Logsdon v. BNSF Railway Company et al

Filing 132

ORDER denying 117 Motion for Reconsideration 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.
ORDER
BNSF RAILWAY COMPANY, a
corporation;
Defendant.
The railroad has moved the court to reconsider its ruling on Plaintiff’s motion to
compel the production of BNSF training materials regarding the Federal Railroad Safety
Act (“FRSA”), specifically 49 U.S.C. § 20109. (Filing No. 117). In support of the motion
to reconsider, the railroad supplemented the record with documents underlying two
training presentations held in 2014 and 2015. (Filing No. 121). Defendant claims the
documents are privileged because they “provide legal interpretation, advice, and
instruction from legal counsel to [the] client regarding specific issues and scenarios that
might arise when an employee reports a personal injury and contain legal counsel’s
interpretation of federal law and advice on how management should act in specific
scenarios to conform their conduct to legal requirements.” (Filing No. 117, at CM/ECF p.
3).

As my prior order explained:
“[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 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.
(Filing No. 111, at CM/ECF pp. 3-4).

After reviewing the railroad’s submission in support of their motion to reconsider,
(Filing No. 121), I find the materials are instructional or explanatory materials on the law
and the railroad’s related policies and codes of conduct. While these slide presentations
may have been written and presented by in-house counsel, they were not intended to
provide legal advice for any pending claim or to assist in making a decision on any
specific legal matter. As such, they are not privileged.

Accordingly,

IT IS ORDERED that Defendant’s motion to reconsider, (Filing No. 121), is
denied.
January 18, 2017

BY THE COURT:
s/ Cheryl R. Zwart
United States Magistrate Judge

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