Carlson v. BNSF Railway Company

Background

Jason Carlson sued BNSF Railway Company under the Federal Railroad Safety Act, the Federal Employers’ Liability Act, and the Locomotive Inspection Act. The claims arose from an injury Carlson allegedly sustained while working for BNSF. BNSF contended that Carlson falsified his injury report and that it later terminated his employment for dishonesty.

Carlson moved to compel BNSF to produce documents listed on BNSF’s privilege log. Alternatively, he asked the magistrate judge to review the documents privately to determine whether the claimed privileges applied. After that review, Magistrate Judge David T. Schultz denied the motion to compel, finding that the documents were properly withheld under the attorney-client privilege, the work-product privilege, or both. The magistrate judge also ordered BNSF to produce relevant underlying factual information.

Standard of Review

Because the discovery ruling was a nondispositive matter, the district court applied a highly deferential standard. It could change the magistrate judge’s decision only if the decision was clearly erroneous or contrary to law. The court rejected Carlson’s argument that it should independently reconsider the privilege issue because determining whether documents are privileged involves factual determinations.

Attorney-Client Privilege

Carlson challenged documents 1, 2, 10, and 12. The attorney-client privilege protects confidential communications made to obtain or provide legal advice. The court concluded, after its own review of the documents, that the magistrate judge’s finding was not clearly erroneous or contrary to law. The documents involved communications between BNSF’s in-house counsel and BNSF employees and were created to provide or seek legal advice.

Work-Product Privilege

The magistrate judge found that 31 disputed documents were protected work product. Work-product protection generally covers materials prepared in anticipation of litigation or for trial. Carlson argued that the documents were created after an accident as part of BNSF’s ordinary business activities and that the accident itself did not establish that litigation was anticipated.

The court upheld the magistrate judge’s conclusion. It relied on the circumstances that Carlson was already litigating another matter against BNSF when the alleged injury occurred, that BNSF had received no other reports of rough track or accidents at the location, and that the documents had been prepared in anticipation of litigation rather than in BNSF’s ordinary course of business.

Carlson also argued that he had a substantial need for the documents to understand BNSF’s decisions and whether they resulted from intentional retaliation. The court did not consider that argument because Carlson had not made it before the magistrate judge. The court also upheld the decision not to require BNSF to produce redacted copies, noting that the magistrate judge had ordered disclosure of relevant underlying factual information.

Disposition

Judge Wilhelmina M. Wright affirmed the magistrate judge’s February 9, 2021 order. The order therefore continued to deny Carlson’s motion to compel production of the disputed documents.