Logsdon v. BNSF Railway Company et al

Filing 156

ORDER denying 148 BNSFs Motion for Amended Protective Order and Non-waiver of Privilege. 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.
This matter is before the court on Defendant BNSF’s Motion for Amended
Protective Order and Non-waiver of Privilege. (Filing No. 148). For the following
reasons, Defendant’s motion is denied.

Plaintiff Steve Logsdon moved to compel production of railroad training
materials concerning FRSA/OSHA whistleblower laws. After extensive litigation
regarding the training presentation, including an in camera review, this court
determined the training presentation was not protected by the attorney-client
privilege and ordered the railroad to produce the presentation materials. (See
Filing No. 111 at CM/ECF pp. 3–4; Filing No. 132 at CM/ECF pp. 1–2).1 The
railroad now seeks an amended protective order which would limit the
use/distribution of the training presentation materials to only this case.

The

railroad requests a court order pursuant to Fed. R. Evid. 502(d) and stating
production of the training presentation materials in this case does not constitute a
waiver of the attorney-client privilege over the subject matter.
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This court has additionally considered a motion to reconsider and an
objection regarding the order requiring production of the presentation materials.
(Filing Nos. 117 & 133). Defendant’s motions were denied. (Filing Nos. 132 &
140).

BNSF contends the presentation materials are protected by the attorneyclient privilege, stating they contain legal advice from counsel to the client. And it
argues that although this Court has determined that the materials are not
privileged, its dissemination among parties outside of this litigation will
significantly impede BNSF’s ability to assert the attorney-client privilege or work
product doctrine in other forums: The railroad argues that other courts may
disagree with this Court’s finding that the materials are not privileged, and the
dissemination of the documents will impede BNSF’s ability to protect the
information and to assert the attorney-client privilege in other forums.
Under Rule 502(d), “[a] federal court may order that the privilege or
protection is not waived by disclosure connected with the litigation pending
before the court—in which event the disclosure is also not a waiver in any other
federal or state proceeding.” Fed. R. Evid. 502(d). One of the main purposes for
enacting Rule 502(d) was to resolve longstanding disputes regarding the effect of
inadvertent disclosures of privileged information and subject matter waivers.
RiPL Corp. v. Google Inc., No. 2:12-CV-02050-RSM, 2013 WL 6632040 (W.D.
Wash. Dec. 17, 2013). Courts interpreting Rule 502 have generally held that the
rule applies only to documents or materials that are shown to be privileged and
not to those materials that merely could be privileged. See Rajala v. McGuire
Woods, LLP, No. 08-2683-CM-DJW, 2013 WL 50200 (D. Kan. Jan 13, 2013);
Potomac Elec. Power Co & Subsidiaries v. United States, 107 Fed. Cl. 725, 728
(Fed. Cl. 2012); Frye v. Ayers, CIV990628LKKKJM, 2008 WL 4642783 (E.D. Cal.
Oct. 16, 2008).
After reviewing the railroad’s submissions in support of its motion, the court
finds—once again--that the railroad has failed to show the presentation materials

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are privileged. And except for Defendant’s general assertion that other courts
may hold differently on the issue, the railroad has failed to advance any
argument that the training presentation documents must be kept from public
view.

The undersigned magistrate judge acknowledges that as to the type of
documents at issue, application of the attorney-client privilege is a novel issue,
with no Supreme Court or Circuit law cited by the parties or found by the court on
the topic. But seeking a Rule 502(d) protection order is not the appropriate
means of further delaying disclosure and dissemination of the documents.
Rather, as to privilege rulings in a specific case, filing a writ of mandamus is the
procedural mechanism for preserving the privilege pending appellate court
review. See, e.g., In re Bieter Co., 16 F.3d 929 (8th Cir.1994); Diversified Indus.,
Inc. v. Meredith, 572 F.2d 596 (8th Cir. 1977)).

Accordingly,
IT IS ORDERED that Defendant BNSF’s Motion for Amended Protective
Order and Non-waiver of Privilege, (Filing No. 148), is denied.

Dated this 19th day of April, 2017.
BY THE COURT:
s/ Cheryl R. Zwart
United States Magistrate Judge

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