Evans v. National Railroad Passenger Corp.

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)).