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Peterson v. Union Pacific Railroad Co.

November 1, 2007

MARIE PETERSON, SPECIAL ADMINISTRATOR OF THE ESTATES OF JANE ANN MCGRATH, DECEASED, AND MOLLY MORGAN, DECEASED, ET AL, PLAINTIFFS,
v.
UNION PACIFIC RAILROAD COMPANY, DEFENDANT.



The opinion of the court was delivered by: Byron G. Cudmore, U.S. Magistrate Judge

OPINION

Pending before the Court are Plaintiffs Marie Cimaglia and Jon Petersen's Request to Permit Entry Upon Land in the Possession and Control of Union Pacific Railroad Company Pursuant to Fed. R. Civ. P. 34(a)(2) (d/e 242) (Rule 34 Motion) and Amended Second Motion to Compel (d/e 243) (Motion to Compel). The instant case arises out of a collision between a Union Pacific freight train and a passenger vehicle that occurred on July 22, 2004, at the Cisco Road railroad crossing in Macoupin County, Illinois. For the reasons set forth below, the motions are allowed in part and denied in part.

A. Rule 34 Motion

Plaintiffs Cimaglia and Petersen ask the Court to direct the Defendant to allow the entry of their experts, agents, and attorneys to the crossing at which the accident occurred for a distance in both directions along the tracks to include the entire approach circuits for the crossing (collectively, "the crossing area") for purposes of an inspection. Cimaglia and Petersen request that they be allowed four hours to conduct the inspection, during daylight hours. Cimaglia and Petersen seek complete and unimpeded access to inspect the crossing signal system, the crossing and right-of-way, and signal system documents. Cimaglia and Petersen further request that a representative of Defendant be present to (1) open closed and locked components and equipment, (2) operate/activate the crossing signal system, (3) enable the recording of serial numbers and photographing of components and equipment of the crossing signal system, and (4) provide a download of all available data from event recorders and other components and equipment of the crossing signal system. Cimaglia and Petersen request that Defendant make available at the inspection originals, with copies for Plaintiffs, of all signal system documents at the crossing or in the crossing signal system on the date of the inspection and all signal system documents that were at the crossing on the date of the accident. Cimaglia and Petersen also request that the recorder board that was removed from the crossing on the date of the accident be brought to the inspection, so that it can be installed into the crossing signal system for inspection and downloading. Cimaglia and Petersen ask that Defendant's personnel be directed to bring all equipment necessary to perform the download.

Defendant objects to Cimaglia and Petersen's request. According to Defendant, the request exceeds the scope of written discovery or mere entry upon land and is thus untimely because oral fact discovery has closed. Furthermore, Defendant, citing Fed. R. Civ. P. 26(c), asserts that the inspection would unreasonably disrupt rail operations. As set forth below, the Rule 34 Motion is allowed in part and denied in part.

Rule 34(a)(2) permits a party to serve on another party a request "to permit entry upon designated land or other property in the possession or control of the party upon whom the request is served for the purpose of inspection and measuring, surveying, photographing, testing, or sampling the property or any designated object or operation thereon, within the scope of Rule 26(b)." The Court notes at the outset that Defendant does not dispute Plaintiffs' assertion that the crossing area constitutes land in Defendant's possession or control. Thus, the request for access falls within the scope of Rule 34(a)(2), provided it comports with Rule 26(b). Rule 26(b)(1) provides that "parties may obtain discovery regarding any matter, not privileged that is relevant to the claim or defense of any party . . . ." The Court has discretion to limit discovery if it determines "that: (I) the discovery sought is unreasonably cumulative or duplicative, or is obtainable from some other source . . .; (ii) the party seeking discovery has had ample opportunity by discovery in the action to obtain the information sought; or (iii) the burden or expense of the proposed discovery outweighs its likely benefit." Fed. R. Civ. P. 26(b)(2).

The Court turns to the objections raised by Defendant. Defendant first asserts that the request that Defendant provide a representative to perform certain functions during the inspection implicates oral discovery, which has closed. The Court disagrees. Cimaglia and Petersen do not ask that the representative testify or make any statements under oath. The conduct contemplated is not within the scope of oral discovery and is, for the most part, reasonably related to the inspection, as will be discussed infra. Defendant fails to show that the request is untimely under the applicable scheduling order.

Defendant further asserts that the request would unreasonably disrupt rail operations in that Defendant would necessarily be required to halt rail traffic for the duration of the inspection, thus resulting in undue burden and expense. As previously noted, this Court has discretion to limit discovery if the discovery sought is obtainable from some other source or if the burden or expense of the proposed discovery outweighs its likely benefit. Fed. R. Civ. P. 26(b)(2). Given the facts and circumstances of the instant case, it is clear that some inspection of the accident site is warranted. However, several limitations must be imposed on Plaintiffs' request in order to comport with Rule 26(b). The Court addresses each request in turn.

Plaintiffs assert that the inspection will be conducted with appropriate traffic security for highway traffic. Rule 34 Motion, p. 3, § IV. Manner of Inspection, ¶ 1. Defendant argues that it will incur undue expense in that its employees will be required to flag traffic during the inspection. Defendant's Response to Plaintiffs' Request to Permit Entry upon Land in the Possession and Control of Union Pacific Railroad Company Pursuant to Fed. R. Civ. P. 34(a)(2) (d/e 246) (Defendant's Response), p. 3. Plaintiffs' Rule 34 Motion does not request that Defendant be directed to provide employees to flag highway traffic, and the Court will not order Defendant to do so. Plaintiffs are required to provide appropriate traffic security for highway traffic during the inspection at their expense. The Court will discuss rail traffic infra.

Plaintiffs request a representative of Defendant to be present to perform the following: (1) open closed and locked components and equipment, (2) operate/activate the crossing signal system, (3) enable the recording of serial numbers and photographing of components and equipment of the crossing signal system, and (4) provide a download of all available data from event recorders and other components and equipment of the crossing signal system. Rule 34 Motion, p. 3-4, § IV. Manner of Inspection, ¶ 2. The first three requests are reasonable incident to the inspection and Defendant is directed to provide a representative to perform these functions. Furthermore, to the extent that the data requested in the fourth request is relevant and stored on-site, the fourth request is reasonable as well. Rule 34(a)(1) specifically contemplates the translation of electronically-stored information into a "reasonably usable form." Thus, Defendant is also directed to arrange for an employee to be on-site during the inspection to provide a download of all available date from event recorders and other components and equipment of the crossing signal system that is stored on-site.

Plaintiffs request that Defendant make available at the inspection all signal system documents that are at the crossing or in the crossing signal system on the date of the inspection. Rule 34 Motion, p. 4, § IV. Manner of Inspection, ¶ 4. Defendant does not challenge the relevance of these documents, and the Court finds the request for document inspection to be reasonable. Plaintiffs also request that Defendant be directed to provide them with copies of these documents. This request goes too far. Defendant must make the documents available for inspection and copying; Defendant need not provide the copies. Fed. R. Civ. P. 34(a). If Plaintiffs wish to make copies of the documents stored on-site, they should make arrangements to do so during the inspection.

Plaintiffs also request that Defendant make available at the inspection all signal system documents that were at the crossing on the date of the accident. Rule 34 Motion, p. 4-5, § IV. Manner of Inspection, ¶¶ 5,8. This request is overbroad. To the extent that any such documents have been removed from the site of the crossing, Plaintiffs fail to explain the necessity of returning them to the site. Plaintiffs may examine all signal system documents that were at the crossing on the date of the accident, but Defendant is not obligated to make them available at the site. Defendant may produce the documents for inspection either as they are kept in the usual course of business or organized and labeled to correspond with the categories of the request. Fed. R. Civ. P. 34(b)(I). Plaintiffs also request that Defendant be directed to provide them with copies of the documents at issue. Once again, such a request does not comport with the federal discovery rules and will not be allowed. Defendant need only produce the requested documents for inspection and copying by Plaintiffs; it need not provide Plaintiffs with copies.

Plaintiffs request that the recorder board that was removed from the crossing on the date of the accident be brought to the inspection and installed into the crossing signal system for inspection and downloading, and ask that Defendant provide all equipment necessary to perform the download. Rule 34 Motion, p. 4, § IV. Manner of Inspection, ¶ 6. Defendant specifically challenges this request. According to Defendant, this downloading and inspection of the recorder board can be conducted at an off-site location. Assuming Defendant's representation is accurate, the Court sees no reason for the downloading to be conducted at the crossing site as a part of the inspection. Plaintiffs will be allowed to inspect the recorder board and to download the information it contains, but not as a part of the on-site inspection. Defendant is directed to provide equipment necessary to perform the download to allow for the translation of the electronically-stored information into a "reasonably usable form." Fed. R. Civ. P. 34(a)(1).

Finally, Plaintiffs state that they wish to conduct a survey of the crossing area as a part of their inspection. Rule 34 Motion, p. 5, § IV. Manner of Inspection, ¶ 7. Surveying is expressly permitted under the ...


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