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

IN RE: RAIL F REIGHT F UEL SURCHARGE ANTITRUST L ITIGATION MDL Doc ket No. 1869 Misc. No. 07- 489 (P LF/AK /JMF ) Thi s Docum ent Re lates To: ALL DIRECT PUR CHASER CASES

MEMORAN DUM OP INIONTabl e of Contents

INTRODUCTION. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1 I. P roce dural Hi story. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1 II. Defendan ts’ Ar gum ents. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1 A. Defendan ts’ Specific Interrogat ories and Plaintiff s’ Responses. . . . . . . . . . . . 1 1. CSXT Interrogat ory 5. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 2 2. NS Interrogat ories 1, 2(e ) and 2(f ). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 5 3. NS Interrogat ory 2(a) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 11 4. CSXT Interrogat ory 4. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 12 5. NS Interrogat ory 2(h), CSXT Inter rogator y 6 and B NSF Interr ogatory 5. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 13 B. Defendan ts’ Re quests f or Adm ission s. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 16 1. Requests F or Adm ission 153, 154 and 155. . . . . . . . . . . . . . . . . . . . . . . 19 2. Requests F or Adm ission 82 and 98-102. . . . . . . . . . . . . . . . . . . . . . . . . 19 CONCLUSION. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 21INTRODUCTION

Now pendingbefor e the Court is Def endants’ Motion to Compel Answers to De fenda nts’ Interrog atories a

nd Requests for A dmissions and Memora nda in Support There of [#506]
. Def endants have moved to compe l plaintiffs to rectify claimed de ficienc ies in the response s to seven inter

rog atories a

nd nine re quests for a dmissions . For the followingrea sons, the motion will be g rante d in part and de nied in part. I. P roce dural Hi story The pa rties wer e eng ag ed in discover y for ne arly

two y ear s and exchang ed millions of pag es of doc uments and depose d dozens of individuals. Near the end of discove ry , on October 20, 2010, defe ndants serve d upon plaintiffs interrog atories a nd reque sts for admissions. [ #506] at 3. Plaintiffs init ially

responde d on November 30, 2010, ref

ere ncingan “84- pag e Na

rrative Fa ctual Statement” ( “nar

rative” ) for

a number of their r esponses. I d. Def endants objec ted to this form of r esponse a

nd, afte r consultations betwe en the pa rties, plaintiffs supplemented the ir response s on Fe bruar

y 8, and May

11, 2011. I d. Def

endants still take issue with the form a nd substance of

the re sponses and have filed this motion to compel to rectify these pe rce ived defic iencies. I d. at 4. II. Defendan ts’ Ar gum ents A. Defendan ts’ Specific Interrogat ories and Plaintiff s’ Responses Def endants have moved the Court to compe l plaintiffs to respond to nine of the interrog atories, a

rguing that the substance a nd form of the response s are either insuff icient or do not conform to Rule 33 of the F eder al Rules of Civil P roce dure. F eder al Rule of Civil P roce dure 33 provides that “[e]ach inter rog atory must, to t he extent it is not objected to, be a nswere d separ ately and fully in writing unde r oath.” Fe d. R. Civ. P . 33(b)( 3). The a nswer must be “ true,expli cit, responsive, c omplete, and c andid.” Equa l Rights Ctr. v. PostProps., Inc., 246 F .R.D. 29,

32 (D.D.C. 2007) ( quoting Ha nsel v. Shell Oil Corp., 169 F.R.D. 303, 305 (E. D. Pa. 1996) ). As this Court has previously

held, “inter

rog atories a

re not only

an information gatheringtool, but also an opportunity

to require one' s opponent to state its positi on on an issue in controve rsy in writingand under

oath.” Covad Comnc’ ns Co. v. Revonet, Inc., 258 F .R.D. 7, 20 (D.D.C. 2009). 1. CSXT I nterrog atory 5 In CSXT I nterrog atory

5, defe ndants asked that plaintiffs identify “ea ch communica

tion amongor betwe en any

two or more e ntities or persons that plaintiffs conte nd, ‘standingalone, itself constitutes an unlawf ul ag ree ment.’” [#506] at 6. P laintiffs ref used to answe r this interrog atory

“on the ground[s] that it calls for leg al ana ly sis by [p] laintiffs’ counse l” and “impermissibly

calls for attorney work produc t.” [#506-8] at 99-100. I n the motion to compel, defe ndants argue that under Rule 33 of the F eder al Rules of Civil P roce dure, suc h “conte ntion interrog atories” are permitted. [#506] at 6. Plaintiffs insist , howeve r, that duringmeet and confe rs held to re solve their diffe renc es it has bec ome clea r that def endants a re de mandingthat plaintiffs sort their evide nce into dire ct and c ircumstantial evidenc e and that the distinction betwee n those two ty

pes of e vidence is considere d by courts to be mea

ningle ss. They

rely on United States v. MD & Va. Milk Prod. Assoc., 22 F .R.D. 300, 301 (D.D.C. 1958) a nd Kendr ick v. Sulli van 125 F .R.D. 1, 2 (D.D.C. 1989), r ev’d on othe r g rounds, 487 U.S. 589 (1988), whic h they insist hol d that, while interrog atories may leg itimately

require a par

ty to specify

its contentions, they

may not seek disclosure of their leg al theorie s. Plainti ffs’ O pposition t o Def endants’ Motion to Compel Answers to Interrog atories a nd Requests for A dmission [ #510] at 11. They further point to Kendrick’s pe rmitting a pa rty to ask whethe r it contende d cer tain
2portions of g overnme ntal guidelines wer e unlawf ul and why , but not permitting a pa rty to ask whether , if any

portion of the guidelines wer e unconstitutional, the rema ining por tions of the regulatory

scheme wer e seve rable . [#510] at 11-12. Rule 33 permits interrog atories that “ [ask] for a n opinion or contention that relates to fac t or the a pplication of law to fa ct.” F ed. R. Civ. P. 33(a)(2). “ Contention int err og atories” that ask a par ty what it contends or to state all the fa cts upon which it bases a contention ar e per fec tly leg itimate. Ba

rnes v. District of

Columbi a, 270 F .R.D. 21, 24 (D.D.C. 2010) ( quoting Eve rett v. USAir Group, Inc., 165 F .R.D. 1, 3 (D.D.C. 1995)) (F acc iola, J .). Indeed, the advisory committee note to Rule 33 indicates that c ontention interrog atories “ can be most useful in
narr owingand shar

peningthe issues, which is a major purpose of

discovery .” B arne s, 270 F.R.D. at 24 (quotingFe d. R. Civ. P 33 advisory committee’s note ( 1970)). In Ba rnes, I quoted the dec ision in King v. E.F . Hutton & Co., 117 F .R.D. 2, 5 n.3 (D.D.C. 1987), which also re jected the argument, made a g ain her e, that answ ering a conte ntion interrog atory

invades the w ork produc t privileg e bec ause it re quires a pa rty to confirm a contention or e x plain how ce rtain fa cts support a c ontention. In King , J udg e B urnett stated:

[I ]n answeringcontention interrog atories the pa rty is only g iving the fa ctual spec ifics which the pa rty contends supports a c laim, and this in no way

impinges on the attorney' s impressions or analy sis as to how the attorne y

will endeavor

to apply the law to the f

acts. I f this elementary

principle we re not a

pplicable, c ontention interrog atories would not exist. King , 117 F.R.D. at 5 n.3. See Oklahoma v. T y son Foods, Inc., 262 F .R.D. 617, 630 (N.D. Okla
. 2009) (“ Rule 33 expressly permits contention interrog atories that de lve into opinion work product.” ). Thus, any

broad c laim that an interrog atory is impermissibl e bec ause it probe s a

3party ’s contentions as to how the la w applies to the fa cts is wrong . Such probingis perfe ctly permissible and doe s not invade the wor k product privileg e mer ely beca use the pa rty ’s counse l must disclose the rea soning a pplying the law to the fa cts. Thus, and whatever may have happene d duringthe meeting s amongcounsel, I rea d defe ndants’ interr og atory to be demanding to know whether

these plaintiffs a

re g oing to c ontend that they have e vidence that there occur red a moment or moments in time when ce rtain spec ified per sons ag ree d to fuel surc harg es in a
manner that in itself was a c onspiracy that violated the antitrust laws. I f plaintiffs so conte nd, they must say who those per sons were and whe n those agree ments occur red. O n the other ha d, if plaintiffs do not so contend and intend instea d to rely on evidenc e fr om which such a n agree ment can be inferr ed, they

must say so in response a

nd that will be the end of

the matter. As to the authorities upon which pla intiffs rely , Ido not believe that the de cision of the Court in 1958, United States v. Md & Va . Milk P rod. Ass’n, whic h held that askinga par ty on what grounds it relies to establish that a c erta in entity was not “a

cooper ative assoc iation of persons e ng ag ed in the produc tion of milk” was impermissible, survived the a mendment of the 1 Rule 33 that permits such an obviously leg itimate contention inquiry
. As to Kendric k, Inote that J udg e Richey left open the possibili ty

that the interrog atories he found imper

missibl e mig ht be leg itimate once more discovery had take n place . Kendr ick, 125 F.R.D. at 4. Moreover , with all due re spect to the judg e, I am af raid that I do not understand his conclusion that askinga par ty whether it contends that a c erta in provision is unconstitutional is leg itimate while askingit whether it conte nds that the offe nding pr ovision is s ever able is not. In my view, they

are near ly

identical and e qually

leg itimate contention inquiries. Whil e my view of
United States v. Md & V a. Milk Prod. Ass’n, 22 F.R.D. at 301. 1 4the leg itimacy of conte ntion interrog atories may be ag g ressive, I

can f ind nothing in the wor ding of the rule or its interpretation that could possibly bar a sking a

party what it contends a

nd why
. 2. NS Interrog atories 1, 2( e) a nd 2(f) Def endants take issue with the form that plaintiffs used to r espond to their interr og atories, namely the nar rative. [#506] at 1. Defenda nts argue that plaintiffs have fa iled to “sepa rate ly and fully” answ er the interrog atories a s require d by Rule 33 of the F eder al Rules of Civil P roce dure. I d. Def endants a ssert that plaintiffs’ r esponses to the interr og atories, whic h incorporate the
narr ative by

ref ere nce in a

nsweringeac h interrog atory , “dire ct def endants to swee ping por

tions (at times, more tha

n 100 para g raphs) of it without reg ard to the spe cific que stion asked in the interrog atory .” I d. at 4. Def endants a rgue that “[p]lainti ffs’ [n]arrative de feats the very purpose of conte ntion interrog atories by makingit impos sible to identify plaintiffs’ spec ific conte ntions and the e vidence underlying e ach.” I d. Def endants fur

ther a rgue that the method by

which plaintiffs have responde d to their interrog atories ha s “re ndere d [i nterrog atories] useless for the their purpose of ‘na

rrowingand shar

peningissues’ and ‘ requir[ing ] one’s opponent to state its position on an issue in controversy .’” [#506] at 5 (quoting B anks v. Senate Serg eant at Arms, 222 F.R.D. 7, 13 (D .D.C. 2004)). Specifica lly , NS Interrog atory 1 asks plaintiffs to identify “the ‘ prec ise Rail Fuel Surchar g e Mec hanisms that are the object’ of the a lleg ed unlawf ul conduct, including‘trig g er price , surcha

rg e per centa g e and inc reme nt, fuel price index, [ and] whether the mecha nism was rate -base d or mileag e-ba sed and whether you contend that the me chanism wa s a “standa rd” Rail Fue l Surcharg e.” [#506] at 8. NS I nterrog atory 2(e) asks plaintiffs to identify “‘e very alleg ed object or r esult of the unlawf ul ag ree ment’”, a

nd NS Interrog atory

2(f) asks that plaintiffs
5identify

“the ‘ prec ise terms of the a lleg ed unlawf ul agree ment’ into which plaintiffs alleg e that defe ndants enter ed.” [#506] at 9. In response to these three interrog atories , plaintiffs objecte d to it on the gr ound that it 2
was va gue, over

broad a nd unduly burdensome to the e x tent it seeks “( i) ea ch surc harg e perc entag e ac tually

yielded by

the fue l surchar g e mec hanism in question during the Class Period and (ii) e ach f

uel surcha

rg e imposed duringthe Class Period that resulted f rom, and wa s aff

ecte d by , [d] efe ndant’s conspiratorial conduc t.” [#506-8] at 104. They also objecte d to the word “standa rd” a s beingundefine d. I d. Wit hout waivingthose objections and their Gene ral Objections, plaintiffs re sponded that the objec t of defe ndants’ conspira cy was “ to apply coordinated fue l surchar g es as unifor mly as possible, to as many

fre ight shipments as possible with the express g oal of 100% c overa g e.” I d. Plaintiffs indicate that the fue l surchar g es that re sulted from the c onspiracy are “those
rec orded in [d] efe ndants’ tra nsactional database s that meet the c riteria f or inclusion in the Class specifie d in [ p]l aintiffs’ c lass cer tification pape rs” a

nd that the burde n of identifying e ach of those fuel surc harg es fr om those databa ses is “at be st equivalent for [d] efe ndants as it is for [p] laintiffs, and is likely

less burdensome f

or [d] efe ndants.” I d. Plaintiffs then directe d defe ndants to para g raphs 16- 109 and 113 of the narr ative 3 beca use it expl ains how “[d]efendants’ c onspiracy involved coordination and broad a pplication of [d] efe ndants’ fue l surchar g es applied to c arloa d, intermodal and e nergy shipments.” [#506-8]

The re sponses to eac h interrog atory are substantially

the same a

nd the cour

t will refer

to 2 just the response to NS Interrog atory 1. The na rrative contains 127 total numbere d para g raphs. 3 6at 104, 106. They then direc t defe ndants to para g raphs 25, 30, 32, 41- 43, 57-58 , 95 and 101- 105. I d. at 105. Def endants a rgue in their motion to compel that the portions of the na rrative they

wer e direc ted to rar ely

addre ss the specific details of the a lleg ed unlawf ul ag ree ment. [#506] at 9. For example, defe ndants note that while plaintiffs c ontend that the unlawf ul agree ment beg an in Marc h of 2003, the va st majority of the pa ragraphs c ited to in the response c oncer n conduct we ll afte r that time period. I d. Whil e def endants c oncede that plaintiffs may rely on the conduc t descr ibed in the nar

rative a s evidenc e of a cts done in fur thera nce of the alleg ed conspira cy , those acts a re distinct from the c onspiratorial a g ree ment itself and they are entitled to know what defe ndants agree d to as opposed to only what plaintiffs c ontend the def endants did to ca

rry out the alleg ed agree ment once r eac hed. I d. They also contend tha

t plaintiffs once e x cluded mileag e base d surcha rg es fr om the class definition and have so advised the pr esidingjudge . Neve rtheless, a ccor ding to the de fenda nts, plaintiffs now deny

reque sts that they

admit that mileag e base d surcha rg es we re not pa

rt of the conspirac y . [#506] at 10-11. Ac cordingto defe ndants, they are entitled to know what def endants
are claimed to have ag ree d to at the inception of the conspirac y . Finally , defe ndants argue that plaintiffs’ pointingthem to the transac tional data ea ch defe ndant produc ed is insufficient; ac cordingto defe ndants, “ther e ar e many fuel surc harg es contained w ithin the transactional data, and de fenda nts would have to guess which one s meet plaintiffs’ vague and ( ever -evolving ) cla ss definition.” [#506] at 13 n.9. Plaintiffs, insis ting that the use of a na rrative statement is a leg itimate manner of
answe ringspecific interrog atories, insist that the portions of the nar rative to whic h they

point
7establish the nature of the de fenda nts’ agree ment in 2003, to coordinate the ir fuel surc harg e prog rams and “ apply

them as widely

a[s] possible and, as unifor mly as possible, to as many fre ight shipments as possible with the express g oal of 100 % c overa g e.” [#510] at 5 (quoting [#506-8] at ¶16). T hey

insist t hat they

have a lso identified ever y fuel surc harg e that wa s the result of the c onspiracy

as NS Interrog atory

1 demande d beca

use the na rrative indicates that: “while [d]efendants on ra re oc casion imposed fue l-surcha rg e for mulas from their standa

rd mecha nisms, these variations nonethe less ‘re sulted from the c onspiracy beca use they wer e neg otiated off the dominant, standard f ormulas and we re a

pplied more broa dly

and at more onerous leve ls due to the widespre ad application of [d] efe ndants’ coor dinated mec hanisms.” [#510] (quoting[#506-8] at 104). Thus, plaintiffs insist that they contend that “ ever

y fuel surcha rg e satisfying inc lusion in t he Class result[ed] from the conspirac y .” I d. Plaintiffs, relying on a

decla ration by Marc L . Gre enwa ld, also claim that they would have to g o throug h 260 g iga by tes of data

and 70 million qualifying shipments and that to “identify ever y fuel-sur char g e var iation, their terms, and the surcha rg es they g ener ated throug hout the Class Period, would be over ly burdensome.” [#510] at 8. They point out that such an ef fort “w ould be par

ticularly unjustified since [p] laintiffs’ expert at Class ce rtification alr eady analy zed [ d]efendants’ tr ansac tion data and the shipments in the Class to calc ulate over char g es suffe red by

Class members.” I d. at 9. Finally , they

protest that the def

endants have indicate d that they are awa re of the nature of the fue l surchar g es at issue be cause they opposed cla ss cer

tification on the grounds that the Class definition embrac ed a va

riety of fue l surchar g e for

mulas. Plainti ffs a lso indicate that they have made it clea

r that mileag e base d surcha rg es ar e not and ne ver ha

ve bee n included in the Class
8definition.

Def endants c ounter that plaintiffs’ narr ative eva des the simple questions proposed: (1) what spec ific rule inde x , or indices, ( if any ) did defe ndants alleg edly agree to? ; (2) what specific trig g er, pr ice, slope a

nd other pa

rticular c hara cter istics did defenda nts agree to? ; or do plaintiffs contend that de fenda

nts did not agr ee on a

ny such deta ils and instead ea ch def endant de termined the spec ific deta ils for its respec tive fuel surc harg es on its own? ; (3) what do plaintiffs consider a “standa rd fue l-surcha

rg e mec hanism”? ; (4) is it a fuel surc harg e published on a de fenda nt’s website or some thing e lse, and what are its terms? ; (5) what else do plaintiffs conte nd defe ndants specific ally

ag ree d to? [#506] at 12-13. To beg in, since plaintiffs answ ere d the interrog atories, their objections to them are moot. In any event, I do not find these interr og atories va gue. The y clea rly and spec ifically

demand the information soug ht and plaintiffs’ objec tion to the vagueness of the word “ standard” is
overc ome by

assig ning to the w ord its dictionary meaningof “use d or ac cepte d as normal or
aver ag e.” O x ford Online E ng lish Dictionary . eng lish.ox forddictionar ies.com/ (last visited on Nov. 1, 2011). Second, the que stion presented is not whethe r, as a matter of le g al theory , a nar rative statement is or is not in compliance with the oblig ation to answer an interr og atory

separ ately

and fully with an answe r that is expli cit, responsive, c omplete and c andid. See F ed. R. Civ. P. 33(b)( 3) and Equa l Rights Ctr., 246 F.R.D. at 32. As the c ases whic h the par ties throw at ea ch other like da

rts indicate, a

narr ative stateme nt may

or may not comply

with this obl iga

tion dependingon the question prese nted. I f the que stion is how fast were you g oing when you hit the other c ar, a

narr ative answ er that speaks of the acc ident but does not mention how fast the pe rson 9answe ringwas drivingwould not comply that person’ s obligation to answer the que stion. Finally , g iven the cost of disc overy and the oblig ation imposed by Rule 1 of the F eder al Rules of Civil P roce dure to c onstrue and a dminist er the Fe dera l Rules of Civil Procedur e “to
secur e the just, speedy , and inexpensive deter mination of ever

y action,” ha

ving the opposing party and then the judg e re ad many para g raphs of

narr ative whe n most of them are not even direc ted to the spec ific question pre sented is waste ful and not to be e ncoura g ed par ticularly when the answe ringparty

can isolate the portions of the na rra tive that truly

speak to the que stion prese nted and pr ovide the answ er. J udg ed by

these c riteria, pla intiffs’ re sponses to the interrog atories f ail. First, and to be blunt, while Icannot pr etend the f amiliarity with the voluminous records that c ounsel have , I have r ead the sections of the na rra tive to which plaintiffs point and I cannot f ind the answe rs to defe ndants’ interr og atories. Plaintiffs, in the nar rative, c erta inly

fulsomely

descr ibe how the defe ndants alleg edly

took conce rted a ction ag ainst their customers, disguised their doingso and then attempted “ to apply

coordinated fue l surchar g es as unifor mly as possible, to as many

fre ight shipments as possible with the ex press g oal of 100% c overa g e.” [#506-8] at 104. But, as defe ndants corr ectly

point out in t heir re ply

submissi on, neither the y

nor I understand f

rom the
narr ative whe ther plaintiffs c laim that at the inception of the conspirac y defe ndants specif

ically agree d as to the pre cise mec hanisms they would use to ac complish what plaintiffs complain they intended to do. Did they

ag ree that some occ urre nce or event would trig g er the ir universa l adoption of a me ans of imposingon their customer s the fuel surc harg e? Did they instead simply agree that they

would impose a fue l surchar g e on all their c ustomers but left open whe ther they would implement their agree ment by eac h defe ndant beingfre e to do so in its own manner?

10Whil e plaintiffs do spec ify that defe ndants on rar e occ asions imposed fuel-sur charg e for mulas that differ ed fr om their standar d mecha nisms, they

insist t hat eve n these va

riations resulted f

rom the conspira cy

beca use “the y wer e neg otiated off the dominant, standard f ormulas and we re applied more broadly

and at more onerous leve ls due to the widespre ad application of [d] efe ndants’ coor dinated mec hanisms.” [#510] at 12. It theref ore f ollows that every

surcha rg e “satisfying the criter ia for inc lusion in t he Class ‘re sult[ ed] from the conspira cy .’” I d. at 8. Whil e that indicate s that plaintiffs are contendingthat all surcha rg es re sulted from the conspirac y , it avoids the question of what wa s the agree ment ab initio and whe ther the defe ndants agree d, ag ain ab initio , to the mecha nisms that would be used to bringabout the results about which pla intiffs complain. Ialso believe that plaintiffs’ complaint that they are require d to examine gig aby tes of data to answer the interrog atories misinterpre ts the question. The question does not dema nd that eac h surcha rg e be ide ntified but that plaintiffs state once and for all what the or igina l agree ment was with specific a

nswers to the que stions posed. 3. NS Interrog atory

2(a) In NS Interrog atory

2(a) , defe ndants asked that plaintiffs identify “the pe ople that,
acc ordingto plaintiffs, knowing ly participated in the alleg ed unlawf ul ag ree ment.” [#506] at 13- 14. In response to this i nterrog atory , plaintiffs direc ted def endants to par agraphs 16- 109 of the
narr ative. [#506-8] at 106. Defenda nts argue that the c itation to nearly 100 para graphs f

rom the
narr ative fa ils to i dentify

which of “ the more tha

n 50 employ ees of

defe ndants mentioned throug hout these par ag raphs knowing ly participated in the alleg ed agree ment, as opposed to unknowing ly

car ried out ce rtain aspe cts of the a lleg ed agree ment.” [#506] at 14.
11The same analy sis used in the previous sec tion is also applicable her e. I there fore conclude that plaintiffs’ answ ers a re insuff icient. 4. CSXT I nterrog atory 4 In CSXT I nterrog atory

4, defe ndants asked whether plaintiffs contend “ that defe ndants agree d not to neg otiate discounts on rail surc harg es and not to off er a ny rail surc harg e other

than the spec ific fue l char g e def endants a lleg edly

agree d to.” [#506] at 18. As just expl ained, plaintiffs answe red this interrog atory by stating that they

“conte nd that [d] efe ndants agree d to apply their coor dinated fue l surchar g e programs as unifor mly as possible, and to as many fre ight shipments as possible, with the ex press g oal of 100% c overa g e.” [#506-8] at 99. Plainti ffs further stated that “[i] n further ance of this conspirac y , [d] efe ndants adopted a nd enfor ced policie s ag ainst neg otiating discounts on fue l surchar g es or other wise deviating f

rom the coor dinated fue l surcha rg es.” I d. In support of this contention, plaintiffs ref err ed def endants to par agraphs 16- 52, 62, 79-94 and 100- 103 of the na rrative. I d. In their motion, defenda nts argue that by

using the phrase “in furthe ranc e of a conspirac y ,” plaintiffs avoid answer ing the interrog atory . Def endants cite to Diamond Chemica l Co. v. Atofina Chemicals, Inc., 268 F . Supp. 2d 1, 17 (D.D.C 2003), for the pr oposition t hat an a ct “in fur thera nce of a conspira cy

is not necessa

rily the same a s an ac t agree d to as part of

the unlawf

ul ag ree ment underlying the conspirac y .” [#506] at 19. The point is well taken insofa r as plaintiffs ha

ve not spec ifically

stated whe ther they contend that their

adoptingof policies ag ainst neg otiating discounts on fue l surchar g es or otherwise de viating f

rom the coor dinated fue l surchar g es wa s pursuant to an a g ree ment among them. Their a

nswers a re, a s just ex plained, insuffic ient. They shall supplement their answe r by indicatingwhether

they contend that de fenda

nts’ adoption of such policies w as pursua nt to an
12agree ment amongthem. 5. NS Interrog atory

2(h), CSXT Interrog atory 6 and B NSF Interrog atory 5 In NS Interrog atory

2(h), CSXT Interrog atory 6 and B NSF Interrog atory 5, defe ndants asked that plaintiffs identify “whe n they

contend the a lleg ed conspira cy ended.” [#506] at 15. Plaintiffs responded to these interrog atories by stating tha

t they wer e “not pr esently

awa re of any evidenc e that any

[d] efe ndant af

firmatively

withdrew f

rom the conspira cy .” [#506-8] at 100-01. Def endants a rgue that whe ther plaintiffs “ contend the a lleg ed agree ment ended is re levant to both the scope and natur e of the alleg ed agree ment and to the re asonable ness of a ny theory of injury and dama g es it alleg edly

cause d.” [#506] at 16. Plaintiffs’ response s to NS I nterrog atory 2(h), CSXT I

nterrog atory

6 and B NSF Interrog atory

5 indicate that they

are not awar e of a

ny information re lating to the e nd of the alleg ed conspira cy . That, howe ver, e vades the question of whethe r or not they contend that they know when the ag ree ment ended. Plaintiffs have indicate d that they curr ently are not in possession of such information and they cannot be compelled to turn ove r somethingthat they do not curre ntly

possess. Be that as it may , plaintiffs are oblige d to supplement their answe r if they should become a

war e of infor

mation that would permit a re asonable person to conc lude that the conspirac y

char g ed had e nded. See F ed. R. Civ. P. 26(a)(1). I n the meanwhile, they

will be held to have a nswere d the interrog atories by stating the y

do not know when the c onspiracy ended a nd
are not contendingthat it ended on a pa rticular date. The c onsequenc e of the ir not knowingthat fac t for the theor

y of their c ase a

nd the asc erta inment of damag es will have to be resolved on that basis. 6. CSXT I nterrog atory 7
13In CSXT I nterrog atory 7, plaintiffs asked de fenda nts whether the y

contend, that “ the Rail Fue l Surcharg e for

mulas that [d] efe ndants used bef ore the start of the a lleg ed unlawf ul agree ment would not have r esulted in [d] efe ndants rec eivingmore re venue tha n the incre mental fuel c osts [ d]efendants incur red dur ing the Proposed class Per iod, give n the ac tual price s [d] efe ndants paid for

fuel duringthe per iod.” [#506] , Appx. A. P laintiffs responde d to this interrog atory

by objectingon the g rounds that it is “vague and a mbiguous” and “r eser

ve the right to make all appr opriate a

rguments on this point. . . should [ d]efendants at any stag e of this proce edingput this at iss ue.” [#506-8] at 102. Defe ndants argue in their motion to compel that beca use plaintiffs have made “ repe ated c laims that eac h defe ndant re cover ed fue l char g es ‘ove r and above the ac tual incre ase in [fuel] costs,’” they should have some a

nswers to this interrog atory

“re adily available .” [#506] at 18. In their opposition to the moti on to compel, plaintiffs objec t to this interrog atory on the g rounds that it is a hy

pothetical question and is ther efor e not per mitted under Rule 33. [#510] at 16. Plaintiffs cite to Kendric k, 125 F.R.D. at 3, for the pr oposition t hat interrog atories “ seekinga party ’s position ‘on what ar e, in essenc e, hy potheticals’ a

re not pe rmitted by

the Fe dera l Rules.” I d. They insist t hat they

cannot be oblige d to answer a question that is not based on the f acts of the ca se “but ra

ther with re spect to a c ounterfa ctual sce nario–spec ifically , what would have happene d with [ d]efendants’ va rious pre- conspirac y

fuel surc harg es abse nt the conspirac y .” I d. They insist t hat “Rule 33 doe s not permit such interrog atories.” I d. They do not cite the Rule itself in support of this contention, for it contains no such pr ohibition. I nstead they rely on the followingstatement in Kendr ick:

Given this, it appear s to the Court that HHS’ “fa ctual sce nario”
14interrog atories e ffe ctively ask the plaintiffs to express their leg al positions on what are, in e ssence , hy potheticals. Rule 33(b) doe s not permit such discover y . Instead, a s noted above, Rule 33(b)’s languag e re quires that the c ontentions or leg al opinions of an interog atee must relate to, or be applied to, a f act. At this stage , it appear s to the Court that the dear th of fac ts in the rec ord (a s emphasized by the fa ct-fr ee nature of the interrog atories themselves) c auses most of HHS' interrog atories to fa ll outsi de the scope of Rule 33(b). The de cision in O' Br ien v. Internat'l B roth. of Elec . Workers, 443 F. Supp. 1182, 1187-88 (N .D. Ga. 1977) is instructive. In O' Brien, the cour t dealt with two “conte ntion” interrog atories. Ac cording to the plaintiff, the a

uthor of the inter

rog atories, Rule 33(b) authorized ea ch. The court c ompelled a r esponse to the f irst, but ref used to do so as to the sec ond. The fir st interrog atory

asked the defe ndant (a

union) to describe why cer tain of the plaintiff' s acts, deta iled elsewhe re in the interrog atories, we re illeg al. The Court found this inquiry permissible under Rule 33( b), bec ause it sought an “a pplication of the law to the c entra l fac ts of the ca se.” I d. at 1187. The se cond interrog atory , on the other ha nd, asked the defe ndant to descr ibe why cer tain provisions of the union constitution upon which the defe ndant re lied wer e not “deprived of f orce and ef

fec t” by the fede ral labor

laws. The c ourt ref

used to requir e a r esponse to this latter inquiry

beca use, in its view, the interrog atory soug ht “pure leg al conc lusions” which wer e not rooted in the f acts of the case . The c ourt found the inter

rog atory beyond the scope of Rule 33(b). I d. at 1187-88. Kendr ick, 125 F.R.D. at 3. First, I do not understand f

rom wher e in the rule could come a n absolute prohibition on any hy pothetical questions whatsoe ver. F or example, askinga plaintiff whe ther she c ontends that she would have become a prima ba llerina ha d she not bee n injured in the ca r cr ash, is a leg itimate inquiry

for it g oes direc tly

to the damag es which she is seeking . I t also has nothing whatsoeve r to do with the application of a law to a fac t. Thus, an absolute prohibition on any
15hy

pothetical questions ca

nnot possibly

be justified. Moreove r, whatever

the leg itimacy

of the distinction the O’B rien c ourt drew betwee n the application of la

w to a fa ct and to pure leg al theorie s, this int err og atory involves neither. Answer ing this interr og atory does not involve applying a ny law whatsoever. It asks instead whether plaintiffs are contendingthat a par ticular re sult would have obtained ha d there been no conspirac y . There can be no leg itimate objection to the question merely beca use plaintiffs cla im there was a

conspirac y

and fr om their point of view, the que stion is hy pothetical. B. Defendan ts’ Re quests f or Adm ission s Def endants a lso object to plaintiffs’ re sponses to nine of their r equests for admissions (“RF As”). Def endants propounde d the followingreque sts for admission:

• RFA 82 “ Admit that, during the Class Period, absent the a lleg ed conspira cy , it was in ea ch [d] efe ndant’s unilater al, ec onomic self-inter est to char g e ea ch customer the highest total, all-in one pric e ea ch customer would pay

for the Ra il Fr eig ht Transporta

tion Services ea ch [d] efe ndant provided.” [#506] , Appx. A.

• RFA 98 “ Admit that, absent the alleg ed conspira cy , at least some Class member s that paid a Rail F uel Surcha rg e for the first time befor e the star t of the alleg ed conspirac y

would have pa id a Rail Fue l Surcharg e af ter the star

t of the alleg ed conspirac y .” I d.

• RFA 99 “ Admit that, absent the alleg ed conspira cy , at least some Class member s that paid a Rate -base d Rail Fuel Surcha rg e for the first time befor e the star t of the
16alleg ed conspira cy would have pa id a Rate-ba sed Rail Fue l Surcharg e af ter the start of the a lleg ed conspira cy .” I d.

• RFA 100 “ Admit that, during the Class Period, absent the a lleg ed conspira cy , it would have be en in ea ch [d] efe ndant’s unilater al, ec onomic self intere st to charg e Rail Fuel Surcha

rg es for Rail Fre ight Tr ansportation Servic es.” I d.

• RFA 101 “ Admit that, during the Class Period, absent the a lleg ed conspira cy , it would have be en in ea ch [d] efe ndant’s unilater al, ec onomic self-inter est to char g e Rate-ba sed Rail Fue l Surcharg es for Rail Fre ight Tr ansportation Servic es.” I d.

• RFA 102 “ Admit that, during the Class Period, absent the a lleg ed conspira cy , it would have be en in ea ch [d] efe ndant’s unilater al self- interest to incre ase Rail Ba se Rates for

Rail Fre ight Tr ansportation Servic es as a means of g ener ating
reve nues to rec over inc reme ntal costs, including f uel costs.” I d.

• RFA 153: “A dmit that the alleg ed fa ct that a [d]efendant a dopted the same Rail Fue l Surcharg e as a

nother [d] efe ndant does not by itself establish that the Rail Fue l Surcharg e wa s the product of a conspira cy

betwee n or among[d] efe ndants.” I d.

• RFA 154: “A dmit that the alleg ed fa ct that [d] efe ndant g ener ated more reve nues than its actual fue l costs, either for an individual movement or a ll movements in ag g reg ate dur ing a

particula r time period, through the applica tion of a Rail Fue l Surchar g e does not by

itself establish that the Rail Fue l Surcharg e wa s the product of a c onspiracy

betwee n or among[d] efe ndants.” I d.

• RFA 155: “A dmit that the alleg ed fa ct that a [d]efendant g ener ated more reve nues 17than its actual fue l costs, either for an individual movement or a ll movements in ag g reg ate dur ing a

particula r time period, through the price s it charg ed for Rail Fr eig ht Transporta

tion Services does not by itself establish that the Rail Fue l Surchar g e wa s the product of a conspira cy

betwee n or among[d] efe ndants.” I d. Rule 36 of the F eder al Rules of Civil P roce dure pr ovides that a “ party may serve upon any other pa rty a wr itten reque st for the a dmission . . . of the truth of any matters within the scope of Rule 26(b)( 1) set for

th in the reque st that relate to state ments or opinions of fac t or of the application of la

w to fac t.” Fe d. R. Civ. P . 36(a) . “Rule 36 allows litiga nts to request admissions as to a broa d rang e of f

acts, includingultimate fac ts, as well as a pplications of law to fa ct.” Carney v. I RS, 258 F.3d 415, 419 (5th Cir. 2001) (upholdingthat party could be c ompelled to admit that proof of c laim conclusively established the va lidity

of that cla im). Tillamook Count y Smoker, Inc. v. Tillamook County Creame ry

Ass’n, 333 F . Supp. 2d 975, 983-84 (D. Or e 2004) (enf orcingadmission by

party that its actions violated other pa rty ’s rig hts in a tradema

rk). See Turk v. CitiMortga g e, No. 05- 70386, 2005 WL2090888, at *3-4 (E .D. Mich. Aug . 29, 2005) (Rule 36(a ) may

seek a dmission of ult imate fa cts eve n if dispositi ve of the entire c ase; plaintiff could be r equire d to admit that she defa ulted, bank wa s entitled to forec losure, she g ot proper notice, and that bank was not a “debt c ollector” as that word is de fined in the F air Debt Collection Act, 15 U.S.C. § 1681). Courts draw the line, how ever , when a reque st for admission demands that a pa rty admit what a la w or re gulation means. See D isability Rights Council of Gre ater Washington v. WMATA, 234 F.R.D. 1, 3 (D.D .C. 2006). Plaintiffs objected to RFAs 153, 154 a nd 155 on the g rounds that they call for “pure leg al
18conclusions” a nd ref used to answe r RFAs 82 a nd 98-102 as “ incomplete hy pothetical counter fac tuals”. [#506] at 19-20. 1. Requests For

Admission 153, 154 and 155 Def endants a rgue in their motion to compel that RFAs 153, 154 a nd 155 do not ask for “pure leg al conc lusions” but in fact ask f or “a n application of la

w to the spec ific fa cts of this
case ” and a

re the ref ore pe rmissible. [ #506] at 20. As to RFAs 153, 154 and 155, the line betwee n demandingthe application of a law to a fac t and demandinga par ty admit the validity

of a pr oposition of law can a dmittedly waiver . But, these RFA s do not even c ome close to that line; they do not ask plaintiffs to, for e x ample, interpre t a statute but instead ask the m to admit that if certain f act did not exist , a ce rtain leg al conclusion would follow. This Court has alre ady ruled that unde r Rule 36, re quests relating to the application of law to fac t are permissible. Michilin Prosperity Co., L td. v. Fellowe s Mfg . Co., No. 04-1025, 2006 WL1441575, at *1 (D.D .C. 2006). RFAs 153, 154 and 155 a re suc h reque sts and ther efor e must be answe red by plaintiffs. 2. Requests For

Admission 82 and 98-102 Wit h reg ards to the “ incomplete counte rfa ctual hy potheticals” obje ction for RF As 82 and 98-102, def

endants a rgue that plaintiffs have fa iled to offer any case law supportingtheir objection. [#506] at 20. Additionally , in their reply memorandum, de fenda

nts argue that the RFAs at issue a

re in fa ct askingfor the a

pplication of established a ntitrust case lawto the fac ts of this case, a

nd are not dealingin hy

potheticals. Reply

Memorandum in F urther Support of Def endants’ Motion to Compel Answers to De fenda nts’ Interrog atories a

nd Requests for Admission [ #515] at 20.
1 9Wit h reg ards to RFA s 82 and 98-102, ther e is nothing in the pe rtinent Rule that prec ludes

a re quest bec ause it is asks a pa rty to make an a ssumption as the premise of the r equest. The only restric tion on a reque st that appea rs in the Rule is that it be within the scope of the discovery permitted by

Rule 26(b)(1) and that it relate to “fa cts, the applica tion of law to fac t, or opinions about either.” F ed. R. Civ. P. 36(a). That a party is asked to make a

n assumption as a condition of its answer c annot possibly run af oul of the only

require ments in the Rule. Indeed, a s explained, a par

ty can be reque sted to admit the ultim ate issue in a ma nner that has a dispositive eff ect on the c ase. Sure ly , it swallows the came l and strains at the gnat to say that a par ty can be asked that it, for example, brea ched the contra ct without justi fication but cannot be aske d to admit that a ce rtain conse quence would have f ollowed had a

cer tain event not occ urre d. In any event, these RFAs do not pre sent hy pothetical situations as plaintiffs contend. Under Rule 36 of the F eder al Rules of Civil P roce dure, de fenda nts are pe rmitted to serve upon plaintiffs reque sts for admission “re lating to: fa cts, the applica tion of law to fac t, or opinions about either .” F ed. R. Civ. P. 36(a)(1). T he RFA s at issue here fall within the categ ory of opinions about facts a

nd the application of law to fac t. These RF As ask plaintiffs to “a dmit that if a c erta in fac tual situation is found to ex ist, a cer tain . . . outcome re sults, [ which] is precisely the kind of re quest contemplate d by Rule 36(a) .” Wagner v. St. Paul Fire & Ma rine Ins. Co., 238 F.R.D. 418, 423-24 (

N.D.W.Va. 2006).

2 0CONCLUSION

For the re asons set for

th above, De fenda

nts’ Motion to C ompel Answer s to Defe ndants’ Interrog atories a

nd Requests for A dmissions and Memora ndum in Support Thereof [#506] is GR ANTED in part and DENIED in part. An orde r ac companies this memora ndum opinion.

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

2 1