IN RE: RAIL FREIGHT FUEL SURCHARGE ANTITRUST LITIGATION - MDL 1869

Filing 1123

OPINION AND ORDER regarding evidentiary dispute as to 49 U.S.C. § 10706. Defendants shall submit proposed redactions for specified exhibits on or before March 18, 2024. Plaintiffs shall file any objection to defendants' proposed redactions on or before April 1, 2024. See Opinion and Order for details. Signed by Judge Paul L. Friedman on March 4, 2024. (lcmo)

UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLUMBIA
)
In re RAIL FREIGHT FUEL SURCHARGE
)
ANTITRUST LITIGATION
)
)
)
This document relates to:
)
)
ALL DIRECT PURCHASER CASES
)
__________________________________________)
OXBOW CARBON & MINERALS LLC, et al.,
)
)
Plaintiffs,
)
)
v.
)
)
UNION PACIFIC RAILROAD CO., et al.,
)
)
Defendants.
)
__________________________________________)

MDL Docket No. 1869
Miscellaneous No. 07-0489 (PLF)

Civil Action No. 11-1049 (PLF)

OPINION AND ORDER
Following the decision of the United States Court of Appeals for the District of
Columbia Circuit, In re Rail Freight Fuel Surcharge Antitrust Litig., 34 F.4th 1 (D.C. Cir. 2022),
the defendants in Rail Freight and the defendants in Oxbow again ask the Court pursuant to 49
U.S.C. § 10706 to exclude evidence of any discussion or agreement between or among rail
carriers that concerned interline movements (and any rate or other action resulting from such
discussion or agreement), and to enforce the statutory bar on inferring a conspiracy from
specified evidence. See Defendants’ Response Brief to the Court’s Order on Section 10706

[Dkt. No. 1104]. 1 Plaintiffs in Oxbow and direct purchaser plaintiffs in Rail Freight oppose
these requests. See Plaintiffs’ Supplemental Briefing Regarding Section 10706 In Response to
the Court’s Order of May 26, 2023 [Dkt. No. 1107]; see also Joint Status Report [Dkt.
No. 1094]; Parties’ Notice of Joint Status Report, Stipulation, and Proposed Order in Advance of
July 19, 2022 Status Conference [Dkt. No. 1085].
The Court has considered the parties’ written submissions, the relevant case law –
including primarily the D.C. Circuit’s decision interpreting Section 10706 – and the relevant
portions of the record in this case. It has also personally reviewed every document at issue in
this matter. The Court will grant in part and deny in part defendants’ requests to exclude certain
evidence. 2

1

All citations to docket entries, unless otherwise specified, will refer to the first
above captioned matter, In re Rail Freight Fuel Surcharge Antitrust Litig., MDL No. 1869,
Miscellaneous No. 07-0489.
2

The documents considered in connection with the pending matter include:
Defendants’ Response Brief to the Court’s Order on Section 10706 (“Defs. Supp.”) [Dkt. No.
1104]; Supplemental Defendants’ Appendix in Support of Defendants’ Response Brief to the
Court’s Order on Section 10706 [Dkt. No. 1105]; Plaintiffs Supplemental Briefing Regarding
Section 10706 In Response to the Court’s Order of May 26, 2023 (“Pls. Supp.”) [Dkt. No. 1107];
Declaration of Sami H. Rashid in Support of Plaintiffs’ Supplemental Briefing Regarding
Section 10706 in Response to the Court’s Order of May 26, 2023 [Dkt. No. 1108]; Joint Status
Report [1094]; Parties’ Notice of Joint Status Report, Stipulation, and Proposed Order in
Advance of July 19, 2022 Status Conference [Dkt. No. 1085]; Defendant BNSF Railway
Company’s Motion for Summary Judgment [Dkt. No. 1030]; CSX Transportation, Inc.’s Motion
for Summary Judgment [Dkt. No. 1031]; Defendant Union Pacific Railroad Company’s Motion
for Summary Judgment [Dkt. No. 1032]; Norfolk Southern Railway Company’s Motion for
Summary Judgment [Dkt. No. 1033]; Plaintiffs’ Memorandum in Opposition to Defendants’
Joint and Individual Motions for Summary Judgment [Dkt. No. 1050]; Declaration of Alicia
Cobb in Support of Plaintiffs’ Opposition to Defendants’ Joint and Individual Motions for
Summary Judgment [Dkt. No. 1051]; Defendants’ Motion to Exclude Interline-Related
Communications from Consideration for Class Certification or Any Other Purpose Prohibited
by 49 U.S.C. § 10706 [Dkt. No. 417]; Defendants’ Memorandum in Support of Motion to
Exclude Interline-Related Communications from Consideration for Class Certification or Any
Other Purpose Prohibited by 49 U.S.C. § 10706 [Dkt. No. 420]; Plaintiffs’ Memorandum in
2

I. FACTUAL AND PROCEDURAL HISTORY
The Court has previously recounted at length the factual and procedural history of
the Rail Freight and Oxbow litigation. See In re Rail Freight Fuel Surcharge Antitrust Litig.
(“Rail Freight I”), 587 F. Supp. 2d 27, 29-31 (D.D.C. 2008); In re Rail Freight Fuel Surcharge
Antitrust Litig. (“Rail Freight II”), 593 F. Supp. 2d 29, 32, 34-35 (D.D.C. 2008), aff’d sub nom.
Fayus Enters. v. BNSF Ry. Co., 602 F.3d 444, 445-46, 454 (D.C. Cir. 2010); In re Rail Freight
Fuel Surcharge Antitrust Litig. (“Rail Freight III”), 287 F.R.D. 1, 11-20 (D.D.C. 2012), vacated
sub nom. In re Rail Freight Fuel Surcharge Antitrust Litig. – MDL No. 1869, 725 F.3d 244 (D.C.
Cir. 2013); In re Rail Freight Fuel Surcharge Antitrust Litig. (“Rail Freight IV”), 292 F.
Supp. 3d 14, 33-38 (D.D.C. 2017), aff’d sub nom. In re Rail Freight Fuel Surcharge Antitrust
Litig. – MDL No. 1869, 934 F.3d 619 (D.C. Cir. 2019); In re Rail Freight Fuel Surcharge
Antitrust Litig. (“Rail Freight V”), 520 F. Supp. 3d 1, 8-10 (D.D.C. 2021); see also Oxbow
Carbon & Minerals LLC v. Union Pac. R.R. Co. (“Oxbow I”), 926 F. Supp. 2d 36, 39-40
(D.D.C. 2013); Oxbow Carbon & Minerals LLC v. Union Pac. R.R. Co. (“Oxbow II”), 81 F.
Supp. 3d 1, 5-6 (D.D.C. 2015).
These cases involve allegations of a conspiracy to fix prices in violation of the
Sherman Antitrust Act, 15 U.S.C. § 1. Plaintiffs in Rail Freight, purchasers of rail freight
transportation services, allege that defendants, BNSF Railway Company, CSX Transportation,
Inc., Norfolk Southern Railway Company, and Union Pacific Railroad Company, “engaged in a
price-fixing conspiracy to coordinate their fuel surcharge programs as a means to impose supra-

Opposition to Defendants’ Motion to Exclude Interline-Related Communications from
Consideration for Class Certification or Any Other Purpose Prohibited by 49 U.S.C. § 10706
[Dkt. No. 438]; and Defendants’ Reply Memorandum in Support of Motion to Exclude InterlineRelated Communications from Consideration for Class Certification or Any Other Purpose
Prohibited by 49 U.S.C. § 10706 [Dkt. No. 444].
3

competitive total price increases on their shipping customers.” Rail Freight IV, 292 F. Supp. 3d
at 34. Similarly, plaintiffs in Oxbow allege that defendants Union Pacific Railroad Company
and BNSF Railway Company conspired to “fix prices above competitive levels through a
uniform fuel surcharge.” Oxbow II, 81 F. Supp. 3d at 5. Many of the allegations in Oxbow are
“virtually identical” to the allegations in Rail Freight. Id. at 5 n.3.
Pending before the Court are the defendant railroads’ motions for summary
judgment as to whether they conspired to violate the antitrust laws. See Order of May 7, 2022
[Dkt. No. 1025]; Memorandum Opinion and Order of March 30, 2021 [Dkt. No. 1016]. With
respect to the Court’s consideration of these motions, the defendant railroads seek to exclude
from consideration evidence of interline-related communications, or communications concerning
shared traffic, under 49 U.S.C. § 10706(a)(3)(B)(ii) (“Section 10706”). As the D.C. Circuit has
explained:
Interline movements are shipments carried along two or more
railroads’ tracks under a common arrangement. Section 10706
states that ‘‘[i]n any proceeding’’ in which rail carriers are alleged
to have violated antitrust laws, conspiracy ‘‘may not be inferred
from evidence that two or more rail carriers acted together with
respect to an interline rate or related matter and that a party to such
action took similar action with respect to a rate or related matter on
another route or traffic.’’ 49 U.S.C. § 10706(a)(3)(B)(ii). The
statute tellingly provides that ‘‘evidence of a discussion or
agreement between or among’’ rail carriers ‘‘shall not be admissible
if the discussion or agreement . . . concerned an interline movement
of the rail carrier,’’ and ‘‘would not, considered by itself, violate the
[antitrust] laws.’’ Id. § 10706(a)(3)(B)(ii)(II) (emphasis added).
In re Rail Freight Fuel Surcharge Antitrust Litigation – MDL No. 1869 (“Rail Freight VI”), 34
F.4th 1 at 5 (alterations in original).
On December 19, 2019, this Court invited plaintiffs and defendants in Rail
Freight MDL No. 1869 and Oxbow, as well as the new plaintiffs in MDL No. 2952 before

4

Judge Beryl Howell, to file additional memoranda addressing defendants’ still-pending motions
concerning Section 10706. Memorandum Opinion and Order of December 19, 2019 [Dkt.
No. 918] at 3. The Court also invited the United States to submit a Statement of Interest
reflecting the views of the Department of Justice, the Federal Trade Commission, and the
Surface Transportation Board. Order of March 16, 2020 [Dkt. No. 947] at 2. On
August 26, 2020, the Court heard oral arguments on the interpretation and application of
Section 10706 from defendants, named plaintiffs in Rail Freight MDL No. 1869, plaintiffs in
MDL No. 2952, and the Department of Justice. See Minute Entry of August 26, 2020.
On February 19, 2021, the Court issued an opinion and order interpreting
Section 10706 and denying defendants’ motions to exclude interline-related communications.
See Rail Freight V, 520 F. Supp. 3d. at 15-38. The Court held that “for a discussion or
agreement to be inadmissible” under Section 10706, “the carriers must be discussing or agreeing
upon identifiable interline movements which they share; but context and logic confirm that ‘an
interline movement’ may refer to multiple interline movements.” Id. at 29. The Court said that
protected discussions and agreements concern “an identifiable movement or movements with
identifiable circumstances, such as a specific shipper, specific shipments, and specific
destinations.” See id. The Court rejected the defendants’ arguments that an entire document
must be excluded “if it is about interline traffic even if it also includes communications about
local traffic or other subjects,” id. at 25, noting that “there are more nuanced ways to read and
apply the statute. It need not be an all or nothing proposition.” Id. As in all cases, the Court
held, a document “may be admitted in part and excluded in part” through the use of redactions.
Id.; see id. at 26.

5

The United States Court of Appeals for the D.C. Circuit affirmed in part and
reversed in part. See Rail Freight VI, 34 F.4th 1. The D.C. Circuit explained that a discussion or
agreement “concerns” an interline movement “only if Defendants meet their burden of showing
that the movements at issue are the participating rail carriers’ shared interline traffic.” Id. at 9.
Furthermore, disagreeing with this Court, it held that a discussion or agreement “need not
identify a specific shipper, shipments, or destination to qualify for exclusion.” Id. Discussions
or agreements “about the formation of the participating railroads’ interline agreements” and
“anticipated shared traffic” are not admissible. Id.
By contrast, “evidence of discussions or agreements about single-line traffic or
about rail freight generally is not excludable.” Rail Freight VI, 34 F.4th at 9. When a discussion
or agreement about interline movements contains references to other, non-excludable
movements, that discussion or agreement may still be subject to exclusion so long as any
reference to other movements “did not change the focus of the discussion or agreement away
from the participating railroads’ shared, identifiable interline movements.” Id. at 10; see id. at 9
(“de minimis,” “brief and insignificant,” and “fleeting and inconsequential” references to noninterline movements “do[] not automatically disqualify evidence from exclusion”). The railroads
have the burden of demonstrating “that the reference was either fleeting and inconsequential or
appropriate to the advancement of the interline discussion itself.” Id. at 10.
The D.C. Circuit also held that a rail carrier’s internal documents “need not
convey the substance of a discussion or agreement concerning interline movements to qualify for
exclusion under the statute.” Rail Freight VI 34 F.4th at 11-12. “[I]nternal documents prepared
in advance of discussions or agreements with other carriers concerning shared interline
movements” and internal documents that “reference[] only the existence of such a discussion or

6

agreement with another carrier” are not admissible. Id. at 12 (emphasis omitted). Because “[a]
single document may reference more than one discussion or agreement, . . . [t]he court must
consider each discussion and agreement separately in determining whether it should be excluded
under Section 10706.” Id. at 9. The Circuit therefore agreed with this Court that redactions may
be employed “where segregable portions of documents contain protected evidence of discussions
or agreements concerning interline movements,” and the court may employ redactions to admit
non-protected portions of documents. Id. at 13. The Circuit explained why limiting instructions
would not work in the context of Section 10706, where the court is to be the gatekeeper shielding
the jury from evidence that must be excluded. See Rail Freight VI, 34 F.4th at 13-14.
The court of appeals remanded the case for this Court “to reconsider the evidence
at issue consistent with [its] interpretation of Section 10706.” Rail Freight VI, 34 F.4th at 5.
II. DISCUSSION
Following the D.C. Circuit’s decision, the parties conferred and submitted a list of
exhibits that the defendant railroads 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. Defendants listed twenty-five discussions reflected in what they believe are forty-three
“key documents.” Dkt. No. 1094 at 5. Subsequently, the plaintiffs withdrew their reliance on
five of those documents, “in effect resolving 3 discussions.” Id.; see also id. Exhibit 1. 3 The
Court has carefully reviewed each of the disputed exhibits and has considered each exhibit
within the context of the broader discussions identified by the defendants. See id. The Court has

3

There is some confusion on this point. The parties in some places reference eight
documents that plaintiffs have withdrawn from consideration, see Dkt. No. 1094 at 14, while in
other places identify only five such documents. See id. at 2, 5.
7

also considered the parties’ written submissions about specific discussions, agreements, and
documents. See Pls. Supp.; Defs. Supp. The Court has reached the following conclusions:
Discussion
Number

Exhibit
Number

Conclusion

PX0202

This exhibit will be excluded in full. The focus of this
correspondence is clearly “the carriers’ shared interline traffic.” Rail
Freight VI, 34 F.4th at 9. References to non-interline traffic within
this exhibit do not “change the focus of the discussion or agreement
away from the participating railroads’ shared, identifiable interline
movements.” Id. at 10.

PX0145

This exhibit will be excluded in full. The focus of the meeting was
clearly “the carriers’ shared interline traffic.” Rail Freight VI, 34
F.4th at 9. References to non-interline traffic within this exhibit do
not “change the focus of the discussion or agreement away from the
participating railroads’ shared, identifiable interline movements.” Id.
at 10.

PX0610

This exhibit is a deposition transcript. During his testimony, the
witness refers to various discussions and agreements concerning
interline movements. Portions of the deposition that reference such
protected discussions and agreements shall be redacted. See Rail
Freight VI, 34 F.4th at 12-13 (“Section 10706 can be implemented
through redactions of truly segregable portions or documents.”). The
defendant railroads shall propose redactions consistent with this
opinion and the order accompanying this opinion.

PX0596

This exhibit is a deposition transcript. During his testimony, the
witness refers to various discussions and agreements concerning
interline movements. Portions of the deposition that reference such
protected discussions and agreements shall be redacted. See Rail
Freight VI, 34 F.4th at 12-13 (“Section 10706 can be implemented
through redactions of truly segregable portions or documents.”). The
defendant railroads shall propose redactions consistent with this
opinion and the order accompanying this opinion.

2

PX0237

This exhibit may be admitted with redactions. It contains a brief,
segregable reference to a discussion that concerns interline
movements between the two corresponding railroads. The defendant
railroads shall propose redactions consistent with this opinion and the
order accompanying this opinion.

3 and 4

PX0595

This exhibit is a deposition transcript. During his testimony, the
witness refers to various discussions and agreements concerning

1

2

2

2

8

Discussion
Number

5

5

5

6

Exhibit
Number

Conclusion
interline movements. Portions of the deposition that reference such
protected discussions and agreements shall be redacted. See Rail
Freight VI, 34 F.4th at 12-13 (“Section 10706 can be implemented
through redactions of truly segregable portions or documents.”). The
defendant railroads shall propose redactions consistent with this
opinion and the order accompanying this opinion.

PX0483

This exhibit contains a public announcement made by one defendant
railroad about its fuel surcharge program as applied to that railroad’s
traffic generally. This announcement is admissible and not protected
under Section 10706. This exhibit also contains subsequent
correspondence, the focus of which is the railroads’ shared interline
movements. The correspondence will be excluded. See Rail Freight
VI, 34 F.4th at 9.

PX0467

This exhibit will be excluded in full. This exhibit consists of
correspondence regarding a fuel surcharge concurrence between two
railroads. The focus of this correspondence is clearly “the carriers’
shared interline traffic.” Rail Freight VI, 34 F.4th at 9.

PX0468

This exhibit will be excluded in full. This exhibit consists of
correspondence and related attachments regarding a fuel surcharge
concurrence between two railroads. The focus of this
correspondence is clearly “the carriers’ shared interline traffic.” Rail
Freight VI, 34 F.4th at 9.

PX0120

This exhibit contains a meeting agenda for a meeting between two
railroads and correspondence related to the meeting. Although the
meeting agenda itself suggests that the railroads may have discussed
general, joint-venture topics that are not specific to interline traffic,
the supplement provided by the defendant railroads makes clear that
the focus of this meeting was the railroads’ shared interline traffic.
See Defs. Supp. at 11; id. at SuppDA0153. The meeting agenda and
related correspondence therefore will be excluded. The attachment to
the meeting agenda (the “Monthly Digest Compilation”) contains
multiple, segregable entries related to a variety of topics, most of
which are not related to interline traffic and are not protected under
Section 10706. Some of the entries, however, do appear to concern
identifiable interline movements and will be excluded. The
defendant railroads shall propose redactions to the Monthly Digest
Compilation consistent with this opinion and the order accompanying
this opinion.

9

Discussion
Number

Exhibit
Number

6

Oxbow
22

This exhibit contains the same meeting agenda included in PX0120.
It will be excluded for the reasons stated above.

PX0144

This exhibit will be excluded in full. This exhibit consists of
correspondence and related attachments regarding a fuel surcharge
concurrence between two railroads. The focus of this
correspondence is clearly “the carriers’ shared interline traffic.” Rail
Freight VI, 34 F.4th at 9.

9

PX0253

This exhibit may be admitted with redactions. The exhibit consists of
correspondence between railroads as well as internal correspondence
between officials within one railroad. The correspondence between
railroads concerns a concurrence request and is protected under
Section 10706. The plaintiffs agree to withdraw this correspondence.
See Pls. Supp. at 5. As for the internal correspondence, it does not
concern interline movements, as it relates to internal debates about
the revision of a railroad’s fuel surcharge program that is not specific
to any interline movements. See Defs. Supp. at 17. The attachments
to the internal correspondence are also not protected under
Section 10706. The defendant railroads shall propose redactions
consistent with this opinion and the order accompanying this opinion.

9

PX0242

This exhibit contains some of the same correspondences as included
in PX0253 and may be admitted with redactions for the reasons
explained above.

PX0240

This exhibit will be excluded in full. This exhibit consists of
correspondence and related attachments regarding a fuel surcharge
concurrence between two railroads. The focus of this
correspondence is clearly “the carriers’ shared interline traffic.” Rail
Freight VI, 34 F.4th at 9.

PX0167

This exhibit consists of correspondence about a June 3, 2003 meeting
between two railroads and includes the meeting agenda for that
discussion. The defendants assert that the meeting agenda and
correspondence are protected under Section 10706 because the
relationship between these two railroads was “overwhelmingly one
between interline connecting carriers.” Defs. Supp. at 14. The Court
finds that the defendant railroads have not carried their burden. See
Rail Freight VI, 34 F.4th at 10. Although these railroads may have
shared interline traffic, the mere fact that two railroads share interline
traffic is insufficient. The meeting agenda suggests that the
discussion primarily focused on general industry concerns, not on
specific interline movements. The Court is not persuaded that the

7 and 8

10

13

Conclusion

10

Discussion
Number

Exhibit
Number

Conclusion
meeting focused on interline movements, although the agenda
indicates in a very few places that certain sub-discussions focused on
interline movements (e.g., discussions about specific gateways or
gateway performance). Those sub-discussions are segregable and
may be redacted. The defendant railroads shall propose redactions
consistent with this opinion and the order accompanying this opinion.

PX0474

This exhibit consists of handwritten notes from the June 3, 2003
meeting discussed in PX0167. This exhibit will be redacted
consistent with the redactions for PX0167, for the reasons explained
above.

PX0121

This exhibit will be excluded in full. This exhibit consists of an
itinerary and agenda for a December 16, 2003 meeting between two
railroads. It is clear from the meeting agenda that the meeting
constituted a discussion about interline movements. Any references
to general, non-interline specific topics was fleeting and did not shift
the focus away from the railroads’ shared interline traffic. Rail
Freight VI, 34 F.4th at 10.

PX0117

This exhibit will be excluded in full. This exhibit consists of
correspondence and related attachments regarding a May 17, 2004
meeting between two railroads. The focus of this correspondence is
clearly “the carriers’ shared interline traffic.” Rail Freight VI, 34
F.4th at 9. One attachment is a PowerPoint slide deck, the title of
which suggests that the railroads’ shared interline movements are the
exclusive focus of the discussion between the railroads. The other
attachment is an excel sheet containing information about the
railroads’ shared traffic. The focus of both attachments is the
railroads’ shared interline movements and both attachments will be
excluded.

15

PX0476

This exhibit will be excluded in full. The exhibit consists of
correspondence between representatives from two railroads about the
railroads’ shared interline traffic. Although the correspondence
references one railroad’s general policy, the discussion between the
two railroad representatives is itself focused on the railroads’ shared
traffic. See Rail Freight VI, 34 F.4th at 12 (references to other traffic
do not disqualify a document for exclusion if those references are
“appropriate for the advancement of the interline discussion itself”).

15

Oxbow
28

This exhibit is identical to PX0476. It will be excluded for the
reasons stated above.

13

14

14

11

Discussion
Number

Exhibit
Number

Conclusion

PX0056

This exhibit will be excluded in full. This exhibit consists of internal
correspondence within one railroad regarding the application of a
fuel surcharge on interline traffic shared with another railroad, the
focus of which is clearly “the carriers’ shared interline traffic.” Rail
Freight VI, 34 F.4th at 9.

PX0066

This exhibit will be excluded in full. This exhibit consists of
correspondence between representatives of two railroads regarding
the application of a fuel surcharge on interline traffic, the focus of
which is clearly “the carriers’ shared interline traffic.” Rail Freight
VI, 34 F.4th at 9.

PX0147

This exhibit will be excluded in full. This exhibit consists of
correspondence between representatives of two railroads regarding
the application of a fuel surcharge on interline traffic, the focus of
which is clearly “the carriers’ shared interline traffic.” Rail Freight
VI, 34 F.4th at 9.

PX0148

This exhibit will be excluded in full. This exhibit consists of
correspondence between representatives of two railroads, and related
attachments, regarding the application of a fuel surcharge on interline
traffic, the focus of which is clearly “the carriers’ shared interline
traffic.” Rail Freight VI, 34 F.4th at 9.

PX0245

This exhibit will be excluded in full. This exhibit consists of a list of
the “joint projects that arose from” a previous “jointline meeting”
between two railroads. See Rail Freight VI, 34 F.4th at 9
(Section 10706 protects “discussions or agreements about the
formation of the participating railroads’ interline agreements, as well
as about their anticipated shared traffic”).

16

PX0246

This exhibit will be excluded in full. This exhibit consists of
correspondence between representatives of two railroads, and related
attachments, regarding the application of a fuel surcharge on interline
traffic, the focus of which is clearly “the carriers’ shared interline
traffic.” Rail Freight VI, 34 F.4th at 9.

16

Oxbow
31

This exhibit contains the same correspondence as PX0246, as well as
related attachments. It shall be excluded for the reasons explained
above.

16

PX0247

This exhibit will be excluded in full. This exhibit consists of
correspondence between representatives of two railroads regarding
application of a fuel surcharge on interline traffic between those

16

16

16

16

16

12

Discussion
Number

Exhibit
Number

Conclusion
railroads and about the railroads’ “anticipated shared traffic.” Rail
Freight VI, 34 F.4th at 9.

PX0248

This exhibit will be excluded in full. It contains correspondence
between representatives from two railroads regarding the application
of a fuel surcharge on interline traffic, the focus of which is clearly
“the carriers’ shared interline traffic.” Rail Freight VI, 34 F.4th at 9.

17 and 18

PX0151

This exhibit will be excluded. It consists of internal correspondence
about the discussions that one railroad representative had with his
counterparts at other railroads about the railroads’ shared interline
traffic. This correspondence both “references the existence” of
interline discussions and “convey[s] the substance” of those
discussions, as defendant railroads persuasively argue. Rail Freight
VI, 34 F.4th at 12; see Defs. Supp. at 6-7.

17 and 18

Oxbow
100

This exhibit is identical to PX0151. It will be excluded for the
reasons explained above.

17 and 18

Oxbow
39

This exhibit is identical to PX0151. It will be excluded for the
reasons explained above.

PX0067

This exhibit may be admitted with redactions. The exhibit contains
correspondence (an initial email and a response to that initial email)
internal to one railroad about potentially adopting a mileage-based
fuel surcharge. The response email references the existence of
anticipated discussions concerning identifiable interline movements
between rail carriers. See Rail Freight VI, 34 F.4th at 12. Admitting
the response email “could cause a jury to see references to an
interlining discussion’s existence . . . inviting speculation about what
the carriers discussed.” Id. The defendant railroads shall propose
redactions consistent with this opinion and the order accompanying
this opinion.

PX0085

This exhibit may be admitted with redactions. The exhibit contains
correspondence internal to one railroad about potentially adopting a
mileage-based fuel surcharge. The correspondence references the
existence of anticipated discussions concerning identifiable interline
movements between rail carriers. See Rail Freight VI, 34 F.4th at 12.
Admitting the response email “could cause a jury to see references to
an interlining discussion’s existence . . . inviting speculation about
what the carriers discussed.” Id. The defendant railroads shall
propose redactions consistent with this opinion and the order
accompanying this opinion.

16

17 and 18

17 and 18

13

Discussion
Number

Exhibit
Number

Conclusion

17 and 18

Oxbow
24

This exhibit may be admitted with redactions. A segregable portion
of this exhibit references anticipated discussions about identifiable,
interline movements. See Defs. Supp. at 10. The defendant railroads
shall propose redactions consistent with this opinion and the order
accompanying this opinion.

17 and 18

PX0095

This exhibit contains correspondence that is identical to a portion of
Oxbow Ex. 24. It shall be redacted consistently with Oxbow Ex. 24.

Oxbow
11

This exhibit will be excluded in full. The exhibit consists of
correspondence between representatives from two railroads about the
railroads’ shared interline traffic and the rates applicable to that
traffic, as well as related attachments. The focus of this
correspondence is the participating railroads’ shared interline traffic,
despite the fact that the correspondence contains references to
broader, non-interline-specific initiatives. Those references are
“appropriate to the advancement of the interline discussion itself.” In
re Rail Freight, 34 F.4th at 10.

PX0612

This exhibit is a deposition transcript. During his testimony, the
witness refers to various discussions and agreements concerning
interline movements. Portions of the deposition that reference such
protected discussions and agreements may be admitted with
redactions. See Rail Freight VI, 34 F.4th at 12-13 (“Section 10706
can be implemented through redactions of truly segregable portions
or documents.”). The defendant railroads shall propose redactions
consistent with this opinion and the order accompanying this opinion.

23

PX0479

This exhibit will be excluded in full. This exhibit consists of
correspondence regarding a fuel surcharge concurrence between two
railroads. The focus of this correspondence is clearly “the carriers’
shared interline traffic.” Rail Freight VI, 34 F.4th at 9.

23

Oxbow
107

This exhibit is identical to PX0479 and will be excluded for the
reasons stated above.

24

PX0039

This exhibit will be excluded in full. This exhibit consists of
correspondence regarding a fuel surcharge concurrence between two
railroads. The focus of this correspondence is clearly “the carriers’
shared interline traffic.” Rail Freight VI, 34 F.4th at 9.

24

PX0040

This exhibit will be excluded in full. This exhibit consists of
correspondence and related attachments regarding a fuel surcharge
concurrence between two railroads. The focus of this

19

21 and 22

14