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Logsdon v. BNSF Railway Co.

United States District Court, D. Nebraska

October 12, 2016

STEVEN C. LOGSDON, Plaintiff,
v.
BNSF RAILWAY COMPANY, a corporation; Defendant.

          MEMORANDUM AND ORDER

          Cheryl R. Zwart United States Magistrate Judge.

         Plaintiff has moved to compel production of the training materials used to educate and train BNSF management official Andrew Callahan. (Filing No. 82). Plaintiff's complaint includes: 1) a FELA claim for damages arising from a personal injury allegedly caused by BNSF's negligence or regulatory violations, (Filing No. 1, at CM/ECF pp. 2-5); a FRSA claim against BNSF which alleges Plaintiff was terminated for engaging in protected activity, i.e., reporting a work-related personal injury to the railroad, (Filing No. 1, at CM/ECF pp. 5-10); and a FRSA claim against Callahan for allegedly intimidating and prohibiting the plaintiff from truthfully reporting his work-related injury, (Filing No. 1, at CM/ECF pp. 7, 11). The complaint does not allege an employment discrimination claim.

         During his deposition, Callahan testified about the classroom and online training he received through BNSF's Human Resources Department regarding OSHA “whistleblower” laws. (Filing No. 91-2, at CM/ECF p. 6-12 at 43:22-47:4, 71:4-73:12). As a follow up to this deposition testimony, Plaintiff requested those training materials as follows:

REQUEST FOR PRODUCTION NO. 43: Produce a copy of the actual training materials/training module used in 2012 and 2013 for the Mechanical Supervisors Certification as testified to by Andrew Callahan during his deposition on December 8, 2015.
REQUEST FOR PRODUCTION NO. 44: Produce a copy of the actual training materials/training module used in 2012 and 2013 for the EEO training as testified to by Andrew Callahan during his deposition on December 8, 2015.
REQUEST FOR PRODUCTION NO. 45: Produce a copy of the actual training materials/training module used in Gillette, Wyoming to train certain BNSF employees, including Andrew Callahan on the FRSA/OSHA whistleblower laws as testified to by Andrew Callahan during his deposition on December 8, 2015.
REQUEST FOR PRODUCTION NO. 46: For the years 2012 and 2013 produce a copy of the actual training materials/training module in the web-based Supervisor's Code of Conduct training dealing with the FRSA/OSHA whistleblower laws as testified to by Andrew Callahan during his deposition on December 8, 2015.

(Filing No. 86-2). The requested training materials were created by BNSF's in-house counsel, or at its direction, or with its final review and approval; the requested materials were used for training only BNSF supervisory personnel; and the documents were not released as handouts, distributed outside the classroom, or posted online for later download and review. (Filing No. 91-3).

         The railroad objects to producing the requested documents, asserting they are protected by the attorney-client privilege. The railroad further claims the training Callahan received through BNSF's in-house counsel is not relevant to any element of plaintiff's § 20109 claim against BNSF, (Filing No. 90, at CM/ECF p. 6). And as to both Defendants, BNSF claims EEO training materials are irrelevant because Plaintiff does not allege he faced retaliation or was terminated for being a member of a protected status or class, such as race, religion, gender, or national origin. (Filing No. 90, at CM/ECF p. 7).

         Plaintiff's Request No. 44 demands production of the 2012 and 2013 training materials used in providing EEO training to Callahan. This request no doubt encompasses documents that have nothing to do with the employment issues raised in Plaintiff's complaint; e.g., race or gender discrimination, sexual harassment, etc. Having already conferred with counsel to assist in resolving their discovery disputes, the court will not re-craft or -draft Plaintiff's discovery requests to narrow the scope. Instead, BNSF's objection to Production Request No. 44 will be sustained.

         Requests 43, 45, and 46 are tailored to the issues of this case. The railroad objects to production, claiming the responsive documents are not discoverable under the attorney-client privilege.

         The purpose of the attorney-client privilege is to encourage full and frank communication between attorneys and their clients by assuring clients that their disclosures will be held in confidence. Upjohn Co. v. United States, 449 U.S. 383, 389 (1981). As such, the attorney-client privilege is inapplicable when communications with counsel were not made for the purpose of securing or providing legal advice. Diversified Indus., Inc., 572 F.2d 596, 609 (8th Cir. 1977) (en banc). “[T]he party invoking the privilege must show the communication is for the purpose of securing primarily either (1) an opinion on law; or (2) legal services; or (3) assistance in some legal proceeding.” Nat'l Sec. Counselors v. Cent. Intelligence Agency, 2016 WL 4621060, at *30 (D.D.C. Sept. 6, 2016) (applying federal privilege law).

         “[A]pplication of the privilege should ordinarily be limited to legal advice leading to a decision by the client.” In re Domestic Drywall Antitrust Litig., 2014 WL 5090032, at *3-4 (E.D. Pa. 2014). General policy statements and instructional guides, the purpose of which is to notify employees of legal requirements, is not specific legal advice. “No court has yet held that a corporate policy of lawfulness is protected from discovery as privileged.” Id. See also, Stevens v. Corelogic, Inc, 2016 WL 397936, at *6 (S.D. Cal. Feb. 2, 2016). Where, as in this case, the communication is from counsel to client, the privilege applies to only those communications by the lawyer which “reveal, directly or indirectly, the substance of a confidential communication by the client.” Am. Standard Inc. v. Pfizer Inc., 828 F.2d 734, 745 (Fed. Cir. 1987). Documents which merely explain an area of law fall outside the privilege: A summary of applicable law, by itself, neither reveals nor threatens to expose any client confidential communications. Id.

         Based on the information before the court, Requests 43, 45, and 46 request BNSF's training and instructional materials on the state of OSHA whistleblower law. Even if prepared by in-house counsel, these materials do not provide specific legal advice and disclosure will not reveal confidential client ...


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