i. background a. factual allegations · 2019. 10. 22. · contains trade secrets of seller. in...

A072A

(Rev.8/8

IN THE UNITED STATES DISTRICT COURT FOR THE NORTHERN DISTRICT OF GEORGIA

ROME DIVISION

CHRISTOPHER GARY SWOOPE,

Plaintiff, v. CIVIL ACTION FILE NO.:

4:13-CV-0307-HLM

CSX TRANSPORTATION, INC.,

Defendants.

ORDER

This case is before the Court on Defendant's Motion for

Protective Order [37] and on Plaintiff's First Motion to

Compel ("Motion to Compel) [39].

I. Background

A. Factual Allegations

Defendant is a railroad corporation organized under the

laws of the Commonwealth of Virginia, with its principal

Case 4:13-cv-00307-HLM Document 54 Filed 08/13/14 of 26

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place of business located in Jacksonville, Florida. (Compl.

(Docket Entry No. 1) 1{ 2.) Plaintiff worked for Defendant as

an Engineer on Defendant's railroad in McMinn County,

Tennessee. (kL.1J 5.) This Court maintains jurisdiction over

the instant action pursuant to the Federal Employers'

Liability Act, 45 U.S.C. § 51 et seq (id. 1J 1 ), and because

the incident that necessitated the instant action occurred on

railroad tracks in Ranger, Georgia (see Joint Motion to

Transfer (Docket Entry No. 7) at 1 ).

Plaintiff alleges, in relevant part:

On or about April 28, 2013, while acting within the scope of his employment as an Engineer with Defendant, which duties_ were related and necessary to and substantially affected the conduct of interstate commerce by Defendant, Plaintiff was caused to be injured because of the negligence of Defendant and its agents and because of the wrongful conduct of Defendant and

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its agents in providing Plaintiff with an unsafe place to work that included, but was not limited to:

a. Failing to maintains [sic] its rights of way so as to prevent trees from falling and blocking the track;

b. Failing to maintain vegetation so that it did not interfere with trackside duties;

c. Failing to train Plaintiff relating to his personal safety to insure he knew how to react to an event like a tree blocking the track;

d. Failing to inspect the tracks to insure that they were safe for use by freight trains;

e. Requiring Plaintiff to work on a railroad track that was blocked by vegetation.

(Com pl. 1J 6.) Plaintiff contends that these negligent acts

violated Defendant's duties under 45 U.S.C. § 51, "FRA

Safety regulations including 49 C.F.R. § 213.37," and "49

C.F.R. § 230.123 relating to [] Defendant's duties to train

engineers for their personal safety." (kl)

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Plaintiff states that, as a result· of these violations,

"Plaintiff was caused to be seriously injured because his

train collided with a tree that was blocking the tracks and he

lacked the training necessary to allow him to attain a

position of safety in a safe manner." (Com pl. 1J 7.) Plaintiff

alleges that Defendant's actions amount to negligence per

seas well as negligence as a matter of fact. (kL 1J 8.) Based

on these allegations, Plaintiff requests damages, costs, and

such other and further relief as the Court deems just and

proper. (kL at 4.)

B. Procedural Background

Plaintiff filed the instant lawsuit on October 15, 2013, in

the United States District Court for the Eastern District ,of

Tennessee. (Docket Entry No. 1.) The case was transferred

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to this Court pursuant to a December 16, 2013, Order

granting the Parties Joint Motion to Change Venue. (See

Order of Dec. 16, 2013 (Docket Entry No. 9) at 1.)

On July 10, 2014, Defendant filed its Motion for

Protective Order (Docket Entry No. 37), and Plaintiff filed his

Motion to Compel (Docket Entry No. 39). The briefing

process for those Motions is now complete, and the Court

consequently finds the Motions ripe for resolution.

II. Defendant's Motion for Protective Order

A. The Parties' Positions

Defendant's Motion for Protective Order concerns

Plaintiff's requested production of a "LocoCAM" digital video

recording and the data imbedded in or collected alongside

that recording (collectively, the "Recording"). (See generally

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Br. Supp. Mot. Protective Order (Docket Entry No. 37-1) at

1-5.) The Recording contains not only video of the incident

in question, but also several data elements, such as "speed,

horn, direction, bell, and emergency brake application." (kt.

at 2.) In order to access the recording in its native

format-the format in which both the data and the video

images are accessible-the would-be viewer must purchase

an $800.00 software program (the "GE Software") from

General Electric, the manufacturer of the equipment that is

affixed to Defendant's trains and that created the Recording

in the first place. (kt. at 3-4.)

Plaintiff asserts that Defendant must either produce the

Recording in a "reasonably usable format, such as .avi,"

provide a computer pre-loaded with the video and the

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required software, or reimburse Plaintiff for any costs

associated with Plaintiff's purchase of the GE Software.

(Resp. Mot. Protective Order at 3.) However, Defendant

contends that it is unable to produce the video in a modified

format, as such production would violate its licensing

agreement with General Electric. (Br. Supp. Mot. Protective

Order at 5-8.) Further, Defendant asserts that it is not

responsible for funding Plaintiff's lawsuit, and therefore

should not be forced to purchase the GE Software for

Plaintiff. (kl at 8-20.)

8. Discussion

The Court is unconvinced that Defendant's agreement

with General Electric definitively prohibits Defendant from

producing the Recording, or at least the video portion of the

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Recording, to Plaintiff in a usable form. Defendant cites to

Paragraph 11.4 of the "Standard Terms and Conditions of

Sale" between General Electric and Defendant (the "Sales

Agreement"). (See Br. Supp. Mot. Protective Order.) That

section, as cited by Defendant, states:

Buyer may not distribute copies of the Data to others or electronically transfer the Data from one computer to another over a network. The Data contains trade secrets of Seller. In order to protect such trade secrets, Buyer may not decompile, reverse engineer, disassemble, or otherwise reduce the software to a human-perceivable form. BUYER MAY NOT MODIFY, ADAPT, TRANSLATE, RENT, LEASE, LOAN, RESELL FOR PROFIT OR OTHER PURPOSE, DISTRIBUTE, NETWORK, OR CREATE DERIVATIVE WORKS BASED UPON THE DATA OR ANY PART THEREOF. Seller and Buyer acknowledge that the Data is protected by copyright, trade secret, and patent laws of the United State of America (and by applicable international treaties).

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(Aff. of Joshua Wildharber Ex. A (Docket Entry No. 37-2) 1J

11.4. (capitalization in original)) However, Defendant does

not cite to the definition of "Data," which appears in the

same section as the above excerpt. It states:

As used in these terms and conditions, the term "Data" means all information and data of any type, form or nature (including but not limited to, designs, drawings, blueprints, tracings, plans, models, layouts, Software, User Documentation, specifications, technical publications, electronic transmittals, customer website data and memoranda) which may be furnished or made available to [Defendant], directly or indirectly, as the result of the [Sales Agreement].

(kl 1J 11 . 1 . )

This definition of Data, and indeed the Sales

Agreement as a whole, indicates a concern with

unauthorized modification of the recording equipment and

the GE Software itself, not that Defendant may pull the

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...,,

video recording for attorneys to view as part of ongoing

litigation. Indeed, there is no indication that the Recording

was "furnished" to Defendant as part of the Sales

Agreement. Further, the Court fails to see how any "trade

secrets" could be lost through the provision of an .avi video

file to Plaintiff. 1 Consequently, the Court cannot find that

Defendant's production of the video portion of the

Recording would violate Defendant's contracts with General

Electric.

Defendant cites to Peterson v. Union Pac. R.R. Co.,

No. 06-3084, 2007 WL 3232501 (C.D. Ill. Nov. 1, 2007), for

1The Contract governing use of the GE Software is similarly unconcerned with production of .avi video files to opposing parties in litigation. (See Wildharber Aff., Ex. B (Docket Entry No. 37-2) at 1 (defining "Software" as "GE's LocoCAM Viewer Computer program" and stating that the user shall not modify "the Software").)

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the proposition that courts generally do not compel

defendants to release software in violation of licensing

agreements. (Br. Supp. Mot. Protective Order at 7.)

However, to the extent that an order governing the release

of software is relevant to Plaintiff's instant request for a

video file, Defendant's quotation of that case is deceptive.

While the Court does state that it "will not compel Defendant

to release the software in violation of this [licensing]

agreement," the very next line states that "Defendant must

provide the information contained in the downloads to

Plaintiffs in a reasonably usable form." Peterson, 2007 WL

3232501 at *5. Consequently, to the extent that the

Peterson opinion is relevant, it counsels in favor of requiring

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Defendant to produce the video portion of the Recording in

a reasonably usable form.

Further, on a broader level, even if Defendant's

production of an easily viewable version of the video portion

of the Recording somehow exposed Defendant to breach of

contract liability, that should be Defendant's burden to bear.

Defendant and General Electric certainly foresaw that

LocoCAM recordings would be integral to many lawsuits

filed against Defendants. (See, e.g., Wildharber Aff. Ex. B

'iJ 1 ( e) ("User may allow any member of the judiciary to use

the Software for consideration of any case in which User is

a party.").) However, if Defendant's interpretation of its

contracts with General Electric is correct, then Defendant

essentially negotiated the contract in such a way as to place

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an $800.00 tax on any plaintiff attempting to sue Defendant

over an incident involving operation of a locomotive. Such

a result would be inequitable, and the Court declines to

reward Defendant for negotiating such a contract.

Defendant',s argument that it "has provided reasonable

access for inspection of the [Recording]" by allowing Plaintiff

to view the video at its offices is also unpersuasive. (Mot.

Protective Order at 17.) If the Court required Plaintiff and his

counsel to travel to Defendant's offices every time they

wished to view the Recording, that would surely create an

unfair advantage for Defendant. Further, that advantage

would exist only because of Defendant's contractual

arrangements with General Electric. Plaintiff and Plaintiff's

counsel should have the opportunity to view the video

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portion of the Recording in Plaintiff's counsel's office on

their own time in an environment where they are free to

comment upon, and seek comment upon, what they are

watching without interference from Defendant.

Finally, Defendant's concerns about protecting the

integrity of the video recording are unpersuasive. (See Mot.

Protective Order at 21-23; see also id. at 7 ("[T]he

proprietary nature of the software exists to protect the

integrity of the digital video recorder as an unbiased and

objective observer of the events that transpired.").) To the

extent that Defendant is concerned that Plaintiff will show an

altered version of the video recording to the jury should this

case go to trial, the Court will ensure that the video shown

comes from Defendant's original version of the Recording.

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To the extent that Defendant is concerned that Plaintiff's

counsel will upload the video portion of the Recording to the

internet or show it to potential jurors, such concerns could

apply to any unflattering piece of evidence provided as part

of any lawsuit. The Court must trust that Plaintiff's counsel,

and all counsel who are members of the bar of this Court,

will not act recklessly with information gained through

litigation discovery. Further, the Court cannot find that a

video of a train rolling down the tracks is any more sensitive,

or of any more interest to the internet accessing public, than

the other kinds of evidence that are uneventfully produced

in lawsuits before this Court on a daily basis.

Consequently, for all the above reasons, the Court

denies Defendant's Motion for Protective Order. Defendant

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must either: (1) produce the video portion of the Recording

to Plaintiff in a reasonably viewable form, such as .avi, or

(2) if Defendant truly fears suit from General Electric,

provide Plaintiff with the software necessary to view the

Recording.

Ill. Plaintiff's Motion to Compel

A. The Parties' Positions

Plaintiff's Motion to Compel concerns Plaintiff's request

to inspect the area of Defendant's tracks where Plaintiff was

allegedly injured. (See generally Pl.'s Mot. Compel (Docket

Entry No. 39; see also Pl.'s Request Inspect Track (Docket

Entry No. 39-1 ); Def.'s Resp. Pl.'s Request Inspect Track

(Docket Entry No. 39-2).) Though there are apparently other

issues that must be resolved concerning that inspection,

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Plaintiff states that "the only issue in this [M]otion is []

Defendant's demand that all participants in the inspection

sign a Covenant Not to Sue I Release I Waiver of Rights

[(the "Waiver")]." (Pl.'s Mot. Compel at 3-4 (internal

quotation marks and citation omitted).) Plaintiff asserts that

execution of the Waiver would mean that Defendant "owes

no duty to exercise even the most ordinary care not to injure

or kill him during the inspection." (kl at 4.) Plaintiff further

contends that the Waiver is an inappropriate limitation on

discovery, and requests an Order from the Court permitting

Plaintiff and his counsel to inspect the accident site without

signing the Waiver. (kl at 15.)

Defendant's response takes issue with Plaintiff's

characterization of the Waiver. Defendant states that the

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... ,

Waiver "is solely intended to prevent [Defendant] from

becoming embroiled in a second litigation regarding the

same section of track if an incident occurred that was not

caused by [Defendant]." (Def.'s Resp. Pl.'s Mot. Compel

(Docket Entry No. 40) at 3.) Further, Defendant asserts that

the Waiver "is a reasonable precaution taken by [Defendant]

to ensure Plaintiff's personnel are required to follow

[Defendant's] safety precautions and provides recourse in

the event Plaintiff's personnel act negligently." (kl)

B. Application

The Parties' primary dispute in the instant Motion

concerns their differing interpretations of the Waiver. The

portion of the Waiver covering Defendant's liability states:

For and in consideration of authorization by [Defendant] for the undersigned to come onto the

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property of [Defendant] for the limited purpose of instruction in and observation and inspection of [Defendant's] property to include an on the ground inspection 50 feet from the center of the track for 200 feet in each direction from where the tree fell at or near milepost 00c396 at Ranger, Georgia, the undersigned and his/her heirs, assigns and legal representatives do hereby release, forever discharge and covenant and agree not to sue [Defendant] or any of its officers, directors, agents, employees, representatives or any additional parent, corporation, divisions, subsidiaries, successors, assigns or related companies from and for whatsoever kind and nature, arising from any and all known and unknown consequences thereof, resulting from said undersigned being present on the property of [Defendant], or from the undersigned's presence regardless of whether such claims arise out of bodily and personal injuries or property damage caused by the sole negligence of [Defendant], the combined negligence or otherwise of [Defendant] and other person or entity including the undersigned or from any cause whatsoever.

(Waiver (Docket Entry No. 39-3) ~ 4.)

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Inspection of the above clause reveals that Defendant's

interpretation of the Waiver is wrong. Defendant asserts that

the Waiver is designed only to prevent lawsuits against

Defendant arising from accidents that are due to the injured

parties own negligence or are otherwise "not caused by

[Defendant]." (Def.'s Resp. Pl.'s Mot. Compel at 2-3.)

However, the Waiver clearly states that the undersigned

waives all claims against Defendant, even if caused by

Defendant's "sole negligence." (Waiver1J 4.) While perhaps

the Waiver does not give Defendant license to intentionally

injure Plaintiff and his counsel, there is little doubt that it

attempts to remove from Defendant the obligation to

exercise ordinary care toward Plaintiff and his

representatives inspecting the accident site.

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Further, Defendant's concern that, without the waiver,

Defendant could be "forced to face repeated potential

lawsuits based on possible negligent acts by Plaintiff's

personnel," or that Plaintiff's failure to sign the waiver would

make Defendant "the insurer for all of Plaintiff's actions

during [the] investigation" are overblown. (Def.'s Resp. Pl.'s

Mot. Compel at 6-7.) Even without the execution of the

Waiver, Defendant owes Plaintiff, at most, a duty of ordinary

care. See O.C.G.A. § 51-3-1 ("Where an owner or occupier

of land, by express or implied invitation, induces or leads

others to come upon his premises for any lawful purpose,

he is liable in damages to such persons for injuries caused

by his failure to exercise ordinary care in keeping the

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premises and approaches safe.").2 Indeed, though

Defendant asserts that "Plaintiff requests being given a

special status for this investigation" (Def. 's Resp. Pl. 's Mot.

Compel at 11 ), it appears to the Court that Plaintiff only

requests the status quo under Georgia law. The Waiver, on

the other hand, attempts to confer a special, lower status to

Plaintiff and his representatives while inspecting

Defendant's tracks.

Finally, though Defendant asserts that the Waiver, at

least in part, "protects the safety of Plaintiff while on railroad

property" (Def.'s Resp. Pl.'s Mot. Compel at 4), it does not

appear that Plaintiff objects to the safety requirements of

2Plaintiff may even be a licensee, in which case Defendant would only be liable for "willful or wanton injury." O.C.G.A. § 51-3-2. However, the Court need not, and does not, make a ruling as to whether Plaintiff would be an invitee or licensee.

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the Waiver (see Pl.' Reply. Supp. Mot. Compel (Docket

Entry No. 43) at 3 ("There is no dispute with respect to

wearing safety equipment." (emphasis omitted))).

Consequently, the Court directs that, prior to entering

Defendant's property, Plaintiff may be forced to sign a

covenant containing only the portion of the Waiver referring

to safety equipment (see Waiver1{ 3), and that Plaintiff must

obey all safety related instructions from Defendant's

personnel while conducting the site inspection.

C. Attorney's Fees

Plaintiff requests and award of attorney's fees in

connection with his Motion to Compel. (See Pl.'s Mot.

Compel at 14-15.) Federal Rule of Civil Procedure

37(a)(5)(A) provides:

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If the motion is granted--or if the disclosure or requested discovery is provided after the motion was filed--the court must, after giving an opportunity to be heard, require the party or deponent whose conduct necessitated the motion, the party or attorney advising that conduct, or both to pay the movant's reasonable expenses incurred in making the motion, including attorney's fees. But the court must not order this payment if:

(i) the movant filed the motion before attempting in good faith to obtain the disclosure or discovery without court action; (ii) the opposing party's nondisclosure, response, or objection was substantially justified, or (iii) other circumstances make an award of expenses unjust.

Fed. R. Civ. P. 37(a)(5)(A). Here, neither party is able to cite

anything close to controlling authority on the Waiver issue,

and though the Court disagrees with Defendant's position,

it cannot say Defendant's position was completely

unjustified. Consequently, the Court declines to award

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attorney's fees, and that portion of Plaintiff's Motion to

Compel is denied.

IV. Conclusion

ACCORDINGLY, Defendant's Motion for Protective

Order [37] is DENIED. Defendant is DIRECTED to, WITHIN

FOURTEEN (14) DAYS OF THIS ORDER, either: (1)

provide the video portion of the Recording to Plaintiff in a

reasonably usable form, such as the .avi format, or (2)

provide Plaintiff with the means to view the Recording in its

original form. Plaintiff's Motion to Compel [39] is GRANTED

IN PART AND DENIED IN PART. Defendant is DIRECTED

to allow Plaintiff and his representatives to perform the

requested site inspection without signing the liability portion

of the Waiver, however Plaintiff and his representatives are

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DIRECTED to follow any safety related precautions

promulgated by Defendant while they are on Defendant's

property. Plaintiff's request for fees contained within his

Motion to Compel [39] is DENIED. /,

IT IS SO ORDERED, this the J3day of August, 2014.

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i. background a. factual allegations · 2019. 10. 22. · contains trade secrets of seller. in...

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