Labor & Employment Law Daily Wrap Up, EVIDENCE, DISCOVERY—D.D.C.: Court compels production of employee text messages in discrimination case, (Dec 10, 2025)

By Ursula Furi-Perry, J.D.

No joint litigation strategy existed and no valid common-interest agreement had been formed between coworkers and thus the common-interest/joint-defense privilege did not preclude production of the documents.

A former Amtrak employee sued the company after being denied continued accommodations to work from home. The employee had exchanged text messages with a colleague who had experienced similar medical limitations and requested accommodations and Amtrak sought the production of the text messages during discovery. A federal court in the District of Columbia compelled their production, rejecting the employee’s argument under the common-interest/joint-defense privilege and the attorney-client privilege. The court agreed with Amtrak that no joint litigation strategy existed and no valid common-interest agreement had been formed, and therefore the privilege did not preclude production of the documents (Evans v. National Railroad Passenger Corp. dba Amtrak, No. 1:24-cv-1984-RCL (D.D.C. Dec. 5, 2025)).

Remote work. The employee began working for Amtrak in 2008; beginning in December 2022, she developed medical conditions requiring her to work from home, which her physician recommended and her employer allowed during the COVID-19 pandemic. In mid-2023, however, she was suddenly ordered to return to in-person work.

When she requested a continued accommodation to work from home, the employer denied the request, citing a collective bargaining agreement. The employee filed an EEOC charge, and after her subsequent termination, she filed a second one.

Correspondence. A colleague experienced similar medical limitations and requested accommodations, which Amtrak also denied; the colleague filed her own EEOC charge and later a separate federal lawsuit. The two employees began corresponding about their shared difficulties obtaining accommodations, discussing the regulations they believed applied, internal decision makers, and their frustrations with the employer’s responses. Both employees retained the same law firm on the same day in July 2023.

The employee sued, alleging employment discrimination under the ADA. During discovery, she produced more than 300 pages of text messages spanning 2018 to 2024 but withheld portions of certain messages, redacting them under the common-interest/joint-defense privilege and the attorney-client privilege. The employer challenged these redactions, arguing that no joint litigation strategy existed and no valid common-interest agreement had been formed, and moved to compel production.

Privileged? The federal district court addressed the procedural issues under the rules of discovery, noting that a motion to compel discovery requires the moving party to show that the requested information is relevant, and that the opposing party’s response is inadequate or incomplete. The court emphasized that the sole question was whether the withheld text messages were privileged under the attorney-client privilege or the common-interest/joint-defense doctrine.

The court first reviewed the scope of attorney-client privilege, noting that it protects confidential communications made for the purpose of obtaining legal advice; however, the court noted, when a party shares communications with a third party, privilege is ordinarily waived. As an exception, the common-interest doctrine extends protection to communications among separate parties and their attorneys, but only if the parties are engaged in a clearly defined, joint legal effort or shared litigation strategy, and the communication was intended to further that joint effort.

Because the common-interest doctrine is construed narrowly and requires strong evidentiary support, the federal district court held that no privilege applied in this case. The employee had provided no written agreement, no oral agreement, and no evidence establishing the “existence, terms, and scope” of any coordinated litigation strategy with her colleague. The court explained that hiring the same lawyers or filing similar EEOC charges does not, standing alone, establish a joint defense or common-interest arrangement. Depositions further undermined the privilege claim, as the employee testified that she and the colleague had not strategized about litigation and were not helping one another pursue their legal claims. This testimony, said the court, was inconsistent with any claim of a coordinated legal effort.

Conclusion. The federal district court granted the employer’s motion to compel production of discovery.

The case is No. 1:24-cv-1984-RCL.

Judge: Lamberth, R.

Attorneys: Kathryn Averwater (Casey Jones Law Firm) for Tracy Evans. Jeremy S. Schneider (Jackson Lewis) for National Railroad Passenger Corp. dba Amtrak.

Companies: National Railroad Passenger Corp.; Amtrak

Cases: EvidenceDiscovery DisabilityDiscrimination Discrimination DistrictofColumbiaNews