EVANS v. NATIONAL RAILROAD PASSENGER CORP.

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Case 1:24-cv-01984-RCL Document 29 _ Filed 12/05/25 Page 1 of 10

UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLUMBIA

TRACY EVANS,
Plaintiff,

Vv. Case No. 1:24-cv-1984-RCL

NATIONAL RAILROAD PASSENGER
CORP., d/b/a AMTRAK,

Defendant.

MEMORANDUM OPINION

This discovery dispute arises from Plaintiff Tracy Evans’s claim of employment
discrimination under the Americans with Disabilities Act (“ADA”) against her former employer,
Defendant National Railroad Transport Corp. (“Amtrak”) for denying Evans a workplace
accommodation that would let her work remotely. During the period between October 8, 2018,
and June 12, 2024, Evans exchanged text messages with an Amtrak colleague, Stephanie
McDade, about her interactions with Amtrak regarding her accommodation. In her discovery
production, Evans redacted portions of those text messages pursuant to the common-
interest/joint-defense privilege. Before the Court is Defendant’s Motion to Compel production
of the withheld messages. Mot. to Compel, ECF No. 20 (“Mot.”). Because Evans has failed to
provide evidence of a common-interest agreement and, in any event, disclaims having pursued a
joint litigation strategy, the common-interest privilege does not justify withholding the text

messages. Amtrak’s motion will therefore be GRANTED by separate order.

AUTHENTICATED
U.S. GOVERNMENT
INFORMATION

GPO

I.

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BACKGROUND

a. Key Facts

Evans alleges that she worked for Amtrak from 2008 until approximately 2024. Am.
Compl. §] 6-7, 23-24. Around December 2022, Evans experienced medical conditions that,
according to the allegations in the Amended Complaint, caused her doctor to recommend she
work from home.! Jd. 10-14. Due to workplace practices established during the COVID-19
pandemic, Evans had been able to work from home without issue until around mid-2023, when
she was ordered to return to in person work. Jd. § 16. She requested that Amtrak allow her to
work from home in June 2023, but Amtrak refused, citing a collective bargaining agreement that
disallowed working from home. Jd. § 16-17. Evans filed a discrimination charge with the Equal
Employment Opportunity Commission (“EEOC”). Jd. 921. After Evans was later terminated
from her position, she filed a second EEOC charge. Id. 24.

Stephanie McDade also worked for Amtrak in crew management. See Compl. 47,
McDade v. National Railroad Passenger Corp., No. 1:23-cv-3801-AHA (D.D.C. Dec. 12, 2023)
(“McDade Compl.”); see also Ex. B. to Opp’n, ECF No. 25-3. And like Evans, McDade alleges
that she experiences a medical condition that caused her physician to recommend she work from
home. Jd. § 13. After Amtrak refused her request for an accommodation, citing the same
collective bargaining agreement as with Evans, McDade filed an EEOC charge, McDade EEOC
Charge, Ex. I to Opp’n, ECF No. 25-7. She later sued in federal court. See McDade Compl.

McDade and Evans began corresponding about Amtrak’s unwillingness to meet their

proposed accommodations by around June 2023. See Ex. G. to Pl.’s Opp’n at 2, ECF No. 25-8.

1 Evans alleges that she was diagnosed with adjustment disorder, depression, and anxiety. See Am. Compl. 4 10.
She alleges that adjustment disorder causes her to experience extreme fatigue, gastric symptoms, and fibromyalgia.
Id. 412. She also alleges that she suffers from symptoms of Addison’s disease. Id. {| 22.

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Their conversations included discussion of who at Amtrak might be able to assist them, the
applicable regulations they believed Amtrak was violating, and other potential legal
considerations. See generally id. The next month, and indeed, on the same day — July 25, 2023
— both Evans and McDade hired the same law firm to represent them in legal proceedings
against Amtrak. Declaration of Kathryn E. Averwater {fj 1-2, ECF No. 25-1 (“Averwater
Decl.”). This dispute concerns certain of the text messages exchanged between Evans and
McDade between July 20, 2023, and April 2, 2024, which Evans maintains should be protected
from disclosure under the common-interest doctrine and the attorney-client privilege.
b. The Discovery Dispute

On July 9, 2024, Plaintiff filed a Complaint in this case, alleging disability discrimination
and retaliation in violation of the ADA. See ECF No. 1. She amended her complaint on January
3, 2025, see Am. Compl., and after Amtrak answered, see ECF No. 15, the parties proceeded to
discovery. In interrogatory responses produced in this case on March 21, 2025, Evans identified
McDade as a witness with whom she discussed her accommodation request. See P1.’s Answers
to Def.’s First Set of Interrogatories, Ex. A to Mot. at Nos. 10, 17, ECF No. 20-2. Evans’s
discovery responses did not include her communications with McDade, however, and Amtrak
thus sent Evans a letter raising the deficiency. See Discovery Deficiency Letter, Ex. B to Mot.,
ECF No. 25-3. Evans then supplemented her discovery responses on June 26, 2025, invoking
the common-interest doctrine to withhold certain text messages between her and McDade, which
she identified in a privilege log. See P1.’s Supp. Answers to Def.’s First Set of Interrogatories at
Nos. 10, 17, Ex. C. to Mot., ECF No. 20-4; Privilege Log, Ex. D. to Mot, ECF No. 25-5.

Two weeks later, Evans produced more than 300 pages of text messages between her and

McDade, spanning the period between October 8, 2018, and June 12, 2024. Many of those pages

I.

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contain redactions, which Evans asserts “are protected by co-plaintiff/attorney-client privilege”
because she and McDade “discussed and coordinated their accommodation requests and
discrimination charges at length and shared a common strategy.” July 25, 2025 Email, Ex. E to
Mot., ECF No. 20-6. She further asserted that “[t]he redacted texts are messages that are so
intertwined with advice and communications to/from their mutual counsel that the texts are
protected by attorney-client privilege.” Jd. An amended privilege log identifies approximately
sixty pages, by the Court’s count, of text messages containing information withheld under the
common-interest doctrine. See Am. Privilege Log, Ex. F. to Mot., ECF No. 20-7.

Amtrak moved to compel production of the documents. The motion is now ripe, see
Opp’n, ECF No. 25; Reply, ECF No. 26, and because Evans has not satisfied the stringent
requirements of the common-interest doctrine, the Motion will be granted.

LEGAL STANDARD

“When a party objects to a discovery request, the requesting party may — after first
attempting to resolve the issue by conferring with the refusing party — file a motion to compel.”
Campaign Legal Ctr. v. Iowa Values, 710 F. Supp. 3d 35, 46 (D.D.C. 2024) (quoting Lamaute v.
Power, 339 F.R.D. 29, 35 (D.D.C. 2021)). “Rule 37 permits a party to file a motion to compel
discovery if, among other reasons, the opposing party . . . ‘fails to produce documents .. .
requested under Rule 34.’” Jd. (second alteration in original) (quoting Fed. R. Civ. P. 37(a)(1),
(a)(3)(B)(iv). “An incomplete answer or response is treated as a failure to respond.” Jd.

Motions to compel discovery are channeled through a burden-shifting framework. The
moving party must make an initial showing that (1) “the requested information is relevant,” and

(2) “the opposing party’s response . . . is inadequate or incomplete.” Jd. “After establishing

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relevance and incompleteness, the burden shifts to the party opposing discovery to show why the
discovery should not be permitted.” Jd. (internal quotation marks and citation omitted).

The parties in this case agree that the sole question on the motion to compel discovery is
whether the text messages are privileged. “The burden is on the proponent of [a] privilege to
demonstrate that it applies.” Fed. Trade Comm’n v. Boehringer Ingelheim Pharm., Inc., 892
F.3d 1264, 1267 (D.C. Cir. 2018). “The ‘basis of [a] privilege’ must be ‘adequately established
in the record’ through evidence ‘sufficient . . . to establish the privilege . . . with reasonable
certainty.’” In re Subpoena Duces Tecum Issued to CFTC, 439 F.3d 740, 750 (D.C. Cir. 2006)
(alterations in original) (first quoting Liberty Lobby, Inc. v. Dow Jones & Co., 838 F.2d 1287,
1303 (D.C. Cir. 1988), and then quoting FTC v. TRW, Inc., 628 F.2d 207, 213 (D.C. Cir. 1980)).
“To discharge this burden, the proponent of a privilege ‘must adduce competent evidence in
support of its claims’ and ‘must offer more than just conclusory statements, generalized
assertions, and unsworn averments of its counsel.’” United States v. ISS Marine Servs., Inc., 905
F. Supp. 2d 121, 127 (D.D.C. 2012) (quoting In re Veiga, 746 F. Supp. 2d 27, 33-34 (D.D.C.
2010)).

III. DISCUSSION

“The attorney-client privilege protects the confidential communications made between
clients and their attorneys when the communications are for the purpose of securing legal
advice.” Jn re Lindsey, 158 F.3d 1263, 1267 (D.C. Cir. 1998). “The privilege is intended to
encourage ‘full and frank communications between attorneys and their clients and thereby
promote broader public interests in the observance of law and administration of justice.’”
Swindler & Berlin v. United States, 524 U.S. 399, 403 (1998) (quoting Upjohn Co. v. United

States, 449 U.S. 383, 389 (1981)).

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“The joint defense privilege, often referred to as the common interest rule, is an extension
of the attorney-client privilege that protects from forced disclosure communications between two
or more parties and/or their respective counsel if they are participating in a joint defense
agreement.” United States v. Hsia, 81 F. Supp. 2d 7, 16 (D.D.C. 2000). The privilege protects
not just communications with counsel, but communications “between the parties,” if they are
“part of an on-going and joint effort to set up a common defense strategy” in connection with
actual or prospective litigation. Minebea Co. v. Papst, 228 F.R.D. 13, 15 (D.D.C. 2005) (internal
quotation marks omitted) (quoting Jn re Bevill, Bresler & Schulman Asset Mgmt., 805 F.2d 120,
126 (3d Cir. 1986)). “The ‘common interest doctrine,’ in short, ‘permits parties whose legal
interests coincide to share privileged materials with one another in order to more effectively
prosecute or defend their claims.’” Georgia v. U.S. Dep’t of Just., 148 F.4th 724, 733 (D.C. Cir.
2025) (quoting Hunton & Williams v. U.S. Dep’t of Just., 590 F.3d 272, 277 (4th Cir. 2010)).
“The rationale is to enable parties with aligned interests to prepare their cases and ‘coordinate
their positions without destroying the privileged status of their communications.’” Jd. (quoting
Restatement (Third) of the Law Governing Lawyers § 76 cmt. b (Am. L. Inst. 2000).

“In order to establish the existence of a joint defense privilege, the party asserting the
privilege must show that (1) the communication was made pursuant to a joint defense effort, (2)
the statements were made to further the effort, and (3) the privilege has not been waived.”
Minebea, 228 F.R.D. at 16 (quoting Jn re Bevill, 805 F.2d at 126). “It is incumbent on a party
claiming the joint defense privilege, therefore, to establish that ‘the parties had agreed to pursue
a joint defense strategy.’” Minebea, 228 F.R.D. at 16. Although “[a] written agreement is the
most effective method of establishing the existence of a common interest agreement,” it is not

the only way to do so. Intex, 471 F. Supp. 2d at 16. An “oral agreement” can also supply “a

basis for the requisite showing." Id. The privilege also "permits an exchange of confidential
information when the parties have clearly and specifically agreed in some [other] manner to pool
information for a common goal." Id. at 16 ( citation omitted). But in these latter circumstances,
"the party's burden of proving that a statement was made in the common interest will
undoubtedly be more difficult." Id. The party asserting the privilege bears the burden of proving
the "existence, terms and scope" of any oral or implied common-interest agreement. Intex, 471
F. Supp. 2d at 16.
Evans has failed to produce evidence to support the existence of such an agreement. She
appears to acknowledge that she and McDade never reduced any such agreement to writing, and
instead contends that "Evans and McDade need not have a written agreement to have a 'common
legal interest' and pursue 'a coordinated legal strategy."' Opp'n at 6 (quoting Intex, 471 F. Supp.
2d at 17). Yet she offers no more than the outline of an argument for why she has proven a
common-interest agreement with McDade exists in fact. Indeed, she asserts in a single sentence
that the Court may infer an agreement because she "and McDade discussed suing Amtrak,
retained the same counsel, and then filed charges asserting the same discrimination." Opp'n at 6.
This argument fails several times over. For one thing, it is woefully underdeveloped. Evans
fails to identify specific factual evidence in the record on which the Court could base findings
concerning the "existence, terms and scope" of the putative common-interest agreement. Intex,
471 F. Supp. 2d at 16. "[A] litigant has an obligation to spell out its arguments squarely and
distinctly," and "[i]t is not enough merely to mention a possible argument in the most skeletal
way, leaving the court to do counsel's work, create the ossature for the argument, and put flesh
on its bones." Schneider v. Kissinger, 412 F.3d 190, 200 n.1 (D.C. Cir. 2005) (quoting United
States v. Zannino, 895 F.2d 1, 17 (1st Cir. 1990)).
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For another matter, the Court strains to see how the parallel conduct Evans describes,
standing alone, could prove the “existence, terms and scope” of the putative common-interest
agreement. Intex, 471 F. Supp. 2d at 16. The Court cannot conclude that McDade intended to
enter a common-interest agreement from the mere facts that she hired the same lawyers as Evans
— even if at the same time — and also filed a (separate) federal case. It is black-letter law that
“(t]he conduct of a party is not effective as a manifestation of [her] assent unless [s]he intends to
engage in the conduct and knows or has reason to know that the other party may infer from [her]
conduct that [s]he assents.” Restatement (Second) of Contracts § 19, (Am. L. Inst. 2024). And
of course, the “mere[] . . . impression” of one party that a common interest agreement existed is
not sufficient. Minebea, 228 F.R.D. at 16 (quoting United States v. Weissman, 195 F.3d 96, 100
(2d Cir. 1999)); cf id. at 17 (“Proposing to another that a joint defense agreement be executed is
no evidence of such a coordinated strategy or an agreement to jointly mount one.”). Evans has
not identified a sufficient factual basis to conclude that a common-interest agreement between
her and McDade exists. And even if Evans could prove the existence of an agreement, “the
scope of the agreement” must also be “clear,” JSS Marine Servs., 905 F. Supp. 2d at 127, and no
evidence indicates, for example, the duration or subject-matter of any putative implied
agreement. Cf Intex, 471 F. Supp. 2d at 17 (holding that identical demand letters pertaining to
alleged infringement of a discrete patent and sent on the same date by both parties to an implied
common-interest agreement, “evidence[d] . . . [an] intent to enter into a ‘coordinated legal
strategy’ to enforce the ‘469 patent” (citation omitted)).

If anything, the evidence in the record tends to suggest the absence of an agreement to
“pursue a joint . . . strategy” or “pool information for a common goal.” Minebea, 228 F.R.D. at

16. Evans appears to have disclaimed in deposition testimony that she and McDade had

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strategized about how to pursue litigation against Amtrak. Specifically, Evans testified as

follows:

Q: In any of the communications that the two of you had, were
they about your collective strategies for litigating your cases?

A: When you say -- no. We -- no. So since she -- we have not
talked about -- I have not talked about my -- like, this. Like, this
situation with her.

Q: The case?
A: Like —
Q: In general?

A: I mean, I might have told her that I got counsel and, you know,
I filed a EEOC charge.

Q: You had counsel and you filed an EEOC charge, you haven’t
had any conversations with [McDade] on the phone or by text
-where the two of you were discussing the actual litigation? Like
your claims, the — the prosecution of these cases that the two of
you have? None of that?

A: We might have explained to each other what — why we were
doing what we were doing, but it wasn’t like advising each other.

Q: Okay. And it wasn’t helping one another pursue your claims?
A: Not, not really.

Deposition of Tracy Evans at 179:8-180:13, ECF No. 25-2 (“Evans Dep.”). Although neither
the questions asked nor answers offered are a paragon of clarity, Evans certainly appears to
disclaim that she was strategizing with McDade regarding the contemplated litigation when she
answered negatively that she and McDade were not “helping one another pursue [their] claims.”
Id. at 180:11-12.

Evans disputes this interpretation of her testimony in her opposition filings, suggesting

that the testimony establishes only that Evans “had not spoken to McDade recently or about the

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current stage of her case,” meaning the current federal litigation, “and that she could not recall

22

what they had discussed about the case.” Opp’n at 7. This characterization is not convincing,
since the testimony hardly suggests she and McDade had shared a joint strategic pursuit prior to
the filing of Evans’s federal case either. See Evans Dep. at 179:18-19 (“I might have told her
that I got counsel and, you know, I filed a EEOC charge.” (emphasis added)). But more to the
point, even if that was a fair characterization of the evidence, it offers no affirmative evidentiary
basis for the Court to determine the “existence, terms and scope” of a common-interest
agreement. Intex, 471 F. Supp. 2d at 16.

Invoking an unwritten common-interest agreement is “undoubtedly ... difficult.”
Minebea, 228 F.R.D. at 16. But that is because the common-interest doctrine, like “[alll
privileges that protect against forced disclosure,” is “not lightly created nor expansively
construed, for [it is] in derogation of the search for truth.” ISS Marine Servs., 905 F. Supp. 2d at
127 (quoting United States v. Nixon, 418 U.S. 683 (1974)). “[I]t is certainly prudent practice to
execute a written agreement before significant communications are exchanged,” so as to
“eliminate any doubt about whether the parties to the discussion were pursuing a common goal
with respect to the matters communicated.” Minebea, 228 F.R.D. at 16 (citation omitted).
Absent evidence of any form of agreement, Evans has failed to supply a basis for withholding

her text messages with McDade in this dispute.

IV. CONCLUSION

For the foregoing reasons, the Court will GRANT the motion by separate order.

Date: December 5, 2025 ws Ruta

Royce C. Lamberth
United States District Judge

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