United States District Court, D. Nebraska
STEVEN C. LOGSDON, Plaintiff,
BNSF RAILWAY COMPANY, a corporation; Defendant.
MEMORANDUM AND ORDER
R. Zwart United States Magistrate Judge.
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.
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).
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).
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.
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
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).
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.
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