1 HONORABLE RICHARD A. JONES
8 UNITED STATES DISTRICT COURT WESTERN DISTRICT OF WASHINGTON 9 AT SEATTLE
10 CURTIS ROOKAIRD, 11 Plaintiff, Case No. 2:14-cv-00176-RAJ 12 v. ORDER 13 BNSF RAILWAY COMPANY, 14 Defendant. 15 I. INTRODUCTION 16 Five motions are before the Court. Dkt. ## 340, 347, 348, 350, 360. They include 17 Defendant’s motion for a protective order (Dkt. # 340), Defendant’s motion to strike an 18 expert disclosure (Dkt. # 347), the parties’ motions in limine (Dkt. ## 348, 350), and 19 Plaintiff’s motion to strike a reply brief (Dkt. # 360). Having considered the submissions 20 of the parties, the relevant portions of the record, and the applicable law, the Court finds 21 that oral argument is unnecessary. 22 II. DISCUSSION 23 A. Scope of Remand 24 To begin, the Court must remind the parties of the scope on remand. Nearly five 25 years ago, on May 16, 2016, this case went to trial. Dkt. # 202. At the time, the 26 Honorable Robert S. Lasnik presiding, the jury was asked to consider whether Plaintiff 27 1 Curtis Rookaird was engaged in protected activity under the Federal Railroad Safety Act 2 (“FRSA”), whether Defendant BNSF Railway Company (“BNSF”) would have fired Mr. 3 Rookaird even if he had not engaged in such activity, and damages. Dkt. # 310 at 8. The 4 jury returned a verdict for Mr. Rookaird, and the Court awarded him $1.2 million in 5 damages. Id. 6 The parties cross appealed. Dkt. ## 290, 291, 303, 307. The Ninth Circuit 7 affirmed in part, reversed in part, vacated judgment, and remanded to this Court for 8 further proceedings. Dkt. # 310 at 25. That opinion defines the scope of the re-trial on 9 remand. 10 i. Whether Mr. Rookaird was engaged in protected activity, the first FRSA element, is not at issue 11 Following trial, the Court denied BNSF’s motion for judgment as a matter of law 12 that Mr. Rookaird did not engage in protected activity. Id. at 9. On appeal, the Ninth 13 Circuit held that the Court did not err in denying that motion. Id. 14 First, it agreed that the jury had sufficient evidence to conclude that Mr. Rookaird 15 “refused” to violate a railroad safety rule or regulation. Id. at 10-11. Though Mr. 16 Rookaird’s supervisor “never explicitly directed [him] to stop the [air-brake] test,” his 17 questioning of the need for the air-brake test could still be considered implicit orders that 18 Mr. Rookaird “refused.” Id. 19 Second, and perhaps more importantly, the Ninth Circuit rejected BNSF’s 20 argument that the FRSA only applies to conduct that, if undertaken, would actually 21 violate a rule or regulation. Id. at 12. The parties “vigorously disputed” whether Mr. 22 Rookaird was legally required to perform the air-brake test. Id. at 11. Finding it a “close 23 call,” the Court determined that the air-brake test was not, in fact, legally required. Id. 24 But, the Court explained, Mr. Rookaird only needed to prove that he had a subjectively 25 and objectively reasonable good faith belief that the air-brake test was required by federal 26 law or regulation. Id. The jury found that it was objectively reasonable for Mr. Rookaird 27 1 to believe that the air-brake test was required, and the Court held that the jury’s finding 2 was supported by substantial evidence. Id. 3 The Ninth Circuit affirmed that conclusion: 4 On appeal, BNSF argues as a matter of statutory interpretation that paragraph (a)(2) of 49 U.S.C. § 20109 applies only to conduct that, if 5 undertaken, would actually violate a rule or regulation, and therefore that 6 Rookaird did not engage in protected activity because the test was not legally required. BNSF effectively asks us to add the word “actually” 7 before “violate” in paragraph (a)(2). 8 We reject this interpretation of 49 U.S.C. § 20109(a)(2) as 9 incorrectly narrowing its intended scope. To constructively add the word “actually” into paragraph (a)(2) would undercut the good-faith requirement 10 that applies throughout subsection (a). Congress’s use of the phrase “good faith” in subsection (a) means that it intended for paragraph (a)(2) to extend 11 to an employee’s good-faith refusal to undertake conduct the employee 12 believed to be violative of a law, rule, or regulation, even if the conduct at issue would not constitute an actual violation of a law, rule, or regulation if 13 performed or continued. . . . 14 Rookaird’s case presents a good example of why this interpretation 15 must be correct. The jury found that Rookaird had a good-faith belief that the air-brake test was required; there was disagreement between Rookaird 16 and his supervisors as to the test’s propriety; the issue was hotly contested through trial; and the district court only resolved the issue after 17 acknowledging that it was a “close call.” We think Congress intended for 18 Rookaird’s good-faith refusal to be within the scope of paragraph (a)(2), notwithstanding that the air-brake test turned out to be legally unnecessary. 19 20 Id. at 12 (emphasis in original). 21 Thus, the issue of whether Mr. Rookaird was engaged in a “protected activity” 22 under the FRSA was resolved by the Ninth Circuit and, for purposes of re-trial and 23 discovery, is squarely out of bounds. 24 ii. Whether Mr. Rookaird’s protected activity was a contributing factor in his termination, the fourth FRSA element, must be submitted to the jury 25 Before trial, this Court granted Mr. Rookaird summary judgment on the fourth 26 element of the FRSA, the “contributing-factor element.” Dkt. # 310 at 16. On appeal, 27 1 the Ninth Circuit reversed. Id. at 17. It held that Mr. Rookaird had indeed shown that a 2 protected activity was a contributing factor in his termination at the “prima facie stage.” 3 Id. But he faced a higher bar at the “substantive stage.” Id. at 19. The difference: 4 At the prima facie stage, the complainant need only make a prima facie showing that the protected activity was a contributing factor in the 5 unfavorable personnel action, which includes as an element that “[t]he 6 circumstances were sufficient to raise the inference that the protected activity (or perception thereof) was a contributing factor in the adverse 7 action.” 29 C.F.R. § 1982.104(e)(2)(iv) (emphasis added). But at the 8 substantive stage, the complainant must prove by a preponderance of the evidence that the protected activity “was a contributing factor” in the 9 adverse action. 10 Id. (emphasis in original). The Ninth Circuit held that “Rookaird was entitled to 11 summary judgment on the contributing-factor element of his prima facie showing, but 12 that he was not entitled to summary judgment on his substantive case.” Id. at 22. Mr. 13 Rookaird’s substantive case presented genuine disputes of material fact and should have 14 gone to the jury. Id. at 23-24. 15 On remand, the Court follows the Ninth Circuit’s clear instructions: “The jury 16 [must] determine[] . . . by a preponderance of the evidence that [Mr. Rookaird’s] refusal 17 to stop performing the air-brake test was a contributing factor in his termination.” Id. at 18 24. 19 iii. On remand, the scope of a new trial is limited to three issues 20 In a footnote, the Ninth Circuit “express[ed] no view” on whether the Court must 21 conduct a new trial on other issues, such as BNSF’s affirmative defense or damages. Id. 22 at 24 n.8. It left that for the Court to decide. 23 On July 16, 2019, the Court clarified the proper scope of remand. Dkt. # 328. It 24 determined that BNSF’s affirmative defense—that BNSF would have fired Mr.
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1 HONORABLE RICHARD A. JONES
8 UNITED STATES DISTRICT COURT WESTERN DISTRICT OF WASHINGTON 9 AT SEATTLE
10 CURTIS ROOKAIRD, 11 Plaintiff, Case No. 2:14-cv-00176-RAJ 12 v. ORDER 13 BNSF RAILWAY COMPANY, 14 Defendant. 15 I. INTRODUCTION 16 Five motions are before the Court. Dkt. ## 340, 347, 348, 350, 360. They include 17 Defendant’s motion for a protective order (Dkt. # 340), Defendant’s motion to strike an 18 expert disclosure (Dkt. # 347), the parties’ motions in limine (Dkt. ## 348, 350), and 19 Plaintiff’s motion to strike a reply brief (Dkt. # 360). Having considered the submissions 20 of the parties, the relevant portions of the record, and the applicable law, the Court finds 21 that oral argument is unnecessary. 22 II. DISCUSSION 23 A. Scope of Remand 24 To begin, the Court must remind the parties of the scope on remand. Nearly five 25 years ago, on May 16, 2016, this case went to trial. Dkt. # 202. At the time, the 26 Honorable Robert S. Lasnik presiding, the jury was asked to consider whether Plaintiff 27 1 Curtis Rookaird was engaged in protected activity under the Federal Railroad Safety Act 2 (“FRSA”), whether Defendant BNSF Railway Company (“BNSF”) would have fired Mr. 3 Rookaird even if he had not engaged in such activity, and damages. Dkt. # 310 at 8. The 4 jury returned a verdict for Mr. Rookaird, and the Court awarded him $1.2 million in 5 damages. Id. 6 The parties cross appealed. Dkt. ## 290, 291, 303, 307. The Ninth Circuit 7 affirmed in part, reversed in part, vacated judgment, and remanded to this Court for 8 further proceedings. Dkt. # 310 at 25. That opinion defines the scope of the re-trial on 9 remand. 10 i. Whether Mr. Rookaird was engaged in protected activity, the first FRSA element, is not at issue 11 Following trial, the Court denied BNSF’s motion for judgment as a matter of law 12 that Mr. Rookaird did not engage in protected activity. Id. at 9. On appeal, the Ninth 13 Circuit held that the Court did not err in denying that motion. Id. 14 First, it agreed that the jury had sufficient evidence to conclude that Mr. Rookaird 15 “refused” to violate a railroad safety rule or regulation. Id. at 10-11. Though Mr. 16 Rookaird’s supervisor “never explicitly directed [him] to stop the [air-brake] test,” his 17 questioning of the need for the air-brake test could still be considered implicit orders that 18 Mr. Rookaird “refused.” Id. 19 Second, and perhaps more importantly, the Ninth Circuit rejected BNSF’s 20 argument that the FRSA only applies to conduct that, if undertaken, would actually 21 violate a rule or regulation. Id. at 12. The parties “vigorously disputed” whether Mr. 22 Rookaird was legally required to perform the air-brake test. Id. at 11. Finding it a “close 23 call,” the Court determined that the air-brake test was not, in fact, legally required. Id. 24 But, the Court explained, Mr. Rookaird only needed to prove that he had a subjectively 25 and objectively reasonable good faith belief that the air-brake test was required by federal 26 law or regulation. Id. The jury found that it was objectively reasonable for Mr. Rookaird 27 1 to believe that the air-brake test was required, and the Court held that the jury’s finding 2 was supported by substantial evidence. Id. 3 The Ninth Circuit affirmed that conclusion: 4 On appeal, BNSF argues as a matter of statutory interpretation that paragraph (a)(2) of 49 U.S.C. § 20109 applies only to conduct that, if 5 undertaken, would actually violate a rule or regulation, and therefore that 6 Rookaird did not engage in protected activity because the test was not legally required. BNSF effectively asks us to add the word “actually” 7 before “violate” in paragraph (a)(2). 8 We reject this interpretation of 49 U.S.C. § 20109(a)(2) as 9 incorrectly narrowing its intended scope. To constructively add the word “actually” into paragraph (a)(2) would undercut the good-faith requirement 10 that applies throughout subsection (a). Congress’s use of the phrase “good faith” in subsection (a) means that it intended for paragraph (a)(2) to extend 11 to an employee’s good-faith refusal to undertake conduct the employee 12 believed to be violative of a law, rule, or regulation, even if the conduct at issue would not constitute an actual violation of a law, rule, or regulation if 13 performed or continued. . . . 14 Rookaird’s case presents a good example of why this interpretation 15 must be correct. The jury found that Rookaird had a good-faith belief that the air-brake test was required; there was disagreement between Rookaird 16 and his supervisors as to the test’s propriety; the issue was hotly contested through trial; and the district court only resolved the issue after 17 acknowledging that it was a “close call.” We think Congress intended for 18 Rookaird’s good-faith refusal to be within the scope of paragraph (a)(2), notwithstanding that the air-brake test turned out to be legally unnecessary. 19 20 Id. at 12 (emphasis in original). 21 Thus, the issue of whether Mr. Rookaird was engaged in a “protected activity” 22 under the FRSA was resolved by the Ninth Circuit and, for purposes of re-trial and 23 discovery, is squarely out of bounds. 24 ii. Whether Mr. Rookaird’s protected activity was a contributing factor in his termination, the fourth FRSA element, must be submitted to the jury 25 Before trial, this Court granted Mr. Rookaird summary judgment on the fourth 26 element of the FRSA, the “contributing-factor element.” Dkt. # 310 at 16. On appeal, 27 1 the Ninth Circuit reversed. Id. at 17. It held that Mr. Rookaird had indeed shown that a 2 protected activity was a contributing factor in his termination at the “prima facie stage.” 3 Id. But he faced a higher bar at the “substantive stage.” Id. at 19. The difference: 4 At the prima facie stage, the complainant need only make a prima facie showing that the protected activity was a contributing factor in the 5 unfavorable personnel action, which includes as an element that “[t]he 6 circumstances were sufficient to raise the inference that the protected activity (or perception thereof) was a contributing factor in the adverse 7 action.” 29 C.F.R. § 1982.104(e)(2)(iv) (emphasis added). But at the 8 substantive stage, the complainant must prove by a preponderance of the evidence that the protected activity “was a contributing factor” in the 9 adverse action. 10 Id. (emphasis in original). The Ninth Circuit held that “Rookaird was entitled to 11 summary judgment on the contributing-factor element of his prima facie showing, but 12 that he was not entitled to summary judgment on his substantive case.” Id. at 22. Mr. 13 Rookaird’s substantive case presented genuine disputes of material fact and should have 14 gone to the jury. Id. at 23-24. 15 On remand, the Court follows the Ninth Circuit’s clear instructions: “The jury 16 [must] determine[] . . . by a preponderance of the evidence that [Mr. Rookaird’s] refusal 17 to stop performing the air-brake test was a contributing factor in his termination.” Id. at 18 24. 19 iii. On remand, the scope of a new trial is limited to three issues 20 In a footnote, the Ninth Circuit “express[ed] no view” on whether the Court must 21 conduct a new trial on other issues, such as BNSF’s affirmative defense or damages. Id. 22 at 24 n.8. It left that for the Court to decide. 23 On July 16, 2019, the Court clarified the proper scope of remand. Dkt. # 328. It 24 determined that BNSF’s affirmative defense—that BNSF would have fired Mr. Rookaird 25 even if he had not performed the air-brake test—is not so distinct and separate from the 26 contributing-factor element, and thus the affirmative defense should too go to the jury. 27 1 Id. at 3-4. Similarly, because causation is at issue, the Court also decided to resubmit the 2 question of damages to the jury. Id. at 4. 3 Hence, retrial is limited to just three issues: the contributing-factor element, 4 BNSF’s affirmative defense, and damages. “All other issues previously decided,” this 5 Court ruled, “are collateral and will not be considered on remand, including the protected 6 activity element.” Id. 7 The Court also reopened the discovery window—slightly. “[A]fter consideration 8 of the Rule 16 factors, the Court will reopen discovery on issues related to damages since 9 the May 2016 trial.” Id. 10 In sum, only the three issues above, and no more, are fit for retrial. And just one 11 of those issues, damages, is subject to new discovery. Even then, discovery is temporally 12 limited, from 2016 onward. The Court will patrol these boundaries. 13 B. Motion for Protective Order (Dkt. # 340) 14 Mr. Rookaird served a notice of Rule 30(b)(6) deposition on BNSF. Dkt. # 341-3. 15 The deposition was set to start on June 4, 2020. Id. But BNSF did not identify or 16 produce any deponents for the deposition and, instead, moved for a protective order the 17 day before the deposition was set to begin. Dkt. # 343 ¶ 14. Dkt. # 340. According to 18 BNSF, it refused to produce a 30(b)(6) designee because it was given inadequate notice 19 and because the list of topics attached to the notice was “entirely outside the scope of the 20 Court’s order reopening discovery regarding post-May 2016 damages only.” Dkt. # 340 21 at 2. On the other hand, Mr. Rookaird argues that the motion for protective order (filed 22 on the eve of the deposition) was itself untimely, that the deposition topics are indeed 23 related to damages, that BNSF was supposed to obtain relief from the Court before 24 refusing to produce a witness, and that BNSF’s conduct is sanctionable. Dkt. # 342. 25 Much of the parties’ spirited argument focuses on the timing of the depositions. 26 BNSF says it was only given 16 days’ notice “for what was purported to be a two-day 27 deposition with several burdensome topics.” Dkt. # 340 at 4. Mr. Rookaird says that 1 BNSF agreed to the June 4 deposition weeks before on May 15, 2020, “which is why it is 2 so disappointing that BNSF now claims that the notices are somehow untimely.” Dkt. 3 # 342 at 4. 4 The parties’ arguments over timing and stipulations is a knot the Court will not 5 untangle. It will say, however, that the filing of a motion for a protective order does not 6 relieve a party from appearing at a deposition. “[I]t is for the court, not the deponent or 7 his counsel, to relieve him of the duty to appear.” Pioche Mines Consol., Inc. v. Dolman, 8 333 F.2d 257, 269 (9th Cir. 1964) (“Counsel’s view seems to be that a party need not 9 appear if a motion under Rule 30(b), F.R.Civ.P. is on file, even though it has not been 10 acted upon. Any such rule would be an intolerable clog upon the discovery process. Rule 11 30(b) places the burden on the proposed deponent to get an order, not just to make a 12 motion.”). For that reason, BNSF’s refusal to produce a witness is troubling. Even more 13 troubling, though, is the squabble over deposition scheduling in the first place. The Court 14 expects more from the parties and hopes that next time they can arrive at a resolution 15 before seeking the Court’s intervention. 16 That said, the Court need not explore the timing and notice issues further because 17 many of the deposition topics are plainly outside the scope of remand. The Court has 18 broad discretion to control discovery. Hallett v. Morgan, 296 F.3d 732, 751 (9th Cir. 19 2002); see also Avila v. Willits Envtl. Remediation Trust, 633 F.3d 828, 833 (9th Cir. 20 2011); In re Sealed Case, 856 F.2d 268, 271 (D.C. Cir. 1988). That discretion is guided 21 by several principles. A party must respond to any discovery request that is not 22 privileged and that is “relevant to any party’s claim or defense and proportional to the 23 needs of the case, considering the importance of the issues at stake in the action, the 24 amount in controversy, the parties’ relative access to relevant information, the parties’ 25 resources, the importance of the discovery in resolving the issues, and whether the burden 26 or expense of the proposed discovery outweighs its likely benefit.” Fed. R. Civ. P. 27 26(b)(1) (emphasis added). 1 Should a court find “good cause,” it may issue a protective order to “to protect a 2 party or person from annoyance, embarrassment, oppression, or undue burden or 3 expense.” Fed. R. Civ. P. 26(c). It may, for instance, forbid the requested disclosure or 4 discovery or “forbid[] inquiry into certain matters, or limit[] the scope of disclosure or 5 discovery to certain matters.” Id. 6 Nearly every topic listed in Mr. Rookaird’s 30(b)(6) deposition notice is outside 7 the scope of remand. Dkt. # 341-3. Topics one, two, and four all relate to liability. For 8 example, topic one seeks testimony on BNSF’s databases “regarding BNSF employees 9 charged with one or more of the same rules or similar types of rule violations as Rookaird 10 in either of his investigations that resulted in level S discipline.” Id. at 3. In defense of 11 this topic, Mr. Rookaird says, “BNSF’s inconsistent application of its employee 12 discipline and investigatory processes is necessary to establish any damages at all 13 because it is part of Plaintiff’s substantive case.” Dkt. # 342 at 6. That logic collapses 14 any distinction between damages and liability, flinging the discovery door wide open. 15 The Court will not entertain that interpretation of its remand order. For topics two and 16 four, Mr. Rookaird says that those topics also relate to punitive damages. Yet again the 17 Court must remind Mr. Rookaird of the Court’s remand order. Dkt. # 328 at 4 (“[T]he 18 Court will reopen discovery on issues related to damages since the May 2016 trial.” 19 (emphasis added)). From what the Court can tell, these deposition topics merely explore 20 new punitive damages theories (which may have existed from the start), not damages that 21 Mr. Rookaird has accrued since the May 2016 trial. 22 And even if topics one, two, and four did relate to damages, they would still be 23 outside the scope of remand. Each topic asks for information from “2009 to the present.” 24 Dkt. # 341-3 at 3-6. The Court’s remand order plainly limited any discovery to May 25 2016 onward. Dkt. # 328. 26 Hence, topics one, two, and four seek information outside of the scope of remand. 27 To be sure, they may well relate to issues fit for re-trial, such as the contributing-factor 1 element and BNSF’s affirmative defense. But the Court did not re-open discovery on 2 those issues. It only re-opened discovery for damages incurred since May 2016. The 3 Court finds good cause to grant a protective order on those topics. 4 Topic three, however, relates to damages. It seeks testimony on job ratings, data, 5 and earnings for the jobs that Mr. Rookaird performed or someone with his seniority 6 could have performed. Dkt. # 341-3 at 3-4. This topic plainly seeks discovery on lost 7 wages and thus damages. As such, it is within the scope of remand. It is, however, 8 overbroad to the extent that it seeks information before May 2016. 9 The Court GRANTS in part and DENIES in part BNSF’s motion for protective 10 order. Dkt. # 340. Mr. Rookaird may depose BNSF’s 30(b)(6) corporate designee or 11 designees consistent with this order. He may not seek testimony on deposition topics 12 one, two, and four. For topic three, he may only seek information relating to damages 13 that have accrued since May 2016. 14 C. Motion to Strike Expert Disclosure (Dkt. # 347) 15 BNSF moves to strike a report rendered by Mr. Rookaird’s expert, Brandon 16 Ogden, and seeks to prevent him from testifying at trial. Dkt. # 347. BNSF’s argument 17 has essentially two parts. First, because Mr. Ogden’s 2020 report does not relate to 18 damages, Mr. Rookaird’s disclosure of a new expert on remand is more than five years 19 too late. Dkt. # 347 at 2-5. Second, Mr. Ogden’s report does not meet the standards for 20 expert testimony set forth in Daubert v. Merrell Dow Pharmaceuticals, Inc., 509 U.S. 21 579, 597 (1993). The Court need not reach the parties’ Daubert arguments. Mr. Ogden’s 22 report is plainly outside the scope of remand and must be stricken. 23 Mr. Ogden’s report is dated May 1, 2020. Dkt. # 351-13. Mr. Ogden defined the 24 scope of his report as follows: 25 You have asked me to review a number of depositions, trial testimony and exhibits from the first Rookaird trial, the BNSF disciplinary 26 investigation transcript and exhibits regarding Mr. Rookaird and other 27 documents and records including BNSF PEPA policy, BNSF code of conduct and anti-harassment policies, BNSF PMP/ICP policies, programs 1 and metrics/goals of various BNSF management officials who participated 2 in various capacities in the decisions to investigate, discipline, terminate and sustain the termination of Mr. Rookaird and to present my opinions as 3 to whether or not such PMP/ICP policies, programs, metrics and/or goals presented a potential or actual conflict of interest or other policy/rule 4 violation for BNSF management officials who exercised discretion in 5 making such decisions in this case. 6 You have also asked me give [sic] any opinions as to whether Mr. Rookaird violated any rules, notices or regulations, and whether BNSF’s 7 decisions to terminate Rookaird and/or ultimately sustain Rookaird’s 8 termination were supported by the evidence. In addition, you have asked my opinion whether BNSF would have terminated Mr. Rookaird for the 9 same rules violations if he had not engaged in the protected activity of 10 inspecting the hazmat tank cars and reporting such safety concerns to BNSF officials. 11 Id. at 7-8. Mr. Ogden was retained to opine on issues of liability, issues such as whether 12 Mr. Rookaird’s conduct was a contributing factor in his termination and whether BNSF 13 would have terminated Mr. Rookaird even if he had not performed the air-brake test. As 14 explained above, those issues—the contributing-factor element and BNSF’s affirmative 15 defense—are indeed relevant for trial. But the Court did not reopen discovery on those 16 issues. The Court reopened discovery only for evidence relating to damages since the 17 May 2016 trial. Mr. Ogden’s report falls outside the purview of the Court’s remand 18 order. 19 In response, Mr. Rookaird advances a similar theory as before. He says that, 20 according to the “Ninth Circuit’s direction,” he must “demonstrate that BNSF’s actions 21 were caused, in whole or in part, by his protected activity.” Dkt. # 356 at 18. That much 22 is true. The Ninth Circuit made clear that the contributing-fact element must go to a jury. 23 But it said nothing of reopening discovery on that issue, a matter in the trial court’s 24 discretion. 25 Setting that aside, the Court must now determine whether Mr. Ogden’s report is 26 timely. The answer is no. March 14, 2015—more than five years before Mr. Ogden 27 1 rendered his report—was when expert disclosures were due. Dkt. # 58. 2 Federal Rule of Civil Procedure 37 “gives teeth” to Rule 26’s disclosure 3 requirements. Yeti by Molly, Ltd. v. Deckers Outdoor Corp., 259 F.3d 1101, 1106 (9th 4 Cir. 2001). Rule 37(c)(1) states that “[i]f a party fails to provide information or identify a 5 witness as required by Rule 26(a) or (e), the party is not allowed to use that information 6 or witness to supply evidence on a motion, at a hearing, or at a trial, unless the failure 7 was substantially justified or is harmless.” See also Karpenski v. Am. Gen. Life Ins. Cos., 8 LLC, 999 F. Supp. 2d 1235, 1241 (W.D. Wash. 2014) (citing Yeti, 259 F.3d at 1106) 9 (“District courts have wide latitude to impose discovery sanctions pursuant to Rule 10 37(c)(1).”). “The party facing sanctions bears the burden of proving that its failure to 11 disclose the required information was substantially justified or is harmless.” R&R Sails, 12 Inc. v. Ins. Co. of Pa., 673 F.3d 1240, 1246 (9th Cir. 2012) (citing Torres v. City of L.A., 13 548 F.3d 1197, 1213 (9th Cir. 2008)). 14 Mr. Rookaird says that his late expert disclosure is substantially justified given the 15 “Ninth Circuit’s direction,” Dkt. # 356 at 18-19, an argument this Court already 16 dispatched. And he says that BNSF suffers no prejudice because it has already “deposed 17 Ogden, obtained rebuttal experts, and questioned his findings.” Id. at 19. For its part, 18 BNSF says that “allowing Plaintiff to designate a new liability expert years after 19 discovery was completed harms BNSF by requiring it to incur the time and expense of 20 additional expert discovery and motions practice to bar his testimony.” Dkt. # 347 at 4. 21 The late disclosure of Mr. Ogden’s expert report is neither justified nor harmless. 22 It is not justified because it was disclosed more than five years too late. It is not harmless 23 because it risks reopening discovery on a case that was filed more than seven years ago, 24 in 2014, a case that has been tried to a verdict, appealed, and remanded. Should the 25 Court permit Mr. Ogden’s report, it sees no reason why, in the interest of fairness, BNSF 26 should not also be able to obtain discovery on liability-related issues, resulting in even 27 more delay. 1 The Court GRANTS BNSF’s motion to strike Mr. Rookaird’s disclosure of Mr. 2 Ogden’s expert report. Dkt. # 347. Mr. Ogden’s expert report is hereby STRICKEN 3 from the record, and Mr. Ogden is prohibited from testifying at trial. Because the Court’s 4 conclusion does not rely on BNSF’s reply brief (Dkt. # 358), Mr. Rookaird’s motion to 5 strike reply brief (Dkt. # 360) is DENIED as moot. 6 D. Motions in Limine (Dkt. ## 348, 350) 7 Between them, the parties have submitted 46 motions in limine, 14 from Mr. 8 Rookaird and 32 from BNSF. Dkt. ## 348, 350. Many of the motions are recycled from 9 the first trial. Compare Dkt. # 125 at 1 (“to exclude reference to the Public Law Board’s 10 findings in Rookaird’s termination”) (Mr. Rookaird’s Motion in Limine No. 3) with Dkt. 11 # 348 at 2 (“To exclude evidence, testimony, or reference to the Public Law Board’s 12 findings in Rookaird’s termination”) (Mr. Rookaird’s Motion in Limine No. 5). Indeed, 13 in many instances, the argument underlying a new motion in limine appears to be copied 14 and pasted from its corresponding old motion in limine. Compare Dkt. # 123 at 3 15 (“Similarly, other OSHA investigations and media reports regarding other OSHA 16 investigations have absolutely no relevance to the present case. By definition, these 17 reports involve different facts and circumstances than the present case and do not make 18 any fact of consequence to the outcome of this case any more or less likely to be true.”) 19 (BNSF’s Motion in Limine No. 2) with Dkt. # 350 at 4 (identical) (BNSF’s Motion in 20 Limine No. 3). 21 This presents a problem: Judge Lasnik already ruled on the old motions in limine. 22 Dkt. ## 167, 168. Because recycled motions in limine are commingled with new ones, it 23 is difficult to discern which issues have already been decided. More difficult is 24 discerning how trial, appeal, remand, and general changes in circumstances have (or have 25 not) affected Judge Lasnik’s previous rulings. 26 Given their current form, the Court must sift through the motions, spot which ones 27 were already ruled on, determine to what extent the circumstances have changed, 1 determine to what extent the parties have changed their arguments on remand, and, given 2 the law of the case, rule on them accordingly. All the while, the parties only offer 3 sporadic help. Scattered throughout their briefing are occasional references to Judge 4 Lasnik’s previous motion in limine rulings. Perhaps the parties’ sporadic reference to 5 Judge Lasnik’s previous order was intentional—each party citing the previous order only 6 where it helps and omitting it where it hurts—in hopes of obtaining a more favorable 7 ruling this time around. 8 This process—akin to the Memory card game, whereby the Court, like turning 9 over a card, reviews one motion at a time and searches the record for a matching motion 10 in limine and a matching ruling—is unworkable, and the Court will not play along. 11 Simply put, on remand in this case, the standard presentation of motions in limine will 12 not do. 13 Instead, the Court orders the parties to reformat and resubmit their respective 14 motions in a joint submission to the Court. First, the parties must meet and confer. 15 Specifically, they should discuss whether some motions in limine may be pruned given 16 the Court’s clarifications in this Order. Next, the parties must compile their remaining 17 motions in a joint submission. The Court leaves it up to the parties to determine the 18 formatting of that submission. Broadly, the statement should contain Mr. Rookaird’s 19 motions in limine, BNSF’s responses, and vice versa, and the statement should identify 20 which motions are new and which are from the previous trial. If a motion is from the 21 previous trial, the parties should include Judge Lasnik’s ruling and citation to the record 22 and explain to what extent the parties have changed their arguments. Should any party 23 object to Judge Lasnik’s previous ruling, the party must state the reason for objection, 24 paying particular mind to the scope of remand and any circumstances that have changed 25 since Judge Lasnik’s ruling. 26 The parties must meet and confer within two weeks from the entry of this order. 27 The parties joint submission is due within six weeks from the entry of this order. 1 In the meantime, the Court STRIKES the parties pending motions in limine. Dkt. 2 ## 348, 350. 3 III. CONCLUSION 4 For the reasons stated above, BNSF’s motion for protective order is GRANTED 5 in part and DENIED in part (Dkt. # 340); BNSF’s motion to strike Mr. Rookaird’s 6 disclosure of Mr. Ogden’s expert report is GRANTED (Dkt. # 347); Mr. Rookaird’s 7 motion to strike BNSF’s reply brief is DENIED as moot (Dkt. # 360); and the parties’ 8 motions in limine are STRICKEN (Dkt. ## 348, 350). In lieu of motions in limine, the 9 parties are ORDERED to meet and confer within two weeks of entry of this Order and 10 within six weeks must submit a joint statement consistent with this Order. 11 12 DATED this 12th day of March, 2021. A 13 14 The Honorable Richard A. Jones 15 United States District Judge 16 17 18 19 20 21 22 23 24 25 26 27