Curtis Rookaird, Plaintiff v. BNSF Railway Company, a Delaware corporation, Defendant NO. C14-176RSL Signed October 29, 2015 Counsel Christopher William Bowman, William G. Jungbauer, Yaeger Jungbauer & Barristers, PLLC, St. Paul, MN, Bradley K. Crosta, Crosta and Bateman, Seattle, WA, for Plaintiff. Andrew Gordon Yates, Gabriel Baker, Tim D. Wackerbarth, Lane Powell PC, Seattle, WA, for Defendant. Lasnik, Robert S., United States District Judge ORDER GRANTING IN PART PLAINTIFF'S SECOND MOTION TO COMPEL AND FOR SANCTIONS *1 This matter comes before the Court on “Plaintiff's Second Motion to Compel Discovery Responses and for Sanctions.” Dkt. # 98.[1] Having reviewed the memoranda, declarations, and exhibits submitted by the parties, the Court finds as follows.[2] DISCUSSION A. Motion to Compel Discovery Responses Plaintiff Curtis Rookaird seeks to compel discovery responses for three categories of documents: attachments to a previously-produced Federal Railroad Administration report, recordings of radio communication from February 23, 2010, and indices of folders and documents on the railroad's shared drives. Dkt. # 98 at 2-5. Each category is addressed below. 1. Attachments to the Federal Railroad Administration Report Rookaird previously moved to compel production of attachments to an Inspection Report filed with the Federal Railroad Administration, noting that the “report included a series of attachments, including but not limited to the railroad's response to the FRA's inspection report, and two BNSF Accident Reports.” Dkt. # 50 at 3. On June 2, 2015, the Court ordered defendant BNSF Railway Company (“BNSF”) to produce these attachments or show cause why they must not be produced. Dkt. # 74 at 4. As of June 25, 2015, when Rookaird filed his second motion to compel, BNSF had neither produced the attachments nor shown cause why they could not be produced. On July 6, 2015 – over a month after the Court's order and the day BNSF filed its response to plaintiff's second motion to compel discovery – BNSF indicated to Rookaird that it had been able to locate the attachments. Dkt. # 102-7. It appears that the sole remaining attachment that defendant has not produced is Attachment H. See Dkt. # 105 at 2; Dkt. # 113 at 3. In its response to plaintiff's second motion to compel, or at any time before filing its response, BNSF did not show cause why Attachment H must not be produced, instead simply stating that “when BNSF recently located the attachments to the FRA report, BNSF produced those materials.” Dkt. # 101 at 2. Accordingly, BNSF is ordered to produce Attachment H. 2. Recordings of Radio Communication from February 23, 2010 *2 Plaintiff sought to compel BNSF to produce recordings of radio communications between himself, his crew, Dan Fort, and/or the dispatcher from February 23, 2010. Dkt. # 98 at 3. On July 8, 2015 – two days before plaintiff's reply in support of his second motion to compel was due – BNSF produced the recordings. Dkt. # 106 at 2. As Rookaird acknowledges, this request is now moot. 3. Shared Drive Indices and Documents Rookaird seeks to compel production of indices and documents on BNSF's secure or shared drives. Dkt. # 98 at 4. Specifically, plaintiff seeks to compel production of documents responsive to three requests: REQUEST FOR PRODUCTION NO. 41: Please produce an index of the items that existed on the secure and/or shared labor relations computer drives as of February 2010. For detail regarding the drive, please see Exhibit 4. REQUEST FOR PRODUCTION NO. 42: Please produce an index of the items that exist on the secure and/or shared drive of the director and/or manager for rules department, if any. For detail regarding this response, please see Exhibit 4. REQUEST FOR PRODUCTION NO. 43: Please produce the documents contained in the following folders on the Northwest Division Secure Drive as they pertain to the Northwest Division, and more specifically Everett, and any other location that give rise to Plaintiff's Complaint (See Exhibit 5 for reference): a. Six safety basics folder b. 2010 Budget folder c. 2010 Olympics folder d. Admin playbooks folder e. Discipline Basics folder f. Everett Terminal Operations Folder g. Goals-Northwest Division folder h. HR Related Items, Policies, etc. folder i. Internal Alerts folder j. NW Mechanical folder k. Operation Testing Data File folder l. Supt. Scorecards folder The Court will not compel production of documents responsive to Request for Production Nos. 41 and 42. Compelling production of these indices after the close of discovery is not reasonably calculated to lead to the discovery of admissible evidence. See Fed. R. Civ. P. 26(b)(1). Had plaintiff sought production of these indices earlier in the litigation, it is possible that a review of the requested indices would have led plaintiff to issue additional discovery requests based on the content of the drives, which may ultimately have led to the discovery of admissible evidence. Plaintiff, however, requested these indices in his third set of requests for production, served on April 24, 2015. Dkt. # 82 at 2. Even if defendant had produced the requested indices in its May 29, 2015, response, Dkt. # 99-1 at 2, plaintiff would not have had time to request the production of additional documents based on the content on the drives before the June 17, 2015, discovery deadline. Dkt. # 58 at 1; LCR 16(b)(2) (requests for production must be served in time so that responses are due before the discovery deadline). Therefore, these requests are not reasonably calculated to lead to the discovery of admissible evidence. The Court will grant in part plaintiff's motion to compel production of documents in response to Request for Production No. 43. While this request is plainly overbroad, the titles of the folders identified in the request suggest that they may contain documents relevant to plaintiff's claims. Accordingly, defendant is ordered to produce any previously unproduced documents that discuss Rookaird, air brake testing or procedures, BNSF's rules, or BNSF's investigation and discipline process in the following folders: Six Safety Basics; Discipline Basics; Everett Terminal Operations; HR Related Items, Policies, etc.; NW Mechanical; Operation Testing Data File; and Supt. Scorecards. BNSF is ordered to either produce these documents or notify plaintiff that it did not locate any previously unproduced documents that fall into the categories specified by the Court on or before November 13, 2015. B. Sanctions *3 Discovery sanctions serve multiple purposes, ranging from coercion and compensation to deterrence and punishment. See, e.g., Falstaff Brewing Corp. v. Miller Brewing Co., 702 F.2d 770, 784 n.10 (9th Cir. 1983). “Rule 37 sanctions must be applied diligently both ‘to penalize those whose conduct may be deemed to warrant such a sanction, [and] to deter those who might be tempted to such conduct in the absence of such a deterrent.’ ” Roadway Express, Inc. v. Piper, 447 U.S. 752, 763-64 (1980) (quoting National Hockey League v. Metropolitan Hockey Club, 427 U.S. 639, 643 (1976)). Rookaird seeks discovery sanctions and identifies three bases granting sanctions: that BNSF failed to comply with a court order, that BNSF did not operate its electronic information system in a routine, good-faith manner, and that BNSF has habitually responded to discovery requests simply by asserting objections. See Dkt. # 98 5-6. While the Court agrees that discovery sanctions are appropriate, its reasons differ somewhat from Rookaird's. Pursuant to Federal Rule of Civil Procedure 37(b)(2)(C), if a party fails to obey an order to provide discovery, the Court “must order the disobedient party, the attorney advising that party, or both to pay the reasonable expenses, including attorney's fees, caused by the failure, unless the failure was substantially justified or other circumstances make an award of expenses unjust.” As discussed above, the Court ordered BNSF to produce the attachments to the FRA report, and BNSF did not produce any additional attachments until the day it filed its response to plaintiff's second motion to compel. Dkt. ## 74 at 4. 102-7. In addition, one of these documents is still outstanding. Dkt. ## 105 at 2, 113 at 3. BNSF's response does not provide a justification for its failure to obey the Court's order, and the Court must award reasonable expenses caused by this failure. Federal Rule of Civil Procedure 37(a)(5)(C) provides that if a motion to compel is granted in part and denied in part, the court may apportion the reasonable expenses for the motion. Here, BNSF did not produce the recordings at issue until plaintiff filed this motion to compel discovery, Dkt. # 106 at 2, an outcome that the rules have contemplated in assessing the payment of expenses. See Fed. R. Civ. P. 37(a)(5)(A) (requiring payment of expenses if requested discovery is provided after the motion was filed). The Court also granted in part plaintiff's request for material contained on BNSF's shared drives. Therefore, the Court will apportion reasonable expenses for the motion. Plaintiff must submit a declaration of its fees and costs incurred in making the second motion to compel by November 6, 2015. Defendant must submit any response by November 13, 2015. CONCLUSION For the foregoing reasons, plaintiff's motion for leave to file motions related to discovery beyond deadline (Dkt. # 82) is GRANTED, plaintiff's motion to strike certain filings by defendant (Dkt. # 131) is GRANTED in part, and plaintiff's motion to compel and for sanctions (Dkt. # 98) is GRANTED in part. Footnotes [1] Prior to filing his second motion to compel discovery responses and for sanctions, plaintiff filed a motion for leave to file motions related to discovery beyond the deadline. Dkt. # 82. Plaintiff's motion is granted to the extent that the Court will consider plaintiff's second motion to compel discovery and for sanctions, Dkt. # 98, which was noted for consideration on July 10, 2015, well beyond the deadline for noting discovery-related motions. See Dkt. # 58. [2] Plaintiff moved to strike defendant's surreply (Dkt. ## 113-15) and supplement to surreply (Dkt. ## 129-30), arguing that they were procedurally and substantively deficient. See Dkt. # 131. The Court will grant plaintiff's motion in part. As requested in defendant's surreply, the Court will not consider plaintiff's discussion on reply regarding the deposition of Robert Johnson. See Dkt. # 113 at 4. The Court has also considered the information regarding the status of disputed discovery set forth in defendant's surreply and supplement to surreply. The Court has not otherwise considered the surreply, supplement to surreply, or supporting declarations and exhibits.