United States District Court, E.D. Washington
RUTH SMITH, individually and as personal representative of the Estate of Donald Smith; KYLE MOSS and SAMANTHA BAIRD MOSS, husband and wife, Plaintiffs,
BNSF RAILWAY COMPANY, commonly known as The Burlington Northern Santa Fe Railway, a Delaware corporation doing business in the State of Washington, and DOE DEFENDANTS I THROUGH X, Defendants.
ORDER DENYING DEFENDANT'S MOTION FOR PROTECTIVE
SALVADOR MENDOZA, JR. UNITED STATES DISTRICT JUDGE
the Court, without oral argument, is Defendant BNSF Railway
Company's Motion for a Protective Order Regarding Request
for Production No. 15, ECF No. 38, and related motion to
expedite, ECF No. 40. Defendant seeks to extend its deadline
for responding to Request for Production 15 in the third set
of requests served by Plaintiffs Ruth Smith, the Estate of
Donald Smith, Kyle Moss, and Samantha (Baird) Moss on July
26, 2019. See ECF No. 39-1 at 6, 9. Request for
Production 15 requires Defendant to produce certain
“train dispatcher records, ” including audio
recordings. Id. at 6. Claiming that providing this
discovery will impose a disproportionately “huge
burden” on it, Defendant seeks to extend its September
4, 2019 deadline to September 30, 2019. ECF No. 39 at 2.
Plaintiffs already agreed to one prior extension and are
unwilling to grant Defendant more time to provide this
discovery. Id. Thus, Plaintiffs oppose
Defendant's motion for a protective order. ECF No. 41.
Having reviewed the briefing and the file in this matter, the
Court is fully informed and denies the motion.
initial matter, Defendant's attempt to discount the
probative value of the train dispatcher records is
unavailing. The scope of discovery is broad. See
Fed. R. Civ. P. 26(b)(1). “Relevance, for discovery
purposes, encompasses ‘any matter that bears on, or
that reasonably could lead to other matter that could bear
on, any issue that is or may be in the case.'”
Equal Emp't Opportunity Comm'n v. Wal-Mart
Stores, Inc., 276 F.R.D. 637, 641 (E.D. Wash. 2011)
(quoting Oppenheimer Fund, Inc. v. Sanders, 437 U.S.
340, 351 (1978)). Defendant tacitly admits the train
dispatcher records are discoverable. See ECF No. 38
issue is whether Defendant should receive more time to
produce the train dispatcher records. The Court has
“wide discretion in controlling discovery.”
Jeff D. v. Otter, 643 F.3d 278, 289 (9th Cir. 2011)
(quoting Little v. City of Seattle, 863 F.2d 681,
685 (9th Cir. 1988)). For good cause, the Court may issue a
protective order “to protect a party or person from
annoyance, embarrassment, oppression, or undue burden or
expense.” Fed.R.Civ.P. 26(c)(1). “A party
asserting good cause bears the burden . . . of showing that
specific prejudice or harm will result if no protective order
is granted.” Foltz v. State Farm Mut. Auto. Ins.
Co., 331 F.3d 1122, 1130 (9th Cir. 2003). “[B]road
allegations of harm, unsubstantiated by specific examples or
articulated reasoning, do not satisfy th[is] test.”
Id. (quoting Beckman Indus., Inc. v. Int'l
Ins. Co., 966 F.2d 470, 476 (9th Cir. 1992)).
affidavit signed the day before the deadline, Defendant's
director of dispatching practices and rules says it will take
a senior manager thirty hours over the course of four weeks
to sort and compile information responsive to request for
production 15. ECF No. 39-2 at 3. However, Defendant fails to
explain why the five-and-a-half weeks it had before the
deadline were insufficient.
Defendant's complaints amount to mere inconvenience and
do not rise to the level of specific prejudice or harm it
will suffer in the absence of relief. Even if it had done so,
Defendant's predicament appears to be of its own making,
and the Court will not intervene to relieve Defendant of the
consequences of its procrastination. There is no good cause
to extend Defendant's deadline a second time. The motion
the Court “must, after giving an opportunity to be
heard, require the movant, the attorney filing the motion, or
both to pay the party or deponent who opposed the motion its
reasonable expenses incurred in opposing the motion,
including attorney's fees.” Fed.R.Civ.P.
37(a)(5)(B); see also Fed. R. Civ. P. 26(c)(3). No.
exception exists. Therefore, the parties shall brief the
amount of an appropriate sanction.
IT IS HEREBY ORDERED:
1. Defendant's Motion for a Protective
Order Regarding Request for Production No. 15, ECF
No. 38, is DENIED.
2. Defendant's related motion to
expedite, ECF No. 40, is GRANTED.
3. Defendant shall fully respond to request
for production 15 in Plaintiffs' third set no later than
September 20, 2019.
4. The parties shall brief the amount of an
appropriate sanction as follows:
No later than September 20, 2019, Plaintiffs
shall file a motion and material to support an award of
expenses, including attorney fees, reasonably incurred in
opposing Defendant's request for a protective order. If
the motion is stipulated or unopposed, counsel shall indicate
Defendant may file a response no later than fourteen
days after ...