*1 This matter comes before the Court on Plaintiff David Brewer's motion to compel Defendant BNSF Railway Company to respond to various discovery requests. (Doc. 51.) The motion is granted in part and denied in part, as set forth below.

I. BACKGROUND

Plaintiff David Brewer (“Brewer”) claims that Defendant BNSF Railway Company (“BNSF”) terminated his employment in violation of the whistleblower protections of the Federal Rail Safety Act (“FRSA”), codified at 49 U.S.C. § 20109. FRSA prohibits a railroad from terminating, disciplining, or in any other way discriminating against an employee because the employee engaged in certain statutorily defined protected activity. Brewer now moves under Fed.R.Civ.P. 37 for an order compelling BNSF to respond to various interrogatories and requests for production.

II. LEGAL STANDARDS

Courts possess broad discretion in controlling discovery. Little v. City of Seattle, 863 F.2d 681, 685 (9th Cir.1988). Generally speaking, litigants in a civil action are entitled to “discovery regarding any nonprivileged matter that is relevant to any party's claim or defense.” Fed.R.Civ.P. 26(b)(1). The scope of discovery and the definition of “relevant” under Rule 26(b)(1) have “been construed broadly to encompass any matter that bears on, or that reasonably could lead to other matter[s] that could bear on, any issue that is or may be in the case.” Moe v. System Transport, Inc., 270 F.R.D. 613, 618 (D. Mont. 2010) (citing Oppenheimer Fund, Inc. v. Sanders, 437 U.S. 340, 351 (1978)). “If the information sought might reasonably assist a party in evaluating the case, preparing for trial, or facilitating settlement, it is relevant to the subject matter involved in the pending action.” Id. The district courts have discretion in assessing relevance for discovery purposes. Id. (citing Surfvivor Media, Inc. v. Survivor Productions, 406 F.3d 625, 635 (9th Cir.2005)). Furthermore, the information sought “need not be admissible at trial if the discovery appears reasonably calculated to lead to the discovery of admissible evidence.” Fed.R.Civ.P. 26(b)(1). Courts may, however, limit unreasonably cumulative, overly broad, unduly burdensome, or irrelevant discovery. Fed.R.Civ.P. 26(b)(2)(c).

If one party fails to disclose requested information, the opposing party may move to compel disclosure. Fed.R.Civ.P. 37(a)(2)(A). The party seeking to compel discovery bears the burden of showing that the discovery sought is relevant, and the party resisting discovery bears of the burden of showing that the discovery should not be allowed. See Soto v. City of Concord, 162 F.R.D. 603, 610 (N.D. Cal. 1995); DIRECT TV, Inc. v. Trone, 209 F.R.D.455, 458 (C.D. Cal. 2002) (the party resisting discovery bears “the burden of clarifying, explaining, and supporting its objections”).

In relation to liability under FRSA, the plaintiff-employee need only show that his protected activity was a “contributing factor” in the retaliatory discharge or discrimination, not the sole or even predominant cause. Araujo v. New Jersey Transit Rail Operations, Inc., 708 F.3d 152, 158 (3rd Cir. 2013) (citing 49 U.S.C. § 42121(b)(2)(B)(ii)). In other words, “a contributing factor is any factor, which alone or in combination with other factors, tends to affect in any way the outcome of the decision.” Id. (citing Ameristar Airways, Inc. v. Admin. Rev. Bd., 650 F.3d 562, 567 (5th Cir.2011)).

*2 A plaintiff-employee is not required to prove that his protected conduct was a “significant,” “motivating,” “substantial,” or “predominant” factor in the decision. Id. (citing Marano v. Dep't of Justice, 2 F.3d 1137, 1140 (Fed. Cir.1993)). Furthermore, an employee “need not demonstrate the existence of a retaliatory motive on the part of the employee taking the alleged prohibited personnel action in order to establish that his disclosure was a contributing factor to the personnel action.” Id. (citing Marano, 2 F.3d at 1141 (emphasis in original)).

A plaintiff can establish a prima facie case that his protected activity was a contributing factor in his discharge by direct or circumstantial evidence. Ray v. Union Pac. R.R. Co., 971 F.Supp.2d 869, 884 (S.D. Iowa 2013) (referencing Araujo, 708 F.3d at 160 (holding that neither direct evidence nor evidence of motive is required to prove the contributing factor element)); DeFrancesco v. Union R.R. Co., No. 10–114, 2012 WL 694502 at *3 (A.R.B. Feb. 29, 2012) (“The contributing factor element of a complaint may be established by direct evidence or indirectly by circumstantial evidence.”). Circumstantial evidence that protected activity contributed to an adverse employment decision may include evidence of:

Id. at 885 (citing DeFrancesco, 2012 WL 694502 at *3).

Once the employee asserts a prima facie case, the burden shifts to the employer to demonstrate, “by clear and convincing evidence, that the employer would have taken the same unfavorable personnel action in the absence of that behavior.” Id. at 159. The “clear and convincing evidence” standard is the intermediate burden of proof, in between “a preponderance of the evidence” and “proof beyond a reasonable doubt.” Id. (citing Addington v. Texas, 441 U.S. 418, 425 (1979)). To meet the burden, the employer must show that “the truth of its factual contentions are highly probable.” Id. (citing Colorado v. New Mexico, 467 U.S. 310, 316 (1984)).

III. DISCUSSION

A. Interrogatory Nos. 1 and 2 and Request for Production No. 4

Brewer's Interrogatory No. 1 seeks employee discipline information from BNSF's Employee Performance Tracking System (“EPTS”) from 2011 to the present for “the same type of rule violation” Brewer was charged with committing that lead to his termination. Interrogatory No. 1 is not limited in scope in relation to the location or craft of the disciplined employee, or of decision maker. (Doc. 51-1 at 1-2.) Request for Production No. 4 seeks production of the documents related to Interrogatory No. 1. (Doc. 51-1 at 7.) Interrogatory No. 2 seeks information from 2011 to the present regarding employees who were disciplined or provided alternative treatment “for failing to perform an air brake test and/or who performed an improper air brake test.” (Doc. 51-1 at 3-4.)

BNSF objected to these discovery requests on the basis that they: (1) seek information that is irrelevant and are overbroad and burdensome; (2) seek private information from third parties; and (3) seek irrelevant personal injury information. (Doc. 59 at 8-13.) Brewer argues the discovery requests are proper because they seek information that will reveal whether other BNSF employees received the same or similar treatment as did he for the same violations and whether BNSF uses its disciplinary system to target those employees who engage in protected activity. Brewer argues the requested information may be used as evidence to rebut BNSF's claim that other employees received the same or similar treatment as did he. Finally, Brewer argues the information in relation to air brake testing is “a possible protected activity, and it is relevant to know how the railroad has treated other employees faced with this decision.” (Doc. 51 at 6-8.)

*3 In relation to Interrogatory No. 1 and Request for Production No. 4, BNSF provided “search results produced as ‘BNSF 1708-1710’ for 2011-2013 for employees who have been charged and disciplined for violation of GCOR Rule 1.6 (Conduct) and Rule 1.13 (Reporting and Complying With Instructions) following investigations held by Connan Moler and Jason Maser.” (Doc. 51-1 at 3.) BNSF provided no information in relation to Interrogatory No. 2.

Much of the information Brewer seeks appears relevant. It may disclose whether persons who violated the same rules or engaged in the same or similar conduct that resulted in a rules violation faced less severe consequences than he did. However, some of the information Brewer seeks would needlessly expose the identity of other BNSF employees and sensitive personnel information. Also, whether any BNSF employee had previously filed a personal injury report is not relevant to Brewer's claims because he does not allege that he filed a personal injury report, let alone that such a report was a contributing factor to his termination.

As such, the Court orders as follows:

(1) Interrogatory No. 1—BNSF must provide to Brewer the following information from EPTS from the date it was put into use in 2011 through the present for the rules it claims Brewer violated on or about July 6, 2011, and on or about October 8, 10, 14, and 25, 2012:

a. The initials of the employee who violated the rule;

b. Where the individual was charged;

c. Why they were charged—the name of the alleged rule violation and facts surrounding the alleged violation;

d. The date of the violation;

e. The initials of the charging officer/investigating office;

f. Whether discipline/what type of discipline was administered or whether alternative handling was given; and

g. Whether an investigation was held.

(2) Request for Production No. 4—BNSF must provide to Brewer the relevant printouts, charts, documents, or other recordings created in the process of responding to Interrogatory No. 1.

(3) Interrogatory No. 2—BNSF must identify those employees identified in Interrogatory No. 1 who have been investigated and/or disciplined and/or were offered alternative handling for engaging in the same or similar conduct as did Brewer on or about July 6, 2011, that resulted in him being investigated and disciplined for violating GCOR 1.13.

B. Request for Production No. 1

Brewer's Request for Production No. 1 seeks documents that support any BNSF response to a request for admission that was not an unqualified “admit.” (Doc. 51-1 at 5.) Brewer has failed to identify any instance where BNSF has not adequately produced documents in support of any such response. Therefore, the Court denies Brewer's motion to compel in relation to Request for Production No. 1.

C. Request for Production No. 5

Brewer's Request for Production No. 5 seeks “all documents regarding BNSF's Velocity initiative and any instructions or initiatives that were particular to Mr. Brewer's crew, terminal, and/or region on the day of the incident that took place at Shelby Yard as detailed in his Complaint.” (Doc. 51-1 at 9.) The Court agrees with BNSF that this request for production is overly broad and not reasonably calculated to lead to the discovery of admissible evidence, and as such, Brewer's motion to compel is denied.

D. Request for Production No. 8

Brewer's Request for Production No. 8 seeks “all documents regarding the BNSF Investigations conducting officer training program and/or Instructor Guide given as a part of this training or in connection with this training.” (Doc. 51-1 at 11.) Brewer argues this information is “highly relevant to this case” because “[i]f the investigation was slanted against Brewer, or otherwise unfair, than [sic] it might itself constitute an adverse employment action.” (Doc. 51 at 11.) BNSF argues that the training obtained by conducting officers is irrelevant to whether it dismissed Brewer as a result of retaliation and is not reasonably calculated to lead to the discovery of admissible evidence. BNSF also argues its training materials are proprietary and Brewer's attorney has made no assurance that if produced he would keep the requested materials private and not disclose them to the unions or other attorneys. (Doc. 59 at 16-18.)

*4 Given the broad scope of discovery, the Court agrees with Brewer that the requested materials may lead to the discovery of admissible evidence. If Brewer's alleged rule violations were not investigated in conformity with BNSF's training and instructions, this may be circumstantial evidence tending to prove that his claimed protected activity was a contributing factor in his termination. As such, the Court grants Brewer's motion to compel. However, in so doing, the Court also orders that neither Brewer nor his counsel may disclose the documents produced or their content to the unions, other attorneys, or any other person.

E. Request for Production No. 9

Brewer's Request for Production No. 9 seeks for BNSF to “produce an index of the items that exist on the secure and/or shared drive of the director and/or manager of rules department, if any.” (Doc. 51-1 at 12.) Because Brewer was “disciplined ... for disobeying orders and not performing an air test,” Brewer argues BNSF's response will allow him to determine whether an air test was in fact required. He further argues “how the railroad determines if such a rule is violated or not is relevant to whether or not that discipline was administered in good faith.” (Doc. 51 at 12.)

BNSF argues “there is no evidence that anyone contacted the director or manager of rules department about the interpretation of any rule that was violated by Plaintiff.” Furthermore, BNSF argues that Brewer's protected activity at the Shelby Yard was “checking to make sure that handbrakes were not applied on cars that were about to be moved.” BNSF also argues this is another attempt to “obtain a picture of BNSF's IT Infrastructure” that was previously rejected by this Court. Finally, BNSF argues that Brewer's request is overly broad and unduly burdensome because it is not limited to time or to rules applicable to Brewer's job as a conductor and it seeks rules for which Brewer was not disciplined. (Doc. 59 at 18-19.)

The Court agrees with BNSF that Brewer's request is overly broad. The request is not limited to the rule BNSF alleges he violated or to the index as it existed at the time he was disciplined. The Court therefore denies Brewer's motion to compel.

F. Request for Production No. 10

Brewer's Request for Production No. 10 seeks for BNSF to produce a variety of documents related to its bonus program and bonuses received by all supervisors and managers throughout its system from 2011 to the present, “especially including but not limited to individuals who have been identified as witnesses/those with knowledge by either party in the case.” (Doc. 51-1 at 13.) Brewer argues safety was a factor in determining bonuses and the information he seeks “will demonstrate how the program led to the targeting of individuals such as Brewer who engaged in protected activities.” (Doc. 51 at 13.) BNSF argues the information Brewer seeks is wholly irrelevant and there is no evidence to support any allegation that the decision made in relation to Brewer had anything to do with the bonus program. (Doc. 59 at 19-20.)

The persons involved in Brewer's termination may have had a financial incentive under the ICP Bonus plan to terminate Brewer because of his protected activity. If they did, this may be circumstantial evidence establishing that his protected activity was a contributing factor to his termination. However, because the plan has not been produced, it is impossible to determine whether such an incentive in fact existed. On the other hand, information related to the bonuses received by supervisors and managers, especially those who played no role in terminating Brewer's employment, is irrelevant and overly broad. The Court will therefore grant in part and deny in part Brewer's motion to compel. It is granted to the extent that BNSF is ordered to produce the ICP Bonus plan as it existed in 2012 when Brewer claims he engaged in protected activity and his employment was terminated. It is denied in all other respects.

G. Request for Production No. 11

*5 Brewer's Request for Production No. 11 seeks for BNSF to produce “the equivalent of the documents contained in” a variety of “folders on the Northwest Division Secure Drive as they pertain to and/or exist in the Montana Division Secure Drive.” (Doc. 51-1 at 13.) Brewer argues that these drives are used by various BNSF divisions to house policies and procedures that can be accessed by management officials and that Moler had access to and did access the Montana Secure Drive. He also argues that he needs this information to understand BNSF's IT system and document retention and that he has reason to believe that BNSF has not produced all responsive files, documents, and other materials. (Doc. 51 at 13-15.)

BNSF argues that Brewer really seeks the opportunity to root through any and all BNSF files to see if he can find anything of interest. It also argues that Brewer has not identified any information he believes exists in the folders that BMSF has not produced to him. (Doc. 59 at 20-22.)

The Court agrees with BNSF. Brewer has not identified what information BNSF has not provided or why he believes BNSF has failed to produce certain information to him during discovery. Brewer's motion to compel is therefore denied.

H. Interrogatory No. 3

Brewer's Interrogatory No. 3 asks BNSF to identify and describe the program and/or database from which his training history was recovered. Brewer argues this information is relevant because an understanding of the program or database will allow him and the Court to verify that the entirety of his training history has been produced. (Doc. 51 at 15.) BNSF argues that it has produced Brewer's training history as requested and that Brewer, as the person who underwent the training, would know if part of his training history was omitted from the materials BNSF has produced. (Doc. 59 at 22.)

Brewer does not argue that what BNSF has produced in relation to his training is incomplete in any respect. As such, the Court agrees with BNSF that Interrogatory No. 3 resembles a fishing expedition rather than truly seeking missing relevant information. Brewer's motion to compel is therefore denied.

I. Interrogatory No. 5

Brewer's Interrogatory No. 5 seeks for BNSF to, among other things, identify and describe its policies regarding coaching and counseling. Brewer argues that he was not coached and counseled and Interrogatory No. 5 seeks to determine why. Brewer argues that BNSF's response to Interrogatory No. 5 may reveal that managers have discretion to offer coaching and counseling to employees they want to protect and to withhold it from those they want to punish. Brewer further argues that “[t]he scope of this interrogatory is broad enough to encompass not only specific policies, but other documents, materials, and information, including those related to other policies such as the railroad's PEPA policy.” (Doc. 51 at 15-16.)

BNSF objected to Interrogatory No. 5 on the basis that it is overly broad and not limited in time or scope. “[W]ithout waiving this objection, BNSF answered ... that it has no coaching and counseling policy.” BNSF also argues in its brief that although it “use[s] the term ‘coaching and counseling’ to describe interactions between managers and employees discussing a number of things, there is no ‘policy’ on the issue.” Finally, BNSF argues that, contrary to Brewer's assertion, he was coached and counseled. (Doc. 59 at 23.)

BNSF provided an answer to Interrogatory No. 5. Brewer considers the answer insufficient. In his brief, Brewer attempts to change what Interrogatory No. 5 sought, which was to determine BNSF's policies in relation to coaching and counseling, into something much broader. The Court will not compel BNSF to provide an answer Brewer does like or to answer an interrogatory that was not asked. Brewer's motion to compel is therefore denied.

J. Request for Production No. 14

*6 Brewer's Request for Production No. 14 asks BNSF to produce “Terminal Scorecard Station Summary” information for the Montana Division for 2011–2013. Brewer argues that this information will show if the division was lagging behind in velocity or rule compliance. Brewer further argues that if the Montana Division was behind, it would “demonstrate that the railroad had a reason to treat Brewer differently than other employees,” presumably because he was engaging in protected activity. (Doc. 51 at 16-17.) BNSF argues that not only is the requested information “completely irrelevant, but it is not limited to the areas where Plaintiff worked, Plaintiff's craft, or the time of his discipline.” (Doc. 59 at 24.)

Brewer's request may lead to the discovery of admissible evidence, but it is also overly broad. Therefore, Brewer's motion to compel will be granted in part and denied in part. To that end, the Court orders BNSF to produce the requested information for the areas where Brewer worked in 2011 and 2012.

K. Request for Production No. 15

Brewer's Request for Production No. 15 seeks training materials BNSF utilized for training conductors without time or geographic limitations. BNSF produced “hundreds of pages of training materials” in response to this request. (Doc. 59 at 25.) What Brewer seeks with his motion to compel is “especially training modules and training movies that were shown to Brewer” because they will “color whether or not he had a good faith belief that the air test did not have to be performed, or if the instructions given to him contradicted his training.” (Doc. 51 at 17.)

BNSF argues the request is overly broad and that it has made a good faith effort to comply with Brewer's request. (Doc. 59 at 25-26.) BNSF does not state whether any modules or movies were shown to Brewer about air testing; Brewer does not identify whether he was shown such movies but implies he was.

The Court grants Brewer's motion to compel in part. The Court orders that BNSF produce any modules or movies concerning when it is proper for an air test to be performed that were shown to Brewer. Brewer's motion to compel is denied in all other respects.

L. Interrogatory No. 6 and Request for Production No. 17

These discovery requests seek a description of the information contained within BNSF's internal litigation hold issued by its Law Department in this case as well as a copy of the litigation hold itself. Brewer argues that he is entitled to know the “kinds and categories of ESI [defendant's] employees were instructed to preserve and collect, and what specific actions they were instructed to undertake to that end.” (Doc. 51 at 18 (internal citations omitted).) Brewer also argues that because “spoliation is at issue” he is entitled to “the hold letters themselves.” (Doc. 51 at 18.) BNSF argues that a list of material required to be maintained pursuant to a litigation hold is not discoverable especially in this case because if Brewer “can point to no evidence that BNSF has failed to preserve any information.” (Doc. 59 at 28.)

Initially, unless spoliation is at issue, a litigation hold letter is generally not discoverable. Cabbata v. Wyndham Worldwide Corp., 2011 WL 3495987 *2 (D. Nev. 2011). Here, Brewer's bald claim that spoliation is at issue does not make it at issue. Brewer has not made any showing that discoverable documents have been subject to spoliation. Therefore, Brewer's request to compel production of the litigation hold document, memo, and/or preservation letter issued by BNSF in his case pursuant to Request for Production No. 17 is denied.

However, to the extent BNSF seeks to foreclose any inquiry into the contents of litigation hold notices, such a position is not tenable. Id. (citing In re Ebay Seller Antitrust Litig., 2007 WL 2852364 at *2 (N.D.Cal. Oct. 2, 2007) (emphasis in original)). Plaintiffs are entitled to know “what kinds and categories of ESI [defendant's] employees were instructed to preserve and collect, and what specific actions they were instructed to undertake to that end.” Id. This conclusion is supported by the Advisory Committee's comments to Rule 26(b)(2): “[t]he responding party must also identify, by category or type, the sources containing potentially responsive information that it is neither searching nor producing.”

*7 Therefore, the Court grants Brewer's motion to compel in part and orders BNSF to respond to Interrogatory No. 6 by describing: (a) the kinds and categories of ESI its employees were instructed to preserve and collect; and (b) the specific actions its employees were instructed to undertake to that end. Brewer's motion to compel a further response to Interrogatory No. 6. is denied in all other respects.

M. Interrogatory Nos. 7, 8, and 10

Brewer's Interrogatory Nos. 7 and 8 seek information that he argues he will use to “form a road map of [BNSF]’s IT infrastructure that will allow Brewer to find admissible evidence.” Brewer also argues that the information he requests “is relevant to the wages lost by Brewer, both by wage rates and potential hours of work.” (Doc. 51 at 19.) Brewer's Interrogatory No. 10 seeks to discovery BNSF's policy for managing electronic devices taken out of service or reprovisioned. Brewer argues discovery of this policy will lead to the discovery of admissible evidence because these devices may contain materials such as emails, text messages, or other communications related to Brewer and his termination. (Doc. 51 at 20-21.)

BNSF argues that these discovery requests are “nothing more than Plaintiff's attempt to rummage through BNSF's internal data network.” BNSF asserts that this is nothing more than an attempt to engage in a fishing expedition and what he really wants is “to sift through BNSF's databases and electronic devices just in case it might spur some additional discovery.” (Doc. 59 at 29-30.)

In relation to Interrogatory No. 10, the Court will grant the motion to compel; BNSF must answer this interrogatory. Without knowing the policy, it is impossible to determine whether emails or text messages on these devices that may relate to Brewer and his termination were preserved. In relation to Interrogatory Nos. 7 and 8, Brewer has not described how these discovery requests will reveal the information he seeks, and as such, they do not appear to be reasonably calculated to lead to the discovery of admissible evidence. Furthermore, Brewer having a roadmap of BNSF's IT infrastructure is not relevant to the issues in his case, especially with no evidence that electronically stored information related to his claim has been destroyed or not already produced by BNSF.

O. Request for Production No. 18

Brewer's Request for Production No. 18 asks BNSF to produce its Records Retention Policy in effect in 2012 and any modifications, addendums,or updates through the present. BNSF argues it agreed to provide the applicable retention schedule for specific categories of documents, but Brewer failed to provide a list of such categories. (Doc. 59 at 30-31.) Brewer argues he provided a list to BNSF in which he limited his request to a number of categories taken from an earlier policy. The categories apparently deal with subjects such as training of employees, discipline policies, safety meeting minutes, and safety programs. (Doc. 51 at 22-23.)

It is impossible for the Court to determine whether Brewer has provided a list to BNSF or whether BNSF refuses to produce the retention schedule for the specific categories on the list Brewer provided. The parties must make a good faith effort to resolve this dispute prior to further involving the Court. Therefore, the parties must submit a joint statement on this issue by November 27, 2015. If the parties cannot resolve the issue amongst themselves, the Court will require lead counsel for the parties to personally appear before the Court to show cause why sanctions should not be imposed on Brewer for failing to provide the list to BNSF or on BNSF for failing to produce the applicable retention schedule after receiving the list.

P. Request for Production Nos. 19 and 20

*8 Brewer's Requests for Production Nos. 19 and 20 seek the production of certain BNSF electronic devices or backups to these devices for inspection by a qualified digital forensics expert. Brewer argues that these devises and backups contain highly relevant information related to his claims. (Doc. 51 at 23-24.) BNSF argues that Brewer has not shown specific and good cause to perform such an inspection and further that the devices would contain personal, private, and confidential information of third-parties as well as attorney-client privileged and work product doctrine protected material. (Doc. 59 at 31.)

Brewer has not identified any ESI on any of these devices that BNSF has not already provided to him. As such, Brewer's request is overly broad, and he has failed to show cause for engaging in a forensic inspection of the devices in question. Brewer's motion to compel is therefore denied.

Based on the foregoing, the undersigned issues the following:

ORDER

Brewer's First Motion to Compel Discovery Responses (Doc. 51) is GRANTED in part and DENIED in part.

The motion (Doc. 51) is GRANTED to the following extent:

1. BNSF must provide to Brewer the following information from EPTS from the date it was put into use in 2011 through the present for the rules it claims Brewer violated on or about July 6, 2011, and on or about October 8, 10, 14, and 25, 2012:

a. The initials of the employee who violated the rule;

b. Where the individual was charged;

c. Why they were charged—the name of the alleged rule violation and facts surrounding the alleged violation;

d. The date of the violation;

e. The initials of the charging officer/investigating office;

f. Whether discipline/what type of discipline was administered or whether alternative handling was given; and

g. Whether an investigation was held.

2. BNSF must provide to Brewer the relevant printouts, charts, documents, or other recordings created in the process of responding to Interrogatory No. 1.

3. BNSF must identify those employees identified in Interrogatory No. 1 who have been investigated and/or disciplined and/or were offered alternative handling for engaging in the same or similar conduct as did Brewer on or about July 6, 2011, that resulted in him being investigated and disciplined for violating GCOR 1.13.

4. BNSF must provide all documents regarding BNSF Investigations conducting officer training program and/or Instructor Guide given as a part of this training or in connection with this training, as described in Exhibit 4 to the Request for Production.

5. Neither Brewer nor his counsel may disclose the documents produced pursuant to Request for Production No. 8 or their content to the unions, other attorneys, or any other person.

6. BNSF must produce the ICP Bonus plan as it existed in 2012 when Brewer claims he engaged in protected activity and his employment was terminated.

7. BNSF must produce “Terminal Scorecard Station Summary” information for the areas where Brewer worked in 2011 and 2012.

8. BNSF must respond to Interrogatory No. 6 by describing: (a) the kinds and categories of ESI its employees were instructed to preserve and collect; and (b) the specific actions its employees were instructed to undertake to that end.

9. BNSF must answer Interrogatory No. 10.

10. By November 27, 2015, the parties must submit a joint statement informing the Court whether Brewer has provided a list to BNSF or whether BNSF refuses to produce the retention schedule for the specific categories on the list Brewer provided. If the parties cannot resolve this issue amongst themselves, the Court will require lead counsel for the parties to personally appear before the Court to show cause why sanctions should not be imposed on Brewer for failing to provide the list to BNSF or on BNSF for failing to produce the applicable retention schedule after receiving the list.

*9 In all other respects, the motion (Doc. 51) is DENIED.

DATED the 20th day of November 2015.