Rayner v. Union Pacific Railroad Company et al
ORDER granting 110 defendant Union Pacific Railroad Company's Motion to Quash Plaintiff's Subpoena of Harding Rome and for Protective Order and quashing plaintiff's subpoena of Harding Rome. Further, in light of the above, plaintiff is prohibited from taking the deposition of Harding Rome (as more fully set out). Signed by Honorable Vicki Miles-LaGrange on 10/17/2014. (ks)
IN THE UNITED STATES DISTRICT COURT FOR THE
WESTERN DISTRICT OF OKLAHOMA
MITZI JAYNE RAYNER, Personal
Representative of the Estate of Gary
Don Rayner (Deceased),
THE UNION PACIFIC RAILROAD
COMPANY, a Delaware corporation, et al., )
Case No. CIV-13-46-M
Before the Court is defendant Union Pacific Railroad Company’s (“Union Pacific”) Motion
to Quash Plaintiff’s Subpoena of Harding Rome and for Protective Order, filed October 13, 2014.
On October 15, 2014, plaintiff filed her response, and on October 16, 2014, Union Pacific filed its
reply. Based upon the parties’ submissions, the Court makes its determination.
This case arises from a March 1, 2012, vehicle-train collision, approximately two miles south
of Dover, Oklahoma. Plaintiff’s husband, Gary Don Rayner (“Mr. Rayner”), was struck and killed
by a southbound Union Pacific train. In addition to other allegations, plaintiff asserts the accident
was caused by Union Pacific’s failure to properly maintain the crossing, including but not limited
to negligently allowing vegetation and trees to partially obstruct the visibility of approaching
On October 4, 2014, Harding Rome, in-house counsel for Union Pacific, was served with
a subpoena for his deposition scheduled for October 20, 2014 at 11:00 a.m. Union Pacific now
moves this Court to quash plaintiff’s subpoena of Harding Rome, or in the alternative, to issue a
protective order limiting the deposition topics to issues in the memorandum plaintiff’s counsel
procured purporting to contain notes from a presentation given by Mr. Rome on October 28, 2010
The Tenth Circuit has held “that ordinarily the trial court at least has the discretion under
Rule 26(c) to issue a protective order against the deposition of opposing counsel when any one or
more of the three Shelton1 criteria for deposition . . . are not met.” Boughton v. Cotter Corp., 65
F.3d 823, 830 (10th Cir. 1995) (emphasis in original). In Shelton, the Eighth Circuit held that
depositions of opposing counsel should be limited to circumstances where the party seeking to take
the deposition has shown that: (1) no other means exist to obtain the information than to depose
opposing counsel; (2) the information sought is relevant and nonprivileged; and (3) the information
is crucial to the preparation of the case. See Shelton, 805 F.2d at 1327. Since Mr. Rome is in-house
counsel for Union Pacific, the parties agree that the Shelton criteria are applicable.
Having carefully reviewed the parties’ submissions, the Court finds that plaintiff has not
satisfied the Shelton criteria and that a protective order should be issued prohibiting the deposition
of Mr. Rome. Specifically, the Court finds that plaintiff has not shown that no other means exist to
obtain the information than to depose Mr. Rome. Plaintiff seeks to take Mr. Rome’s deposition to
inquire regarding Union Pacific’s maintenance policies at private crossings and regarding the
Memorandum. Plaintiff had the opportunity to take the deposition of Union Pacific’s policy witness
Dale Bray, but plaintiff declined to depose Mr. Bray. As Union Pacific’s policy witness, Mr. Bray
clearly would have been able to testify regarding Union Pacific’s maintenance policies at private
crossings. Additionally, at the bottom of the Memorandum there is contact information for two
other Union Pacific employees, Buck Russell and Tracy Brown; thus, it appears that either of these
Shelton v. Am. Motors Corp., 805 F.2d 1323 (8th Cir. 1986).
individuals would also be able to testify regarding the Memorandum. Additionally, the Court finds
that plaintiff has not shown that the information is crucial to the preparation of her case. Plaintiff
simply makes the conclusory statement that the evidence is critical, without providing any further
detail or information as to how this specific information is critical to her case.
Accordingly, the Court GRANTS Union Pacific’s Motion to Quash Plaintiff’s Subpoena of
Harding Rome and for Protective Order [docket no. 110] and QUASHES plaintiff’s subpoena of
Harding Rome. Further, in light of the above, plaintiff is prohibited from taking the deposition of
IT IS SO ORDERED this 17th day of October, 2014.
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