Logsdon v. BNSF Railway Company et al

Filing 111

ORDER granting in part and denying in part 82 Motion to Compel; granting in part and denying in part 94 SEALED MOTION. Ordered by Magistrate Judge Cheryl R. Zwart. (Zwart, Cheryl)

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF NEBRASKA
STEVEN C. LOGSDON,
Plaintiff,

8:15CV232

vs.
MEMORANDUM AND ORDER
BNSF RAILWAY COMPANY, a
corporation;
Defendant.
Plaintiff has moved to compel production of the training materials used to educate
and train BNSF management official Andrew Callahan. (Filing No. 82). Plaintiff’s
complaint includes: 1) a FELA claim for damages arising from a personal injury
allegedly caused by BNSF's negligence or regulatory violations, (Filing No. 1, at
CM/ECF pp. 2-5); a FRSA claim against BNSF which alleges Plaintiff was terminated
for engaging in protected activity, i.e., reporting a work-related personal injury to the
railroad, (Filing No. 1, at CM/ECF pp. 5-10); and a FRSA claim against Callahan for
allegedly intimidating and prohibiting the plaintiff from truthfully reporting his workrelated injury, (Filing No. 1, at CM/ECF pp. 7, 11). The complaint does not allege an
employment discrimination claim.

During his deposition, Callahan testified about the classroom and online training
he received through BNSF’s Human Resources Department regarding OSHA
“whistleblower” laws. (Filing No. 91-2, at CM/ECF p. 6-12 at 43:22–47:4, 71:4–73:12).
As a follow up to this deposition testimony, Plaintiff requested those training materials as
follows:

REQUEST FOR PRODUCTION NO. 43: Produce a copy of the actual
training materials/training module used in 2012 and 2013 for the
Mechanical Supervisors Certification as testified to by Andrew Callahan
during his deposition on December 8, 2015.

REQUEST FOR PRODUCTION NO. 44: Produce a copy of the actual
training materials/training module used in 2012 and 2013 for the EEO
training as testified to by Andrew Callahan during his deposition on
December 8, 2015.
REQUEST FOR PRODUCTION NO. 45: Produce a copy of the actual
training materials/training module used in Gillette, Wyoming to train
certain BNSF employees, including Andrew Callahan on the FRSA/OSHA
whistleblower laws as testified to by Andrew Callahan during his
deposition on December 8, 2015.
REQUEST FOR PRODUCTION NO. 46: For the years 2012 and 2013
produce a copy of the actual training materials/training module in the webbased Supervisor’s Code of Conduct training dealing with the
FRSA/OSHA whistleblower laws as testified to by Andrew Callahan
during his deposition on December 8, 2015.
(Filing No. 86-2). The requested training materials were created by BNSF’s in-house
counsel, or at its direction, or with its final review and approval; the requested materials
were used for training only BNSF supervisory personnel; and the documents were not
released as handouts, distributed outside the classroom, or posted online for later
download and review. (Filing No. 91-3).

The railroad objects to producing the requested documents, asserting they are
protected by the attorney-client privilege.

The railroad further claims the training

Callahan received through BNSF’s in-house counsel is not relevant to any element of
plaintiff’s § 20109 claim against BNSF, (Filing No. 90, at CM/ECF p. 6). And as to both
Defendants, BNSF claims EEO training materials are irrelevant because Plaintiff does not
allege he faced retaliation or was terminated for being a member of a protected status or
class, such as race, religion, gender, or national origin. (Filing No. 90, at CM/ECF p. 7).

2

Plaintiff’s Request No. 44 demands production of the 2012 and 2013 training
materials used in providing EEO training to Callahan.

This request no doubt

encompasses documents that have nothing to do with the employment issues raised in
Plaintiff’s complaint; e.g., race or gender discrimination, sexual harassment, etc. Having
already conferred with counsel to assist in resolving their discovery disputes, the court
will not re-craft or -draft Plaintiff’s discovery requests to narrow the scope. Instead,
BNSF’s objection to Production Request No. 44 will be sustained.

Requests 43, 45, and 46 are tailored to the issues of this case. The railroad objects
to production, claiming the responsive documents are not discoverable under the
attorney-client privilege.

The purpose of the attorney-client privilege is to encourage full and frank
communication between attorneys and their clients by assuring clients that their
disclosures will be held in confidence. Upjohn Co. v. United States, 449 U.S. 383, 389
(1981). As such, the attorney-client privilege is inapplicable when communications with
counsel were not made for the purpose of securing or providing legal advice. Diversified
Indus., Inc., 572 F.2d 596, 609 (8th Cir. 1977) (en banc). “[T]he party invoking the
privilege must show the communication is for the purpose of securing primarily either (1)
an opinion on law; or (2) legal services; or (3) assistance in some legal proceeding.”
Nat'l Sec. Counselors v. Cent. Intelligence Agency, 2016 WL 4621060, at *30 (D.D.C.
Sept. 6, 2016) (applying federal privilege law).

“[A]pplication of the privilege should ordinarily be limited to legal advice leading
to a decision by the client.” In re Domestic Drywall Antitrust Litig., 2014 WL 5090032,
at *3–4 (E.D. Pa. 2014). General policy statements and instructional guides, the purpose
of which is to notify employees of legal requirements, is not specific legal advice. “No
court has yet held that a corporate policy of lawfulness is protected from discovery as

3

privileged.” Id. See also, Stevens v. Corelogic, Inc, 2016 WL 397936, at *6 (S.D. Cal.
Feb. 2, 2016). Where, as in this case, the communication is from counsel to client, the
privilege applies to only those communications by the lawyer which “reveal, directly or
indirectly, the substance of a confidential communication by the client.” Am. Standard
Inc. v. Pfizer Inc., 828 F.2d 734, 745 (Fed. Cir. 1987). Documents which merely explain
an area of law fall outside the privilege: A summary of applicable law, by itself, neither
reveals nor threatens to expose any client confidential communications. Id.

Based on the information before the court, Requests 43, 45, and 46 request
BNSF’s training and instructional materials on the state of OSHA whistleblower law.
Even if prepared by in-house counsel, these materials do not provide specific legal advice
and disclosure will not reveal confidential client communications. The railroad’s
privilege objection to Requests 43, 45, and 46 will be denied.

The railroad has also produced a privilege log and documents for the court’s in
camera review. (Filing No. 94). The court has completed that review, and its rulings on
disclosure are set forth in the attached table.

Accordingly,

IT IS ORDERED:

1)

Plaintiff’s motion to compel, (Filing No. 82), is denied as to Request No.

44, and granted as to Requests 43, 45, and 46. On or before October 26, 2016, the
railroad shall produce the documents responsive to Requests 43, 45, and 46.

2)

The railroad’s objections to production of documents described in its

privilege log, (Filing No. 94), is granted in part and denied in part as set forth in the

4

attached. On or before October 26, 2016, the railroad shall produce the documents for
which its privilege claims as stated in the privilege log were denied.

October 12, 2016.
BY THE COURT:
s/ Cheryl R. Zwart
United States Magistrate Judge

*This opinion may contain hyperlinks to other documents or Web sites. The U.S. District Court for the District of
Nebraska does not endorse, recommend, approve, or guarantee any third parties or the services or products they
provide on their Web sites. Likewise, the court has no agreements with any of these third parties or their Web sites.
The court accepts no responsibility for the availability or functionality of any hyperlink. Thus, the fact that a
hyperlink ceases to work or directs the user to some other site does not affect the opinion of the court.

5

BNSF RAILWAY COMPANY’S PRIVILEGE LOG
Steven C. Logsdon v. BNSF Railway Company; U.S. District Court for the District of Nebraska; Case No. 8:15 CV 00232

Date
Description/Content Prepared
1. BNSF Personal
Injury Report Form
F6180.98 (3 pages)

1/16/13

2. Email chain re:
reportability of
Logsdon injury DOI
1/16/13, 1 page.

7/1011/13

3. Email chain re:
Logsdon
Investigation, 2
pages

1

10/30/13

Author(s)

Addressee(s)

Privilege

Basis
Privileged report
protected from
discovery pursuant to
49 U.S.C. § 20903,
49 C.F.R. § 225.7(b)
and the self-critical
analysis doctrine.
Prepared in
anticipation of
litigation and at the
direction of legal
counsel.

Supervisor
Notified: A.
Callahan,
General
Foreman

FRA

49 U.S.C.
§ 20903 and 49
C.F.R.
§ 225.7(b)

M. Shea,
General Claims
Manager
Quality
Assurance; J.
McCroskey,
Senior Claims
Representative
M. Dimmitt,
Claims
Representative;
A. Callahan,
General
Foreman; L.
Morse,
Mechanical
Specialist

J. McCroskey, Senior
Claims Representative;
M. Dimmitt, Claims
Representative; G.
Lauffer, General
Claims Manager; P.
Newell, General
Claims Director
M. Dimmitt, Claims
Representative; A.
Callahan, General
Foreman; L. Morse,
Mechanical Specialist

Attorney Work
Product
Doctrine;
FRCP 26(b)(3)

Attorney Work
Product
Doctrine;
FRCP 26(b)(3)

Possession

Court
Ruling

BNSF’s
Counsel

Moot: Resolved by the parties. 1

BNSF’s
Counsel

Work product objection sustained.
This document is a communication
by the BNSF claims department
during and in furtherance of its
investigation of Logsdon's
personal injury report, claim, and
anticipated litigation.

The emails were
BNSF’s
prepared in
Counsel
anticipation of
litigation and at the
direction of legal
counsel. The attached
Formal Investigation
Transcript and
Exhibits were
produced in discovery
responses.

Work product objection sustained.
This email exchange discloses the
documentation the BNSF claims
department focused on and
gathered in preparation for
reviewing and investigating
Logsdon's personal injury report,
claim, and anticipated litigation.

See Filing No. 103, at CM/ECF p. 1.
Page 1 of 18

BNSF RAILWAY COMPANY’S PRIVILEGE LOG
Steven C. Logsdon v. BNSF Railway Company; U.S. District Court for the District of Nebraska; Case No. 8:15 CV 00232

Date
Description/Content Prepared

Author(s)

Addressee(s)

Basis
Prepared in
anticipation of
litigation and at the
direction of legal
counsel. The attached
transcript of Plaintiff’s
statement was
produced in discovery
responses.
Prepared in
anticipation of
litigation and at the
direction of legal
counsel.

BNSF’s
Counsel

Work product objection sustained.
This email cites the portion of a
document the BNSF claims
department believed was relevant
to its evaluation investigation of
Logsdon's personal injury report,
claim, and anticipated litigation.

BNSF’s
Counsel

Work product objection sustained.
This email cites the portion of a
document the BNSF claims
department believed was relevant
to its evaluation investigation of
Logsdon's personal injury report,
claim, and anticipated litigation.

Prepared in
anticipation of
litigation and at the
direction of legal
counsel.

BNSF’s
Counsel

Moot: Resolved by the parties.
See footnote 1.

4. Email re: Logsdon’s
Statement to Claims,
1 page

7/11/13

M. Dimmitt,
Claims
Representative

T. Garrett, Manager
Safety; J. McCroskey,
Senior Claims
Representative

Attorney Work
Product
Doctrine;
FRCP 26(b)(3)

5. Email re: reportability
of Logsdon injury
DOI 1/16/13, 1 page.

7/10/13

M. Shea,
General Claims
Manager
Quality
Assurance

Attorney Work
Product
Doctrine;
FRCP 26(b)(3)

6. Claims Department
notes re: Medical
and Employment
Chronology, 1 page

Undated

BNSF Claims
Department

J. McCroskey, Senior
Claims Representative;
M. Dimmitt, Claims
Representative; G.
Lauffer, General
Claims Manager; P.
Newell, General
Claims Director
For the file,
investigating claims
representatives, and
legal counsel.

Attorney Work
Product
Doctrine;
FRCP 26(b)(3)

Possession

Court
Ruling

Privilege

Page 2 of 18

BNSF RAILWAY COMPANY’S PRIVILEGE LOG
Steven C. Logsdon v. BNSF Railway Company; U.S. District Court for the District of Nebraska; Case No. 8:15 CV 00232

Date
Description/Content Prepared

Author(s)

Addressee(s)

Privilege

Basis

Possession

Court
Ruling

7. Claims Department
notes re: Medical
and Employment
Chronology, 1 page

Undated

BNSF Claims
Department

For the file,
investigating claims
representatives, and
legal counsel.

Attorney Work
Product
Doctrine;
FRCP 26(b)(3)

Prepared in
anticipation of
litigation and at the
direction of legal
counsel.

BNSF’s
Counsel

Moot: Resolved by the parties.
See footnote 1.

8. Claims Department
notes re: Medical
and Employment
Chronology, 2 pages

Undated

BNSF Claims
Department

For the file,
investigating claims
representatives, and
legal counsel.

Attorney Work
Product
Doctrine;
FRCP 26(b)(3)

BNSF’s
Counsel

Moot: Resolved by the parties.
See footnote 1.

9. Claims Department
memo re: Logsdon
Injury Investigation
and Telephone
Conversation with A.
Callahan, 1 page
10 Claims File Review
of Logsdon Injury
Investigation, 2
pages

5/24/13

J. McCroskey,
Senior Claims
Representative

For the file,
investigating claims
representatives, and
legal counsel.

Attorney Work
Product
Doctrine;
FRCP 26(b)(3)

Prepared in
anticipation of
litigation and at the
direction of legal
counsel.
Prepared in
anticipation of
litigation and at the
direction of legal
counsel.

BNSF’s
Counsel

10/30/13

M. Shea,
General Claims
Manager
Quality
Assurance

For the file,
investigating claims
representatives, and
legal counsel.

Attorney Work
Product
Doctrine;
FRCP 26(b)(3)

Prepared in
anticipation of
litigation and at the
direction of legal
counsel.

BNSF’s
Counsel

Work product objection sustained.
This document include the notes
of a statement obtained by a
BNSF Claims representative
during his investigation of
Logsdon's personal injury report.
Moot: Resolved by the parties.
See footnote 1.

Page 3 of 18

BNSF RAILWAY COMPANY’S PRIVILEGE LOG
Steven C. Logsdon v. BNSF Railway Company; U.S. District Court for the District of Nebraska; Case No. 8:15 CV 00232

Date
Description/Content Prepared
11 Email
correspondence re:
Logsdon Injury
Investigation and
Results of Formal
Investigation, 2
pages
12 Supervisor’s Report
of BNSF Employee
Injury/Illness

10/30/13

13 Email chain re:
Logsdon’s Formal
Investigation and
Discipline

Author(s)

Addressee(s)

Privilege

Basis

Possession

Court
Ruling

M. Dimmitt,
A. Callahan, General
Claims
Foreman; L. Morse,
Representative; Mechanical Specialist
A. Callahan,
General
Foreman

Attorney Work
Product
Doctrine;
FRCP 26(b)(3)

Prepared in
anticipation of
litigation and at the
direction of legal
counsel.

BNSF’s
Counsel

Work product objection sustained.
This email reflects BNSF Claims
representatives’ impression and
the information requested in
preparation for anticipated
litigation by Logsdon.

1/16/13

A. Callahan,
General
Foreman

Safety Incident
Reporting / FRA

49 U.S.C.
§ 20903 and 49
C.F.R.
§ 225.7(b)

BNSF’s
Counsel

Moot: Resolved by the parties.
See footnote 1.

7/29/138/20/13

D. Freshour,
Regional
Director Human
Resources; L.
Esquivel,
Superintendent
Field
Operations; B.
Mabry,
AVP/CMO
North,
Mechanical; D.
Cargill, Asst.
Manager Labor
Relations

L. Esquivel,
Superintendent Field
Operations; D.
Freshour, Regional
Director Human
Resources; A. Hyatt,
General Attorney; B.
Mabry, AVP/CMO
North, Mechanical; D.
Cargill, BNSF Asst.
Manager Labor
Relations; J.
Willingham, Attorney II

Attorney Work
Product
Doctrine;
FRCP 26(b)(3)
Attorney-Client
Privilege

Privileged report
protected from
discovery pursuant to
49 U.S.C. § 20903,
49 C.F.R. § 225.7(b)
and the self-critical
analysis doctrine.
Prepared in
anticipation of
litigation and at the
direction of legal
counsel; confidential
communication
between attorney and
client.

BNSF’s
Counsel

Attorney-client and work product
objections sustained. This email
string, initiated after Logsdon
stated he intended to seek legal
counsel if he was dismissed,
includes communications seeking
legal advice and direction on how
to comply with federal law during
the investigation and handling
Logsdon’s claim of intimidation by
Andrew Callahan. This email
string, forwarded to BNSF inhouse counsel A. Hyatt and J.
Willingham, outlines the client’s
reasons and request for seeking
legal advice from in-house
Page 4 of 18

BNSF RAILWAY COMPANY’S PRIVILEGE LOG
Steven C. Logsdon v. BNSF Railway Company; U.S. District Court for the District of Nebraska; Case No. 8:15 CV 00232

Date
Description/Content Prepared

14 Email chain re:
Logsdon’s Formal
Investigation and
Discipline

7/29/138/15/13

Author(s)

D. Freshour,
Regional
Director Human
Resources; L.
Esquivel,
Superintendent
Field
Operations; B.
Mabry,
AVP/CMO
North,
Mechanical; D.
Cargill, Asst.
Manager Labor
Relations

Addressee(s)

L. Esquivel,
Superintendent Field
Operations; D.
Freshour, Regional
Director Human
Resources; A. Hyatt,
General Attorney; B.
Mabry, AVP/CMO
North, Mechanical; D.
Cargill, Asst. Manager
Labor Relations; J.
Willingham, Attorney II

Privilege

Attorney Work
Product
Doctrine;
FRCP 26(b)(3);
Attorney-Client
Privilege

Basis

Prepared in
anticipation of
litigation and at the
direction of legal
counsel; confidential
communication
between attorney and
client.

Possession

BNSF’s
Counsel

Court
Ruling
counsel, and the information
collected and deemed relevant by
the company in evaluating the
legal issues.
Attorney-client and work product
objections sustained. This email
string, initiated after Logsdon
stated he intended to seek legal
counsel if he was dismissed,
includes communications seeking
legal advice and direction on how
to comply with federal law during
the investigation and handling
Logsdon’s claim of intimidation by
Andrew Callahan. This email
string, forwarded to BNSF inhouse counsel A. Hyatt and J.
Willingham, outlines the client’s
reasons and request for seeking
legal advice from in-house
counsel, and the information
collected and deemed relevant by
the company in evaluating the
legal issues.

Page 5 of 18

BNSF RAILWAY COMPANY’S PRIVILEGE LOG
Steven C. Logsdon v. BNSF Railway Company; U.S. District Court for the District of Nebraska; Case No. 8:15 CV 00232

Date
Description/Content Prepared

Author(s)

Addressee(s)

Privilege

Basis

Possession

15 Email chain re:
Logsdon’s Formal
Investigation and
Discipline

7/29/138/14/13

D. Freshour,
Regional
Director Human
Resources; L.
Esquivel,
Superintendent
Field
Operations; B.
Mabry,
AVP/CMO
North,
Mechanical; A.
Hyatt, General
Attorney

L. Esquivel,
Superintendent Field
Operations; D.
Freshour, Regional
Director Human
Resources; A. Hyatt,
General Attorney; B.
Mabry, AVP/CMO
North, Mechanical; D.
Cargill, Asst. Manager
Labor Relations; J.
Willingham, Attorney II

Attorney Work
Product
Doctrine;
FRCP 26(b)(3);
Attorney-Client
Privilege

Prepared in
anticipation of
litigation and at the
direction of legal
counsel; confidential
communication
between attorney and
client.

BNSF’s
Counsel

16 Email chain re:
Logsdon’s Formal
Investigation and
Discipline

7/29/138/21/13

D. Freshour,
Regional
Director Human
Resources; L.
Esquivel,
Superintendent
Field
Operations; B.
Mabry,
AVP/CMO

L. Esquivel,
Superintendent Field
Operations; D.
Freshour, Regional
Director Human
Resources; A. Hyatt,
General Attorney; B.
Mabry, AVP/CMO
North, Mechanical; D.
Cargill, Asst. Manager

Attorney Work
Product
Doctrine;
FRCP 26(b)(3);
Attorney-Client
Privilege

Prepared in
anticipation of
litigation and at the
direction of legal
counsel; confidential
communication
between attorney and
client.

BNSF’s
Counsel

Court
Ruling
Attorney-client and work product
objections sustained. This email
string, initiated after Logsdon
stated he intended to seek legal
counsel if he was dismissed,
includes communications seeking
legal advice and direction on how
to comply with federal law during
the investigation and handling
Logsdon’s claim of intimidation by
Andrew Callahan. This email
string, forwarded to BNSF inhouse counsel A. Hyatt and J.
Willingham, outlines the client’s
reasons and request for seeking
legal advice from in-house
counsel, and the information
collected and deemed relevant by
the company in evaluating the
legal issues.
Attorney-client and work product
objections sustained. This email
string, initiated after Logsdon
stated he intended to seek legal
counsel if he was dismissed,
includes communications seeking
legal advice and direction on how
to comply with federal law during
the investigation and handling
Logsdon’s claim of intimidation by
Page 6 of 18

BNSF RAILWAY COMPANY’S PRIVILEGE LOG
Steven C. Logsdon v. BNSF Railway Company; U.S. District Court for the District of Nebraska; Case No. 8:15 CV 00232

Date
Description/Content Prepared

8/14/138/23/13

Addressee(s)

North,
Mechanical; D.
Cargill, Asst.
Manager Labor
Relations

17 Email chain re:
Logsdon’s Formal
Investigation and
Discipline

Author(s)

Labor Relations; J.
Willingham, Attorney II

J. Nelson, Asst.
General
Foreman Car;
D. Cargill, Asst.
Manager Labor
Relations

L. Esquivel,
Superintendent Field
Operations; M.
Voloshin-Kile, Manager
Human Resources; D.
Cargill, Asst. Manager
Labor Relations; J.
Nelson, Asst. General
Foreman Car; J.
Willingham, Attorney II;
B. Mabry, AVP/CMO
North, Mechanical; D.
Freshour, Regional
Director Human
Resources

Privilege

Attorney Work
Product
Doctrine;
FRCP 26(b)(3);
Attorney-Client
Privilege

Basis

Prepared in
anticipation of
litigation and at the
direction of legal
counsel; confidential
communication
between attorney and
client. The attached
Formal Investigation
Transcript was
produced in discovery
responses.

Possession

BNSF’s
Counsel

Court
Ruling
Andrew Callahan. This email
string, forwarded to BNSF inhouse counsel A. Hyatt and J.
Willingham, outlines the client’s
reasons and request for seeking
legal advice from in-house
counsel, and the information
collected and deemed relevant by
the company in evaluating the
legal issues.
Attorney-client and work product
objections sustained. This email
string includes the information
gathered and cited for evaluation,
along with the opinions of BNSF
management employees and inhouse counsel regarding whether
and how, under federal law,
Logsdon's allegations should be
investigated, the investigation
process, and the circumstances
under which a dismissal for
dishonesty is warranted.

Page 7 of 18

BNSF RAILWAY COMPANY’S PRIVILEGE LOG
Steven C. Logsdon v. BNSF Railway Company; U.S. District Court for the District of Nebraska; Case No. 8:15 CV 00232

Date
Description/Content Prepared

Addressee(s)

Privilege

B. Mabry, AVP/CMO
North, Mechanical; J.
Wright, Vice President
Mechanical; L.
Esquivel,
Superintendent Field
Operations; D. Cargill,
Asst. Manager Labor
Relations; A. Hyatt,
General Attorney; O.
Wick, General Director
Labor Relations; S.
Johnson, Manager
Labor Relations; J.
Nelson, Asst. General
Foreman Car; L.
Stroik, Senior General
Attorney; J.
Willingham, Attorney II
B. Mabry, AVP/CMO
North, Mechanical; J.
Wright, Vice President
Mechanical; L.
Esquivel,
Superintendent Field
Operations; D. Cargill,
Asst. Manager Labor
Relations; A. Hyatt,
General Attorney; O.
Wick, General Director

Attorney Work
Product
Doctrine;
FRCP 26(b)(3);
Attorney-Client
Privilege

Prepared in
BNSF’s
anticipation of
Counsel
litigation and at the
direction of legal
counsel; confidential
communication
between attorney and
client. The attached
Employee Personal
Injury/Occupational
Illness Report and
handwritten statement
by Logsdon were
produced in discovery
responses.

Attorney-client and work product
objections sustained. This email
string includes the information
gathered and cited for evaluation,
along with the opinions of BNSF
management employees and inhouse counsel regarding whether
and how, under federal law,
Logsdon's allegations should be
investigated, the investigation
process, and the circumstances
under which a dismissal for
dishonesty is warranted.

Attorney Work
Product
Doctrine;
FRCP 26(b)(3);
Attorney-Client
Privilege

Prepared in
anticipation of
litigation and at the
direction of legal
counsel; confidential
communication
between attorney and
client. The attached
Employee Personal
Injury/Occupational
Illness Report and

Attorney-client and work product
objections sustained. This email
string includes the information
gathered and cited for evaluation,
along with the opinions of BNSF
management employees and inhouse counsel regarding whether
and how, under federal law,
Logsdon's allegations should be
investigated, the investigation
process, and the circumstances

18 Email chain re:
Logsdon’s Statement
and Notice of
Investigation

7/24/13

L. Esquivel,
Superintendent
Field
Operations; B.
Mabry,
AVP/CMO
North,
Mechanical; D.
Cargill, Asst.
Manager Labor
Relations; A.
Hyatt, General
Attorney

19 Email chain re:
Logsdon’s Statement
and Notice of
Investigation

7/24/137/25/13

L. Esquivel,
Superintendent
Field
Operations; B.
Mabry,
AVP/CMO
North,
Mechanical; D.
Cargill, Asst.
Manager Labor
Relations; J.

Basis

Possession

Court
Ruling

Author(s)

BNSF’s
Counsel

Page 8 of 18

BNSF RAILWAY COMPANY’S PRIVILEGE LOG
Steven C. Logsdon v. BNSF Railway Company; U.S. District Court for the District of Nebraska; Case No. 8:15 CV 00232

Date
Description/Content Prepared

Author(s)
Willingham,
Attorney II

20 Email chain re:
Plaintiff’s Formal
Investigation,
Discipline

8/14/138/22/13

J. Nelson, Asst.
General
Foreman Car;
D. Cargill, Asst.
Manager Labor
Relations

21 Email re: Plaintiff’s
Investigation,
Discipline

8/21/13

J. Willingham,
Attorney II

Addressee(s)
Labor Relations; S.
Johnson, Manager
Labor Relations; J.
Nelson, Asst. General
Foreman Car; L.
Stroik, Senior General
Attorney
L. Esquivel,
Superintendent Field
Operations; M.
Voloshin-Kile, Manager
Human Resources; D.
Cargill, Asst. Manager
Labor Relations; J.
Nelson, Asst. General
Foreman Car; J.
Willingham, Attorney II

L. Stroik, Senior
General Attorney

Privilege

Basis

Possession

handwritten statement
by Logsdon were
produced in discovery
responses.

Attorney Work
Product
Doctrine;
FRCP 26(b)(3);
Attorney-Client
Privilege

Attorney Work
Product
Doctrine;
FRCP 26(b)(3);
Attorney-Client
Privilege

Prepared in
anticipation of
litigation and at the
direction of legal
counsel; confidential
communication
between attorney and
client. The attached
Transcript of the
Formal Investigation
was produced in
discovery responses.
Prepared in
anticipation of
litigation and at the
direction of legal
counsel; confidential
communication
between attorney and
client.

Court
Ruling
under which a dismissal for
dishonesty is warranted.

BNSF’s
Counsel

Attorney-client objection
sustained. This email reflects
communications with BNSF inhouse counsel regarding the draft,
determination, and deadlines for
BNSF’s investigation of Logsdon's
alleged false reporting and
misconduct.

BNSF’s
Counsel

Attorney-client and work product
objections sustained. This email
string includes the information
gathered and cited for evaluation,
along with the opinions of BNSF
management employees and inhouse counsel regarding whether
and how, under federal law,
Logsdon's allegations should be
investigated, the investigation
process, and the circumstances
Page 9 of 18

BNSF RAILWAY COMPANY’S PRIVILEGE LOG
Steven C. Logsdon v. BNSF Railway Company; U.S. District Court for the District of Nebraska; Case No. 8:15 CV 00232

Date
Description/Content Prepared

Author(s)

Addressee(s)

Privilege

Basis

Possession

22 Email chain re
plaintiff’s
investigation,

7/25/13

L. Stroik,
Senior General
Attorney; J.
Willingham,
Attorney II

L. Stroik, Senior
General Attorney; J.
Willingham, Attorney II

Attorney Work
Product
Doctrine;
FRCP 26(b)(3);
Attorney-Client
Privilege

Prepared in
anticipation of
litigation and at the
direction of legal
counsel; confidential
communication
between attorney and
client.

BNSF’s
Counsel

23 Email re: Plaintiff’s
Investigation,
Discipline

7/24/13

L. Esquivel,
Superintendent
Field
Operations; B.
Mabry,
AVP/CMO
North,
Mechanical; D.
Cargill, Asst.
Manager Labor
Relations; A.
Hyatt, General
Attorney; J.
Willingham,
Attorney II

B. Mabry, AVP/CMO
North, Mechanical; J.
Wright, Vice President
Mechanical; L.
Esquivel,
Superintendent Field
Operations; D. Cargill,
Asst. Manager Labor
Relations; A. Hyatt,
General Attorney; O.
Wick, General Director
Labor Relations; S.
Johnson, Manager
Labor Relations; J.
Nelson, Asst. General

Attorney Work
Product
Doctrine;
FRCP 26(b)(3);
Attorney-Client
Privilege

Prepared in
anticipation of
litigation and at the
direction of legal
counsel; confidential
communication
between attorney and
client.

BNSF’s
Counsel

Court
Ruling
under which a dismissal for
dishonesty is warranted.
Attorney-client and work product
objections sustained. This email
string includes the information
gathered and cited for evaluation,
along with the opinions of BNSF
management employees and inhouse counsel regarding whether
and how, under federal law,
Logsdon's allegations should be
investigated, the investigation
process, and the circumstances
under which a dismissal for
dishonesty is warranted.
Attorney-client and work product
objections sustained. This email
string includes the information
gathered and cited for evaluation,
along with the opinions of BNSF
management employees and inhouse counsel regarding whether
and how, under federal law,
Logsdon's allegations should be
investigated, the investigation
process, and the circumstances
under which a dismissal for
dishonesty is warranted.

Page 10 of 18

BNSF RAILWAY COMPANY’S PRIVILEGE LOG
Steven C. Logsdon v. BNSF Railway Company; U.S. District Court for the District of Nebraska; Case No. 8:15 CV 00232

Date
Description/Content Prepared

Author(s)

Addressee(s)

24 Email
correspondence re:
Logsdon Claim
Investigation

4/2/13

Global Options,
Inc.

Foreman Car; L.
Stroik, Senior General
Attorney; J.
Willingham, Attorney II
J. McCroskey, Senior
Claims Representative

25 Investigation Report
re: Logsdon Claim

5/29/13

Global Options,
Inc.

26 Background
Investigation Report

5/23/14

Clear

Privilege

Basis

Possession

Court
Ruling

Attorney Work
Product
Doctrine;
FRCP 26(b)(3)

Prepared in
anticipation of
litigation and at the
direction of legal
counsel.

BNSF’s
Counsel

Moot: Resolved by the parties.
See footnote 1.

J. McCroskey, Senior
Claims Representative

Attorney Work
Product
Doctrine;
FRCP 26(b)(3)

Prepared in
anticipation of
litigation and at the
direction of legal
counsel.

BNSF’s
Counsel

Moot: Resolved by the parties.
See footnote 1.

BNSF Claims
Department

Attorney Work
Product
Doctrine;
FRCP 26(b)(3)

Prepared in
anticipation of
litigation and at the
direction of legal
counsel.

BNSF’s
Counsel

Moot: Resolved by the parties.
See footnote 1.

Page 11 of 18

BNSF RAILWAY COMPANY’S PRIVILEGE LOG
Steven C. Logsdon v. BNSF Railway Company; U.S. District Court for the District of Nebraska; Case No. 8:15 CV 00232

Date
Description/Content Prepared

Author(s)

Addressee(s)

Privilege

Basis

Possession

Court
Ruling

27 Index of BNSF
Claims File

2/27/13

BNSF Claims
Department

BNSF’s Counsel

Attorney Work
Product
Doctrine;
FRCP 26(b)(3);
Attorney-Client
communication

Prepared in
BNSF’s
anticipation of
Counsel
litigation and at the
direction of legal
counsel. AttorneyClient communication.

Moot: Resolved by the parties.
See footnote 1.

28 Index of BNSF
Claims File

5/31/14

BNSF Claims
Department

BNSF’s Counsel

Attorney Work
Product
Doctrine;
FRCP 26(b)(3);
Attorney-Client
communication

Prepared in
BNSF’s
anticipation of
Counsel
litigation and at the
direction of legal
counsel. AttorneyClient communication.

Moot: Resolved by the parties.
See footnote 1.

PMPs contain private
information of A.
Callahan and other
employees of BNSF
that are not a party to
this litigation. Also
contain private
confidential business
information on
business strategy,
financials, velocity,
performance, and
production.
PMPs contain private
information of A.

BNSF’s
Counsel

Moot: Resolved by the parties.
See footnote 1.

BNSF’s
Counsel

Moot: Resolved by the parties.
See footnote 1.

29 BNSF Performance
Management
Process Form for
Andrew Callahan

Year-End L. Esquivel,
2009
Superintendent
Field
Operations; A.
Callahan,
General
Foreman

L. Esquivel,
Superintendent Field
Operations; A.
Callahan, General
Foreman

Employee
Privacy and
Confidential
Business
Information

30 BNSF Performance
Management

Year-End L. Esquivel,
2010
Superintendent

L. Esquivel,
Superintendent Field

Employee
Privacy and

Page 12 of 18

BNSF RAILWAY COMPANY’S PRIVILEGE LOG
Steven C. Logsdon v. BNSF Railway Company; U.S. District Court for the District of Nebraska; Case No. 8:15 CV 00232

Date
Description/Content Prepared
Process Form for
Andrew Callahan

31 BNSF Performance
Management
Process Form for
Andrew Callahan

Author(s)
Field
Operations; A.
Callahan,
General
Foreman

Year-End L. Esquivel,
2011
Superintendent
Field
Operations; A.
Callahan,
General
Foreman

Addressee(s)

Privilege

Operations; A.
Callahan, General
Foreman

Confidential
Business
Information

L. Esquivel,
Superintendent Field
Operations; A.
Callahan, General
Foreman

Employee
Privacy and
Confidential
Business
Information

Basis
Callahan and other
employees of BNSF
that are not a party to
this litigation. Also
contain private
confidential business
information on
business strategy,
financials, velocity,
performance, and
production.
PMPs contain private
information of A.
Callahan and other
employees of BNSF
that are not a party to
this litigation. Also
contain private
confidential business
information on
business strategy,
financials, velocity,
performance, and
production.

Possession

BNSF’s
Counsel

Court
Ruling

Moot: Resolved by the parties.
See footnote 1.

Page 13 of 18

BNSF RAILWAY COMPANY’S PRIVILEGE LOG
Steven C. Logsdon v. BNSF Railway Company; U.S. District Court for the District of Nebraska; Case No. 8:15 CV 00232

Date
Description/Content Prepared

Author(s)

Addressee(s)

Privilege

32 BNSF Performance
Management
Process Form for
Andrew Callahan

YearL. Esquivel,
End 2012 Superintendent
Field
Operations; A.
Callahan,
General
Foreman

L. Esquivel,
Superintendent Field
Operations; A.
Callahan, General
Foreman

Employee
Privacy and
Confidential
Business
Information

33 BNSF Performance
Management
Process Form for
Andrew Callahan

Year-End M.J. Meenan,
2013
General
Director
Service
Excellence; A.
Callahan,
Manager
Service
Excellence

M.J. Meenan, General
Director Service
Excellence; A.
Callahan, Manager
Service Excellence

Employee
Privacy and
Confidential
Business
Information

Basis
PMPs contain private
information of A.
Callahan and other
employees of BNSF
that are not a party to
this litigation. Also
contain private
confidential business
information on
business strategy,
financials, velocity,
performance, and
production.
PMPs contain private
information of A.
Callahan and other
employees of BNSF
that are not a party to
this litigation. Also
contain private
confidential business
information on
business strategy,
financials, velocity,
performance, and
production.

Possession

Court
Ruling

BNSF’s
Counsel

Moot: Resolved by the parties.
See footnote 1.

BNSF’s
Counsel

Moot: Resolved by the parties.
See footnote 1.

Page 14 of 18

BNSF RAILWAY COMPANY’S PRIVILEGE LOG
Steven C. Logsdon v. BNSF Railway Company; U.S. District Court for the District of Nebraska; Case No. 8:15 CV 00232

Date
Description/Content Prepared
34 BNSF Performance
Management
Process Form for
Andrew Callahan

35 E-mail chain re:
Phone Calls from
Logsdon alleging
improper conduct by
Callahan and
threatening lawsuit

Author(s)

Year-End M.J. Meenan,
2014
General
Director
Service
Excellence; A.
Callahan,
Manager
Service
Excellence

7/29/13

D. Freshour,
Regional
Director Human
Resources; L.
Esquivel,
Superintendent
Field
Operations

Addressee(s)

Privilege

M.J. Meenan, General
Director Service
Excellence; A.
Callahan, Manager
Service Excellence

Employee
Privacy and
Confidential
Business
Information

D. Freshour, Regional
Director Human
Resources; L.
Esquivel,
Superintendent Field
Operations

Attorney Work
Product
Doctrine;
FRCP 26(b)(3)

Basis
PMPs contain private
information of A.
Callahan and other
employees of BNSF
that are not a party to
this litigation. Also
contain private
confidential business
information on
business strategy,
financials, velocity,
performance, and
production.
Prepared in
anticipation of
litigation and at the
direction of legal
counsel.

Possession

Court
Ruling

BNSF’s
Counsel

Moot: Resolved by the parties.
See footnote 1.

BNSF’s
counsel

Attorney-client and work product
objections sustained. This email
string, initiated after Logsdon
stated he intended to seek legal
counsel if he was dismissed,
includes communications
regarding the intent to seek legal
advice and direction on how to
comply with federal law during the
investigation and handling
Logsdon’s claim of intimidation by
Andrew Callahan. This email
string includes the railroad’s
reason and plan for seeking legal
advice from in-house counsel.

Page 15 of 18

BNSF RAILWAY COMPANY’S PRIVILEGE LOG
Steven C. Logsdon v. BNSF Railway Company; U.S. District Court for the District of Nebraska; Case No. 8:15 CV 00232

Date
Description/Content Prepared

Author(s)

Addressee(s)

Privilege

Basis

Possession

36 E-mail chain re:
Phone Calls from
Logsdon alleging
improper conduct by
Callahan and
threatening lawsuit

7/29/13

D. Freshour,
Regional
Director Human
Resources; M.
Voloshin-Kile,
Manager
Human
Resources

D. Freshour, Regional
Director Human
Resources; M.
Voloshin-Kile, Manager
Human Resources; P.
Whitlock, Director
Human Resources

Attorney Work
Product
Doctrine;
FRCP 26(b)(3)

Prepared in
anticipation of
litigation and at the
direction of legal
counsel.

BNSF’s
counsel

37 E-mail chain re:
plaintiff’s injury
statement to Claims
with attachments:
plaintiff’s injury report
and handwritten
statement

7/24/13

L. Esquivel,
Superintendent
Field

A. Callahan, General
Foreman; B. Mabry,
AVP/CMO North,
Mechanical; J. Wright,
Vice President
Mechanical

Attorney Work
Product
Doctrine;
FRCP 26(b)(3)

Prepared in
anticipation of
litigation and at the
direction of legal
counsel.

BNSF’s
counsel

Court
Ruling
Work product objection sustained.
This email string, initiated after
Logsdon stated he intended to
seek legal counsel if he was
dismissed, includes
communications regarding the
intent to seek legal advice and
direction on how to comply with
federal law during the investigation
and handling Logsdon’s claim of
intimidation by Andrew Callahan.
This email string includes the
railroad’s reason and plan for
seeking legal advice from in-house
counsel.
Work product objection sustained
as to page 1; denied as to pages
2-3. Plaintiff’s Personal Injury
Report (pages 2-3) must be
disclosed; but the email
commenting on that report (page
1) is part of the communications
between BNSF management
regarding allegations of plaintiff’s
dishonesty, the author’s formal
investigation, and his decision to
assess discipline for plaintiff’s
dishonesty.

Page 16 of 18

BNSF RAILWAY COMPANY’S PRIVILEGE LOG
Steven C. Logsdon v. BNSF Railway Company; U.S. District Court for the District of Nebraska; Case No. 8:15 CV 00232

Date
Description/Content Prepared

Author(s)

Addressee(s)

Privilege

Basis

Possession

38 E-mail re: plaintiff’s
statement to Claims
with attachment:
transcription of
plaintiff’s statement,
5/31/13
39 E-mail chain re: New
PEPA Violation and
Notice of
Investigation

7/29/13

L. Esquivel,
Superintendent
Field

A. Callahan, General
Foreman

Attorney Work
Product
Doctrine;
FRCP 26(b)(3)

Prepared in
anticipation of
litigation and at the
direction of legal
counsel.

BNSF’s
counsel

7/24/13

EPTS Support
Team

Attorney Work
Product
Doctrine;
FRCP 26(b)(3)

Prepared in
anticipation of
litigation and at the
direction of legal
counsel.

BNSF’s
counsel

40 E-mail chain re:
Postponement of
Formal Investigation

7/30/13

Attorney Work
Product
Doctrine;
FRCP 26(b)(3)

Prepared in
anticipation of
litigation and at the
direction of legal
counsel.

BNSF’s
counsel

41 Handwritten
investigation notes
re: phone

7/29/13

T. Rome,
NCFO Vice
General
Chairman; V.
Stenson
Mattox,
Mechanical
Specialist; J.
Nelson, Asst.
General
Foreman Car;
L. Esquivel,
Superintendent
Field
M. VoloshinKile, Manager
Human

L. Bradfield,
Mechanical Associate;
V. Stenson Mattox,
Admin; A. Callahan,
General Foreman; R.
Davila, Director
Administration
J. Nelson, Asst.
General Foreman Car;
V. Stenson Mattox,
Mechanical Specialist;
L. Esquivel,
Superintendent Field;
A. Callahan, General
Foreman

For the file,
investigating Human
Resources personnel,

Attorney Work
Product
Doctrine;

Prepared in
anticipation of
litigation and at the

BNSF’s
counsel

Court
Ruling
Work product objection overruled.
This e-mail merely forwards a
document. It contains no
communications or discussions
regarding investigation of
Logsdon's claims.
Work product objection sustained.
This email notifies BNSF
management that a disciplinary
investigation has been initiated
against Logsdon and includes the
reasons for beginning that
process.
Work product objection sustained.
This email string discusses
whether Logsdon's formal
investigation should be postponed.

Work Product objection sustained.
These notes, which reflect the
information collected and the
Page 17 of 18

BNSF RAILWAY COMPANY’S PRIVILEGE LOG
Steven C. Logsdon v. BNSF Railway Company; U.S. District Court for the District of Nebraska; Case No. 8:15 CV 00232

Date
Description/Content Prepared
conversation with A.
Callahan, General
Foreman, re:
plaintiff’s injury report

Author(s)
Resources

Addressee(s)
and Legal Counsel.

Privilege
FRCP 26(b)(3)

Basis
direction of legal
counsel.

Possession

Court
Ruling
thoughts and impressions of
BNSF’s Human Resources
Department during the
investigation into Logsdon's
allegations, were made at the
direction of counsel and to assist
counsel in their review of and
providing legal advice concerning
the investigation of plaintiff’s
claims of intimidation, plaintiff’s
alleged misconduct for dishonesty,
his formal investigation, and his
subsequent discipline.

Page 18 of 18