                             UNITED STATES DISTRICT COURT
                             FOR THE DISTRICT OF COLUMBIA



  IN RE: RAIL FREIGHT FUEL
  SURCHARGE ANTITRUST LITIGATION
                                                    MDL Docket No. 1869
 This document relates to:                          Misc. No. 07-489 (PLF/JMF/AK)

 ALL DIRECT PURCHASER CASES



                                  MEMORANDUM OPINION

       Now pending before the Court and ready for resolution is Plaintiffs’ Motion to Compel

Production of Documents (“MTC”) [#340].1 For the reasons stated herein, the plaintiffs’ motion

will be granted in part and denied in part.

                                          I. Background

       The facts of the case are set out in In re Rail Freight Fuel Surcharge Antitrust

Litig., 587 F. Supp. 2d 27, 29-31 (D.D.C. 2008) and In re Rail Freight Fuel Surcharge Antitrust

Litig., 258 F.R.D. 168, 168-69 (D.D.C. 2009).

       Discovery in this case has been progressing on a rolling basis, beginning August 1, 2009.

Scheduling Order ¶ 1. The parties agreed to attempt to “front-load” this production. Id. The

parties spent months negotiating search terms, filters and protocols for the search, reviewing, and

producing the immense discovery in this case, eventually seeking judicial intervention regarding



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          The motion to compel was filed under seal. Pursuant to the protective order in this case,
plaintiffs also filed a public version of the motion. Both the sealed motion and the public version
bear their own docket number. This opinion will refer to the docket number of the public filings
of all documents.
a set of circumscribed issues that they were not able to resolve. In re Rail Freight Fuel Surcharge

Antitrust Litig., No. 07-MC-489, 2009 WL 3443563, at *1 (D.D.C. Oct. 23, 2009). In response, I

ordered certain documents to be produced. Id. The parties have continued with discovery, and,

after great effort to work together to narrow the discovery disputes between them, have brought

several discrete issues regarding privileges asserted by defendants BNSF Railway Company

(“BNSF”) and Union Pacific Railroad Company (“UP”) before the Court. First, plaintiffs assert

that BNSF has improperly withheld communications involving the Association of American

Railroads (“AAR”). Plaintiffs’ Memorandum of Law in Support of Their Motion to Compel

Production of Documents (“Pls. Memo”) [#340-1] at 1. Second, plaintiffs claim that both BNSF

and UP, pursuant to the work-product doctrine, have improperly withheld documents prepared in

connection with the 2006 hearings of the Surface Transportation Board (“STB”). Id. at 2. Lastly,

plaintiffs argue that BNSF has also improperly claimed attorney-client privilege for documents

prepared for the STB proceedings by non-attorney or unspecified personnel. Id. I will consider

each issue raised by plaintiffs in turn.

                II. Documents Shared Among Defendants and AAR Members

        Plaintiffs argue that BNSF has improperly withheld two kinds of documents shared

between BNSF and AAR members: (1) documents originating with in-house counsel that were

then shared with other defendants and other members of AAR; and (2) communications between

AAR membership and counsel to the AAR or an AAR member. Pls. Memo. 6. Plaintiffs argue

that the first type of document loses any protection provided by the attorney-client privilege

because distributing a privileged document to a third party destroys the privilege. Id.

        The purpose of the attorney-client privilege is to protect a client’s confidences to his or


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her attorney, thereby encouraging an open and honest relationship between the client and the

attorney. Coastal States Gas Corp. v. Dep’t of Energy, 617 F.2d 854, 862 (D.C. Cir. 1980). The

public interest in the observance of law and administration is promoted by the “full and frank

communications between attorneys and their clients.” Upjohn Co. v. United States, 449 U.S. 383,

389 (1981). The communication from an attorney may be protected if it is based on confidential

information provided by the client. Mead Data Cent., Inc. v. U.S. Dep’t of Air Force, 566 F.2d

242, 254 (D.C. Cir. 1977). Thus, “when an attorney conveys to his client facts acquired from

other persons or sources, those facts are not privileged.” In re Sealed Case, 737 F.2d 94, 99 (D.C.

Cir. 1984) (citing Brinton v. Dep’t of State, 636 F.2d 600, 604 (D.C.Cir. 1980), cert. denied, 452

U.S. 905 (1981)). Further, as plaintiffs argue, the communication of the otherwise privileged

information to a third party can vitiate the protection created by the privilege.

       There were six documents in issue; however, BNSF has withdrawn its claim of privilege

regarding minutes from a AAR committee meeting where counsel for the AAR provided advice

to committee members. Opposition of Defendants BNSF Railway Company and Union Pacific

Railroad Company to Plaintiffs’ Motion to Compel Production of Documents [#341] (“Def.

Opp.”) at 12. BNSF claims that the remaining five documents are protected by attorney-client

privilege by virtue of BNSF’s membership in the AAR. Counsel for AAR provides legal advice

to an AAR committee, which consists of members from multiple corporations. Thus, BNSF

argues that there is no third party present to vitiate the claim of privilege because all members of

the committee share the protection of the privilege. It gives me pause to allow categorically

communications among different companies to be cloaked in privilege by virtue of their

membership in the same trade organization. Such a finding of privilege could seriously expand


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the attorney-client privilege beyond its normal, common law constraints. Thus, I will order the

remaining documents be produced for an in camera review. I will review the documents to

confirm that the attorney-client communications reflected in the documents are between BNSF as

a committee member in the AAR and counsel for AAR and relate directly to the work of the

committee. BNSF should provide the documents to chambers no later than 5 days from the date

of this order.

        There is an additional document at issue withheld by UP. It is a memorandum containing

information related to a phone call with BNSF. I have little doubt that this document is properly

withheld, as it is in fact an internal UP document. I will nonetheless order it be produced for an

in camera review, so as to resolve any doubt left by UP’s privilege log that this document is

indeed a privileged document.

     III. Work-Product Privilege and Documents Prepared in Connection with the STB
                                       Proceeding

        Plaintiffs seek to compel documents prepared in preparation for the STB hearing on fuel

surcharges. In doing so, plaintiffs claim that the STB hearing does not qualify as litigation; thus,

the attorney work-product related to the hearing is not protected by the privilege. MTC 11.

Defendants counter that the hearing was an “‘adversarial administrative matter[]’” and falls

within the scope of the privilege. Opp. 8 (citing General Elec. Co. v. Johnson, No. 00-CV-2855,

2006 WL 2616187, at *11 (D.D.C. Sept. 12, 2006)).

        The question of whether the ex parte hearing by the STB qualifies as litigation, so as to

protect the work-product is complex. Plaintiffs claim that the fundamental question is whether




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the STB hearing provided the opportunity for cross-examination; without that, the proceedings

do not qualify as litigation and the privilege does not apply.

       Rule 26(b)(3) of the Federal Rules of Civil Procedure protects from production written

materials that lawyers prepare “in anticipation of litigation or for trial.” Fed. R. Civ. P. 26(b)(3).

According to that Rule, “documents and tangible things that are prepared in anticipation of

litigation or for trial by or for another party or its representative” may not be discovered. Fed. R.

Civ. P. 26(b)(3)(A). The purpose of the privilege is to protect the adversary process by ensuring

that lawyers work with a “degree of privacy, free from unnecessary intrusion by opposing parties

and their counsel.” Hickman v. Taylor, 329 U.S. 495, 510 (1947). Neither Rule 26(b)(3) nor

Hickman provide a clear delineation of what is to be considered “litigation.” In distinguishing

between proceedings which qualify as litigation and those that do not, the adversarial nature of

the proceeding is characteristic of litigation. See, e.g., Amobi v. District of Columbia Dep’t of

Corrs., 262 F.R.D. 45, 52 (D.D.C. 2009) (finding that because arbitration was adversarial in

nature it can be characterized as litigation). “The proceeding for which documents are prepared

need not actually take place in a court of record, as long as the proceeding is adversarial in

nature.” Edna Selan Epstein, The Attorney-Client Privilege and the Work-Product Doctrine 827

(5th ed. 2007). The challenge in determining whether the STB proceedings are to be considered

litigation is the unfortunate description of the proceedings as ex parte. Courts have found patent

application proceedings, which are primarily ex parte in nature, do not constitute litigation

because they are not adversarial in nature. See, e.g., McCook Metals L.L.C. v. Alcoa, Inc., 192

F.R.D. 242, 260 (N.D. Ill. 2000) (citing Oak Indus. v. Zenith Electronics Corp., 687 F. Supp.

369, 374 (N.D. Ill. 1988); Avery Dennison Corp. v. UCB Films PLC, No. 95-CV-6351, 1998 WL


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703647, at *6 (N.D. Ill. Sept. 30, 1998)). A closer look at the STB proceedings, however,

reveals that there is a significant adversarial aspect to the proceedings. Even a simple review of

the STB docket for the proceedings shows that there was a back and forth among the carriers and

shippers, with some of the railways even providing written responses to filings made by shippers.

See, e.g., Union Pacific Reply to Arkansas Electric Cooperative Corporation, Opp. at Ex 6.

       Plaintiffs argue that there is a bright-line test to determine whether a proceeding qualifies

as litigation: the parties must have the right to cross-examine witnesses. They rely on United

States v. American Tel. & Tel. Co., 86 F.R.D. 603, 627 (D.D.C. 1979), for the supposition that

the “right to cross-examine is the determinative factor” of whether a proceeding is litigation.

MTC 11 (quoting United States v. AT&T, 86 F.R.D. at 627-28). Unfortunately, AT&T does not

provide such a clear-cut definition. AT&T was an anti-trust case with considerable discovery.

Two Special Masters, Geoffrey C. Hazard, Jr. and Paul R. Rice, issued Guidelines for the

Resolution of Privilege Claims to the parties. Guideline 15 states that:

               In the terms “material prepared in anticipation of litigation or for
               trial”:

               (a) “Litigation” includes a proceeding in a court or administrative
               tribunal in which the parties have the right to cross-examine
               witnesses or to subject an opposing party’s presentation of proof to
               equivalent disputation.

               (b) “In anticipation” means any time after initiation of the
               proceeding or such earlier time as the party who normally would
               initiate the proceeding had tentatively formulated a claim, demand,
               or charge. When the material was prepared by a party who
               normally would initiate such a proceeding, that person must
               establish the date when the claim, demand, or charge was
               tentatively formulated. When the material was prepared by a
               potential defendant or respondent, that person must establish the
               date when he received a demand or warning of charges or


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               information from an outside source that a claim, demand, or charge
               was in prospect.

AT&T, 86 F.R.D. at 627. According to the guidelines “litigation” includes proceedings with the

right to cross-examine or the right “to subject an opposing party’s presentation of proof to

equivalent disputation.” Id. Plaintiffs look to these guidelines for their definition of litigation,

but the guidelines do not support a bright-line rule that the right to cross-examine witnesses is

crucial to a proceeding being denominated as “litigation,” since they admit of the possibility that

a disputation equivalent to cross-examination suffices.

       More to the point, guidelines by Special Masters, no matter how distinguished, are not

controlling precedent. The proper focus should be whether the proceeding required the lawyer to

function as lawyers usually do at a trial so that the proceeding can be classified as “litigation.”

This properly segregates the transactional work of lawyers who draft contracts or provide legal

advice from lawyers who have to represent clients before tribunals that have the power to

adjudicate their clients’ rights, whatever the nature of the proceeding. If the tribunal has the

power to adjudicate those rights and demands that the party before it either make a certain

showing or disprove a particular allegation, the process is adversarial by its very nature and

surely qualifies as litigation. It is irrational to suggest that such a process can never be

denominated as “litigation”, no matter how severe its consequences, and even though the lawyer

prepared for it and functions during it in the exact same manner as she would if the case were

being tried to a jury. It surely cannot be the law that a proceeding that did not feature cross-

examination is never “litigation”, but beating a traffic ticket is because one can cross-examine the

cop.



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       The STB called for the hearing after receiving complaints about the fuel surcharges

utilized by the rail carriers. The STB sought to rule on the “reasonableness” of the practice, and

ultimately concluded that the practice was unreasonable. In preparing for the hearings, there is

no doubt that both the carriers and the shippers approached the hearings as adversarial in nature.

Representatives from the carriers were subjected to questioning by the Board. Additional

briefings were requested and filed, and the question of reasonableness was adjudicated. That the

proceeding bore the description “ex parte” and that it lacked the formal structure of cross-

examination of witnesses does not lessen its adversarial nature. The Federal Court of Claims has

carefully parsed the adversarial and non-adversarial aspects of certain administrative

proceedings, and determined that “documents that were created ‘with an eye towards’ adversarial

aspects of administrative proceedings . . . and that would not have been created in similar form

but for these adversarial aspects, should be afforded protection as documents created ‘in

anticipation of litigation’ under the work product doctrine of RCFC2 26(b)(3).” Pacific Gas and

Elec. Co. v. United States, 69 Fed. Cl. 784, 808 (Fed. Cl. 2006). This approach is applicable

here. The documents defendants seek to protect in this case relate specifically to the STB

proceedings on fuel surcharges and would not have been created otherwise. As the Court of

Claims notes, this approach is consistent with the privilege because it does not allow an opponent

to “ride on the litigator’s wits,” while at the same time not expanding the privilege beyond its

bounds. Id. Defendants will not have to produce these documents.




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           Rules of the Court of Federal Claims

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   IV. Attorney-Client Privilege and Documents Prepared in Connection with the STB
                                      Proceeding

       Plaintiffs also seek to compel documents from defendant BNSF related to the STB

proceeding claimed to be protected by attorney-client privilege. Plaintiffs claim that BNSF’s

privilege logs are insufficient to determine whether some of the documents involve attorney-

client communications or whether some of the documents relate primarily to business, technical

or other non-legal matters. Plaintiffs’ Reply Memorandum in Support of Motion to Compel

Production of Documents [#351] at 5. There was some confusion between the parties related to

different versions of the privilege log based on family-relationships between documents (i.e.

parent-child documents, typically e-mails and attachments). Regardless of that confusion, based

on my reading of the privilege log, I have already found many of the documents for which BNSF

claims the attorney-client privilege to be protected by the work-product privilege. The remaining

documents for which only the attorney-client privilege has been claimed, with the exception of

two documents, appear to relate specifically to preparations for the STB proceedings. I shall

review in camera the few documents for which only the attorney-client privilege has been

claimed.3 Note that one of the documents not related to the STB proceedings reflects the legal

advice of the AAR law department. This is one of the same documents discussed in Section II of

this opinion to be reviewed in camera.




       3
       These documents are: BNSF_LOG0000786-787, BNSF_LOG0000788-789,
BNSF_LOG0002184, BNSF_LOG0002238, BNSF_LOG0002273-274, BNSF_LOG0010048-
049, BNSF_LOG0010071, BNSF_LOG0010455-056, BNSF_LOG0011328,
BNSF_LOG0011337, and BNSF_LOG0011338.

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                                          V. Conclusion

       For the reasons herein discussed, the Court will grant in part and deny in part plaintiffs’

motion to compel. An order accompanies this opinion.

                                                                      Digitally signed by
                                                                      John M. Facciola
                                                                      Date: 2010.06.07
                                                                      14:23:14 -04'00'
                                              __________________________________________
                                              JOHN M. FACCIOLA
                                              UNITED STATES MAGISTRATE JUDGE




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