United States District Court, W.D. Washington, Seattle
MARVIN DYKES and MARK I. HARRIS, Plaintiffs,
BNSF RAILWAY COMPANY, Defendant.
C. Coughenour UNITED STATES DISTRICT JUDGE.
matter comes before the Court on Plaintiffs' motion for
protective order (Dkt. No. 11). Having thoroughly considered
the parties' briefing and the relevant record, the Court
finds oral argument unnecessary and hereby DENIES the motion
for the reasons explained herein.
2017, Plaintiffs were working as the conductor and locomotive
engineer aboard one of Defendant BNSF Railway's trains
when it derailed near Surrey, British Columbia. (Dkt. Nos.
1-2 at 2-3, 11 at 2.) Plaintiffs bring suit pursuant to the
Federal Employers' Liability Act for injuries they
sustained during the derailment. (Dkt. No. 1-2 at
February 7, 2018, the parties conducted their Federal Rule of
Civil Procedure 26(f) discovery conference. (Dkt. No. 11 at
2-3.) The parties subsequently exchanged initial disclosures
and served written discovery requests. (See Dkt.
Nos. 11 at 3, 11-2.) Defendant's initial disclosures
listed the documents it expected to use to support its claims
and defenses, but did not provide any of the identified
documents. (Dkt. No. 11-2 at 2.) After serving its initial
disclosures, Defendant noticed videotaped depositions for
both Plaintiffs on March 27 and March 29 respectively. (Dkt.
Nos. 11-3, 11-4.) Plaintiffs requested that Defendant
informally discover many of the documents identified in its
initial disclosures prior to their depositions. (Dkt. Nos.
11, 11-5, 11-8.) Defendant refused. (Id.) Plaintiffs
object to conducting their depositions before they have
received the documents listed in Defendant's initial
disclosures or responses to their discovery requests. (Dkt.
No. 11 at 4-5.)
motions are strongly disfavored. Plaintiffs ask the Court for
a protective order allowing them to obtain documents
identified in Defendant's initial disclosures and
responses to initial discovery requests prior to conducting
videotaped depositions. (Id. at 1.) The district
court “may, for good cause, issue an order to protect a
party or person from annoyance, embarrassment, oppression, or
undue burden or expense.” Fed.R.Civ.P. 26(c)(1). The
party resisting discovery has the burden of demonstrating why
discovery should not be allowed. Blankenship v. Hearst
Corp., 519 F.2d 419, 429 (9th Cir. 1975).
Plaintiffs' motion requires the Court to resolve two
issues: (1) whether Defendant's initial disclosures were
adequate; and (2) whether Plaintiffs should have to undergo
videotaped depositions before receiving any written
Rule of Civil Procedure 26(a) requires parties to disclose
certain information without awaiting a discovery request. The
rule mandates that parties provide “a copy-or a
description by category and location-of all documents,
electronically stored information, and tangible things that
the disclosing party had in its possession, custody, or
control and may use to support claims or defenses, unless the
use would be solely for impeachment.” Fed.R.Civ.P.
26(a)(1)(A)(ii). In their initial disclosure, parties must
“describe and categorize, to the extent identified
during the initial investigation, the nature and location of
potentially relevant documents and records . . . .”
Fed.R.Civ.P. 26 advisory committee's notes (1993
amendment). The rule does not, however, require parties to
produce documents. Id.
initial disclosures include a descriptive list of the
documents it plans to use to support its claims or defenses.
(See Dkt. No. 11-2 at 3) (For example:
“Plaintiff's personal injury reports and
statements” and “Plaintiffs' BNSF employee
records, including compensation records.”). In
characterizing these disclosures, Plaintiffs seem to imply
that Defendant is required to produce the documents upon
request. (Dkt. No. 11-8 at 1) (“[A]lthough
Defendant's disclosure eludes to general categories of
documents, absolutely nothing has been produced to date
leaving Plaintiffs without any documents, photographs and the
like pertaining to the May 14, 2017 incident . . . .”)
The Federal Rules, as noted above, do not require Defendant
to disclose the documents. In cases where “only a
description is provided, the other parties are expected to
obtain documents desired by proceeding under Rule 34 or
through informal requests.” Fed.R.Civ.P. 26 advisory
committee's notes (1993 amendment).
Court finds that Defendant has complied with its initial
disclosure requirements- albeit, to the very minimum extent
required by Rule 26(a). While the Court understands
Plaintiffs' frustration with Defendant's refusal to
informally produce documents, the proper remedy is to
propound discovery requests, not to issue a protective order
that would effectively require amended
Timing of Depositions
Defendant's initial disclosures were adequate under Rule
26(a), the Court must still decide whether it is appropriate
to allow videotaped depositions of the Plaintiffs prior to
their receipt of any written discovery. Parties cannot seek
formal discovery, including depositions, until after they
have conducted a Rule 26(f) conference. See Fed. R.
Civ. P. 26(d)(1). Parties generally choose the sequence of
discovery, unless “the court orders otherwise for the
parties' and witnesses' convenience and in the
interests of justice.” Fed.R.Civ.P. 26(d)(3).
deposition notices comply with the Federal Rules of Civil
Procedure. Defendant waited to notice the depositions until
after the parties conducted their Rule 26(f) conference.
(Dkt. No. 11 at 2-3.) The notices were reasonable in that
they were issued 30 days prior to the depositions, and listed
the time and place they would occur. (Dkt. Nos. 11-3, 11-3)
(see Fed. R. Civ. P. 30(b)(1)). Nor ...