Searching over 5,500,000 cases.


searching
Buy This Entire Record For $7.95

Download the entire decision to receive the complete text, official citation,
docket number, dissents and concurrences, and footnotes for this case.

Learn more about what you receive with purchase of this case.

Ellenbecker v. BNSF Railway Co.

United States District Court, D. Nebraska

December 11, 2019

JAMES J. ELLENBECKER, Plaintiff,
v.
BNSF RAILWAY COMPANY, a Delaware corporation; Defendant.

          MEMORANDUM AND ORDER

          Cheryl R. Zwart United States Magistrate Judge.

         Defendant, BNSF Railway Company (BNSF) moves the court for an entry of a Protection Order to protect BSNF from disclosing various documents on their privilege log (Filing No. 25). For the reasons discussed below, with the exception of pages 134-136 and pages 283-288 (with the email portion on pages 283 and 286 redacted) of the documents reviewed by the court, (Filing No. 29 at CM/ECF pp. 134-136, 283-288), the motion will be granted.

         BACKGROUND

         Plaintiff, James J. Ellenbecker (Ellenbecker) filed suit alleging a personal injury claim against his employer, BNSF, under the Federal Employers' Liability Act (FELA). (Filing No. 1). Ellenbecker claims he was injured on March 5, 2017. On March 6, 2017, Ellenbecker submitted a personal injury report to BNSF and the claim was assigned to claim representative James Matthews (Matthews). (Filing No. 27-1, at CM/ECF p. 2). Upon receiving the report, Matthews contacted BNSF Senior General Attorney, James Roberts (Roberts) to obtain direction to investigate the claim. (Id.).

         Ellenbecker requested various documents through requests for production. BNSF objected to many of the requests and produced a privilege log identifying 75 documents being withheld on the basis of attorney-client privilege, attorney work product, and 49 U.S.C. § 20903 & 49 C.F.R. § 225.7(b). (Filing No. 27-6).

         The following groups of documents from BNSF's privilege log continue to be in dispute[1]:

Doc #

Description

2, 10-27, 29-31, 33-37, 39-40, 44, 47-51, 66-75

Communications between members of BNSF's Claims Department and Claims Department personnel and other BNSF supervisory employees or third parties in the investigation of Ellenbecker's claim of injury.

5-7, 9, 53-56

Background investigation reports regarding Ellenbecker obtained by the Claims Department both before and after the filing of his Complaint and associated communications.

45-46

Materials from a recorded witness statement taken from Brent Shaffer, the conductor for Ellenbecker's trip, by Matthews on March 10, 2017.

28, 32, 38, 41- 42

Various evaluations, summaries and other documents prepared or obtained by the Claims Department.

         BNSF now moves for an order protecting the documents in dispute from production.

         ANALYSIS

         Federal courts follow federal attorney-client privilege law in all federal cases other than civil diversity actions (Fed. R. Evid. 501), and they apply the federal work product doctrine in all federal question cases. Baker v. GMC, 209 F.3d 1051, 1053 (8th Cir. 2000).

         The attorney-client privilege protects a corporate employee's communication if:

(1) the communication was made for the purpose of securing legal advice;
(2) the employee making the communication did so at the direction of a ...

Buy This Entire Record For $7.95

Download the entire decision to receive the complete text, official citation,
docket number, dissents and concurrences, and footnotes for this case.

Learn more about what you receive with purchase of this case.