The opinion
UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLUMBIA
In re RAIL FREIGHT FUEL SURCHARGE
ANTITRUST LITIGATION
MDL Docket No. 1869 -
Miscellaneous No. 07-0489 (PLF)
This document relates to:
ALL DIRECT PURCHASER CASES
OXBOW CARBON & MINERALS LLC, et al.,
Plaintiffs,
Vv. Civil Action No. 11-1049 (PLF)
UNION PACIFIC RAILROAD CO., et al.,
Defendants.
ee Ne Ne Ne Ne ee ee ee ee ee ee eee ee ee ee’
MEMORANDUM OPINION AND ORDER
The Court has indicated that it will resolve the parties’ dispute about which
exhibits must be excluded or redacted under Title 49, Section 10706(a)(3)(B)(ii)(I) of the U.S.
Code before the motions for summary judgment are addressed. See Order of June 15, 2021 [Dkt.
No. 1042]. The United States Court of Appeals for the D.C. Circuit provided guidance on
interpreting Section 10706 last year in In re Rail Freight Fuel Surcharge Antitrust Litigation —
MDL No. 1869 (“In re Rail Freight”), 34 F.4th 1 (D.C. Cir. 2022).
Following the D.C. Circuit’s decision, the parties conferred and submitted a list of
exhibits that the defendants argue should be excluded under Section 10706 for the purpose of
resolving the summary judgment motions. See Joint Status Report [Dkt. No. 1094] at Ex. 1. The
Court has reviewed the disputed exhibits and has considered each exhibit within the context of
the broader discussions identified by the defendants. See id. The Court has made several
determinations about the exhibits’ admissibility under Section 10706, but requests “briefing
focused on the remaining Section 10706 issues” using a “streamlined approach.” Id. at 12, 15.
To guide the parties’ responses, the Court makes the following observations about
the D.C. Circuit’s opinion and the disputed documents. The D.C. Circuit noted that “[a] single
document may reference more than one discussion or agreement.” In re Rail Freight, 34 F.4th
at 9. The D.C. Circuit also concluded that “evidence of discussions or agreements about single-
line traffic or about freight traffic generally is not excludable under Section 10706.” Id.
Discussions or agreements, however, that “contain a de minimis reference to other traffic can
qualify for exclusion under Section 10706 if the carriers demonstrate that the reference was
either fleeting and inconsequential or appropriate to the advancement of the interline discussion
itself.” Id. at 10. To demonstrate that such discussions are subject to exclusion under Section
10706, “the railroads must demonstrate that any such reference did not change the focus of the
discussion or agreement away from the participating railroads’ shared, identifiable interline
movements.” Id.
A document may contain portions of a protected discussion as well as extraneous
information that is not focused on identifiable interline movements, such as discussions about
whether a railroad should adopt a generally applicable policy. When a document contains both
protected and non-protected discussions, it is unclear whether and when the “focus” of the
discussion shifts away from interline movements, or whether the non-protected material is
“appropriate to the advancement of the interline discussion itself.” In re Rail Freight, 34 F.4th
at 10. It may be the case that, for some documents, protected discussions and agreements are
segregable from non-protected discussions and agreements, and redactions may be appropriate.
At this time, the Court has no need for additional argument or briefing on the
following exhibits: PX0202; PX0145; PX0610; PX0596; PX0237; PX0595; PX0467; PX0468;
Oxbow Ex. 22; PX0144; PX0240; PX0121; PX0117; PX0056; PX0066; PX0147; PX0148;
PX0245; PX0246; Oxbow Ex. 31; PX0247; PX0248; PX0151; Oxbow Ex. 100; Oxbow Ex. 39;
PX0612; PX0479; Oxbow Ex. 107; PX0039; P-X0040; Oxbow Ex. 102; Oxbow Ex. 8.
The Court does request that the parties provide additional support for their
positions regarding the following exhibits: PX0483; PX0120; PX0253; PX0242; PX0167;
PX0474; PX0476; Oxbow Ex. 28; PX0067; PX0085; PX0095; Oxbow 24; Oxbow 11.
In light of the passages from the D.C. Circuit decision identified above, the parties
should address the following questions with respect to portions of these exhibits:
Exhibit / Discussion Questions to Address in Response
Discussion 5; Does the initial email containing the CSXT announcement “concern
PX0483 an interline movement”? Is this announcement segregable from the
rest of the correspondence?
Discussion 9:
PX0253
PX0242
Does a railroad’s internal discussion about adopting a generally
applicable fuel surcharge policy fall within Section 10706’s scope
because that discussion arises in the context of considering a
concurrence? Is the focus of this discussion the generally applicable
policy or is it interline movements?
Discussion 13:
What identifiable interline movement or movement(s) is at issue
PX0167 here?
PX0474
Discussion 15: Is the focus of this discussion generally applicable price authorities
PX0476 / Oxbow 28 rather than identifiable interline movements?
Discussion 17 and 18:
PX0067
Is the focus of this discussion generally applicable fuel surcharges
rather than identifiable interline movements?
PX0085
PX0095 Are the protected portions of Oxbow Ex. 24 segregable from the non-
Oxbow Ex. 24 protected portions?
Discussion 19: Is the focus of this discussion generally applicable fuel surcharges
Oxbow Ex. 11 rather than identifiable interline movements?
In the joint status report submitted on September 23, 2022, the plaintiffs proposed
a streamlined approach for addressing the Court’s remaining Section 10706 questions. See Joint
Status Report [Dkt. No. 1094] at 15. Rather than adopt their proposed schedule, the Court seeks
additional input from the parties. The parties should confer and propose a timeline for
responding to this Order. Accordingly, it is hereby
ORDERED that the parties shall confer and submit a Joint Status Report with a
proposed schedule for responding to this Order on or before June 9, 2023; it is
FURTHER ORDERED that the defendants’ response and plaintiffs’ response to
this Order shall be limited to 5,000 words each; it is
FURTHER ORDERED that the parties shall indicate in their response whether, in
light of the issues identified in this Order, a status conference would help resolve the outstanding
issues; and it is
FURTHER ORDERED that the parties’ responses shall address the issues raised
in this Order.
SO ORDERED.
PAUL L. FRIEDMAN
United States District Judge
DATE:
gC | Qb | 2X3