Submitted: October 16, 2019
from United States District Court for the District of
Minnesota - Minneapolis
SMITH, Chief Judge, GRUENDER and BENTON, Circuit Judges.
BENTON, CIRCUIT JUDGE.
Central, Ltd. terminated Todd Smith-Bunge. He sued for
unlawful retaliation under the Federal Railroad Safety Act.
49 U.S.C. § 20109. The district
court granted summary judgment to Wisconsin
Central. Smith-Bunge appeals that decision and two discovery
rulings. Having jurisdiction under 28 U.S.C. § 1291,
this court affirms.
2013, Wisconsin Central suspended Smith-Bunge. He sued for
unlawful retaliation under the FRSA. He prevailed on summary
judgment on October 8, 2014. Smith-Bunge v. Wisconsin
Central, Ltd., 60 F.Supp.3d 1034 (D. Minn. 2014). Three
weeks earlier, Smith-Bunge inspected his truck for faulty
brakes. Later, he accidentally drove his vehicle into a
train's path despite knowing the train had been cleared
to continue on the tracks. After the accident, he completed
an injury report, writing that his truck's brakes
malfunctioned, causing the crash. Wisconsin Central hired an
expert, Michael W. Rogers, to investigate Smith-Bunge's
vehicle. Rogers found that the brakes allowed Smith-Bunge to
stop. He concluded Smith-Bunge was the sole cause of the
crash. Wisconsin Central terminated Smith-Bunge for violating
four rules: safety; alert and attentiveness; alert to train
movement; and furnishing true information.
sued for unlawful retaliation, arguing Wisconsin Central
retaliated against him for three acts: his 2013 lawsuit, his
2014 report of faulty brakes, and his 2014 report of injury.
The district court granted Wisconsin Central summary
judgment, concluding Smith-Bunge failed to make a prima facie
appeals the summary judgment. He also challenges the district
court's denial of his motion to compel testimony from
Rogers and its grant of Wisconsin Central's motion for
protective order for its counsel, Constance Valkan. This
court reviews for abuse of discretion a district court's
discovery rulings. See Jackson v. Allstate Ins. Co.,
785 F.3d 1193, 1202 (8th Cir. 2015).
sought the draft drawings of the accident scene and draft
expert reports by Michael Rogers, the crash expert hired by
Wisconsin Central. Smith-Bunge also sought Rogers's
communications with Wisconsin Central's counsel, Julius
acknowledges that an expert's materials are protected
under Federal Rule of Civil Procedure 26(b)(4). See
Fed. R. Civ. P. 26(b)(4)(B), (C) (protecting "drafts of
any report or disclosure required" of an expert as well
as "communications between the party's attorney and
any [expert] witness"). He argues that Rogers is not an
expert witness but only an ordinary witness.
expert's "information was not acquired in
preparation for trial but rather because he was an actor or
viewer with respect to transactions or occurrences that are
part of the subject matter of the lawsuit . . . [the witness]
should be treated as an ordinary witness." Fed R. Civ.
P. 26(b)(4), advisory committee's note to 1970
Amendments. On September 19, 2014, a day after the crash,
Smith-Bunge's counsel asked Wisconsin Central to place a
litigation hold. A month later, Wisconsin Central retained
Rogers to provide "litigation support." Rogers then
investigated the crash and prepared recommendations. The
district court did not abuse its discretion in concluding
Rogers acquired the information in preparation for trial, so
he was an expert witness whose work is protected under Rule
26(b)(4). See Simon v. G.D. Searle & Co., 816
F.2d 397, 401 (8th Cir. 1987), quoting 8 C. Wright
and A. Miller, Federal Practice and Procedure §
2024, at 198-99 (1970) ("[T]he test should be whether,
in light of the nature of the document and the factual
situation in the particular case, the document can fairly be
said to have been prepared or obtained because of the
prospect of litigation.").
district court did not abuse its discretion in blocking a
deposition of Wisconsin Central's counsel, Constance
Valkan, about her conversations with other employees and