Brown v. Norfolk Southern Railway Company

Filing 71

MEMORANDUM AND ORDER: The Court GRANTS Defendant's Motion for Protective Order [Doc. 54 ] and DENIES Defendant's Motion for Enforcement of the Trial Witness Disclosure Deadline and Issuance of a Protective Order Quashing Plaintiff's Untimely 30(b)(6) Deposition Notice to Norfolk Southern with Request for Expedited Hearing [Doc. 56 ]. Signed by Magistrate Judge Debra C Poplin on 1/17/20. (JBR)

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF TENNESSEE
AT KNOXVILLE
ARNOLD BROWN,
Plaintiff,
v.
NORFOLK SOUTHERN RAILWAY
COMPANY,
Defendant.

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No. 3:18-CV-205-TRM-DCP

MEMORANDUM AND ORDER
This case is before the undersigned pursuant to 28 U.S.C. § 636, the Rules of this Court,
and Standing Order 13-02.
Now before the Court is Defendant’s Motion for Protective Order [Doc. 54] and
Defendant’s Motion for Enforcement of the Trial Witness Disclosure Deadline and Issuance of a
Protective Order Quashing Plaintiff’s Untimely 30(b)(6) Deposition Notice to Norfolk Southern
with Request for Expedited Hearing [Doc. 56]. The parties appeared before the Court on January
8, 2020, for a motion hearing. Attorney Andrew Lampros appeared on behalf of Plaintiff.
Attorneys Emily Herman-Thompson, Ronald Wray, and John Baker appeared on behalf of
Defendant.

Accordingly, for the reasons more fully set forth below, the Court GRANTS

Defendant’s Motion [Doc. 54] and DENIES Defendant’s Motion [Doc. 56].
I.

POSITIONS OF THE PARTIES
The Court will summarize the motions in the order in which they were filed.
A.

Defendant’s Motion for Protective Order [Doc. 54]

Defendant seeks a protective order from having to respond to Plaintiff’s additional
discovery requests relating to RailView. Defendant explains that the parties have spent thousands

of dollars on discovery relating to various RailView issues, including written discovery, document
production, the deposition of Defendant’s Manager of the Transportation Data Center (Adam
Mastrangelo), and a nearly ten-hour forensic examination of the RailView hard drive and flash
card in Roanoke, Virginia, by Plaintiff’s experts. Defendant argues that the RailView data has no
bearing on the central issues in this case.
Plaintiff insists [Doc. 58] that the most recent discovery requests are narrowly tailored to
allow a complete analysis of the RailView data. Plaintiff states that Defendant has made several
representations to the Court regarding RailView that are suspect. Plaintiff states that Defendant’s
employee, Adam Mastrangelo (“Mastrangelo”), developed RailView, which contradicts the
representation that it is solely the product of Leidos, Inc., (“Leidos”). Plaintiff argues that
Defendant used tax-payer money to equip its locomotives with RailView. In addition, Plaintiff
states that Defendant’s representation to the Court that the RailView hard drive contained
proprietary, human readable software was false. Plaintiff states that after removing the hard drive
from the locomotive, Defendant wrote a video file to the hard drive, and therefore, did not preserve
the hard drive in the state that it was in at the time of the accident. Plaintiff argues that the facts
contradict Leidos’s proprietary concerns over RailView. In addition, Plaintiff maintains that
Defendant exported the video from the hard drive using some sort of administrative tool and that
Plaintiff’s latest discovery requests relating to RailView seek documents relating to exporting files.
Plaintiff states that the requests seek documents that are supplemental to the hard drive, data, and
RailView.
Defendant replies [Doc. 104] that Plaintiff fails to argue that the resolution of any issue
relating to RailView is relevant to the matters that are central to the determination of Plaintiff’s
claim. Defendant maintains that the lead locomotive did not capture the incident at issue.

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Defendant disputes the facts about RailView that are outlined in Plaintiff’s Response but argues
that in any event, Plaintiff’s alleged facts have no bearing upon the undisputed fact that there is no
video footage of the incident. Defendant argues that Plaintiff’s accusation that it made a false
representation to the Court on this issue is inappropriate and demonstrably wrong.
B.

Defendant’s Motion for Enforcement of the Trial Witness Disclosure Deadline
and Issuance of a Protective Order Quashing Plaintiff’s Untimely 30(b)(6)
Deposition Notice to Norfolk Southern with Request for Expedited Hearing
[Doc. 56]

In its Motion, Defendant requests that the Court enforce the final witness list deadline
imposed within the Amended Scheduling Order and enter a protective order quashing Plaintiff’s
untimely Rule 30(b)(6) deposition notice. Defendant argues that Plaintiff’s attempt to take a Rule
30(b)(6) witness is designed to convert this case into one of strict liability in light of the clear
evidence that Plaintiff was contributory negligent.

Defendant states that despite countless

telephone and written communications about witness depositions, without one word mentioned of
a Rule 30(b)(6) witness on rules and regulatory compliance, Plaintiff served a Rule 30(b)(6) notice
four days after the final witness deadline had already expired.
Defendant argues that Plaintiff is attempting to unilaterally modify the final witness list
deadline without obtaining or seeking Defendant’s consent or the Court’s permission. Defendant
asserts that Plaintiff’s Rule 30(b)(6) notice is untimely and part of an ambush tactic. Defendant
states that Plaintiff did not identify in his initial disclosures the subject matter that the Rule 30(b)(6)
witness should testify, and Plaintiff’s silence led Defendant to believe that Plaintiff was not
pursuing a negligence per se case. Defendant states that Plaintiff has never supplemented his initial
disclosures to identify a corporate witness on the subjects of information he now seeks. Further,
Defendant argues that the Rule 30(b)(6) notice is unnecessary because it will be unreasonably
cumulative and/or duplicative of prior discovery, and its relevancy is questionable.
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Plaintiff responds [Doc. 64] that Defendant has failed to meet its burden. Plaintiff argues
that he alleged negligence per se in his Complaint. Further, Plaintiff included a Rule 30(b)(6)
witness in his initial disclosures, which were served on July 31, 2018. Plaintiff states that he also
included a corporate designee on his final witness list and his supplemental final witness list.
Plaintiff states that he is permitted to ask a Rule 30(b)(6) witness about regulatory compliance. In
addition, Plaintiff states that the Federal Rules allow discovery to proceed in any sequence and
that there is no requirement that a Rule 30(b)(6) notice be served before or after any specific event.
Plaintiff states that it is immaterial that other witnesses may have testified on matters related to the
Rule 30(b)(6) topic.
Defendant replies [Doc. 67] that it has shown good cause to quash the untimely and
unnecessary Rule 30(b)(6) notice and that Plaintiff has provided no reasonable justification for this
deposition. Defendant maintains that the Federal Rules have built in judicial discretion, especially
when the Court orders a final witness list deadline, which clearly contemplates all witnesses being
identified prior to that deadline.
II.

ANALYSIS
The Court will address Defendant’s Motions in the order in which they were filed.
A.

Defendant’s Motion for Protective Order [Doc. 54]

As mentioned above, Defendant seeks a protective order pursuant to Rule 26(c), protecting
it from having to respond to Plaintiff’s discovery requests [Doc. 54-4], relating to RailView.
Federal Rule of Civil Procedure 26(c) provides, “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). Further, “where a party moves for a protective order under
Rule 26(c), the burden is on the moving party to show good cause for the issuance of

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the protective order.” In re Skelaxin (Metaxalone) Antitrust Litig., 292 F.R.D. 544, 549 (E.D.
Tenn. 2013).
Rule 26(b) governs the parameters of discovery, which provides, in relevant part: “Parties
may obtain discovery regarding any nonprivileged matter that is relevant to any party’s claim or
defense and proportional to the needs the case.” Courts have explained that the “scope of discovery
under the Federal Rules of Civil Procedure is traditionally quite broad.” Meredith v. United
Collection Bureau, Inc., 319 F.R.D. 240, 242 (N.D. Ohio 2017) (quoting Lewis v. ACB Bus. Serv.,
Inc., 135 F.3d 389, 402 (6th Cir. 1998)). Courts have cautioned, however, that “[d]iscovery
requests are not limitless, and parties must be prohibited from taking ‘fishing expeditions’ in hopes
of developing meritorious claims.” Bentley v. Paul B. Hall Reg’l Med. Ctr., No. 7:15-CV-97ART-EBA, 2016 WL 7976040, at *1 (E.D. Ky. Apr. 14, 2016).
With the above analysis in mind, the Court will turn to the present issue: Plaintiff’s
additional discovery requests relating to RailView. The Court is familiar with RailView as it has
been the subject of several discovery disputes between the parties. In summary, RailView is a
digital recording system mounted on the cab of Defendant’s locomotive, and the data captured by
the RailView system can be viewed with software, which is developed by Leidos. Plaintiff states
that his discovery requests “fall squarely within Rule 26 [because] [h]ere, if video captured the
incident, that would be highly relevant and important to Plaintiff’s claim.” [Doc. 58 at 7]. The
Court agrees that had the video captured the incident, RailView would be highly relevant in this
case. Here, however, there is no genuine dispute that the RailView did not capture the incident.
Instead, Plaintiff acknowledged at the hearing that his discovery requests are directed more toward
the potential for spoliation of evidence.

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The problem with Plaintiff’s argument with respect to spoliation involving the RailView
data is that he only offers speculation to support it. The Court notes that Plaintiff has already
received much discovery regarding RailView. As Defendant has explained, the parties have
exchanged documents, and Plaintiff and his experts traveled to Roanoke, Virginia, to image and
conduct a forensic analysis of the hard drive and flash card. Plaintiff also took the deposition of
Mastrangelo solely to ask about RailView and the data on RailView. Plaintiff now seeks additional
discovery, relating to RailView. [Doc. 54-1 at 19]. The Court finds that Defendant has shown
good cause for a protective order and that the additional discovery requests are not relevant to the
issues in this case.
The incident giving rise to Plaintiff’s claim occurred on October 27, 2016. The locomotive
was inspected a year prior to the incident, in October 2015, and the inspection showed that the
RailView on the locomotive at issue was not functioning properly.1 [Doc. 54-1 at 18]. During
Mastrangelo’s deposition, he explained how RailView’s hardware worked:
A. It has two different mediums inside. One is a –is a rotary
drive, hard drive. And one is a compact flash card.
Q. And does it record the same information to both the rotary
drive and the flash card?
A. Yes. Just one is larger than the other, so one will wrap
quicker than the other one will.
Q. What do you mean “wrap?”
A. It works with a circular cue. So new data in, and when it
gets to the limit of the drive old data will get rewritten by the
newest data. So it will wrap.

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There were hardware and software issues with the Railview. The hardware issues were
fixed prior to the incident, but the software issues were not. Attorney Wray explained at the
hearing that the shop does not perform software fixes and that the RailView should have been
taken to Leidos at the time the issue was discovered.
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[Id. at 3]. Further, Mastrangelo testified about the software problem that Defendant experienced
with Railview. He stated that when the DVR boots up, its first task is to build directories, but
because it was taking too long to build directories (i.e., longer than four minutes), the DVR
continued to reboot without capturing any footage. [Id. at 9]. The last viewable file on the instant
DVR was from July 21, 2012. [Id. at 16]. He stated that the constant rebooting issue was system
wide and not simply with the locomotive at issue. [Id. at 10].
Mastrangelo further testified that the DVR was removed from the locomotive on October
29, 2016, by J.D. Bartko, a claims agent. [Id. at 5]. He stated that Bartko could have downloaded
the data if he had a laptop, but he did not download it. [Id. at 6]. Mastrangelo testified that when
the DVR was taken to the lab, it was still having booting issues, so he started quality assurance.
[Id. at 12]. He turned off the rebooting process in order to determine what was wrong with the
software. [Id. at 9]. As Mastrangelo explained:
So the data file that I retrieved from the DVR in this particular case,
which was under that it says, last good video. So the very last thing
that was recorded on that DVR before it started rebooting and not
recording any more data to the DVR, I recorded—I retrieved about
the last 15 minutes or so of data to show what was going on prior to
it to the time it stopped recorded. So that was the file name that I
retrieved as the last good video. The date that I did it was 10/31/16.
And the data was not posted to the claims. It was just archived and
preserved in the packet.
[Id. at 13]. He continued:
If you look all the way to the bottom at Item No. 40 it says, recorded
test clip as it record. Play back the record. It says, yes. So once I
was able to get the DVR’s directories to build, once I waited the
seven minutes, the last thing that we did, or I did, was see if it would
record data. And it did.
[Id. at 14].
Plaintiff argues that after he and his experts performed the inspection in Roanoke, Virginia,
they had questions regarding the test clip that Mastrangelo made after the incident. Specifically,
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Plaintiff stated that he wanted to know whether Mastrangelo’s manipulation affected the DVR.
First, Plaintiff had the opportunity to fully question Mastrangelo about this topic. In addition, as
defense counsel explained at the hearing, Mastrangelo’s test clip did not affect the native DVR.
Mastrangelo testified that when storage is low either on the hard drive or the flash card, the data
wraps, meaning that the new data will be rewritten over the oldest data. Given that the most recent
viewable data on the DVR was 2012, it is clear that Mastrangelo’s test clip did not affect the DVR
or any subsequent recordings on the DVR. In addition, Plaintiff claims that Defendant has an
administrative tool to work with the bin video files. Plaintiff did not provide any details as to the
administrative tool, and Mastrangelo testified that the bin files are retrieved from the DVR using
RailView software. [Doc. 59 n. 1], see generally [Doc. 54-1].
In support of his request, Plaintiff also asserts that Defendant represented to the Court that
the Leidos’s software is proprietary. For instance, Plaintiff states that Defendant did not mention
that it and Mastrangelo were instrumental in the testing and implementation of RailView. Plaintiff
also asserts that Defendant used tax-payer money to equip its locomotives with RailView. The
Court finds such arguments irrelevant to the issues in this case, including the alleged spoliation of
evidence. Further, it was Leidos that took the position that its software was proprietary and
contained human readable software. Accordingly, the Court finds that Plaintiff’s additional
discovery requests constitute a fishing expedition and that Defendant has shown good cause for a
protective order.
B.

Defendant’s Motion for Enforcement of the Trial Witness Disclosure Deadline
and Issuance of a Protective Order Quashing Plaintiff’s Untimely 30(b)(6)
Deposition Notice to Norfolk Southern With Request for Expedited Hearing
[Doc. 56]

The Court has considered the parties’ positions, and for the reasons explained below, the
Court finds Defendant’s Motion [Doc. 56] not well taken.
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As mentioned above, Defendant seeks to quash Plaintiff’s Rule 30(b)(6) notice. Defendant
complains that the final witness deadline expired on November 18, 2019, and that Plaintiff served
a Rule 30(b)(6) witness deposition notice four days later on November 22, 2019. As mentioned
above, Rule 26(c) states, “The court may, for good cause, issue an order to protect a party or person
from annoyance, embarrassment, oppression, or undue burden or expense.” Because Defendant
seeks the protective order, it is Defendant’s burden to show good cause.

In re Skelaxin

(Metaxalone) Antitrust Litig., 292 F.R.D. at 549.
The Court finds that Defendant has not established good cause for a protective order.
Defendant claims that Plaintiff’s Rule 30(b)(6) is part of an ambush tactic because Plaintiff never
disclosed the specific categories of information that he now seeks and that Plaintiff’s silence led
Defendant to believe that Plaintiff was not pursuing a negligence per se case. The Court finds
Defendant’s argument to be a non-starter.
First, Plaintiff pleads negligence per se in his Complaint. See [Doc. 1 at 2] (“Arnold brings
this claim for Norfolk Southern’s negligent violations of its rules, federal regulations including but
not limited to 49 C.F.R. Ch. II, and other negligent and negligence per se conduct violating the
Federal Employer’s Liability Act (“FELA”), 45 U.S.C. § 51-60 et seq. . .”). He further pleads
negligence per se for Defendant failing to sound the horn at several points, for traveling at
excessive speeds, for entering conditional limits, failing to communicate, and for failing to make
sure the tracks were clear. [Id. at ¶ 35]. These allegations are similar to the topics noticed for the
Rule 30(b)(6) deposition. [Doc. 56-1].
Further, Plaintiff lists a Rule 30(b)(6) witness on his initial disclosures [Doc. 64-1 at 3].
While he did not include specific topics of information for the Rule 30(b)(6) witness in his initial
disclosure, Plaintiff only has a duty to supplement “if the additional or corrective information has

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not otherwise been made known to the other parties during the discovery process or in writing.”
Fed. R. Civ. P. 26(e). Here, Plaintiff’s Rule 30(b)(6) notice provided Defendant with the notice
required under the Rule. Further, the Court does not find Plaintiff’s Rule 30(b)(6) witness notice
to be untimely as it was served and scheduled before the discovery deadline. While Plaintiff did
not include a specific name for the Rule 30(b)(6) witness on the final witness list, the Court notes
that it is Defendant’s choice of who to designate, and Plaintiff is allowed to supplement his witness
list with leave of Court and for good cause shown. [Doc. 23 at 2].
In addition, Defendant argues that Plaintiff has already had an opportunity to explore the
categories of inquiry at great length, given the number of employees who have already testified
about regulatory compliance. It is well established, however, “A Rule 30(b)(6) witness differs
from a ‘mere corporate employee’ because, unlike an individual witness, the testimony of a Rule
30(b)(6) witness represents the knowledge of the corporation and testimony under the rule binds
the corporation.” Edwards v. Scripps Media, Inc., 331 F.R.D. 116, 121 (E.D. Mich. 2019) (citing
White v. Wal-Mart Stores E., L.P., No. 518CV00034TBRLLK, 2018 WL 5083891, at *3 (W.D.
Ky. Oct. 18, 2018); Majestic Bldg. Maint., Inc. v. Huntington Bancshares Inc., No. 2:15-CV-3023,
2018 WL 3358641, at *12 (S.D. Ohio July 10, 2018)). Therefore, “prior deposition testimony
from individual fact witnesses does not relieve a corporation from designating a corporate
spokesperson in response to a Rule 30(b)(6) notice of deposition.” Id. (quoting Majestic Bldg.
Maint., 2018 WL 3358641 at *12).
Defendant argues that Plaintiff should have issued the Rule 30(b)(6) notice earlier in the
litigation, but the Court agrees with Plaintiff that Rule 26(d) specifically states that the “methods
of discovery may be used in any sequence.” Fed. R. Civ. P. 26(d)(3)(A).

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Further, Defendant argues that the Rule 30(b)(6) notice is facially designed to have a
witness testify about the law. The Court disagrees. Defendant conducts business in a highlyregulated field. The deposition notice simply requests information regarding Defendant’s own
programs for complying with certain regulations. Such inquiries are factual inquiries and are
permissible. See also Lessert v. BNSF Ry. Co., No. 5:17-CV-05030-JLV, 2019 WL 3431282, at
*4 (D.S.D. July 30, 2019) (explaining that railroad defendant’s interpretation and implementation
of the Roadway Worker Protection regulations are relevant to plaintiff’s allegations that defendant
failed to follow such regulations and that defendant cites no authority for its position that it is
improper for plaintiff to depose defendant about its interpretation or applicability of federal law).
Accordingly, the Court finds Defendant’s arguments not well taken.
III.

CONCLUSION
Accordingly, for the reasons explained above, the Court GRANTS Defendant’s Motion

for Protective Order [Doc. 54] and DENIES Defendant’s Motion for Enforcement of the Trial
Witness Disclosure Deadline and Issuance of a Protective Order Quashing Plaintiff’s Untimely
30(b)(6) Deposition Notice to Norfolk Southern with Request for Expedited Hearing [Doc. 56].
IT IS SO ORDERED.
ENTER:
_________________________
Debra C. Poplin
United States Magistrate Judge

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