Herrera v. Union Pacific Railroad Company

Filing 101

MEMORANDUM AND ORDER that the Defendants motion to compel, (Filing No. 90 ) is denied. Defendant's request for remedies is denied without prejudice to refiling at a later date. The telephonic conference scheduled for April 25, 2017 at 10:00 a.m. is cancelled. If counsel need to confer with the court on any case progression or scheduling matter, they can contact my chambers and set a conference call. Plaintiff's motion for leave to supplement the record, (Filing No. 97 ), is denied. Ordered by Magistrate Judge Cheryl R. Zwart. (LAC)

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF NEBRASKA
GUILLERMO HERRERA III,
Plaintiff,

8:15CV426

vs.
MEMORANDUM AND ORDER
UNION PACIFIC RAILROAD COMPANY,
a Delaware corporation;
Defendant.
This matter is before the court on Defendant Union Pacific Railroad’s Motion
to Compel, (Filing No. 90). For the reasons discussed below, the motion will be
denied. Defendant’s request for further relief is denied without prejudice to refiling.

BACKGROUND

Plaintiff Guillermo Herrera III filed this action alleging he was injured from heat
exposure on July 26, 2015. A representative of Plaintiff’s attorney - investigator K.
Sean Dillon – interviewed Union Pacific employees Logan Newman, Dennis
Dickison, Jeremy M. Marsing, and Branden H. Bradley. The interviews were audiorecorded by Dillon. Dillon then prepared a narrative summary of the respective
interviews and presented a copy of the summary to each witness for the witness’
review and signature. The employee witnesses were allowed to make corrections to
their narrative summaries. However, Defendant alleges the Union Pacific employee
witnesses were not provided with a full transcript of their respective statements prior
to reviewing and signing their narrative summaries.

Each of the four Union Pacific employee witnesses were deposed. At the
depositions, Plaintiff’s counsel provided each deponent with his signed narrative
statement and referred to the deponent’s statement throughout the course of the

deposition. Counsel for the defendant had not seen the statements prior to the
depositions. Defendant moved for the production of the original audio recordings of
the interviews with each of the Union Pacific employees. Plaintiff asserts the audio
recordings are protected by the work product doctrine and Defendant has not shown
it cannot, without undue hardship, obtain the substantial equivalent to the recordings
by other means.

Additionally, Plaintiff has now revealed that the original audio recordings no
longer exist. That is, counsel states they were inadvertently deleted off of the phone
of the investigator who completed the interviews on behalf of Plaintiff. In light of this
information, Defendant seeks an order forbidding Plaintiff from using the statements
as evidence or as a means of refreshing the respective witness’ recollection.
Defendant also seeks an order striking those deposition portions for which the the
Union Pacific employee or Plaintiff’s counsel relied upon the written statements.

ANALYSIS
Under the work product doctrine “[o]rdinarily, a party may not discover
documents and tangible things that are prepared in anticipation of litigation or for
trial by or for another party or its representative.” Fed. R. Civ. P. 26(b)(3)(A). “There
are two kinds of work product – ordinary work product and opinion work product.”
Baker v. General Motors Corp., 209 F.3d 1051, 1054 (8th Cir. 2000). Ordinary work
product consists of factual information.

Id.

Opinion work product includes an

attorney’s mental impressions and legal theories of the case. Id. The court may
order production of ordinary work product if the party seeking the information
demonstrates a substantial need for the materials and the inability to obtain the
information without undue hardship. Id. But opinion work product “enjoys almost
absolute immunity and can be discovered only in very rare and extraordinary
circumstances, such as when the material demonstrates that an attorney engaged in
illegal conduct or fraud.” Id.
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Even if unable to show of substantial need and undue hardship, a party may
be entitled to the opposing party’s work product if counsel has waived the protection.
In Pittman v. Frazer, the 8th Circuit explained:

If documents otherwise protected by the work-product rule have been
disclosed to others with an actual intention that an opposing party may
see the documents, the party who made the disclosure should not
subsequently be able to claim protection for the documents as work
product. But disclosure of some documents does not destroy work
product protection for other documents of the same character.
Pittman, 129 F.3d 983, 988 (8th Cir. 1997)(quoting Wright & Miller § 2204 at 209).
If an intentional disclosure of work product is made, the protection is made as
to other undisclosed communication or information only if (1) the waiver was
intentional; (2) the disclosed and undisclosed communications or information
concern the same subject matter; and (3) they ought in fairness to be considered
together.” Fed. R. Cic. P 502(a); Schwarz v. City of Treasure Island, case no.
8:05cv1696, 2010 WL 11474978 at *1 (M.D. Fla., October 13, 2010).

Union Pacific demands production of the audio recording underlying the
written summaries, explaining it has a substantial need for the recordings and
Plaintiff waived any work product protection by providing the interview summaries to
the witnesses for reference during their depositions. Plaintiff argues Defendant has
full access to the witnesses and could interview them at any time, particularly since
they are all Union Pacific employees. Plaintiff does not address the work product
waiver argument.

Here, by openly using the interview summaries at the depositions, Plaintiff
voluntarily disclosed contents of his interview with the Union Pacific employee
witnesses. To the extent those summaries are work product, Plaintiff voluntarily

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waived that protection. The more difficult question is whether as to the underlying
audio recordings, the work product protection has also been waived.

Under ordinary circumstances the court would conduct an in camera review of
the audio recordings to determine what, if any, work product protection attached to
the questions and the witnesses’ respective answers. See, e.g., The Manitowac
Company, Inc. v. Kachmer et al., case no. 14cv9271, 2016 WL 2644857 at *3-4
(N.D. Ill. May 10, 2016)(ordering disclosure of raw audio of witness interviews only
after conducting an in camera review to determine the contents of the questions and
answers).

However, the raw audio in this case was deleted by Plaintiff’s

representative and it cannot be reviewed by the court.
Assuming the witnesses’ answers contained nothing more than a factual
recitation of the events, the audio recorded answers would likely be subject to
disclosure. See, e.g., Schipp v. General Motors Corp., 457 F. Supp. 2d 917, 924
(E.D. Ark. 2006) (finding “verbatim non-party witness statements” must be
produced). But without hearing the audio or reviewing a transcript of the interview,
the court cannot determine whether Plaintiff’s counsel’s questions would be subject
to the work product waiver. Counsel’s questions of witnesses are often inexorably
intertwined with his thought process and mental impressions, pushing that
information into the category of opinion work product – which enjoys almost absolute
immunity. Baker, 209 F.3d at 1054, Frank v. L.L. Bean, Inc., case no. 04cv221, 2005
WL 2177062 at *1 (D. Me., Sept. 8, 2005) But the court is in no position to decide if
counsel’s questions contain opinion work product absent access to the audio
recording.

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Since the audio recordings no longer exist, the court must determine what, if
any, remedy is appropriate at this stage in the litigation.1 Defendant has requested
the following:

(1)

Strike all deposition testimony of witnesses Logan Newman,
Jeremy Marsing, Dennis Dickison, and Braden Bradley that
references, relates to, or results from their recorded statements
or narrative summaries and questioning by plaintiff’s counsel,
including all testimony cited by defendant in its Brief in Support
of its Motion to Compel.

(2)

Prohibit all use of the narrative summaries in this litigation.

(3)

Prohibit counsel for Plaintiff from refreshing the witnesses’
recollection in future testimony or at trial through the use of the
narrative summaries, prior depositions, or recorded statements.

(Filing No. 96 at CM/ECF pp. 6-7). The court declines to award these extreme
remedies at this time.

The witnesses each testified at their respective depositions that they had a
chance to review the narrative summaries, make changes to them, and affirm that
the statements were “true to the best of [their] knowledge” and they offered no
changes at their depositions. (Filing No. 94-1 at CM/ECF p. 3; Filing No. 94-3 at
CM/ECF p.4; Filing No. 94-6 at CM/ECF p.3; Filing No. 94-7 at CM/ECF p. 3). Thus,
to the extent Defendant is concerned Plaintiff’s counsel or his representative
somehow mischaracterized or influenced the witness’ testimony, the witnesses have
confirmed that the statement summaries are accurate.

As Plaintiff notes, all the witnesses are Union Pacific employees and are
presumably available to be interviewed by Defendant outside the presence of

1

Defendant’s request for relief is included in its reply brief after it learned the
audio recordings are no longer available.

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Plaintiff’s counsel and, if counsel dictates, without their signed statements in front of
them. Defendant can explore whatever topics it deems appropriate and can seek to
verify and/or refute the witness’ previous recollection of the events. In addition,
Defendant had the opportunity to cross-exam each of the witnesses during their
respective depositions to further inquire if the statements were accurate or about the
specific word choice in the statement summaries.

The Defendant seeks the audio recordings to determine in what manner, if
any, Plaintiff’s representative’s questions may have impacted the witness’ answers.
By seeking this information, Defendant may be seeking the mental impressions and
thought processes of the questioner, which clearly falls into the category of opinion
work product.

Even if the raw audio were still available, the court has serious

questions about whether Defendant would be granted access to the questions asked
by Plaintiff’s counsel’s representative during the interview. See, e.g., Frank, 2005
WL 2177062 at *1. (drawing the distinction between a witness’ narrative statement
and the questions posed by an attorney in preparation for trial in denying a motion to
compel an unredacted copy of a witness interview transcript).

Finally, the vast majority of the Defendant’s objections to using the narrative
summaries and its proposed remedies are evidentiary objections best raised in
motions in limine or at trial. For instance, its objections that the narratives are not
the best evidence, that Plaintiff’s counsel impermissibly led the witnesses during
their depositions, or that they should not be allowed to refresh the witness’
recollection can and should be made prior to or during the trial. Absent context on
how the deposition testimony and summaries themselves will be used during the
trial, the court is unwilling to grant Defendant’s proposed remedies at this time.
However, this denial is without prejudice to Defendant seeking similar relief before or
during the trial.

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Accordingly,

IT IS ORDERED,

1)

Defendant’s motion to compel, (Filing No. 90) is denied.

2)

Defendant’s request for remedies is denied without prejudice to refiling
at a later date.

3)

The telephonic conference scheduled for April 25, 2017 at 10:00 a.m. is
cancelled.

If counsel need to confer with the court on any case

progression or scheduling matter, they can contact my chambers and
set a conference call.
4)

Plaintiff’s motion for leave to supplement the record, (Filing No. 97), is
denied.

Dated this 24th day of April, 2017.
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.

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