Nevis v. Rideout Memorial Hospital ( 2019 )

1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 FOR THE EASTERN DISTRICT OF CALIFORNIA 10 11 JOSEPH DANIEL NEVIS, No. 2:17-cv-02295-JAM-AC 12 Plaintiff, 13 v. ORDER 14 RIDEOUT MEMORIAL HOSPITAL, et al, 15 Defendants. 16 17 I. Introduction 18 This matter is before the court on plaintiff’s motion to compel discovery from defendants 19 Amtrak and Union Pacific (ECF No. 48). This discovery motion was referred to the undersigned 20 pursuant to E.D. Cal. R. 302(c)(1). The parties appeared through counsel at a hearing on October 21 30, 2019 at 10:00 a.m. For the reasons stated below, the court grants plaintiff’s motion in part 22 and denies it in part. 23 II. Relevant Background 24 Plaintiff alleges that in April 2016, he checked himself into a rehabilitation center called 25 “Buddy’s House.” ECF No. 1 at 2. On December 23, 2016, plaintiff at some point consumed 26 alcohol, but knows nothing else of what happened that day. Id. In the early hours of December 27 24, plaintiff was found by local law enforcement in the street, and believing plaintiff to be “too 28 drunk for jail,” the officers drove him to Rideout Memorial Hospital around 1:26 a.m. Id. After 1 being seen by an emergency room physician, plaintiff was discharged at 1:56 a.m. Id. After 2 being released, plaintiff walked down a pedestrian path and tripped over mainline railroad tracks, 3 ending up on his back on the side of the tracks. Id. at 3. At approximately 2:30 a.m., a passenger 4 train approached and struck the plaintiff, amputating his left leg above the knee and his right leg 5 below the knee. Id. Plaintiff filed suit on November 1, 2017. ECF No. 1. The discovery 6 deadline in this matter is currently set for November 4, 2019. ECF No. 31. 7 III. Motion 8 Plaintiff asks the court to compel the following: (1) dates for the stipulated depositions of 9 Mark Norris and Shawn Paul; (2) to expand the number of depositions beyond 10; (3) to compel 10 documents related to the recent depositions of two engineers, Edson and Haskin; (4) all accident 11 reports related to engineers Edson and Haskin; and (5) further responses and production of 12 documents with respect to Plaintiffs Requests for Production Set Two, Nos. 6, 9, 18, 21, 29, 36, 13 41, and 64. 14 IV. Analysis/Summary of the Evidence 15 A. Legal Standard 16 “Parties may obtain discovery regarding any nonprivileged matter that is relevant to any 17 party’s claim or defense....Relevant information need not be admissible at the trial if the 18 discovery appears reasonably calculated to lead to the discovery of admissible evidence.” Fed. R. 19 Civ. P. 26(b)(1). Fed. R. Civ. P. 26(b)(1). Evidence is relevant if: (a) it has any tendency to 20 make a fact more or less probable than it would be without the evidence; and (b) the fact is of 21 consequence in determining the action. Fed. R. Evid. 401. Relevancy to the subject matter of the 22 litigation “has been construed broadly to encompass any matter that bears on, or that reasonably 23 could lead to other matter that could bear on, any issue that is or may be in the case.” 24 Oppenheimer Fund, Inc. v. Sanders, 437 U.S. 340, 351 (1978). Relevance, however, does not 25 establish discoverability; in 2015, a proportionality requirement was added to Rule 26. Under the 26 amended Rule 26, relevance alone will not justify discovery; discovery must also be proportional 27 to the needs of the case. 28 //// 1 A party seeking to compel discovery has the initial burden to establish that its request is 2 proper under Rule 26(b)(1). If the request is proper, the party resisting discovery has the burden 3 of showing why discovery was denied; they must clarify and support their objections. 4 Blankenship v. Hearst Corp., 519 F.2d 418, 429 (9th Cir.1975). General or boilerplate objections, 5 without explanation, are not prohibited but are insufficient as a sole basis for an objection or 6 privilege claim. Burlington Northern & Santa Fe Ry. v. United States Dist. Court, 408 F.3d 1142, 7 1149 (9th Cir.2005). 8 B. Depositions of Mark Norris and Shawn Paul Will Not be Compelled 9 The depositions of Mark Norris and Shawn Paul will not be compelled because the 10 depositions were not properly noticed prior to the filing of the motion to compel, and the close of 11 discovery approaches too closely for proper notice to take place. As to Mark Norris, the court 12 previously cautioned plaintiff at a discovery conference that it would not compel the witness to 13 travel from his home in Oregon to be deposed in Sacramento. ECF No. 43. Defendants state that 14 only on October 15, 2019, after filing this motion, did plaintiff agree for the first time to take the 15 deposition in Oregon. ECF No. 58 at 18. Defendants offered to produce Mr. Norris in Oregon on 16 November 1, 2019, but plaintiff’s counsel inexplicably still failed to issue a timely notice, and the 17 deposition was taken off calendar. Without a formal notice there is nothing for this court to 18 compel; it is too late for the deposition to be noticed at this juncture. 19 As to the deposition of Sean Paul, defendants dispute the truth of plaintiff’s representation 20 that they stipulated to the deposition. ECF No. 58 at 18. Indeed, defendants state that plaintiff 21 never provided a deposition notice for Mr. Paul. Id. Because the deposition was never noticed 22 and there is no longer time to effect notice, it will not be compelled. 23 The motion is denied as to the Norris and Paul depositions, but without prejudice to renewal if 24 and only if the litigation schedule is extended by the district judge and the depositions are 25 properly noticed. 26 C. The Deposition Limit Will Not be Expanded 27 The court will not expand the deposition limit beyond 10 because plaintiff has not met his 28 burden of demonstrating the need for additional, non-duplicative depositions. Federal Rule of 1 Civil Procedure 30 presumptively limits a party to ten depositions; a party may only exceed this 2 number with leave of court or by stipulation of the parties. Fed. R. Civ. P. 30(a)(2)(A)(i). The 3 presumptive limit is intended to “promote cost-effective discovery and promote the federal rules’ 4 policy of minimizing ‘unreasonably cumulative or duplicative’ discovery.” Thykkuttathil v. 5 Keese, 294 F.R.D. 597, 599 (W.D. Wash. 2013) (quoting Fed. R. Civ. P. 26(b)(2)(C); Fed. R. 6 Civ. P. 30 Advisory Committee’s Note (1993)). “A party seeking to exceed the presumptive limit 7 bears the burden of making a ‘particularized showing’ of the need for additional depositions.” 8 Thykkuttathil, 294 F.R.D. at 600; Kaseberg v. Conaco, LLC, No. 15-cv-01637-JLS-DHB, 2016 9 WL 8729927, at *3 (S.D. Cal. Aug. 19, 2016); see also Nat. Res. Def. Council, Inc. v. Winter, 10 No. CV 057513-FMC-FMOx, 2008 WL 11338647, at *2 (C.D. Cal. July 11, 2008); but see Pitkin 11 v. Corizon Health, Inc., No. 3:16-CV-02235-AA, 2018 WL 1336047, at *2 (D. Or. Mar. 13, 12 2018) (“the Federal Rules of Civil Procedure do not require a moving party to make a 13 particularized showing of necessity when seeking leave to take additional depositions.”). In 14 making an evaluation, courts will consider “whether (1) the discovery sought is unreasonably 15 cumulative or duplicative, or is obtainable from some other source that is more convenient, less 16 burdensome or less expensive; (2) the party seeking discovery has ample opportunity to obtain 17 the information sought; or (3) the burden or expense of the proposed discovery outweighs its 18 likely benefit, taking into account the needs of the case, the amount in controversy, the party’s 19 resources, and the importance of the proposed discovery in resolving the issues.” Andamiro 20 U.S.A. v. Konami Amusement of Am., Inc., No. CV00-8561, 2001 WL 535667, at *2 (C.D. Cal. 21 Apr. 26, 2001). 22 Here, plaintiff’s requested additional depositions are duplicative and unnecessary. 23 Plaintiff seeks to depose multiple first responders who were at the scene of the accident. ECF No. 24 58 at 5 (listing officers “all involved in the investigation of the injury.”). Defendants argue that 25 the Marysville Police Department issued a comprehensive report, with photographs, that contains 26 all the relevant information that can be gleaned through a deposition, and that the more 27 convenient, less burdensome and less expensive means of discovering the information sought 28 through the officers and paramedics is to rely upon their official reports. Id. The court agrees 1 that there is no need to exceed the deposition limit where the official report is available and 2 plaintiff has not identified anything in the contents of that report requiring further exploration by 3 deposition. 4 Plaintiff also wishes to depose Joy Edson, wife of engineer Edson, about her husband’s 5 sleep, eating and drinking patterns relevant to Amtrak’s fatigue management and hours of service 6 program in the days and hours leading up to the accident. ECF No. 58 at 5. This too appears 7 redundant. Plaintiff already deposed Chris Edson, the best source of this information. Id. at 19. 8 There is no reason here to allow plaintiff to exceed the deposition limit, and the motion is denied 9 on this point. 10 D. Documents Related to Edson and Haskin Depositions Will Not be Compelled 11 Plaintiff seeks (in addition to a duplicative request to supplement RFP responses 12 addressed below) documents discussed in the depositions of engineers Edson and Haskins. ECF 13 No. 48 at 5-6. There is no indication that plaintiff made a formal discovery request for these 14 documents prior to seeking to compel their production. Id. at 6. Because there has been no 15 formal request, Amtrak and Union Pacific have not been provided the opportunity to object and 16 preserve the record on these matters. Without formal requests before the court, the issue is not 17 ripe for adjudication. Rule 37 permits a motion to compel documents only if a party fails to 18 produce documents that were requested through a recognized discovery request, in this case, a 19 Rule 34 request for production. Fed. R. Civ. P. 37(a)(3). Because no formal discovery request 20 was timely made1, this is not a proper topic for a motion to compel and the request is denied. 21 E. All Accident Reports Related to Edson and Haskin Will Not be Compelled 22 Plaintiff asserts that defendants originally agreed to turn over all reports related to other 23 accidents, but they have not done so. ECF No. 58 at 8. The motion does not identify any specific 24 request for production. It was clarified at the hearing on this motion that though there was never 25 a formal discovery request, defendants conducted a search for relevant accident reports and found 26 1 Defendants state that plaintiff served a request for production seeking these documents on the 27 same day he filed this motion. ECF No. 58 at 20. The court will not consider a motion to compel production as to a request made simultaneously with the motion. At the very least, the motion 28 necessarily fails to comply with the meet and confer requirements of Local Rule 251. 1 none. Without a formal discovery request, there is no need for defendants to produce a verified 2 discovery response documenting their efforts. There is nothing to compel here, and the motion is 3 denied on this point. 4 F. Further Responses to RFPs Will be Compelled in Part 5 Plaintiff seeks additional responses/production with respect to Plaintiffs Requests for 6 Production Set Two, Nos. 6, 9, 18, 21, 29, 36, 41, and 64. These requests are addressed 7 individually below. 8 1. Request for Production No. 6: 9 Please provide records of complaints, calls to train dispatcher, calls 10 to RR police etc. re. pedestrians/trespassers in that area one mile prior to the INCIDENT and one mile after the incident for the 10 years 11 prior to the INCIDENT and 3 years after the INCIDENT. 12 ECF No. 58-13 at 6. 13 Defendant Amtrak, the only party to whom this request was made (ECF Nos. 58-1 at 4, 14 58-11 at 2) objected that the question is overly broad in time and exceeds the scope of relevant 15 discovery but agreed to produce with a scope limited to four years prior to the incident. ECF No. 16 58 at 10. In the Joint Statement, defendants note that Amtrak does not own the track or maintain 17 the records of trespasser complaints or have dispatch records or receive complaints for Union 18 Pacific’s Tracks. Id. at 21. Nonetheless, the four years of records were produced. Id. The 19 produced scope of 4 years reasonable and proportional to the case and the court will require no 20 further production. The motion on this point is denied. 21 2. Request for Production No. 9 22 Please provide and statements taken from any Amtrak employee 23 witness or eyewitnesses and/or ear witnesses to incident. ECF No. 58-13 at 8. 24 During the meet and confer process, Amtrak’s counsel explained that, as stated in its 25 response and objections (id.), the only statement taken in this case was between Amtrak’s 26 attorney and Amtrak engineer Chris Edson. The court agrees that the statement is protected both 27 by the attorney-client privilege and the work product doctrine. Upjohn Co. v. United States, 449 28 1 U.S. 383 (1981). Because the only responsive information is privileged, no further production 2 can be compelled. The motion on this point is denied. 3 3. Request for Production No. 18 4 Please provide a copy of Amtrak’s written policy from December 24, 5 2012 until December 24, 2018 regarding physical checks on Conductors and Engineers before they departed the station on each 6 route. 7 ECF No. 58-13 at 11. 8 Defendants objected that the request is over-broad, unduly burdensome, and vague as to 9 the term “physical checks,” especially regarding conductors who do not participate in the 10 operation of trains. Id. In the joint statement, plaintiff defines “physical checks” as a term of art 11 meaning a personal evaluation of physical condition. ECF No. 58 at 12. Defendants respond 12 that if “physical checks” is a term of art they were unaware, and this motion is first time plaintiff 13 attempted to define it. Id. at 22. Defendants assert that all policies regarding the conduct of 14 engineers and conductors while on the job, at the time of the incident, have been produced. Id. 15 Accordingly, there is nothing to compel. The motion on this point is denied. 16 4. Request for Production No. 21 17 Please provide Amtrak’s policies and procedures in effect for the period 5 years prior to the incident and 5 years after the incident on 18 fatigue management for train crew. 19 ECF No. 58-13 at 12-13. 20 Amtrak objected that the request was overly broad and not proportional, but without 21 waiving objections agreed to produce the Hours of Service Compliance Manual Passenger 22 Operations and the Hours of Service Reference Manual for Employee Directly Engaged or 23 Connected with the Movement of Passenger Trains or Engines that were in effect at the time of 24 the incident. Id. at 13. Plaintiff argues that the production was not responsive because it fails to 25 identify what portions of the manuals were responsive to the request. ECF No. 58 at 13. 26 The court agrees with defendants that the production was sufficient; the vagueness of the 27 production is matched by the vagueness of the question, which seeks “policies and procedures” 28 1 on fatigue management. Producing the relevant manuals, as they are kept in the ordinary course 2 of business, is an appropriate and proportionate response.2 The manuals are documents as a 3 whole, presumably internally organized, and produced as they are kept in the ordinary course of 4 business in compliance with Fed. R. Civ. P. 33(d). The fact that the combined manuals are over 5 700 pages hardly constitutes an improper document dump. See ECF No. 48 at 13. No further 6 production will be compelled and the motion on this point is denied. 7 5. Request for Production No. 29 8 Please provide all engine and train service employees suspended 9 from work or fired for taking time off due to fatigue for the period 5 years prior to the incident and 5 years after the incident. 10 11 ECF No. 58-13 at 17. 12 Defendants object that this request is not reasonably tailored to meet the proportional 13 needs of this case and fails to identify documents with reasonable particularity, and is instead 14 phrased as an interrogatory. Id. Further, defendants object that to the extent it seeks documents, 15 rather than employees, those documents would be protected by the constitutional right to privacy. 16 Id. Plaintiff contends that defendant’s objections are inappropriate boilerplate, noting there is no 17 privilege log. ECF No. 58 at 14. Plaintiff asserts the RFP is relevant to plaintiff’s interest in 18 identifying whether and to what extent employees are penalized for taking time off due to fatigue. 19 The court agrees that plaintiff’s motion to compel cannot be granted on this point because 20 Request 29 is an improper hybrid interrogatory/request for production. Because the RFP does not 21 actually request documents but instead is framed as a special interrogatory, no documents can be 22 compelled. There is no basis in the rules for this type of request. Holley v. Swarthout, No. 2:10- 23 CV-0615 MCE-EFB, 2013 WL 1284316, at *3 (E.D. Cal. Mar. 28, 2013) (“Plaintiff’s motion to 24 compel is based, in part, on defendants’ objection to these requests as improperly combining 25 interrogatories with requests for production . . . Plaintiff’s motion cannot be sustained on this 26 2 Defendants also argue that claims related to fatigue management are preempted by various 27 federal laws. ECF No. 58 at 22. There is no need to address this substantive point in this discovery order because defendants have already made a satisfactory production to the discovery 28 request at issue. 1 ground. Federal Rule of Civil Procedure (“Rule”) 33 allows a party to serve interrogatories; Rule 2 34 allows a party to serve a request for production. The Rules do not authorize the type of hybrid 3 request served by plaintiff.”). The motion to compel is therefore denied on this point. 4 6. Request for Production No. 36 5 Please provide the employee file for the Engineer of Amtrak train number 14 on the day of the incident, including all training, discipline, drug screening and 6 results, physical exams, background investigation, pre and post hiring evaluations, complaints, reprimands, suspensions, performance evaluations, National 7 Transportation Safety Board and Federal Railroad Administration records. 8 ECF No. 58-13 at 20. 9 Defendants contend they do not maintain a singular “employee file” but there is a 10 personnel file, which has been produced with respect to engineer Edson with salary and social 11 security number redacted, along with Mr. Edson’s training records. ECF No. 58 at 23. Defense 12 counsel specifically represented in open court that the engineer at issue has no record of 13 discipline, which is why the production did not include disciplinary records. Defendants have 14 offered to provide vision test results, but no other part of Edson’s medical file. Id. Plaintiff 15 argues that Edson’s file production was not complete because it only contained 10 pages and no 16 records of any accidents. ECF No. 58 at 14. However, without evidence that defendants are 17 withholding anything, the court must accept their representation that they produced the entire file 18 with only the salary and social security number redacted. 19 With respect to medical records, however, defendants’ argument that production would 20 violate the engineer’s constitutional privacy rights is not persuasive. Plaintiff has indicated he 21 would enter into a stipulated protective order to protect the privacy of the engineers. The 22 information on the engineer’s health is clearly relevant to potential causes of the accident at issue 23 in this case. Defendants have acknowledged that medical records are kept. ECF No. 58 at 23. 24 The full medical record responsive to this request shall be produced subject to the entry of a 25 stipulated protective order, and plaintiff’s motion is granted as to the medical records only, 26 without chronological limitation. 27 //// 28 1 7. Request for Production No. 41 2 Please provide the results of the locomotive engineer of Amtrak train 3 number 14 on 12/24/2016 tri-annual vision and hearing screening. 4 ECF No. 58-13 at 23. 5 Defendants have agreed to provide the vision screening results. ECF No. 58 at 23. For 6 the reasons discussed above with respect to health records, hearing results must also be provided 7 subject to a stipulated protective order. Id. As discussed in court, the results to be produced will 8 be those most closely preceding the accident at issue. 9 8. Request for Production No. 64 10 Please provide any documents that relate to any Accidents involving 11 Amtrak trains where fatigue was determined to be a contributing factor to the Accident for the period 15 years prior to the INCIDENT 12 and 5 years after the INCIDENT. 13 ECF No. 58-13 at 34-35. 14 Defendants object that the request is not proportional to the needs of the case, does not 15 identify documents with reasonable particularity, and would require an expert opinion as to 16 whether accidents were fatigue related. ECF No. 58-13 at 11, 35. Plaintiff argues that this 17 response is evasive and that Amtrak has the ability to identify accidents deemed fatigue related. 18 ECF No. 58 at 16. The court reluctantly agrees with defendants. Despite the obvious importance 19 to this case of Amtrak’s past responses to prior fatigue-related accidents, this request is vague and 20 overbroad as drafted. 21 First, the request is grammatically ambiguous due to use of the word “where.” Does 22 plaintiff seek all documents about all fatigue-related accidents, or all documents reflecting a 23 determination that an accident was fatigue-related? Either way, the request is overbroad. It seeks 24 “any documents” that “relate to” other accidents, without limitation by document type or source. 25 The phrase “accidents. . . where fatigue was determined to be a contributing factor” does not 26 adequately narrow the requests because it does not specify whose determinations regarding 27 fatigue are sought. While this request could be narrowed to seek only a proportionate universe of 28 1 | relevant documents, it is not the undersigned’s job to rewrite plaintiffs discovery requests. That 2 || is especially true when the motion to compel is brought at the eleventh hour. 3 The court denies the motion to compel on this point. 4 V. Conclusion 5 Plaintiff’s motion to compel is GRANTED as to the medical records sought in Requests 6 || for Production 36 and 41, as described above. The motion is otherwise DENIED. The parties are 7 | further ORDERED to enter into a stipulated protective order no later than close of business 8 || November 1, 2019. The compelled production must be complete by November 8, 2019. 9 | DATED: October 30, 2019 ~ 10 ththien— Chane ALLISON CLAIRE 11 UNITED STATES MAGISTRATE JUDGE 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 11