UNITED STATES DISTRICT COURT

NORTHERN DISTRICT OF INDIANA

HAMMOND DIVISION

UNITED STATES OF AMERICA, )

Plaintiff, )

)

v. ) CAUSE NO.:2:15-CV-87-JVB-JEM

)

INDIANA HARBOR BELT RAILROAD )

COMPANY, et al., )

Defendants. )

OPINION AND ORDER 

This matter is before the Court on a Motion for Protective Order that the Deposition of

General Manager Pat Daly not be Taken [DE 15], filed by Defendant Indiana Harbor Belt Railroad

Company on July 20, 2015. Defendant seeks a protective order preventing Plaintiff United States of

America from taking the deposition of general manager Pat Daly. On August 3, 2015, Plaintiff filed

a response and on August 17, 2015, Defendant filed a reply. 

I. Background

On March 9, 2015, the United States filed a Complaint against Defendant Indiana Harbor

Belt Railroad Company and its locomotives, Defendants Indiana Harbor Belt Railroad Company

Locomotive 3801 and 3802, pursuant to the System Unit Resource Protection Act. The United States

seeks damages related to fires in the Indiana Dunes National Lakeshore on March 10, 2012, and

March 11, 2012. The United States alleges that Defendant’s locomotives ejected or deposited hot

carbon cinders as they passed the National Lakeshore.

II. Analysis 

Defendant argues that Daly does not have information relevant to the issues in the case or

reasonably calculated to lead to the discovery of admissible evidence. The United States argues that
Defendant has not show good cause for a protective order. 

Federal Rule of Civil Procedure 26(b) provides: “Parties mayobtain discoveryregarding any

nonprivileged matter that is relevant to any party’s claim or defense. . . Relevant information need

not be admissible at the trial if the discovery appears reasonably calculated to lead to the discovery

of admissible evidence.” Fed. R. Civ. P. 26(b). Federal Rule of Civil Procedure 26(c) allows the

Court, for good cause, to issue an order to protect a party from discovery “from annoyance,

embarrassment, oppression, or undue burden or expense.” Fed. R. Civ. P. 26(c). “The party moving

for a protective order must establish that good cause exists for the Court to exercise its discretion in

entering a protective order.” Nieves v. OPA, Inc., 948 F.Supp. 2d 887, 891 (N.D. Ill. 2013).

Defendant argues that Daly does not have any personal knowledge about the investigation,

that the United States has not explained what relevant information Daly would have, and that there

are less burdensome methods to obtain information. Defendant provides an affidavit of Daly stating: 

I did not conduct any investigation concerning the fires. I did not

interview any witnesses. I did not go to the location where the fire or

fires occurred, I did not inspect any of the locomotives in question.

Additionally I did not interview any of the persons who did inspect

the locomotives, and I did not meet with any representatives of the

Federal Government concerning the fires. 

Def. Mot. Ex. E. ¶4. The United States argues that Daly’s deposition is reasonably calculated to lead

to discovery of admissible evidence since, among other things, he likely has information relevant to

an incident that his company is now addressing in Court and has addressed administratively for the

pat three and a half years. 

The party moving for a protective order has the burden of showing good cause to issue a

protective order. Although, as Defendant argues, discovery must be relevant, it also does not get to

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determine what is relevant the United State’s case. 

The test under Rule 26 is not whether a putative deponent had

personal involvement in an event, or even whether [he] has “direct”

knowledge—which is merely another way of saying that [he] was a

participant in the event—but whether the witness may have

information from whatever source that is relevant to the claim or

defense . . . In short, even if one could accept at face value [the

putative deponent] claim of lack of personal involvement, [his]

affidavit is analytically irrelevant. 

Johnson v. Jung, 242 F.R.D. 481, 483 (N.D. Ill. 2007). In general a putative deponent “cannot escape

examination by denying knowledge of any relevant facts, since the party seeking to take the

deposition is entitled to test the witness’s lack of knowledge.” 8A Charles Alan Wright & Arthur R.

Miller, Fed. Prac. & Proc. Civ. § 2037 (3d ed.). Furthermore, in this matter Defendant does not

claim that Daly has no relevant information, only that he does not have firsthand information in a

recitation of very specific circumstances. The United States should be permitted to make inquiries

in this case to determine the extent of Daly’s participation and knowledge. See Johnson, 242 F.R.D.

at 484 (“Indeed, most cases have refused to accept this kind of ex parte tactic, recognizing that a

party has a right to test the validity of the assertions.”). 

Defendant also argues that there are less burdensome means of obtaining the information that

the United States desires. Defendant, however, does not argue that the deposition would create undue

burden or expense. The United States proposed to take Daly’s deposition at his place of business at

a mutually convenient date, requiring no travel and little expense to be borne by Defendant. C.f.,

Patterson v. Avery Dennison Corp., 281 F.3d 676, 681 (7th Cir. 2002) (“The requested deposition

. . . would have been a quite costly and burdensome means for determining whether he had

information bearing on [Plaintiff’s] termination.”); Berning v. UAW Local 2209, 242 F.R.D. 510,

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513 (N.D. Ind. 2007) (“[N]ot only does [Defendant] claim that [the putative deponent] has no

personal knowledge about [the] matter, but it also contends that [the putative deponent] participating

in a deposition by [Plaintiff] would be unduly burdensome and oppressive to him.”). 

III. Conclusion

For the reasons explained above, the Court herebyDENIES the Motion for Protective Order

that the Deposition of General Manager Pat Daly not be Taken [DE 15].

SO ORDERED this 16th day of September, 2015.

s/ John. E. Martin 

MAGISTRATE JUDGE JOHN E. MARTIN

UNITED STATES DISTRICT COURT

cc: All counsel of record

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