Madden v. Antonov et al

Filing 193

MEMORANDUM AND ORDER that Madden's objection 174 is sustained in part and overruled in part, as set forth in this order. The Magistrate Judge's Memorandum and Order 167 is modified as follows: a. In addition to the documents which BNSF was previously ordered by the Magistrate Judge to produce, BNSF shall produce the following bates-stamped pages of the documents identified in pages 1 through 15 of its privilege log: BNSFCXF0003334and BNSFCXF000167. b. The following documents must also be produced, albeit in a redacted form: BNSFCXF0001516, BNSFCXF0002831, and BNSFCXF00038. The Court has attached redacted versions of these documents to this Memorandum and Order. Ordered by Judge John M. Gerrard. (JSF)

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF NEBRASKA
RONALD D. MADDEN,
Plaintiff,

4:12-CV-3090

vs.
MEMORANDUM AND ORDER
ANTON ANTONOV, et al.,
Defendants.
This matter is before the Court on plaintiff Ronald D. Madden's
objection (filing 174) to the Magistrate Judge's Memorandum and Order of
August 31, 2014 (filing 167) denying in part and granting in part Madden's
motion to compel discovery (filing 118) and denying in part and granting in
party defendant BNSF Railway Company's motion for a protective order
(filing 126).
Pursuant to NECivR 72.2 and 28 U.S.C. § 636(b)(1)(A), the Court has
reviewed the record and finds that the Magistrate Judge’s order was—with
some minor exceptions—neither clearly erroneous nor contrary to law. So,
with those exceptions, the Court will adopt the Magistrate Judge's order and
overrule Madden's objection.
ANALYSIS
The relevant facts are set forth in the Magistrate Judge's order (filing
167), and this Court will provide only a brief summary. Madden seeks an
order compelling BNSF to produce a number of documents for discovery.
BNSF has resisted disclosing certain documents, citing, among other
reasons,1 the privilege set forth in 23 U.S.C. § 409. BNSF has prepared a
privilege log listing the documents it refuses to turn over to Madden, and
provided the documents to the Magistrate Judge for in camera review. Filing
120-3; filing 140.

BNSF has asserted other reasons for withholding many of these documents, such as
relevance and subsequent remedial measures objections. But the primary focus of the
parties' arguments before the Magistrate Judge, and before this Court, has been the
privilege provided by § 409. See filing 167 at 9–10.
1

BNSF also provided an affidavit from Andy Amparan, who works for
BNSF as a public projects manager. Amparan was directly involved in the
communications and correspondence contained in the privilege log and
maintained these documents as part of his work for BNSF. See filing 128-2.
Amparan averred that the privilege log consists of correspondence that was
created while working with State and local agencies in
identifying, evaluating[,] and planning the safety enhancement of
the crossing in connection with the construction of the grain
elevator by The Andersons . . . . BNSF, along with the Nebraska
Department of Roads and The Andersons, evaluated the crossing
to make safety improvements to the crossing by utilizing Federalaid highway funds to improve the crossing or to close the
crossing.
Filing 128-2 at ¶ 2.
The Magistrate Judge found that the majority of the documents fell
within the scope of the privilege granted by § 409 and were therefore not
subject to discovery. This finding was based Amparan's affidavit and upon
the contents of the documents themselves.
Madden objects to this finding. His objection is essentially a rehashing
of his arguments that were before the Magistrate Judge. But this Court finds
that the Magistrate Judge applied the correct legal framework. And based
upon Amparan's affidavit and on its own review of the documents, this Court
also finds that the majority of the documents fall within § 409.
The Magistrate Judge also found that some documents, which "merely
reflect[ed] scheduled meetings and the name of meeting attendees or
invitees" did not fall within § 409.2 See filing 167 at 13. The Court likewise
finds that the documents listed by the Magistrate Judge do not fall within §
409. However, based on similar reasoning, the Court finds that a handful of
additional documents also qualify for disclosure. These consist of the
documents bates-stamped BNSFCXF00015–16 (as redacted by the Court),
BNSFCXF00028–31 (as redacted by the Court), BNSFCXF00033–34,
BNSFCXF00038 (as redacted by the Court), and BNSFCXF000167. This does
not include any attachments associated with these documents.
Some of these documents merely reflect meetings that were set to
occur. See BNSFCXF000167. Some discuss the general development of the
grain elevator and associated infrastructure, and merely detail BNSF's
business plans for the area, rather than anything related to safety.
2

BNSF has not objected to this finding.

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BNSFCXF00015–16, 38. Based on their contents, they do not appear to have
been created (i.e., "compiled") for a § 409 purpose.
One final category of documents warrants further discussion. This
category consists of several emails discussing safety improvements. See
BNSFCXF00028–31, BNSFCXF00033–34. These emails discuss the process
of obtaining a waiver from the State of Nebraska for a "side clearance" issue.
In other words, the emails appear to be discussing safety issues related to the
railway itself, or to its interaction with the grain elevator or its associated
infrastructure or equipment. But the emails do not appear to address safety
improvements to the crossing or the highway.
As such, the emails do not qualify as documents compiled or collected
for the purpose of identifying, evaluating, or planning the safety
enhancement of potential accident sites or railway-highway crossings
pursuant to 23 U.S.C. § 130. See 23 U.S.C. § 409. Nor is it clear how they
relate to the development of any highway safety construction improvement
project which may be implemented using Federal-aid highway funds. 23
U.S.C. § 409. Nothing about the contents of these documents shows that they
were compiled for a § 409 purpose. And Amparan has not averred that any
documents were collected for a § 409 purpose. It may be that these documents
were, in fact, compiled or created for purposes eligible for protection under §
409. But in this limited regard, BNSF has not met its burden of proving that
the privilege applies.3 Accordingly,
IT IS ORDERED:
1.

Madden's objection (filing 174) is sustained in part and
overruled in part, as set forth above.

2.

The Magistrate Judge's Memorandum and Order (filing
167) is modified as follows:
a.

In addition to the documents which BNSF was
previously ordered by the Magistrate Judge to
produce, BNSF shall produce the following batesstamped pages of the documents identified in pages 1

BNSF has also objected on relevance and subsequent remedial measures grounds. But
BNSF has not fleshed out these objections. Both objections might yet provide valid grounds
for keeping these documents from being admitted into evidence. But, at this time, neither of
these objections will protect the documents from discovery.
3

-3-

through 15 of its privilege log: BNSFCXF00033–34
and BNSFCXF000167.
b.

The following documents must also be produced,
albeit in a redacted form: BNSFCXF00015–16,
BNSFCXF00028–31, and BNSFCXF00038. The
Court has attached redacted versions of these
documents to this Memorandum and Order.

Dated this 4th day of November, 2014.
BY THE COURT:

John M. Gerrard
United States District Judge

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