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 Plaintiffs filed a motion for an in camera revie w of doc uments withheld by Union Pacific Railroad Company

(“U P”) as pr ivilege d. See Plaintiffs’ Motion for a n In Camera Review of Documents Withheld by

Union Pacific Railroa d Company as Privileg ed or Protec ted [#356]
. 1 Plaintiffs requeste d that the Court order UP to provide all documents withheld base d on privileg e
asser tions (or other pr otections) for an in camera revie w of the doc uments, either by the Court or by a Court-a ppointed specia l master, with UP to pay the spec ial master' s compensation. Plaintiffs alleg ed that UP’s cla ims of privileg e we re unr eliable, c laiming that UP re dacte d multipl e copie s of a doc ument, shielding c ritical, but not privileg ed, evide nce suppor ting plaintiffs' claims, and that UP provided a ffirmatively misleading justifications for the re dactions in its privil eg e log . See Plaintiffs’ Memora ndum in Support of Moti on for a n In Camera Review of Doc uments Wi thheld by Union Pacific Railroa d Company as Privileg ed or Protec ted [#356-1] at 1. UP claimed that the issue involved only one mistakenly -re dacte d document, which w as 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 was filed unde r sea l. Pursuant to the protective or der in this case , plaintiffs also 1 filed a public ve rsion of the motion. The sea led motion and the public ver sion bear the ir own docket number s. This opinion wil l refe r to the docke t numbers of the public f ilings of a ll documents.previously produce d in its entirety , and that plaintiffs’ c oncer ns were otherwise w ithout merit. See De fenda

nt Union Pacific’s O pposition t o Plaintiffs’ Motion for an In Camera Review of Documents Withheld by

Union Pacific Railroa d Company as Privileg ed or Protec ted [#363] at 1. Plaintiffs’ reply

brief indicated that another improper r edac tion and privileg e asse rtion was found on the day

the brief was due . See Plaintiffs’ Reply Memorandum in Support of Motion for a n In Camera Review of D ocuments Withheld by Union Pacific Railroa d Company as Privileg ed or Protected [#364] at 1. In my Orde r of June 28, 2010, Inoted that, while the two doc uments raised suf ficient
conce rn to war

rant c onsideringwhether

an in camera revie w would be a ppropriate and could be
acc omplished with a rea sonable amount of eff ort, the time and e x pense of a full in camera revie w of a ll documents for whic h privileg e wa s claimed would re nder the exercise inef ficient. Thus, UP was instructed to propose to plaintiffs a statistically -valid methodolog y for se lectinga random sample of

documents fr om its privil eg e log , and, followinga mee t and conf er of the parties a nd joint adoption of a final methodolog y , UP would apply the methodolog y

and produc e the sample to cha

mbers for an in camera revie w. Memora ndum Order

of June 28, 2010 [ #374]. Ihave now

revie wed those doc uments and have not found any simil ar e rror s or any
rea son to believe that the log g ing w as done so c are lessly or mistakenly

that Ihave r eason to doubt its i ntegrity

or the g ood faith in which it was done . To the contra ry , Ifound it to have be en done most car efully . Indeed, I was struc k by

the ca re w ith which single sentenc es we re r edac ted from a doc ument that was other wise disclosed. More spe cifica lly , Ihave not f ound any instances whe re I

could say

that the privileg e wa s claimed mer ely

beca use a la wyer’ s name a

ppear s in a communication. That wa s simply not the 2case in the documents I examined. Ihave the ref

ore c oncluded that the pr ivilege claims wer e honestly and ca ref ully made. I find no war

rant whatsoever f

or any further relief , let alone the dr aconia

n reme dy of re -doingthe entire pr ivilege log.

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

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