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Smith-Bunge v. Wisconsin Central, Ltd.

United States Court of Appeals, Eighth Circuit

December 27, 2019

Todd Smith-Bunge Plaintiff- Appellant
v.
Wisconsin Central, Ltd., a corporation Defendant-Appellee

          Submitted: October 16, 2019

          Appeal from United States District Court for the District of Minnesota - Minneapolis

          Before SMITH, Chief Judge, GRUENDER and BENTON, Circuit Judges.

          BENTON, CIRCUIT JUDGE.

         Wisconsin 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[1] 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.

         In 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.

         Smith-Bunge 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 case.

         Smith-Bunge 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).

         I.

         Smith-Bunge 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 Gernes.

         Smith-Bunge 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.

         If an 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.").

         II.

         The 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 whether ...


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