Stock v. BNSF Ry. Co.

• Decision Date: 16 September 2015
• Docket Number: 4:14-CV-04074-RAL
• Parties: JENNIFER LYNN STOCK, Plaintiff, v. BNSF RAILWAY COMPANY, A DELAWARE CORPORATION, Defendant.
• Court: U.S. District Court — District of South Dakota

JENNIFER LYNN STOCK, Plaintiff, v. BNSF RAILWAY COMPANY, A DELAWARE CORPORATION, Defendant.

4:14-CV-04074-RAL

UNITED STATES DISTRICT COURT DISTRICT OF SOUTH DAKOTA SOUTHERN DIVISION

FILED: September 17, 2015

September 16, 2015

ORDER GRANTING IN PART AMENDED MOTION TO COMPEL DISCOVERY

On June 23, 2015, Defendant filed an Amended Motion to Compel Discovery. Doc. 34. Defendant raised four general issues with Plaintiff's discovery responses: 1) Plaintiff's continual objections to discovery requests as seeking expert opinions; 2) Plaintiff's failure to produce a privilege log; 3) Plaintiff's alleged refusal to produce items removed from her car at the scene, which perhaps is just the "vehicle registration card from the glove box;" and 4) Plaintiff's refusal to produce any discovery on any possible "collateral source." Doc. 35. Plaintiff responded opposing Defendant's Amended Motion to Compel by asserting that Defendant failed to abide by meet-and-confer requirements, by attributing the generality of some of her answers to being in the early stages of discovery and by defending her discovery responses. Doc. 40. Defendant has filed a Reply Brief. Doc. 45.

This Court has set a hearing in this case for September 30, 2015, but is prepared to rule on core issues framed by the motion and opposition to the motion. This ruling likely does not avoid the need for a hearing, but should assist in resolving any lingering issues at that hearing.

First, the peculiar circumstances giving rise to the Amended Motion to Compel Discovery and the correspondence between counsel leading up to the filing of the motion justify excusing a more formal meet-and-confer. Moreover, requiring such a meet-and-confer prior to a ruling from this Court likely would be futile given the positions staked out in the briefing.

Second, Plaintiff's objections to discovery requests as seeking expert opinions are overruled. Plaintiff appears to have responded in such a manner because she had just hired new counsel and had done little discovery at the time. Plaintiff did answer discovery responses despite making that objection, but did so in a general manner in several instances. Now that her counsel has been involved for several months and Plaintiff's expert disclosure should have been made, Plaintiff rightfully should supplement her discovery responses omitting any such objection.

Third, there appears to be only one document asserted to be privileged for which Defendant wants a privilege log. This document consists of notes Plaintiff made ostensibly for her lawyer. If these notes were made for the purpose of communicating with her lawyer, they likely are privileged. If these notes were not made for that purpose but simply were later provided to her lawyer, they would not be privileged. Rather than requiring a privilege log for a single document, the Court wants to review the document in camera at the September 30 hearing to assist in deciding the ultimate issue—whether the document is discoverable or not.

Fourth, the vehicle registration card taken from the glove box, while of attenuated relevance, is discoverable and a copy of it should be produced.

Fifth, Plaintiff's blanket refusal to provide any information on any collateral source based on Cruz v. Groth, 2009 SD 19, 764 N.W.2d 810, is mistaken. No doubt, collateral source evidence generally is inadmissible at trial in a case of this nature. However, the very case that Plaintiff cites for her objection recognizes that there may be instances at trial where collateral source information becomes admissible. Id at ¶¶ 11,...