In Re: Rail Freight Fuel Surcharge Antitrust Litigation - Mdl 1869

• Court: District Court, District of Columbia
• Decided: September 28, 2010
• Docket: Misc. No. 2007-0489
• Status: Published

Opinion

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

Plaintiffs filed a motion for an in camera review of documents withheld by Union Pacific

Railroad Company (“UP”) as privileged. See Plaintiffs’ Motion for an In Camera Review of

Documents Withheld by Union Pacific Railroad Company as Privileged or Protected [#356].1

Plaintiffs requested that the Court order UP to provide all documents withheld based on privilege

assertions (or other protections) for an in camera review of the documents, either by the Court or

by a Court-appointed special master, with UP to pay the special master's compensation.

Plaintiffs alleged that UP’s claims of privilege were unreliable, claiming that UP redacted

multiple copies of a document, shielding critical, but not privileged, evidence supporting

plaintiffs' claims, and that UP provided affirmatively misleading justifications for the redactions

in its privilege log. See Plaintiffs’ Memorandum in Support of Motion for an In Camera Review

of Documents Withheld by Union Pacific Railroad Company as Privileged or Protected [#356-1]

at 1. UP claimed that the issue involved only one mistakenly-redacted document, which was

1 The motion was filed under seal. Pursuant to the protective order in this case, plaintiffs also filed a public version of the motion. The sealed motion and the public version bear their own docket numbers. This opinion will refer to the docket numbers of the public filings of all documents. previously produced in its entirety, and that plaintiffs’ concerns were otherwise without merit.

See Defendant Union Pacific’s Opposition to Plaintiffs’ Motion for an In Camera Review of

Documents Withheld by Union Pacific Railroad Company as Privileged or Protected [#363] at 1.

Plaintiffs’ reply brief indicated that another improper redaction and privilege assertion was found

on the day the brief was due. See Plaintiffs’ Reply Memorandum in Support of Motion for an In

Camera Review of Documents Withheld by Union Pacific Railroad Company as Privileged or

Protected [#364] at 1.

In my Order of June 28, 2010, I noted that, while the two documents raised sufficient

concern to warrant considering whether an in camera review would be appropriate and could be

accomplished with a reasonable amount of effort, the time and expense of a full in camera

review of all documents for which privilege was claimed would render the exercise inefficient.

Thus, UP was instructed to propose to plaintiffs a statistically-valid methodology for selecting a

random sample of documents from its privilege log, and, following a meet and confer of the

parties and joint adoption of a final methodology, UP would apply the methodology and produce

the sample to chambers for an in camera review. Memorandum Order of June 28, 2010 [#374].

I have now reviewed those documents and have not found any similar errors or any

reason to believe that the logging was done so carelessly or mistakenly that I have reason to

doubt its integrity or the good faith in which it was done. To the contrary, I found it to have been

done most carefully. Indeed, I was struck by the care with which single sentences were redacted

from a document that was otherwise disclosed.

More specifically, I have not found any instances where I could say that the privilege was

claimed merely because a lawyer’s name appears in a communication. That was simply not the

2 case in the documents I examined.

I have therefore concluded that the privilege claims were honestly and carefully made. I

find no warrant whatsoever for any further relief, let alone the draconian remedy of re-doing the

entire privilege log.

Digitally signed by John M. Facciola Date: 2010.09.28 16:54:54 -04'00' __________________________________________ JOHN M. FACCIOLA UNITED STATES MAGISTRATE JUDGE