Ryder v. Union Pac. R.R. Co.

Decision Date14 November 2016
CourtU.S. District Court — Middle District of Louisiana

Before the court is Plaintiffs' Motion for an Order Compelling Union Pacific Railroad Company's 30(b)(6) Corporate Designee Regarding Train Horn Audibility (the "Motion to Compel")1 and Union Pacific's Motion for Protective Order on Plaintiffs' Notice for a Corporate Deposition on Horn Audibility (the "Motion for Protective Order").2 For the reasons set forth herein, the Motion to Compel is GRANTED. The Motion for Protective Order is DENIED.

I. Background

This suit arises out of a February 16, 2015 collision between Plaintiffs' vehicle and Union Pacific's train.3 The parties agree that the collision occurred at a private drive crossing (the "Crossing").4 At the time of the collision, the decedents' vehicle was stopped on the Crossing.5 Plaintiffs have named several defendants in their Complaint, including Union Pacific.6 Against Union Pacific, Plaintiffs allege fault based on several negligence theories including inadequatevisual warning, inadequate audible warning, negligent train operations, failure to inspect and repair unsafe crossing, and failure to properly train, instruct, and manage employees.7

Regarding the allegation of inadequate audible warning, Plaintiffs claim that the collision was "a direct and proximate result of the negligence of [Union Pacific]" based on a) failure to ensure the horn complied with audibility requirements of 49 C.F.R. § 229.129, b) failure to use an emergency horn sequence, and c) failure to advise or instruct employees of the deficiencies and safety issues involved in train mounted audible warning systems.8 Plaintiffs further allege that investigation of the collision has revealed no evidence that the driver was physically able to hear the train horn in time to react and avoid the accident, and thereby plead that no fault can be assessed to the driver for the resulting collision.9

In its answer to the Complaint, Union Pacific raised as a defense that the driver of the vehicle was the sole cause of the collision for, among other reasons, "[f]ailing to look and/or listen for the subject train," "[f]ailing to hear what he should have heard," and "[f]ailing to heed to the warning devices present at the subject crossing."10 Union Pacific further asserted the affirmative defense of federal preemption under the Federal Railroad Safety Act ("FRSA") regarding allegations based on training of employees, audible warning devices, and inspection, maintenance, and repair.11

On June 1, 2016, Plaintiffs sent a Notice of Video Deposition Duces Tecum of Corporate Designees for Union Pacific Railroad Company Regarding Train Horn Audibility (the "Notice").12Following a series of communications between the parties, Plaintiffs filed the Motion to Compel and Union Pacific filed the Motion for Protective Order.13 In Plaintiffs' Motion to Compel, Plaintiffs assert that Union Pacific's "central objection boils down to its assertion that claims involving the train horn are preempted, and therefore, any discovery even touching upon the train horn is improper."14 While Plaintiffs recognize that "their horn claim may be preempted by 49 C.F.R. Part 222," they assert that such preemption does not preclude discovery relevant to the contributory negligence defense.15 As Plaintiffs explain, "Union Pacific has made the affirmative defense that Plaintiff John Cameron Watson was negligent for failing to hear the train horn. As a result, discovery regarding train horn audibility is plainly relevant to Plaintiffs' defense of Union Pacific's claim."16

In response to Plaintiffs' Motion to Compel, Union Pacific seeks a protective order asserting that a corporate deposition on "horn audibility" is irrelevant and disproportional because: (1) the law does not require horn warnings at private crossings; and (2) "even if it did, the subject matter of horn audibility is strictly regulated by 49 C.F.R. § 229.129 and cannot be questioned in this or any other case" (i.e., is federally preempted).17 Union Pacific further asserts that it has "already produced its operating rules on horn use and documents regarding pre and post-incident horn testing/certification."18

A hearing on the Motion to Compel and Motion for Protective Order was held on November 1, 2016 before the undersigned. During the hearing, counsel for the Plaintiffs agreed to limit the areas of inquiry sought in the Notice to topic numbers 6 through 10.19 Additionally, counsel for Plaintiffs clarified that Plaintiffs do not seek post-incident information with respect to topics 8 and 9, but argued that historical information was relevant.20 Based on the court's discussion with the parties during the hearing, the following topics remain regarding the Motion to Compel and Motion for Protective Order:21

No. 6: Below, in the section entitled "Train Horn Audibility Timeline" are quotes from the treatises and government sources relating to limitations on the effectiveness of train horns. Your railroad's knowledge of these sources and the audibility issue will be an area of inquiry, as will your knowledge of any additional authorities.
No. 7: Does your railroad instruct train crews about the limitations on the effectiveness of train horns?
No. 8: Whether your railroad utilizes an "emergency horn" sequence consisting of a series of short horn blasts, and when it is appropriate to use the emergency horn sequence.
No. 9: What has your railroad done to provide train crews with information to assist them with the decision to use an emergency horn sequence before a crossing accident or near accident occurs?
No. 10: Why and when was the rule for emergency horn changed in the General Code of Operating Rules to exclude crossings? What was your involvement in those changes?

Following the hearing, the court took the matter under advisement and is now ready to rule.

II. Analysis
A. Legal Standards

"Unless otherwise limited by court order, the scope of discovery is as follows: Parties may obtain discovery regarding any nonprivileged matter that is relevant to any party's claim or defense and proportional to the needs of the case, considering the importance of the issues at stake in the action, the amount in controversy, the parties' relative access to relevant information, the parties' resources, the importance of the discovery in resolving the issues, and whether the burden or expense of the proposed discovery outweighs its likely benefit. Information within this scope of discovery need not be admissible in evidence to be discoverable." Fed. R. Civ. P. 26(b)(1).

"Generally, the scope of discovery is very broad, though it is not unlimited." Heck v. Buhler, 2015 WL 7432367, at * 2 (M.D. La. Nov. 23, 2015) (citing Crosby v. Louisiana Health Serv. & Indent. Co., 647 F.3d 258, 264 (5th Cir. 2011)). See also, Southern Filter Media, LLC v. Halter, 2014 WL 4278788, at * 3 (M.D. La. Aug. 29, 2014) ("The general scope of discovery is broad and permits the discovery of 'any nonprivileged matter that is relevant to any party's claim or defense.' The rules governing discovery are accorded a broad and liberal treatment to achieve their purpose of adequately informing litigants in civil trials.") (internal citations omitted). "It is well established that the scope of discovery is within the sound discretion of the trial court." Southern Filter Media, LLC v. Halter, 2014 WL 4278788, at * 3 (M.D. La. Aug. 29, 2014).

Rule 34 of the Federal Rules of Civil Procedure provides for the discovery of documents and tangible items. If a party fails to respond fully to discovery requests made pursuant to Rule 34 in the time allowed by the Federal Rules of Civil Procedure, the party seeking discovery may move to compel disclosure. Fed. R. Civ. P. 37(a)(1) & 37(a)(3)(B)(iv). An "evasive or incomplete disclosure, answer, or response must be treated as a failure to disclose, answer, or respond." Fed. R. Civ. P. 37(a)(4).

"The court may, for good cause, issue an order to protect a party or person from annoyance, embarrassment, oppression, or undue burden or expense." Fed. R. Civ. P. 26(c)(1). Rule 26(c)'s "good cause" requirement indicates that the party seeking a protective order has the burden "to show the necessity of its issuance, which contemplates a particular and specific demonstration of fact as distinguished from stereotyped and conclusory statements." In re Terra Intern., Inc., 134 F.3d 302, 306 (5th Cir. 1998).

B. Federal Preemption Under the Federal Railroad Safety Act

"The Federal Railroad Safety Act (FRSA), 49 U.S.C. § 20106 (formerly 45 U.S.C. § 434), was enacted 'to promote safety in every area of railroad operations and reduce railroad-related accidents and incidents.'" United Transp. Union v. Foster, 205 F.3d 851, 859 (5th Cir. 2000) (quoting 49 U.S.C. § 20101). "In order to promote safety at railroad grade crossings, the FRSA provides that the Secretary of Transportation 'as necessary, shall prescribe regulations and issue orders for every area of railroad safety supplementing [existing] laws and regulations.'" Id. (quoting 49 U.S.C. § 20103). Congress has expressly defined the preemptive scope of any promulgated regulations in 49 U.S.C. § 20106(a)(1) & (2), which provide:

(1) Laws, regulations, and orders related to railroad safety...shall be nationally uniform to the extent practicable.
(2) A State may adopt or continue in force a law, regulation, or order related to railroad safety...until the Secretary ofTransportation...prescribes a regulation or issues an order covering the subject matter of the State requirement. A State may adopt or continue in force

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