Rayner v. Union Pacific Railroad Company et al
Filing
161
ORDER granting 153 Union Pacific's Motion to Quash Plaintiff's Deposition Notice of Tracy Brown and Buck Russell and for Protective Order and quashing the notice to take the depositions of Tracy Brown and Buck Russell (as more fully set out). Signed by Honorable Vicki Miles-LaGrange on 12/2/2014. (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),
Plaintiff,
vs.
THE UNION PACIFIC RAILROAD
COMPANY, a Delaware corporation, and
NEWFIELD EXPLORATION
MID-CONTINENT, INC., a Delaware
corporation,
Defendants.
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Case No. CIV-13-46-M
ORDER
Before the Court is defendant Union Pacific Railroad Company’s (“Union Pacific”) Motion
to Quash Plaintiff’s Deposition Notice of Tracy Brown and Buck Russell and for Protective Order,
filed November 25, 2014. On December 1, 2014, plaintiff filed her response. Based upon the
parties’ submissions, the Court makes its determination.
I.
Introduction
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
drivers.
Plaintiff served Union Pacific with a notice to take depositions of Union Pacific employees
Tracy Brown and Buck Russell. Plaintiff seeks to depose Mr. Brown and Mr. Russell regarding a
memorandum plaintiff’s counsel has obtained that purports to contain notes from a presentation on
October 28, 2010, given by Harding Rome, an in-house counsel for Union Pacific. Mr. Brown and
Mr. Russell were both present at the presentation. Union Pacific now moves this Court to quash
plaintiff’s notice to take the depositions of Mr. Brown and Mr. Russell.
II.
Discussion
Union Pacific asserts that the depositions of Mr. Brown and Mr. Russell will not lead to the
discovery of admissible evidence. Federal Rule of Civil Procedure 26(b)(1) provides, in pertinent
part:
Unless otherwise limited by court order, the scope of discovery is as
follows: Parties may obtain discovery regarding any nonprivileged
matter that is relevant to any party’s claim or defense – including the
existence, description, nature, custody, condition, and location of any
documents or other tangible things and the identity and location of
persons who know of any discoverable matter. For good cause, the
court may order discovery of any matter relevant to the subject matter
involved in the action. Relevant information need not be admissible
at the trial if the discovery appears reasonably calculated to lead to
the discovery of admissible evidence.
Fed. R. Civ. P. 26(b)(1). Union Pacific further asserts that these depositions should be quashed
based upon Federal Rule of Civil Procedure 26(b)(2)(C)(iii). Rule 26(b)(2)(C)(iii) provides:
(C)
When Required. On motion or on its own, the court must
limit the frequency or extent of the discovery otherwise
allowed by these rules of by local rule if it determines that:
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(iii) the burden or expense of the proposed discovery
outweighs its likely benefit, considering the needs of
the case, the amount in controversy, the parties’
resources, the importance of the issues at stake in the
action, and the importance of the discovery in
resolving the issues.
Fed. R. Civ. P. 26(b)(2)(C)(iii).
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Union Pacific specifically asserts that Mr. Brown and Mr. Russell have had absolutely no
involvement in this case nor do they have knowledge of any evidence specific to this case.
Additionally, Union Pacific asserts that the memorandum about which plaintiff seeks to depose Mr.
Brown and Mr. Russell specifically concerned private crossings in southwest Texas and the clearing
of vegetation at those Texas crossings has no logical connection to the subject accident at a crossing
in Oklahoma. Finally, Union Pacific asserts that a policy to cut vegetation to 500 feet implemented
at a handful of private crossings in southwest Texas is irrelevant to plaintiff’s case, as the trees
plaintiff is focused on are more than 500 feet from the crossing at issue.
Plaintiff contends that because Union Pacific has argued in this case that it does not cut
vegetation at any private crossings, Mr. Rome’s actual statement is critical evidence that Union
Pacific’s practices were not what it claims in this case. Plaintiff further contends that Union
Pacific’s present motion is a continuation of its obstruction of plaintiff’s legitimate discovery of
Union Pacific’s failure to cut view obstructing vegetation at the crossing at issue.
Having carefully reviewed the parties’ submissions, the Court finds the notice to take the
depositions of Mr. Brown and Mr. Russell should be quashed. Specifically, the Court finds the
depositions of Mr. Brown and Mr. Russell will not lead to the discovery of admissible evidence.
The memorandum at issue clearly and explicitly states that Mr. Rome presented “Union Pacific’s
position regarding railroad crossings in the southwest Texas area.” Memorandum attached as
Exhibit 1 to plaintiff’s Response to Defendant’s Motion to Quash Depositions of Tracy Brown and
Buck Russell (emphasis added). The accident at issue in the case at bar occurred at a crossing in
Oklahoma. The Court finds a memorandum purportedly setting forth Union Pacific’s policy
regarding railroad crossings in the southwest Texas area is not relevant to the issues in the case at
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bar and, thus, any testimony regarding said memorandum will not lead to the discovery of
admissible evidence.
III.
Conclusion
Accordingly, for the reasons set forth above, the Court GRANTS Union Pacific’s Motion
to Quash Plaintiff’s Deposition Notice of Tracy Brown and Buck Russell and for Protective Order
[docket no. 153] and QUASHES the notice to take the depositions of Tracy Brown and Buck
Russell.
IT IS SO ORDERED this 2nd day of December, 2014.
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