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Morriss v. BNSF Railway Co.

United States District Court, D. Nebraska

January 13, 2014

MELVIN A MORRISS III, an individual; Plaintiff,
v.
BNSF RAILWAY COMPANY, a Delaware corporation; Defendant.

MEMORANDUM AND ORDER

CHERYL R. ZWART, Magistrate Judge.

The plaintiff's motion to compel, (Filing No. 32), and the defendant's motion for protective order, (Filing No. 52), are pending before the court. The court held a conference call on December 23, 2013 to issue rulings on the parties' discovery disputes. For the reasons more fully stated on the record, the court rules as follows:

PLAINTIFF'S APPPLICATION AND DEFENDANT'S REVIEW

INTERROGATORY NO. 14. Please state all reasons to support Paragraph 39 of Defendant's Affirmative Defenses to Plaintiff's Complaint whereby Defendant states, "Plaintiff being allowed to work as a Mechanic-Diesel Engines poses a significant risk to himself or to others."

Response and Ruling: The defendant states all responsive information has been provided in response to interrogatory 12 and the NEOC file for this plaintiff's claim, a copy of which was fully disclosed to the plaintiff. The defendant states it has no additional information explaining its reasons for concluding "Plaintiff being allowed to work as a Mechanic-Diesel Engines poses a significant risk to himself or to others." The motion to compel any further response to Interrogatory 14 is denied.

REQUEST NO. 4: Produce all copies of any and all communication, internal or external, electronic or written, sent to or received by any of your employees discussing Plaintiff's qualifications for the Mechanic-Diesel Engines position.

REQUEST NO. 5: Produce all documents related in any way to Plaintiff's job qualifications for the entire period of his application of employment through your denial of his employment, including all memos, notes, and letters reflecting oral or written evaluations of Plaintiff's fitness to hold the Mechanic-Diesel Engines position.

REQUEST NO. 15: Any documents you have resulting from an investigation or inquiry into Plaintiff's background, including his employment, financial, criminal or medical history.

Response and Ruling: As to each of these requests, BNSF raised work product and attorney-client privilege objections. The railroad referred the plaintiff to defendant's mandatory disclosures, produced the Melvin Morriss Medical file [BNSF00015-79] in response to Request 15, and provided a privilege log. As to the privilege log, the parties resolved their issues except as to items 26 through 29-email communications with Comprehensive Health Services, Inc. ("CHSI"), a third party contractor. During the course of the conference call, defense counsel explained that the emails sent to CHSI did not discuss trial strategy or the facts of this case, but merely requested documents to prepare Defendant's response to plaintiff's claims. As described, these documents do not include counsel's mental impressions, and even if they did, any confidentiality was waived by disclosure.
The defendant shall produce the email communications with CHSI referenced in items 26 through 29 of the privilege log. If those communications are incorporated within a PDF that includes confidential work product or privileged communications, those references may be redacted, but defense counsel shall not redact the date and address lines of the emails; the plaintiff is thereby permitted to confirm that no disclosure to third party CHSI occurred.

REQUEST NO. 21: Your non-privileged internal communications, written or electronic, including but not limited to letters, notes, faxes or emails, concerning any facts or allegations in Plaintiff's Complaint and/or any of your affirmative defenses.

Response and Ruling: Defendant states all responsive documents were produced with Defendant's Mandatory Disclosures and the documents specifically referenced in Defendant's Response to Request No. 4. Accordingly, the motion to compel a further response is denied.

JOB DESCRIPTIONS

REQUEST NO. 10: Any and all written job descriptions, rules, guidelines, policies, or procedures established by Defendant with respect to the Mechanic-Diesel Engines position.

Response and Ruling: Defendant states that as to the issues underlying its determination that "Plaintiff being allowed to work as a Mechanic-Diesel Engines poses a significant risk to himself or to others, " all responsive documents have been produced. That is, the determination was made based on physiological issues with plaintiff's overall health (e.g., risk of apnea, diabetes, sudden cardiac event, etc.), and not on his current inability to perform job functions, (e.g., whether his physical size would limit his ability to perform certain required tasks, etc.), and therefore manuals, guides, and rules on how certain tasks must be performed by Diesel Engine Mechanics are not relevant and would not lead to the discovery of relevant information. Based on the representations of defense counsel, the motion to compel a further response is denied.

OTHER APPLICANTS

INTERROGATORY NO. 8. Since January 1, 2008, identify the name of each and every employee who has applied for the Mechanic-Diesel Engines position. For each employee, state and identify:

a. the name and address of the employee;
b. whether the individual was offered employment or denied employment;
c. for each person hired and employed by Defendant, the dates of ...

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