Rail Freight Fuel Surcharge Antitrust Litigation (No. Ii)- Mdl No. 2925

District Court, District of Columbia·Decided July 6, 2021·No. Misc. No. 2020-0008·Published

Opinion

UNITED STATES DISTRICT COURT FOR THE DISTRICT OF COLUMBIA

IN RE: RAIL FREIGHT FUEL SURCHARGE ANTITRUST LITIGATION (NO. II) MDL Docket No. 2925 Misc. No. 20-00008 (BAH) This document relates to:

ALL CASES

MEMORANDUM AND ORDER

The parties in this multidistrict litigation, In re Rail Freight Fuel Surcharge Antitrust

Litig. (“MDL II”), MDL No. 2952, Misc. A. No. 20-00008 (BAH) (D.D.C.), seek an extension of

the fact discovery deadline, currently set for October 1, 2021. See Scheduling Order (May 22,

2020) ¶ 5, ECF No. 102. Despite weeks of conferral about this issue, preceded by nearly fifteen

years of litigation in this District related to plaintiffs’ central allegations that defendants, the four

largest railroads operating in the United States, engaged in a multi-year price-fixing conspiracy

to increase the price of rail-freight transport, see In re Rail Freight Fuel Surcharge Antitrust

Litig. (“MDL I”), MDL No. 1869, No. 07-mc-00489-PLF-GMH (D.D.C.), the parties “have been

unable to agree on a joint proposal for extending the fact discovery deadline,” Joint Status Report

(June 14, 2021) (“June JSR”) at 1, ECF No. 667. In a forty-page joint status report, accompanied

by almost ninety pages of exhibits, detailing the parties’ lack of agreement, plaintiffs suggest an

extension of three months, until December 31, 2021, id. at 1, while defendants request an

extension of about fourteen months, until December 2, 2022, id. at 17. Thus, this Court is asked

to resolve the parties’ gap of twelve months to complete discovery.

1 At present, this multidistrict litigation includes over 100 individual actions, with still

more cases being filed and added even at this late date. See In re Rail Freight Fuel Surcharge

Antitrust Litig. (No. II), MDL No. 2925, Misc. A. No. 20-00008 (BAH), 2021 WL 1909777, at

*2 (D.D.C. May 12, 2021); e.g., Conditional Transfer Order, Gen. Motors LLC v. BNSF Ry. Co.,

No. 4:21-cv-11340 (E.D. Mich.) (July 1, 2021), ECF No. 675. Plaintiffs have identified a list of

approximately 50 fact depositions, as well as depositions of each of the four defendant railroads

pursuant to Fed. R. Civ. P. 30(b)(6). June JSR at 2; see also id., Ex. C, Letter from Plaintiffs’

Counsel to Defense Counsel, App. A, ECF No. 667-3. So far, defendants have identified

approximately 660 cumulative fact depositions across the more than 300 individual plaintiffs and

117 plaintiff groups in these actions, in addition to Rule 30(b)(6) depositions of each plaintiff.

June JSR at 2, 24. As a result, defendants represented at the motions hearing held on May 6,

2021 that they anticipate “anywhere from 600 to a thousand depositions in this case.” Tr. of

Hr’g (May 6, 2021) at 6:24–7:1, ECF No. 620. Though plaintiffs contend that defendants’ list of

deponents is not “reasonable,” June JSR at 3, and suggest this list was “prepared . . . primarily

for the purpose of trying to justify a lengthy schedule extension,” id. at 8, plaintiffs do not

dispute that defendants are entitled to conduct plaintiff-specific discovery. Examination of

defendants’ tentative list of deponents reveals that it consists primarily of the parties’ 186

agreed-upon custodians and individuals identified in each plaintiff group’s initial disclosures.

See id. at 6, 24; id., Ex. D, Email from Kelsey S. Bryan, Associate, Jones Day, to Plaintiffs’

Counsel (Apr. 30, 2021, 4:06 PM), Attach., ECF No. 667-4. The realities of scheduling these

hundreds of depositions, as defendants rightly contend, see June JSR at 19–27, requires a

lengthier extension than the three months suggested by plaintiffs.

In addition, a longer extension of fact discovery will allow for resolution of the pending

interlocutory appeal in MDL I, challenging Judge Friedman’s memorandum opinion and order

2 interpreting 49 U.S.C. § 10706(a)(3)(B)(ii) (“Section 10706”). See In re Rail Freight Fuel

Surcharge Antitrust Litig. (“MDL I Section 10706 Decision”), MDL No. 1869, Misc. A. No. 07-

0489 (PLF), 2021 WL 663669, at *7–26 (D.D.C. Feb. 19, 2021) (interpreting Section 10706 and

applying this interpretation to deny defendants’ challenges to admissibility of certain evidence);

In re Rail Freight Fuel Surcharge Antitrust Litig. (“MDL I Certification Decision”), MDL No.

1869, Misc. A. No. 07-0489 (PLF), 2021 WL 2433737, at *1, *12 (D.D.C. June 15, 2021)

(granting defendants’ motions for certification of interlocutory appeal). Section 10706 limits the

admissibility of communications between rail carriers related to “interline movements” by

“bar[ring] certain inferences” from such communications and “provid[ing] that evidence [of such

communications] meeting certain requirements shall not be admissible in any proceeding.” MDL

I Section 10706 Decision, 2021 WL 663669, at *6. Judge Friedman interpreted the relevant

provisions of the statute to indicate that an “interline movement” protected by Section 10706

“must be an identifiable movement or movements with identifiable circumstances, such as a

specific shipper, specific shipments, and specific destinations,” id. at *19, and that the statutory

protections may be implemented through “[r]edaction of the inadmissible portions” or “limiting

instructions” rather than wholesale exclusion of evidence, id. at *17. Defendants’ motion for

certification of these two conclusions was granted only weeks ago, see MDL I Certification

Decision, 2021 WL 2433737, at *1, *12, and thus their interlocutory appeal on these issues is

currently pending before the D.C. Circuit.

As Judge Friedman observed, “[t]he interpretation and application of Section 10706 is a

central question in all the individual cases now pending” in MDL I and MDL II, since

“[p]laintiffs’ ability to establish a conspiracy, and defendants’ ability to defend themselves

against allegations of conspiratorial conduct, turn in no small measure on what evidence is

admissible, and in what form, pursuant to Section 10706.” Id. at *11. Thus, both the scope of

3 relevant discovery and the viability of plaintiffs’ claims and defendants’ defenses in this

multidistrict litigation will be determined at least in part by the D.C. Circuit’s resolution of the

interlocutory appeal in MDL I. Considerations of judicial economy weigh in favor of extending

discovery in MDL II in order to align better the parties’ efforts and further proceedings in this

Court with the Circuit’s disposition of the legal questions surrounding Section 10706’s meaning

and application to the substantially similar claims and evidence at issue in MDL I.

Nowhere in the voluminous briefing of their dispute about the appropriate extension of

fact discovery do the parties address the impact of any extension on the Scheduling Order’s

current deadlines for expert discovery and the close of discovery. Nonetheless, to preserve the

sequence of discovery anticipated by the Scheduling Order, all subsequent deadlines will be

extended for the same length of time as the fact discovery deadline.

For the foregoing reasons, upon consideration of the parties’ Joint Status Report, ECF

No. 667, and representations made at the May 6, 2021 motions hearing, see Min. Entry (May 6,

2021), it is hereby—

ORDERED that the parties’ request for a status conference to discuss proposed

Free access — add to your briefcase to read the full text and ask questions with AI