2018-00227153-CU-PO

Elizabeth Brown vs. Union Pacific Railroad Co.

Nature of Proceeding: Motion for Protective Order

Filed By: Sandoval, Melissa A.

This matter is dropped from the Court’s calendar pursuant to Defendant’s notice of withdrawal of the motion filed October 9, 2018.

Plaintiff’s request for sanctions is denied because the Court finds the motion was filed with substantial justification and that other circumstances make the imposition of sanctions unjust.

Item 12 2018-00227153-CU-PO

Elizabeth Brown vs. Union Pacific Railroad Co.

Nature of Proceeding: Motion to Compel Production of Documents

Filed By: Plummer, Brian

Plaintiff Elizabeth Brown’s motion to compel Defendant Union Pacific Railroad Company’s further responses to request for production is ruled upon as follows.

This action arises from the death of William Johnson (“decedent”) after he was hit by one of Union Pacific’s trains, which was being operated by Union Pacific’s employees Timothy R. Thompson, Fredrick A. Ratliff, and Chris M. Wright. Decedent’s two successors in interest, Elizabeth Brown and Don Johnson (“Plaintiffs”), have sued Union Pacific and its three employees alleging negligence in the operation of a motor vehicle, general negligence, and premises liability.

At issue on this motion are Defendant’s responses to request for production Nos. 19-20, 38-60, 63, 65, and 70.

Nos. 19-20

Denied. These requests seek the entire personnel files for the crew members on the train involved in the accident. Defendant objected to these requests on the basis that the records are entitled to privacy under the California Constitution.

‘It is clear…personnel records and employment history are within the [privacy] protection provided by the state and federal Constitutions.” (San Diego Trolley, Inc. v. Superior Court (2001) 87 Cal.App.4th 1083, 1097.) “A showing of relevancy may be enough to cause the court to balance the compelling public need for discovery against the fundamental right of privacy. [citation] However, the balance will favor privacy for confidential information in third party personnel files unless the litigant can show a compelling need for the particular documents and that the information cannot reasonably be obtained through depositions or from nonconfidential sources.” (

Harding Lawson Associates v. Superior Court (1992) 10 Cal.App.4th 7, 10 [disapproved by Williams, supra, 3 Cal.5th 531 only to the extent that the case assumed without conducting the Hill analysis that a compelling need is automatically required when a party seeks discovery of private information].) “Even when the balance does weigh in favor of disclosure, the scope of disclosure must be narrowly circumscribed.” (Id.) The right to privacy provided for in Cal. Const., art. I, § 1 may be invoked by a litigant as justification for refusal to answer questions or respond to requests for information that unreasonably intrude on that right. A plaintiff asserting a privacy claim has the burden of establishing each element, specifically: 1. A legally protected privacy interest; 2. A reasonable expectation of privacy; and 3. A serious invasion of the privacy interest. (See, e.g. Hill v. National Collegiate Athletic Assn. (1994) 7 Cal. 4th 1) A showing of direct relevance is required.

Plaintiff argues that any privacy interest in the personnel files is outweighed by her need for the information. She argues that the files will provide information regarding the crew’s fitness for duty and whether Defendant had actual or constructive notice that the crew was not fit for duty and any lack of discipline in the records could show ratification. While the Court does not necessarily quarrel with this proposition, the requests as framed go far beyond that. Plaintiff has requested the entire personnel files of the employees with no limitation on time or scope. While the files might contain information regarding the crew’s fitness for duty, the files could also include a whole host of private information having no relevance whatsoever to the action such as medical information unrelated disciplinary action, details about the crew’s personal life, etc. “Mere speculation as to the possibility that some portion of the records might be relevant to some substantive issue does not suffice.” (Davis v. Superior Court (1992)

7 Cal.App.4th 1008, 1017.) Plaintiff has failed to show that the entirety of the personnel files, with no limitation on time or scope, are directly relevant.

While Plaintiff indicates that she offered protective measures to Defendant to address any privacy concerns, this argument puts the cart before the horse because as discussed above, Plaintiff has not demonstrated a compelling need for the entirety of the personnel files.

Further, no notice has been given the individuals whose privacy rights are implicated. A person whose privacy is implicated must be given notice of the requested discovery and an opportunity to object. (Valley Bank of Nevada v. Superior Court (1975) 15 Cal.3d 652, 658; CCP § 1985.6.)

In addition, Plaintiff has failed to demonstrate that the information “cannot reasonably be obtained through depositions or from nonconfidential sources.” (Harding Lawson Associates, supra, 10 Cal.App.4th at 10.) For example, there is no showing that Plaintiff cannot obtain the information through discovery directed to the employees, depositions, etc.

As a result, the Court will not compel Defendants to provide further responses to these requests.

Given the above, the Court need not address the other objections in the responses.

Nothing in this ruling precludes Plaintiff from propounding more narrowly tailored requests for production in the event she is unable to obtain the requested information through depositions or non-confidential sources.

Nos. 38-60

Granted. These requests sought production of reports Defendant filed with the Federal Railroad Administration regarding any trespasser casualty or fatality from 2008 to present in each of the 23 states where Defendant does business. Defendant objected on the basis that the reports are privileged pursuant to 49 U.S.C. § 20903. That statute provides that “[n]o part of an accident or incident report filed by a railroad carrier under section 20901 of this title or made by the Secretary of Transportation under section 20902 of this title may be used in a civil action for damages resulting from a matter mentioned in the report.” (49 U.S.C. § 20903.)

There is no question that these documents meet the broad definition of relevancy in the discovery context. Indeed, in the discovery context, information is relevant “if it might reasonably assist a party in evaluating its case, preparing for trial, or facilitating a settlement. [citations omitted] Admissibility is not the test and information, unless privileged, is discoverable if it might reasonably lead to admissible evidence.” (Lipton v. Superior Court (1996) 48 Cal.App.4th 1599, 1611-1612 [court’s emphasis].)

Any doubt is to be resolved in favor of permitting discovery. (Colonial Life & Accident Ins. Co. v. Superior Court (1982) 31 Cal.3d 785, 790.) The requested reports could lead to the discovery of admissible evidence regarding Plaintiff’s contention that Defendant failed to warn the public of dangers associated with railroad tracks in high traffic areas. The fact that the reports themselves may not be admissible does not bar discovery. While not binding on this Court, the Court does note that federal cases addressing discoverability of the reports have concluded that they are in fact discoverable even though they may not be admissible at trial. (Kitts v. Norfolk & Western Ry. Co. (S.D.W.Va. 1993) 152 F.R.D. 78, 82; Adcox v. Medtronic, Inc. (E.D. Ark. 1999) 131 F.Supp.2d 1070, 1075-1076.)

Defendant’s overbreadth objection is overruled. Defendant fails to provide any persuasive argument in this regard. The fact that the requests may not be limited to the subject incident and involves reports in 23 states does not render the requests overbroad. Moreover the undue burden objection is also overruled. Such an objection must be supported by a specific factual showing setting forth the amount of work necessary to respond to the subject discovery. (West Pico Furniture Co. v. Superior Court (1961) 56 Cal.2d 407, 417-418.) There is no declaration from Defendant setting forth any facts to support any claim of burden in this case.

The equally available objection is also overruled. While Defendant is correct that a propounding party cannot force a responding party to search public records to ascertain answers, that is not the situation at hand. (Alpine Mut. Water Co. v. Superior Court (1968) 259 Cal.App.2d 45, 53.) That case involved a situation where a party responding to interrogatories was improperly ordered to answer an interrogatory that would have required the responding party to search public records, compile the results and provide the information to the propounding party. Here, Defendant is asked to produce reports that it filed. That the reports might be available on the Federal Railroad Administration’s website is no basis to refuse to respond.

No. 63

Granted. This request asked for communications sent or received by anyone at Union

Pacific regarding the subject incident.

Defendant’s overbreadth and undue burden objections are overruled. While Defendant complains that the request is not limited by time, file type or search terms, and thus is overbroad, the Court is not persuaded. The request seeks communications regarding the specific incident in this action and is necessarily limited in time. The failure to identify specific file types or search terms does not render the request overbroad. Any communication, in whatever form, regarding this subject incident are relevant and Defendant can easily formulate search terms to gather responsive documents. In any event, the request identified specific employees/officers of Defendant in the request and Plaintiff’s motion indicates that the request is limited to communications sent/received by those employees. As with the previous requests discussed above, Defendant has made no showing of undue burden.

To the extent that Defendant has withheld responsive documents on the basis of its attorney-client privilege and work-product objections, it was required to provide sufficient factual information for other parties to evaluate the merits of that claim, including if necessary, a privilege log. (CCP §2031.240(c)(1).) Defendant may produce a privilege log in connection with any further response.

No. 65

This request asked for the Track Image Recorder Video. This request was the subject of Defendant’s motion for protective order which had been continued to today’s date and required the parties to meet and confer as to whether the video could be copied in some form or format such that the software would not be needed for viewing. This motion was also continued to today’s date to be heard with the motion for protective order. Defendant then withdrew the protective order before the Court could rule upon it. The Court therefore assumes that the parties reached an agreement on either a stipulated protective order or some other means of production and that this request is no longer at issue.

No. 70

Granted. This request asked for communications sent or received by anyone at Union Pacific regarding the design, implementation, construction, maintenance, etc. of the barrier fence (near where the subject incident occurred). Defendant objected to the request on similar grounds as it did with respect to No. 63 but also agreed to produce any responsive non-privileged emails.

While Defendant agreed to produce documents, the response was subject to objections.

Defendant’s overbreadth and undue burden objections are overruled for the same reasons discussed above in connection with No. 63.

To the extent that Defendant has withheld responsive documents on the basis of its attorney-client privilege and work-product objections, it was required to provide sufficient factual information for other parties to evaluate the merits of that claim, including if necessary, a privilege log. (CCP §2031.240(c)(1).) Defendant may produce a privilege log in connection with any further response.

To the extent that Plaintiff argues that Defendant shall produce documents, she did not move to compel production pursuant to CCP § 2031.320. Plaintiff only moved for a further response

No later than November 8, 2018, Defendant shall provide verified further responses to the requests for production consistent with the above.

Plaintiff’s request for sanctions is denied. Defendant’s opposition was substantially justified.

The Court need not rule on Defendant’s objections to Plaintiff’s counsel’s declaration in this discovery proceeding.

The minute order is effective immediately. No formal order pursuant to CRC Rule 3.1312 or further notice is required.