Lessert v. BNSF Railway Company

Filing 167

ORDER overruling 157 Objection to Magistrate Judge Order; denying 158 Motion for Protective Order. Signed by U.S. District Judge Jeffrey L. Viken on 1/9/20. (SKK)

UNITED STATES DISTRICT COURT
DISTRICT OF SOUTH DAKOTA
WESTERN DIVISION

CIV. 17-5030-JLV

GERALD LESSERT, Special
Administrator of the Estate of RICHARD

CLAYMORE LESSERT, Deceased,
ORDER

Plaintiff,
vs.

BNSF RAILWAY COMPANY, a
Corporation,.
Defendant.

INTRODUCTION

Plaintiff, the special administrator of decedent Richard Lessert, brings this
action under the Federal Employers'Liability Act, 45 U.S.C.§ 51 et seq. (Docket
1). Decedent died on January 17, 2017, after he was struck by a train near
Edgemont, South Dakota. Id. at

5, 13. Now pending before the court are

defendant's objections to Magistrate Judge Daneta Wollmann's July 30, 2019,

order resolving discovery motions. (Dockets 155 & 157). Defendant also
moves for a protective order seeking to prohibit or limit corporate designee
depositions under Federal Rule of Civil Procedure 30(b)(6). (Docket 158).

Plaintiff opposes the objections and the motion for a protective order. (Docket
164). For the reasons given below, the court overrules defendant's objections,
denies a-protective order and affirms the substance of the magistrate judge's
order in full.

The court then sets new deadlines.

I.

Legal Standards
A.

Standard of review

"When a pretrial matter not dispositive of a party's claim or defense is
referred to a magistrate judge . . . . [t]he districtjudge in the case must consider
timely objections and modify or set aside any part-of the order that is clearly
erroneous and contrary to. law."^ Fed. R. Civ. P. 72(a).
B.

Discovery disputes

"[T]he federal rules permit liberal discovery[.]" Miscellaneous Docket
Matter No. 1 v. Miscellaneous Docket Matter No. 2, 197 F.3d 922, 925 (8th Cir.

s 1999). "Parties may obtain discovery regarding any nonprivileged matter that is
relevant to any party's claim or defense and proportional to the needs of the
case[.]" Fed. R. Civ. P. 26(b)(1). "Because of liberal discoveiy and potential for
abuse, the federal rules confer broad discretion on the district court to decide

when a protective order is appropriate and what degree of protection is required."
Miscellaneous Docket Matter No 1., 197 F.3d at 925 (internal quotation omitted).
"The 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)(1).

^Defendant incorrectly asserted this court's review is de novo. (Docket
157 at p. 2). A party may only seek de novo review of a magistrate judge's
resolution of a dispositive matter. Fed. R. Civ. P. 72(b)(3); see also 28 U.S.C.
§ 636(b)(1)(reserving de novo review for dispositive matters). The matters at
issue in this order are not dispositive.
2

n.

Analysis

Defendant poses two objections to the magistrate judge's order. First, it
asserts the magistrate judge erred by finding plaintiff may depose its Rule

30(b)(6) designee regarding its interpretation of applicable federal regulations.
(Docket 157 at pp. 2-4). Second, defendant objects to reopening all discovery,
as opposed to permitting only Rule 30(b)(6) depositions. Defendant then moves

for a protective order to limit discovery consistent with its objections. (Docket
158). The court overrules the objections and denies a protective order.
In support of its first objection, defendant cites to a plethora of case law
standing for the proposition that it is the role of a trial, court to instruct the jury
on the law governing a case. (Docket 157 at pp. 2-4). Defendant construes this
case law to signify that discovery on its interpretation of federal regulations
governing railroad safely should be barred. I^ at p. 4. This argument is
erroneous.

Otherwise discoverable information "need not be admissible in

evidence to be discoverable." Fed. R. Civ. P. 26(b)(1). Should this case proceed

to trial, no party will be permitted to make legal arguments to the jury. This
principle of law, however, does not limit the scope of discovery.
As the magistrate judge concluded, discovery regarding defendant's

interpretation of the applicable federal law is relevant to whether defendant failed
to follow the law in the circumstances surrounding decedent's death. (Docket
155 at pp. 8-9). The magistrate judge's ruling was not clearly erroneous or

contraiy to law. The ruling is affirmed and defendant's first objection is
overruled.

Defendant next objects to the magistrate judge's order reopening all

discovery for one month. (Docket 157 at pp. 4-5). It states plaintiff is now
seeking to redepose two witnesses.^

at p. 5. Defendant contends the

magistrate judge did not rule on its "several other substantive arguments" in
opposition to additional discovery, leading plaintiff to seek inappropriate second
depositions. Id. at pp. 4-5. The only argument defendant highlights in its
objections, however, is its argument that discovery "surrounding the switch
leverage ... is not relevant to any allegation in this case."^ - I^ at p. 4. Plaintiff
asserts his depositions of the witnesses did not reveal facts about the switch
leverage that he later learned, necessitating a second round of depositions.
(Docket 64 at'p. 16).

The rhagistrate judge concluded plaintiff showed good cause for a
discovery extension, pointing- to "limited discovery issues" he iderltified as

outstanding. (Docket 155 at p. 10). She further held that plaintiff acted

diligently in atterripting to resolve the remaining discovery issues before the end
2In defendant's motion for a protective order, it states the two witnesses
are Randy Dixon and Michael Smeltzer. (Docket 159 at p. 5). However,
defendant only filed a deposition notice for Mr. Dixon. (Docket 160-2).
^Plaintiff moved to amend the complaint to include an allegation that
employees had to forcibly leverage a handle on the West Wye Switch due to
encrusted ice and snow. In plaintiffs view, the employees should have called
decedent and his crew to clear the switch, which would have resulted in decedent
avoiding the collision. (Dockets 64 at pp. 8-11 85 86 at pp. 1-3). The magistrate.
judge has not yet resolved this motion.
4

of discovery.

Neither holding was clearly erroneous or contrary to law.

Defendant only raises the relevance of the switch leverage discovery as a specific
objection, so the court limits its review to that matter. Thompson v. Nix. 897
F.2d 356, 357-58 (8th Cir. 1990)("[0]bjections must be timely and specific to
trigger . . . review[.]") (emphasis added).

The magistrate judge did not explicitly determine whether the switch
leveraging discovery was relevant.. The court finds it is. . The existing complaint
alleges decedent was clearing ice and snow out of a train switch, now identified
as the Deadwood Wye Switch, when he was struck and killed.'^ (Docket 1 at

8-13) Information as to why decedent was working on .the Deadwood Wye
.
Switch—as opposed to the West Wye Switch—could be highly relevant to

plaintiffs present claim. And, of course, if the magistrate judge grants leave for
plaintiff to ^end his complaint, the switch leveraging discovery will become

explicitly relevant to the amended complaint. Reopening discovery for this
purpose was not error. The order is affirmed and defendant's second objection
is overruled.

"^There is some dispute as to the timing of the work taking place on the
switches. The National Transportation Safety Board found the accident
occurred on the Deadwood Wye Switch. (Docket 90-4 at p. 10). Plaintiff states
the switch on which decedent should have been working was the West Wye

Switch. (Docket 64 at p. 10). Plaintiff argues if decedent had been called to
work on the West Wye Switch, it would have resulted in another train blockirig
the main line, preventing the train which ultimately killed decedent from passing
through.
at p. 11. Defendant, however, asserts there is no evidence
"leveraging the switch handle hours before the incident happened played any
role whatsoever in causing the accident." (Docket 89 at p. 8). Regardless of
these factual disputes, it is clear to the court that discovery on this matter is
relevant to the allegations in the present complaint.
5

The magistrate judge reopened discovery "for the narrow purposes
outlined in Plaintiffs motion" for one month. (Docket 155 at p. 11). Although

plaintiff asked for a two-month extension, he did not object to the magistrate

judge's order. (Docket 63). The court affirms the substance of the order in full
order and modifies it only to set new deadlines.
ORDER

For the reasons given above, it is

ORDERED that defendant's objections to the magistrate judge's order of
July 30, 2019 (Docket 157) are overruled.
IT IS FURTHER ORDERED that defendant's motion for a protective order
(Docket 158) is denied.
IT IS FURTHER ORDERED that the magistrate judge's order of July 30,

2019 (Docket 155) is affirmed in part and modified in part. Deadlines are set as
follows:

1.

All discovery,including expert discovery shall be completed by
February 10, 2019.

2.

All motions, other than motions in limine, together with
supporting briefs, shall be filed and served on or before
February 24, 2020.

3.

Plaintiff shall response to defendant's motion for partial
summary judgment on or before February 24, 2020.

Dated January 9, 2020.
BY THE COURT:

JEF^
UNITED STATES DISTRICT JUDGE