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Sherwood v. BNSF Railway Co.

United States District Court, D. Idaho

May 9, 2018

BNSF RAILWAY COMPANY, a Delaware corporation d/b/a The Burlington Northern and Santa Fe Railway Company, and JOHN DOES I through X, Defendants.


          Ronald E. Bush Chief U.S. Magistrate Judge

         Presently before the Court are Plaintiffs' Motion to Compel (Dkt. 41) and Defendant's Motion to Strike Supplemental Authority (Dkt. 125). Having carefully considered the record, heard oral argument on the motion to compel on January 17, 2018, and otherwise being fully advised, the Court enters the following Memorandum Decision and Order:


         Plaintiff Robert Sherwood alleges he was injured when thrown from his bicycle after his wheel lodged in a gap between two concrete planks at a railroad crossing used by Defendant BNSF Railway Company (“BNSF”) near Sandpoint, Idaho. Compl. ¶¶ 23, 24, 49-61, 65-70 (Dkt. 1). BNSF admits that Mr. Sherwood was involved in a bicycle crash on or near the crossing, but denies various other allegations, including that it is liable for Mr. Sherwood's injuries. See generally Ans. (Dkt. 5).

         The accident occurred on July 14, 2014. Compl. ¶ 49 (Dkt. 1); Ans. ¶ 60 (Dkt. 5). Mr. Sherwood sued on January 6, 2016, alleging negligence. Compl. ¶¶ 90-96 (Dkt. 1). His wife, Pamela Louise Sherwood, separately alleges a claim for loss of spousal consortium. Id. ¶ 97.

         This case has engendered numerous motions from each party; over a dozen are presently pending. This decision resolves the Sherwoods' pending motion to compel and BNSF's motion to strike supplemental authority. In the motion to compel, the Sherwoods seek an order requiring BNSF to supplement its responses to several interrogatories and requests for production, and to reopen BNSF's corporate deposition under Federal Rule of Civil Procedure 30(b)(6). (Dkt. 41.)

         Oral argument was heard on the motion to compel on January 17, 2018.[1] (Dkt. 121.) On February 8, 2018, the Sherwoods filed a statement of supplemental authority regarding the motion to compel. (Dkt. 123.) BNSF then moved to strike the filed supplemental authority. (Dkt. 125.) Both filings occurred after the hearing on the underlying motion to compel.


         “The Federal Rules of Civil Procedure contemplate full and equal discovery so as to prevent surprise, prejudice and perjury during trial.” Nationwide Life Ins. Co. v. Richards, 541 F.3d 903, 910 (9th Cir. 2008) (quotation marks omitted). Rule 26(b)(1) permits discovery regarding nonprivileged matters that are relevant to any party's claim or defense. Federal Rule of Evidence 501 provides that “in a civil case, state law governs privilege regarding a claim or defense for which state law supplies the rule of decision.” In this diversity action, both claims raised by the Sherwoods arise under Idaho law. Accordingly, Idaho law on privilege applies.

         Under Idaho law, “[t]he burden of showing [that] information is privileged, and therefore exempt from discovery, is on the party asserting the privilege.” Kirk v. Ford Motor Co., 116 P.3d 27, 34 (Idaho 2005). Idaho recognizes privileges related to attorney-client communications. I.C. § 9-203(2). However, the existence of and parameters of the work-product doctrine are a matter of federal law (the work-product doctrine is just that, and not a privilege). Hence, the Court looks to Idaho law to determine whether a privilege is recognized, and to federal law to determine whether it has been properly raised and preserved. Doing so requires application of Federal Rule of Civil Procedure 26(b)(5)(A), which also applies to consideration of the work product doctrine.

         Under Ninth Circuit law, failure to produce the privilege log required by Rule 26(b)(5)(A) does not lead to a “mechanistic determination” of waiver; rather, courts apply a “holistic reasonableness analysis” that looks at all the circumstances. Burlington Northern & Santa Fe Ry. Co. v. U.S. Dist. Ct., 408 F.3d 1142, 1149 (9th Cir. 2005). Specifically, in deciding whether a privilege has been sufficiently asserted, courts consider (1) the degree to which the objection enables evaluation of the claimed privilege; (2) the timeliness of the objection and accompanying information about the withheld documents; (3) the magnitude of the document production; and (4) any other particular circumstances of the litigation. Id.

         Significantly, boilerplate objections are presumptively insufficient and providing a privilege log within thirty days is presumptively sufficient. Id.


         The Sherwoods seek discovery in five areas. First, they seek details regarding BNSF's general incident investigation procedures. Mem. in Supp. 2-7 (Dkt. 41-1). Second, they seek interrogatory answers, deposition answers, and documents regarding BNSF's incident investigation for Mr. Sherwood's specific incident. Id. at 8-15. Third, they seek interrogatory answers regarding BNSF's destruction of physical evidence. Id. at 15-17. Fourth, they seek deposition answers regarding BNSF's failure to preserve physical evidence. Id. at 17-18. Fifth, they seek interrogatory answers and documents regarding BNSF's post-crash alteration of the crossing. Id. at 18-19. Finally, the Sherwoods also seek an award against BNSF for their expenses in bringing this motion. Id. at 19. Each of these requests will be taken up in turn.

         A. Discovery Regarding General Incident Investigation Procedures

         The Sherwoods' request for production (“RFP”) number 37 sought the following:

Please produce all policies, procedures, or rules applicable to investigations and inspections related to the crash at issue in this case.
This request does not seek policies, procedures, or rules applicable only to investigations and inspections of crashes that occurred in some other geographic area, at some other time, or under other circumstances (e.g. a train derailment or a motor vehicle crash). However, to the extent that a policy, procedure, or rule was applicable to both the investigations and inspections after the crash at issue in this case and to crashes in other locales, at other times, and under other circumstances, any such policy, procedure, or rule falls within the scope of this request.
This request specifically includes, but is not limited to, policies, procedures, or rules for: forming an investigative team; creating a template in which to record information regarding the incident; logging information about the incident in any software program, application, or database; documenting the scene; taking and preserving photographs; preserving physical evidence; generating incident reports; and/or completing incident reports.

Mem. in Supp., Ex. 1 Local Rule 37.2 Addendum at 11 (Dkt. 41-2). BNSF objected to RFP 37:

OBJECTION is made because the request on its face potentially seeks materials protected by the attorney-client privilege. FURTHER OBJECTION is also made because the request seeks written material regarding templates, software programs/applications/databases and other documentation regarding how BNSF and, specifically, how its Claims department functions, and such documents are protected as proprietary and confidential. Castillon v. Corr. Corp. of Am., 2013 U.S.Dist. LEXIS 112729 (D.Idaho 8/6/2013). The BNSF Claims department operates under the direction of the BNSF Law Department. Any information that could be considered “policies, procedures, or rules applicable to investigations and inspections” are the equivalent of instructions from counsel.

Id. at 11-12.

         The Sherwoods attack each of BNSF's objections. In response, BNSF argues that “Plaintiffs learned all there is to know on this topic via the Rule 30(b)(6) deposition of BNSF representative Daniel Flatten.” BNSF Resp. 7 (Dkt. 52). BNSF quotes Mr. Flatten's testimony that “[t]he claims department doesn't have policy. . . . The procedures that are written down are designed to be a guide, a best practice, a road map, to help point individuals in the right direction to address issues they may encounter while conducting an investigation.” Flatten Dep. 15:8, 16:12-16 (Dkt. 100-1).[2] BNSF also argues no reference guide or other document was consulted in BNSF's investigation of Mr. Sherwood's incident, so there are no responsive documents to produce. BNSF Resp. 9 (Dkt. 52).

         These arguments miss the mark. RFP 37 requested “all policies, procedures, or rules applicable to investigations and inspections related to the crash at issue, ” not merely those that BNSF says, unilaterally, were in fact applied. As the Sherwoods point out, Mr. Flatten (BNSF's representative) confirmed that there are “procedures that are written down.” A complete excerpt of the relevant exchange makes clear that the procedures referenced by Mr. Flatten are within the scope of RFP 37:

Q. Who formulates policies for the claims department?
A. The claims department doesn't have policy. And my understanding what I think we've agreed on as a term.
Q. Okay. So there is no formal written documents within the claims department that mandate conduct?
A. No.
Q. Okay. So how is a claims representative in the field to know what he or she ought to do in investigating an incident?
A. So we do have procedures. We do have a robust training program when we onboard people that consists largely of on-the-job training that people get boots on the ground. They deal with individual instances and they begin to build their universe of experience. We talked a little bit earlier about the hierarchy, the structure of the claims department. That on-job training is supervised by somebody within their chain of command and they are an additional resource for that individual. And so an individual by virtue of on-the-job training and experience ultimately begins to develop an understanding of what is necessary to deal with issues as they present themselves.
Q. Okay. Are there any procedures that are written down or are they all, I guess, encapsulated in the institutional knowledge of the corporation?
A. There are some procedures that are written down, but those procedures aren't specific to if you're handling “X” type of event, an individual will do “Y.” The procedures that are written down are designed to be a guide, a best practice, a road map, to help point individuals in the right direction to address issues that they may encounter while conducting an investigation.
Q. Okay. So there are documents out there that are guides, best practices and road maps that claims representatives in the field would use when conducting an investigation; is that -- MR. MITCHELL: I'm going to object, mischaracterizes his testimony. You can answer, if you recall.
A. There are documents that are available as a resource or a reference.

Flatten Dep. 15:6-16:25 (Dkt. 100-1) (emphases added).

         BNSF's counsel defending the deposition went to great lengths to focus the questioning on the topics listed in the notice of deposition; hence, the Court will not entertain any argument that the procedures mentioned at the conclusion of this excerpt were somehow outside the scope of, or otherwise distinct from, BNSF's incident investigation procedures.

         Moreover, other portions of Mr. Flatten's testimony disclosed the existence of claims forms (at 68:23-69:7), correspondence templates (at 97:2-17), and photo log templates (at 156:10-20). It is not immediately clear from the ...

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