Full Opinion (html_with_citations)

                 United States Court of Appeals
                            For the Eighth Circuit
                        ___________________________

                                No. 18-1251
                        ___________________________

                                Todd Smith-Bunge

                       lllllllllllllllllllllPlaintiff - Appellant

                                          v.

                      Wisconsin Central, Ltd., a corporation

                       lllllllllllllllllllllDefendant - Appellee
                                      ____________

                    Appeal from United States District Court
                   for the District of Minnesota - Minneapolis
                                   ____________

                           Submitted: October 16, 2019
                            Filed: December 27, 2019
                                 ____________

Before SMITH, Chief Judge, GRUENDER and BENTON, Circuit Judges.
                              ____________

BENTON, Circuit Judge.

       Wisconsin Central, Ltd. terminated Todd Smith-Bunge. He sued for unlawful
retaliation under the Federal Railroad Safety Act.
49 U.S.C. § 20109
. The district
court1 granted summary judgment to Wisconsin Central. Smith-Bunge appeals that
decision and two discovery rulings. Having jurisdiction under
28 U.S.C. § 1291
, this
court affirms.

       In 2013, Wisconsin Central suspended Smith-Bunge. He sued for unlawful
retaliation under the FRSA. He prevailed on summary judgment on October 8, 2014.
Smith-Bunge v. Wisconsin Central, Ltd.,
60 F. Supp. 3d 1034
 (D. Minn. 2014).
Three weeks earlier, Smith-Bunge inspected his truck for faulty brakes. Later, he
accidentally drove his vehicle into a train’s path despite knowing the train had been
cleared to continue on the tracks. After the accident, he completed an injury report,
writing that his truck’s brakes malfunctioned, causing the crash. Wisconsin Central
hired an expert, Michael W. Rogers, to investigate Smith-Bunge’s vehicle. Rogers
found that the brakes allowed Smith-Bunge to stop. He concluded Smith-Bunge was
the sole cause of the crash. Wisconsin Central terminated Smith-Bunge for violating
four rules: safety; alert and attentiveness; alert to train movement; and furnishing true
information.

       Smith-Bunge sued for unlawful retaliation, arguing Wisconsin Central
retaliated against him for three acts: his 2013 lawsuit, his 2014 report of faulty
brakes, and his 2014 report of injury. The district court granted Wisconsin Central
summary judgment, concluding Smith-Bunge failed to make a prima facie case.

      Smith-Bunge appeals the summary judgment. He also challenges the district
court’s denial of his motion to compel testimony from Rogers and its grant of
Wisconsin Central’s motion for protective order for its counsel, Constance Valkan.
This court reviews for abuse of discretion a district court’s discovery rulings. See
Jackson v. Allstate Ins. Co.,
785 F.3d 1193, 1202
 (8th Cir. 2015).


      1
         The Honorable Paul A. Magnuson, United States District Judge for the
District of Minnesota.

                                          -2-
                                          I.

       Smith-Bunge sought the draft drawings of the accident scene and draft expert
reports by Michael Rogers, the crash expert hired by Wisconsin Central. Smith-
Bunge also sought Rogers’s communications with Wisconsin Central’s counsel,
Julius Gernes.

      Smith-Bunge acknowledges that an expert’s materials are protected under
Federal Rule of Civil Procedure 26(b)(4). See Fed. R. Civ. P. 26(b)(4)(B), (C)
(protecting “drafts of any report or disclosure required” of an expert as well as
“communications between the party’s attorney and any [expert] witness”). He argues
that Rogers is not an expert witness but only an ordinary witness.

       If an expert’s “information was not acquired in preparation for trial but rather
because he was an actor or viewer with respect to transactions or occurrences that are
part of the subject matter of the lawsuit . . . [the witness] should be treated as an
ordinary witness.” Fed R. Civ. P. 26(b)(4), advisory committee’s note to 1970
Amendments. On September 19, 2014, a day after the crash, Smith-Bunge’s counsel
asked Wisconsin Central to place a litigation hold. A month later, Wisconsin Central
retained Rogers to provide “litigation support.” Rogers then investigated the crash
and prepared recommendations. The district court did not abuse its discretion in
concluding Rogers acquired the information in preparation for trial, so he was an
expert witness whose work is protected under Rule 26(b)(4). See Simon v. G.D.
Searle & Co.,
816 F.2d 397, 401
 (8th Cir. 1987), quoting 8 C. Wright and A. Miller,
Federal Practice and Procedure § 2024, at 198-99 (1970) (“[T]he test should be
whether, in light of the nature of the document and the factual situation in the
particular case, the document can fairly be said to have been prepared or obtained
because of the prospect of litigation.”).




                                         -3-
                                         II.



     The district court did not abuse its discretion in blocking a deposition of
Wisconsin Central’s counsel, Constance Valkan, about her conversations with other
employees and whether Smith-Bunge’s employment record caused his termination.



       Smith-Bunge believes the district court should have applied this court’s test
from Pamida, Inc. v. E.S. Originals, Inc.,
281 F.3d 726
 (8th Cir. 2002). Pamida
permits deposing an opposing counsel if a party “seeks relevant information uniquely
known by [the] attorneys about prior terminated litigation, the substance of which is
central to the pending case.”
Id. at 731
. Pamida, an indemnification lawsuit,
addressed two questions: were the prior case’s attorneys’ fees reasonable, and what
actions did counsel take in the prior case to provide indemnification notice to
plaintiff?
Id.
 Both answers were “peculiarly within counsel’s knowledge.”
Id.
Further, the party seeking recovery for legal expenses put the attorneys’ work
“directly at issue,” which waived attorney-client privilege.
Id.
 Smith-Bunge, on the
other hand, wants to discover whether Valkan spoke with other Wisconsin Central
employees about Smith-Bunge’s 2013 lawsuit and whether his prior suspension
motivated his termination. Neither piece of information is peculiarly within counsel’s
knowledge, nor did Wisconsin Central waive privilege. Pamida does not apply here.



       Instead, Shelton applies. See Shelton v. American Motors Corp.,
805 F.2d 1323
 (8th Cir. 1986). A party may depose an opposing counsel if the information
sought is: (1) not available through other means; (2) relevant and nonprivileged; and
(3) crucial to the preparation of the case.
Id. at 1327
.




                                         -4-
       Smith-Bunge does not meet the first and second factors. First, he had other
means to discover whether Valkan spoke with other employees and whether a past
suspension motivated the termination. As the district court found, he could ask other
employees. Smith-Bunge suspects that because other employees had “selective
amnesia” during their depositions, he needs to depose Valkan. To the contrary, a
party cannot depose opposing counsel to explore suspicions about opposing
witnesses. See Shelton,
805 F.2d at 1327-28
 (rejecting deposition where “plaintiffs’
counsel indicated that he was asking [counsel] these questions to determine whether
[defendant] had in fact truthfully and fully complied with his document requests and
interrogatories”).



       Second, the information is privileged. Smith-Bunge does not identify any
statements from Valkan outside of the attorney-client privilege. Nor does he attempt
to narrow his inquiry to respect the privilege. He argues this case is like prior cases
attaching no privilege when an attorney “act[ed] merely as a conduit for the client’s
funds; as a scrivener for the client; or as a business adviser.” United States v.
Horvath,
731 F.2d 557, 561
 (8th Cir. 1984) (citations omitted). Valkan swore: all
of her “communications with Wisconsin Central’s managers have been strictly in my
capacity as counsel for Wisconsin Central for the purpose of providing legal advice”;
she provides legal advice regarding employment-related issues; and she does not
make business decisions. Smith-Bunge does not provide facts that counter this
testimony or characterize Valkan as a conduit of funds, a scrivener, or a business
adviser. Cf. Horvath,
731 F.2d at 561
 (not applying attorney-client privilege when
attorney admitted “he functioned primarily as a courier” of illegally-obtained funds
and performed such acts prior to passing bar examination); Simon,
816 F.2d at 402
-
04 (upholding denial of privilege to documents that did not seek legal advice, but
were provided to counsel).




                                         -5-
     The district court did not abuse its discretion in granting Wisconsin Central’s
motion for a protective order.



                                         III.



       This court reviews de novo a district court’s grant of summary judgment
viewing genuinely disputed facts “in the light most favorable to the nonmoving
party.” Torgerson v. City of Rochester,
643 F.3d 1031, 1042
 (8th Cir. 2011) (en
banc), quoting Ricci v. DeStefano,
557 U.S. 557, 586
 (2009). If the record taken as
a whole could not lead a rational trier of fact to find for the nonmoving party,
summary judgment should be granted. Torgerson,
643 F.3d at 1042
, citing Ricci,
557 U.S. at 586
.



      The district court properly granted summary judgment to Wisconsin Central
because Smith-Bunge did not make a prima facie case of retaliation under the FRSA.
He did not show “the circumstances raise an inference that the protected activit[ies]
[were] a contributing factor in [his termination].” Blackorby v. BNSF Railroad Co.,
849 F.3d 716, 720
 (8th Cir. 2017), quoting Kuduk v. BNSF Railroad Co.,
768 F.3d 786, 789
 (8th Cir. 2014).



      “[T]he contributing factor that an employee must prove is intentional retaliation
prompted by the employee engaging in protected activity.” Kuduk,
768 F.3d at 791
.
See also Blackorby,
849 F.3d at 722
 (the “essence” of FRSA is “discriminatory
animus”). “[A plaintiff] therefore must demonstrate more than a mere factual
connection between his [protected activity] and his discipline in order to establish a
prima facie case under the contributing-factor standard.” Heim v. BNSF Ry. Co.,
849 F.3d 723, 727
 (8th Cir. 2017).

                                         -6-
       Smith-Bunge does not raise an inference of intentional retaliation prompted by
any of his three acts: (1) filing the 2013 lawsuit, (2) reporting the injury from the
2014 collision, and (3) reporting the brake failure that caused the 2014 collision. In
fact, his briefing does not mention the Kuduk “intentional retaliation” standard.



        Further, no reasonable fact finder could infer a retaliatory motive. For the 2013
litigation, Smith-Bunge emphasizes two facts: six days after he won summary
judgment, Wisconsin Central hired Rogers to investigate the 2014 collision, and
Wisconsin Central did not terminate workers involved in other accidents. Hiring
Rogers to investigate the accident, by itself, does not indicate animus or intentional
retaliation. The short lapse between Smith-Bunge’s success in summary judgment
and Rogers’s hiring is insufficient. See Kuduk,
768 F.3d at 792
. The 2013
litigation—involving a prior suspension—“was completely unrelated” to the 2014
crash, so the crash is an “intervening event that independently justified” his
termination.
Id.
 For the differential treatment, Smith-Bunge does not provide enough
details about the other crashes to determine if they were of the same magnitude.
Critically, based on the facts he furnishes, none of the workers in the other crashes
provided false information (as Smith-Bunge did).



       For the 2014 reporting of injury and brake failure,2 Smith-Bunge produces no
evidence of retaliatory motive. He relies on testimony from two Wisconsin Central
employees that if he had not falsely reported the brake failure, he would not have
violated the rule to furnish true information and, therefore, possibly not been
terminated. He concludes from this testimony that his act of reporting caused the


      2
         Smith-Bunge erroneously argues that Wisconsin Central moved for summary
judgment as to his prior litigation, but not his other two acts. In its motion to the
district court, Wisconsin Central listed all three acts, arguing he failed to show any
act was a contributing factor to his termination.

                                          -7-
termination. It did not. His falsehoods in the report, substantiated by Rogers’s
examination of his truck’s brakes after the crash, contributed to his termination.



      Smith-Bunge did not make a prima facie case of retaliation under the FRSA.



                                  *******



      The judgment is affirmed.

                      ______________________________




                                       -8-