Smith et al v. BNSF Railway Company

Filing 42

ORDER DENYING 38 DEFENDANT'S MOTION FOR PROTECTIVE ORDER. Signed by Judge Salvador Mendoza, Jr. (DB, Courtroom Deputy)

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FILED IN THE
U.S. DISTRICT COURT
EASTERN DISTRICT OF WASHINGTON

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Sep 12, 2019
UNITED STATES DISTRICT COURT SEAN F. M AVOY, CLERK
EASTERN DISTRICT OF WASHINGTON

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C

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RUTH SMITH, individually and as
personal representative of the Estate of
Donald Smith; KYLE MOSS and
SAMANTHA (BAIRD) MOSS,
husband and wife,

No. 2:18-cv-00179-SMJ
ORDER DENYING DEFENDANT'S
MOTION FOR PROTECTIVE
ORDER

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Plaintiffs,
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v.
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BNSF RAILWAY COMPANY,
commonly known as The Burlington
Northern Santa Fe Railway, a Delaware
corporation doing business in the State
of Washington, and DOE
DEFENDANTS I THROUGH X,
Defendants.

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Before the Court, without oral argument, is Defendant BNSF Railway
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Company’s Motion for a Protective Order Regarding Request for Production No.
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15, ECF No. 38, and related motion to expedite, ECF No. 40. Defendant seeks to
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extend its deadline for responding to Request for Production 15 in the third set of
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requests served by Plaintiffs Ruth Smith, the Estate of Donald Smith, Kyle Moss,
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and Samantha (Baird) Moss on July 26, 2019. See ECF No. 39-1 at 6, 9. Request
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for Production 15 requires Defendant to produce certain “train dispatcher

ORDER DENYING DEFENDANT'S MOTION FOR PROTECTIVE ORDER - 1

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records,” including audio recordings. Id. at 6. Claiming that providing this

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discovery will impose a disproportionately “huge burden” on it, Defendant seeks

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to extend its September 4, 2019 deadline to September 30, 2019. ECF No. 39 at 2.

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Plaintiffs already agreed to one prior extension and are unwilling to grant

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Defendant more time to provide this discovery. Id. Thus, Plaintiffs oppose

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Defendant’s motion for a protective order. ECF No. 41. Having reviewed the

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briefing and the file in this matter, the Court is fully informed and denies the

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motion.

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As an initial matter, Defendant’s attempt to discount the probative value of

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the train dispatcher records is unavailing. The scope of discovery is broad. See

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Fed. R. Civ. P. 26(b)(1). “Relevance, for discovery purposes, encompasses ‘any

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matter that bears on, or that reasonably could lead to other matter that could bear

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on, any issue that is or may be in the case.’” Equal Emp’t Opportunity Comm’n v.

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Wal-Mart Stores, Inc., 276 F.R.D. 637, 641 (E.D. Wash. 2011) (quoting

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Oppenheimer Fund, Inc. v. Sanders, 437 U.S. 340, 351 (1978)). Defendant tacitly

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admits the train dispatcher records are discoverable. See ECF No. 38 at 6.

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The issue is whether Defendant should receive more time to produce the

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train dispatcher records. The Court has “wide discretion in controlling discovery.”

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Jeff D. v. Otter, 643 F.3d 278, 289 (9th Cir. 2011) (quoting Little v. City of Seattle,

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863 F.2d 681, 685 (9th Cir. 1988)). For good cause, the Court may issue a

ORDER DENYING DEFENDANT'S MOTION FOR PROTECTIVE ORDER - 2

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protective order “to protect a party or person from annoyance, embarrassment,

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oppression, or undue burden or expense.” Fed. R. Civ. P. 26(c)(1). “A party

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asserting good cause bears the burden . . . of showing that specific prejudice or

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harm will result if no protective order is granted.” Foltz v. State Farm Mut. Auto.

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Ins. Co., 331 F.3d 1122, 1130 (9th Cir. 2003). “[B]road allegations of harm,

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unsubstantiated by specific examples or articulated reasoning, do not satisfy th[is]

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test.” Id. (quoting Beckman Indus., Inc. v. Int’l Ins. Co., 966 F.2d 470, 476 (9th

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Cir. 1992)).

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In an affidavit signed the day before the deadline, Defendant’s director of

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dispatching practices and rules says it will take a senior manager thirty hours over

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the course of four weeks to sort and compile information responsive to request for

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production 15. ECF No. 39-2 at 3. However, Defendant fails to explain why the

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five-and-a-half weeks it had before the deadline were insufficient.

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Further, Defendant’s complaints amount to mere inconvenience and do not

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rise to the level of specific prejudice or harm it will suffer in the absence of relief.

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Even if it had done so, Defendant’s predicament appears to be of its own making,

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and the Court will not intervene to relieve Defendant of the consequences of its

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procrastination. There is no good cause to extend Defendant’s deadline a second

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time. The motion is denied.

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Consequently, the Court “must, after giving an opportunity to be heard,

ORDER DENYING DEFENDANT'S MOTION FOR PROTECTIVE ORDER - 3

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require the movant, the attorney filing the motion, or both to pay the party or

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deponent who opposed the motion its reasonable expenses incurred in opposing

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the motion, including attorney’s fees.” Fed. R. Civ. P. 37(a)(5)(B); see also Fed.

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R. Civ. P. 26(c)(3). No exception exists. Therefore, the parties shall brief the

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amount of an appropriate sanction.

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Accordingly, IT IS HEREBY ORDERED:

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1.

Defendant’s Motion for a Protective Order Regarding Request for
Production No. 15, ECF No. 38, is DENIED.

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2.

Defendant’s related motion to expedite, ECF No. 40, is GRANTED.

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3.

Defendant shall fully respond to request for production 15 in
Plaintiffs’ third set no later than September 20, 2019.

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4.

The parties shall brief the amount of an appropriate sanction as

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follows:

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A.

No later than September 20, 2019, Plaintiffs shall file a

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motion and material to support an award of expenses,

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including attorney fees, reasonably incurred in opposing

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Defendant’s request for a protective order. If the motion is

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stipulated or unopposed, counsel shall indicate as such.

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B.

Defendant may file a response no later than fourteen days
after Plaintiffs file the above motion.

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C.

Defendant files the above response.

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Plaintiffs may file a reply no later than seven days after

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The motion hearing shall be set without oral argument on
October 21, 2019 at 6:30 PM.

IT IS SO ORDERED. The Clerk’s Office is directed to enter this Order
and provide copies to all counsel.
DATED this 12th day of September 2019.

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SALVADOR MENDOZA, JR.
United States District Judge

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ORDER DENYING DEFENDANT'S MOTION FOR PROTECTIVE ORDER - 5