Swinomish Indian Tribal Community v BSNF Railway Company

Filing 206

ORDER granting in part Plaintiff's 194 Motions in Limine. Signed by Judge Robert S. Lasnik. (LH)

Case 2:15-cv-00543-RSL Document 206 Filed 03/14/23 Page 1 of 5

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UNITED STATES DISTRICT COURT
FOR THE WESTERN DISTRICT OF WASHINGTON
AT SEATTLE

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SWINOMISH INDIAN TRIBAL
COMMUNITY,
Plaintiff,

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v.

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CASE NO. 2:15-cv-00543-RSL

BNSF RAILWAY COMPANY,

ORDER REGARDING PLAINTIFF’S
MOTIONS IN LIMINE

Defendant.

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This matter comes before the Court on the Swinomish Indian Tribal Community’s

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“Motion in Limine.” Dkt. # 194. Having reviewed the memoranda submitted by the

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parties,1 the Court finds as follows:

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1. Testimony Regarding Privileged Documents

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In November 2022, BNSF requested leave to have its outside counsel, Stephen

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DiJulio, testify regarding his communications with BNSF regarding its common carrier

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obligations. The testimony would be offered in support of BNSF’s claim that it had a good

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faith belief that its common carrier obligations compelled it to exceed the limitations

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imposed by the Easement Agreement. Dkt. # 181. BNSF acknowledged that Mr. DiJulio’s

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representations to the Tribe regarding BNSF’s understanding of its common carrier

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The matter can be decided on the papers submitted. Plaintiff’s request for oral argument is DENIED.

ORDER REGARDING PLAINTIFF’S MOTIONS IN
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obligations was “[b]ased on his privileged communications with BNSF” and recognized
that his testimony would work a voluntary waiver of attorney-client privilege. Dkt. # 181
at 1-2. Before deciding whether or not to waive the privilege, BNSF sought a judicial
determination regarding the scope of the proposed waiver, arguing that it should be limited
to only those documents that Mr. DiJulio sent or received and which involved a discussion
of either common carrier obligations or preemption. The Court declined to issue such a
ruling, finding that if Mr. DiJulio testified regarding the reason BNSF felt it had to exceed
the Easement Agreement limitations, the testimony would waive the privilege as to all
communications related to the decision to run unit trains over the easement, regardless
whether the communications supported or contradicted Mr. DiJulio’s testimony. The Court

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reasoned that:
[T]here were undoubtedly conversations regarding the pros and cons of
running unit trains that did not involve Mr. DiJulio, and the Tribe is not
unreasonable in thinking that there may be communications and documents
suggesting that something other than the imperatives of its common carrier
status motivated BNSF’s decision. BNSF cannot rely on communications
with counsel to prove its intent or motivation while depriving the opposing
party of other privileged materials that may contradict its claim. Bittaker v.
Woodford, 331 F.3d 715, 719 (9th Cir. 2003).

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Dkt. # 181 at 3-4. If BNSF intended to waive the privilege over the identified

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communications, it would also have to produce all communications regarding its decision

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to run unit trains over the easement within 21 days of the Court’s order.

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BNSF chose not to make any additional production and instead retained its privilege

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intact. BNSF has nevertheless listed Mr. DiJulio as a trial witness who will testify

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regarding “BNSF’s good faith belief that it had an obligation as a common carrier to

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provide services that met shipper needs; his discussions with the marketing department

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about the common carrier obligation, . . . and the basis for his representation to the Tribe

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that BNSF had such an obligation.” Dkt. # 201 at 17. The Tribe seeks an order precluding
ORDER REGARDING PLAINTIFF’S MOTIONS IN
LIMINE - 2

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Mr. DiJulio from testifying about any privileged analyses and communications with BNSF
employees because they were not timely disclosed. 2 BNSF argues in response that (1) the
testimony is directly and highly relevant to the primary issue in this phase of the litigation,
(2) the testimony is not privileged because Mr. DiJulio’s communicated BNSF’s belief that
its common carrier obligations required it to breach the easement limitations to the Tribe
and he should be permitted to testify regarding those communications and his “analysis” of
or “basis for his representations” to the Tribe, and (3) Mr. DiJulio’s communications with
BNSF employees are not privileged because they were not for the primary purpose of
requesting or providing legal advice but rather for the primary purpose of obtaining
“business and/or negotiations advice for BNSF’s dealing with the Tribe.” Dkt. # 198 at 3.

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The fact that Mr. DiJulio’s testimony is highly relevant to the issues to be decided at
trial has been apparent since the Court issued its summary judgment order in August 2022.
The Court noted that although BNSF had asserted a good faith belief in the primacy of its
common carrier obligations, “[t]he basis for the purported belief is unclear.” Dkt. # 174 at
26. The Court recognized that common carrier obligations do not, in fact, trump the
Tribe’s contractual, treaty, and statutory rights, that those rights imposed external
limitations on BNSF’s ability to carry goods, and that, in this context, there was no issue of
discrimination between shippers. The Court specifically called out the “lack of evidence
regarding BNSF’s evaluation of its common carrier obligations.” Id. BNSF knew that Mr.
DiJulio’s testimony regarding privileged communications he had with its employees would
be key to filling the identified evidentiary gap, and the Court was willing to reopen
discovery to allow the production of documents that had been withheld on privilege
grounds. BNSF chose not to waive the privilege or produce the withheld documents. The

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2

In its motion, the Tribe also raised objections based on a failure to disclose expert testimony and hearsay. These
arguments were not pursued in reply and have not been considered here.
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relevance and relative importance of this testimony is not a justification for its admission at
trial in the circumstances presented here.

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The parties agree that non-privileged communications – such as Mr. DiJulio’s
statements to the Tribe – are admissible, but they disagree as to whether his analysis of the
common carrier obligation and/or his communications with BNSF employees regarding
that obligation are privileged. This matter is taken under advisement. While Mr. DiJulio’s
testimony will be limited to non-privileged matters, the scope of that testimony will have
to be determined on a question-by-question basis at trial.

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2. Testimony of Katie Hower and Cary Hutchings

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BNSF plans to call Ms. Hower to testify regarding “BNSF’s marketing
department’s understanding of its common carrier obligations” while Mr. Hutchings will
be asked about “BNSF’s economic development department’s understanding of its
common carrier obligations.” Dkt. # 201 at 16. The Tribe seeks an order precluding these
witnesses from testifying about any “understanding” that arose from communications with
counsel because to do so would allow BNSF to evade the repercussions of its decision to
withhold privileged communications on the subject during discovery. BNSF maintains that
the common carrier obligations are fundamental to the way these departments conduct
their business, not as a function of the advice of counsel, but rather as a “bedrock principle
baked into the company’s DNA that guides its business decisions.” Dkt. # 198 at 2.

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The Court takes this matter under advisement. The personal knowledge of the
witnesses, the source of their information, and the nature of the question asked will likely
determine whether particular testimony is admissible or not. The scope of the testimony
will have to be resolved at trial.

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//

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ORDER REGARDING PLAINTIFF’S MOTIONS IN
LIMINE - 4

Case 2:15-cv-00543-RSL Document 206 Filed 03/14/23 Page 5 of 5

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For all of the foregoing reasons, the Tribe’s motions in limine (Dkt. # 194) are
GRANTED in part.

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Dated this 14th day of March, 2023.

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Robert S. Lasnik
United States District Judge

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ORDER REGARDING PLAINTIFF’S MOTIONS IN
LIMINE - 5