United States District Court, D. South Dakota, Western Division
GERALD LESSERT, Special Administrator of the Estate of RICHARD CLAYMORE LESSERT, Deceased, Plaintiff,
BNSF RAILWAY COMPANY, a Corporation, . Defendant.
JEFEREY L. VIKEN UNITED STATES DISTRICT JUDGE
the special administrator of decedent Richard Lessert, brings
this action under the Federal Employers' Liability Act,
45 U.S.C.§51et seq. (Docket 1). Decedent died
on January 17, 2017, after he was struck by a train near
Edgemont, South Dakota. Id. at ¶¶ 5, 13.
Now pending before the court are defendant's objections
to Magistrate Judge Daneta Wollmann's July 30, 2019,
order resolving discovery motions. (Dockets 155 & 157).
Defendant also moves for a protective order seeking to
prohibit or limit corporate designee depositions under
Federal Rule of Civil Procedure 30(b)(6). (Docket 158).
Plaintiff opposes the objections and the motion for a
protective order. (Docket 164). For the reasons given below,
the court overrules defendant's objections, denies
a-protective order and affirms the substance of the
magistrate judge's order in full. The court then sets new
Standard of review
a pretrial matter not dispositive of a party's claim or
defense is referred to a magistrate judge .... [t]he district
judge in the case must consider timely objections and modify
or set aside any part-of the order that is clearly erroneous
and contrary to. law." Fed.R.Civ.P. 72(a).
federal rules permit liberal discovery[.]"
Miscellaneous Docket Matter No. 1 v. Miscellaneous Docket
Matter No. 2, 197 F.3d 922, 925 (8th Cir. 1999).
"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[.]" Fed.R.Civ.P. 26(b)(1). "Because of liberal
discovery and potential for abuse, the federal rules confer
broad discretion on the district court to decide when a
protective order is appropriate and what degree of protection
is required." Miscellaneous Docket Matter No
1., 197 F.3d at 925 (internal quotation omitted).
"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.
poses two objections to the magistrate judge's order.
First, it asserts the magistrate judge erred by finding
plaintiff may depose its Rule 30(b)(6) designee regarding its
interpretation of applicable federal regulations. (Docket 157
at pp. 2-4). Second, defendant objects to reopening all
discovery, as opposed to permitting only Rule 30(b)(6)
depositions. Defendant then moves for a protective order to
limit discovery consistent with its objections. (Docket 158).
The court overrules the objections and denies a protective
support of its first objection, defendant cites to a plethora
of case law standing for the proposition that it is the role
of a trial, court to instruct the jury on the law governing a
case. (Docket 157 at pp. 2-4). Defendant construes this case
law to signify that discovery on its interpretation of
federal regulations governing railroad safety should be
barred. Id. at p. 4. This argument is erroneous.
Otherwise discoverable information "need not be
admissible in evidence to be discoverable." Fed.R.Civ.P.
26(b)(1). Should this case proceed to trial, no party will be
permitted to make legal arguments to the jury. This principle
of law, however, does not limit the scope of discovery.
magistrate judge concluded, discovery regarding
defendant's interpretation of the applicable federal law
is relevant to whether defendant failed to follow the law in
the circumstances surrounding decedent's death. (Docket
155 at pp. 8-9). The magistrate judge's ruling was not
clearly erroneous or contrary to law. The ruling is affirmed
and defendant's first objection is overruled.
next objects to the magistrate judge's order reopening
all discovery for one month. (Docket 157 at pp. 4-5). It
states plaintiff is now seeking to redepose two
witnesses. Id. at p.5. Defendant contends
the magistrate judge did not rule on its "several other
substantive arguments" in opposition to additional
discovery, leading plaintiff to seek inappropriate second
depositions. Id. at pp. 4-5. The only argument
defendant highlights in its objections, however, is its
argument that discovery "surrounding the switch leverage
... is not relevant to any allegation in this
case." Id. at p. 4. Plaintiff asserts
his depositions of the witnesses did not reveal facts about
the switch leverage that he later learned, necessitating a
second round of depositions. (Docket 64 at p. 16).
magistrate judge concluded plaintiff showed good cause for a
discovery extension, pointing to "limited discovery
issues" he identified as outstanding. (Docket 155 at p.
10). She further held that plaintiff acted diligently in
attempting to resolve the remaining discovery issues before