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Madden v. Antonov

United States District Court, District of Nebraska

November 4, 2014

RONALD D. MADDEN, Plaintiff,
ANTON ANTONOV, et al., Defendants

For Ronald D. Madden, Plaintiff: Donald F. D'Antuono, SCHNELL, D'ANTUONO LAW FIRM, Denver, CO; Jeffrey E. Chod, Patrick S. O'Brien, O'BRIEN, CHOD LAW FIRM, St. Louis, MO.

For Anton Antonov, AV Transportation, Inc., Defendants, Cross Claimants: David C. Mullin, FRASER, STRYKER LAW FIRM, Omaha, NE.

For BNSF Railway Company, Defendant, Cross Claimant, Cross Defendant: Katherine Q. Martz, Nichole S. Bogen, Thomas C. Sattler, SATTLER, BOGEN LAW FIRM, Lincoln, NE.


John M. Gerrard, United States District Judge.

This matter is before the Court on plaintiff Ronald D. Madden's objection (filing 174) to the Magistrate Judge's Memorandum and Order of August 31, 2014 (filing 167) denying in part and granting in part Madden's motion to compel discovery (filing 118) and denying in part and granting in party defendant BNSF Railway Company's motion for a protective order (filing 126).

Pursuant to NECivR 72.2 and 28 U.S.C. § 636(b)(1)(A), the Court has reviewed the record and finds that the Magistrate Judge's order was--with some minor exceptions--neither clearly erroneous nor contrary to law. So, with those exceptions, the Court will adopt the Magistrate Judge's order and overrule Madden's objection.


The relevant facts are set forth in the Magistrate Judge's order (filing 167), and this Court will provide only a brief summary. Madden seeks an order compelling BNSF to produce a number of documents for discovery. BNSF has resisted disclosing certain documents, citing, among other reasons, [1] the privilege set forth in 23 U.S.C. § 409. BNSF has prepared a privilege log listing the documents it refuses to turn over to Madden, and provided the documents to the Magistrate Judge for in camera review. Filing 120-3; filing 140.

BNSF also provided an affidavit from Andy Amparan, who works for BNSF as a public projects manager. Amparan was directly involved in the communications and correspondence contained in the privilege log and maintained these documents as part of his work for BNSF. See filing 128-2. Amparan averred that the privilege log consists of correspondence that was

created while working with State and local agencies in identifying, evaluating[, ] and planning the safety enhancement of the crossing in connection with the construction of the grain elevator by The Andersons . . . . BNSF, along with the Nebraska Department of Roads and The Andersons, evaluated the crossing to make safety improvements to the crossing by utilizing Federalaid highway funds to improve the crossing or to close the crossing.

Filing 128-2 at ¶ 2.

The Magistrate Judge found that the majority of the documents fell within the scope of the privilege granted by § 409 and were therefore not subject to discovery. This finding was based Amparan's affidavit and upon the contents of the documents themselves.

Madden objects to this finding. His objection is essentially a rehashing of his arguments that were before the Magistrate Judge. But this Court finds that the Magistrate Judge applied the correct legal framework. And based upon Amparan's affidavit and on its own review of the documents, this Court also finds that the majority of the documents fall within § 409.

The Magistrate Judge also found that some documents, which " merely reflect[ed] scheduled meetings and the name of meeting attendees or invitees" did not fall within § 409.[2] See filing 167 at 13. The Court likewise finds that the documents listed by the Magistrate Judge do not fall within § 409. However, based on similar reasoning, the Court finds that a handful of additional documents also qualify for disclosure. These consist of the documents bates-stamped BNSFCXF00015-16 (as redacted by the Court), BNSFCXF00028-31 (as redacted by the Court), BNSFCXF00033-34, BNSFCXF00038 (as redacted by the Court), and BNSFCXF000167. This does not include any attachments associated with these documents.

Some of these documents merely reflect meetings that were set to occur. See BNSFCXF000167. Some discuss the general development of the grain elevator and associated infrastructure, and merely detail BNSF's business plans for the area, rather than anything related to safety. BNSFCXF00015-16, 38. Based on their contents, they do not appear to have been created (i.e., " compiled") for a § 409 purpose.

One final category of documents warrants further discussion. This category consists of several emails discussing safety improvements. See BNSFCXF00028-31, BNSFCXF00033-34. These emails discuss the process of obtaining a waiver from the State of Nebraska for a " side clearance" issue. In other words, the emails appear to be discussing safety issues related to the railway itself, or to its interaction with the grain elevator or its associated infrastructure or equipment. But the emails do not appear to address safety improvements to the crossing or the highway.

As such, the emails do not qualify as documents compiled or collected for the purpose of identifying, evaluating, or planning the safety enhancement of potential accident sites or railway-highway crossings pursuant to 23 U.S.C. § 130. See 23 U.S.C. § 409. Nor is it clear how they relate to the development of any highway safety construction improvement project which may be implemented using Federal-aid highway funds. 23 U.S.C. § 409. Nothing about the contents of these documents shows that they were compiled for a § 409 purpose. And Amparan has not averred that any documents were collected for a § 409 purpose. It may be that these documents were, in fact, compiled or created for purposes eligible for protection under § 409. But in this limited regard, BNSF has not met its burden of proving that the privilege applies.[3] Accordingly,


1. Madden's objection (filing 174) is sustained in part and overruled in part, as set forth above.
2. The Magistrate Judge's Memorandum and Order (filing 167) is modified as follows:
a. In addition to the documents which BNSF was previously ordered by the Magistrate Judge to produce, BNSF shall produce the following bates-stamped pages of the documents identified in pages 1 through 15 of its privilege log: BNSFCXF00033-34 and BNSFCXF000167.
b. The following documents must also be produced, albeit in a redacted form: BNSFCXF00015-16, BNSFCXF00028-31, and BNSFCXF00038. The Court has attached redacted versions of these documents to this Memorandum and Order.

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