Post on 10-Sep-2020
A072A
(Rev.8/8
IN THE UNITED STATES DISTRICT COURT FOR THE NORTHERN DISTRICT OF GEORGIA
ROME DIVISION
CHRISTOPHER GARY SWOOPE,
Plaintiff, v. CIVIL ACTION FILE NO.:
4:13-CV-0307-HLM
CSX TRANSPORTATION, INC.,
Defendants.
ORDER
This case is before the Court on Defendant's Motion for
Protective Order [37] and on Plaintiff's First Motion to
Compel ("Motion to Compel) [39].
I. Background
A. Factual Allegations
Defendant is a railroad corporation organized under the
laws of the Commonwealth of Virginia, with its principal
Case 4:13-cv-00307-HLM Document 54 Filed 08/13/14 Page 1 of 26
A072A
(Rev.8/8
place of business located in Jacksonville, Florida. (Compl.
(Docket Entry No. 1) 1{ 2.) Plaintiff worked for Defendant as
an Engineer on Defendant's railroad in McMinn County,
Tennessee. (kL.1J 5.) This Court maintains jurisdiction over
the instant action pursuant to the Federal Employers'
Liability Act, 45 U.S.C. § 51 et seq (id. 1J 1 ), and because
the incident that necessitated the instant action occurred on
railroad tracks in Ranger, Georgia (see Joint Motion to
Transfer (Docket Entry No. 7) at 1 ).
Plaintiff alleges, in relevant part:
On or about April 28, 2013, while acting within the scope of his employment as an Engineer with Defendant, which duties_ were related and necessary to and substantially affected the conduct of interstate commerce by Defendant, Plaintiff was caused to be injured because of the negligence of Defendant and its agents and because of the wrongful conduct of Defendant and
2
Case 4:13-cv-00307-HLM Document 54 Filed 08/13/14 Page 2 of 26
A072A
(R~v.8/8
its agents in providing Plaintiff with an unsafe place to work that included, but was not limited to:
a. Failing to maintains [sic] its rights of way so as to prevent trees from falling and blocking the track;
b. Failing to maintain vegetation so that it did not interfere with trackside duties;
c. Failing to train Plaintiff relating to his personal safety to insure he knew how to react to an event like a tree blocking the track;
d. Failing to inspect the tracks to insure that they were safe for use by freight trains;
e. Requiring Plaintiff to work on a railroad track that was blocked by vegetation.
(Com pl. 1J 6.) Plaintiff contends that these negligent acts
violated Defendant's duties under 45 U.S.C. § 51, "FRA
Safety regulations including 49 C.F.R. § 213.37," and "49
C.F.R. § 230.123 relating to [] Defendant's duties to train
engineers for their personal safety." (kl)
3
Case 4:13-cv-00307-HLM Document 54 Filed 08/13/14 Page 3 of 26
Plaintiff states that, as a result· of these violations,
"Plaintiff was caused to be seriously injured because his
train collided with a tree that was blocking the tracks and he
lacked the training necessary to allow him to attain a
position of safety in a safe manner." (Com pl. 1J 7.) Plaintiff
alleges that Defendant's actions amount to negligence per
seas well as negligence as a matter of fact. (kL 1J 8.) Based
on these allegations, Plaintiff requests damages, costs, and
such other and further relief as the Court deems just and
proper. (kL at 4.)
B. Procedural Background
Plaintiff filed the instant lawsuit on October 15, 2013, in
the United States District Court for the Eastern District ,of
Tennessee. (Docket Entry No. 1.) The case was transferred
4
A072A
(Rev.8/8
..,,
Case 4:13-cv-00307-HLM Document 54 Filed 08/13/14 Page 4 of 26
A072A
(Rev.8/8
to this Court pursuant to a December 16, 2013, Order
granting the Parties Joint Motion to Change Venue. (See
Order of Dec. 16, 2013 (Docket Entry No. 9) at 1.)
On July 10, 2014, Defendant filed its Motion for
Protective Order (Docket Entry No. 37), and Plaintiff filed his
Motion to Compel (Docket Entry No. 39). The briefing
process for those Motions is now complete, and the Court
consequently finds the Motions ripe for resolution.
II. Defendant's Motion for Protective Order
A. The Parties' Positions
Defendant's Motion for Protective Order concerns
Plaintiff's requested production of a "LocoCAM" digital video
recording and the data imbedded in or collected alongside
that recording (collectively, the "Recording"). (See generally
5
Case 4:13-cv-00307-HLM Document 54 Filed 08/13/14 Page 5 of 26
Br. Supp. Mot. Protective Order (Docket Entry No. 37-1) at
1-5.) The Recording contains not only video of the incident
in question, but also several data elements, such as "speed,
horn, direction, bell, and emergency brake application." (kt.
at 2.) In order to access the recording in its native
format-the format in which both the data and the video
images are accessible-the would-be viewer must purchase
an $800.00 software program (the "GE Software") from
General Electric, the manufacturer of the equipment that is
affixed to Defendant's trains and that created the Recording
in the first place. (kt. at 3-4.)
Plaintiff asserts that Defendant must either produce the
Recording in a "reasonably usable format, such as .avi,"
provide a computer pre-loaded with the video and the
6
A072A
(Rev.8/8
...,,
Case 4:13-cv-00307-HLM Document 54 Filed 08/13/14 Page 6 of 26
required software, or reimburse Plaintiff for any costs
associated with Plaintiff's purchase of the GE Software.
(Resp. Mot. Protective Order at 3.) However, Defendant
contends that it is unable to produce the video in a modified
format, as such production would violate its licensing
agreement with General Electric. (Br. Supp. Mot. Protective
Order at 5-8.) Further, Defendant asserts that it is not
responsible for funding Plaintiff's lawsuit, and therefore
should not be forced to purchase the GE Software for
Plaintiff. (kl at 8-20.)
8. Discussion
The Court is unconvinced that Defendant's agreement
with General Electric definitively prohibits Defendant from
producing the Recording, or at least the video portion of the
7
A072A
(Rev.8/8
.,,
Case 4:13-cv-00307-HLM Document 54 Filed 08/13/14 Page 7 of 26
A072A
(Rev.8/8
..,,
Recording, to Plaintiff in a usable form. Defendant cites to
Paragraph 11.4 of the "Standard Terms and Conditions of
Sale" between General Electric and Defendant (the "Sales
Agreement"). (See Br. Supp. Mot. Protective Order.) That
section, as cited by Defendant, states:
Buyer may not distribute copies of the Data to others or electronically transfer the Data from one computer to another over a network. The Data contains trade secrets of Seller. In order to protect such trade secrets, Buyer may not decompile, reverse engineer, disassemble, or otherwise reduce the software to a human-perceivable form. BUYER MAY NOT MODIFY, ADAPT, TRANSLATE, RENT, LEASE, LOAN, RESELL FOR PROFIT OR OTHER PURPOSE, DISTRIBUTE, NETWORK, OR CREATE DERIVATIVE WORKS BASED UPON THE DATA OR ANY PART THEREOF. Seller and Buyer acknowledge that the Data is protected by copyright, trade secret, and patent laws of the United State of America (and by applicable international treaties).
8
Case 4:13-cv-00307-HLM Document 54 Filed 08/13/14 Page 8 of 26
A072A
(Rev.8/8
(Aff. of Joshua Wildharber Ex. A (Docket Entry No. 37-2) 1J
11.4. (capitalization in original)) However, Defendant does
not cite to the definition of "Data," which appears in the
same section as the above excerpt. It states:
As used in these terms and conditions, the term "Data" means all information and data of any type, form or nature (including but not limited to, designs, drawings, blueprints, tracings, plans, models, layouts, Software, User Documentation, specifications, technical publications, electronic transmittals, customer website data and memoranda) which may be furnished or made available to [Defendant], directly or indirectly, as the result of the [Sales Agreement].
(kl 1J 11 . 1 . )
This definition of Data, and indeed the Sales
Agreement as a whole, indicates a concern with
unauthorized modification of the recording equipment and
the GE Software itself, not that Defendant may pull the
9
Case 4:13-cv-00307-HLM Document 54 Filed 08/13/14 Page 9 of 26
A072A
(Rev.8/8
...,,
video recording for attorneys to view as part of ongoing
litigation. Indeed, there is no indication that the Recording
was "furnished" to Defendant as part of the Sales
Agreement. Further, the Court fails to see how any "trade
secrets" could be lost through the provision of an .avi video
file to Plaintiff. 1 Consequently, the Court cannot find that
Defendant's production of the video portion of the
Recording would violate Defendant's contracts with General
Electric.
Defendant cites to Peterson v. Union Pac. R.R. Co.,
No. 06-3084, 2007 WL 3232501 (C.D. Ill. Nov. 1, 2007), for
1The Contract governing use of the GE Software is similarly unconcerned with production of .avi video files to opposing parties in litigation. (See Wildharber Aff., Ex. B (Docket Entry No. 37-2) at 1 (defining "Software" as "GE's LocoCAM Viewer Computer program" and stating that the user shall not modify "the Software").)
10
Case 4:13-cv-00307-HLM Document 54 Filed 08/13/14 Page 10 of 26
A072A
(Rev.8/8
the proposition that courts generally do not compel
defendants to release software in violation of licensing
agreements. (Br. Supp. Mot. Protective Order at 7.)
However, to the extent that an order governing the release
of software is relevant to Plaintiff's instant request for a
video file, Defendant's quotation of that case is deceptive.
While the Court does state that it "will not compel Defendant
to release the software in violation of this [licensing]
agreement," the very next line states that "Defendant must
provide the information contained in the downloads to
Plaintiffs in a reasonably usable form." Peterson, 2007 WL
3232501 at *5. Consequently, to the extent that the
Peterson opinion is relevant, it counsels in favor of requiring
11
Case 4:13-cv-00307-HLM Document 54 Filed 08/13/14 Page 11 of 26
A072A
(Rev.8/8
Defendant to produce the video portion of the Recording in
a reasonably usable form.
Further, on a broader level, even if Defendant's
production of an easily viewable version of the video portion
of the Recording somehow exposed Defendant to breach of
contract liability, that should be Defendant's burden to bear.
Defendant and General Electric certainly foresaw that
LocoCAM recordings would be integral to many lawsuits
filed against Defendants. (See, e.g., Wildharber Aff. Ex. B
'iJ 1 ( e) ("User may allow any member of the judiciary to use
the Software for consideration of any case in which User is
a party.").) However, if Defendant's interpretation of its
contracts with General Electric is correct, then Defendant
essentially negotiated the contract in such a way as to place
12
Case 4:13-cv-00307-HLM Document 54 Filed 08/13/14 Page 12 of 26
an $800.00 tax on any plaintiff attempting to sue Defendant
over an incident involving operation of a locomotive. Such
a result would be inequitable, and the Court declines to
reward Defendant for negotiating such a contract.
Defendant',s argument that it "has provided reasonable
access for inspection of the [Recording]" by allowing Plaintiff
to view the video at its offices is also unpersuasive. (Mot.
Protective Order at 17.) If the Court required Plaintiff and his
counsel to travel to Defendant's offices every time they
wished to view the Recording, that would surely create an
unfair advantage for Defendant. Further, that advantage
would exist only because of Defendant's contractual
arrangements with General Electric. Plaintiff and Plaintiff's
counsel should have the opportunity to view the video
13
A072A
(Rev.8/8
Case 4:13-cv-00307-HLM Document 54 Filed 08/13/14 Page 13 of 26
A072A
(Rev.8/8
portion of the Recording in Plaintiff's counsel's office on
their own time in an environment where they are free to
comment upon, and seek comment upon, what they are
watching without interference from Defendant.
Finally, Defendant's concerns about protecting the
integrity of the video recording are unpersuasive. (See Mot.
Protective Order at 21-23; see also id. at 7 ("[T]he
proprietary nature of the software exists to protect the
integrity of the digital video recorder as an unbiased and
objective observer of the events that transpired.").) To the
extent that Defendant is concerned that Plaintiff will show an
altered version of the video recording to the jury should this
case go to trial, the Court will ensure that the video shown
comes from Defendant's original version of the Recording.
14
Case 4:13-cv-00307-HLM Document 54 Filed 08/13/14 Page 14 of 26
To the extent that Defendant is concerned that Plaintiff's
counsel will upload the video portion of the Recording to the
internet or show it to potential jurors, such concerns could
apply to any unflattering piece of evidence provided as part
of any lawsuit. The Court must trust that Plaintiff's counsel,
and all counsel who are members of the bar of this Court,
will not act recklessly with information gained through
litigation discovery. Further, the Court cannot find that a
video of a train rolling down the tracks is any more sensitive,
or of any more interest to the internet accessing public, than
the other kinds of evidence that are uneventfully produced
in lawsuits before this Court on a daily basis.
Consequently, for all the above reasons, the Court
denies Defendant's Motion for Protective Order. Defendant
15
A072A
(Rev.8/8
"'
Case 4:13-cv-00307-HLM Document 54 Filed 08/13/14 Page 15 of 26
A072A
(Rev.8/8
must either: (1) produce the video portion of the Recording
to Plaintiff in a reasonably viewable form, such as .avi, or
(2) if Defendant truly fears suit from General Electric,
provide Plaintiff with the software necessary to view the
Recording.
Ill. Plaintiff's Motion to Compel
A. The Parties' Positions
Plaintiff's Motion to Compel concerns Plaintiff's request
to inspect the area of Defendant's tracks where Plaintiff was
allegedly injured. (See generally Pl.'s Mot. Compel (Docket
Entry No. 39; see also Pl.'s Request Inspect Track (Docket
Entry No. 39-1 ); Def.'s Resp. Pl.'s Request Inspect Track
(Docket Entry No. 39-2).) Though there are apparently other
issues that must be resolved concerning that inspection,
16
Case 4:13-cv-00307-HLM Document 54 Filed 08/13/14 Page 16 of 26
A072A
(Rev.8/8
Plaintiff states that "the only issue in this [M]otion is []
Defendant's demand that all participants in the inspection
sign a Covenant Not to Sue I Release I Waiver of Rights
[(the "Waiver")]." (Pl.'s Mot. Compel at 3-4 (internal
quotation marks and citation omitted).) Plaintiff asserts that
execution of the Waiver would mean that Defendant "owes
no duty to exercise even the most ordinary care not to injure
or kill him during the inspection." (kl at 4.) Plaintiff further
contends that the Waiver is an inappropriate limitation on
discovery, and requests an Order from the Court permitting
Plaintiff and his counsel to inspect the accident site without
signing the Waiver. (kl at 15.)
Defendant's response takes issue with Plaintiff's
characterization of the Waiver. Defendant states that the
17
Case 4:13-cv-00307-HLM Document 54 Filed 08/13/14 Page 17 of 26
A072A
(Rev.8/8
... ,
Waiver "is solely intended to prevent [Defendant] from
becoming embroiled in a second litigation regarding the
same section of track if an incident occurred that was not
caused by [Defendant]." (Def.'s Resp. Pl.'s Mot. Compel
(Docket Entry No. 40) at 3.) Further, Defendant asserts that
the Waiver "is a reasonable precaution taken by [Defendant]
to ensure Plaintiff's personnel are required to follow
[Defendant's] safety precautions and provides recourse in
the event Plaintiff's personnel act negligently." (kl)
B. Application
The Parties' primary dispute in the instant Motion
concerns their differing interpretations of the Waiver. The
portion of the Waiver covering Defendant's liability states:
For and in consideration of authorization by [Defendant] for the undersigned to come onto the
18
Case 4:13-cv-00307-HLM Document 54 Filed 08/13/14 Page 18 of 26
A072A
(Rev.8/8
..,,
property of [Defendant] for the limited purpose of instruction in and observation and inspection of [Defendant's] property to include an on the ground inspection 50 feet from the center of the track for 200 feet in each direction from where the tree fell at or near milepost 00c396 at Ranger, Georgia, the undersigned and his/her heirs, assigns and legal representatives do hereby release, forever discharge and covenant and agree not to sue [Defendant] or any of its officers, directors, agents, employees, representatives or any additional parent, corporation, divisions, subsidiaries, successors, assigns or related companies from and for whatsoever kind and nature, arising from any and all known and unknown consequences thereof, resulting from said undersigned being present on the property of [Defendant], or from the undersigned's presence regardless of whether such claims arise out of bodily and personal injuries or property damage caused by the sole negligence of [Defendant], the combined negligence or otherwise of [Defendant] and other person or entity including the undersigned or from any cause whatsoever.
(Waiver (Docket Entry No. 39-3) ~ 4.)
19
Case 4:13-cv-00307-HLM Document 54 Filed 08/13/14 Page 19 of 26
A072A
(Rev.8/8
..,,
Inspection of the above clause reveals that Defendant's
interpretation of the Waiver is wrong. Defendant asserts that
the Waiver is designed only to prevent lawsuits against
Defendant arising from accidents that are due to the injured
parties own negligence or are otherwise "not caused by
[Defendant]." (Def.'s Resp. Pl.'s Mot. Compel at 2-3.)
However, the Waiver clearly states that the undersigned
waives all claims against Defendant, even if caused by
Defendant's "sole negligence." (Waiver1J 4.) While perhaps
the Waiver does not give Defendant license to intentionally
injure Plaintiff and his counsel, there is little doubt that it
attempts to remove from Defendant the obligation to
exercise ordinary care toward Plaintiff and his
representatives inspecting the accident site.
20
Case 4:13-cv-00307-HLM Document 54 Filed 08/13/14 Page 20 of 26
A072A
(Rev.8/8
Further, Defendant's concern that, without the waiver,
Defendant could be "forced to face repeated potential
lawsuits based on possible negligent acts by Plaintiff's
personnel," or that Plaintiff's failure to sign the waiver would
make Defendant "the insurer for all of Plaintiff's actions
during [the] investigation" are overblown. (Def.'s Resp. Pl.'s
Mot. Compel at 6-7.) Even without the execution of the
Waiver, Defendant owes Plaintiff, at most, a duty of ordinary
care. See O.C.G.A. § 51-3-1 ("Where an owner or occupier
of land, by express or implied invitation, induces or leads
others to come upon his premises for any lawful purpose,
he is liable in damages to such persons for injuries caused
by his failure to exercise ordinary care in keeping the
21
Case 4:13-cv-00307-HLM Document 54 Filed 08/13/14 Page 21 of 26
A072A
(Rev.8/8
premises and approaches safe.").2 Indeed, though
Defendant asserts that "Plaintiff requests being given a
special status for this investigation" (Def. 's Resp. Pl. 's Mot.
Compel at 11 ), it appears to the Court that Plaintiff only
requests the status quo under Georgia law. The Waiver, on
the other hand, attempts to confer a special, lower status to
Plaintiff and his representatives while inspecting
Defendant's tracks.
Finally, though Defendant asserts that the Waiver, at
least in part, "protects the safety of Plaintiff while on railroad
property" (Def.'s Resp. Pl.'s Mot. Compel at 4), it does not
appear that Plaintiff objects to the safety requirements of
2Plaintiff may even be a licensee, in which case Defendant would only be liable for "willful or wanton injury." O.C.G.A. § 51-3-2. However, the Court need not, and does not, make a ruling as to whether Plaintiff would be an invitee or licensee.
22
Case 4:13-cv-00307-HLM Document 54 Filed 08/13/14 Page 22 of 26
the Waiver (see Pl.' Reply. Supp. Mot. Compel (Docket
Entry No. 43) at 3 ("There is no dispute with respect to
wearing safety equipment." (emphasis omitted))).
Consequently, the Court directs that, prior to entering
Defendant's property, Plaintiff may be forced to sign a
covenant containing only the portion of the Waiver referring
to safety equipment (see Waiver1{ 3), and that Plaintiff must
obey all safety related instructions from Defendant's
personnel while conducting the site inspection.
C. Attorney's Fees
Plaintiff requests and award of attorney's fees in
connection with his Motion to Compel. (See Pl.'s Mot.
Compel at 14-15.) Federal Rule of Civil Procedure
37(a)(5)(A) provides:
23
A072A
(Rev.8/8
..,,
Case 4:13-cv-00307-HLM Document 54 Filed 08/13/14 Page 23 of 26
A072A
(Rev.8/8
If the motion is granted--or if the disclosure or requested discovery is provided after the motion was filed--the court must, after giving an opportunity to be heard, require the party or deponent whose conduct necessitated the motion, the party or attorney advising that conduct, or both to pay the movant's reasonable expenses incurred in making the motion, including attorney's fees. But the court must not order this payment if:
(i) the movant filed the motion before attempting in good faith to obtain the disclosure or discovery without court action; (ii) the opposing party's nondisclosure, response, or objection was substantially justified, or (iii) other circumstances make an award of expenses unjust.
Fed. R. Civ. P. 37(a)(5)(A). Here, neither party is able to cite
anything close to controlling authority on the Waiver issue,
and though the Court disagrees with Defendant's position,
it cannot say Defendant's position was completely
unjustified. Consequently, the Court declines to award
24
Case 4:13-cv-00307-HLM Document 54 Filed 08/13/14 Page 24 of 26
attorney's fees, and that portion of Plaintiff's Motion to
Compel is denied.
IV. Conclusion
ACCORDINGLY, Defendant's Motion for Protective
Order [37] is DENIED. Defendant is DIRECTED to, WITHIN
FOURTEEN (14) DAYS OF THIS ORDER, either: (1)
provide the video portion of the Recording to Plaintiff in a
reasonably usable form, such as the .avi format, or (2)
provide Plaintiff with the means to view the Recording in its
original form. Plaintiff's Motion to Compel [39] is GRANTED
IN PART AND DENIED IN PART. Defendant is DIRECTED
to allow Plaintiff and his representatives to perform the
requested site inspection without signing the liability portion
of the Waiver, however Plaintiff and his representatives are
25
A072A
(Rev.8/8
Case 4:13-cv-00307-HLM Document 54 Filed 08/13/14 Page 25 of 26
DIRECTED to follow any safety related precautions
promulgated by Defendant while they are on Defendant's
property. Plaintiff's request for fees contained within his
Motion to Compel [39] is DENIED. /,
IT IS SO ORDERED, this the J3day of August, 2014.
26
A072A
(Rev.8/8
Case 4:13-cv-00307-HLM Document 54 Filed 08/13/14 Page 26 of 26