Opinion
No. CIV. S-99-2282 WBS JFM
September 20, 2000
MEMORANDUM AND ORDER
Defendants Southern Pacific Transportation Company and Union Pacific Railroad ("SP/UP") sent letters to plaintiff after this action was filed, requesting that he complete a Report of Personal Injury or Illness (hereinafter "the accident form"). On August 25, 2000, SP/UP advised plaintiff that he must attend a disciplinary hearing on September 13, 2000 for his failure to submit the requested report. On September 8, 2000, plaintiff filed an ex parte application for a temporary restraining order ("TRO") and preliminary injunction enjoining SP/UP from conducting the disciplinary hearing. Alternatively, plaintiff seeks a protective order. Plaintiff additionally requests: (1) monetary sanctions to reimburse him for costs and attorneys' fees, (2) sanctions under Rule 11 of the Federal Rules of Civil Procedure, and (3) initiation of contempt proceedings. The court initially heard the matter on September 11, 2000. Plaintiff represented that the disciplinary hearing had been continued to September 27, 2000. Because SP/UP had not been afforded the opportunity to submit a written opposition to the motion, the court heard the matter again on September 18, 2000, after receiving full briefing from the parties.
I.
On a motion for a TRO or preliminary injunction "[t]he moving party must show either (1) a combination of probable success on the merits and the possibility of irreparable harm, or (2) the existence of serious questions going to the merits, the balance of hardships tipping sharply in its favor, and at least a fair chance of success on the merits." Miller v. California Pacific Med. Ctr., 19 F.3d 449, 456 (9th Cir. 1994).
Under Rule 26(c) of the Federal Rules of Civil Procedure, the court may grant a protective order "for good cause shown" "to protect a party or person from annoyance, embarrassment, oppression, or undue burden or expense,. . . ." Fed.R.Civ.P. 26(c). The decision to grant a protective order is vested in the district court's discretion. See In re Standard Metals Corp., 817 F.2d 625, 628 (10th Cir. 1987). Neither an injunction nor protective order is proper here because (1) the collective bargaining agreement obligates plaintiff to submit the accident form, and plaintiff may raise his grievances through the arbitration process provided for in the agreement and under the Railway Labor Act, (2) nothing in the Federal Rules of Civil Procedure or the court's scheduling order disallows "extra judicial" discovery when there is no showing of illegality, and (3) plaintiff has failed to show that SP/UP's discovery requests are unlawful.
For the same reasons, the court declines to issue sanctions or to initiate contempt proceedings.
A. Collective Bargaining Agreement
Rule 46 of the collective bargaining agreement between Union Pacific and the Brotherhood of Railway Carmen requires employees to submit a written accident form to SP/UP. Thus, SP/UP has the right to request that plaintiff submit an accident form, and plaintiff is obligated to do so. These rights and obligations are the result of bargaining between SP/UP and the Union — two strong organizations of virtually equal bargaining power. The agreement could have been drafted to provide that once an employee files a claim with the claims department or a lawsuit, then the employee need not complete an accident form. The agreement could have been drafted to provide that once an employee gives notice that he or she is represented by counsel, no accident form need be completed. The Union could have bargained for such provisions, but did not. If plaintiff has a quarrel with the requirement or claims an implied exception to it, he may raise such concerns through the arbitration process provided for under the collective bargaining agreement and the Railway Labor Act, 45 U.S.C. § 151-188.B. Discovery under the Federal Rules of Civil Procedure
Plaintiff argues that SP/UP's conduct constitutes "extra judicial" discovery, bypassing the Federal Rules of Civil Procedure and the court's scheduling order, and thus is a matter more appropriate for this court to decide as opposed to an arbitrator. Plaintiff's argument is unavailing, however, because SP/UP's conduct does not appear to contravene either the court's scheduling order or the Federal Rules of Civil Procedure.Nothing in the court's scheduling order is intended, or should be read, to preclude the parties from getting discovery in other lawful ways. In addition, nothing in the Federal Rules of Civil Procedure states that the Rules are the only way that parties can obtain information from each other or from third parties. The discovery rules were passed long ago to give parties who did not have a means of obtaining information a vehicle for doing so. See Fed.R.Civ.P. advisory committee notes at V ("Discovery frequently provides evidence that would not otherwise be available to the parties and thereby makes for a fairer trial or settlement."); Dilmore v. Stubbs, 636 F.2d 966, 969 (9th Cir. 1981) (noting that one of the principal goals of the discovery rules is preventing trial by ambush and surprise); Shelak v. White Motor Co., 581 F.2d 1155, 1159 (5th Cir. 1978) ("The rules are designed to narrow and clarify the issues and to give the parties mutual knowledge of all relevant facts, thereby preventing surprise."). They were not passed to limit the means of gaining discovery.
Here, there is an existing employee/employer relationship in which the respective rights and obligations are governed by a collective bargaining agreement between the employer and the Union that represents the employees. There is nothing in the court's scheduling order or the Rules of Civil Procedure to preclude either party from asserting rights or from seeking the protections of the collective bargaining agreement independent of this action.
The court is aware that other judges have issued protective orders under similar circumstances. It is the prerogative of each judge to control discovery as he or she sees fit. The court notes, however, that none of the cases cited by plaintiff hold that the Federal Rules of Civil Procedure are the only method for obtaining discovery. See Smith v. Union Pac. R.R. Co., 878 F. Supp. 171 (D.Colo. 1995); Vicary v. Consolidated Rail Corp., 942 F. Supp. 1146 (N.D.Ohio. 1996); Riensch v. Union Pac. R.R. Co., 12 F. Supp.2d 1136 (D.Colo. 1998).
The court is further aware that some judges have attempted to strike a balance by upholding SP/UP's right under the collective bargaining agreement to request an accident form but prohibiting SP/UP from sharing the information with its counsel or using the information in a pending action. See, e.g., Pulido v. Southern Pac., CIV. S-98-2276 (E.D.Cal.) (February 18, 2000 hearing, Pl.'s Ex. 7). This court declines to impose such a blanket requirement on SP/UP.
The fundamental purpose of a trial is to discover the truth. See Estes v. Texas, 381 U.S. 532, 540 (1965) ("The solemn purpose of endeavoring to ascertain the truth . . . is the sine qua non of a fair trial. . . ."). Technical rules that do not allow relevant evidence to be received at trial are generally disfavored. See, e.g., Chambers v. Mississippi, 410 U.S. 284 (1973) (proscribing the use of technical rules of evidence to exclude information and prevent witnesses from testifying in violation of the defendant's right of confrontation and right to present witnesses in his defense); Bohrer v. Hanes Corp., 715 F.2d 213, 217 (5th Cir. 1983) (Whether technical noncompliance with Rule 50(b) precludes a challenge to the sufficiency of the evidence on appeal "should be examined in the light of the accomplishment of its particular purposes as well as in the general context of securing a fair trial for all concerned in the quest for truth.").
The court is thus not going to bar SP/UP at this stage in the proceedings from using any evidence obtained extra judicially that is potentially probative where it does not appear that the evidence was obtained illegally. The court understands why SP/UP is unwilling to agree ahead of time not to use the accident form at trial, and the court is not willing to impose that requirement on them. A trial is a search for the truth, and the court will not peremptorily exclude relevant evidence that might promote that objective.
C. Illegality
Plaintiff argues that the letters requesting plaintiff to submit the accident form are unlawful under the Rules of Professional Conduct and under section 55 of the Federal Employers Liability Act ("FELA"). See 45 U.S.C. § 55. Additionally, plaintiff argues that the requests are an attack on the Railroad Retirement Board's sole authority to determine whether plaintiff is permanently disabled. The court considers each argument in turn.
1. Rules of Professional Conduct
Plaintiff has not shown that the letters from SP/UP to plaintiff are ex parte communications in contravention of the Rules of Professional Conduct. Under Rule 2-100, an attorney may not communicate directly or indirectly with an adverse party about the action if the attorney knows the party is represented by counsel. See Cal. R. Prof. Conduct § 2-100. However, "Rule 2-100 is not intended to prevent the parties themselves from communicating with respect to the subject matter of the representation." Cal. R. Prof. Conduct § 2-100 cmt. While plaintiff alleges that "it would be the essence of naivete to believe that [the letters] are not sent at the direction of, or in conjunction with, SP/UP's in-house legal department," (Mot. at 27:13-140), plaintiff presents no evidence to support its claim that the letters originate from the legal department. To the contrary, the letters appear to be sent as a result of the requirements of the collective bargaining agreement.
2. FELA Section 55
Section 55 of the FELA states that "[a]ny contract, rule, regulation, or device whatsoever, the purpose or intent of which shall be to enable any common carrier to exempt itself from any liability created by this chapter, shall to that extent be void." 45 U.S.C. § 55. Plaintiff has not satisfied the court that the purpose or intent of the accident form is to exempt SP/UP from liability under the FELA. All the form does is ask simple questions about the accident. This is information that SP/UP could readily obtain through discovery. Indeed, at hearing, plaintiff's counsel admitted that SP/UP has already obtained this information during discovery. Thus, it is unclear how the form can be used to limit SP/UP's liability.
At hearing, plaintiff's counsel alleged that SP/UP hopes that plaintiff will make an inconsistent statement on the form, which could be used to limit SP/UP's liability. However, SP/UP has expressly stated that plaintiff's counsel may complete the form for plaintiff so as to avoid any such possibility.
It is even doubtful that § 55 was intended to apply to circumstances such as these. In Bay v. Western Pacific Railroad Co., 595 F.2d 514 (1979), the Ninth Circuit noted that Congress enacted § 55 in order "to create a `shield' against a railroad's defense that an employee had contracted away his right to sue the railroad for personal injuries." Id. at 516. Here, plaintiff does not claim that the accident form is being used by SP/UP to establish such a defense. Even if § 55 were generally applicable, strong policy grounds exist for not finding a violation of its mandates here. In Gust v. Soo Line Railroad Co., 942 F. Supp. 408 (E.D.Wis. 1996), the court declined to find a violation of § 55 where plaintiff argued that a railroad's attempt to conduct an investigatory hearing of workplace violations was a "device" because such a finding would lead to "inappropriate circumstances." Id. at 411. "Employees would be able to circumvent all investigations, hearings, and disciplinary proceedings by going to federal court with a FELA claim." Id. Here, plaintiff has provided the court with no evidence that SP/UP is doing anything more than following the procedures set forth in the collective bargaining agreement.
3. Attack on Railroad Retirement Board's Authority
Plaintiff fails to indicate how the personal injury form, which merely seeks information about the accident, interferes with the Board's determination that plaintiff is permanently disabled. The form does not attempt to make an independent determination that plaintiff is permanently disabled. Indeed, the form merely asks the nature of plaintiff's injury, whether plaintiff was examined by a doctor, whether plaintiff was hospitalized, and whether plaintiff was able to return to work on his next work assignment. SP/UP represents that the form is used to assist it in making a required monthly report of railroad accidents to the Federal Railroad Administration. Plaintiff's charge of interference with the jurisdiction of the Board is unavailing.
D. Harm
As a final matter, the court notes that plaintiff has failed to establish that he will suffer harm if the court denies his request for injunctive relief or a protective order.
Although plaintiff is not currently working due to his disability, he is still entitled to fringe benefits. Plaintiff alleges that if he is required to attend the disciplinary hearing, he will be terminated from his position on the Seniority Roster, which would deprive him of fringe benefits in the form of medical and dental insurance coverage. However, plaintiff submits no evidence in support of his claim that termination from the Seniority Roster is likely to result from a disciplinary hearing.
The letter notifying plaintiff that he must attend the hearing states that he has violated Rule 1.6 of the General Code of Operating Rules and that the hearing will constitute a "formal investigation to develop the facts and place responsibility, if any, in connection with this alleged violation." (Pl.'s Ex. 42). Plaintiff fails to submit a copy of Rule 1.6 from which the court could determine whether a violation is likely to result in termination.
Moreover, plaintiff still enjoys the rights and privileges of the collective bargaining agreement and the representation of a strong Union to protect him from any violations on the part of his employer. There is no reason for this court to step in at this stage of the proceedings to protect him from any anticipated termination or other discipline that might or might not occur sometime in the future. Accordingly, plaintiff has not made the requisite showing of harm.
IT IS THEREFORE ORDERED that plaintiff's ex parte request for a temporary restraining order, preliminary injunction, protective order, sanctions, and initiation of contempt proceedings be, and the same hereby is, DENIED.