Searching over 5,500,000 cases.


searching
Buy This Entire Record For $7.95

Download the entire decision to receive the complete text, official citation,
docket number, dissents and concurrences, and footnotes for this case.

Learn more about what you receive with purchase of this case.

In Re: Rail Freight Fuel Surcharge Antitrust Litigation

November 17, 2011

IN RE: RAIL FREIGHT FUEL SURCHARGE ANTITRUST LITIGATION


The opinion of the court was delivered by: John M. Facciola United States Magistrate Judge

This Document Relates To: ALL DIRECT PURCHASER CASES

MEMORANDUM OPINION

Table of Contents

INTRODUCTION. . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1

I. Procedural History.. . . . . . . . . . . . . . . . . . . . . . . . 1

II. Defendants' Arguments.. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1

A. Defendants' Specific Interrogatories and Plaintiffs' Responses. . . . . . . . . . . . 1

1. CSXT Interrogatory 5. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 2

2. NS Interrogatories 1, 2(e) and 2(f). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 5

3. NS Interrogatory 2(a). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 11

4. CSXT Interrogatory 4. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 12

5. NS Interrogatory 2(h), CSXT Interrogatory 6 and BNSF Interrogatory 5. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 13

B. Defendants' Requests for Admissions. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 16

1. Requests For Admission 153, 154 and 155.. . . . . . . . . . . . . . . . . . . . . . 19

2. Requests For Admission 82 and 98-102. . . . . . . . . . . . . . . . . . . . . . . . . 19 CONCLUSION. . . . . . . . . . . . . . . . . . . . . . . . . . . 21

INTRODUCTION

Now pending before the Court is Defendants' Motion to Compel Answers to Defendants' Interrogatories and Requests for Admissions and Memoranda in Support Thereof [#506]. Defendants have moved to compel plaintiffs to rectify claimed deficiencies in the responses to seven interrogatories and nine requests for admissions. For the following reasons, the motion will be granted in part and denied in part.

I. Procedural History

The parties were engaged in discovery for nearly two years and exchanged millions of pages of documents and deposed dozens of individuals. Near the end of discovery, on October 20, 2010, defendants served upon plaintiffs interrogatories and requests for admissions. [#506] at

3. Plaintiffs initially responded on November 30, 2010, referencing an "84-page Narrative Factual Statement" ("narrative") for a number of their responses. Id. Defendants objected to this form of response and, after consultations between the parties, plaintiffs supplemented their responses on February 8, and May 11, 2011. Id. Defendants still take issue with the form and substance of the responses and have filed this motion to compel to rectify these perceived deficiencies. Id. at 4.

II. Defendants' Arguments

A. Defendants' Specific Interrogatories and Plaintiffs' Responses

Defendants have moved the Court to compel plaintiffs to respond to nine of the interrogatories, arguing that the substance and form of the responses are either insufficient or do not conform to Rule 33 of the Federal Rules of Civil Procedure. Federal Rule of Civil Procedure 33 provides that "[e]ach interrogatory must, to the extent it is not objected to, be answered separately and fully in writing under oath." Fed. R. Civ. P. 33(b)(3). The answer must be "true, explicit, responsive, complete, and candid." Equal Rights Ctr. v. Post Props., Inc., 246 F.R.D. 29, 32 (D.D.C. 2007) (quoting Hansel v. Shell Oil Corp., 169 F.R.D. 303, 305 (E. D. Pa. 1996)). As this Court has previously held, "interrogatories are not only an information gathering tool, but also an opportunity to require one's opponent to state its position on an issue in controversy in writing and under oath." Covad Comnc'ns Co. v. Revonet, Inc., 258 F.R.D. 7, 20 (D.D.C. 2009).

1. CSXT Interrogatory 5

In CSXT Interrogatory 5, defendants asked that plaintiffs identify "each communication among or between any two or more entities or persons that plaintiffs contend, 'standing alone, itself constitutes an unlawful agreement.'" [#506] at 6. Plaintiffs refused to answer this interrogatory "on the ground[s] that it calls for legal analysis by [p]laintiffs' counsel" and "impermissibly calls for attorney work product." [#506-8] at 99-100. In the motion to compel, defendants argue that under Rule 33 of the Federal Rules of Civil Procedure, such "contention interrogatories" are permitted. [#506] at 6. Plaintiffs insist, however, that during meet and confers held to resolve their differences it has become clear that defendants are demanding that plaintiffs sort their evidence into direct and circumstantial evidence and that the distinction between those two types of evidence is considered by courts to be meaningless. They rely on United States v. MD & Va. Milk Prod. Assoc., 22 F.R.D. 300, 301 (D.D.C. 1958) and Kendrick v. Sullivan 125 F.R.D. 1, 2 (D.D.C. 1989), rev'd on other grounds, 487 U.S. 589 (1988), which they insist hold that, while interrogatories may legitimately require a party to specify its contentions, they may not seek disclosure of their legal theories. Plaintiffs' Opposition to Defendants' Motion to Compel Answers to Interrogatories and Requests for Admission [#510] at 11. They further point to Kendrick's permitting a party to ask whether it contended certain portions of governmental guidelines were unlawful and why, but not permitting a party to ask whether, if any portion of the guidelines were unconstitutional, the remaining portions of the regulatory scheme were severable. [#510] at 11-12.

Rule 33 permits interrogatories that "[ask] for an opinion or contention that relates to fact or the application of law to fact." Fed. R. Civ. P. 33(a)(2). "Contention interrogatories" that ask a party what it contends or to state all the facts upon which it bases a contention are perfectly legitimate. Barnes v. District of Columbia, 270 F.R.D. 21, 24 (D.D.C. 2010) (quoting Everett v. USAir Group, Inc., 165 F.R.D. 1, 3 (D.D.C. 1995)) (Facciola, J.). Indeed, the advisory committee note to Rule 33 indicates that contention interrogatories "can be most useful in narrowing and sharpening the issues, which is a major purpose of discovery." Barnes, 270 F.R.D. at 24 (quoting Fed. R. Civ. P 33 advisory committee's note (1970)).

In Barnes, I quoted the decision in King v. E.F. Hutton & Co., 117 F.R.D. 2, 5 n.3 (D.D.C. 1987), which also rejected the argument, made again here, that answering a contention interrogatory invades the work product privilege because it requires a party to confirm a contention or explain how certain facts support a contention. In King, Judge Burnett stated:

[I]n answering contention interrogatories the party is only giving the factual specifics which the party contends supports a claim, and this in no way impinges on the attorney's impressions or analysis as to how the attorney will endeavor to apply the law to the facts. If this elementary ...


Buy This Entire Record For $7.95

Download the entire decision to receive the complete text, official citation,
docket number, dissents and concurrences, and footnotes for this case.

Learn more about what you receive with purchase of this case.