BNSF Railway Company et al v. The Center for Asbestos Related Disease, Inc.

Filing 135

ORDER granting 133 Motion to Compel. Signed by Judge Dana L. Christensen on 2/14/2023. (ASG)

Case 9:19-cv-00040-DLC Document 135 Filed 02/14/23 Page 1 of 3

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF MONTANA
MISSOULA DIVISION
BNSF RAILWAY COMPANY,
on behalf of THE UNITED STATES
OF AMERICA,

CV 19–40–M–DLC

Plaintiff,

ORDER

vs.
THE CENTER FOR ASBESTOS
RELATED DISEASE, INC.,
Defendant.
Before the Court is the Parties’ Joint Motion to Compel Discovery. (Doc.
133.) The Parties seek to compel the Social Security Administration (“SSA”) and
the Agency for Toxic Substance and Disease Registry (“ATSDR”) to provide
testimony for trial in this matter pursuant to Rules 45 and 30(b)(6) of the Federal
Rules of Civil Procedure. (Id. at 1; see also Docs. 134-2 at 1, 134-3 at 1.)
Defendant CARD has previously sent Touhy requests to the SSA and
ATSDR. 1 (Doc. 134 at 2.) The SSA denied all requests. (Id.) The ATSDR
provided a declaration from employee Theodore Larson (Doc. 121-3) but has
failed to respond to subsequent Touhy requests. (Doc. 134 at 2.) The Parties now

A Touhy request seeks official information for litigation purposes, including witnesses and documents, when the
Government is not a party to the litigation. See United States ex rel. Touhy v. Ragen, 340 U.S. 462, 468 (1951).

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Case 9:19-cv-00040-DLC Document 135 Filed 02/14/23 Page 2 of 3

request that this Court compel the SSA and ATSDR to provide testimony for trial
in this matter on the basis that the “information sought is important to the
litigation, there is not a more convenient source to obtain the information, the
litigation itself is significant, and the SSA and ATSDR can provide the information
without an undue burden.” (Id. at 2–3.)
Where parties seek to compel non-party federal government employees to
appear at trial or at a deposition, the Court must “balance the government’s
concerns [that its employee resources not be commandeered into service by private
litigants to the detriment of the smooth functioning of government operations]
under the general rules of discovery.” Exxon Shipping Co. v. Dep’t of Interior, 34
F.3d 774, 779 (9th Cir. 1994). In making this determination, the Court should
consider whether the subpoenas pose an “undue burden,” whether a “substantial
need” has been demonstrated, and whether the subpoenas seek privileged
information. See id.; see also FED R. CIV. P. 26(b), (c), and 45(c)(3).
The Court finds that there is a substantial need for the requested testimony
because it is necessary to resolve genuine issues of material fact in this case,
including “[w]hether CARD submitted false or fraudulent information with
scienter, what the SSA and ATSDR knew or did not know, and whether any false
or fraudulent claims were material.” (Doc. 131 at 5–6, 8.) The SSA and ATSDR
are the only available sources of this information and thus far have not adequately
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Case 9:19-cv-00040-DLC Document 135 Filed 02/14/23 Page 3 of 3

responded to requests for information. To mitigate any burden on the agencies, the
“parties are willing to go to the designated deponents’ locations and obtain trial
testimony so that the deponents do not have to make themselves available for trial
in person in June or travel beyond the 100-mile distance proscribed by FRCP
45(c).” (Doc. 134 at 4.) The subpoenas have been served on the agencies and
delineate the specific information and areas of inquiry that the Parties seek. (See
Docs. 134-2, 134-3.)
Accordingly, IT IS ORDERED that the motion (Doc. 133) is GRANTED in
full.
IT IS FURTHER ORDERED that that the SSA and ATSDR shall each
designate deponents to sit for deposition to perpetuate trial testimony in this matter.
DATED this 14th day of February, 2023.

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