Judge Orders Plaintiff To Produce Telephone Records Citing Lack Of Viable Privilege Claim

5 Jul 2019

In Siemers v. BNSF Railway Co., No. 8:17-cv-360 (D. Neb. Apr. 8, 2019), the Magistrate Judge ordered Plaintiff to produce his telephone records after finding that such records were not subject to a privilege claim solely because Plaintiff’s counsel’s telephone number may appear in the records and that the privacy issues are minimal to non-existent (since the at-issue records did not contain the substance of the communications).

The case was brought by Plaintiff against his former employer alleging violations of the Federal Employers Liability Act. Defendant requested production of Plaintiff’s cellular records from the day prior to Plaintiffs alleged injury to the present. At a discovery conference, the Court found that Plaintiff’s communications with coworkers or others and telephone records evidencing the same were relevant and discoverable.

Following the conference, Plaintiff obtained from his cellular phone provider a list of incoming and outgoing calls and text messages. However, Plaintiff refused to produce the telephone records to Defendant.

At the final pretrial conference, Defendant argued that the records were discoverable because the frequency in which Plaintiff communicated with Defendant’s employees since the alleged injury could have credibility considerations, that the fact that a communication occurred between Plaintiff and his attorney was not privileged, and finally, that no privacy interest was implicated in the call logs because the records did not contain the substance of the conversations.

The Court ruled as follows:

  1. “Plaintiff’s telephone records from November 1, 2016 to present and any other records received by Plaintiff in response to his subpoena to his cellular telephone provider are discoverable pursuant to Fed. R. Civ. P. 26. BNSF is entitled to discover whether and how often Plaintiff has communicated with coworkers or BNSF management since his alleged injury.
  2. The fact that Plaintiff’s counsel’s telephone number may appear in the records does not render them subject to a privilege claim. Plaintiff may redact references to communications between Plaintiff and Plaintiff’s counsel, which the Court finds is not overly burdensome.
  3. Privacy considerations of Plaintiff or third parties not involved in this litigation are minimal to non-existent since the at-issue records do not contain the substance of communications.”

As a result, the Court ordered Plaintiff “to produce to [defendant] all records received in response to plaintiff’s subpoena to his cellular telephone carrier” within one week of the order, noting that Plaintiff could “redact references to communications between Plaintiff’s counsel and plaintiff (but is not required to do so to maintain privilege claims regarding the substance of the communications).”