Wilks v. BNSF Railway Company

Filing 268

ORDER by Magistrate Judge Kimberly E. West denying 160 Motion in Limine. (adw, Deputy Clerk)

IN THE UNITED STATES DISTRICT COURT FOR THE
EASTERN DISTRICT OF OKLAHOMA
SAMANTHA WILKS,

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Plaintiff,
v.
BNSF RAILWAY COMPANY,
a corporation,
Defendant.

Case No. CIV-18-080-KEW

O R D E R
This matter comes before the Court on Plaintiff’s Motion in
Limine to Bar Any Testimony from Monty Drake, and Any Reference to
Any Surveillance Footage Prepared by Monty Drake or Any Agent of
Monty Drake (Docket Entry #160).

Plaintiff first contends that

counsel for Defendant BNSF Railway Company (“BNSF”) improperly
stopped Monty Drake, an investigator employed by BNSF to surveil
Plaintiff,

from

answering

surveillance efforts.

certain

questions

surrounding

his

Plaintiff states that the violation of Fed.

R. Civ. P. 30(c)(2) cannot be cured by allowing further questioning
of Mr. Drake since opposing counsel now knows what questions will
be asked and can prepare the witness.
For its part, BNSF asserts that many of the questions posed
by Plaintiff’s counsel would have revealed attorney work product
information.

This

would

have

included

instructions

for

surveillance received from counsel, invoices for services, and any

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reports arising from the surveillance – all matters into which
Plaintiff’s counsel inquired at Mr. Drake’s deposition.
BNSF states that it has produced all of the edited and raw
footage video shot by Mr. Drake to Plaintiff’s counsel.

The video

itself is presumably not subject to work product protections.
Riley v. Union Pac. R.R. Co., 2010 WL 11700897, *1 (E.D. Okla.
April 23, 2010).
This

is

essentially

a

discovery

shoehorned into a motion in limine.

dispute

which

has

been

Plaintiff should have pursued

her remedies for disclosure of the information surrounding the
surveillance in discovery in order to ascertain whether the work
product assertion by BNSF was valid and protected Mr. Drake from
the questioning Plaintiff sought.

This Court will not now impose

the extreme measure of excluding both the surveillance video and
any testimony from Mr. Drake to sponsor the video in an assumption
that the assertion of work product protection was invalid or
improperly raised in Mr. Drake’s deposition.
IT IS THEREFORE ORDERED that Plaintiff’s Motion in Limine to
Bar Any Testimony from Monty Drake, and Any Reference to Any
Surveillance Footage Prepared by Monty Drake or Any Agent of Monty
Drake (Docket Entry #160) is hereby DENIED.
IT IS SO ORDERED this 31st day of March, 2021.
______________________________
KIMBERLY E. WEST
UNITED STATES MAGISTRATE JUDGE
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