United States District Court, D. Idaho
ROBERT WILLIAM SHERWOOD and PAMELA LOUISE SHERWOOD, husband and wife, Plaintiffs,
BNSF RAILWAY COMPANY, a Delaware corporation d/b/a The Burlington Northern and Santa Fe Railway Company, and JOHN DOES I through X, Defendants.
MEMORANDUM DECISION AND ORDER RE MOTION TO COMPEL AND
MOTION TO STRIKE SUPPLEMENTAL AUTHORITY (DKTS. 41,
E. Bush Chief U.S. Magistrate Judge
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:
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).
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.
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.)
argument was heard on the motion to compel on January 17,
2018. (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
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.
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
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.
boilerplate objections are presumptively insufficient and
providing a privilege log within thirty days is presumptively
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.
Discovery Regarding General Incident Investigation
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.
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). 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).
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
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?
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).
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.
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 ...