United States District Court, D. Nebraska
JAMES J. ELLENBECKER, Plaintiff,
BNSF RAILWAY COMPANY, a Delaware corporation; Defendant.
MEMORANDUM AND ORDER
R. Zwart United States Magistrate Judge.
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.
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
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).
following groups of documents from BNSF's privilege log
continue to be in dispute:
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
Materials from a recorded witness statement taken
from Brent Shaffer, the conductor for
Ellenbecker's trip, by Matthews on March 10,
28, 32, 38, 41- 42
Various evaluations, summaries and other documents
prepared or obtained by the Claims Department.
now moves for an order protecting the documents in dispute
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).
attorney-client privilege protects a corporate employee's
(1) the communication was made for the purpose of securing
(2) the employee making the communication did so at the
direction of a ...