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					                    UNITED STATES COURT OF APPEALS
                      FOR THE FOURTEENTH CIRCUIT
___________________________________
                                    )
PASSENGER RAILWAY AGENCY,           )
     APPELLANT                      )
                                    )
     v.                             )        No. ST-09-01
                                    )
Sharon MANSFIELD,                   )
     APPELLEE                       )
__________________________________ )


                ORDER AFFIRMING DISTRICT COURT’S DENIAL
          OF MOTION TO DISMISS AND MOTION TO COMPEL DISCOVERY

Before Worcester, Revere, and Everett, J.J.

WORCESTER, J.

        Appellee Mansfield brought a state law-based negligence

claim against Regionlink.     Mansfield later joined a negligence

claim against the Passenger Railway Agency (“Passrail”) under the

Federal Tort Claims Act (“FTCA”).     Mansfield alleged that she

suffered serious injuries caused by an accident on a commuter

train jointly run by Passrail, a federal entity, and Regionlink,

a private entity.     This court has jurisdiction under 28 U.S.C. §§

1331, 1332, 1346(b) (2006).1

        Passrail filed a motion to dismiss Mansfield’s suit,

alleging that the FTCA’s two-year statute of limitations barred

her claim.     The District Court for the District of Stone denied

the motion.     The court held that Mansfield’s claim against


1
    Mansfield’s claim against Regionlink is not at issue here.
Passrail ought to be equitably tolled because the results of the

joint Regionlink-Passrail investigation into the accident misled

Mansfield into believing that she had no claims against Passrail.

     Discovery then proceeded smoothly, if slowly, until

Mansfield refused Passrail’s request for communications between

Mansfield’s attorney and Dr. Beverly Salem, Mansfield’s expert

witness.     Passrail filed a motion to compel discovery of

communications between Dr. Salem and Mansfield’s attorney,

arguing that Fed. R. Civ. P. 26(a)(2) mandates disclosure of all

information considered by an expert witness.     The court denied

that motion, holding that the materials were protected by the

attorney work product privilege under Fed. R. Civ. P. 26(b)(3).

     Following a bench trial, the court entered a judgment for

Mansfield.     Passrail appeals that judgment to this Court.

Passrail first argues that the district court erred in denying

its motion to dismiss and asks this court to reverse that

decision and vacate the lower court’s judgment.     Alternatively,

Passrail argues that that the district court improperly denied

its motion to compel discovery and asks for a new trial.

I.   Facts

     Appellee Sharon Mansfield worked at The Stone City Herald as

a copy editor.     The Herald’s offices are located in Stone City,

Stone but Mansfield lived in West Rockport, twenty-six miles away

in the neighboring state of Albers.     Mansfield typically took a

                                   2
late express train home on the Regionlink Southwest Line, leaving

Stone City Waterloo Station at 1:21 a.m. and arriving at East

Rockport, the last stop, at 2:06 a.m.     Because the Regionlink

Southwest Line only operates within the state of Stone, Mansfield

has to drive from the East Rockport station in Stone to her West

Rockport home in Albers, two miles away.

    Regionlink, a private rail company, operates a commuter-rail

network with lines radiating from several stations in central

Stone City.   Trains on the electrified lines are powered from

overhead catenary wires.     Every electrified line’s right-of-way,

which includes the tracks and catenary wires, is the property of

Passenger Railway Agency (“Passrail”), an arm of the United

States Department of Transportation that runs long-distance

trains across the country.    Passrail licenses the use of the

electrified lines to Regionlink, allowing commuter trains to

share tracks and catenary wires with long-distance trains.     Under

the Regionlink-Passrail Intrastate Rail Compact (the “Compact”),

Passrail is responsible for maintaining the rail infrastructure.

    On March 14, 2006, Mansfield boarded the 1:21 a.m. train.

She had a trouble-free ride until her train reached the section

of track between Stoneham and East Rockport.     At exactly 2:00

a.m., as the train was traveling near milepost thirty-two (“SWMP

32”), Mansfield got out of her seat and walked into the aisle of

the railway car to stretch her legs.     The train rapidly

                                  3
decelerated, and Mansfield lost her balance, fell, and slid

towards the front of the car, injuring both her arms and her

right shoulder.   Mansfield was hospitalized for five days and had

three follow-up surgeries, one on each of her arms and one on her

shoulder.    The pain in her arms made it impossible for her to use

a computer and as a result, she missed six months of work.       She

still suffers from severe and persistent pain in her arms and

shoulder, and her work as a copyeditor has been affected.

    Passrail and Regionlink conducted a joint investigation of

the incident, as stipulated by the Compact.    Investigators

concluded that a faulty pantograph, which connects the train to

the catenary wire, caused the accident.    Before the train was put

into service for the 1:21 a.m. express run on March 14, 2006, it

underwent mechanical work in the Regionlink Southwest Maintenance

Facility.    Regionlink workers replaced eight carbon strips on top

of the pantograph in the head car.    Investigators discovered that

one of the eight carbon strips was not properly secured.       As the

train traveled from Stoneham to East Rockport, the improperly

secured strip fell off, causing the pantograph and catenary wire

to tangle.   The investigators concluded that the entanglement led

to rapid deceleration of the train.    The investigators also

concluded that no problems occurred with Passrail’s catenary

wire.   The investigators issued their final report on April 17,

2006.   The report concluded that “Incident 03142006/0200 at SWMP

                                  4
32 has been traced to improper maintenance work on pantograph

strips; catenary system did not contribute to incident.”       The

report contained no information regarding the tracks.

    On May 18, 2006, Regionlink offered Mansfield $10,000 if she

signed an agreement not to file any claims against them for the

incident.   Mansfield refused the offer and retained Shirley Ayer,

a prominent personal injury lawyer with an office in Stone City.

Ayer, a solo practicioner, practices tort law, but does not

specialize in rail incidents or transportation cases.       Protracted

negotiations between Ayer and Regionlink’s counsel failed to

produce a settlement agreement.       Therefore, on December 13, 2006,

Mansfield filed a tort claim against Regionlink in United States

District Court for the District of Stone.       Stone’s tort statute

contains a three-year statute of limitations for all tort claims.

Stone Rev. Stat. § 101 (2008).

    Meanwhile, in July 2007, Mansfield suffered an unrelated

fall.   Concerned about whether this new injury could have

exacerbated Mansfield’s problems from the train accident, Ayer

retained Dr. Beverly Salem as an expert witness to evaluate

Mansfield’s medical condition and to testify as to the source of

her ongoing pain.   Dr. Salem is a board-certified orthopedic

surgeon and director of the Pines-Everest Medical Center’s

orthopedic surgery department.    Dr. Salem examined Mansfield and

researched her condition.   Dr. Salem then prepared a written

                                  5
report concluding that Mansfield’s continuing pain is largely the

result of the train accident.     Attorney Ayer submitted this

report to opposing counsel, per the requirements of Fed. R. Civ.

P. 26(a)(2).   Ayer also submitted all factual materials relied on

by Dr. Salem in her report, including medical studies and

Mansfield’s detailed medical history.     Dr. Salem submitted a

sworn affidavit stating that she wrote every word in her expert

report.

     The discovery process proceeded apace, and largely focused

on the extent of Mansfield’s injuries and the incident’s impact

on her ability to work as a copyeditor.     On June 22, 2007,

however, Ayer also requested maintenance logs from Regionlink

relating to the cars in the 1:21 a.m. train.     Regionlink produced

the logs on September 4, 2007.2    The logs were extremely

technical and dense, and it took Ayer and her team of paralegals

over two months to read them.     Though she could not understand

all the technical jargon in the logs, the logs aroused her

suspicions regarding Passrail’s roll in the incident.

     On November 21, 2007, Ayer asked Regionlink to produce all

documents showing communications between Regionlink and Passrail

about Southwest Line infrastructure in the six months leading up

to the incident.   Ayer issued a third-party subpoena on Passrail,


2
  The parties stipulated to providing additional time for
discovery under Fed. R. Civ. P. 34(b).

                                   6
with the same production request.     Regionlink, Passrail, and Ayer

agreed that Regionlink and Passrail could each have sixty days to

produce the documents, to give them time over the holidays to

review thousands of emails to find relevant documents.

Regionlink and Passrail ultimately each produced nearly 5000

pieces of communication on January 18, 2008.    Ayer and her

colleagues sifted through the documents and eventually located a

March 9, 2006 e-mail from a Passrail track inspection supervisor

to Regionlink’s director of operations for the Southwest Line.

This message included concerns about the condition of tracks at

SWMP 32, precisely where the deceleration incident occurred.

Mansfield believes that problematic Passrail tracks caused a

sharper deceleration than would ordinarily occur in a catenary

entanglement and that the joint Passrail-Regionlink investigation

negligently failed to discover this problem.    As a result,

Mansfield decided to bring an FTCA claim against Passrail.

    On March 20, 2008, Mansfield filed an administrative claim

with Passrail pursuant to the FTCA’s administrative exhaustion

requirement.   28 U.S.C. § 2675(a).   On September 22, 2008, after

Passrail failed to act on the claim within six months, Mansfield

brought a negligence claim against Passrail under the FTCA and

added Passrail as a defendant to the existing Regionlink suit.

Passrail immediately filed a motion to dismiss, arguing that

Mansfield’s claim was time-barred under the FTCA’s two-year

                                7
statute of limitations. 28 U.S.C. §2401(b).    The district court

denied Passrail’s motion, and discovery continued.

    Passrail retained Dr. Lawrence Andover as its own expert

witness.    Dr. Andover is a board-certified orthopedic surgeon and

director of the orthopedic surgery department at the Mustard

Clinic.    The Mustard Clinic and Pines-Everest Medical Center are

considered to be the top two teaching hospitals in the state of

Stone.    Dr. Andover prepared his own report, concluding that

Mansfield’s ongoing pain is the result of her 2007 fall, not the

2006 rail accident.

    Before trial, Passrail sought discovery of all documents Dr.

Salem relied upon in creating her expert report and any and all

communications between Dr. Salem and Ayer pursuant to Fed. R.

Civ. P. 26(a)(2)(B)(ii).   Ayer produced Mansfield’s medical

records and the factual information relied upon by Dr. Salem,

including a copy of a binder of information that Ayer’s team had

assembled and distributed at a meeting with Dr. Salem.    Ayer

refused to produce Dr. Salem’s engagement letter, two e-mails

between Dr. Salem and Ayer, and the original binder that Dr.

Salem received at the meeting, however.    The original binder

contained the same documents as were in the copy of the binder

that Ayer produced, but Ayer had highlighted the summaries of

some medical journal articles.    Ayer claimed that the




                                  8
communications contained opinion work product, including details

about the history of Mansfield’s case.

      Passrail filed a motion to compel discovery of these

documents, asserting that Ayer influenced Dr. Salem’s conclusion

that the 2007 fall did not materially contribute to Mansfield’s

ongoing medical problems.   The lower court denied the motion to

compel and refused to conduct an in camera review of the

documents.   Both parties’ experts testified at trial about the

conclusions in their reports, and the experts were cross-examined

by opposing counsel.    After the trial, the judge entered judgment

for Mansfield and awarded her $294,300 in medical expenses,

$50,000 in lost wages, and $5 million in pain and suffering.3

II.   Discussion

      This Court reviews the lower court’s decisions on both

motions de novo.   First Options of Chicago, Inc. v. Kaplan, 514

U.S. 938, 948 (1995).

      A.   Statute of Limitations Issue

      The United States is immune from suit unless Congress,

through a statute, expressly waives this sovereign immunity.

Dep’t of the Army v. Blue Fox, 525 U.S. 255, 260 (1999).

Congress has waived this immunity by enacting the FTCA, which

allows courts to impose liability on the United States in a tort

3
  The judge held that Passrail and Regionlink were each liable
for fifty percent of the damages. The damage award is not at
issue in this proceeding.

                                  9
action “in the same manner and to the same extent as a private

individual under like circumstances.”     28 U.S.C. § 2674.

Congress imposed a two-year statute of limitations on all FTCA

tort claims.   28 U.S.C. § 2401(b).

    A court may toll a statute of limitations when necessary to

prevent unfairness.   Irwin v. Dep't of Veterans Affairs, 498 U.S.

89, 95-96 (1990).   “[O]nce a prospective plaintiff learns of his

injury, he is on notice that there may have been an invasion of

his legal rights and that he should investigate whether another

may be liable to him."     Gould v. U.S. Dep’t of Health and Human

Serv., 905 F.2d 738, 744 (4th Cir. 1990).    Generally, courts will

equitably toll a statute of limitations only if the plaintiff

diligently pursued her claims but was prevented, through fraud,

lack of information, or extraordinary circumstances, from filing

her claim in a timely manner.    Bowen v. City of New York, 476

U.S. 467, 479-82 (1986).    Courts will not equitably toll a

statute of limitations if tolling the statute would conflict with

the relevant statute or if the delay is due to plaintiff’s

“excusable neglect,” lack of diligence, or lack of legal

knowledge.   United States v. Beggerly, 524 U.S. 38, 48 (1998).

    The FTCA does not address whether a court may equitably toll

its statute of limitations.     While the Supreme Court has not

addressed whether equitable tolling rules apply to FTCA tort

claims, the Court has permitted tolling in a Title VII

                                  10
discrimination claim against a federal employer.      Irwin, 498 U.S.

at 95-96.   The Court refused to apply the equitable tolling

doctrine to statutory income tax refund claims, however, holding

that the specific and technical exceptions in the statute

indicated that additional exception should not be implied.

United States v. Brockamp, 519 U.S. 347, 348, 352 (1997).      Most

recently, in John R. Sand & Gravel Co. v. United States, the

Court distinguished Irwin, stating that Irwin created a

“rebuttable presumption” of equitable tolling that could be

rebutted by “demonstrating Congress’ intent to the contrary.”

128 S. Ct. 750, 756 (2008).   The Court noted that specific

statutory language or prior definitive interpretation by the

Court could suffice to rebut the presumption.   Id.

    We note that our sister circuits are divided over whether a

court may toll the FTCA statute of limitations for tort claims.

Some courts hold that the FTCA statute of limitations is

jurisdictional and creates an absolute requirement that courts

cannot waive through equitable tolling.   Hart v. Dep't of Labor,

116 F.3d 1338, 1339 (10th Cir. 1997).   Other courts have held

that the statute is not jurisdictional, but merely an affirmative

defense that the defendant has the burden of establishing after a

plaintiff files suit; these courts allow equitable tolling.

Hughes v. United States, 263 F.3d 272, 278 (3d Cir. 2001).

Finally, some courts hold that the statute of limitations is

                                11
jurisdictional, but allow equitable tolling anyway.    T.L. ex rel.

Ingram v. United States, 443 F.3d 956, 961 (8th Cir. 2006).

Courts that allow equitable tolling require the plaintiff to show

that “in the exercise of reasonable diligence, [she] could not

have discovered information essential to the suit.”    Gonzalez v.

United States, 284 F.3d 281, 291 (1st Cir. 2002).

    We find nothing in the FTCA to rebut the presumption of

equitable tolling created by Irwin.    See John R. Sand & Gravel,

128 S. Ct. at 756.   Appellant argues that because Congress

explicitly considered adding an equitable tolling exception for

minor children to the FTCA in 1989, but did not, the courts

should not add one in Congress’s place.   See H.R. 3260, 101st

Cong. (1989); Hallstrom v. Tillamook County, 493 U.S. 20, 27

(1989).   This Court is reluctant to infer much from congressional

inaction.   We find that courts should apply the same rules to

suits against the government as would apply to a private suit.

Irwin, 498 U.S. at 95.

    The FTCA does include some exceptions to its statute of

limitations.   For example, if a party files a claim, but fails to

first present its claim to the relevant agency, the FTCA

considers the claim timely so long as it would have been timely

on the day the suit was first filed.   28 U.S.C. § 2679(d)(5).

Moreover, the limitations period for non-tort civil suits against

the government tolls for persons “under legal disability or

                                12
beyond the seas.”   28 U.S.C. § 2401(a).     Appellant claims that

these explicit exceptions indicate that Congress intended that no

other exceptions should apply to tort claims brought against the

federal government.      See TRW Inc. v. Andrews, 534 U.S. 19, 29

(2001).   We disagree.    Congress was undoubtedly aware of the

doctrine of equitable tolling when it enacted the FTCA, and

“Congress must be presumed to draft limitations periods in light

of” this well-established doctrine.      Young v. United States, 535

U.S. 43, 49-50 (2002).

    Appellant also argues that statutes of limitations seek “to

achieve a broader system-related goal, such as . . . limiting the

scope of a governmental waiver of sovereign immunity . . . .”

John R. Sand & Gravel, 128 S. Ct. at 753.      Appellant relies on

United States v. Kubrick, 444 U.S. 111, 118 (1979), in which the

Court stated that “we should not take it upon ourselves to extend

the waiver beyond that which Congress intended.”      Kubrick,

however, addressed the question of when the FTCA statute of

limitations starts running, not whether it can be tolled.        444

U.S. at 116-17.

    The FTCA’s main goal is “to promote fairness in the

settlement of tort claims asserted against the United States.”

Adams v. United States Dep’t of Housing & Urban Dev., 807 F.2d

318, 321 (2d Cir. 1986).     The application of the equitable

tolling doctrine to the statute of limitations does just that.

                                   13
Barring application of an equitable doctrine would lead to many

harsh results in cases where deception or lack of information

prevented a plaintiff from filing her suit within the two-year

limit.   Thus, we hold that a court may equitably toll the statute

of limitations for FTCA tort actions.

    This Court also finds that the lower court properly tolled

Appellee’s claim.   We believe that based on the facts in

Appellee’s possession, a reasonable person would not have

discovered Appellant’s negligence.   Hughes, 263 F.3d at 275.

Appellee diligently pursued her legal claims, and even if

Appellant’s deception in this case was not purposeful, the

Passrail-Regionlink report did misled Appellee.   While Appellant

certainly has a right “to be free of stale claims,” we do not

believe Appellee’s claim is stale.   Nat’l Railroad Passenger

Corp. v. Morgan, 536 U.S. 101, 125 (2002).

    Moreover, we find that Appellant had ample notice of

Appellee’s potential claim.   Appellant knew that an incident had

occurred, as it conducted a joint investigation into the

accident.   Moreover, Appellee’s counsel requested from Appellant

communications between Appellant and Regionlink for the six month

period prior to the incident.   Therefore, the district court’s

correctly decided to equitably toll Appellee Mansfield’s claim

and deny Appellant’s motion to dismiss.




                                14
      B.    Work Product Privilege Issue

      To resolve this issue, this Court must consider the

interplay between two sections of Federal Rule of Civil Procedure

26.   Rule 26(b)(3) protects what is traditionally known as

attorney work product from disclosure or discovery.    Fed. R. Civ.

P. 26(b)(3) (2009).    Rule 26(a)(2) mandates disclosure of all

information considered by an expert witness.    Fed. R. Civ. P.

26(a)(2).

      Attorneys must communicate with the expert witnesses that

they hire.    When those communications contain or reflect work

product, courts disagree as to whether parties must disclose such

communications as information considered by an expert witness

under Rule 26(a)(2), or whether such communications are protected

work product under Rule 26(b)(3).

      Materials “prepared in anticipation of litigation,”

generally known as ordinary work product, are not discoverable

absent a showing of undue hardship.    Fed. R. Civ. P. 26(b)(3)(A);

see, e.g., In re Green Grand Jury Proceedings, 492 F.3d 976, 980-

81 (8th Cir. 2007).    Such materials can include materials

obtained for litigation or even counsel’s particular ordering of

the relevant facts.    United States v. Adlman, 134 F.3d 1194, 1202

(2d Cir. 1998).    The work product privilege prevents adversaries

from benefitting from the work of opposing counsel.    Hickman v.

Taylor, 329 U.S. 495, 516 (1947) (Jackson, J., concurring).

                                 15
    Opinion work product, also known as core work product,

includes “the mental impressions, conclusions, opinions, or legal

theories of an attorney or other representative of a party

concerning the litigation.”   Fed R. Civ. P. 26(b)(3)(B); see also

In re Grand Jury Subpoena, 510 F.3d 180, 183 (2d Cir. 2007).

When a court orders discovery of ordinary work product, it must

take steps to protect opinion work product from disclosure.      Fed

R. Civ. P. 26(b)(3)(B).   The Supreme Court has held that opinion

work product deserves the highest level of protection.     Hickman,

329 U.S. at 510.   The work product privilege serves “to preserve

a zone of privacy” that allows attorneys to prepare for

litigation without intrusion from adversaries.     Adlman, 134 F.3d

at 1196 (citing Hickman, 329 U.S. at 510-11).

     Before 1993, a party could discover only “the substance of

the facts and opinions to which the expert is expected to testify

and a summary of the grounds for each opinion.”    Fed. R. Civ. P.

26(b)(4) (1992).   Parties could only seek such information via

interrogatories, unless a court allowed other methods.     Id.    The

federal courts were split as to whether original Rule 26(b)(4)

allowed discovery of opinion work product.     See Bogosian v. Gulf

Oil Corp., 738 F.2d 587, 594-95 (3d Cir. 1984).

    The 1993 amendments, which were meant to clarify the rules

as to hired experts, resulted in two major changes.    First,

litigants may now depose testifying experts.    Fed. R. Civ. P.

                                16
26(b)(4)(A).   Second, a party must disclose the identity of any

expert witnesses, accompanied by a written report which includes

“the data or other information considered by the [expert] witness

in forming” her opinions.   Fed. R. Civ. P. 26(a)(2)(B)(ii).     In

contrast, non-testifying experts retained to assist with trial

preparation generally cannot be deposed, nor can their opinions

be discovered.   Fed. R. Civ. P. 26(b)(4)(B).

    Since the 1993 amendment was adopted, federal courts have

split on whether amended Rule 26(a)(2)(B)(ii) requires disclosure

of communications between an attorney and a testifying expert

witness.   A minority of federal district courts hold that opinion

attorney work product need not be disclosed merely because an

attorney shared such work product with a testifying expert.

E.g., Nexxus Prods. Co. v. C.V.S. N.Y., Inc., 188 F.R.D. 7, 10

(D. Mass. 1999).   These courts hold that communications with

counsel, or other materials that contain the mental impressions

or opinions of counsel, are privileged.    Krisa v. Equitable Life

Assur. Soc'y, 196 F.R.D. 254, 260 (M.D. Pa. 2000).   A majority of

federal district courts, and the only courts of appeals to

consider the issue, hold that the disclosure rule overrides the

opinion work product privilege.    E.g., Elm Grove Coal Co. v.

Dir., O.W.C.P., 480 F.3d 278, 301 (4th Cir. 2007); Weil v. Long

Island Sav. Bank, 206 F.R.D. 38, 40-41 (E.D.N.Y. 2001).   These

courts hold that Rule 26 requires disclosure of all materials

                                  17
provided to an expert by counsel, including communications and

materials that the opinion work product privilege would otherwise

protect.   Elm Grove Coal, 480 F.3d at 302.

    Courts have traditionally afforded opinion work product an

extremely high level of protection, and we find nothing in the

amended Rule that waives this protection for materials given to

experts.   Magee v. Paul Revere Life Ins. Co., 172 F.R.D. 627,

642-43 (E.D.N.Y. 1997).    The drafters of the 1993 amendment

sought only to end the dispute regarding expert witness

disclosures, “and to clarify that disclosure of factual materials

. . . whether considered or relied on by an expert, was required

under the rule.”     Nexxus Prods., 188 F.R.D. at 10.   While the

1993 amendment may have expanded the disclosure requirements for

expert witnesses, “[n]ot even the most liberal of discovery

theories can justify unwarranted inquiries into the files and the

mental impressions of an attorney.”     Hickman, 329 U.S. at 510.

    We recognize that “expert evidence can be both powerful and

quite misleading because of the difficulty in evaluating it.”

Daubert v. Merrell Dow Pharms., 509 U.S. 575, 595 (1993).       The

trier of fact and the adverse party “are entitled to know if the

lawyer’s opinion or theory of the case impacted or influenced the

expert’s opinion.”     TV-3, Inc. v. Royal Ins. Co. of Am., 194

F.R.D. 585, 588 (S.D. Miss. 2000).     Cross-examination and

Appellant’s own expert’s testimony, however, are sufficient to

                                  18
scrutinize the assumptions relied upon by Appellee’s expert.

Nexxus Prods., 188 F.R.D. at 10.       Moreover, in this case,

Appellee’s expert, Dr. Salem, swore that she wrote every word of

her report.

    Finally, this Court finds that a blanket rule forcing the

disclosure of opinion work product furnished to expert witnesses

would impose an unreasonable financial and logistical burden on

parties, who would be forced to hire multiple experts or

communicate with their expert witness through “strained

hypotheticals.”     6 James W. Moore et al., Moore’s Federal

Practice ¶ 26.80[1][a] (3d ed. 2009).       For all of the reasons

discussed above, we adopt the minority view and hold that an

attorney’s communications with a testifying expert are protected

by Rule 26.   Thus, the trial court correctly denied Appellant’s

motion to compel.

III. Conclusion

    For the reasons stated herein, this court hereby AFFIRMS the

judgment of the United States District Court for the District of

Stone.




                                  19
                  SUPREME COURT OF THE UNITED STATES

___________________________________
                                   )
PASSENGER RAILWAY AGENCY,          )
     Petitioner                    )
                                   )
     v.                            )            No. ST-09-01
                                   )
Sharon MANSFIELD,                  )
     Respondent                    )
__________________________________ )


                    ORDER GRANTING CERTIORARI

    The Supreme Court of the United States hereby grants

Passenger Railway Agency’s Petition for a Writ of Certiorari.

The Court will consider all issues raised in the court below.




                                                                _
                                        Tobin Zakim
                                        Clerk




DATED: September 25, 2009




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