(acknowledging that defendant conducted noise surveys after a neighbor complained of noise from a rail facility, but rejecting a work product claim because the defendant did not present any evidence that the complaint motivated the studies; "NS presents no affidavits, correspondence, whether emails, e-mail chains, or other communications, statements, or memoranda indicating, inter alia, when Ms. Knight's [a secretary who conveyed the neighbor's complaint] email to Mr. Wells [recipient of the notice] came to the attention of a member of the Law Department or what such 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."; "Conclusory assertions regarding a putative anticipation of litigation are not enough to invoke the work product doctrine."; "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 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 Univ. Hosps. Health Sys. v. Pohl Inc. of Am., 2018 U.S. Dist. LEXIS 48592, 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.")
Case Date |
Jurisdiction |
State |
Cite Checked |
2018-04-10 |
Federal |
OH |
|