Gutherless v. Union Pacific Railroad Company

Filing 32

MEMORANDUM AND ORDER - Defendant's motion for a protective order (Filing No. 23 ) is granted. Plaintiff is barred from using or reviewing Neil Sponsel's recorded statement, (Filing No. 27 ). On or before April 14, 2021, Plaintiff must des troy all retained copies of the statement and file a declaration or other sworn statement, of record, indicating compliance with this order. Plaintiff shall make no further attempt to obtain additional copies of Neil Sponsel's recorded statement (Filing No. 27 ), from any source, without first seeking leave of court. Ordered by Magistrate Judge Cheryl R. Zwart. (LKO)

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF NEBRASKA
KATIE GUTHERLESS,
Plaintiff,

8:20CV442

vs.
MEMORANDUM AND ORDER
UNION PACIFIC RAILROAD
COMPANY, a Delaware Corporation;
Defendant.

This matter is before the court on the Motion for Protective Order filed by
Defendant Union Pacific Railroad Company (“Defendant”). For the following
reasons, the motion is granted.
BACKGROUND
This lawsuit arises from an alleged workplace injury to Plaintiff Katie
Gutherless (“Plaintiff”). On June 16, 2019, while employed at Defendant’s Bailey
Yard in North Platte, Nebraska, Plaintiff suffered a severe injury and resulting
amputation of her dominant hand. Plaintiff’s injury occurred while she and coworker Neil Sponsel (“Sponsel”) were working as a “two-person switch crew.”
(Filing No. 24 at CM/ECF p. 3). Plaintiff claims she sustained this injury because
Sponsel “lacked sufficient training and experience, operated his remote-control
locomotive in excess of the limit for remote coupling to push cars through a
defective retarder, and failed to conduct an adequate safety briefing.” (Filing No. 1
at CM/ECF p. 3, ¶ 9).

One day after the incident, on June 17, 2019, Defendant received a letter of
representation and a document preservation request from Plaintiff’s attorney.

(Filing No. 24-2). Defendant also immediately retained counsel and conducted an
incident response investigation. As part of that investigation, on June 27, 2019,
Defendant took a recorded statement from Sponsel. The statement was taken by
Defendant employee Matt Starostka, with input from Defendant’s retained
attorneys. (Filing No. 24 at CM/ECF p. 3).

This lawsuit was then filed on October 21, 2020. (Filing No. 1). A progression
order was entered by the court on December 15, 2020, (Filing No. 20), and the
parties began discovery. Through written discovery, Plaintiff requested from
Defendant copies of “statements of any kind, whether written or verbal, obtained
from any persons, including but not limited to Plaintiff and her crew, with knowledge
of relevant facts upon which this lawsuit is based.” (Filing No. 24-4 at CM/ECF p.
3). Defendant produced written statements of three individuals, including Sponsel.
However, Defendant objected to production of other statements, including
Sponsel’s recorded statement, claiming that the remaining statements were
protected by work product privilege. (Filing No. 24-4 at CM/ECF p. 3).

On January 22, 2021, Sponsel requested a copy of his own recorded
statement. His asked that the statement be sent directly to Plaintiff’s attorney, or,
in the alternative, sent directly to him. (Filing No. 24-6 at CM/ECF p. 1). Defendant
sent the statement directly to Sponsel – not to Plaintiff’s attorney – on January 25,
2021. (Filing No. 26-3 at CM/ECF p. 1).
Plaintiff’s attorney deposed Sponsel on January 27, 2021, at which time
Sponsel was asked about the recorded statement. Sponsel testified that he had
received a copy, but that he had not reviewed it prior to the deposition. He further
testified that he was not certain, at that time, whether he would voluntarily provide
a copy to Plaintiff’s counsel.

Thereafter, on February 11, 2021, Plaintiff served Defendant with a notice
of intent to subpoena the recorded statement from Sponsel. (Filing No. 24-8). In
response, Defendant filed the instant motion, asking this court either to quash the
subpoena or to enter a protective order preventing Plaintiff from obtaining the
statement. (Filing No. 23). But, before this motion was fully submitted, on February
20, 2021, Sponsel voluntarily provided the statement to Plaintiff’s counsel. (Filing
No. 25 at CM/ECF p. 1).

Having obtained the statement, Plaintiff withdrew her intent to issue the
subpoena. However, Defendant did not withdraw the instant motion – claiming that
a protective order is still necessary. Defendant claims that Sponsel’s disclosure of
the statement to Plaintiff’s counsel did not waive Defendant’s work product
privilege and that the court should enter a protective order barring Plaintiff from
further use of the statement and requiring destruction of all copies in Plaintiff’s
possession. (Filing No. 29).
DISCUSSION

I.

Application of Work Product Doctrine

The parties agree that, as a general matter, Sponsel’s recorded statement
is Defendant’s work product. Filing No. 24 at CM/ECF p. 6); (Filing No. 25 at
CM/ECF p. 2). The court also agrees.

At the time Sponsel gave his recorded statement, both parties had retained
counsel. Investigation – from both sides – was in full swing. While the statement
was not taken by Defendant’s attorney, it was taken with the attorney’s input and
at his direction. See Diversified Indus., Inc., v. Meredith, 572 F.2d 596, 604 (8th
Cir. 1977) (“[T]he concept of work product is not confined to information or
materials gathered or assembled by a lawyer.”); see also Stark-Romero v. Nat'l

R.R. Passenger Co. (AMTRAK), 276 F.R.D. 531, 539 (D.N.M. 2011) (holding that
documents prepared by the railroad in anticipation of litigation and at the direction
of counsel following a crossing accident “fall squarely within the heartland of work
product”). Under those circumstances, the statement was made in anticipation of
litigation, contained factual information relevant to the case, and should be
considered ordinary work product.1 See Ellenbecker v. BNSF Ry. Co., 2019 WL
6771827, at *1 (D. Neb. Dec. 11, 2019) (quoting Simon v. G. D. Searle & Co., 816
F.2d 397, 401 (8th Cir. 1987).

II.

Substantial Need

Under the work product doctrine “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). But, 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.” Herrera v. Union Pac. R.R. Co., 2017 WL
1458677, at *1 (D. Neb. Apr. 24, 2017) (quoting Baker v. General Motors Corp.,
209 F.3d 1051, 1054 (8th Cir. 2000).

Courts in this circuit have previous found that where a witness is available,
there is no substantial need to obtain a previous, recorded statement that is
otherwise protected as work product. See, e.g., Soyring v. Fehr, 2006 WL
8443343, at *4 (D. Minn. Feb. 23, 2006) (citation omitted); Falkner v. Gen. Motors
Corp., 200 F.R.D. 620, 625 (S.D. Iowa 2001). Sponsel is an available witness in
this case and was deposed by the Plaintiff on January 27, 2021. Plaintiff has
presented no evidence that Sponsel was unable to recall the accident or answer
There are two types of work product – ordinary and opinion. The type at issue here is ordinary work
product, and the standard for disclosure will be applied accordingly.
1

deposition questioning. And, Defendant already produced a written statement
from Sponsel, obtained on the night of the subject accident. (Filing No. 24 at
CM/ECF p. 5). There is no substantial need warranting disclosure of Sponsel’s
recorded statement.

III.

Waiver

Even if unable to show of substantial need, a party may be entitled to the
opposing party's work product if counsel has waived the protection. Pittman v.
Frazer, 129 F.3d 983, 988 (8th Cir. 1997). Here, the parties proffer different
standards for this court to adopt when analyzing whether a waiver of the work
product privilege has occurred.

Defendant invites the court to apply Gundacker v. Unisys Corp., 151 F.3d
842, 848 (8th Cir. 1998). However, Gundacker’s discussion of the issue is sparse.
In Gundacker, the Eighth Circuit held that the district court did not abuse its
discretion in determining that a document inadvertently disclosed to opposing
counsel was still protected by the work product privilege. Defendant cites to one
sentence in the Gundacker case, which states, that “there must be an intention
that the opposing party see the work product” for waiver to occur. Gundacker, 151
F.3d at 848 (emphasis added). Defendant argues that Gundacker is binding on
this court and broadly mandates that there can be no waiver of work product
privilege unless there is an actual intent that an opposing party review the
privileged material. (Filing No. 29 at CM/ECF p. 3).

Conversely, Plaintiff claims that while an actual intention to disclosure the
protected information is one way to waive privilege, it is not the only way. Plaintiff
argues that when the circumstances of a disclosure “substantially increase” the
likelihood that an opposing party will obtain the information, the work product

privilege may be waived. (Filing No. 25 at CM/ECF p. 6) (quoting Lahart v. BNSF
Ry. Co., 2017 WL 5634148, * 5 (S.D. Iowa March 28, 2017) (“A party also waives
its protection when it ‘voluntarily share[s] the document in a way that is inconsistent
with the goal of the protection, which is to prevent the opposing party from
benefiting from an opponent’s mental impressions or legal theories.’”); see also
United States v. Johnson, 378 F. Supp. 2d 1041 (N.D. Iowa 2005).

The court need not determine which advocated standard applies because,
applying either standard, I find Defendant has not waived work product privilege.
First, there was no “actual intent” to disclose Sponsel’s recorded statement
to Plaintiff. Defendant has consistently maintained that this statement is work
product. It indicated that it was work product in its discovery response and
otherwise resisted every attempt by Plaintiff to specifically obtain the statement.
(Filing No. 29 at CM/ECF p. 5). Under the Gundacker standard, there was no
waiver.

Moreover, when Sponsel personally requested a copy, Defendant was
required to provide it to him. Fed. R. Civ. P. 26(b)(3)(C) provides that “[a]ny party
or other person may, on request and without the required showing, obtain the
person's own previous statement about the action or its subject matter.” Fed. R.
Civ. P. 26(b)(3)(C). A refusal to provide a previous statement to the maker subjects
the withholding party to sanctions. Id. Sponsel requested his own statement, and
Defendant complied with the federal rules (while maintaining that the statement
was privileged). And, when asked by Sponsel in his original request to send the
statement to Plaintiff’s counsel, Defendant declined and instead sent the statement
directly to Sponsel. (Filing No. 25 at CM/ECF p. 2).

Plaintiff claims that Defendant’s actions substantially increased the
likelihood of Plaintiff obtaining the statement, arguing that “providing Sponsel with
a copy of the statement knowing that the document might be shared with Plaintiff’s
counsel is inconsistent with the work-production protection and establishes a
waiver of the protection.” (Filing No. 25 at CM/ECF p. 7).

But Defendant did not have a choice. He was required to send Sponsel the
statement. Compliance with Rule 26(b)(3) “creates no right in a party to the
litigation to obtain a copy of a statement of an ordinary witness without the usual
showing required for work product.” In re Convergent Techs. Second Half 1984
Sec. Litig., 122 F.R.D. 555, 566 (N.D. Cal. 1988) (emphasis added). While
Defendant may have anticipated that Sponsel would disclose the statement, there
was no other course of action available: the statement had to be provided to
Sponsel in order to comply with Rule 26. Defendant’s actions were not inconsistent
with its claim of privilege nor did those actions substantially increase Plaintiff’s
access to the statement within the meaning of the law.

Plaintiff further argues that Defendant turned the statement over to Sponsel
“without any notice or remarks” regarding the asserted privilege. (Filing No. 25 at
CM/ECF p. 7). Plaintiff argues that “[a] failure to include such a caveat is an
indication that ‘the disclosure is inconsistent with maintaining secrecy from
possible adversaries.’” (Filing No. 25 at CM/ECF p. 7) (quoting Stix Prods., Inc. v.
United Merchants & Mfrs., Inc., 47 F.R.D. 334, 338 (S.D. N.Y. 1969)). Defendant
knew that Sponsel had been in discussions with Plaintiff’s counsel about
requesting the statement. So, perhaps including an explicit claim of privilege in that
email would have been the best practice. However, under the totality of the facts
presented, the court will not find a waiver of privilege.

Plaintiff was on consistent notice that Defendant believed that the recorded
statement was protected by the work product doctrine and that no waiver had
occurred. Defendant raised the privilege issue during Sponsel’s deposition—after
Sponsel had received the recorded statement. Counsel paused or delayed the
deposition to speak with the undersigned, who acknowledged the circumstances
and topic required additional consideration and would not be decided during that
call. The undersigned invited the parties to file a relevant motion on the matter in
order to obtain a substantive review of this complicated privilege issue. Rather than
file the motion, Plaintiff’s counsel served a subpoena on the Sponsel, thereby
opting to skirt court involvement and obtain a statement without a judicial
determination of the disputed privilege status. And while Defendant was objecting
to production, Sponsel—not Defendant—produced the recorded statement to
Plaintiff in response to the threatened subpoena. Plaintiff’s counsel clearly knew,
and the court knew, that Defendant was asserting Sponsel’s recorded statement
was work product. Defendant’s mere failure to tell Sponsel not to further disclose
the statement will not be deemed a failure to adequately safeguard Defendant’s
work product.

Given the posture of the disclosure here, and Defendant’s consistent
maintenance of its privilege claim, the court finds that Defendant did not intend,
nor substantially increase the likelihood of, disclosure to Plaintiff. Thus, under
either standard outlined by the parties, Defendant maintains its work product
privilege as to Sponsel’s recorded statement.

IV.

Protective Order

Originally, this matter was before the court on Defendant’s motion to quash
Plaintiff’s intent to subpoena the statement from Sponsel, pursuant to Fed. R. Civ
P. 45(d)(3), or in the alternative, for a protective order under Fed. R. Civ. P. 26(c).

After Sponsel provided the statement to Plaintiff’s counsel, Defendant clarified that
it was withdrawing its request to quash the subpoena and would proceed only on
the request for a Rule 26 protective order. Given the above, the court need not,
and will not, address the Rule 45 standard or any argument that this court was the
improper venue for the motion to quash.
Under Rule 26(c), “[t]he court may, for good cause, issue an order to protect
a party or person from annoyance, embarrassment, oppression, or undue burden
or expense ...[.]” Fed. R. Civ. P. 26(c). The moving party bears the burden to
demonstrate good cause for the issuance of the protective order. Prism Techs.
LLC v. AT&T Mobility, LLC, 2014 WL 3670949, at *1 (D. Neb. July 23, 2014)
(citations omitted). For good cause to exist, “the parties seeking protection must
show that specific prejudice or harm will result if no protective order is granted.”
Vishay Dale Electrs., Inc. v. Cyntec Co., Ltd., 2008 WL 4372765, *3 (D. Neb. Sept.
22, 2008) (citation omitted).
“Rule 26(c) confers broad discretion on the trial court to decide when a
protective order is appropriate and what degree of protection is required.” Seattle
Times Co. v. Rhinehart, 467 U.S. 20, 36 (1984). In addition to the moving party’s
required showing, the court must also consider “the relative hardship to the nonmoving party should the protective order be granted.” General Dynamics Corp. v.
Selb Mfg. Co., 481 F.2d 1204, 1212 (8th Cir.1973) (citing United States v. Kordel,
397 U.S. 1, 4–5 (1970)). “The balance of relative hardships includes an
assessment of any substantial detriment to a party caused by the inclusion or
failure to include the protection at issue.” Blair v. City of Omaha, 2011 WL 148120,
at *2 (D. Neb. Jan. 18, 2011) (citation omitted).

Having weighed the arguments and balanced the relative burden on the
parties, the court finds that Defendant is entitled to a protective order.

Accordingly, IT IS ORDERED:

1)

Defendant’s motion for a protective order (Filing No. 23) is granted.

2)

Plaintiff is barred from using or reviewing Neil Sponsel’s recorded
statement, (Filing No. 27). On or before April 14, 2021, Plaintiff must
destroy all retained copies of the statement and file a declaration or
other sworn statement, of record, indicating compliance with this
order.

3)

Plaintiff shall make no further attempt to obtain additional copies of
Neil Sponsel’s recorded statement (Filing No. 27), from any source,
without first seeking leave of court.

Dated this 31st day of March, 2021.
BY THE COURT:
s/ Cheryl R. Zwart
United States Magistrate Judge