Todd Smith-Bunge v. Wisconsin Central, Ltd.

Wisconsin Central, Ltd. terminated Todd Smith-Bunge. He sued for unlawful

retaliation under the Federal Railroad Safety Act. 49 U.S.C. § 20109. The district

court1 granted summary judgment to Wisconsin Central. Smith-Bunge appeals that

decision and two discovery rulings. Having jurisdiction under 28 U.S.C. § 1291, this

court affirms.

In 2013, Wisconsin Central suspended Smith-Bunge. He sued for unlawful

retaliation under the FRSA. He prevailed on summary judgment on October 8, 2014.

Smith-Bunge v. Wisconsin Central, Ltd., 60 F. Supp. 3d 1034 (D. Minn. 2014).

Three weeks earlier, Smith-Bunge inspected his truck for faulty brakes. Later, he

accidentally drove his vehicle into a train’s path despite knowing the train had been

cleared to continue on the tracks. After the accident, he completed an injury report,

writing that his truck’s brakes malfunctioned, causing the crash. Wisconsin Central

hired an expert, Michael W. Rogers, to investigate Smith-Bunge’s vehicle. Rogers

found that the brakes allowed Smith-Bunge to stop. He concluded Smith-Bunge was

the sole cause of the crash. Wisconsin Central terminated Smith-Bunge for violating

four rules: safety; alert and attentiveness; alert to train movement; and furnishing true

information.

Smith-Bunge sued for unlawful retaliation, arguing Wisconsin Central

retaliated against him for three acts: his 2013 lawsuit, his 2014 report of faulty

brakes, and his 2014 report of injury. The district court granted Wisconsin Central

summary judgment, concluding Smith-Bunge failed to make a prima facie case.

Smith-Bunge appeals the summary judgment. He also challenges the district

court’s denial of his motion to compel testimony from Rogers and its grant of

Wisconsin Central’s motion for protective order for its counsel, Constance Valkan.

This court reviews for abuse of discretion a district court’s discovery rulings. See

Jackson v. Allstate Ins. Co., 785 F.3d 1193, 1202 (8th Cir. 2015).

1 The Honorable Paul A. Magnuson, United States District Judge for the

District of Minnesota.

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I.

Smith-Bunge sought the draft drawings of the accident scene and draft expert

reports by Michael Rogers, the crash expert hired by Wisconsin Central. Smith-

Bunge also sought Rogers’s communications with Wisconsin Central’s counsel,

Julius Gernes.

Smith-Bunge acknowledges that an expert’s materials are protected under

Federal Rule of Civil Procedure 26(b)(4). See Fed. R. Civ. P. 26(b)(4)(B), (C)

(protecting “drafts of any report or disclosure required” of an expert as well as

“communications between the party’s attorney and any [expert] witness”). He argues

that Rogers is not an expert witness but only an ordinary witness.

If an expert’s “information was not acquired in preparation for trial but rather

because he was an actor or viewer with respect to transactions or occurrences that are

part of the subject matter of the lawsuit . . . [the witness] should be treated as an

ordinary witness.” Fed R. Civ. P. 26(b)(4), advisory committee’s note to 1970

Amendments. On September 19, 2014, a day after the crash, Smith-Bunge’s counsel

asked Wisconsin Central to place a litigation hold. A month later, Wisconsin Central

retained Rogers to provide “litigation support.” Rogers then investigated the crash

and prepared recommendations. The district court did not abuse its discretion in

concluding Rogers acquired the information in preparation for trial, so he was an

expert witness whose work is protected under Rule 26(b)(4). See Simon v. G.D.

Searle & Co., 816 F.2d 397, 401 (8th Cir. 1987), quoting 8 C. Wright and A. Miller,

Federal Practice and Procedure § 2024, at 198-99 (1970) (“[T]he test should be

whether, in light of the nature of the document and the factual situation in the

particular case, the document can fairly be said to have been prepared or obtained

because of the prospect of litigation.”).

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II.

The district court did not abuse its discretion in blocking a deposition of

Wisconsin Central’s counsel, Constance Valkan, about her conversations with other

employees and whether Smith-Bunge’s employment record caused his termination.

Smith-Bunge believes the district court should have applied this court’s test

from Pamida, Inc. v. E.S. Originals, Inc., 281 F.3d 726 (8th Cir. 2002). Pamida

permits deposing an opposing counsel if a party “seeks relevant information uniquely

known by [the] attorneys about prior terminated litigation, the substance of which is

central to the pending case.” Id. at 731. Pamida, an indemnification lawsuit,

addressed two questions: were the prior case’s attorneys’ fees reasonable, and what

actions did counsel take in the prior case to provide indemnification notice to

plaintiff? Id. Both answers were “peculiarly within counsel’s knowledge.” Id.

Further, the party seeking recovery for legal expenses put the attorneys’ work

“directly at issue,” which waived attorney-client privilege. Id. Smith-Bunge, on the

other hand, wants to discover whether Valkan spoke with other Wisconsin Central

employees about Smith-Bunge’s 2013 lawsuit and whether his prior suspension

motivated his termination. Neither piece of information is peculiarly within counsel’s

knowledge, nor did Wisconsin Central waive privilege. Pamida does not apply here.

Instead, Shelton applies. See Shelton v. American Motors Corp., 805 F.2d

1323 (8th Cir. 1986). A party may depose an opposing counsel if the information

sought is: (1) not available through other means; (2) relevant and nonprivileged; and

(3) crucial to the preparation of the case. Id. at 1327.

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Smith-Bunge does not meet the first and second factors. First, he had other

means to discover whether Valkan spoke with other employees and whether a past

suspension motivated the termination. As the district court found, he could ask other

employees. Smith-Bunge suspects that because other employees had “selective

amnesia” during their depositions, he needs to depose Valkan. To the contrary, a

party cannot depose opposing counsel to explore suspicions about opposing

witnesses. See Shelton, 805 F.2d at 1327-28 (rejecting deposition where “plaintiffs’

counsel indicated that he was asking [counsel] these questions to determine whether

[defendant] had in fact truthfully and fully complied with his document requests and

interrogatories”).

Second, the information is privileged. Smith-Bunge does not identify any

statements from Valkan outside of the attorney-client privilege. Nor does he attempt

to narrow his inquiry to respect the privilege. He argues this case is like prior cases

attaching no privilege when an attorney “act[ed] merely as a conduit for the client’s

funds; as a scrivener for the client; or as a business adviser.” United States v.

Horvath, 731 F.2d 557, 561 (8th Cir. 1984) (citations omitted). Valkan swore: all

of her “communications with Wisconsin Central’s managers have been strictly in my

capacity as counsel for Wisconsin Central for the purpose of providing legal advice”;

she provides legal advice regarding employment-related issues; and she does not

make business decisions. Smith-Bunge does not provide facts that counter this

testimony or characterize Valkan as a conduit of funds, a scrivener, or a business

adviser. Cf. Horvath, 731 F.2d at 561 (not applying attorney-client privilege when

attorney admitted “he functioned primarily as a courier” of illegally-obtained funds

and performed such acts prior to passing bar examination); Simon, 816 F.2d at 402-

04 (upholding denial of privilege to documents that did not seek legal advice, but

were provided to counsel).

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The district court did not abuse its discretion in granting Wisconsin Central’s

motion for a protective order.

III.

This court reviews de novo a district court’s grant of summary judgment

viewing genuinely disputed facts “in the light most favorable to the nonmoving

party.” Torgerson v. City of Rochester, 643 F.3d 1031, 1042 (8th Cir. 2011) (en

banc), quoting Ricci v. DeStefano, 557 U.S. 557, 586 (2009). If the record taken as

a whole could not lead a rational trier of fact to find for the nonmoving party,

summary judgment should be granted. Torgerson, 643 F.3d at 1042, citing Ricci, 557

U.S. at 586.

The district court properly granted summary judgment to Wisconsin Central

because Smith-Bunge did not make a prima facie case of retaliation under the FRSA.

He did not show “the circumstances raise an inference that the protected activit[ies]

[were] a contributing factor in [his termination].” Blackorby v. BNSF Railroad Co.,

849 F.3d 716, 720 (8th Cir. 2017), quoting Kuduk v. BNSF Railroad Co., 768 F.3d

786, 789 (8th Cir. 2014).

“[T]he contributing factor that an employee must prove is intentional retaliation

prompted by the employee engaging in protected activity.” Kuduk, 768 F.3d at 791.

See also Blackorby, 849 F.3d at 722 (the “essence” of FRSA is “discriminatory

animus”). “[A plaintiff] therefore must demonstrate more than a mere factual

connection between his [protected activity] and his discipline in order to establish a

prima facie case under the contributing-factor standard.” Heim v. BNSF Ry. Co., 849

F.3d 723, 727 (8th Cir. 2017).

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Smith-Bunge does not raise an inference of intentional retaliation prompted by

any of his three acts: (1) filing the 2013 lawsuit, (2) reporting the injury from the

2014 collision, and (3) reporting the brake failure that caused the 2014 collision. In

fact, his briefing does not mention the Kuduk “intentional retaliation” standard.

Further, no reasonable fact finder could infer a retaliatory motive. For the 2013

litigation, Smith-Bunge emphasizes two facts: six days after he won summary

judgment, Wisconsin Central hired Rogers to investigate the 2014 collision, and

Wisconsin Central did not terminate workers involved in other accidents. Hiring

Rogers to investigate the accident, by itself, does not indicate animus or intentional

retaliation. The short lapse between Smith-Bunge’s success in summary judgment

and Rogers’s hiring is insufficient. See Kuduk, 768 F.3d at 792. The 2013

litigation—involving a prior suspension—“was completely unrelated” to the 2014

crash, so the crash is an “intervening event that independently justified” his

termination. Id. For the differential treatment, Smith-Bunge does not provide enough

details about the other crashes to determine if they were of the same magnitude.

Critically, based on the facts he furnishes, none of the workers in the other crashes

provided false information (as Smith-Bunge did).

For the 2014 reporting of injury and brake failure,2 Smith-Bunge produces no

evidence of retaliatory motive. He relies on testimony from two Wisconsin Central

employees that if he had not falsely reported the brake failure, he would not have

violated the rule to furnish true information and, therefore, possibly not been

terminated. He concludes from this testimony that his act of reporting caused the

2 Smith-Bunge erroneously argues that Wisconsin Central moved for summary

judgment as to his prior litigation, but not his other two acts. In its motion to the

district court, Wisconsin Central listed all three acts, arguing he failed to show any

act was a contributing factor to his termination.

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termination. It did not. His falsehoods in the report, substantiated by Rogers’s

examination of his truck’s brakes after the crash, contributed to his termination.

Smith-Bunge did not make a prima facie case of retaliation under the FRSA.

The judgment is affirmed.