Union Pacific Railroad Company v. Beemac Trucking, LLC et al

Filing 134

ORDER granting in part 96 Motion to Compel. By or before December 5, Plaintiff shall produce the documents identified as item Nos. 6, 7, 8, 15, 19, 20, 22, 23, 35, 36, 39, 40 and 93 on its privilege log. Landstar's motion is denied in all other respects. Beemac's 99 Motion to Compel is granted. Plaintiff shall produce the complete, unredacted file of Billy Barefield by or before December 5, 2012. Ordered by Magistrate Judge F.A. Gossett. (ADB)

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF NEBRASKA
UNION PACIFIC RAILROAD
COMPANY,
Plaintiff,
V.
BEEMAC TRUCKING, LLC,
LANDSTAR RANGER, INC., and
EDWARD SAMUEL EDLING,
Defendants.

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8:11CV8

ORDER

On or about January 13, 2010, a collision occurred between Plaintiff Union Pacific
Railroad Company’s (“Plaintiff”) locomotive and a grapple truck. Defendants Beemac
Trucking, LLC (“Beemac”) and Landstar Ranger, Inc. (“Landstar”) (collectively referred to
herein as “Defendants”) were the motor carriers engaged to transport the grapple truck to
Plaintiff’s rail yard.
Following the collision, Plaintiff performed two investigations. A civil investigation
was conducted by Adolfo Aguilar (“Aguilar”), a member of Plaintiff’s claims department.
A criminal investigation was performed by Special Agent Billy Barefield (“Barefield”), a
member of Plaintiff’s police department.1 At the time of the accident, Barefield was a law
enforcement officer commissioned by the State of Louisiana with full policing authority.
Barefield’s investigation centered on whether any crimes were perpetrated in relation to the
incident with the grapple truck. During his investigation, Barefield communicated with the
Caldwell Parish Sheriff’s Office and the Caldwell Parish District Attorney to update the
authorities as to whether he had discovered any evidence of criminal activity. No criminal
prosecution was ever undertaken in relation to the accident.

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Plaintiff is a Class I Railroad with its own police department to protect property owned by
Plaintiff and to investigate criminal activity in railroad-related matters.

On or about June 27, 2011, December 14, 2011 and August 6, 2012, Landstar served
Requests for Production of Documents upon Plaintiff. Plaintiff responded to such requests
by producing responsive documents and by providing a privilege log claiming privilege on
other items which were not produced.

These withheld items generally include:

(1)

documents and/or correspondence relating to and/or involving Barefield; (2) documents
and/or correspondence involving third-parties, ARI Fleet Management Services (“ARI”) and
HUB Enterprises, Inc. (“HUB”); and (3) documents and/or correspondence relating to one
of Plaintiff’s experts, William Messerschmidt (“Messerschmidt”). These documents are
identified on Plaintiff’s privilege log as item Nos. 6, 7, 8, 15, 19, 20, 22, 23, 27, 28, 32, 35,
36, 39, 40, 43, 46, 49, 56, 58, 60, 62, 64, 65, 66, 71, 72, 74, 78, 79, 81, 82, 84, 85 and 93.
On August 16, 2011, Beemac served its Request for Production of Documents upon
Plaintiff. Beemac’s Request No. 1 asks for Barefield’s complete investigative file. In
response to Request No. 1, Plaintiff objected, asserting that the investigation performed by
Barefield was done in anticipation of litigation at the direction of Plaintiff’s counsel and that
Barefield’s investigative file was protected from disclosure by the attorney-client privilege
and/or the work product doctrine.
The parties entered into a Confidentiality Agreement on December 1, 2011. Beemac
believed that the Confidentiality Agreement would result in the production of Barefield’s
complete, unredacted investigative file. Plaintiff produced the investigative file on February
16, 2012, however, redactions were made on multiple pages.
Landstar and Beemac filed respective motions to compel production of the withheld
documents. (Filings 96 & 99.) On November 14, 2012, the Court ordered an in camera
inspection of these documents. (Filing 129.) Having reviewed the materials, the Court will
grant Beemac’s motion to compel (filing 99) and will grant Landstar’s motion to compel
(filing 96), in part.

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ANALYSIS
I.

Correspondence involving Barefield and Barefield’s Investigative File
Plaintiff contends that the correspondence involving Barefield, as well as Barefield’s

investigative file, are protected from disclosure by the attorney-client privilege and work
product doctrine. The attorney-client privilege shields from disclosure confidential
communications made for the purpose of facilitating the rendition of legal services. Neb.
Rev. Stat. § 27-503. The work product doctrine, which is broader than the attorney-client
privilege, shields from disclosure documents prepared in anticipation of litigation by or for
another party or its representative, including the party’s consultants, insurers and agents.
Fed. R. Civ. P. 26. The test for determining whether a document was prepared in anticipation
of litigation is whether, “in light of the nature of the document and the factual situation in the
particular case, the document can fairly be said to have been prepared or obtained because
of the prospect of litigation.” Simon v. G.D. Searle & Co., 816 F.2d 397, 401 (8th Cir. 1987)
(quotation and citation omitted).
Defendants argue that Plaintiff’s objections to the production of the materials
involving Barefield should be overruled because Barefield’s investigation was initiated and
conducted in the course of the normal business operations of Plaintiff’s police department.
Defendants also maintain that documents related to Barefield are discoverable because, in
conducting his criminal investigation, Barefield was acting in the capacity as a law
enforcement officer commissioned by the State of Louisiana, not merely as a corporate
employee.
Having examined the materials in question, and having considered the facts presented
in this case, it is clear to the Court that the documents relate to a criminal investigation
conducted by a police officer, not a civil investigation undertaken by a corporate employee.
There is no indication that Barefield was preparing his file or pursuing his investigation in
anticipation of future civil litigation or that communications were made for purposes of
facilitating the rendition of legal services.

Rather, it is apparent that the purpose of

Barefield’s investigation was to investigate possible criminal activity with the goal of

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pursuing criminal charges. Therefore, Plaintiff will be ordered to produce Barefield’s
complete, unredacted investigative file, as well as item Nos. 6, 7, 8, 15, 19, 20, 22, 23, 35,
36, 39, 40 and 93 as identified on Plaintiff’s privilege log.
II.

Communications with HUB and ARI
Landstar maintains that Plaintiff has failed to show that the communications with

HUB and ARI are protected because Plaintiff has not demonstrated that the purpose of the
communications was to provide legal services. In its brief, Plaintiff explains that it employed
HUB for purposes of performing independent investigations to evaluate Plaintiff’s possible
civil claim related to the grapple truck incident. Plaintiff asserts that ARI is under contract
with Plaintiff to manage and maintain Plaintiff’s trucks and that ARI was contacted to obtain
information to evaluate Plaintiff’s possible claim against Defendants in anticipation of
litigation. A review of the documents has revealed that Plaintiff’s representations with
respect to its relationship with these third-parties and the nature of the communication is
accurate. Landstar’s motion to compel is denied with respect to items Nos. 27, 28, 32, 43,
46, 49, 56, 58, 60, 62, 64, 65, 66, 74, 78, 79, 81, 82, 84 and 85.
III.

Communications with Expert Witness William Messerschmidt
Landstar requests that Plaintiff produce communications with Plaintiff’s expert,

William Messerchmidt, that (1) relate to compensation for the expert’s study or testimony;
(2) identify facts or data that your attorney provided and that the expert considered in forming
the opinions to be expressed; or (3) identify assumptions that your attorney provided and that
the expert relied on in forming the opinions to be expressed. Landstar represents that it seeks
nothing more than communications that relate to the exceptions set forth in Fed. R. Civ. P.
26(b)(4)(c). Plaintiff contends that all documents responsive to Landstar’s request have been
provided and that the communications with Messerschmidt identified on Plaintiff’s privilege
log as item Nos. 71 and 72 are not subject to discovery. Following a review of the documents
at issue, the Court agrees that item Nos. 71 and 72 are neither discoverable nor responsive
to Landstar’s discovery request.

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Accordingly,
IT IS ORDERED:
1.

Landstar’s motion to compel (filing 96) is granted, in part. By or before
December 5, Plaintiff shall produce the documents identified as item Nos. 6,
7, 8, 15, 19, 20, 22, 23, 35, 36, 39, 40 and 93 on its privilege log. Landstar’s
motion is denied in all other respects.

2.

Beemac’s motion to compel (filing 99) is granted. Plaintiff shall produce the
complete, unredacted file of Billy Barefield by or before December 5, 2012.

DATED November 28, 2012.
BY THE COURT:
S/ F.A. Gossett
United States Magistrate Judge

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