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Lessert v. BNSF Railway Co.

United States District Court, D. South Dakota, Western Division

January 9, 2020

GERALD LESSERT, Special Administrator of the Estate of RICHARD CLAYMORE LESSERT, Deceased, Plaintiff,
BNSF RAILWAY COMPANY, a Corporation, . Defendant.




         Plaintiff, 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 deadlines.

         I. Legal Standards

         A. Standard of review

         "When 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."[1] Fed.R.Civ.P. 72(a).

         B. Discovery disputes

         "[T]he 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. Civ.'P. 26(c)(1).

         II. Analysis

         Defendant 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 order.

         In 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.

         As the 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.

         Defendant 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.[2] 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."[3] 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).

         The 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 the ...

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