The Surface Transportation Board on May 12 granted CN’s motion to compel Union Pacific and Norfolk Southern to produce 2025 rail traffic data, facilitating discovery in their pending merger control proceeding.
In STB Decision 20, “ORDER GRANTING CN’S MOTION TO COMPEL APPLICANTS’ 2025 RAIL TRAFFIC DATA AND DOCUMENTS” (download below), STB noted that UP and NS “initially committed to providing traffic tapes for 2019-2024 and submitted an application in December 2025, which was deemed incomplete in January 2026. Discovery disputes arose, notably BNSF’s premature motion to compel production of internal documents before a pending application, which was denied. CN filed a motion in April 2026 to compel production of 2025 traffic data, arguing it is relevant, recent , and necessary for a full record, especially since the amended application references 2023 as the base year but includes data covering 2019-2024.”
STB said its regulations “permit broad discovery of relevant, non-privileged matters, including evidence related to potential benefits and harms of the merger. The Board previously ruled that discovery could not proceed until a formal application was accepted; however, after the filing of the amended application, the Board decided discovery should now proceed to aid interested parties in preparing submissions. The Board emphasized that the scope of discoverable evidence includes traffic tapes, interchange data and reciprocal switching information, especially if they can challenge or support the Applicants’ claims about the transaction’s effects. The data may lead to admissible evidence challenging the Applicants’ assertions that the merger poses no harm to competition or public interest. Applicants’ objections regarding scope and burden were rejected; the Board concluded that the 2025 data is essential for a fully developed record.”
CN’s requests for 2025 data “are not overly broad and unduly burdensome,” STB said. “As CN argued, the information requested is for the year 2025, which is the most recent, full year prior to the Amended Application. It is only one year requested … The 2025 data is discoverable. The traffic tapes, reciprocal switching and interchange data may all lead to admissible evidence challenging Applicants’ Amended Application, particularly regarding the traffic tapes and interchange data. The 2025 data may challenge directly Applicants’ supporting submissions or oppose them with another counterargument on the effects of the proposed transaction. The Major Merger Rules require a fully developed record for the Board’s consideration.
“It is ordered: CN’s motion to compel is granted. Applicants shall provide the required information within 14 days of the service date of this order (May 26).”