Opinion
8:23CV250
07-11-2024
GREG JEHOREK, Plaintiff, v. UNION PACIFIC RAILROAD CO., Defendant.
Scott Parrish Moore David E. Schlesinger Nicholas D. Thompson Charles A. Delbridge Robert L. Schug PERRY, GUTHERY, HAASE & GESSFORD, P.C., L.L.O. Corey L. Stull Jeanette Stull HILDEBRAND MCLEOD & NELSON Kristoffer S. Mayfield Anthony S. Petru NICHOLS KASTER, PLLP James H. Kaster Lucas J. Kaster Laura A. Baures Allison D. Balus Kiley N. Schmidt BAIRD HOLM LLP
Scott Parrish Moore
David E. Schlesinger
Nicholas D. Thompson
Charles A. Delbridge
Robert L. Schug
PERRY, GUTHERY, HAASE & GESSFORD, P.C., L.L.O.
Corey L. Stull
Jeanette Stull
HILDEBRAND MCLEOD & NELSON
Kristoffer S. Mayfield
Anthony S. Petru
NICHOLS KASTER, PLLP
James H. Kaster
Lucas J. Kaster
Laura A. Baures
Allison D. Balus
Kiley N. Schmidt
BAIRD HOLM LLP
ORDER
MICHAEL D. NELSON, UNITED STATES MAGISTRATE JUDGE
A telephone conference was held with counsel for the parties on July 11, 2024, before the undersigned magistrate judge regarding discovery disputes. In advance of the conference, the parties submitted position statements, which the undersigned magistrate judge reviewed and attached to this Order, together with the relevant filings and rulings from their cited cases, including Meza v. Union Pacific R.R. Co., Case No. 8:22-cv-00102-RFR-SMB, Hurd v. Union Pacific R.R. Co., Case No. 8:23-cv-00201-JFB, and Alpe v. Union Pacific R.R. Co., Case No. 8:23-cv-00210-RFR-SMB. The undersigned magistrate judge's rulings were stated on the record during the telephone call, contained in the audio file at Filing No. 52.
IT IS SO ORDERED.
The Harris Documents
Plaintiffs' assertions that Defendant's production in Harris was a document-dump, without any meaningful organization is untrue. First, the size of the production was warranted, given that Defendant was responding to discovery in a case involving “over 650 positions” and various health conditions, including “heart attack, cardiac arrest, stroke, seizure, significant vision change, and eye surgery.” Harris v. Union Pacific R.R. Co., 953 F.3d 1030 (2020). Moreover, Defendant was responding to nearly 50 requests for production, including broad requests such as, “All documents relating to the development and implementation of Defendant's policies, practices, and procedures relating to fitness-for-duty evaluations since January 1, 2009.” (See, e.g., Exh. 9). Yet, Defendant did its best to either identify by Bates numbers the documents that were responsive to particular requests or to provide metadata-particularly for the majority of the production that came from emails and attachments. (See, e.g., Exh. 10, email correspondence between counsel in Harris).
Again, Defendant is merely asking Plaintiff to identify the universe of documents relevant to his own claims-a request it is entitled to make during discovery, not only when trial exhibits are due. The parties presented this same dispute to then-Magistrate Judge Bazis in Alpe v. Union Pacific R.R. Co., Case No. 8:23-cv-00210. Judge Bazis ordered:
As to the documents from the Harris case, any documents that are going to be used at a deposition must be disclosed to opposing counsel at least three days in advance of that deposition. If a motion is filed and Harris documents are used in support of the motion, and these documents were not disclosed prior to the filing of the motion, the responding party may request, and will receive, an extension of its response deadline.
(Exh. 11, Text Order in Alpe).
Discovery of Accommodations Is Not Relevant
Discovery regarding “potential accommodations” is not relevant to Plaintiff's claims because he has brought only ADA disparate treatment claims-no failure to accommodate claim. The law is clear: “Parties may obtain discovery regarding any nonprivileged matter that is relevant to any party's claim or defense and proportional to the needs of the case.” Fed.R.Civ.P. 26(b)(1) (emphasis added). “The party requesting discovery must present a threshold showing of relevance before parties are required to ‘open wide the doors of discovery' and ‘produce a variety of information which does not reasonably bear upon the issues in the case.'” Wilbur-Ellis Co. LLC v. Gompert, No. 8:21CV340, 2023 WL 2394424, at *1 (D. Neb. Feb. 21, 2023), aff'd, No. 8:21CV340, 2023 WL 2633653 (D. Neb. Mar. 24, 2023) (quoting Hofer v. Mack Trucks, Inc., 981 F.2d 377, 380 (8th Cir. 1992).
“In disparate treatment cases, a similarly situated disabled individual is treated differently because of his disability than less- or non-disabled individuals. The key element is discriminatory intent.” Peebles v. Potter, 354 F.3d 761, 766 (8th Cir. 2004) (citing Reeves v. Sanderson Plumbing Prods., Inc., 530 U.S. 133, 153, 120 S.Ct. 2097, 147 L.Ed.2d 105 (2000)). In contrast, “[t]he failure to make reasonable accommodations in the employment of a disabled employee is a separate form of prohibited discrimination.” Id. “In a reasonable accommodation case, the ‘discrimination' is framed in terms of the failure to fulfill an affirmative duty-the failure to reasonably accommodate the disabled individual's limitations.” Id.
Plaintiff does not explain why information about “potential accommodations” would be relevant to his disparate treatment claims. As the court correctly found in Bryson v. Compucom Sys., Inc., No. 19CV1121, 2020 WL 13042300, at *1 (M.D. N.C. Nov. 16, 2020), it is not. In Bryson, the court denied a motion to compel responses to interrogatories seeking information about potential accommodations because “the failure to accommodate claims are no longer part of the current action.” Id. Other courts have refused to admit evidence about accommodations at trial, finding it to be irrelevant in the absence of a failure to accommodate claim. Lucas v. United Parcel Serv., Inc., 2020 WL 5834428, at *2 (S.D. Ohio Oct. 1, 2020) (“evidence of ‘reasonable accommodation' is irrelevant since the claim has been dismissed.”); Kirilenko-Ison v. Board of Educ. of Danville Ind. Schools, 2021 WL 2382524, at *3 (E.D. Ky. June 10, 2021) (explaining that “evidence of the physical conditions that formed the basis of [plaintiff's] accommodation request . . . is similarly irrelevant,” because the “failure-to-accommodate claim has been dismissed, and the [employer] was not required to accommodate her as a matter of law.”); Chamberlain v. Wyoming Cnty., 2019 WL 719610, *5-6 (M.D. Pa. Feb. 19, 2019) (precluding “plaintiff from presenting any evidence regarding her requests for accommodations” where the court had granted summary judgment against the failure to accommodate claim.). While these latter decisions are about admissibility rather than discoverability, they are nonetheless persuasive here because the basis for the decisions-the lack of relevance-supports Union Pacific's objections to Plaintiff's discovery requests about potential accommodations.
No longer is the standard for the scope of discovery anything that is “reasonably calculated to lead to the discovery of admissible evidence.” Under the current version of Rule 26(b)(1), discovery must be “relevant” to a party's claims or defenses. See Fed.R.Civ.P. 26 advisory committee's note, 2015 Amendment (The phrase “reasonably calculated to lead to admissible evidence” had been “used by some, incorrectly, to define the scope of discovery. .. The 2000 amendments sought to prevent such misuse by adding the word “Relevant” at the beginning of the sentence, making clear that ‘relevant means within the scope of discovery as defined in this subdivision....' The ‘reasonably calculated' phrase has continued to create problems, however, and is removed by these amendments.”) Because information on potential accommodations is not relevant to Plaintiff's claims, it is not discoverable.
Nor is such information relevant to Defendant's defenses. The direct threat defense, for example, requires proof of “a significant risk to the health or safety of others that cannot be eliminated by reasonable accommodation.” 42 U.S.C. § 12111(3); 29 C.F.R. § 1630.2(r). The “cannot be eliminated by reasonable accommodation” language contemplates modifications to the employee's current job that might eliminate the threat-not a different job altogether. Indeed, the direct threat determination “shall be based on an individualized assessment of the individual's present ability to safely perform the essential functions of the job .” 29 C.F.R. § 1630.2(r) (emphasis added). Yet, the discovery Plaintiff wishes to conduct-other positions for which he held seniority and ESI from the vocational rehabilitation staff who appear in the Medical Comments History-is necessarily about new and different jobs for which he hopes he may have been eligible.
The ADA defines a qualified individual as one “who, with or without reasonable accommodation, can perform the essential functions of the employment position that such individual holds or desires .” 42 U.S.C. 12111(8). But that definition does not make accommodations relevant. Indeed, the emphasized language confirms that the person must be qualified for the position in question with an accommodation- not an alternative position, which Plaintiff seeks. Without a failure to accommodate claim, the person must be able to perform essential functions without reasonable accommodation.
Plaintiff admitted in his deposition that there were no jobs he could bid to in which it would not have been a safety risk if he had an incident of sudden incapacitation. (Exh. 12, Plft's Depo. at 42:16-44:20) (Identifying only custodian jobs that perhaps would not have created such a risk but admitting that he did not know the job requirements for such positions and “didn't have access to their bid line”).
In seeking information on potential accommodations in the form of other available jobs, Plaintiff seeks to resurrect an untimely, unpled failure to accommodate claim. For all of these reasons, Defendant's objections to Interrogatory Nos. 7-10, 12-13 should be sustained.
Consulting Agreements and Documentation of Payments to Dr. Holland and Dr. Hughes Is Not Relevant
Plaintiff already has Dr. Holland's testimony that he signed a retention agreement with Baird Holm that governs his testimony in this case. (Plft's Exh. 8 at 7:7-14). In addition, Plaintiff knows that Dr. Holland is paid $400 per hour for reviewing records and $500 per hour for testimony in a deposition or at trial. (Plft's Exh. 7 at 16:25-17:6; 17:19-25).
Defendant's counsel has checked its files. It does not appear that Dr. Holland did, in fact, sign a retention agreement specific to this case.
Dr. Hughes testified he does not have any consulting agreement. (Plft's Exh. 6 at 17:6-8). Thus it is unclear what “agreement” Plaintiff is seeking to compel with respect to Dr. Hughes.
In any event, Dr. Holland's agreement and any documentation of payments to Dr. Holland and Dr. Hughes for the time they have spent testifying are not relevant. First, neither Dr. Hughes nor Dr. Holland is a retained expert witness. Each is testifying regarding his role in the FFD evaluation of Mr. Jehorek. As Plaintiff states, Dr. Hughes made the fitness for duty determination for Jehorek, and Dr. Holland was involved in the creation of Defendant's fitness for duty policies. As such, they are fact witnesses. Union Pacific nonetheless disclosed them as experts Rule 26(a)(2)(C) because their testimony about what they did and why with respect to Plaintiff's FFD evaluation will require them to testify based on their expertise as physicians. (Exh. 13). Because they are not expert witnesses who must provide a written report, however, they were not required to provide a statement of the compensation to be paid. Fed.R.Civ.P. 26(b)(2)(B).
Plaintiff argues that the documentation he seeks is relevant to bias. It is not. The cases he cites are distinguishable. For example, in State of N.Y. v. Solvent Chem Co., 166 F.R.D. 284, 289 (W.D.N.Y. 1996), the defendant entered a “consulting agreement” with a former employee during litigation that “purchased” his cooperation by “orchestrating” the settlement of claims against him and was designed to make him “sympathetic and secur[e] his testimony.” The consulting agreement was sought by defendant and entered into with the fact witness after the defendant realized the fact witness possessed information critical to the case and after the fact witness received a deposition subpoena. Id. at 286. At the fact witness's deposition, he essentially lied about whether he had a business relationship with the defendant. Id. at 290.
In Goldstein v. Exxon Rsch. & Eng'g, Co., 1997 WL 580599, at *1 (D. N.J. Feb. 28, 1997), the defendant entered into a “consulting agreement” with a fact witness (ex-employee) between days 2 and 3 of his deposition, after the fact witness's testimony to that point had been arguably “favorable” to the plaintiff, which put the plaintiff in a “position of relying at trial on the testimony of a witness being paid by the defendant.” Rather than disallow payments to the witness, the court ordered the consulting agreement to be produced. Id., at *5.
Also, in Jamaica Time Petroleum, Inc. v. Federal Ins. Co., 366 F.2d 156, 157-58 (10th Cir. 1966), an attorney paid a jailhouse informant to provide information about the whereabouts of a destroyed airplane that was the subject of an insurance dispute. The facts in Jamaica Time Petroleum, Inc., involved a third-party and did not deal with the production of a consulting agreement. Rather the court allowed testimony pertaining to the existence of the agreement- which, here, has already been provided in the witnesses' depositions.
Plaintiff can argue that the unremarkable fact that Union Pacific pays Dr. Hughes and Dr. Holland for their time spent testifying (not the testimony itself) suggests bias, but he does not need the agreements or documentation of the payments themselves for that argument. When this issue was heard in front of this Court in Meza, brought forth by Plaintiff's counsel, Judge Bazis presided over the hearing pertaining to whether consulting contracts should be disclosed. Judge Bazis made a sound decision by finding that the entire consulting contracts are not relevant and that Mr. Meza already had the information about payments that he needs to make a “bias” argument. (Ex.14, 29:12; See David Meza v. Union Pacific R.R., No. 8:22-cv-00102-RFR-SMB (DKT. 96)(requiring production of information regarding the pay structure for Dr. Charbonneau and Dr. Holland and any financial reward or compensation based on the outcome of the litigation but not the consulting agreements themselves).
Sufficient information pertaining to Dr. Hughes' and Dr. Holland's payment structure have been given to Plaintiff through their depositions. Any additional information in Dr. Holland's consulting agreement and the actual payments themselves are not relevant and therefore not discoverable.
Contracts between the University of Nebraska Medical Center and Union Pacific are Irrelevant
Plaintiff also seeks a copy of any contract or agreement between Union Pacific and UNMC, the employer of Defendant's retained expert, Dr. Diesing, as well as documents showing all payments to Dr. Diesing and to UNMC for work as a consultant or expert witness since 2014. (Pltf's Ex. 5, RFPD No. 26). Defendant has produced Dr. Diesing's retainer agreement, which included information on his hourly rate, and an accounting of the amount of time he has spent on this case. However, the request for any agreements and payments between Union Pacific and UNMC is irrelevant.
Union Pacific retained Dr. Diesing as an expert in this case, not UNMC or any other UNMC employee. Dr. Diesing was not retained as a consultant through UNMC on Mr. Jehorek's FFD evaluation. Dr. Diesing is not compensated in this case under any agreement that Union Pacific has with UNMC. UNMC is not a party to this lawsuit, and any contract Union Pacific may have or have had with UNMC is irrelevant, even to Plaintiff's arguments of bias or credibility. Any assertion otherwise is based on nothing more than speculation.
PLAINTIFFS' REQUESTS FOR PRODUCTION TO DEFENDANT, SET I
TO: DEFENDANT AND ITS COUNSEL OF RECORD.
PLEASE TAKE NOTICE that, pursuant to Rule 34 of the Federal Rules of Civil Procedure, Defendant is requested and required to respond to the following requests for the production of documents within thirty (30) days of service hereof.
INSTRUCTIONS
1. This request seeks all specified documents in the actual or constructive possession, custody and/or control of Defendant, the Defendant's attomey(s) and/or agent(s), or which are believed by Defendant, Defendant's attomey(s) and/or agent(s) to exist or previously to have existed.
2. This request is expressly made continuing, requiring additional and supplemental responses when additional documents and/or things come into the possession custody or control of Defendant, Defendant's attomey(s) and/or agent(s) until the instant action is finally terminated. identified as custodians, originators/authors or addressees/recipients, please state their role, and whether they are an attorney.
DEFINITIONS
Plaintiffs incorporate the Definitions provided in their First Set of Interrogatories to Defendant.
REQUESTS FOR DOCUMENTS
REQUEST NO. 1 : All documents referenced or relied upon to answer Plaintiffs' Interrogatories or Requests for Admission.
REQUEST NO. 2: All documents reflecting Defendant's policies, practices, and procedures relating to fitness-for-duty evaluations since January 1, 2009.
REQUEST NO. 3: All documents relating to the development and implementation of Defendant's policies, practices, and procedures relating to fitness-for-duty evaluations since January 1, 2009.
REQUEST NO. 4; All documents relating to any initiatives or changes made to Defendant's policies, practices, and procedures relating to fitness-for-duty evaluations since January 1, 2009.
REQUEST NO, 5: All documents, including but not limited to any study, survey, report, communication, regulation, or other document relied upon by Defendant in developing or making changes to its policies, practices, and procedures relating to fitness-for-duty evaluations.
REQUEST NO. 6: All audits, studies, or analysis conducted by Defendant or any other individual or entity concerning Defendant's policies, practices, and procedures relating to fitness-for-duty evaluations, or the effects of those policies, practices, or procedures.
REQUEST NO. 32: All documents Defendant intends to use as exhibits at deposition or trial.
REQUEST NO. 33: All documents reflecting compensation paid to persons identified in response to Interrogatory Nos. 4, 10, 12, and 13.
REQUEST NO. 34; All documents reflecting the policies and practices maintained by Defendant since January 1,2009 relating to document storage or retention.
REQUEST NO. 35: All documents reflecting Defendant's efforts to preserve electronic data subsequent to the inception of this lawsuit.
From: Allison Balus
Sent: Wednesday, December 20, 2017 11:16 AM
To: Pederson, Neil; Scott P. Moore
Cc: Schlesinger, David; Schug, Robert; Delbridge, Charlie; Pathmann, Karla; Casey Ochs
Subject: RE: Harris v. Union Pacific Discovery Issue
Neil, I realize you have not been involved in this case from the beginning, but your assertions regarding what Union Pacific agreed to are not accurate. While the parties attempted to negotiate a stipulated ESI protocol, it was never finalized. Plaintiffs included with their requests for production an Exhibit A that included requests for specific metadata fields, but Defendant objected to several of those. Specifically, Defendant stated:
Defendant objects to Plaintiffs' request in paragraph 8.c. of their INSTRUCTIONS section and the accompanying Exhibit A referenced in that paragraph that Defendant provide the following metadata for ESI productions: custodian, attachment list, number of attachments, email folder, and importance ranking. The parties are continuing to finalize an ESI protocol and Defendant objects to the extent this request and the INSTRUCTIONS section and accompanying Exhibit A to the extent it is inconsistent with such protocol. The information is also beyond the scope of discovery permitted under FRCP 26(b)(1) because it is neither relevant to the claims and defenses nor proportional to the needs of the case. In particular, Defendant objects to providing additional metadata fields listing the custodian, attachment list, number of attachments, email folder, and importance ranking.
(See Defendant's Objections to Plaintiffs' Preliminary Statements #8).
With respect to productions 2017-11-21: UPHarris008858 - 018758 and 2017-12-05: UPHarris019141 - 039814, as well as our most recent production 2017-12-15: UPHarris039815-090341, most of the documents were pulled from UP's email system. Union Pacific uses a single-instance archive to maintain email communications for discovery purposes, rather than collecting email from individual custodian mailboxes. Accordingly, custodian information is not available, but the sender and recipient information is all available and was included in the productions. The Parent Doc ID would be duplicative of BEGATTACH. The only documents within these three productions that were not pulled from UP's email system were:
• UP_Harris_039538_UP_Harris_039813, which was a copy of Mr. Zinn's paper EAP file
• UP_Harris_039814, an Excel spreadsheet prepared for purposes of this litigation and produced in its native format containing the pay history report for agreement employees responsive to Interrogatories 6 and 8
Regarding productions 2017-02-24: UP 000001 - 004546, 2017-03-21: UP 004547 - 006740, and 2017-03-27: UP 006741 - 007124, these are all documents that were collected to respond to specific requests for production. FRCP 34(b)(2)(E) allows a party to product documents as they are kept in the usual course of business or to "organize and label them to correspond to the categories in the request." For these productions, we identified within our RFPD responses which documents were being produced in response to which requests.
Productions 2017-07-17: UP 008242 - 008278, 2017-08-29 (UP 008279 - 008443), 2017-09-12 (UP 008444 - 008495) and 2017-10-09 (UP 008496 - 008546) are job descriptions responsive to RFPD 10.
Production 2017-06-01 (UP 007203 - 008241) are PDFs of Dr. Holland's deposition transcripts.
Productions 2017-10-16 (UP 008547 - 008664), 2017-10-19 (UP 008665 - 008798), 2017-10-31 (UP 008799 - 008803), and 2017-12-08 (UP 008805 - 008857) were PDF records from the medical, personnel, and EEO files for Taylor, Miller, and Mount.
2017-11-01 (UP 008804) was an excel spreadsheet prepared for purposes of this litigation and produced in its native format containing the employee work history report responsive to Interrogatories 6 and 8.
2017-11-21 (UPHarris018786-019140) included:
• PDF records from Mount and Zinn's medical, personnel, and EEO files; and
• an Excel spreadsheet prepared for purposes of this litigation and produced in its native format containing the pay history report for non-agreement employees responsive to Interrogatories 6 and 8
Going forward, we will try to either include load files with each production or explain why we have not. Let me know if you have any further questions or concerns.
Thanks, Allie
Allison D. Balus
Baird Holm LLP
1700 Farnam Street
Suite 1500
Omaha, NE 68102-2068
www.bairdholm.com
402.636.8254 Direct Dial Phone
402.344.0588 Fax
abalus@bairdholm.com
BAIRD HOLMLLP
ATTORNEYS AT LAW
This communication, along with any attachments, is covered by federal and state law governing electronic communications and may contain confidential and legally privileged information. If the reader of this message is not the intended recipient, you are hereby notified that any dissemination, distribution, use or copying of this message is strictly prohibited. If you have received this in error, please reply immediately to the sender and delete this message. Thank you.
From: Pederson, Neil [mailto:npederson@nka.com]
Sent: Tuesday, December 19, 2017 3:08 PM
To: Allison Balus; Scott P. Moore
Cc: Schlesinger, David; Schug, Robert; Delbridge, Charlie; Pathmann, Karla
Subject: Harris v. Union Pacific Discovery Issue
Allie, It has come to our attention that Union Pacific's document productions to date are not in compliance with our agreed upon ESI protocol and with Exhibit A as attached to our Requests for Production.
Specifically, we have located the following deficiencies.
UP Production:
2017-11-21: UPHarris008858 - 018758
2017-12-05: UPHarris019141 - 039814
Metadata fields NOT included:
o Custodian
o Email Date/Time Received
o Attachment List
o Number of Attachments
o Parent Doc ID
o Email Folder o Importance Ranking.
UP Production:
2017-02-24: UP 000001 - 004546
2017-03-21: UP 004547 - 006740
2017-03-27: UP 006741 - 007124
2017-07-17: UP 008242 - 008278
Metadata fields NOT included:
o Custodian
o Record Type
o Attachment List
o Number of Attachments
o Email Folder
o Importance Ranking
Additionally, we did not receive a load file for the following productions: 2017-06-01 (UP 007203 - 008241), 2017-08-29 (UP 008279 - 008443), 2017-09-12 (UP 008444 - 008495), 2017-10-09 (UP 008496 - 008546), 2017-10-16 (UP 008547 -008664), 2017-10-19 (UP 008665 - 008798), 2017-10-31 (UP 008799 - 008803), 2017-11-01 (UP 008804), 2017-11-21 (UPHarris018786-019140), 2017-12-08 (UP 008805 - 008857).
We would have preferred to receive all the agreed upon and requested information for these productions.
For now, however, please provide the custodian data for the following productions: 2017-11-21 (UPHarris008858 -018758), 2017-12-05 (UPHarris019141 - 039814), 2017-02-24 (UP 000001 - 004546), 2017-03-21 (UP 004547 -006740), 2017-03-27 (UP 006741 - 007124), 2017-07-17 (UP 008242 - 008278). We are not requesting that you provide the missing load sheets, or the other missing fields at this time.
In the future please provide this information, consistent with our agreement.
Thank you, Neil
Nichols Kaster
ATTORNEYS AT LAW
Neil Pederson
Contract Attorney
612-256-3252 | npederson@nka.com
4600 IDS Center, 80 S. 8th St.
Minneapolis, MN 55402
877-448-0492 | fax: 612-338-4878
www.nka.com
EMPLOYEE & CONSUMER RIGHTS
The information contained in this transmission may be attorney privileged and/or confidential information intended for the use of the individual or entity named above. If the reader of this message is not the intended recipient, you are hereby notified that any dissemination, distribution or copying of this communication is strictly prohibited.
Allison Balus
From: ned-ecf.notification@ned.uscourts.gov
Sent: Tuesday, February 13, 2024 1:14 PM
To: ecf.notice@ned.uscourts.gov
Subject: Activity in Case 8:23-cv-00210-RFR-SMB Alpe v. Union Pacific Railroad Co. Order - Text Only
This is an automatic e-mail message generated by the CM/ECF system. Please DO NOT RESPOND to this e-mail because the mail box is unattended.
***NOTE TO PUBLIC ACCESS USERS*** Judicial Conference of the United States policy permits attorneys of record and parties in a case (including pro se litigants) to receive one free electronic copy of all documents filed electronically, if receipt is required by law or directed by the filer. PACER access fees apply to all other users. To avoid later charges, download a copy of each document during this first viewing. However, if the referenced document is a transcript, the free copy and 30 page limit do not apply.
U.S. District Court
District of Nebraska
Notice of Electronic Filing
The following transaction was entered on 2/13/2024 at 1:13 PM CST and filed on 2/13/2024 Case Name: Alpe v. Union Pacific Railroad Co.
Case Number: 8:23-cv-00210-RFR-SMB
Filer:
Document Number: 31(No document attached)
Docket Text:
TEXT ORDER - A telephone conference was held regarding a discovery dispute. As to the documents from the Harris case, any documents that are going to be used at a deposition must be disclosed to opposing counsel at least three days in advance of that deposition. If a motion is filed and Harris documents are used in support of the motion, and these documents were not disclosed prior to the filing of the motion, the responding party may request, and will receive, an extension of its response deadline. Ordered by Magistrate Judge Susan M. Bazis. (LRH)
8:23-cv-00210-RFR-SMB Notice has been electronically mailed to:
Allison D. Balus abalus@bairdholm.com, ecf-usdistrict@bairdholm.com, pgloe@bairdholm.com
Caitlin L. Opperman copperman@nka.com, assistant@nka.com
Charles A. Delbridge cdelbridge@nka.com, assistant@nka.com
James H. Kaster kaster@nka.com, assistant@nka.com, geving@nka.com, pathmann@nka.com
Lucas J. Kaster lkaster@nka.com, assistant@nka.com
Sarah M. Huyck shuyck@bairdholm.com, jblocker@bairdholm.com
8:23-cv-00210-RFR-SMB Notice has been delivered by other means to:
VIDEOTAPED DEPOSITION OF GREG L.
JEHOREK, TAKEN BEFORE RHONDA S. SANSOM, REGISTERED PROFESSIONAL REPORTER, CERTIFIED REALTIME REPORTER, GENERAL NOTARY PUBLIC WITHIN AND FOR THE STATE OF NEBRASKA, BEGINNING AT 8:58 A.M., ON TUESDAY, MAY 14, 2024, AT BAIRD HOLM, 1700 FARNAM STREET, SUITE 1500, OMAHA, NEBRASKA, PURSUANT TO THE NEBRASKA SUPREME COURT RULES AND THE WITHIN STIPULATIONS.
Job No. CS6682525
APPEARANCES
FOR THE PLAINTIFF:
MR. LUCAS KASTER
NICHOLS KASTER LAW FIRM
80 SOUTH 8TH STREET
4700 IDS CENTER
MINNEAPOLIS, MINNESOTA 55402
TELEPHONE: 612.256.3200
LKASTER@NKA.COM
FOR THE DEFENDANT:
MS. ALLISON D. BALUS
BAIRD HOLM LAW FIRM
1700 FARNAM STREET, SUITE 1500
OMAHA, NEBRASKA 68102-2068
TELEPHONE: 402.344.0500
ABALUS@BAIRDHOLM.COM
ALSO PRESENT:
MS. DEB JEHOREK
MR. DANIEL WHITTEN, VIDEOGRAPHER
(Whereupon, the following proceedings were had, to-wit:)
THE VIDEOGRAPHER: Good morning. We are going on the record at 8:58 a.m. on May 14th, 2024.
Will the court reporter please swear in the witness.
GREG L. JEHOREK, Having first been duly sworn, was examined and testified as follows:
EXAMINATION
BY MS. BALUS:
Q. Good morning, Mr. Jehorek.
A. Good morning.
Q. We met off the record; but again, name is Ali Balus.
A. Nice to meet you, Ali.
Q. You too.
I'm an attorney representing Union Pacific.
A. Okay.
Q. You understand we're here for your deposition today?
A. I do understand.
Q. Okay. And that's for a case that a break?
THE WITNESS: I need some coffee.
MS. BALUS: Yeah, absolutely.
THE WITNESS: I'm really nervous and my mouth is getting dry. You're just drilling me really hard.
MS. BALUS: Let's take a break.
THE VIDEOGRAPHER: The time is 9:35, and we are off the record.
(Recess at 9:35 a.m. until 9:45 a.m.)
THE VIDEOGRAPHER: The time is 9:45, and we are back on the record.
BY MS. BALUS:
Q. Mr. Jehorek, were there any jobs at Union Pacific that you could have bid to where it would not have been a safety risk at all if you had passed out on the job?
MR. KASTER: I'm just going to object to form and foundation. You can answer, Greg.
THE WITNESS: Would have not have been, you asked?
BY MS. BALUS:
Q. Right. Or would not have created a safety risk?
A. If I passed out?
Q. Yes.
A. It would have created -- no, not created a safety risk.
Q. Okay. When we took a break, we were talking about
A. It -- could we back up?
Q. Sure.
A. I might be saying too much, but clarify safety risk. Like heart attack, or what are we talking here? I mean, just anything in general that
Q. Yeah.
A. Because if -- if -- if like custodian, that wouldn't be -- you'd be in a building. A custodian would be no safety risk, would ya?
Q. Were there custodian jobs you could have bid for?
A. I don't know what -- I'm sure.
Q. Do you know for sure?
A. No.
Q. Okay. Had you ever worked a custodian job?
A. No. I should know that.
Q. Were there custodian jobs that you knew of out in the locations that you worked?
A. No.
Q. Do you know what the job requirements were for the custodian jobs?
A. Yeah. I'm sure there's -- there's custodians in the North Platte yards.
Q. Okay. Do you know what the job requirements are for those?
A. No.
Q. Do you know if there were any custodian positions that were available that you could have bid to?
A. Didn't have access to their bid line, but no.
Q. You didn't have access to what?
A. To -- to -- to their bid line.
Q. Okay. So where -- was that a different union?
A. I'm assuming, yes.
Q. Okay. When we took a break we were talking about your commercial driver's license, and you said it was required for your job at Union Pacific; is that right?
DEFENDANT'S EXPERT DISCLOSURES
(A) Pursuant to Fed.R.Civ.P. 26(a)(2)(B) and the Court's Progression Order, Defendant Union Pacific Railroad Company discloses the following expert witnesses:
1. T. Scott Diesing, MD
988440 Nebraska Medical Center
Omaha, NE 68198-8440
Dr. Diesing's opinions are contained in his expert report disclosed on March 29, 2024.
2. Brian T. Morris, MD, JD, MBA, MPH
63 Howe Street
Hingham, MA 02043-1338
Dr. Morris's opinions are contained in his expert report disclosed on March 29, 2024.
(B) Pursuant to Fed.R.Civ.P. 26(a)(2)(C), Union Pacific discloses the following expert witnesses:
1. Dr. John Holland
Former Chief Medical Officer
Union Pacific Railroad Company
1400 Douglas Street
Omaha, NE 68179
Dr. Holland is the former Chief Medical Officer of Union Pacific. He is expected to testify regarding his knowledge of the history and rationale underlying Union Pacific's reliance on the FMCSA handbook, but not on the underlying conclusions made with respect to Plaintiff.
2. Dr. Matthew Hughes
Former Assistant Medical Director for Union Pacific
40 East 400 South
Bountiful, UT 84010
Dr. Hughes is a former Assistant Medical Director at Union Pacific. He is expected to testify regarding his knowledge of Union Pacific's fitness-for-duty policies and procedures as well as his involvement in the Plaintiff's fitness-for-duty evaluation, including his review of Plaintiff's medical records and health information consistent with his findings as stated in the Plaintiff's Medical Comments History and other documents produced in this case. Dr. Hughes is also expected to testify regarding his diagnosis and opinions about Plaintiff's health condition, the restrictions placed upon Plaintiff by Union Pacific, and the underlying rationale for those restrictions.
Dear Judge Nelson:
I write on behalf of Plaintiff Greg Jehorek in response to the Court's request for position statements regarding the discovery disputes in this case. If the Court requires any additional information prior to a hearing on these issues, please let me know. We appreciate the Court's time and attention to these matters.
1. The Harris Documents
The first dispute pertains to Defendant's Interrogatory No. 18. In this request, Defendant asks Jehorek to identify which of Defendant's documents from the Harris class action he intends to rely upon in this matter.
This issue is a problem of Defendant's own creation. During Harris, Defendant produced over 50,000 separate documents, almost all of which were in PDF format and lacked any meaningful organization or structure. Defendant produced these documents in over 40 separate productions and included countless duplicates. As a result, Defendant engaged in the very document-dump type production it now complains of in this case. What is more, during Harris, Defendant entered into a protective order and agreed that the Harris plaintiffs (like Jehorek) could use the Harris documents in subsequent individual claims. (See Ex. 1.) Consistent with that agreement, Jehorek disclosed that he would rely on the Harris documents in his Rule 26 initial disclosures. (See Ex. 2.)
Unhappy with its prior productions and agreement, Defendant now asks Jehorek to comb through its own productions and specifically identify which of Defendant's own documents he intends to rely upon in this case. There is nothing in the federal rules that requires a party to identify which of the opposing party's documents the party intends to rely upon to support his claim. In fact, requiring a party to do so violates the work product protection. See Shelton v. Am. Motors Corp., 805 F.2d 1323, 1329 (8th Cir. 1986) (noting that in “cases that involve reams of documents and extensive document discovery, the selection and compilation of documents is often more crucial than legal research[,]” and thus are protected work product.)
Given the sensitive nature of Defendant's request, Plaintiff's counsel offered to identify the documents from Harris that have already been used during post-Harris litigation. Plaintiff's counsel did not hear a response to that proposal prior to Defendant's email to the Court addressing this dispute. Plaintiff's counsel is still willing to identify such documents, but also reserves the right to use any additional documents from Harris consistent with the parties' protective order from Harris. In addition, Jehorek will identify any Harris documents that would be used at trial as potential exhibits consistent with the Court's pretrial orders.
2. Discovery of Accommodations
The second dispute pertains to the discovery of potential accommodations for Jehorek. During discovery, Defendant has refused to produce written discovery responses, responsive documents, and witnesses regarding available accommodations. This issue was previously addressed by this Court in Meza v. Union Pacific Railroad Company, Case No. 8:22-cv-00102-RFR-SMB and Hurd v. Union Pacific Railroad Company, Case No. 8:23-cv-00201-JFB, wherein the courts ruled that discovery of accommodations was permissible under mirroring circumstances. Jehorek requests that Defendant fully respond to his discovery requests regarding his ability to perform other positions for which he held seniority and produce ESI from the vocational rehabilitation staff who appear in the Medical Comments History. (See Ex. 3 (Interrogatory Nos. 7-10, 12-13); see also Dkt. 9 at 13 (Rule 26(f) Report outlining this dispute).)
3. Union Pacific's agreements with, and payments to, Dr. Holland and Dr. Hughes
The third dispute involves Jehorek's discovery requests regarding Defendant's agreements with, and payments to, two key witnesses: Defendant's former Chief Medical Officer, Dr. John Holland, and Defendant's former Associate Medical Director, Dr. Matthew Hughes. (See Exs. 45 (Request Nos. 21-23, 27-28).) Both Dr. Holland and Dr. Hughes have been identified by Defendant as potential witnesses. Dr. Hughes made the fitness for duty determination for Jehorek, and Dr. Holland was involved in the creation of Defendant's fitness for duty policies.
The agreements at issue govern Defendant's payments to Dr. Hughes and Dr. Holland for their work and testimony in this case. Under the agreement with Dr. Hughes, Defendant paid him $172 per hour for his work on fitness for duty determinations, like the one for Jehorek, and $400 per hour for work during litigation. (Ex. 6 at 17:14-18:21.) Dr. Hughes is no longer a consultant with Defendant but is now paid $500 per hour by Defendant for his work and testimony during litigation. (Id. at 18:22-19:12.)
Dr. Holland, on the other hand, has had multiple different agreements with Defendant. He was first an Associate Medical Director and was paid hourly for his work on fitness for duty determinations and during litigation. He later became the Chief Medical Officer and was paid a salary plus a bonus. Since he left Defendant, Dr. Holland has signed retention agreements with Defendant in 40-50 cases to provide expert testimony. As an expert witness, Dr. Holland is paid $400 for review and preparation, and $500 for deposition and trial testimony.
This background information was obtained during Dr. Holland's deposition in the Hurd matter. (See Ex. 7 at 14:3-21:21.)
Dr. Holland signed an expert witness agreement with defense counsel in this case. (Ex. 8 at 7:7-10:8.) Despite doing so, Dr. Holland did not disclose an expert report as required by Rule 26, and never disclosed the existence of his contract or the amounts he has been paid. (Id.)
The United States Supreme Court has long held that evidence of bias “is almost always relevant because the jury, as finder of fact and weigher of credibility, has historically been entitled to assess all evidence which might bear on the accuracy and truth of a witness' testimony.” United States v. Abel, 469 U.S. 45, 52 (1984) (emphasis added). “Bias is a term used in the common law of evidence to describe the relationship between a party and a witness which might lead the witness to slant, unconsciously or otherwise, his testimony in favor of or against a party.” Id. (internal quotation marks omitted). “The partiality of a witness is subject to exploration at trial, and is always relevant as discrediting the witness and affecting the weight of his testimony.” Davis v. Alaska, 415 U.S. 308, 316 (1974) (emphasis added).
For this reason, “the only question of materiality or relevance when evidence is offered to impeach for bias is whether the evidence tends in reason to demonstrate the existence of some fact, state of mind or condition that a reasonable person would take into account in assessing the credibility of the witness under attack.” Johnson v. Brewer, 521 F.2d 556, 561 (8th Cir. 1975) (quoting Hutchings v. State, 518 P.2d 767, 769 (Alaska 1974)). “[T]he balance must be weighed in favor of admissibility where impeachment for bias is the object.” Id.
With this in mind, numerous courts have compelled the production of consulting agreements that pay witnesses for their work during litigation. See, e.g., New York v. Solvent Chem. Co., 166 F.R.D. 284, 289 (W.D.N.Y. 1996); Goldstein v. Exxon Research & Eng'g, Co., No. CV 95-2410, 1997 WL 580599, at *8 (D. N.J. Feb. 28, 1997) (ordering the disclosure of a “consulting agreement” paying a fact witness because of its “tendency to produce perjurious testimony[.]”); Jamaica Time Petroleum, Inc. v. Fed. Ins. Co., 366 F.2d 156, 158 (10th Cir. 1966), cert. denied, 385 U.S. 1024 (1967) (payment to a fact witness “affects the credibility of the witness and the weight to be given his testimony”); Fund of Funds Ltd. v. Arthur Andersen & Co., 545 F.Supp. 1314, 1370 (S.D.N.Y. 1982) (“[I]t is permissible, indeed desirable, to bring any such payments to the attention of the jury and for counsel to comment upon [their] possible effect . . . upon a witness' credibility.”); Tainna Hill Raby, Paying Fact Witnesses: Can Do? No Can Do?, TRIAL NETWORK (May 2, 2011)(citing cases); Marcellus A. McRae & Kim Nortman, Your Witness, L.A. LAWYER, Sept. 2012(citing cases).
Available at https://trial.com/wp-content/uploads/2020/03/Paying-Fact-Witnesses-Can-Do-No-Can-Do-FL-2011.pdf (last visited June 25, 2024).
Available at https://www.gibsondunn.com/wp-content/uploads/documents/publications/McRae Nortman-YourWitness.pdf (last visited June 25, 2024).
In the Hurd matter, the plaintiff filed a motion to compel on this issue on June 13, 2024. This issue was also addressed in the Meza matter, where the court denied the plaintiff's request for the agreements. The court did so, in part, because of concerns about whether the plaintiff's relevant requests for production specifically covered the agreements. Here, no such issue exists. For the reasons explained herein, the agreements and payments are properly subject to discovery.
4. Union Pacific's agreement with, and payments to, UNMC
The final dispute involves Plaintiff's discovery requests regarding the contract and payments between Union Pacific and its retained expert, Dr. T. Scott Diesing, and his employer, University of Nebraska Medical Center. (See Ex. 5 (Requests Nos. 25-26).) Previous litigation has demonstrated that Union Pacific and UNMC entered into a contractual agreement wherein UNMC physicians, including Dr. Diesing, agreed to provide consulting work and witness testimony on behalf of Union Pacific. Under the agreement, Union Pacific paid UNMC directly for the work of its physicians. For the same reasons explained above, Plaintiff is requesting the final, executed contract, as well as a listing of all payments made between Union Pacific and UNMC for work performed pursuant to the contract.
This issue was also raised in the recent motion to compel in the Hurd matter.
Thank you, Your Honor, for your assistance with these matters.
Sincerely,
EXHIBIT 1
PARTIES' JOINT STIPULATED PROTECTIVE ORDER
1. DEFINITIONS. Limitations under this Protective Order on the use or disclosure of documents, deposition testimony or other discovery designated as "Confidential" shall apply to (a) all information, copies, extracts and complete or partial summaries prepared or derived from such documents or testimony; (b) portions of deposition transcripts, answers to interrogatories, responses to requests for admissions, responses to requests for production, initial disclosures and exhibits thereto which directly refer or directly relate to any such information, documents, copies, extracts or summaries; and (c) portions of briefs, memoranda or any other writing filed with the Court and exhibits thereto which directly relate to any such information, documents, copies, extracts or summaries.
2. CONFIDENTIAL DOCUMENTS/INFORMATION.
(a) Plaintiffs seek to protect from disclosure confidential physical or mental health information of the Plaintiffs, and their family members, including but not limited to, medical conditions, medical treatment, medical bills or charges, and insurance claims, benefits, and/or payments, as well as, his income and tax information.
(b) Defendant seeks to protect from disclosure certain personal and sensitive information regarding the employees of Defendant Union Pacific Railroad Company relating to this lawsuit.
(c) Before produced documents are copied or inspected, the producing party may stamp as "Confidential" or similar notation on any document or deposition testimony which contains such sensitive information. Documents may also be designated as "Confidential” by written notice to opposing counsel which identifies the documents so designated by Bates number. Documents designated "Confidential," deposition testimony so designated, and information derived therefrom will be retained by counsel and will not be used for any purpose other than this litigation and will not be disclosed except pursuant to court order entered after notice, to anyone except:
i. Counsel who have signed this Order approving it as to form and content, attorneys who are employed by Plaintiff, retained outside counsel, in house counsel, law firm staff directly involved in the conduct of this litigation;
ii. Experts and consultants retained by a party to this action for purposes of assisting in the preparation or presentation of claims or defenses;
iii. Any witness when necessary to the testimony of such witness;
iv. Any person who was involved in the preparation of the document;
v. The Court, Court personnel, court reporters and similar personnel;
vi. The named parties to this case;
vii. Individuals selected by the parties to participate in focus groups, mock trials, or other exercises maintained for the preparation for trial of this matter; and viii. Any other person with the prior written consent of the party producing the document, pleading or deposition testimony.
Prior to receiving or being shown such documents or deposition testimony, persons falling in the categories listed above in subparagraphs 2(c) (ii), (iii), (iv), (vii), and (viii) shall be shown a copy of, and shall agree in writing, or on the record during trial or deposition, to be bound by the terms of this Protective Order. During a deposition, any party asserting confidentiality of any of its documents shall ask the deponent on the record to accept the terms of this Order. If the deponent refuses to assent, disclosure of the documents during deposition shall not constitute a waiver of confidentiality. Under such circumstances, the witness shall sign the original deposition transcript in the presence of the court reporter and no copy of the transcript or exhibits shall be given to the deponent.
3. DOCUMENTS ALREADY PRODUCED. Within thirty (30) days of the entry of this Order, parties may inform the party to whom documents have been produced that it considers certain documents already produced as being subject to this Order as "Confidential".
4. THIRD PARTY WITNESSES. A copy of this Protective Order shall be served with a subpoena or Notice of Deposition on each third party deponent. A third party witness may designate a document as "Confidential" pursuant to this Order by stamping it with such notice prior to production or so identifying it on the record during the deposition of that third party. Either party may also designate documents produced by a third party as being "Confidential" pursuant to the terms of this Order within thirty (30) days of being made aware of the content of such documents. Any document produced by a third party shall be treated as "Confidential" pursuant to the terms of this Order for such ten (10) day period and thereafter if designated as "Confidential" by either party or by the third party which produces it. The "Confidential" restrictions of this Order shall no longer apply to any document produced by a third party which has not been designated as "Confidential" by the third party or by a party within such thirty (30) day period.
5. CHALLENGE TO DESIGNATION. Any party may challenge the "Confidential" designation of any document, by moving the Court for an Order allowing disclosure. The party challenging the "Confidential" designation of any document shall give all other parties at least ten (10) days notice before filing a motion with the Court and the parties shall attempt to resolve any disagreement before submitting it to the Court. If a party challenges the "Confidential" designation of the document(s), the documents at issue shall continue to be treated as "Confidential" pursuant to the terms of this Order until such time as the Court has made a ruling with respect to the motion.
6. RETURN OF DOCUMENTS. Upon completion of the litigation all documents and copies of the same designated "Confidential" shall be destroyed or returned to counsel for the producing party with signed statement reflecting the disposition. This Order shall not terminate upon the conclusion of this action but shall continue until the further order of the Court or until the party claiming confidentiality has waived the same in writing.
7. USE OF DOCUMENTS. Documents produced by any party, including, but not limited to, "Confidential" documents and information from any documents acquired in discovery in this litigation shall not be used for any purpose except in connection with the litigation pending in the United States District Court for District of Nebraska, Case No. 8:16cv381-JFB-TDT styled Quinton Harris, et al. v. Union Pacific Railroad Company. Nothing in this Order shall limit any party or person in its use of its own documents or from disclosing its own documents and information. This Order or production of any documents shall not affect the admissibility of any such document or be deemed a waiver of any objection to the admissibility of such documents. However, notwithstanding anything to the contrary herein, if any putative class member(s) bring any separate litigation following a denial of class certification or decertification of this action, confidential documents produced in this action may be used by parties to that action who are represented by the same legal counsel representing the parties in this action. The use of such documents in such putative class member(s)' separate litigation shall be subject to the terms and conditions of this Order.
8. EXCEPTIONS. The restrictions embodied in this Order shall be binding on the party to whom "Confidential" information is disclosed unless and until there is a showing that:
(a) Such information was or has become public knowledge absent a breach of this Protective Order; or
(b) The party to whom such disclosure was made had already learned such information from a third party who himself has not breached any confidential relationship which may have existed or exists between such third party and the party making the disclosure.
9. NON-EXCLUSIVITY. This Order does not affect the right of a party to seek to compel disclosure or production of a document or to seek an order modifying or limiting this Order in any aspect. The obligations and prohibitions under this Order are not exclusive. All other ethical, legal and equitable obligations are unaffected by this agreement.
10. WAIVER. Any waiver under this Order must be made in writing or, if at a deposition or in Court, on the record.
11. ENFORCEMENT. Any party or person subject to the obligations and prohibitions of this Order who is determined by the Court to have violated its terms is subject to sanctions imposed by the Court pursuant to the Federal Rules of Civil Procedure or the Court's other applicable authority.
EXHIBIT 2
PLAINTIFF'S RULE 26(a)(1) INITIAL DISCLOSURES
Plaintiff Greg Jehorek makes the following disclosures pursuant to Fed.R.Civ.P. 26(a)(1). These disclosures reflect the information reasonably available to Plaintiff at this time and will be supplemented as required by Fed R. Civ. P. 26(e). These disclosures do not waive any objections Plaintiff may have with regard to the admissibility of any information contained or referred to herein.
(i) Individuals likely to have discoverable information Plaintiff may use to support his claims.
(a) Greg Jehorek. Plaintiff has information about all factual aspects of his claims and damages, and likely has information relevant to Defendant's defenses.
(b) Joel Beavers. Beavers was a former co-worker of Plaintiff. He may have information regarding Plaintiff's ability to do his job, Plaintiff's ability to work in any other position for Defendant, and other information regarding work for Defendant.
(c) Andy Murphy. Murphy was a union representative for Plaintiff's union. He may have information regarding Defendant's decision to remove Plaintiff from his job and impose work restrictions, Plaintiff's ability to do his job, Plaintiff's ability to work in any other position for Defendant, and other information regarding work for Defendant, including but not limited to union-related matters, the operative collective bargaining agreement and available fringe benefits.
(d) Matt Welch. Welch was Plaintiff's manager at Union Pacific and may have information about Plaintiff's ability to do his job, Plaintiff's ability to work in any other position for Defendant, and other information regarding work for Defendant.
(e) Derek Bristol. Bristol was Plaintiff's manager at Union Pacific and may have information about Plaintiff's ability to do his job, Plaintiff's ability to work in any other position for Defendant, and other information regarding work for Defendant.
(f) Debbie Jehorek. Jehorek is Plaintiff's wife. She may have information about Plaintiff's emotional distress damages, and efforts at finding other work after removal from his job at Union Pacific, and may have discoverable information about additional topics relevant to this case.
(g) Dr. Brad Rodgers. Dr. Rodgers was one of Plaintiff's treating doctors. He may have information regarding Plaintiff's medical condition and ability to perform his job for Defendant.
(h) Dr. Jamie J. Van Gompel. Dr. Van Gompel participated in Plaintiff's brain surgery to remove Jehorek's tumor. He may have information regarding Plaintiff's medical condition and ability to perform his job for Defendant.
(i) Dr. John Holland. Dr. Holland was the Chief Medical Officer for Defendant and may have information regarding Defendant's relevant policies, procedures, and practices, and its decision to impose work restrictions, remove Plaintiff from his position, and keep him from returning to work.
(j) Dr. Laura Gillis. Dr. Gillis is Defendant's current Chief Medical Officer and may have information regarding Defendant's relevant policies, rules, procedures, and practices, as well as Defendant's past practices and any changes or revisions made during her tenure as Chief Medical Officer.
(k) Dr. Richard Lewis. Dr. Lewis was one of Defendant's three Associate Medical Directors. He may have information regarding Defendant's relevant policies, procedures, and practices, and its decision to impose work restrictions, remove Plaintiff from his position, and keep him from returning to work.
(1) Dr. John Charbonneau. Dr. Charbonneau was one of Defendant's three Associate Medical Directors. He may have information regarding Defendant's relevant policies, procedures, and practices, and its decision to impose work restrictions, remove Plaintiff from his position, and keep him from returning to work.
(m) Dr. Matthew Hughes. Dr. Hughes was one of Defendant's three Associate Medical Directors. He may have information regarding Defendant's relevant policies, procedures, and practices, and its decision to impose work restrictions, remove Plaintiff from his position, and keep him from returning to work.
(n) Lisa K. Tracey. Tracey was one of Defendant's Fitness for Duty Nurses, who participated in Defendant's fitness for duty evaluation of Plaintiff. She may have information regarding Defendant's relevant policies, procedures, and practices, and its decision to impose work restrictions, remove Plaintiff from his position, and keep him from returning to work.
(o) Larry Mann. Larry Mann was a member of the Railroad Safety Advisory Committee (“RSAC”) medical standards working group that was charged with developing new Fitness for Duty regulations for the railroad industry. Mr. Mann may have knowledge of the background and formation of the RSAC committee, its drafting of proposed regulations, the positions of the entities involved, and why no regulations were ultimately approved.
(p) Name unknown. Vocational worker employed by Defendant who communicated with Plaintiff. The Vocational worker may have information regarding Defendants relevant policies, procedures, and practices, and its decision to remove Plaintiff from his position and keep him from returning to work.
(q) Members of the Railroad Retirement Board (“RRB”), who may have information related to Plaintiff's RRB benefits.
(r) Any current or former employee or agent of Defendant.
(s) All persons not already identified who were involved in the decision-making for any of Defendant's actions against Plaintiff.
(t) Any individual identified in Defendant's initial disclosures, supplementations, or responses to Plaintiff's discovery.
(u) Any individual identified in documents disclosed herein or identified in Plaintiff's responses to Defendant's discovery requests.
(v) Any individual identified in any deposition taken in this matter; and
(w) Any individual necessary for foundation, rebuttal, or impeachment.
Discovery is continuing.
(ii) Documents Plaintiff may use to support his claims.
Defendant has possession, custody, or control of most of the documents Plaintiff intends to use to support his claims. Plaintiff may also rely on documents he produces in discovery, documents Defendant files with the Court and/or produces during discovery, and documents to be obtained through third-party discovery. Plaintiff identifies the following categories of documents in his possession, custody, or control that he may use:
(a) Plaintiff's medical records relating to any relevant medical conditions, evaluations, or treatments.
(b) Documents reflecting Plaintiff's wages from Defendant, sufficient to show his economic damages.
(c) Documents reflecting Plaintiff's mitigation or income since his removal by Defendant.
(d) Documents related to Plaintiff's RRB benefits.
(e) Documents related to Plaintiff's Charge of Discrimination and the EEOC's investigation of that Charge.
(f) Communications between Plaintiff and Defendant related to Defendant's decision to impose work restrictions, remove Plaintiff from his position, and keep him from returning to work
(g) Documents produced by Defendant in Harris v. Union Pac R.R. Co., 8:16-00381-JFB-SMB (D. Neb.) pursuant to the protective order entered in that case.
Discovery is continuing.
(iii) Computation of categories of Plaintiff's damages.
As a result of Defendant's actions, Plaintiff claims damages in the following categories: (1) economic damages; (2) emotional distress damages; (3) punitive damages; and (4) attorney fees and costs.
(a) Economic damages. Plaintiff is entitled to recover actual damages he incurred as a result of Defendant's unlawful conduct, including past, present, and future loss of income, bonuses, pension, and benefits, including retirement and other benefits available to railroaders through the Railroad Retirement Board (this includes lost service credits). Plaintiff will supplement this answer through additional discovery, including but not limited to through expert report(s) and testimony.
(b) Emotional distress damages. Plaintiff has suffered, and continues to suffer, from stress, humiliation, embarrassment, mental anguish, and emotional distress as a direct result of Defendant's conduct.
(c) Punitive damages. Plaintiff also seeks punitive damages on his claims. Plaintiff's punitive damages will be determined by the finder of fact.
(d) Attorney's fees and costs. Plaintiff also seeks his attorney's fees and costs in connection with this lawsuit. These fees and costs are accruing.
Discovery is continuing.
(iv) Insurance agreements.
Not applicable.
EXHIBIT 3
DEFENDANT'S FIRST SUPPLEMENTAL RESPONSES TO PLAINTIFF'S REQUESTS FOR INTERROGATORIES
Defendant Union Pacific Railroad Company (“Union Pacific”) by and through its undersigned counsel, hereby serves the following first supplemental answers and objections to Plaintiff Greg Jehorek (“Plaintiff”) First Interrogatories, pursuant to Rules 26 and 33 of the Federal Rules of Civil Procedure, as follows:
RESERVATION OF RIGHTS WITH REGARD TO ANSWERS
(A) The following answers represent the best information ascertained by Union Pacific and are based upon information obtained from records, files and individuals within its possession, custody, control or employ. Union Pacific reserves the right at any time to revise, correct, add to, or clarify any of the answers provided herein.
(B) The answers provided herein are subject to the right of Union Pacific to object on any ground, at any time, to a demand for further response to these or other interrogatories, requests for admissions, and requests for production of documents, or other discovery procedures involving or relating to the subject matter herein.
(C) Pursuant to Rule 33(d) of the Federal Rules of Civil Procedure, Union Pacific reserves the right to answer an interrogatory by specifying the business records from which the answer may be derived or ascertained where the answer to an interrogatory may be derived or ascertained from Union Pacific's business records, and where the burden of deriving or ascertaining the answer is substantially the same for Plaintiff as it is for Union Pacific. Union Pacific will afford Plaintiff a reasonable opportunity to examine, audit, or inspect such records and to make copies, compilations, abstracts, or summaries of the same.
(D) By responding to these interrogatories, Union Pacific does not concede the relevancy or admissibility of the information provided.
GENERAL OBJECTIONS
Union Pacific objects to Plaintiff's definitions and instructions as overly broad and unduly burdensome. Union Pacific further objects to Plaintiff's instructions to the extent that they purport to impose obligations that exceed those that are permissible under the Federal Rules of Civil Procedure and local rules.
INTERROGATORIES
INTERROGATORY NO. 1: Identify all persons who provided information or documents in response to Plaintiff's Interrogatories and Requests for Production of Documents, specifying the Interrogatories or Requests for which each individual provided information or documents.
RESPONSE: Union Pacific objects to Interrogatory No. 1 because it requests information protected by privilege, including attorney work-product and attorney-client privilege. Defendant is withholding privileged information based on these objections. Subject to and without waiving these objections and answering the portion of the interrogatory to which Union Pacific does not object, Union Pacific directs Plaintiff to its answer to Interrogatory No. 2. Union Pacific further states that employees in various departments, in conjunction with and under the direction of counsel for Union Pacific, provided information necessary to respond to Plaintiff's Interrogatories.
INTERROGATORY NO. 2: Identify all persons Defendant believes have knowledge relevant to this lawsuit, the allegations in the Complaint, or Defendant's defenses thereto. Include in your answer a detailed description of the information Defendant believes may be known by each identified individual.
RESPONSE: Union Pacific states the following individuals may have knowledge relevant to this lawsuit, the allegations in the Complaint, or Union Pacific's defenses.
1. Greg Jehorek, Plaintiff
Plaintiff is expected to have information concerning his claims and alleged damages.
2. Dr. Matthew Hughes, Associate Medical Director
Union Pacific Railroad Company
(To be contacted through counsel)
Dr. Hughes may have discoverable information regarding Plaintiff's fitness-for-duty evaluation. Dr. Hughes may also have discoverable information regarding his review of Plaintiff's medical records and information, Plaintiff's health condition, and the medical risks and restrictions applicable to Plaintiff.
3. Kathryn Rivera, Former Contractor Nurse in Workforce Resources
Ms. Rivera is expected to have knowledge concerning Union Paific's Health and Medical Department fitness-for-duty process, including communications with the Plaintiff and her involvement with the Plaintiff's FFD review as set forth in the Medical Comments History.
4. Jennifer Roberts, Former Fitness for Duty Nurse
Union Pacific Railroad Company
(To be contacted through counsel)
Ms. Roberts is expected to have knowledge concerning Union Paific's Health and Medical Department fitness-for-duty process, including communications with the Plaintiff and her involvement with the Plaintiff's FFD review as set forth in the Medical Comments History.
5. Lisa Tracey, Former Occupational Health Nurse in Workforce Resources
Union Pacific Railroad Company
(To be contacted through counsel)
Ms. Tracey is expected to have knowledge concerning Union Pacific's Health and Medical Department fitness-for-duty process, including communications with the Plaintiff and her involvement with the Plaintiff's FFD review as set forth in the Medical Comments History as well as communications with the Plaintiff.
6. Ronald Cooper, Senior Manager Trade Maintenance
Mr. Cooper may have discoverable information regarding Plaintiff's job duties, Union Pacific's safety policies, and the decision that Plaintiff's restrictions could not be accommodated in his Systems Tie Handler position.
7. Derek Bristol, System Tie Handler Crane Supervisor
Mr. Bristol may have discoverable information regarding Plaintiff's job duties, Plaintiff's FMLA leave, and Union Pacific's safety policies.
8. Other individuals who appear in Plaintiff's Medical Comments History report may have knowledge of facts material to the case. Plaintiff's Medical Comments History will be produced in discovery.
9. Union Pacific anticipates that Plaintiff's healthcare providers that become known during the course of discovery will have relevant information regarding Plaintiff's claims and Defendant's defenses, and Union Pacific reserves the right to call any such individual.
Union Pacific reserves the right to call at trial any individual identified in Plaintiff's Initial Disclosures or supplements thereto and/or any individual otherwise identified by Plaintiff in the course of discovery. Union Pacific reserves the right to call at trial any witness necessary to provide foundation for any exhibit disclosed or identified during discovery in this matter.
FIRST SUPPLEMENTAL RESPONSE :
10. Dr. John Holland
Former Medical Director
Union Pacific Railroad Company
1400 Douglas St., STOP 310
Omaha, NE 68179
(To be contacted through counsel)
Dr. Holland is expected to have information concerning the history and rationale underlying Union Pacific's reliance on the FMCSA handbook but not on the underlying conclusions made with respect to Plaintiff.
INTERROGATORY NO. 3: Identify all employment manuals, discipline policies, job descriptions, job responsibilities, and performance standards applicable to Plaintiff during his employment with Defendant.
RESPONSE: Union Pacific objects to Interrogatory No. 3 because providing employment manuals, discipline policies, job descriptions, job responsibilities, and performance standards for Plaintiff's entire tenure with Union Pacific is beyond the scope of discovery under Rule 26, unduly burdensome, and not proportional to the needs of the case. Defendant is withholding information based on these objections. Subject to and without waiving these objections and answering the portion of Interrogatory No. 3 to which Union Pacific does not object, pursuant to Fed.R.Civ.P. 33(d), Union Pacific refers Plaintiff to the Tie Systems Handler - Crane Job Description produced at UPJEHOREK000033-35.
INTERROGATORY NO. 4: Identify and describe all reprimands, warnings, suspensions, or other disciplinary measures given to Plaintiff, including the date and nature of offenses and the individuals involved.
RESPONSE: Union Pacific objects to Interrogatory No. 4 as overly broad and unduly burdensome in its request for all reprimands, warnings, suspensions or other disciplinary measures, as it does not limit its request to items relevant to the claims and defenses at issue in this case and it does not limit its request to a relevant time period. Defendant is not withholding any specific information based on these objections but is limiting its search for responsive information to that which is relevant. Subject to and without waiving these objections and answering the portion of Interrogatory No. 4 to which Union Pacific does not object, pursuant to Fed.R.Civ.P. 33(d), Union Pacific refers Plaintiff to the Employee Discipline History in his HR Report at UPJEHOREK000001-30.
INTERROGATORY NO. 5: State all reason(s) that Plaintiff was not permitted to return to their position, as alleged in the Complaint.
RESPONSE: Union Pacific objects to Interrogatory No. 5 on the basis that it is predicated on the incorrect and unproven factual premise that “Plaintiff was not permitted to return to his position.” Union Pacific further objects to Interrogatory No. 5 on the grounds that it is overly broad and unduly burdensome in its request to “state all reason(s)” because such a request is better suited to a deposition. See Strode v. Venice, IL, Civil No. 06-228-GPM, 2007 WL 294263, (S.D. Ill. Jan. 30, 2007); Hilt v. SFC Inc., 170 F.R.D. 182, 187 (D. Kan. 1997) (“In many instances depositions, rather than interrogatories, will better serve the purpose of obtaining detailed facts.”). Union Pacific further objects on the basis that it cannot and should not be obligated under Rule 26 and/or 33 to provide a factual or legal explanation for any of the heretofore unproven allegations in Plaintiff's Complaint. Union Pacific is not knowingly withholding any information based on these objections.
Subject to and without waiving these objections and answering the portion of Interrogatory No. 5 to which Union Pacific does not object, Union Pacific responds as follows: In 2018, Plaintiff was referred to Health and Medical Services for a fitness for duty review following a medical leave of absence. Associate Medical Director, Dr. Matthew Hughes determined that Plaintiff was unable to safely perform the essential functions of his position for the reasons described in Plaintiff's Medical Comments History at UPJEHOREK000141-151.
INTERROGATORY NO. 6: Identify all individuals who participated in the decision to refuse to allow Plaintiff to return to their position, as alleged in the Complaint.
RESPONSE: Union Pacific objects to Interrogatory No. 6 in its use of the phrase “refuse to allow Plaintiff to return” in that it implies that Plaintiff's restrictions were inappropriate and/or Union Pacific was able to accommodate Plaintiff's restrictions but chose not to do so, or that it has since not made attempts to evaluate Plaintiff's fitness to return to work. Union Pacific further objects on the basis that the term “participated” is vague and likely seeks irrelevant information. Union Pacific is not knowingly withholding information based on these objections.
Subject to and without waiving these objections and answering the portion of Interrogatory No. 6 to which Union Pacific does not object, Union Pacific identifies the following individuals:
1. Dr. Matthew Hughes
2. Ronald Cooper reviewed restrictions to determine if Plaintiff was able to perform the essential functions of the job under the restrictions.
3. Any individual identified in Plaintiff's Medical Comments History, including any FFD nurse identified therein “participated” (as Union Pacific understands that term) in Plaintiff's FFD process.
INTERROGATORY NO. 7: Identify the essential functions of the position Plaintiff held at the time of his removal from his job, and any additional positions Plaintiff had seniority to hold at the time of his removal.
RESPONSE: Union Pacific objects to Interrogatory No. 7 on the grounds that it is not relevant, overly broad, unduly burdensome, and disproportionate to the needs of this case in its request to identify the essential functions of “any additional positions Plaintiff had seniority to hold at the time of his removal,” insofar as Plaintiff infers that he could have performed some other job but for Union Pacific's alleged failure to accommodate, because Plaintiff has not raised a failure to accommodate claim. See, e.g., Lucas v. United Parcel Service, Inc., 2020 WL 5834428, at *1 (S.D. Ohio Oct. 1, 2020) (“The Court agrees that because the failure to accommodate claim has been dismissed, that no evidence or testimony should be presented regarding whether UPS failed to accommodate Lucas's alleged need to urinate frequently.”). Based on these objections, Union Pacific will not identify the essential function of “any additional positions Plaintiff had seniority to hold at the time of his removal.”
Subject to and without waiving these objections and answering the portion of Interrogatory No. 7 to which Union Pacific does not object, pursuant to Fed.R.Civ.P. 33(d), Union Pacific refers Plaintiff to its Tie Systems Handler - Crane Job Description produced at UPJEHOREK000033-35. Union Pacific also affirmatively states that the ability to safely perform the functions of this safety-sensitive position without endangering the employee, coworkers, and/or the public is an essential function of the job.
INTERROGATORY NO. 8: State all reason(s) that Plaintiff was not permitted to return to a position other than the job held when they were removed from service, as alleged in the Complaint.
RESPONSE: Union Pacific objects to Interrogatory No. 8 on the basis that it is predicated on the incorrect and unproven factual premise that “Plaintiff was not permitted to return.” Union Pacific further objects to Interrogatory No. 8 on the grounds that it is overly broad and unduly burdensome in its request to “state all reason(s)” because such a request is better suited to a deposition. See Strode v. Venice, IL, Civil No. 06-228-GPM, 2007 WL 294263, (S.D. Ill. Jan. 30, 2007); Hilt v. SFC Inc., 170 F.R.D. 182, 187 (D. Kan. 1997) (“In many instances depositions, rather than interrogatories, will better serve the purpose of obtaining detailed facts.”). Union Pacific further objects to Interrogatory No. 8 on the grounds that it is not relevant, overly broad, unduly burdensome, and disproportionate to the needs of this case in its request with respect to “a position other than the job held when they were removed from service,” insofar as Plaintiff infers that he could have performed some other job but for Union Pacific's alleged failure to accommodate, because Plaintiff has not raised a failure to accommodate claim. See e.g., Lucas v. United Parcel Service, Inc., 2020 WL 5834428, at *1 (S.D. Ohio Oct. 1, 2020) (“The Court agrees that because the failure to accommodate claim has been dismissed, that no evidence or testimony should be presented regarding whether UPS failed to accommodate Lucas's alleged need to urinate frequently.”). Union Pacific further objects on the basis that it cannot and should not be obligated under Rule 26 and/or 33 to provide a factual or legal explanation for any of the heretofore unproven allegations in Plaintiff's Complaint.
INTERROGATORY NO. 9: Identify and describe in detail all verbal or written communications among Defendant's employees or agents regarding Plaintiff's ability to perform a position other than the job Plaintiff held when they were removed from service, from one month prior to the date Plaintiff was removed from service until the initiation of this lawsuit.
RESPONSE: Union Pacific objects to Interrogatory No. 9 on the grounds that it is not relevant, overly broad, unduly burdensome, and disproportionate to the needs of this case with respect to “Plaintiff's ability to perform a position other than the job held when they were removed from service,” insofar as Plaintiff infers that he could have performed some other job but for Union Pacific's alleged failure to accommodate, because Plaintiff has not raised a failure to accommodate claim. See e.g., Lucas v. United Parcel Service, Inc., 2020 WL 5834428, at *1 (S.D. Ohio Oct. 1, 2020) (“The Court agrees that because the failure to accommodate claim has been dismissed, that no evidence or testimony should be presented regarding whether UP failed to accommodate Lucas's alleged need to urinate frequently.”).
FIRST SUPPLEMENTAL RESPONSE : Subject to and without waiving the above objections, see documents bates stamped UPJEHOREK001231-1260.
INTERROGATORY NO. 10: Identify and describe in detail all verbal or written communications you have had with Plaintiff regarding Plaintiff's ability to perform the position Plaintiff held when they were removed from service, or another position with Defendant, from the date Plaintiff was removed from service until the initiation of this lawsuit.
RESPONSE: Union Pacific objects to Interrogatory No. 10 on the grounds that it is not relevant, overly broad, unduly burdensome, and disproportionate to the needs of this case with respect to “another position with Defendant,” insofar as Plaintiff infers that he could have performed some other job but for Union Pacific's alleged failure to accommodate, because Plaintiff has not raised a failure to accommodate claim. See e.g., Lucas v. United Parcel Service, Inc., 2020 WL 5834428, at *1 (S.D. Ohio Oct. 1, 2020) (“The Court agrees that because the failure to accommodate claim has been dismissed, that no evidence or testimony should be presented regarding whether UPS failed to accommodate Lucas's alleged need to urinate frequently.”). Based on these objections, Union Pacific respond to the request to identify communications Union Pacific had with Plaintiff regarding Plaintiff's ability to perform “another position with Defendant.”
Subject to and without waiving these objections and answering the portion of Interrogatory No. 10 to which Union Pacific does not object, with respect to the Plaintiff's ability to perform the position Plaintiff held when they were removed from service, Union Pacific refers Plaintiff to Plaintiff's Medical Comments History produced at UPJEHOREK000141-151, and ESI identified under search protocol agreed upon by the parties.
FIRST SUPPLEMENTAL RESPONSE : Subject to and without waiving the above objections, see documents bates stamped UPJEHOREK001231-1260.
INTERROGATORY NO. 11: Identify and describe in detail all verbal or written communications you have had with Plaintiff's treating doctors and other health care providers, including but not limited to health care providers engaged by Union Pacific, regarding Plaintiff, from the date Plaintiff was removed from service until the initiation of this lawsuit.
RESPONSE: Union Pacific objects to Interrogatory No. 11 as overly broad, unduly burdensome, and better suited for a deposition in its request to “identify and describe in detail all verbal or written communications” with Plaintiff's treating doctors and other health care providers. Union Pacific is not knowingly withholding any information based on these objections.
Subject to and without waiving these objections and answering the portion of Interrogatory No. 11 to which Union Pacific does not object, pursuant to Fed.R.Civ.P. 33(d), Union Pacific refers Plaintiff to Plaintiff's Medical Comments History produced at UPJEHOREK000141-151, and Plaintiff's Medical Records produced at UPJEHOREK000152-442.
FIRST SUPPLEMENTAL RESPONSE : Subject to and without waiving the above objections, see documents bates stamped UPJEHOREK001231-1260.
INTERROGATORY NO. 12: With respect to the position(s) identified in Interrogatory No. 7, state the following:
a. Rate of salary at the time Plaintiff was hired.
b. Rate of pay at the time Plaintiff was removed from service;
c. Rates of pay that could be expected from the time of Plaintiff's removal from service in to the present, and the timing of such rates of pay; and
d. All fringe benefits of the position, including but not limited to paid holidays, vacation pay, pension plan, insurance programs, and incentives.
RESPONSE: Union Pacific objects to Interrogatory No. 12 to the extent that it seeks information within Plaintiff's possession, custody and/or control. Union Pacific also objects to responding to this interrogatory to the extent it seeks information regarding “any additional positions Plaintiff had seniority to hold at the time of his removal” because Plaintiff has not raised a failure to accommodate claim. See, e.g., Lucas v. United Parcel Service, Inc., 2020 WL 5834428, at *1 (S.D. Ohio Oct. 1, 2020) (“The Court agrees that because the failure to accommodate claim has been dismissed, that no evidence or testimony should be presented regarding whether UPS failed to accommodate Lucas's alleged need to urinate frequently.”). Based on these objections, Union Pacific is withholding information regarding “any additional positions Plaintiff had seniority to hold at the time of his removal.”
Subject to and without waiving said objection and answering the portion of Interrogatory No. 12 to which Union Pacific does not object, pursuant to Fed.R.Civ.P. 33(d), Union Pacific provides a 10-year cost of benefits summary at UPJEHOREK000032.
INTERROGATORY NO. 13: For all positions held by Plaintiff during their employment, identify the three employees above and the three employees below Plaintiff on the applicable seniority list(s), and identify each employee's hire date, days worked by year, and compensation by year, for the three years prior to Plaintiff's removal from service until the present.
RESPONSE: Union Pacific objects to Interrogatory No. 13 on the grounds that it is not relevant, overly broad, unduly burdensome, and disproportionate to the needs of this case with respect to any position other than the position Plaintiff held when they were removed from service, insofar as Plaintiff infers that he could have performed some other job but for Union Pacific's alleged failure to accommodate, because Plaintiff has not raised a failure to accommodate claim. See e.g., Lucas v. United Parcel Service, Inc., 2020 WL 5834428, at *1 (S.D. Ohio Oct. 1, 2020) (“The Court agrees that because the failure to accommodate claim has been dismissed, that no evidence or testimony should be presented regarding whether UPS failed to accommodate Lucas's alleged need to urinate frequently.”). Union Pacific further objects to this request to the extent it seeks confidential and personal information concerning individuals who are not a party to this litigation. Union Pacific states that the earnings of someone other than Plaintiff are irrelevant and immaterial. This information is not probative of what Plaintiff actually earned or might have earned. In addition, Union Pacific has standing to assert a privilege against disclosure of the requested information on behalf of former and present employees. Disclosure of the requested information could constitute an invasion of the fundamental constitutional privacy rights of employees who are not parties to this action, which may only be abridged to accommodate a compelling public interest. An uncontested and unwarranted disclosure of such information could expose Union Pacific to potential liability in the absence of a court order compelling disclosure. In addition, although Plaintiff's request does not seek the names of each employee, by requesting data regarding “the individuals above and below” Plaintiff on Seniority Rosters, Plaintiff could determine whose earnings are whose via access to his seniority roster.
Subject to and without waiving these objections and answering the portion of Interrogatory No. 13 to which Union Pacific does not object, and in lieu of producing non-party employee wage records, Union Pacific will provide the pre-tax wages for the three employees above and the three employees below Plaintiff on their seniority roster dated January 1, 2017- December 30, 2023, subject to redaction of the individuals' names and confidential information.
FIRST SUPPLEMENTAL RESPONSE : See revised wage comparator sheet bates UPJEHOREK001261. The document provided at UPJEHOREK000031 contains errors and should be disregarded.
INTERROGATORY NO. 14: Identify all witnesses, including expert witnesses, who you may call at trial and describe the subjects upon which each witness will testify.
RESPONSE: Union Pacific has yet to determine if it will have an expert witness testify in this matter, and therefore has no information responsive to Interrogatory No. 14 regarding its request for information concerning expert witnesses. Union Pacific will supplement this response if necessary in accordance with the Court's Scheduling Order and Federal Rules of Civil Procedure. Further, see Union Pacific's response to Interrogatory No. 2.
INTERROGATORY NO. 15: Identify every exhibit you plan to introduce at trial or in any deposition in this matter.
RESPONSE: Union Pacific has not yet selected the evidence it intends to use at trial or deposition. Further, Union Pacific is under no obligation to identify the specific documents it will use as an exhibit during any deposition in this matter. Union Pacific affirmatively states that with the exception of any document used for rebuttal/impeachment purposes, all documents to be used at deposition or trial will have been produced by the parties. Union Pacific will provide information regarding its exhibits at the appropriate time in accordance with the Federal Rules of Civil Procedure and any scheduling order obligations.
INTERROGATORY NO. 16: Explain the factual and legal basis for the affirmative defenses you allege in your Answer to Plaintiff's Complaint.
RESPONSE: Union Pacific objects to Interrogatory No. 16 as overly broad and unduly burdensome in its request to explain the “factual and legal basis” for all of Defendant's affirmative defenses. Anderson v. UPS, Inc., No. 09-2526-KHV-DJW, 2010 U.S. Dist. LEXIS 123878, at *6 (D. Kan. Nov. 22, 2010) (“This Court generally finds interrogatories overly broad and unduly burdensome on their face when they ask for ‘every' or ‘all facts' that support identified allegations or defenses.”); Lawrence v. First Bank and Trust Co., 169 F.R.D. 657, 662-63 (D. Kan. 1996) (precluding request for evidence supporting denials as overly broad and unduly burdensome). Union Pacific further objects to Interrogatory No. 16 because it purports to ask Union Pacific to prove its entire case and to marshal all evidence in response to one written interrogatory. See Grynberg v. Total S.A., 2006 U.S. Dist. LEXIS 28854, at *15-16 (D. Colo. May 3, 2006) (finding an interrogatory asking for all tangible things that support an affirmative defense was an overbroad abuse of the discovery process because it purported to ask the defendant to “prove its entire case, and to marshal all evidence, in response to one written interrogatory”). Union Pacific further objects to Interrogatory No. 16 because it requires Union Pacific to reveal counsel's mental impressions on strategic defense issues and analysis of documentation, which constitutes attorney opinion work product.
Union Pacific asserted 18 Defenses in its Answer to Plaintiff's Amended Complaint, thus, Interrogatory No. 16 effectively seeks to require Union Pacific to respond to 18 separate interrogatories, one for each Defense, and provide a detailed description of the “factual basis” for each Defense. If there are specific defenses with which Plaintiff is concerned, Union Pacific will work with plaintiff in good faith to determine a mutually agreeable scope of reasonably discoverable and relevant information.
INTERROGATORY NO. 17: For any of Plaintiff's Requests for Admission that you do not admit in full, explain the basis for your denial.
RESPONSE: Union Pacific objects to Interrogatory No. 17 as not relevant because Plaintiff has not served Union Pacific with any such “Requests for Admission” in this case.
INTERROGATORY NO. 18: Identify the number of “hits” returned as result of the agre ed-upon ESI search criteria in the parties' Rule 26(f) report.
RESPONSE: Union Pacific objects to Interrogatory No. 18 in that it seeks information that is not relevant to the claims and defenses asserted in this matter. The parties have agreed to an initial ESI search protocol, which Union Pacific has not completed yet. However, Union Pacific will review the documents discovered as a result of the search and produce those documents that are responsive to the requests for production served upon Union Pacific by Plaintiff and relevant to the claims and defenses asserted in this case.
INTERROGATORY NO. 19: Identify the number of documents from the total “hits” in Interrogatory No. 18 that Defendant produced to Plaintiff in response to Plaintiff's discovery requests.
RESPONSE: Union Pacific objects to Interrogatory No. 18 in that it seeks information that is nor relevant to the claims and defenses asserted in this matter. The parties have agreed to an initial ESI search protocol, which Union Pacific has not completed yet. However, Union Pacific will review the documents discovered as a result of the search and disclose those documents that are responsive to the requests for production served upon Union Pacific by Plaintiff and relevant to the claims and defenses asserted in this case.
I, Nicole Marsicek, being first duly sworn according to law, and upon oath, declares:
1. That Affiant is the a paralegal for Union Pacific Railroad Company, upon whom the Plaintiff's First Supplemental Interrogatories were served and upon whose behalf Affiant makes this declaration.
2. That Affiant is authorized on behalf of Union Pacific Railroad Company to make this declaration and that Affiant has read the aforementioned discovery propounded to Defendant in the action entitled Greg Jehorek v. Union Pacific Railroad Company.
3. That the discovery seeks information from Union Pacific Railroad Company, and that no one employee of Union Pacific Railroad Company has personal knowledge of all the information so as to permit that one individual to fully and completely respond to all subjects addressed within this discovery.
4. That while Affiant does not have personal knowledge of all of the facts cited therein, the information was collected and the responses were made only after a reasonable search for information relating to the subject discovery.
5. Therefore, on information and belief, Affiant believes the attached Union Pacific's First Supplemental Answers to Plaintiff's Second Supplemental Interrogatories to be complete and accurate to the best of Affiant's knowledge, based upon the information available at this time.
FURTHER AFFIANT SAYETH NAUGHT.
IT WITNESS WHEREOF, Union Pacific Railroad Company has caused the attached Supplemental Interrogatory Responses to be executed on its behalf this 11th day of 2024 by:
EXHIBIT 4
DEFENDANT'S SECOND SUPPLEMENTAL RESPONSES TO PLAINTIFF'S REQUESTS FOR PRODUCTION OF DOCUMENTS
Defendant Union Pacific Railroad Company (“Union Pacific”) by and through its undersigned counsel, hereby serves the following second supplemental responses and objections to Greg Jehorek (“Plaintiff” or “Jehorek”) First Request for Production of Documents, pursuant to Rules 26 and 34 of the Federal Rules of Civil Procedure as follows:
RESERVATION OF RIGHTS WITH REGARD TO ANSWERS
(A) The following answers represent the best information ascertained by Union Pacific and are based upon information obtained from records, files, and individuals within its possession, custody, control, or employ. Union Pacific reserves the right at any time to revise, correct, add to, or clarify any of the answers provided herein.
(B) The answers provided herein are subject to the right of Union Pacific to object on any ground, at any time, to a demand for further response to these or other requests for admissions, interrogatories, and requests for documents, or other discovery procedures involving or relating to the subject matter herein.
(C) By responding to these Requests, Union Pacific does not concede the relevancy or admissibility of the information provided.
GENERAL OBJECTIONS
Union Pacific objects to Plaintiff's definitions and instructions as overly broad and unduly burdensome. Union Pacific further objects to Plaintiff's definitions and instructions to the extent that they purport to impose obligations that exceed those that are permissible under the Federal Rules of Civil Procedure. Union Pacific further objects to Plaintiff's request in Paragraph 8 of Plaintiff's instructions, including the accompanying Exhibit A referenced in that paragraph, that Defendant provide the following metadata for ESI productions: custodian, attachment list, number of attachments, email folder, and importance ranking. The information requested is beyond the scope of discovery permitted under Federal Rule of Civil Procedure 26(b)(1) because it is neither relevant to the claims or defenses nor proportional to the needs of the case.
REQUESTS
REQUEST NO. 1: All documents referred to or relied upon to answer Plaintiff's Interrogatories, or identified in Defendant's answers to Plaintiff's Interrogatories, or in Defendant's initial disclosures.
RESPONSE: Union Pacific objects to Request No. 1 to the extent it seeks documents and information that are protected by privilege, including the attorney-client and work-product privileges. Documents withheld based on these objections will be listed on a privilege log as appropriate and in accordance with the Federal Rules of Civil Procedure and the parties' stipulations regarding protective orders in their Rule 26(f) Report (ECF 9). Further, identifying specific documents responsive to this request would provide information that is itself protected by these privileges. Subject to and without waiving said objections and answering the portion of Request No. 1 to which Union Pacific does not object, Union Pacific will produce but not identify responsive documents that are not themselves privileged.
REQUEST NO. 2: All of Plaintiff's employment records, including but not limited to Plaintiff's personnel file, job description, performance reviews, disciplinary records, payroll records, promotion records, training records, work schedules, and medical files.
RESPONSE: Union Pacific objects to Request No. 2 in its use of the term “personnel file” for the reason that, like most large employers, Union Pacific does not maintain centralized “personnel or human resource files” as that term is ordinarily understood. Instead, Union Pacific utilizes databases which track categories of employee information. Union Pacific also objects to Request No. 2 as overly broad, unduly burdensome, and irrelevant in its request for “[a]ll of Plaintiff's employment records” without any limitations in time or scope. As written, the request seeks a myriad of irrelevant documents, such as the results of Plaintiff's irrelevant regulatory examinations, irrelevant emails, and other documents that do not relate to the claims or defenses in the case. Union Pacific is not withholding documents based on these objections but will not conduct a search for “all of Plaintiff's employment records.”
Subject to and without waiving said objections and answering the portion of Request No. 2 to which Union Pacific does not object, Union Pacific refers Plaintiff to his HR Report, PR File, and Work History produced at UPJEHOREK000001-30, UPJEHOREK000126-136; Track Laborer System Gang/Section Gang Job Description produced at UPJEHOREK000033-35; and payroll records produced at UPJEHOREK000036-125 and UPJEHOREK000137-140. Other documents in Union Pacific's production may also be responsive to this request (such as medical records) and are produced in conjunction with other requests.
REQUEST NO. 3: All documents relating to fitness for duty evaluations performed on Plaintiff, including any communications regarding the same and any documents upon which Defendant relied to make its conclusion about Plaintiff's fitness for duty.
RESPONSE: Union Pacific refers Plaintiff to documents regarding Plaintiff's medical file bates stamped at UPJEHOREK000141-151 and UPJEHOREK000152-442.
FIRST SUPPLEMENTAL RESPONSE : Subject to and without waiving the above objections, see documents bates stamped UPJEHOREK001231-1260.
REQUEST NO. 4: All documents showing Defendant's knowledge of Plaintiff's medical condition.
RESPONSE: Union Pacific objects to Request No. 4 as vague and ambiguous with regard to the term “Defendant's knowledge of Plaintiff's medical condition” in that it fails to describe the requested documents with reasonable particularity. Defendant is not knowingly withholding any documents based on this objection. Subject to and without waiving said objections and answering the portion of Request No. 4 to which Union Pacific does not object, Union Pacific refers Plaintiff to UPJEHOREK000141-151 and UPJEHOREK000152-442.
REQUEST NO. 5: All communications between you and Plaintiff from one month before the date the Plaintiff was removed from service related to the Fitness-for-Duty review at issue in this case, until the present.
RESPONSE: Union Pacific objects to Request No. 5 as overbroad, vague, and disproportional to the needs of the case. See Regan-Touhy v. Walgreen Co., 526 F.3d 641, 649 (10th Cir. 2008) (finding requests for “all communications” would encompass irrelevant information of a potentially personal nature). Union Pacific is not withholding specific documents on this basis but will not undertake the broad search required to identify all such communications.
Subject to and without waiving said objections and answering the portion of Request No. 5 to which Union Pacific does not object, Union Pacific refers Plaintiff to Plaintiff's Medical Comments History at UPJEHOREK000141-151; and HMS communications with Plaintiff contained in medical records produced at UPJEHOREK000152-442. Union Pacific will supplement the response with relevant responsive documents based on the results of an Electronically Stored Information (“ESI”) search based on mutually agreeable terms.
FIRST SUPPLEMENTAL RESPONSE : Subject to and without waiving the above objections, see documents bates stamped UPJEHOREK001231-1260.
REQUEST NO. 6: All communications among employees within Defendant's organization, or between employees in Defendant's organization and people outside the organization, regarding Plaintiff, from one month before the date the Plaintiff was removed from service related to the Fitness-for-Duty review at issue in this case, until the present.
RESPONSE: Union Pacific objects to Request No. 6 to the extent it seeks information protected by attorney-client privileges or work product. Union Pacific objects to Request No. 6 as overly broad and unduly burdensome in its request for “all communications” within Union Pacific “regarding Plaintiff,” which is not reasonably limited by relevant subject matter. As written, Request No. 6 could be construed to seek a myriad of irrelevant documents and communications. Union Pacific is not knowingly withholding non-privileged documents on this basis but will not undertake the broad search required to identify all such communications.
Subject to and without waiving said objections and answering the portion of Request No. 6 to which Union Pacific does not object, Union Pacific refers Plaintiff to Plaintiff's Medical Comments History at UPJEHOREK000141-151; and HMS communications with Plaintiff contained in medical records produced at UPJEHOREK000152-442. Union Pacific will supplement the response with relevant, non-privileged, responsive documents based on the results of an ESI search based on mutually agreeable terms.
FIRST SUPPLEMENTAL RESPONSE: Subject to and without waiving the above objections, see documents bates stamped UPJEHOREK001231-1260.
REQUEST NO. 7: All documents relating to Plaintiff being removed from service or kept out of service for medical reasons.
RESPONSE: Union Pacific objects to Request No. 7 to the extent it seeks information that is protected by privilege, including the attorney-client and work product privileges. Union Pacific further objects to Request No. 7 as overly broad, unduly burdensome, and beyond the scope of Federal Rule of Civil Procedure 26 in its request for all communications regarding Plaintiff's removal. See Regan-Touhy v. Walgreen Co., 526 F.3d 641, 649 (10th Cir. 2008) (finding requests for “all communications” would encompass irrelevant information of a potentially personal nature or protected by attorney-client privilege). Union Pacific is not knowingly withholding specific non-privileged documents on this basis but will not undertake the broad search required to identify all such communications.
Subject to and without waiving said objections and answering the portion of Request No. 7 to which Union Pacific does not object, Union Pacific refers Plaintiff to UPJEHOREK000141- 151 and UPJEHOREK000152-442. Other documents that may be responsive to this request are produced in conjunction with other specific requests and specifically identified by bates number.
REQUEST NO. 8: All documents relevant to any allegation in Plaintiff's Complaint and/or any defense, affirmative or otherwise, which Defendant intends to raise.
RESPONSE: Union Pacific objects to Request No. 8 to the extent it seeks information protected by attorney-client or work product privileges. Union Pacific further objects to the unlimited breadth and vagueness of this request in that it is unclear what type or category of document(s) Plaintiff is seeking, and without appropriate specificity, other than the specific requests made here, Union Pacific is left guessing as to what Plaintiff might consider to be relevant to his own claims. See Grynbergv. Total S.A., 2006 U.S. Dist. LEXIS 28854, at *15-16 (D. Colo. May 3, 2006) (finding an interrogatory asking for all tangible things that support an affirmative defense was an overbroad abuse of the discovery process because it purported to ask the defendant to “prove its entire case, and to marshal all evidence, in response to one written interrogatory”). Defendant is not knowingly withholding any non-privileged documents based on these objections. Subject to and without waiving said objections and answering the portion of Request No. 8 to which Union Pacific does not object, Union Pacific will produce non-privileged responsive documents in conjunction with specific requests herein.
REQUEST NO. 9: All documents related to statements, comments, testimony, or expected statements or testimony of witnesses, potential witnesses, and persons interviewed in connection with this case.
RESPONSE: Union Pacific objects to Request No. 9 as vague and ambiguous with regard to the term “related” and the phrase, “in connections with,” in that they fail to describe the requested documents with reasonable particularity. Union Pacific further objects to this request to the extent it seeks information protected by attorney-client or work product privileges. Defendant is not knowingly withholding any non-privileged documents based on these objections. Subject to and without waiving said objections and answering the portion of Request No. 9 to which Union Pacific does not object, Union Pacific is unaware of any non-privileged documents responsive to this request.
REQUEST NO. 10: All documents Defendant intends to use as exhibits at deposition or trial.
RESPONSE: Union Pacific does not yet know which documents it will offer into evidence and/or use in deposition and/or motion practice. Further, Union Pacific is under no obligation to identify the specific documents it will use as an exhibit during any deposition in this matter. Union Pacific affirmatively states that with the exception of any document used for rebuttal/impeachment purposes, all documents to be used at deposition or trial will have been produced by the parties. Union Pacific will provide information regarding these documents at the appropriate time in accordance with the Federal Rules of Civil Procedure and any scheduling order obligations.
REQUEST NO. 11: All documents reflecting Plaintiff's compensation or benefits from Defendant for the five years prior to the date Plaintiff was removed service related to the Fitness-for-Duty review at issue in this case, until the present.
RESPONSE: Union Pacific objects to Request No. 5 as overbroad and disproportional to the needs of the case. Union Pacific is not withholding specific documents on this basis but will not undertake the broad search required to identify all such documents.
Subject to and without waiving said objections and answering the portion of Request No. 11 to which Union Pacific does not object, Union Pacific refers Plaintiff to wage documents at UPJEHOREK000036-125 and UPJEHOREK000137-140, and 10-year cost of benefits summary at UPJEHOREK000032.
REQUEST NO. 12: All documents obtained because of releases and/or subpoenas concerning this case.
RESPONSE: Union Pacific will provide copies of all documents obtained by subpoena if and when it receives them.
SECOND SUPPLEMENTAL RESPONSE : See bates documents LEXINGTONFAMILYEYECARE000001-52, BRADROGERS000001-260, and CHIGOODSAMARITAN000001-331.
REQUEST NO. 13: Defendant's seniority roster(s) applicable to Plaintiff during the last three years prior to the date Plaintiff was removed service related to the Fitness-for-Duty review at issue in this case.
RESPONSE: Union Pacific objects to Request No. 13 as overbroad, vague, and disproportional to the needs of the case. A request for a seniority roster does not identify persons with knowledge of the facts herein, or other similar, discoverable evidence. In addition, Union Pacific has standing to assert a privilege against disclosure of the requested information on behalf of former and present employees. Disclosure of the requested information could constitute an invasion of the fundamental constitutional privacy rights of employees who are not parties to this action, which may only be abridged to accommodate a compelling public interest. An uncontested and unwarranted disclosure of such information could expose Union Pacific to potential liability in the absence of a court order compelling disclosure. Further, Plaintiff has access to any such information through his own union.
REQUEST NO. 14: Defendant's wage records pertaining to the three employees above Plaintiff and the three employees below Plaintiff on any seniority roster from Request No. 13, for the last three years prior to the date Plaintiff was removed service related to the Fitness-for-Duty review at issue in this case, to the present (i.e., employees whose patterns of earnings have not been distorted or diminished by disability or sick leave, part-time schedules, unpaid leave, or layoffs, etc. - in effect, those who are currently working who have not lost any significant time from their job).
RESPONSE: Union Pacific objects to Request No. 14 as overbroad, vague, and disproportional to the needs of the case. Union Pacific further objects to this request to the extent it seeks confidential and personal information concerning individuals who are not a party to this litigation. Union Pacific states that the earnings of someone other than Plaintiff are irrelevant and immaterial. This information is not probative of what Plaintiff actually earned or might have earned. In addition, Union Pacific has standing to assert a privilege against disclosure of the requested information on behalf of former and present employees. Disclosure of the requested information could constitute an invasion of the fundamental constitutional privacy rights of employees who are not parties to this action, which may only be abridged to accommodate a compelling public interest. An uncontested and unwarranted disclosure of such information could expose Union Pacific to potential liability in the absence of a court order compelling disclosure. In addition, although Plaintiff's request does not seek the names of each employee, by requesting data regarding “the individuals above and below” Plaintiff on Seniority Rosters, Plaintiff could determine whose earnings are whose via access to his seniority roster.
Subject to and without waiving these objections and answering the portion of Request No. 14 to which Union Pacific does not object, Union Pacific refers Plaintiff to its response to Interrogatory No. 13
REQUEST NO. 15: For the last three years prior to the date Plaintiff was removed service related to the Fitness-for-Duty review at issue in this case, to the present, all documents and/or charts evidencing Plaintiff's craft fringe benefits, showing the name/title of each fringe benefit and the gross value and/or cost of each, in specific dollar amounts per month, and the date of each change in fringe benefit name/title, value, and/or cost throughout this time period.
RESPONSE: Union Pacific objects to Request No. 14 as overbroad, vague, and disproportional to the needs of the case. Subject to and without waiving said objections, Union Pacific provides the cost of benefit summary charge UPJEHOREK000032.
REQUEST NO. 16: From 2013 to present, all documents reflecting or evidencing Defendant's fitness for duty policies, including the date and purpose of any changes to those policies.
RESPONSE: Union Pacific objects to Request No. 16 as vague and ambiguous with regard to the term “changes” in that it fails to describe the requested documents with reasonable particularity. Union Pacific further objects to this request as overbroad, vague, and disproportiona l to the needs of the case to the extent it first requires Union Pacific to search an unlimited number of sources to identify every possible document regarding anything that might be interpreted as regarding or relating to “changes” without regard for any substantive or temporal scope. Defendant is not knowingly withholding any documents based on these objections. Subject to and without waiving said objections and answering the portion of Request No. 16 to which Union Pacific does not object, Union Pacific refers Plaintiff to its Medical Rules produced at UPJEHOREK001218-1230.
REQUEST NO. 17: From 2013 to present, documents demonstrating Defendant's policies relating to discrimination on the basis of disability.
RESPONSE: Union Pacific objects to Request No. 17 as overbroad, vague, and disproportional to the needs of the case to the extent it first requires Union Pacific to search an unlimited number of sources to identify every possible document regarding anything that might be interpreted as regarding or relating to “discrimination on the basis of disability” without regard for any substantive or temporal scope. Defendant is not knowingly withholding any non-privileged documents based on these objections. Subject to and without waiving said objections and answering the portion of Request No. 17 to which Union Pacific does not object, Union Pacific refers Plaintiff to its EEO Policy produced at UPJEHOREK000456-459.
REQUEST NO. 18: From 2013 to present, and in the region(s) where Plaintiff worked, documents demonstrating complaints of Defendant discriminating on the basis of disability, Defendant's investigation of such complaint, and/or the complaint's resolution.
RESPONSE: Union Pacific objects to Request No. 18 as overly broad in time and scope, unduly burdensome, and beyond the scope of Rule 26 because the request extends beyond the department in which Plaintiff worked and in which relevant employment decisions were made. Carman v. McDonnell Douglas Corp., 114 F.3d 790, 792 (8th Cir. 1997) (limiting discovery of similar complaints to the facility at issue); Kight v. Auto Zone, Inc., 494 F.3d 727, 733-34 (8th Cir.2007) (no error in excluding employer's evidence comparing plaintiff to four other employees: to be permitted to offer such evidence, those employees must be similarly situated to plaintiff in all relevant respects, e.g., they were terminated by same decision maker); McPheeters v. Black & Veatch Corp., 427 F.3d 1095, 1101-02 (8th Cir. 2005) (finding no abuse of discretion where the trial court excluded a spreadsheet showing other complaints of discrimination because the plaintiff did not show a connection between other complaints and his); Carlton v. Union Pac. R.R., 2006 U.S. Dist. LEXIS 56642, at *17 (D. Neb. Aug. 1, 2006) (“The mere fact that an employee or former employee alleged . . . discrimination or retaliation . . . does not make such an employee a ‘comparator' of the plaintiff.”).
Union Pacific further objects to this request as overly broad, unduly burdensome, outside the scope of Rule 26, and not proportional to the needs of the case in its use of the term “region(s) where Plaintiff worked” and its request for any complaints of disability discrimination without regard to factual similarities such as decision makers, medical condition, or position, let alone limited to complaints related to the outcome of a fitness for duty evaluation. Union Pacific operates in 23 states across the western two-thirds of the United States and employs more than 40,000 employees. This request could be interpreted to require Union Pacific to search thousands of documents generated by thousands of employees, the vast majority of whom are not similarly situated to plaintiff and did not perform the same or similar job as Plaintiff, to determine whether any document exists that might be interpreted as “demonstrating complaints” during the designated time period.
REQUEST NO. 19: From 2013 to present, documents demonstrating changes Defendant has made to its policies and/or procedures in an effort to comply with the ADA.
RESPONSE: Union Pacific objects to Request No. 19 to the extent it implicates documents or communications protected by the attorney-client or work-product privilege. Union Pacific further objects to this request as vague and ambiguous with regard to the term “changes” insofar as it implies that Union Pacific at one time did not comply with the ADA and needed to make changes to its policies and/or procedure to comply. Union Pacific further objects to this request as overbroad, vague, and disproportional to the needs of the case to the extent it first requires Union Pacific to search an unlimited number of sources to identify every possible document regarding anything that might be interpreted as regarding or relating to “changes” without regard for any substantive or temporal scope. Subject to and without waiving said objections and answering the portion of Request No. 19 to which Union Pacific does not object, Union Pacific has no responsive documents because no relevant policy or procedural changes were made in an effort to comply with the ADA.
REQUEST NO. 20: A copy of Defendant's expert witness(es) files, including documents provided to any expert witness, and documents reviewed or relied upon by any experts in forming their opinions.
RESPONSE: Union Pacific objects to Request No. 20 to the extent it might be interpreted as calling for the disclosure of information protected by the attorney-client privilege and/or the work product doctrine. Union Pacific further objects that the documents requested are protected from disclosure by Fed.R.Civ.P. 26(b)(4). Subject to and without waiving said objections and answering the portion of Request No. 20 to which Union Pacific does not object, Union Pacific has yet to determine if it will have an expert witness testify in this matter, and therefore has no information responsive to this Request with regard to its request for information concerning expert witnesses. In any case, Union Pacific will supplement this response if necessary in accordance with the Court's Scheduling Order and the applicable rules.
REQUEST NO. 21: All documents, including emails, related to and including any agreement(s) between Dr. John Holland and Defendant regarding the former's retention as a witness in this case, including a listing of all hours worked and payments provided to Dr. Holland for his work in this case.
RESPONSE: Union Pacific objects to Request No. 21 as it is overly broad, unduly burdensome, vague, and not proportional to the needs of the case in its request for “all documents” regarding Dr. Holland's retention as a witness in this case. Union Pacific further objects to this request to the extent it seeks documents and information protected from disclosure by the attorneyclient or attorney work-product privileges. See also David Meza v. Union Pacific R.R., No. 8:22-cv-00102-RFR-SMB (DKT. 96) and Order Upholding Magistrate Judge's Decision (DKT. 123).
Subject to and without waiving these objections, Union Pacific responds that it has not engaged, and does not anticipate engaging, Dr. Holland as a witness in this case.
FIRST SUPPLEMENTAL RESPONSE: Union Pacific withdraws the above statement in which it asserts that it has not engaged, and does not anticipate engaging, Dr. Holland as a witness in this case. Union Pacific has supplemented its Rule 26 disclosures and response to Interrogatory No. 2 to identify Dr. Holland as a possible witness with respect to the history and rationale underlying Union Pacific's reliance on the FMCSA handbook. In any event, Union Pacific maintains its objections to this request for production.
REQUEST NO. 22: All documents, including emails, related to and including any agreement(s) between Dr. John Charbonneau and Defendant regarding the former's retention as a witness in this case, including a listing of all hours worked and payments provided to Dr. Charbonneau for his work in this case.
RESPONSE: Union Pacific objects to Request No. 22 as it is overly broad, unduly burdensome, vague, and not proportional to the needs of the case in its request for “all documents” regarding Dr. Charbonneau's retention as a witness in this case. Union Pacific further objects to this request to the extent it seeks documents and information protected from disclosure by the attorney-client or attorney work-product privileges. See also David Meza v. Union Pacific R.R., No. 8:22-cv-00102-RFR-SMB (DKT. 96) and Order Upholding Magistrate Judge's Decision (DKT. 123).
Subject to and without waiving these objections, Union Pacific responds that it has not engaged, and does not anticipate engaging, Dr. Charbonneau as a witness in this case.
REQUEST NO. 23: All documents, including emails, related to and including any contract(s), agreement(s), or understanding(s) between any witness listed in either parties' Rule 26 disclosures regarding the former's retention as a witness in this case, including a listing of all hours worked and payments provided to the witness for their work in this case.
RESPONSE: Union Pacific objects to Request No. 23 as it is overly broad, unduly burdensome, vague, and not proportional to the needs of the case in its request for “all documents . . . related to” any witness retained in this case and incorporates the objections in response to Request Nos. 21-22. Union Pacific further objects to this request to the extent it seeks documents and information protected from disclosure by the attorney-client or attorney work-product privileges. See also David Meza v. Union Pacific R.R., No. 8:22-cv-00102-RFR-SMB (DKT. 96) and Order Upholding Magistrate Judge's Decision (DKT. 123).
REQUEST NO. 24: All documents responsive to the ESI search criteria agreed-upon by the parties in the Rule 26(f) report in this case. If Defendant is withholding documents based upon a privilege objection, please provide an appropriate privilege log.
RESPONSE: Union Pacific objects to Request No. 24 because the documents requested are beyond the scope of discovery permitted under Federal Rule of Civil Procedure 26(b)(1) because the request seeks information that is neither relevant to the claims or defenses nor proportional to the needs of the case. Subject to and without waiving said objections and answering the portion of Request No. 24 to which Union Pacific does not object, Union Pacific has no documents responsive to this request at this time. Union Pacific will supplement the response after it concludes an ESI search based on mutually agreeable terms and identifies the documents responsive to Plaintiff's requests for production of documents and relevant to the claims and defenses raised in this case.
FIRST SUPPLEMENTAL RESPONSE : Subject to and without waiving the above objections, see documents bates stamped UPJEHOREK001231-1260.
EXHIBIT 5
DEFENDANT'S RESPONSES TO PLAINTIFF'S REQUESTS FOR PRODUCTION OF DOCUMENTS, SET 2
Defendant Union Pacific Railroad Company (“Union Pacific”) by and through its undersigned counsel, hereby serves the following responses and objections to Plaintiff's Request for Production of Documents, Set 2, as follows:
RESERVATION OF RIGHTS WITH REGARD TO RESPONSES
The following responses represent the best information ascertained by Union Pacific and are based upon information obtained from records, files, and individuals within its possession, custody, control, or employ. Union Pacific reserves the right at any time to revise, correct, add to, or clarify any of the responses provided herein.
The responses provided herein are subject to the right of Union Pacific to object on any ground, at any time, to a demand for further response to these or other requests for admissions, interrogatories, and requests for production of documents, or other discovery procedures involving or relating to the subject matter herein.
By responding to these requests, Union Pacific does not concede the relevancy or admissibility of the information or documents provided.
GENERAL OBJECTIONS
Union Pacific objects to Plaintiff's instructions, definitions, and production format instructions as overly broad and unduly burdensome. Union Pacific further objects to Plaintiff's definitions and any instructions to the extent that they purport to impose obligations that exceed those that are permissible under the Federal Rules of Civil Procedure.
REQUESTS FOR PRODUCTION OF DOCUMENTS
REQUEST NO. 25: Documents demonstrating the contract(s), agreement(s), or understanding(s) between Defendant and its retained expert witness, and/or their employer or organization, governing their work in this case.
RESPONSE: Defendant objects to this request as vague and ambiguous with respect to the phrase “documents demonstrating the contract(s), agreement(s), or understanding(s),” as overbroad in subject matter, unlimited in temporal scope, unduly burdensome, and not proportional to the needs of the case. Defendant further objects to this request to the extent it seeks documents and information that are protected from disclosure by the attorney-client and/or attorney workproduct privileges and by Federal Rule of Civil Procedure 26(b)(4). Defendant further objects to Request No. 25 as premature because, per an agreement between the parties, Defendant's expert disclosures are not due until March 29, 2024. Subject to and without waiving the objections, based on an agreement by the parties, Defendant will produce the engagement letters sent to and signed by its expert witnesses once Defendant's expert disclosures have been made.
REQUEST NO. 26: Documents demonstrating all payments to Defendant's retained expert witness(es), and/or their employer or affiliated organization, from 2014 to the present, for work as a consultant or expert witness related to fitness for duty determinations by Defendant.
RESPONSE: Defendant objects to this request as vague and ambiguous with respect to the phrase “documents demonstrating all payments,” as overbroad in temporal scope and subject matter, unlimited in geographic scope, unduly burdensome, and not proportional to the needs of the case. Indeed, this request seeks documents for a time period of more than 4 years before Plaintiff was referred for a fitness-for-duty (FFD) evaluation following his craniotomy and resection for retro-orbital petroclival meningioma in January 2018. Moreover, the request is unlimited in geographic scope and theoretically seeks documents regarding “medical reviews” for any of Defendant's approximately 30,000 employees-regardless of whether they worked at the same location as Plaintiff, held the same position as Plaintiff, performed similar job duties to Plaintiff, or suffered a similar medical issue to Plaintiff. Further, Plaintiff has articulated no basis for the production of such documents or what relation such documents would allegedly bear to Plaintiff's claims or Defendant's defenses. Defendant also objects to this request on the basis it seeks confidential and personal information of non-party employees whose privacy interests have not been waived by the allegations in this action. Union Pacific has standing to assert a privilege against disclosure of the requested information on behalf of non-party former and present employees. Finally, Defendant further objects to this request to the extent it seeks documents and information that are protected from disclosure by the attorney-client and/or attorney work-product privileges and by Federal Rule of Civil Procedure 26(b)(4). Defendant further objects to Request No. 26 as premature because, per an agreement between the parties, Defendant's expert disclosures are not due until March 29, 2024. Subject to and without waiving the objections, based on an agreement by the parties, Defendant will produce non-privileged documents sufficient to reflect the amount of compensation paid to Defendant's retained expert witnesses in this matter once Defendant's expert disclosures have been made.
REQUEST NO. 27: Documents demonstrating all compensation and bonuses paid to Defendant's current or former Chief Medical Officers involved in the fitness for duty determination in this case, from 2014 to the present.
RESPONSE: Union Pacific objects to this request as overbroad in subject matter and temporal scope, irrelevant, and not proportional to the needs of the case as it seeks the production of confidential personnel information of non-party employees whose privacy interests have not been waived by the allegations in this action (and which predates Plaintiff's removal from service by more than three years). Indeed, Union Pacific has standing to assert a privilege against disclosure of the requested information on behalf of non-party former and present employees. Moreover, the only potential relevance of the compensation and bonuses of Defendant's current or former Chief Medical Officers would be if they received direct or indirect incentives/compensation that was tied to the fitness for duty determinations themselves, which they did not. Union Pacific further objects to the request as vague and ambiguous with respect to the phrase “compensation and bonuses paid.” Finally, Union Pacific also objects to the extent this request might be interpreted as calling for the production of documents protected by attorney-client and/or work product privileges.
REQUEST NO. 28: Documents demonstrating all compensation and bonuses paid to Defendant's current or former Associate Medical Directors involved in the fitness for duty determination in this case, from 2014 to the present.
RESPONSE: Union Pacific objects to this request as overbroad in subject matter and temporal scope, irrelevant, and not proportional to the needs of the case as it seeks the production of confidential personnel information of non-party employees whose privacy interests have not been waived by the allegations in this action (and which predates Plaintiff's removal from service by more than three years). Indeed, Union Pacific has standing to assert a privilege against disclosure of the requested information on behalf of non-party former and present employees. Moreover, the only potential relevance of the compensation and bonuses of Defendant's current or former Associate Medical Directors would be if they received direct or indirect incentives/compensation that was tied to the fitness for duty determinations themselves, which they did not. Union Pacific further objects to the request as vague and ambiguous with respect to the phrase “compensation and bonuses paid.” Finally, Union Pacific also objects to the extent this request might be interpreted as calling for the production of documents protected by attorney-client and/or work product privileges.
EXHIBIT 6
REMOTE DEPOSITION OF DR. MATTHEW HUGHES
Dated: May 30, 2024
TIME: 9:06 a.m. CST
PLACE: Veritext Virtual Videoconference
REPORTED BY: Jayne M. Seward, RPR Job No: 6690719
A. I send the bill to Union Pacific.
Q. Directly to Union Pacific?
A. Through the -- through the agency.
Q. What do you mean, through the law firm?
A. The law firm.
Q. Okay. And do you have some type of written agreement or contract with Union
A. No.
Q. Okay. So how is it that you have agreed to provide testimony in this case and you're compensated for that, do you know?
A. I don't understand your question. I'm sorry.
Q. Sure. Let me back up. Doctor, when you were an employee or when you worked for Union Pacific, you had a consulting agreement; is that right?
A. Yes.
Q. And what were you paid under the consulting agreement for your work on fitness-for-duty determinations?
A. I believe I was paid $172 an hour.
Q. Did you have a guaranteed number of hours per month?
A. I don't believe I had a guaranteed number.
I usually worked 10 to 15 hours a week.
Q. Under that agreement with Union Pacific were you also -- was one of your duties and responsibilities to provide assistance to Union Pacific's Legal Department?
A. Only in the cases that were going to do the same thing this one's going to, so if I -- if I was asked to testify, then, yes, but otherwise, no.
Q. And did your contract lay out what you were compensated for that work on behalf of Union Pacific's Legal Department?
A. Yes.
Q. And what were you paid under that provision?
A. I believe 400 an hour for legal work.
Q. Do you recall if it went up if you testified in a deposition or a trial?
A. It did not that I can recall.
Q. So your recollection is you had a flat hourly rate of $400 for any work during litigation?
A. Correct.
Q. And this consulting agreement that we were just talking about, I'm assuming that ended at the time that you left Union Pacific?
A. Yes.
Q. Okay. Did you sign some other type of agreement or contract with Union Pacific at the time that you left?
A. No, I don't recall one.
Q. At any point since you left Union Pacific, have you signed some type of agreement with Union Pacific or its counsel for your work during litigation?
A. No, not that I can recall.
Q. So what are you paid for your work in testimony in this case?
A. My fee is 500 an hour.
Q. And where did that hourly rate come from?
A. It's a similar rate for performing Independent Medical Evaluations and doing that work.
Q. Is that the rate you charge to perform an IME?
A. It would be. I don't -- I don't do IMEs anymore, so -- but that was my rate.
Q. Did someone from Union Pacific or its counsel agree to that hourly rate for your work in this case?
A. No.
Q. Have you billed Union Pacific or its counsel $500 per hour for your work in other litigation matters?
A. Yes.
Q. Have those bills always been paid?
A. Most of them.
Q. Was there ever a time it was not paid?
A. I'd have to go back and look at my books.
Q. Nothing that you can remember?
A. No.
Q. And where does the check come from when you are paid?
A. I actually don't know. I'd have to go back and look at the records.
Q. Do you have any type of retirement through Union Pacific?
A. No.
Q. Any type of stock with Union Pacific?
A. No.
Q. What's your estimate in terms of what you have been paid by Union Pacific since your employment ended for work during litigation?
A. Probably less than 10,000.
Q. Total?
A. Yes.
Q. And how much time did you spend preparing for your testimony today?
A. Probably about three hours, three or four hours.
Q. Getting back to your current employment, Doctor, you said that you were an associate professor at the University of Utah; is that right?
A. Yes.
Q. Is that the medical school or just the undergraduate school?
A. It's the medical school.
Q. And are you employed with any other organization?
A. Yes.
Q. Where?
A. I have my own company, so I'm self-employed.
Q. And what's the name of that company?
A. The name of the company is Occudigm Health, O-C-C-U-D-I-G, like in George, M, like in Mary.
Q. And what do you do through Occudigm Health?
A. It's Occupational Health services, so consulting, staffing, drug screens.
Q. And who are your clients?
A. Clients are Chevron, BP, Marathon Oil --
EXHIBIT 7
REMOTE DEPOSITION OF DR. JOHN HOLLAND
Dated: March 29, 2024
TIME: 11:07 a.m. CST
PLACE: Veritext Virtual Videoconference
REPORTED BY: Jayne M. Seward, RPR
Job No: 6492285 determination?
A. Yes.
Q. Let's talk about your history a little bit, Doctor. You started with Union Pacific in 2006; is that right?
A. I -- actually I started with Union Pacific in 2003, and I started as a contract associate medical director for three months. Then there was a downsizing and that went away. I continued, however, to work with Union Pacific on legal cases as a medical expert.
And then in 2006 I, again, became an associate medical director, and I continued in that until 2010 when I became chief medical officer and became an employee, and I continued in that position until December 2019 when I retired from Union Pacific.
Q. And did I understand correctly that you were saying, as part of your -- or post-2006, you started as a contract AMD, and then there was a period of time when you were downsized and then you came back; is that fair?
A. The dates are wrong. In 2003 I started as an associate -- I was hired as a contract associate medical director. I worked only for about three months. There was some downsizing and the associate medical director job went away. I worked as an outside expert witness with Union Pacific on some legal cases after that.
Then in September 2006 I, again, became associate medical director, and that continued until I became chief medical officer.
Q. Okay. Thank you for that clarification.
So I was trying to clarify this time frame when you were serving as an expert witness, and that was between 2003 and 2006 approximately for Union Pacific?
A. Well, I started in 2003. I continued that also during that time as associate medical director.
Q. Okay. And did you continue serving as an expert witness during your time as chief medical officer between 2010 and 2019?
A. Again, initially, the first year or so, and then it was decided that I should -- then I stopped doing that, and then all of my testimony -I was still sometimes designated an expert, but it was all just as chief medical officer.
Q. Okay. And since you retired in 2019, you've also been retained by Union Pacific as a medical expert; is that fair?
A. Yes.
Q. Were you retained as a medical expert in this case?
A. Yes.
Q. Did you write a report in this case?
A. No.
Q. Why not?
A. I wasn't asked to.
Q. Do you have a specific retainer agreement that is -- that governs your testimony in this case?
A. Yes, I do.
Q. And is it only pertaining to this case?
A. Yes.
Q. And who is that retention agreement entered into between, yourself and whom?
A. Baird Holm, the attorneys representing Union Pacific.
Q. When did you enter that contract?
A. I don't know. Several months ago when I was asked to start to prepare for a deposition in this case.
Q. And are you paid on an hourly basis under this contract?
A. Yes.
Q. What are you paid?
A. For independent review of records I am paid $400 an hour, and for deposition -- testimony in deposition and in a trial $500 an hour.
Q. So for both, deposition and trial testimony are at $500 an hour?
A. Yes.
Q. Now, since you retired in 2019, you have been, as you stated, retained as an expert by Union Pacific in other cases; is that accurate?
A. Yes.
Q. Okay. And in how many cases do you -- can you estimate you've been retained as an expert by Union Pacific since 2019?
A. Well, probably -- often about 10 a year, so that would be maybe 40 to 50.
Q. And were you paid the same hourly rate for each of those cases?
A. Yes.
Q. How much time do you think you've billed in this case thus far?
A. Well, I haven't calculated it yet, but I think probably about -- probably about 15 hours.
Q. And you haven't submitted a bill for that yet?
A. No.
Q. So 15 hours at that $400 an hour rate?
A. Yes.
Q. So that's about $6,000 thus far; is that right, approximately?
A. A little less than that, but five to 6,000.
Q. Okay. And then if you say 10 cases a year, that's about 50 to 60 grand a year you've been paid by Union Pacific to provide expert
MR. MOORE: Objection -- sorry. I thought you were done.
BY MR. KASTER:
Q. -- to provide expert testimony?
MR. MOORE: Objection, form, foundation.
THE WITNESS: Well, it would all be different, but if they were all -- if they were all the same amount, it would be about 50 to 60.
BY MR. KASTER:
Q. Some could be more?
A. If there's a trial, yes.
Q. Some could be less?
A. Yes.
Q. By the way, how many times have you testified in a trial regarding Union Pacific's fitness-for-duty determination since you retired in 2019?
A. I have been involved in four trials.
Q. How many times have you been deposed regarding a fitness-for-duty determination since you retired in 2019?
A. Well, most of the cases I've been involved in have had a deposition. A few maybe not. So I would suppose it's been about 10 depositions a year also.
Q. In any of those prior cases, have you ever provided the opinion that Union Pacific's fitness-for-duty determination was wrong?
A. I can't remember all the details of all the cases, you know. There may have been times where we revised a fitness-for-duty determination after we reconsidered it and got more information, and that did happen. That was part of our normal process. So I wouldn't say even those were wrong; I'd just say that they were revised with more information. But I -- but I can't think of an instance in those cases where -- where I concluded our determinations were wrong based on the information we had.
Q. Do you also have a contract with Union Pacific that governs your work with the company since you retired in 2019?
A. No.
Q. There's no current existing contract between you and Union Pacific; is that what I understand?
A. That's correct.
Q. Did you have a separation agreement with Union Pacific when you left?
A. No.
Q. When you were chief medical officer with Union Pacific, were you also paid for your work and testimony during litigation?
A. When I initially became chief medical officer in March 2010, there were some cases I was working on I'd been working on as an expert witness, I continued on. Those I was paid as an expert witness.
And there may -- I can't recall if there were any other cases, while I was chief medical officer, that I started then that were paid as an expert witness. But, as I mentioned before, after about a year or so, we discontinued that and it just became part of my job duties in terms of the testimony.
Q. So let me make sure I understand you.
When you became the chief medical officer after these initial cases that were sort of carried over, you were not paid a separate amount to provide testimony or work during litigation? Not just expert witness work. I'm talking about any work after litigation.
A. After that brief transition period, that's correct, I was not paid any extra amount for working on litigation. It just became part of my job duties.
Q. And what was your final salary as chief medical officer?
A. It was approximately $250,000 a year.
Q. Did you get a bonus?
A. I typically would get a -- yes, I did.
Q. And what was the range of that bonus?
A. It would vary from 25,000 to 50,000.
Q. So is it accurate that the most that you could potentially be paid, during your time as a chief medical officer at Union Pacific, was $300,000?
A. Yes.
Q. You also have stock with Union Pacific; is that right?
A. I did receive some stock, yes.
EXHIBIT 8
REMOTE DEPOSITION OF
DR. JOHN HOLLAND
Dated: May 24, 2024
TIME: 11:04 a.m. CST
PLACE: Veritext Virtual Videoconference
REPORTED BY: Jayne M. Seward, RPR
Job No: 6693213
A. Yeah, and actually I mentioned -- I mentioned the five articles mentioned by Dr. Diesing, and then this additional one by Dr. Robert Fisher which was cited, and so there were six together.
Q. Six total. Okay. Thank you.
Do you have a contract or agreement with Union Pacific or the Baird Holm law firm to provide expert testimony in this case?
A. Yes.
Q. And when was that contract executed?
A. It would have been when they asked me to be available as a witness, I think, about two months ago.
Q. I'm going to pull up the supplemental disclosures from Union Pacific regarding your disclosure, and I will share my screen so that we can see that.
(Exhibit 1 marked.)
BY MR. KASTER:
Q. Dr. Holland, I'm showing you, and I want to know if you can see what is Defendant Union Pacific Railroad's First Supplemental Disclosures.
A. Yes, I can see it.
Q. Okay. I'm going to move quickly to the disclosure related to you. This is the disclosure, and I'll read it aloud, that was provided by Union Pacific related to you, and it says, "Dr. John Holland, Former Medical Director. Dr. Holland is expected to have information concerning the history and rationale underlying Union Pacific's reliance on the FMCSA handbook but not on the underlying conclusions made with respect to Plaintiff."
Is that a fair summary of what you understand your opinion to concern?
A. Yes.
Q. All right. I'm going to close -- I'm going to stop sharing that.
All right. So I just want to cover a couple of things here. Have you ever provided any kind of written report in this case?
A. No.
Q. So it's fair to say that you've never provided a report that provides a complete statement of all opinions that you will express and the basis and the reasons for them?
A. That's correct.
Q. And you've never provided the facts or data considered by the witness informing those opinions?
A. "The witness," by that you mean me?
Q. That is what I mean. Thank you.
A. Okay. No, I've not provided such a report.
Q. Or any exhibits that you would use to summarize or support those opinions, right?
MS. BALUS: Object to form.
THE WITNESS: Well, I -- I don't exactly know how to respond to that. I mean, we did mention what I reviewed, and I don't know if that would be -- I haven't prepared anything to present, but I did mention the materials I reviewed, so I don't know if those would be exhibits.
BY MR. KASTER:
Q. In any case, you never provided a written report that contained a reference to those exhibits, correct?
A. That's correct.
Q. And you've never provided a written report that provided your qualifications, including a listing of all publications authored in the previous 10 years, correct?
A. Correct.
Q. And you've never provided a written report that listed all other cases in which, during the previous four years, you were called to testify as an expert at trial or by deposition; is that correct?
A. Yes.
Q. Or a statement of the compensation to be paid for the witness's testimony in the case, you've not provided that either, right?
A. That's correct.
Q. All right. I am going to ask you a few questions about your expertise specifically as it relates to neurology. Have you ever been qualified as an expert on neurology in a court of law?
A. I don't know exactly what that would mean. I have testified. I have been qualified -- or testified as a witness on cases that involved neurology, you know, in lawsuits.
Q. Have you ever had a challenge to your qualifications or ability to testify on issues related to neurology?
A. I don't know. I mean, I don't -- I don't think I was ever prevented from testifying, but I don't know the answer to that.
Q. Have you ever written any articles for scientific publication on issues related to neurology?