Swinomish Indian Tribal Community v. BNSF Railway Company

Opinion

5 UNITED STATES DISTRICT COURT 6 FOR THE WESTERN DISTRICT OF WASHINGTON AT SEATTLE 7

8 SWINOMISH INDIAN TRIBAL COMMUNITY, CASE NO. 2:15-cv-00543-RSL 9 Plaintiff, 10 v. 11 ORDER REGARDING PLAINTIFF’S MOTIONS IN LIMINE BNSF RAILWAY COMPANY, 12

Defendant. 13

14 15 This matter comes before the Court on the Swinomish Indian Tribal Community’s 16 “Motion in Limine.” Dkt. # 194. Having reviewed the memoranda submitted by the 17 parties,1 the Court finds as follows: 18 1. Testimony Regarding Privileged Documents 19 In November 2022, BNSF requested leave to have its outside counsel, Stephen 20 DiJulio, testify regarding his communications with BNSF regarding its common carrier 21 obligations. The testimony would be offered in support of BNSF’s claim that it had a good 22 faith belief that its common carrier obligations compelled it to exceed the limitations 23 imposed by the Easement Agreement. Dkt. # 181. BNSF acknowledged that Mr. DiJulio’s 24 representations to the Tribe regarding BNSF’s understanding of its common carrier 25 26 1 The matter can be decided on the papers submitted. Plaintiff’s request for oral argument is DENIED. ORDER REGARDING PLAINTIFF’S MOTIONS IN 1 obligations was “[b]ased on his privileged communications with BNSF” and recognized 2 that his testimony would work a voluntary waiver of attorney-client privilege. Dkt. # 181 3 at 1-2. Before deciding whether or not to waive the privilege, BNSF sought a judicial 4 determination regarding the scope of the proposed waiver, arguing that it should be limited 5 to only those documents that Mr. DiJulio sent or received and which involved a discussion 6 of either common carrier obligations or preemption. The Court declined to issue such a 7 ruling, finding that if Mr. DiJulio testified regarding the reason BNSF felt it had to exceed 8 the Easement Agreement limitations, the testimony would waive the privilege as to all 9 communications related to the decision to run unit trains over the easement, regardless 10 whether the communications supported or contradicted Mr. DiJulio’s testimony. The Court 11 reasoned that: 12 [T]here were undoubtedly conversations regarding the pros and cons of 13 running unit trains that did not involve Mr. DiJulio, and the Tribe is not unreasonable in thinking that there may be communications and documents 14 suggesting that something other than the imperatives of its common carrier 15 status motivated BNSF’s decision. BNSF cannot rely on communications with counsel to prove its intent or motivation while depriving the opposing 16 party of other privileged materials that may contradict its claim. Bittaker v. 17 Woodford, 331 F.3d 715, 719 (9th Cir. 2003). 18 Dkt. # 181 at 3-4. If BNSF intended to waive the privilege over the identified 19 communications, it would also have to produce all communications regarding its decision 20 to run unit trains over the easement within 21 days of the Court’s order. 21 BNSF chose not to make any additional production and instead retained its privilege 22 intact. BNSF has nevertheless listed Mr. DiJulio as a trial witness who will testify 23 regarding “BNSF’s good faith belief that it had an obligation as a common carrier to 24 provide services that met shipper needs; his discussions with the marketing department 25 about the common carrier obligation, . . . and the basis for his representation to the Tribe 26 that BNSF had such an obligation.” Dkt. # 201 at 17. The Tribe seeks an order precluding ORDER REGARDING PLAINTIFF’S MOTIONS IN 1 Mr. DiJulio from testifying about any privileged analyses and communications with BNSF 2 employees because they were not timely disclosed.2 BNSF argues in response that (1) the 3 testimony is directly and highly relevant to the primary issue in this phase of the litigation, 4 (2) the testimony is not privileged because Mr. DiJulio’s communicated BNSF’s belief that 5 its common carrier obligations required it to breach the easement limitations to the Tribe 6 and he should be permitted to testify regarding those communications and his “analysis” of 7 or “basis for his representations” to the Tribe, and (3) Mr. DiJulio’s communications with 8 BNSF employees are not privileged because they were not for the primary purpose of 9 requesting or providing legal advice but rather for the primary purpose of obtaining 10 “business and/or negotiations advice for BNSF’s dealing with the Tribe.” Dkt. # 198 at 3. 11 The fact that Mr. DiJulio’s testimony is highly relevant to the issues to be decided at 12 trial has been apparent since the Court issued its summary judgment order in August 2022. 13 The Court noted that although BNSF had asserted a good faith belief in the primacy of its 14 common carrier obligations, “[t]he basis for the purported belief is unclear.” Dkt. # 174 at 15 26. The Court recognized that common carrier obligations do not, in fact, trump the 16 Tribe’s contractual, treaty, and statutory rights, that those rights imposed external 17 limitations on BNSF’s ability to carry goods, and that, in this context, there was no issue of 18 discrimination between shippers. The Court specifically called out the “lack of evidence 19 regarding BNSF’s evaluation of its common carrier obligations.” Id. BNSF knew that Mr. 20 DiJulio’s testimony regarding privileged communications he had with its employees would 21 be key to filling the identified evidentiary gap, and the Court was willing to reopen 22 discovery to allow the production of documents that had been withheld on privilege 23 grounds. BNSF chose not to waive the privilege or produce the withheld documents. The 24 25

26 2 In its motion, the Tribe also raised objections based on a failure to disclose expert testimony and hearsay. These arguments were not pursued in reply and have not been considered here. ORDER REGARDING PLAINTIFF’S MOTIONS IN 1 relevance and relative importance of this testimony is not a justification for its admission at 2 trial in the circumstances presented here. 3 The parties agree that non-privileged communications – such as Mr. DiJulio’s 4 statements to the Tribe – are admissible, but they disagree as to whether his analysis of the 5 common carrier obligation and/or his communications with BNSF employees regarding 6 that obligation are privileged. This matter is taken under advisement. While Mr. DiJulio’s 7 testimony will be limited to non-privileged matters, the scope of that testimony will have 8 to be determined on a question-by-question basis at trial. 9 2. Testimony of Katie Hower and Cary Hutchings 10 BNSF plans to call Ms. Hower to testify regarding “BNSF’s marketing 11 department’s understanding of its common carrier obligations” while Mr. Hutchings will 12 be asked about “BNSF’s economic development department’s understanding of its 13 common carrier obligations.” Dkt. # 201 at 16. The Tribe seeks an order precluding these 14 witnesses from testifying about any “understanding” that arose from communications with 15 counsel because to do so would allow BNSF to evade the repercussions of its decision to 16 withhold privileged communications on the subject during discovery. BNSF maintains that 17 the common carrier obligations are fundamental to the way these departments conduct 18 their business, not as a function of the advice of counsel, but rather as a “bedrock principle 19 baked into the company’s DNA that guides its business decisions.” Dkt. # 198 at 2. 20 The Court takes this matter under advisement. The personal knowledge of the 21 witnesses, the source of their information, and the nature of the question asked will likely 22 determine whether particular testimony is admissible or not. The scope of the testimony 23 will have to be resolved at trial. 24

25 // 26 ORDER REGARDING PLAINTIFF’S MOTIONS IN 1 For all of the foregoing reasons, the Tribe’s motions in limine (Dkt. # 194) are 2 GRANTED in part. 3

4 Dated this 14th day of March, 2023.

6 Robert S. Lasnik 7 United States District Judge 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 ORDER REGARDING PLAINTIFF’S MOTIONS IN