Voelker v. BNSF Railway Company
9:18-cv-00172
| D. Mont. | Nov 17, 2020Background
- Plaintiff Mark Voelker sued BNSF after an internal investigation and termination; extensive discovery disputes followed and the court considered six pending discovery motions.
- BNSF produced numerous emails in redacted form claiming attorney-client privilege and work-product protection; the court ordered unredacted emails for in camera review.
- The court reviewed the emails and sustained privilege/work-product protection for some communications but ordered production of many others as nonprivileged and not prepared in anticipation of litigation.
- BNSF sought a protective order as to 108 Requests for Production (and later certain interrogatories); the court evaluated waiver, meet-and-confer, relevancy, burden, and proportionality.
- The court denied BNSF’s attempt to quash depositions of Nancy Ahern and Barry Wunker (permitting depositions by deadline), reaffirmed a prior bar on deposing Eric Hegi, and allowed a limited (2-hour) deposition of Linda Harvey while quashing depositions of three others as to individual testimony vs. Rule 30(b)(6).
- The court granted in part Voelker’s motion to compel EPTS/ESI and certain documents, reserved ruling on outlines claimed as work product (ordered in camera production), and granted/denied the remaining protective/interrogatory requests as detailed below.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Privilege for redacted emails (attorney-client/work product) | Emails contain legal advice and are privileged/work product | Emails are protected communications or litigation work product | Court performed in camera review: some emails privileged (attorney-client) and withheld; many others not privileged and must be produced unredacted within 7 days |
| Protective order re 108 RFPs (waiver & meet-and-confer) | BNSF waived objections by missing deadlines and failed to meet and confer | Objections timely preserved by motion for protective order; requests are overbroad/unduly burdensome | No waiver: BNSF’s motion filed before deadline preserved objections; many RFPs overruled and must be produced; a subset narrowed by time or otherwise protected; some RFPs sustained as unduly burdensome/irrelevant |
| Quash depositions of Ahern, Wunker, Hegi | Ahern/Wunker possess relevant info tied to investigation/what was communicated; Hegi may have info | Testimony duplicative (prior Wooten depositions); Hegi has no unique knowledge and prior protective order bars deposition | Depositions of Ahern and Wunker allowed (deadline set); argument that prior depositions in other litigation preclude them rejected; Hegi remains protected per prior order |
| Quash depositions of Lawler, Ramos, Harvey, Wilson | These witnesses have relevant information including for 30(b)(6) topics | They had no direct involvement; depositions would improperly seek 30(b)(6) evidence | Depositions of Lawler, Ramos, Wilson quashed as individual witnesses for matters already directed to 30(b)(6); Harvey may be deposed for up to two hours (deadline set) |
| Compel ESI, investigation materials, and outlines to Marx | Seek EPTS entries, documents/ESI used in initial deliberations, and outlines provided to Marx | Some materials privileged or work product; outlines prepared by counsel protected | Court compels EPTS entries and documents/ESI relied on in deciding to investigate; ordered Ahern/Wunker depositions; reserved ruling on outlines provided to Marx and directed BNSF to file them in camera by deadline |
| Protective order re interrogatories (Fourth/Fifth sets) | Interrogatories are proper and within numerical limits; relevant | Interrogatories seek irrelevant/unduly burdensome info (and cumulative) | Protective order denied as to Interrogatories 16–18 (BNSF must respond in 7 days); protective order granted as to Interrogatory 15 (overbroad/irrelevant) |
Key Cases Cited
- United States v. Procter & Gamble Co., 356 U.S. 677 (1958) (discovery’s purpose is broad fact disclosure)
- Upjohn Co. v. United States, 449 U.S. 383 (1981) (attorney-client privilege applies to corporations)
- Hickman v. Taylor, 329 U.S. 495 (1947) (foundation of the work-product doctrine)
- In re Grand Jury Investigation, 974 F.2d 1068 (9th Cir. 1992) (elements and burden for privilege assertions)
- United States v. Ruehle, 583 F.3d 600 (9th Cir. 2009) (scope of attorney-client privilege)
- United States v. Chen, 99 F.3d 1495 (9th Cir. 1996) (privilege for counseling and litigation roles)
- In re Grand Jury Subpoena, 357 F.3d 900 (9th Cir. 2004) (work-product two-part test)
- Admiral Ins. Co. v. U.S. Dist. Court for Dist. of Ariz., 881 F.2d 1486 (9th Cir. 1989) (privilege vs. substantial need for work product)
- Richmark Corp. v. Timber Falling Consultants, 959 F.2d 1468 (9th Cir. 1992) (failure to timely object to discovery may constitute waiver)
- Burlington N. & Santa Fe Ry. Co. v. U.S. Dist. Court for Dist. of Mont., 408 F.3d 1142 (9th Cir. 2005) (30-day objection rule not per se waiver; case-by-case analysis required)