UNITED STAT ES DIS TRICT COURT F OR THE DIS TRICT OF COLUM BIA

MDL Doc ket No. 1869 Misc. No. 07- 489 (P LF/JM F /AK)

MEMORAN DUM OP INION Now pendingbefor e the Court and r eady for r esolution is P laintiffs’ Motion to Compel Production of Docume nts (“MTC”) [#340]. For the re asons stated he rein, the pla intiffs’ motion 1 will be g rante d in part and de nied in part. I. Background The fa cts of the c ase a

re se t out in I n re Rail F reig ht Fuel Surc harg e Antitrust L itig., 587 F . Supp. 2d 27, 29-31 (D.D.C. 2008) a nd I n re Rail F reig ht Fuel Surc harg e Antitrust L itig., 258 F .R.D. 168, 168-69 (D.D .C. 2009). Discover y in this case has be en prog ressingon a rolling basis, beg inning August 1, 2009. Scheduling Orde r ¶ 1. The parties a g ree d to attempt to “front-loa d” this production. I d. The parties spe nt months negotiatingsear ch ter ms, filters and protoc ols for the sea rch, r eviewing , and producingthe immense discover y in this case, eve ntually

seeking judicial intervention re g arding I N RE: RAI LFREI GHT F UEL SURCHARGE ANTI TRUST L I TI GATI ON
This document re lates to: AL LDI RECT PUR CHASER CAS ES

The motion to compel was f iled under se al. Pursuant to the protec tive order in this case, 1 plaintiffs also filed a

public version of the motion. Both the seale d motion and the public version bear their own doc ket number. This opinion will refe r to the docke t number of the public f ilings of all docume nts.a set of c ircumscr ibed issues that they wer e not able to r esolve. In re Rail F reig ht Fuel Surc harg e Antitrust L itig., No. 07- MC-489, 2009 WL 3443563, at *1 (D.D .C. Oct. 23, 2009). In response , I order ed ce rtain docume nts to be produce d. I d. The pa rties have continued with discover y , and, afte r g reat effor

t to work tog ether

to narrow

the discover

y disputes betwee n them, have br oug ht

sever al discre te issues reg arding privileg es asse rted by

defe ndants BN SF Railway Company (“B NSF”) and Union Pacif ic Railroad Company

(“U P”) bef

ore the Court. First, plaintiffs asse rt that BN SF has improper ly withheld communications involving the A ssociation of Amer ican Railroads (“ AAR”). Plaintiffs’ Me morandum of L aw in Support of The ir Motion to C ompel Production of Docume nts (“Pls. Memo”) [#340-1] at 1. Second, plaintiffs claim that both BN SF and UP, pursuant to the wor k-produc t doctrine, have improper ly withheld documents pre pare d in

connec tion with the 2006 hearing s of the Surfa ce T ranspor tation Boa

rd (“ STB”) . I d. at 2. L astly , plaintiffs argue that B NSF has a lso improperly claimed attorney -client privileg e for documents prepa red f or the STB proce eding s by non-attorne y

or unspec ified per sonnel. I d. I will consider

eac h issue raised by

plaintiffs in turn. II. Docum ents Shared Am ong Defend ants and AAR M em bers Plaintiffs argue that B NSF has imprope rly withheld two kinds of documents shar ed betwee n BN SF and AA R members: (1) doc uments orig inating w ith in-house counsel that we re then share d with other def endants a nd other membe rs of AA R; and (2) c ommunications betwee n AAR membership a

nd counsel to the AA R or an AAR membe r. Pls. Memo. 6. Pl aintiffs ar g ue that the first ty

pe of doc ument loses any protec tion provided by

the attorne y -client privileg e beca use distributing a

privileg ed docume nt to a third party destroy s the privileg e. I d. The purpose of the attorney -client privileg e is to protect a client’s conf

idence s to his or
2her attorney , there by encour ag ing a

n open and hone st relationship betwee n the client and the attorney . Coastal States Gas Corp. v. De p’t of Ene rg y , 617 F.2d 854, 862 ( D.C. Cir. 1980). The public interest in the obser vance of law a

nd administration is promoted by the “f ull and fra

nk communications betwe en attorne y s and their c lients.” Upjohn Co. v. United States, 449 U.S. 383, 389 (1981). The communication from a n attorney may be prote cted if it is based on c onfidential information provided by

the client. Mea d Data Ce nt., I nc. v. U.S. Dep’ t of Air F orce , 566 F.2d 242, 254 (D.C. Cir. 1977). Thus, “w hen an attorney convey s to his client facts ac quired fr om other pe rsons or sourc es, those fa cts are not privileg ed.” I n re Sea led Case, 737 F .2d 94, 99 (D.C. Cir. 1984) (citingBr inton v. Dep’t of State, 636 F .2d 600, 604 (D.C.Cir. 1980), ce rt. denied, 452 U.S. 905 (1981)). F urther, a s plaintiffs argue, the c ommunication of the otherw ise privileg ed information to a third par ty can vitiate the protec tion created by the privileg e. There wer e six documents in issue; howeve r, B NSF has w ithdrawn its claim of privileg e reg ardingminutes from a AA R committ ee me eting wher e counse l for the AA R provided advice to committee members. Opposition of De fenda nts BNSF Ra ilway

Company

and Union Pacif

ic Railroad Company

to Plainti ffs’ Motion to Compel Production of Documents [#341] (“D ef. Opp.”) at 12. B NSF cla ims that the remainingfive doc uments are protec ted by attorney -client privileg e by

virtue of B NSF’s membe rship in the AAR. Counsel for AA R provides leg al advice to an AAR committee, whic h consists of members f rom multipl e cor

porations. Thus, B NSF argues that there is no third party prese nt to viti ate the c laim of privileg e bec ause a ll members of the committee shar e the pr otection of the pr ivilege . I t give s me pause to a llow categ orica lly communications amongdiffer ent companie s to be cloake d in privileg e by virtue of their membership in the same trade org anization. Such a finding of privileg e could se riously expand
3the attorne y -client privileg e beyond its normal, common law constra ints. Thus, Iwill order the

rema ining doc uments be produc ed for an in camera revie w. I

will review the documents to confirm that the attorney -client c ommunications refle cted in the doc uments are betwee n BN SF as a committee membe r in the AAR and c ounsel for A AR and re late dire ctly to the work of the committee. B NSF should provide the doc uments to chamber s no later than 5 da y s from the date of this order. There is an additional document at issue withheld by UP. I t is a memorandum conta ining information re lated to a phone call with B NSF. I have little doubt that this document is properly withheld, as it is in fact an inter nal UP document. I

will nonetheless orde r it be produc ed for an in camera revie w, so as to re solve any doubt left by

UP’s privileg e logthat this document is indeed a privileg ed docume nt. III. Work-P roduct P rivilege and Docum ents P repare d in Connection w ith the STB P roce eding Plaintiffs seek to compel doc uments prepa red in pre paration for the STB he aringon fuel surcha rg es. In doing so, pla intiffs claim that the STB he aringdoes not qualify as litigation; thus , the attorne y

work-pr oduct re lated to the hea ring is not protected by

the privileg e. MTC 11. Def endants c ounter that the he aringwas a n “‘a dversa

rial administrative matter [] ’” a nd falls within the scope of the privileg e. Opp. 8 ( citing G ener al Elec . Co. v. J ohnson, No. 00-CV-2855, 2006 WL 2616187, at *11 (D.D .C. Sept. 12, 2006)). The que stion of whether

the ex partehear ing by

the STB qua lifies as litigation, so as to protec t the work-pr oduct is complex. P laintiffs claim that the funda mental question is whether

4the STB he aringprovided the oppor tunity for c ross-examination; without t hat, the proc eeding s do not qualify

as litigation and the privileg e does not a pply

. Rule 26(b)(3) of the F eder al Rules of Civil P roce dure pr otects fr om production written materia ls that lawy ers pr epar e “in a nticipation of litigation or f or trial.” F ed. R. Civ. P. 26(b)(3). Acc ording to that Rule, “documents and ta ng ible things that a

re pr epar ed in anticipation of litigation or for

trial by or for another party or its repre sentative” may not be discover ed. F ed. R. Civ. P . 26(b)( 3)(A) . The purpose of the privileg e is to protect the a dversa ry proce ss by

ensuring that lawy ers wor

k with a “de g ree of privac y , fre e fr om unnece ssary intrusion by

opposing pa

rties and their c ounsel.” Hic kman v. Tay lor, 329 U.S. 495, 510 (1947). Ne ither Rule 26(b)( 3) nor Hickman pr ovide a c lear

delineation of what is to be consider ed “litig ation.” I n distinguishing betwee n proce eding s which qualify as litigation and those that do not, the adve rsar ial nature of the proc eedingis chara cter istic of litigation. See, e .g ., Amobi v. District of Columbia Dep’t of Corrs., 262 F.R.D. 45, 52 ( D.D.C. 2009) (f inding that be cause arbitration was adve rsar ial in nature it can be c hara cter ized as liti g ation). “The proce edingfor whic h documents ar e pre pare d need not a ctually

take plac e in a c ourt of re cord, a s long a s the proce edingis adversa rial in nature .” Edna

Selan Epstein, The A ttorney -Client Privil eg e and the Work-Product Doctrine 827 (5th ed. 2007). T he cha lleng e in deter mining whe ther the STB proce eding s are to be consider ed litigation is the unfortunate desc ription of the proc eeding s as ex parte . Courts have found patent application proc eeding s, which ar e primar ily ex partein nature, do not c onstitut e litigation beca use they are not adver sarial in natur e. See, e .g ., McCook Metals L .L .C. v. Alcoa, Inc., 192 F.R.D. 242, 260 (N .D. I ll. 2000) (citingOak Indus. v. Z enith Electronic s Corp., 687 F. Supp. 369, 374 (N.D. I ll. 1988); Avery Dennison Corp. v. UCB Films PL C, No. 95-CV-6351, 1998 WL

5703647, at *6 (N.D . I ll. Sept. 30, 1998)). A closer look at the STB pr ocee dings, how ever , reve als that there is a signif icant adve rsar ial aspec t to the proce eding s. Even a simple re view of the STB doc ket for the proce eding s shows that there w as a ba ck and f orth amongthe ca

rrier s and shippers, with some of the r ailway s even pr oviding wr itten responses to filing s made by shippers. See, e.g ., Union Pacific Reply to Arkansa s Electric Cooperative Corpor ation, Opp. at Ex 6. Plaintiffs argue that ther e is a brig ht-line test to determine whether a proc eedingqualifies as litigation: the parties must have the r ight to cr oss-examine witnesses. They rely on United States v. America

n Tel. & Tel. Co., 86 F.R.D. 603, 627 (D .D.C. 1979), for the supposition t hat the “r ight to cr oss-examine is the determinative f actor ” of whether

a proc eedingis lit iga

tion. MTC 11 (quoting United States v. A T& T, 86 F.R.D. at 627-28). Unf ortunately , AT& T does not provide such a

clea r-c ut definition. AT&T was a n anti-trust ca se with consider able discove ry . Two Specia l Masters, Ge offr ey C. Hazard, Jr. and Paul R. Ri ce, issued Guidelines for the Resolution of Privil eg e Claims to the parties. Guideline 15 states that:

I n the terms “material pre pare d in anticipation of litigation or for trial”: (a) “L itigation” inc ludes a proc eedingin a cour t or administrative tribunal in which the pa

rties have the rig ht to cross-examine witnesses or to subjec t an opposing party ’s pre sentation of proof to equivalent disputation. (b) “ I n anticipation” mea

ns any time after

initiation of the proce edingor such e arlier time as the par

ty who normally

would initiate the proce edinghad tentatively formulated a

claim, demand, or cha rg e. When the mater ial was pre pare d by a par ty who normally would initiate such a proc eeding , that person must establish the date when the c laim, demand, or c harg e wa s tentatively

formulated. When the material wa s prepa red by a potential defe ndant or re spondent, that person must establish the date whe n he re ceive d a dema nd or wa rning of cha

rg es or 6information from a n outside source that a cla im, demand, or c harg e was in prospe ct. AT& T, 86 F.R.D. at 627. Accor ding to the guidelines “litiga tion” includes proc eeding s with the rig ht to cross-examine or the r ight “ to subject an opposingparty ’s pre sentation of proof to equivalent disputation.” I d. Plaintiffs look to t hese guidelines for the ir definition of litigation, but the g uidelines do not support a brig ht-line rule that the r ight to cr oss-examine witnesses is

cruc ial to a proc eedingbeing denominated a s “litigation,” since they admit of the possibilit y

that a disputation equivalent to cr oss-examination suffices. More to the point, g uidelines by Special Master s, no matter how disting uished, are not controlling prec edent. The proper focus should be whether

the proc eedingrequire d the lawy er to function as lawy ers usua lly do at a tria l so that the proce edingcan be classified a s “litiga tion.” This properly

seg reg ates the tra

nsactional wor

k of lawyers who dr aft c ontrac ts or provide leg al advice from lawyers who ha ve to re prese nt clients befor e tribunals that have the power to adjudicate their clients’ r ights, whatever the nature of the proc eeding . I f the tribunal ha s the power to adjudicate those rig hts and demands that the pa rty befor e it either make a c erta in showing or disprove a

particula r alleg ation, the proc ess is adver sarial by its very nature and surely qualifies as litig ation. I t is irrational to sugg est that such a pr ocess c an neve r be denominated a s “litigation”, no matter how se vere its consequenc es, and e ven thoug h the lawy er prepa red f or it and func tions during it in the exact same ma nner a s she would if the c ase w ere being tried to a jury . I t surely cannot be the law that a

proce edingthat did not feature crossexamination is never

“litiga tion”, but beatinga tra ffic ticke t is because one ca n cross-e x amine the cop.

7The STB called f or the he aringafte r re ceivingcomplaints about the fue l surchar g es utiliz ed by

the ra il carr iers. The STB soug ht to rule on the “r easona bleness” of

the pra ctice, a

nd ultimately

conclude d that the pra ctice w as unre asonable . I n prepa ring for the he aring s, there is no doubt that both the car riers a nd the shippers a

pproac hed the he aring s as adve rsar ial in nature. Represe ntatives from the c arr iers we re subjec ted to questioning by the B oard. A dditional briefing s were reque sted and filed, a nd the question of re asonable ness was a djudicated. That the proce eding bore the descr iption “ex parte” a nd that it lacked the f

ormal structure of cr ossexamination of witnesses does not lessen its adver sarial nature. The Fe dera l Court of Claims has

car efully parse d the adve rsar ial and non-a dversa rial aspe cts of ce rtain administrative proce eding s, and dete rmined that “doc uments that were cre ated ‘ with an eye towar ds’ adve rsar ial aspec ts of administrative proc eeding s . . . and that would not have been c reated in simil ar f orm but for these adver sarial a spects, should be a ffor ded prote ction as docume nts created ‘in anticipation of litigation’ under the w ork produc t doctrine of RCFC 26(b)( 3).” Pac ific Ga s and 2 Elec. Co. v. United States, 69 F ed. Cl. 784, 808 (Fe d. Cl. 2006). This approac h is applicable here . The doc uments defe ndants seek to pr otect in this case r elate spe cifica lly to the STB proce eding s on fuel surc harg es and w ould not have bee n cre ated other wise. As the Court of Claims notes, thi s approa ch is consistent with the privileg e bec ause it does not allow a n opponent to “ride on the litigator’ s wits,” while at the same time not expanding the pr ivilege beyond its bounds. I d. Def

endants will not have to produc e these documents.

Rules of the Court of F eder al Claims 2 8IV. Att orney-C lient P rivilege and Docum ents P repare d in Connection w ith the STB P roce eding Plaintiffs also seek to compe l documents from de fenda nt BNSF related to the STB proce eding claimed to be pr otected by attorney -client privileg e. Plaintiffs claim that B NSF’s privileg e log s are insufficient to dete rmine whe ther some of the documents involve a

ttorney
client communications or whe ther some of the documents re late primar ily to business, technica l or other non- leg al matters. Plaintiffs’ Reply Memorandum in Support of Motion to Compel Production of Docume nts [ #351] at 5. There w as some conf usion betwee n the par

ties relate d to differ ent ver sions of the privileg e log based on f amily -re lationships between doc uments ( i.e. pare nt-child documents, ty pically e-ma ils and attachme nts). Reg ardle ss of that confusion, ba sed on my rea ding of

the privileg e log , Ihave a lrea dy found many

of the doc uments for whic h BN SF claims the attorne y -client privileg e to be pr otected by the work- product privileg e. The rema ining documents for

which only

the attorne y -client privileg e has be en cla imed, with the exception of two documents, appe ar to re late spec ifically to prepa rations for the STB proc eeding s. Ishall revie w in camera the fe w documents for which only

the attorne y -client privileg e has be en claimed. Note that one of the documents not re lated to the STB pr ocee dings r efle cts the leg al 3 advice of the AA R law depa rtment. This is one of the same documents discussed in Section I Iof this opini on to be re viewed in camera
.

These doc uments are : BNSF _L OG0000786-787, B NSF_L OG0000788-789, 3 BN SF_L OG0002184, B NSF_L OG0002238, B NSF_L OG0002273-274, B NSF_L OG0010048- 049, BN SF_L OG0010071, B NSF_L OG0010455-056, B NSF_L OG0011328, BN SF_L OG0011337, and B NSF_L OG0011338. 9V. Conclusion

For the re asons her ein discussed, the Court will g rant in par t and deny

in part plaintiffs’ motion to compel. An order a ccompa nies this opinion.

__________________________________________ J OHN M. F ACCI OL A UNI TED STATES MAGI STRATE J UDGE

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