United States District Court, District of Nebraska
MEMORANDUM AND ORDER
Cheryl R. Zwart United States Magistrate Judge
The plaintiff has moved for an order requiring the defendant to produce “the discipline records for BNSF’s employees who reported injuries, any FRSA complaints they filed, and information concerning the demerits BNSF gave him because he was injured.” (Filing No. 35, at CM/ECF p. 1). As to the discipline records and FRSA complaints, the plaintiff requests this information for a six-year period and for the company’s entire workforce (approximately 40, 000 employees). The railroad has objected to the discovery demands as overbroad, encompassing irrelevant information, and demanding disclosure of private and confidential information for non-party employees. For the reasons discussed below, the plaintiff’s motion to compel will be denied.
STATEMENT OF FACTS
1. The Plaintiff’s Complaint.
The plaintiff’s complaint alleges Heim injured his foot on May 17, 2010, while performing track maintenance and repair for defendant BNSF. The plaintiff was transported to a hospital and admitted overnight. He alleges that while he was in the hospital and under the influence of narcotic pain medications, a railroad supervisor required Heim to complete a BNSF personal injury report and directed Plaintiff on how to answer the questions. The plaintiff did so.
The plaintiff alleges that on May 25, 2010, BNSF initiated a disciplinary investigation charging Heim with failing to be alert and attentive and failing to comply with the instructions received at a morning safety meeting. After conducting the investigation, on September 14, 2010, BNSF imposed a thirty-day record suspension and placed Heim on probation for one year.
The plaintiff’s complaint alleges he was disciplined for reporting a work-related injury in violation of the Federal Railroad Safety Act, 49 U.S.C. § 20109. Heim seeks compensatory damages for his lost income and emotional distress, punitive damages, and an award of litigation costs and attorney fees.
2. The Discovery Dispute.
The plaintiff moves for an order compelling the defendant to produce: 1) documents of all FRSA complaints filed by any BNSF employee from five prior to the date Plaintiff’s complaint was filed to present, all findings on those complaints, and any documentation of how those complaints were resolved; 2) all documents which would serve as raw data to determine whether there is a correlation between being injured and being disciplined, including the discipline records for all BNSF employees who suffered an FRA-reportable injury from five years preceding the Complaint’s filing to present; and 3) all documents “concerning ‘points’ assessed against employees for an injury.” (Filing No. 35, at CM/ECF pp. 3-4).
According to the plaintiff’s brief, the discovery at issue was requested in Plaintiff Interrogatory 9, and his Requests for Production 5 and 8.
Interrogatory 9 and BNSF’s responses thereto are as follows:
INTERROGATORY NO. 9: State the number of times, from five years preceding the Complaint's filing to present, BNSF has issued a notice of investigation to an employee, and for each notice, identify the person involved, the reason for the charge (i.e. "Alert and Attentive" and/or alleged "Carelessness"), and state:
• whether he or she was charged;
• whether a waiver of hearing was offered;
• whether a waiver of hearing was accepted;
• whether an investigatory hearing was held;
• whether the employee was found responsible for the violation;
• the nature of any discipline imposed; and
• whether an injury was involved.
OBJECTION: BNSF objects to this Interrogatory on the grounds it is vague in using the phrase "notice of investigation to an employee." BNSF further objects to this Interrogatory as overly broad and unduly burdensome in requesting a number of times BNSF has issued a "notice of investigation to an employee" from "five years preceding the Complaint's filing to present" as well as requesting detailed and specific information related to the "notice of investigation to an employee" from "five years preceding the Complaint's filing to present." BNSF further objects to this Interrogatory as it is not reasonably calculated to lead to the discovery of relevant and admissible evidence regarding the identification of the individual BNSF employees and specifics and related circumstances of BNSF employees' "notice of investigation" without a showing of substantial similarity to plaintiff regarding, but not limited to, the same alleged misconduct or that of comparable seriousness, the same supervisor, subjection to the same standards, and engagement in the same conduct without any mitigating or distinguishing circumstances. BNSF also objects to this Interrogatory as it seeks personal and confidential information regarding BNSF employees that are not a party to this lawsuit and therefore potentially invades the privacy interests of these employees.
SUPPLEMENTAL ANSWER AND OBJECTION: Without waiving any objection, see BNSF's Supplemental Objection and Response to Plaintiff's Request for Production No. 8.
SECOND SUPPLEMENTAL ANSWER AND OBJECTION: Without waiving any objection, see BNSF's Second Supplemental Objection and Response to Plaintiff's Request for Production No. 8. Upon information and belief, BNSF states that on July 1, 2010, there were 683 BNSF ...