Evans v. National Railroad Passenger Corp.

Opinion

basis for the requisite showing." Id. The privilege also "permits an exchange of confidential

information when the parties have clearly and specifically agreed in some [other] manner to pool

information for a common goal." Id. at 16 ( citation omitted). But in these latter circumstances,

"the party's burden of proving that a statement was made in the common interest will

undoubtedly be more difficult." Id. The party asserting the privilege bears the burden of proving

the "existence, terms and scope" of any oral or implied common-interest agreement. Intex, 471

F. Supp. 2d at 16.

Evans has failed to produce evidence to support the existence of such an agreement. She

appears to acknowledge that she and McDade never reduced any such agreement to writing, and

instead contends that "Evans and McDade need not have a written agreement to have a 'common

legal interest' and pursue 'a coordinated legal strategy."' Opp'n at 6 (quoting Intex, 471 F. Supp.

2d at 17). Yet she offers no more than the outline of an argument for why she has proven a

common-interest agreement with McDade exists in fact. Indeed, she asserts in a single sentence

that the Court may infer an agreement because she "and McDade discussed suing Amtrak,

retained the same counsel, and then filed charges asserting the same discrimination." Opp'n at 6.

This argument fails several times over. For one thing, it is woefully underdeveloped. Evans

fails to identify specific factual evidence in the record on which the Court could base findings

concerning the "existence, terms and scope" of the putative common-interest agreement. Intex,

471 F. Supp. 2d at 16. "[A] litigant has an obligation to spell out its arguments squarely and

distinctly," and "[i]t is not enough merely to mention a possible argument in the most skeletal

way, leaving the court to do counsel's work, create the ossature for the argument, and put flesh

on its bones." Schneider v. Kissinger, 412 F.3d 190, 200 n.1 (D.C. Cir. 2005) (quoting United

States v. Zannino, 895 F.2d 1, 17 (1st Cir. 1990)).