and communications exchanged between Hart and
In early summer 2017, Wooten’s counsel learned from another FELA
plaintiff’s attorney that Hart was making himself available as a consulting expert to
plaintiff’s lawyers bringing claims against BNSF. Wooten’s counsel spoke to Hart
and indicated that he was interested in the information Hart had, but told Hart he
did not want to obtain any attorney-client communication or other information that
would not be otherwise discoverable. (Doc. 75-1, ¶ 7). On October 6, 2017, Hart
emailed more than two hundred pages of BNSF documents to Wooten’s counsel,
several of which were marked privileged or confidential. (“Hart documents”).
(Docs. 76, 76-1). Approximately one week later, Wooten’s counsel introduced
three of those BNSF documents during Ahern’s deposition. (Doc. 46-5). Those
three documents included: (1) 2016 Goals (doc. 76, at 3-23); (2) BNSF General
Claims Department 2015 Goal Period – Manager (doc. 76, a 166-67) and; (3)
BNSF General Claims Department 2014 Goal Period – Senior Claim
Representative and Assistant Manager (doc. 76, at 183-90). BNSF objected, and
later learned that Wooten’s counsel had gotten the documents from Hart.
In November 2017, BSNF issued a subpoena to Hart in Oregon, directing
him to produce the following: (1) “all documents that you had use of or access to at
[BSNF] that you have provided to any third party from the date of your
employment with BNSF to the present; (2) “all documents, communications, email or text messages sent to or received from any employee, agent, owner or
representative of” Wooten’s counsel’s law firm; (3) “all records of payment
received from [Wooten’s counsel’s law firm] from January 1, 2017 to present;”
and (4) “all documents, communications, e-mail or text messages you sent to or
received from any attorney that is prosecuting claims against BNSF.” (Doc. 1713).
Hart produced nearly 200 pages of documents in response to item (1) of the
subpoena, and Wooten filed a motion to quash items (2)-(4) of the subpoena in the
United States District Court for the District of Oregon. (Doc. 171-3; 76). The
documents Hart produced in response to the subpoena overlap significantly with
those that Wooten’s counsel obtained from Hart. (Compare Doc. 76 with 76-1). On
January 9, 2018 the Oregon court granted Wooten’s motion to quash items (2)-(4),
and sua sponte quashed item (1). (Doc. 171-4). With respect to items (1) and (4),
the court found the subpoena requested “so much information unrelated to the
Montana case that it looks to me that the defense is simply trying to use this as a
vehicle to investigate a much broader frustration they have with Mr. Hart.” (Doc.
171-4, at 11). With respect to items (2) and (3), the court found that because
Wooten’s counsel had hired part as a nontestifying expert, the documents
requested were “privileged or work product.” (Doc. 171-4, at 12-13).
In the meantime, on December 1, 2017, BNSF filed a Motion for Protective
Order and Sanctions related to the Hart documents (Doc. 67). At a hearing on
December 19, 2017, the Court addressed several pretrial motions, including
BNSF’s motion for a protective order and sanctions. (Doc. 83). After considerable
discussion with counsel, the Court ordered that BNSF filed a renewed motion for
protective order addressing whether the Hart documents are confidential and
privileged, at which point the Court would address the issue of sanctions if
appropriate. (Doc. 83, at 75-77).
The Hart Documents
Consistent with the Court’s directive, BNSF filed the pending supplemental
motion for protective order and sanctions on April 3, 2018. (Doc. 153). BNSF
argues the documents Hart conveyed to Wooten’s counsel contained (a) attorneyclient and work-product privileged information; and (b) confidential and
Attorney-Client and Work-Product Privileged
The attorney-client privilege protects confidential communications between
an attorney and client made in confidence for the purpose of securing legal advice.
See e.g. United States v. Chen, 99 F.3d 1495, 1501 (9th Cir. 1996). The burden of
establishing that the attorney-client applies rests with the party asserting the
privilege. Tornay v. United States, 840 F.2d 1424, 1426 (9th Cir. 1988).
The work-product doctrine protects from discovery “documents and tangible
things that are prepared in anticipation of litigation or for trial by or for another
party or its representative.” Fed. R. Civ. P. 26(b)(3)(A). “It is well established that
documents prepared in the ordinary course of business are not protected by the
work-product doctrine because they would have been created regardless of the
litigation.” Heath v. F/V ZOLOTOI, 221 F.R.D. 545, 549-50 (W.D. Wash. 2004).
A “dual purpose document” is one that serves “both a non-litigation and a litigation
purpose.” American Civil Liberties Union of Northern California v. U.S Dept. of
Justice, 880 F.3d 473, 485 (9th Cir. 2018). “A dual purposes document is
considered ‘prepared or obtained because of the prospect of litigation’ if it ‘would
not have been created in substantially similar form but for the prospect
of…litigation.’” ACLU, 880 F.3d at 485-86 (quoting In re Grand Jury Subopoena,
357 F.3d 900, 907 (9th Cir. 2004)). Attorney work product need not “be prepared in
anticipation of specific litigation to be privileged,” and is protected if it “is aimed
directly for use in (and will inevitably be used in0 litigating cases.” ACLU, 880
F.3d at 487 (quoting National Association of Criminal Defense Lawyers v. Dept. of
Justice Executive Office for United States Attorneys, 844 F.3d 246, 254 (D.C. Cir.
2016). The party claiming work product protection bears the burden of proving that
the doctrine applies. See e.g. Verizon California Inc. v. Ronald A. Katz Tech.
Licensing, L.P., 266 F.Supp.2d 1144, 1148 (C.D. Cal. 2003).
As BNSF describes them, the Hart documents fall into four specific
categories: (i) BNSF’s litigation roadmap; (ii) evidence preservation guidelines;
(iii) BNSF’s Law Department File System Expectations (“LDFS Expectations”),
and; (iv) Hart’s 2016 performance review.
BNSF’s Litigation Roadmap
BNSF argues that its litigation roadmap is attorney-client and work-product
privileged. As described by BSNF’s senior general counsel, James Roberts, the
litigation roadmap is a litigation resource for BNSF’s counsel and their agents,
including claims department employees. Prepared at the direction of BNSF’s
general counsel, the litigation roadmap establishes BNSF’s internal litigation
deadlines and other case management protocols applicable to BNSF’s outside
counsel. The litigation roadmap also details internal BNSF legal strategy processes
that would be valuable to attorneys suing BNSF. (Doc. 154-7, at 4).
BNSF contends that Hart copied and pasted its litigation roadmap into
several of the “goal” documents he prepared and conveyed to Wooten’s counsel. In
particular, BNSF claims that portions of its litigation roadmap are found within the
three Hart documents used by Wooten’s counsel at Ahern’s deposition. Hart
testified at his deposition that he may have lifted material directly from the
litigation roadmap into these documents and could not identify any original content
that he created. (Doc. 154-1, at 102).
Wooten argues it is an overstatement to say that Hart conveyed BNSF’s
litigation roadmap to Wooten’s counsel. According to Wooten, what Hart did
provide were goal document that he prepared for the claims department that
allegedly contained portions of the litigation roadmap. (Doc. 171, at 20). Even
assuming the litigation roadmap is privileged, which Wooten disputes, Wooten
argues the fact that Hart may have used privileged information to create the goal
documents does not mean that the goal documents are privileged.
Evidence Preservation Guidelines
Hart also drafted goals for Evidence Preservation Field Representatives and
Managers of Evidence Preservation. (Doc. 76, at 156-163; Doc. 154-7, at 6-7; 1541, at 80-84). According to BNSF, these goal documents include BNSF’s evidence
preservation guidelines, which speak to BNSF’s legal strategy on effective
investigations, including deadlines, as well as evidence collection, chain of
custody, and preservation procedures. (Doc. 76, at 154-160). BNSF argues that its
evidence preservation and investigation strategies are work-product privileged.
In response, Wooten argues that the Law Department Guide, which is the
source of the Evidence Preservations Guidelines challenged here, is not truly
privileged information. As Wooten reads it, the Law Department Guide is a
general policy of how BNSF approaches litigation, does not give legal assistance
on any specific issue, and was not prepared in anticipation of litigation. Regardless,
Wooten points out that his counsel did not use these particular Hart documents at
Ahern’s deposition, so to the extent the Montana ethics opinion discussed below
applies, it has not been violated with respect to these documents.
BNSF’s LDFS Expectations
Hart also conveyed BNSF’s LDFS Expectations to Wooten’s counsel, both
as a stand-alone document and incorporated into two goal documents: (1) BNSF
General Claims Department 2014 Goal Period – Senior Claim Representative and
Assistant Manager and (2) BNSF General Claims Department 2015 Goal Period –
Manager. (Doc. 76, at 164-65, 173, 190). Wooten’s counsel used the 2014 Goal
Period document at Ahern’s deposition. (Doc. 46-5, at 8).
BNSF’s Law Department Filing System its proprietary electronic claims
filing system. (Doc. 154-7, at 8). The LDFS Expectations govern evidence
collection and file management, including deadlines and procedures to assist
outside counsel’s handling of a case. (Doc. 154-7, at 8-9). BNSF argues that
because its LDFS Expectations were prepared in anticipation of litigation and as
legal advice, they are attorney-client and work-product privileged, as are the goal
documents Hart prepared and conveyed to Wooten’s counsel.
In response, Wooten argues the LDFS Expectations are not privileged work
product because BNSF has not shown that they were prepared in anticipation of
litigation. Even if they were, Wooten argues the information is no longer
privileged to the extent Hart incorporated it into the goal documents he conveyed
to Wooten’s counsel.
Hart’s Performance Review
Hart conveyed his 2016 BNSF Performance Review to Wooten’s counsel.
(Doc. 76-1, at 204-19). BNSF provided Hart with his performance review as
required by state law, and argues it contains attorney-client privileged commentary
reflecting BNSF’s litigation strategy. In particular, BNSF notes that the
performance review documents Hart’s efforts to “[p]ositively impact payout,
filings, and increasing outside counsel’s ability to provide a qualify defense and
prepare cases for trial rather than settlement,” such as cancelling venue and case
handling agreements and changing BNSF’s messaging around non-malignant
asbestos cases. (Doc. 76-1, at 209). In addition, commentary on the review refers
to the “unique challenge” BNSF faces in asbestos litigation. (Doc. 76-1, at 209).
In response, Wooten argues that Hart’s performance review simply cannot
be claimed as privileged because under Oregon law, current or former employees
are entitled to access their personnel records. Wooten argues Hart’s performance
review is not privileged because it was available to him even after his employment
with BNSF had ended, at which point BNSF would not have had any authority to
give or withhold permission to disclose his performance review or its contents.
Confidential and Proprietary Information
BNSF argues that in addition being privileged, virtually all of the Hart
documents contain confidential and proprietary BNSF information. BNSF
maintains that the vast majority of these documents were stored on internal BNSF
systems, were password protected, were accessible only by limited BNSF
personnel, and were not widely or publicly available. BNSF states that if Wooten
had sought any of this information through discovery, it would have objected to
production and sought a protective order. BNSF accuses Wooten’s counsel of
using the Hart documents to circumvent the discovery process, thereby
undermining BNSF’s right to oppose production and the Court’s role to supervise
Even assuming the Hart documents were privileged, and to the extent they
contain confidential and proprietary information, Wooten argues that BNSF has
waived any privilege or objection by serving Hart with a subpoena for the
documents. (See Doc. 171, at 23 for this argument). Wooten notes that under Fed.
R. Civ. P. 45(d)(3)(iii), a party may not use a subpoena to obtain privileged or
otherwise protected material. Wooten argues the flip side of this rule is that when a
party serves a subpoena on a non-party individual, that party may be deemed to
have waived any claim of privilege over the documents sought. Wooten maintains
that by serving Hart with a subpoena for the documents at issue, BNSF effectively
demanded that he produce those documents to Wooten and his counsel, thereby
waiving any privilege.
Contrary to Wooten’s argument, the voluntary disclosure doctrine does not
apply. BNSF served the subpoena in an attempt to recover documents that had
been misappropriated by Hart and turned over to its litigation adversaries. In doing
so, BNSF did not waive any privilege attached to those documents. Even if
Wooten’s argument had any merit, BNSF points out that the Oregon court quashed
the subpoena and it never turned any documents over to Wooten voluntarily.
Because BNSF did not voluntarily disclose privileged, proprietary, or confidential
material, it did not waive any privilege attached to those documents.
Propriety of Sanctions
By and large, the Court agrees with BNSF that there is a good argument to
be made that many of the Hart documents were privileged, and/or contained
proprietary and confidential information. But for purposes of addressing BNSF’s
current motion, the Court need not determine the privileged or protected status of
the Hart documents. Regardless of whether the Hart documents are privileged,
BNSF argues sanctions are appropriate because Wooten’s counsel violated
professional ethics rules.
In particular, BNSF contends Wooten’s counsel violated Montana Ethics
Opinion 951229 by using the misappropriated BNSF documents without providing
notice to BNSF or the Court. (Doc. 154, at 16). This Opinion addressed a fact
pattern involving a defense attorney who hired a private detective to monitor
plaintiffs who filed a personal injury suit. The attorney instructed the detective not
to contact the plaintiffs under a pretext. Ignoring those instructions, the detective
learned after engaging the plaintiffs in a conversation under a pretext that they both
had preexisting injuries and relayed that information to the attorney. (Doc. 154-4).
The Opinion established a two-step procedure for attorneys to follow when
they receive information about an opposing party as a result of improper conduct
by an independent contractor or agent. “First, the attorney must notify opposing
counsel that he has received information which will require judicial review before
the extent of its use can be determined.” (Doc. 154-4, at 3-4). Second, the attorney
must not use “the information until a definitive resolution of the proper disposition
of the materials is obtained from a court.” (Doc. 154-4, at 3-4). BNSF notes that
the Opinion did not turn on the status of the information, and argues this two-step
process applies here regardless of whether or not the Hart documents are privileged
Wooten’s response is twofold. First, Wooten argues the rule set forth in the
Opinion does not apply here because it addressed a specific and distinguishable
fact pattern. While the fact pattern may be distinguishable in some respects, the
Opinion applies more broadly and establishes a two-step procedure that must be
followed where, as here, an attorney receives an opposing party’s internal
information as a result of an agent’s improper conduct.
Even assuming the Opinion applies, Wooten argues his counsel complied
with the two-step procedure as soon as he became aware of it. Wooten explains
that as soon as his counsel discovered the Opinion after Ahern’s deposition, he
provided all of the Hart documents to BNSF’s counsel and began preparing a
motion to bring those documents to the attention of the Court. But before Wooten
filed that motion, BNSF filed its first Motion for Protective Order and Sanctions
related to the Hart documents. Instead of filing a separate motion, Wooten
addressed the proper disposition of the Hart documents in his brief in response to
But the fact remains that Wooten’s counsel used internal BNSF documents
at Ahern’s deposition that he knew or reasonably should have known were
misappropriated by Hart, without providing notice to BNSF or the Court.
Regardless of whether or not the Hart documents are confidential and privileged,
Wooten’s counsel effectively circumvented the federal discovery rules by
acquiring and using those documents at Ahern’s deposition without notice to
BNSF or the Court.
Under its inherent authority and in the exercise of its discretion, the Court
finds that some sanction is warranted based on Wooten’s counsel’s use of the Hart
documents at Ahern’s deposition. The Court finds that the minimum sanction
necessary to deter similar conduct in the future is to prohibit Wooten from
introducing any of the Hart documents from this point forward in this litigation.
Accordingly, to the extent BNSF asks the Court to sanction Wooten by prohibiting
him from using the Hart documents in this litigation, its motion is granted.
BNSF also asks the Court to (1) impose monetary sanctions; (2) award
BNSF its attorney fees and costs incurred filing this motion; and (3) disqualify
Wooten’s counsel, or alternatively, order the deposition of Wooten’s counsel and
require in camera inspection of documents and communications exchanged
between Hart and Wooten’s counsel. The Court finds that these sanctions are too
severe under the circumstances, and denies this aspect of BNSF’s motion.
To the extent BNSF also seeks sanctions in the form of an order directing
Wooten’s counsel to return all of the misappropriated documents to BNSF and
prohibiting him from disseminating and/or using the documents in future litigation,
the Court will defer ruling. Whether such additional sanctions are warranted is
better addressed at the time of trial.
BNSF’s Motion for Protective Order Regarding the Deposition of
Litigation Paralegal Linda Harvey (Doc. 162)
BNSF moves for a protective order pursuant to Fed. R. Civ. P. 26(c) to
prevent Wooten from deposing its in-house litigation paralegal Linda Harvey.
During the course of discovery, Wooten asked BNSF to produce, in one
form or another, email correspondence relating to the termination of his
employment and/or his August 2, 2015 injury report. Dissatisfied with BNSF’s
responses, Wooten filed a motion to compel which the Court addressed at a motion
hearing on February 22, 2018. To address Wooten’s concerns, the Court ordered
that BNSF provide a declaration from the individual responsible for producing the
email correspondence that all relevant documents had been produced, subject to
the attorney-client privilege and work-product doctrine. (Doc. 137, at 21-24). The
Court indicated that if following review by Wooten’s expert he still had concerns
as to whether the complete email strings and attachments had been produced, it
would allow Wooten to depose the individual responsible for producing them.
BNSF identified Harvey as the person most knowledgeable regarding the
email production and provided Wooten with Harvey’s declaration. Harvey
described the steps she took to secure the relevant documents and certified that to
the best of her knowledge, all emails, including the full email strings and
attachments, saved to the Sharepoint database were either produced to Wooten’s
counsel or identified on a privilege log. (Doc. 163-1).
BNSF argues Wooten has failed to demonstrate a legitimate basis for
depositing Harvey, and the scope of the deposition as set forth by Wooten’s
counsel includes topics that are far beyond anything contemplated by the Court at
the February 22, 2018, hearing. BNSF further contends that allowing Harvey’s
deposition would require the violation of the attorney-client privilege and work
In response, Wooten maintains Harvey’s declaration is not sufficient
because, among other things, it does not state which BNSF custodians of emails
she obtained evidence from, when she contacted them, what direction or technical
assistance BNSF provided to those custodians. (Doc. 176, at 5). Wooten further
contends the Harvey declaration fails to properly authenticate the email, email
strings, and attachments provided by the railroad. (Doc. 176, at 12). As a result,
Wooten notified BNSF in early April 2018 that it intended to depose Harvey.
Wooten makes clear that he is not seeking to discover emails that are subject to the
attorney-client or work product privilege, but is simply attempting to discover
whether BNSF has produced all relevant emails, email strings, and attachments.
Having considered the parties’ arguments, and for the reasons discussed at
the motion hearing on May 21, 2018, the Court will allow Wooten to depose
Harvey. The deposition shall not exceed two hours in length, and must be taken on
or before June 1, 2018.
Plaintiff’s Motion for Protective Order Precluding the
Depositions of Greg Smith, Nick Palicz, and Rusty Weber (Doc.
On May 8, 2018, approximately three months after the close of discovery,
BNSF noticed the depositions of Greg Smith, Nick Palicz, and Rusty Weber.
Wooten argues BNSF has not established good cause for extending the discovery
deadline and allowing these depositions. BNSF has already deposed Smith once,
and the Court agrees that BNSF has not shown good cause for deposing him a
second time more than three months after the close of discovery.
While BNSF has known about Smith for several months, BNSF argues it
only recently uncovered the identity and whereabouts of Palicz and Weber because
Wooten was not forthcoming in discovery. BNSF argues that Wooten failed to
produce his phone records in response to BNSF’s discovery requests, and claims it
has evidence showing that Wooten deleted text messages from his phone. Based in
large part on what it learned from Smith, BNSF has reason to believe that Palicz
and Weber know something about Wooten’s activities in the days prior to his
alleged work injury. Because the parties dispute whether Wooten was injured on
the job or before reporting to work on July 31, 2015, the time period before his
work shift is of central importance to this case. In addition to arguing that it should
be allowed to Palicz and Weber, BNSF maintains that Wooten should be
compelled to produce his cell phone for inspection by BNSF.
As discussed at the motion hearing on May 21, 2018, BNSF’s motion to
compel the forensic examination of Wooten’s cell phone is denied. But because
BNSF has established good cause, the Court will allow BNSF to depose Palicz and
Weber. The depositions okshall each be limited to no more than two hours in
length, and must be taken or before June 1, 2018.
For the reasons set forth above,
IT IS RECOMMENDED that:
(1) The parties’ Cross-Motion for Partial Summary Judgment on Plaintiff’s
FRSA claim (docs. 99 &105) be DENIED.
(2) BNSF’s Motion for Summary Judgment on Plaintiff’s LIA claim (doc.
102) be DENIED.
The parties are advised that pursuant to 28 U.S.C. § 636, any objections to
these findings and recommendation must be filed on or before June 4, 2018. See
United States v. Barney, 568 F.2d 134, 136 (9th Cir. 1978) (the court need not give
the parties the full statutory period set forth in 28 U.S.C. § 636(b)(1) within which
to file objections).
IT IS ORDERED that:
(1) Plaintiff’s Motion for Discovery Sanctions based on the spoliation of
evidence (doc. 115) is DENIED, except to the extent that Plaintiff may introduce
evidence at trial surrounding the alleged spoliation of locomotive videos. And if
BNSF has the SD card for the camera used by Ahern, it must produce that SD card
by June 1, 2018.
(2) BNSF’s Supplemental Motion for Protective Order and Sanctions (doc.
153) is GRANTED to the extent that Wooten is prohibited from introducing the
Hart documents at trial or otherwise using them in this litigation. BNSF’s motion is
DENIED in all other respects.
(3) BNSF’s Motion for Protective Order Regarding the Deposition of
Litigation Paralegal Linda Harvey (doc. 162) is DENIED, but the deposition shall
not exceed two hours in length, and must be taken on or before June 1, 2018.
(4) Plaintiff’s Motion for Protective Order Precluding the Depositions of
Greg Smith, Nick Palicz, and Rusty Weber (doc. 181) is GRANTED as to Smith,
but DENIED as to Palicz and Weber. The depositions of Palicz and Weber shall
each be limited to no more than two hours in length, and must be taken on or
before June 1, 2018. BNSF’s motion to compel the forensic examination of
Wooten’s cell phone is denied.
DATED this 29th day of May, 2018.
Jeremiah C. Lynch
United States Magistrate Judge
Disclaimer: Justia Dockets & Filings provides public litigation records from the federal appellate and district courts. These filings and docket sheets should not be considered findings of fact or liability, nor do they necessarily reflect the view of Justia.
Why Is My Information Online?