Stock v. Burlington Northern Railroad Properties Inc.

Filing 54

ORDER granting in part 34 Motion to Compel. Signed by U.S. District Judge Roberto A. Lange on 9/16/2015. (JLS)

FILED
UNITED STATES DISTRICT COURT

SEP 17 2015

DISTRICT OF SOUTH DAKOTA

~~-

SOUTHERN DIVISION

JENNIFER LYNN STOCK,

4: 14-CV-0407 4-RAL

Plaintiff,
ORDER GRANTING IN PART AMENDED

MOTION TO COMPEL DISCOVERY

vs.
BNSF RAILWAY COMPANY,
A DELAWARE CORPORATION,
Defendant.

On June 23, 2015, Defendant filed an Amended Motion to Compel Discovery. Doc. 34.
Defendant raised four general issues with Plaintiffs discovery responses:

I) Plaintiffs continual

objections to discovery requests as seeking expert opinions; 2) Plaintiffs failure to produce a
privilege log; 3) Plaintiffs alleged refusal to produce items removed from her car at the scene, which
perhaps is just the "vehicle registration card from the glove box;" and 4) Plaintiffs refusal to produce
any discovery on any possible "collateral source."

Doc. 35.

Plaintiff responded opposing

Defendant's Amended Motion to Compel by asserting that Defendant failed to abide l;>y meet-and­
confer requirements, by attributing the generality of some of her answers to being in the early stages
of discovery and by defending her discovery responses. Doc. 40. Defendant has filed a Reply Brief.
Doc. 45.
This Court has set a hearing in this case for September 30, 2015, but is prepared to rule on
core issues framed by the motion and opposition to the motion. This ruling likely does not avoid the
need for a hearing, but should assist in resolving any lingering issues at that hearing.

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First, the peculiar circumstances giving rise to the Amended Motion to Compel Discovery
and the correspondence between counsel leading up to the filing of the motion justify excusing a
more formal meet-and-confer. Moreover, requiring such a meet-and-confer prior to a ruling from
this Court likely would be futile given the positions staked out in the briefing.
Second, Plaintiff's objections to discovery requests as seeking expert opinions are overruled.
Plaintiff appears to have responded in such a manner because she had just hired new counsel and had
done little discovery at the time.

Plaintiff did answer discovery responses despite making that

objection, but did so in a general manner in several instances. Now that her counsel has been
involved for several months and Plaintiff's expert disclosure should have been, made, Plaintiff
rightfully should supplement her discovery responses omitting any such objection.
Third, there appears to be only one document asserted to be privileged for which Defendant
wants a privilege log. This document consists of notes Plaintiff made ostensibly for her lawyer. If
these notes were made for the purpose of communicating with her lawyer, they likely are privileged.
If these notes were not made for that purpose but simply were later provided to her lawyer, they
would not be privileged. Rather than requiring a privilege log for a single document, the Court wants
to review the document in camera at the September 30 hearing to assist in deciding the ultimate
issue-whether the document is discoverable or not.
Fourth, the vehicle registration card taken from the glove box, while of attenuated relevance,
is discoverable and a copy of it should be produced.
Fifth, Plaintiff's blanket refusal to provide any information on any collateral source based on
Cruz v. Groth, 2009 SD 19, 764 N.W.2d 810, is mistaken. No doubt, collateral source evidence
generally is inadmissible at trial in a case of this nature. However, the very case that Plaintiff cites
for her objection recognizes that there may be instances at trial where collateral source information
becomes admissible. Id at ~~ 11, 13,763 N.W.2d at 813-14 ("Still, the rule should not constitute an
absolute bar to the admission of collateral source evidence."). The scope of discovery under Rule
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26(b) is extremely broad. Fed. R. Civ. P. 26(b); see Black Hills Molding, Inc. v. Brandon Holdings,
295 F.R.D. 403 (D.S.D. 2013); Poulos v. Summit Hotel Properties, LLC, 2010 WL 2640396
(D.S.D. July 1,2010). "[RJelevant evidence need not be admissible at trial if the discovery appears
reasonably calculated to lead to the discovery of admissible evidence." WWP, Inc. v. Wounded
Warriors Family Support. Inc., 628 F.3d 1032, 1039 (8th Cir. 2011). Here collateral source evidence,
though typically inadmissible, could become admissible if Plaintiff is malingering or if Plaintiff
were, for example, to testify that she did not seek additional treatment because she could not afford
it.

Cruz, 2009 SD at '11, 763 N.W.2d at 813-14.
Therefore, it is hereby
ORDERED that Defendant's Amended Motion to Compel Discovery, Doc. 34, is granted in

part to the extent that, consistent with this Order, Plaintiff shall serve supplemental discovery
responses by September 28, 2015, providing an electronic signed copy and attachments to
Defendant's counsel by 3:00 p.m. on that day. It is further
ORDERED that counsel meet at the United States Courthouse or by telephone immediately
before the September 30, 2015 hearing to resolve any lingering discovery disputes, if they can. It is
further
ORDERED that at the September 30 hearing this Court will address any remaining issue that
Defendant has with the discovery responses and view the Plaintiff's notes in camera to evaluate
whether they are discoverable.
DATED this 16th day of September, 2015.

BY THE COURT:

ROBERTO A. LANGE
UNITED STATES DISTRICT JUDGE

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