Nottke et al v. Norfolk Southern Railway Company

Filing 41

Order denying defendant's Motion for protective order (Related Doc # 34 ). The defendant shall forthwith provide the plaintiffs with the raw data, test results, and reports, inclusive, dated September 14, 2015, and October 28, 2015, and submitted by letter in conjunction with that motion. Judge James G. Carr on 4/10/18.(C,D)

IN THE UNITED STATES DISTRICT COURT
FOR THE NORTHERN DISTRICT OF OHIO
WESTERN DIVISION

Michael Nottke, et al.,

Case No. 3:17CV544

Plaintiffs,
v.

ORDER

Norfolk Southern Railway Company,
Defendant.

After defendant Norfolk Southern Railway Company (NS) expanded substantially its
marshalling yard (now known as Moorman Yard) at Bellevue, Ohio, residents began
complaining about excessive noise from the yard’s car retarders. 1 This lawsuit seeks to remedy
that problem.
The initial complaint of record to NS about this situation is a May, 2016, phone call from
Richard Leonard, a Bellevue resident living 2,500 yards from Moorman Yard, to the office of
William Galanko. Mr. Galanko was NS Vice President in charge of the NS Law Department.
Though unanswered, Mr. Leonard’s call led to an email from Linda F. Knight, Secretary in the
Department, to one Robert Wells:
Bob
Do you handle this type of situation? If not can you forward it to the appropriate
individual who might handle this type of situation.

1

I take judicial notice that car retarders squeeze the flanges of railcar wheels, thereby
controlling the cars’ speed as they descend a marshalling yard’s “hump” and roll toward their
various assigned tracks to make up trains for later departure.
1

Mr. Richard Leonard contacted Bill Galanko’s (VP of Law Department office)
today. The call rolled over to Donna Talani’s telephone (VP’s Assistant).
Mr. Leonard requires someone to contact him in reference to the Hump yard in
Bellevue, OH. Since NS did the rail expansion of the yard the noise is intolerable.
Mr. Leonard lives 2000 feet from the yard. He and his neighbors would like to
speak to someone at NS about this situation before they go out and get an attorney
[to] handle their concerns.
I appreciate you or someone who handles these situations to contact Mr. Leonard.
His telephone number is [XXX-XXX-XXXX].
(Doc. 34, Exh. AA (sealed)). 2
Thereafter, at some unspecified point and prompted by some unspecified purpose, NS
retained Environmental Health and Safety Solutions, LLC (EHSS) to conduct noise level tests in
the yard and its environs. The tests at issue occurred on August 26 and 27, 2015 and September
24, 2015. 3 EHSS addressed its test result reports of September 14, 2015, and October 28, 2015,
respectively, to Mark Dudle, NS Director of Industrial Hygiene. There is no cc to anyone in the
Law Department.
Before the first EHSS test in late August, the Lyme Township Board of Trustees sent NS
a resolution they had adopted on August 4, 2015, “supporting Lyme Township resident’s [sic]
concerns about the excessive sealing noise” from the Yard. (Doc. 34, Exh. A). 4

2

NS has not affirmed, nor even asserted, that Mr. Wells was an attorney or otherwise affiliated
with its Law Department. It seems to me to be a fair inference that he was neither: after all, if he
had some connection with that Department, it would hardly be necessary for Ms. Knight to tell
him that Mr. Galanko was Head of the Department or that Ms. Talini was Mr. Galanko’s
Assistant.

3

NS submitted these results, along with a cover letter, under seal in conjunction with its filing of
its motion for a protective order.
4

The Trustees addressed their undated cover letter, without departmental affiliation, to Mr. Tim
Bentley, III. They also cc’d fourteen public officials, the NS Board of Directors (by name), and
President Squires, Vice-President Butler, and Executive Vice-President Earhart. Vice-President,
2

On September 14, 2015, before EHSS’s second testing, Mr. Leonard sent a letter
addressed to James A. Hixon, NS Executive Vice President, asking his “assistance to getting the
owners and operators of the Moorman Yard to implement noise reduction improvements as are
necessary and sufficient to reduce the transmission of noise. . . .” (Id., Exh. B). Attached to the
Leonard letter was a Petition (signed by eighty residents) and a copy of the August 4, 2015
Township Trustees Resolution. 5
Neither the words, “attorney(s),” “lawyer(s),” “legal counsel,” “lawsuit,” “litigation,” nor
any of their synonyms appeared in either the Trustees Resolution or its cover letter to Mr. Bently
or in Mr. Leonard’s September 14, 2015 letter and its attachments to Mr. Hixon.
Pending is NS motion for a protective order, filed in response to the plaintiffs’ discovery
requests for production of the EHSS August and September tests and reports. (Doc. 34). In
support of its motion, NS asserts the attorney work product doctrine. Claiming that the EHSS
tests were in response to the Leonard call, NS states that its Law Department, through a person
or persons not named and at a time not specified, “immediately began to investigate this issue.”
(Doc. 34-1, at 6).
Except for the materials I have thus far recited, NS offers no other factual basis in support
of the putative nexus between the Leonard call and the test results.
That’s it: NS presents no affidavits, correspondence, whether emails, e-mail chains, or
other communications, statements, or memoranda indicating, inter alia, when Ms. Knight’s
email to Mr. Wells came to the attention of a member of the Law Department or what such

Legal Department Head Mr. Galanko was not cc’d. It was stamped received by the Law
Department on August 31, 2015, a week after EHSS conducted its first test.
5

Mr. Leonard cc’d his letter to the same recipients to whom the Trustees had sent their
Resolution. Like the Trustees, he did not cc Mr. Galanko.
3

person or persons did or did not do upon its receipt, and what happened thereafter. Similarly,
there is no correspondence, by email, letter, memo, or otherwise, indicating who made the
decision to retain EHSS, why that retention occurred, or why, without cc to the Law Department,
the test reports were addressed to the NS Director of Industrial Hygiene.
After May 19, 2015, when notice of Mr. Leonard’s call went out to Mr. Wells, there is
nothing in the record to connect the EHSS tests to anyone’s apprehension that litigation might be
in the offing.
Discussion
Rule 26(b)(3)(A) of the Federal Rules of Civil Procedure precludes, on the basis of the
attorney work product doctrine, unwilling disclosure of materials that an opposing party has
prepared “in anticipation of litigation or for trial.” This Rule and the work product doctrine it
implements “shelter[] the mental processes of the attorney, providing a privileged area within
which he can analyze and prepare his client’s case. U.S. v. Nobles, 422 U.S. 225, 238-39 (1975).
The protection of the doctrine extends to materials that others have prepared “as long as such
documents were prepared in anticipation of litigation." Roa v. Tetrick, 2014 WL 695961, *2
(S.D. Ohio).
Preparation in anticipation of litigation is the predicate for the doctrine. To meet this
requirement, the movant must prove that the “document was prepared because of a party's
subjective anticipation of litigation” and that “its subjective anticipation was objectively
reasonable." In re Professionals Direct Ins. Co., 578 F.3d 432, 439 (6th Cir. 2009) (internal
quotation marks omitted); Biergas v. Quickway Carriers, Inc., 573 F.3d 365, 381 (6th Cir. 2009).

4

In evaluating whether a party has met this burden, “the courts generally look to a showing
based on affidavits or equivalent statements that address each document at issue.” U.S. v.
Roxworthy, 457 F.3d 590, 597 (6th Cir. 2006).
Conclusory assertions regarding a putative anticipation of litigation are not enough to
invoke the work product doctrine. E.g., Toledo Edison v. G.A. Technologies, Inc., 847 F.2d 335,
339 (6th Cir. 1988) (“application of the privilege will be rejected where the only basis for the
claim is an affidavit containing conclusory statement[s]”); Young v. Chapman, 2016 WL
1717226, *7 (W.D. Ky.) (attorney’s “affidavit is conclusory; it fails to provide the sort of
‘specific and detailed’ information that would demonstrate that the documents were prepared in
anticipation of litigation.”); U.S. v. Eaton Corp., 2012 WL 3486910, *4 (N.D. Ohio) (party
provided no support for work product claim “other than conclusory allegation that the work
product doctrine applied”).
In its reply brief, NS goes to great lengths (but, in the end, gets nowhere) trying to point
to factual differences between Roxworthy and related cases. (Doc. 40, at 7-8 of 15). NS simply
ignores the bedrock proposition that conclusory allegations about anticipated litigation do not
adequately undergird a work product claim.
Well-padded with citations, the NS briefs, stripped of those layers, are bare of factual
substance. Read in toto, what Mr. Leonard wanted was simply to hear from, and to voice his
concerns to, someone at NS; that’s what mattered, not getting an attorney, much less filing a
lawsuit. But NS responded with silence, as it did to the Trustees Resolution and the neighbors’
petition. Read together, all Mr. Leonard and they wanted was some response to their plight.
Deaf ear then, silence now: even if affidavits, depositions, and the like are not required –
though generally expected and offered – and even if other kinds of evidence might, as it probably

5

could, make out a valid and adequate work product claim, NS presents no evidence other than
the Leonard May-day call three and four months before the EHSS tests. Here, as in University
Hospital Health Systems v. Pohl, Inc. of America, 2018 WL 1474368, *3 (N.D. Ohio), “nowhere
. . . is there any mention of litigation or even the potential of litigation” in any communications.
Indeed, here NS offers none of its own communications at all. The case law makes compellingly
clear that something more is needed to give rise to an actual and a reasonable anticipation that
litigation might arise. There is no evidence on either score in this record.
Instead, NS, by its persistent lack of response, communicated an unstated message to its
neighbors that it did not care, that it could and would continue to do as it wanted, and that it had
nothing to fear, no matter how many voices sought to be heard.
Conclusion
I find that NS has failed to meet its burden of showing even reason to believe, much less
probable cause, that it engaged EHSS to do noise testing because it actually apprehended that
Mr. Leonard or anyone else was a potential litigant. I also find that, even if someone in NS
somehow – whoever that might have been – really had such apprehension, it was entirely
unreasonable and unrealistic.
It is, accordingly,
ORDERED THAT:
1.

The defendant’s motion for a protective order (Doc. 34) be, and the same hereby
is denied; and

6

2.

The defendant shall forthwith provide the plaintiffs with the raw data, test results,
and reports, inclusive, dated September 14, 2015, and October 28, 2015, and
submitted by letter in conjunction with that motion. 6

So ordered.
/s/ James G. Carr
Sr. U.S. District Judge

6

NS suggests that all that plaintiffs seek is “raw data.” Not so: plaintiffs’ interrogatories also
seek the test results – i.e, the EHSS test reports. In any event, those narratives deserve no more
work product protection than the data that underlies them.
7