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ORDER GRANTING

MOTION TO COMPEL - 1

UNITED STATES DISTRICT COURT

WESTERN DISTRICT OF WASHINGTON

AT SEATTLE

WILLIAM A. KOCH, 

Plaintiff,

v.

THE BURLINGTON NORTHERN &

SANTA FE RAILWAY COMPANY,

Defendant.

Case No. C05-1989RSL

ORDER GRANTING 

MOTION TO COMPEL

I. INTRODUCTION

This matter comes before the Court on a motion to compel filed by plaintiff William

Koch. (Dkt. #15). Plaintiff seeks to compel the defendant, The Burlington Northern & Santa Fe

Railway Company (“BNSF”) to fully answer his interrogatories and requests for production and

to provide witnesses for Rule 30(b)(6) depositions. Plaintiff also requests that the Court allow

him additional time to conduct discovery and assess costs and attorney’s fees against BNSF.

For the reasons set forth below, the Court grants the motion.

II. DISCUSSION

A. Background Facts.

Plaintiff alleges that he was hit by a train car and seriously injured while working as a

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ORDER GRANTING

MOTION TO COMPEL - 2

brakeman for BNSF. He filed his complaint on November 30, 2005 asserting a claim under the

Federal Employers’ Liability Act (“FELA”), 45 U.S.C. § 51 et seq.

On March 16, 2006, plaintiff served on BNSF his First Interrogatories and Requests for

Production. On the same date, plaintiff requested that defendant file an answer to his complaint

to avoid default. BNSF belatedly filed its answer on April 17, 2006. By letter dated April 19,

2006, plaintiff’s counsel, George Kargianis, sent a letter to defense counsel requesting the

overdue discovery responses and seeking to coordinate the scheduling of Rule 30(b)(6)

depositions on three listed topics. Plaintiff’s counsel received no response to the letter. On June

12, 2006, Mr. Kargianis sent another letter to defense counsel noting that three months had

passed since he served plaintiff’s discovery requests, he had not received any response to the

discovery requests or his request to take Rule 30(b)(6) depositions, and the discovery deadline

was less than two months away. He requested responses by the end of the week. Mr. Kargianis

received no response to the letter. In June 2006, Mr. Kargianis spoke with defense counsel,

Kevin MacDougall, about the overdue discovery responses and plaintiff’s request to take the

Rule 30(b)(6) depositions. The parties agreed to stipulate to extend the deadlines for expert

witness disclosures, discovery, and dispositive motions; the Court approved the stipulation.

Plaintiff’s counsel sent a third letter on June 21, 2006 requesting a Local Rule 37

conference on June 27, 2006. On that day, Mr. MacDougall informed plaintiff’s counsel that he

was on his honeymoon and did not have an opportunity to finalize the responses before he left;

he promised the responses within two weeks. On July 28, 2006, after another month had passed

without receiving discovery responses, counsel had a telephone conference during which Mr.

MacDougall promised responses by July 31, 2006. Plaintiff’s counsel served Rule 30(b)(6)

deposition notices on August 2, 2006 for depositions on August 30, 2006. 

Defendant provided its discovery responses on August 3, 2006. Plaintiff’s counsel sent

defense counsel a letter dated August 23, 2006 challenging the sufficiency of the responses. For

example, plaintiff’s counsel noted that in response to its requests for information and documents

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ORDER GRANTING

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regarding any company investigation into plaintiff’s accident, BNSF responded that an

investigation occurred and it would supplement the response “as discovery continues.” 

Declaration of George Kargianis (Dkt. #17), Ex. 16. Neither defense counsel nor any witnesses

appeared for the depositions scheduled for August 30, 2006. On that date, plaintiff’s counsel

Kristen Fisher called Mr. MacDougall regarding defendant’s failure to designate Rule 30(b)(6)

witnesses. Declaration of Kristen Fisher (Dkt. #16) at ¶ 2. Mr. MacDougall responded that he

never saw the deposition notices but would follow up with his client for designations. Ms.

Fisher reiterated her requests in a telephone conference on September 5, 2006. On September

14, 2006, Mr. MacDougall informed Ms. Fisher that he had not been able to determine dates for

the Rule 30(b)(6) depositions and had not been able to supplement the discovery responses. 

Plaintiff filed this motion on September 14, 2006. The discovery deadline was September 21,

2006. 

After plaintiff filed this motion, on September 19, 2006, defendant finally offered dates

for the Rule 30(b)(6) depositions. On September 22, 2006, BNSF served its supplemental

responses to plaintiff’s discovery requests. 

B. Analysis.

Now that defendant has supplemented its responses, it appears that plaintiff is satisfied

with the scope of its responses. Plaintiff did not argue in his reply that the responses are still

incomplete. Accordingly, the Court need not address the sufficiency of the responses. BNSF

has not opposed plaintiff’s request for additional time to take discovery. Plaintiff is entitled to

additional time to conduct discovery related to the belatedly provided discovery responses and to

take the Rule 30(b)(6) depositions. Accordingly, the Court grants plaintiff’s request for an

additional 30 days to conduct discovery. 

Plaintiff requests that the Court impose sanctions for BNSF’s failure to provide discovery

in a timely manner. BNSF’s argument that plaintiff was not prejudiced by the delays is not well

taken. BNSF’s dilatory conduct, including months of unfulfilled promises, forced plaintiff to

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ORDER GRANTING

MOTION TO COMPEL - 4

file a motion to compel to obtain discovery which defendant was undisputedly required to

provide months ago. BNSF’s conduct is not excused by the fact that it finally provided adequate

responses after plaintiff filed this motion. BNSF also argues that its supplementation involved

only “minimal changes.” The changes do not appear minimal. For example, one of the

supplemented responses describes, for the first time, the scope of defendant’s investigation into

plaintiff’s injury. Declaration of Kevin MacDougall (Dkt. #22), Ex. 1 at p. 6. Furthermore,

BNSF’s refusal to provide a witness for a Rule 30(b)(6) deposition forced plaintiff to incur

additional costs and delayed that deposition until after the discovery deadline. BNSF has not

offered any explanation for its failure to appear for the Rule 30(b)(6) deposition scheduled for

August 30, 2006 or for refusing to designate witnesses before plaintiff filed this motion. 

BNSF has provided two excuses for its five-month delay in providing adequate discovery

responses. First, BNSF’s memorandum states that it provided supplemental responses “[s]hortly

after the conclusion of plaintiff’s deposition on September 21, 2006.” BNSF’s Response at p. 2. 

That statement, combined with BNSF’s assertions that it would supplement its responses “as

discovery continues,” suggests that BNSF delayed providing its own discovery until after it had

deposed plaintiff. BNSF was not entitled to delay providing discovery until after it had obtained

plaintiff’s discovery.

Second, Mr. MacDougall explains that in the intervening six months, he got married, took

a honeymoon, and was lead counsel in a five-day trial. Notably, all of those events occurred

months after the deadline for BNSF to serve its responses. Regardless, counsel’s other

professional and personal commitments do not obviate BNSF’s obligation to respond to

discovery in a timely manner in this case. BNSF did not request an extension of time to

respond; instead, it appears to have ignored the requests until plaintiff’s counsel repeatedly

inquired about them. Furthermore, BNSF’s response to this motion lists three attorneys. It has

not explained why the other two attorneys listed could not have provided discovery responses

during Mr. MacDougall’s brief periods of unavailability. 

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1

 Although Mr. Kargianis’ declaration states that he spent 3 hours drafting the motion and

3 hours on communications, his proposed order requests a total of $900 in fees, which would

represent only 3 hours of time. The Court assumes that the representations in the declaration are

correct and that the amount requested in the proposed order is a typographical error.

2

 Plaintiff has not requested reimbursement for Ms. Fisher’s time.

ORDER GRANTING

MOTION TO COMPEL - 5

In sum, BNSF has not shown that its failure to appear for the Rule 30(b)(6) depositions

and provide timely discovery responses was substantially justified, or that other factors would

make the imposition of sanctions unjust. Accordingly, the Court awards plaintiff his reasonable

attorney’s fees and costs incurred in filing the motion to compel. Defendant concedes that

plaintiff is entitled to receive the $130 court reporter’s fee he incurred for the scheduled August

30, 2006 Rule 30(b)(6) deposition. As for the fees, plaintiff’s counsel has explained that he

spent three hours drafting the motion to compel, and three hours “writing letters and making

phone calls” regarding the overdue discovery.1

 Kargianis Decl. at ¶ 25. However, it appears

that Ms. Fisher,2

 not Mr. Kargianis, conducted the telephone conferences. The Court finds that

one hour of time is reasonable for drafting the three letters Mr. Kargianis signed. Accordingly,

the Court assesses fees against defendant in the amount of $1,200 for four hours of Mr.

Kargianis’ time at $300 per hour, and costs in the amount of $130. Defendant must pay the

costs and fees to plaintiff within twenty days of the date of this order. 

III. CONCLUSION

For the foregoing reasons, plaintiff’s motion to compel (Dkt. #15) is GRANTED. 

Plaintiff may have until October 21, 2006 to conduct discovery. If it has not already done so,

defendant must make witnesses available for the Rule 30(b)(6) depositions that plaintiff has

noted. The Court imposes costs and fees on defendant in the amount of $1,330 to be paid to 

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ORDER GRANTING

MOTION TO COMPEL - 6

plaintiff within twenty days of the date of this order.

DATED this 12th day of October, 2006.

A

Robert S. Lasnik

United States District Judge

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