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Clear business procedures reflect more than a common sense need for order over company activities and affairs. In reality, deciphering business versus legal process is not intuitive. What is deemed “business” versus “legal” becomes further complicated as facts and issues becomes more and more are tangled in webs of multiple department and disciplines, relevant and irrelevant issues, operating and legal activity costs, internal and external communications and decisions by senior management and executive teams. Particular to the railroad industry, fact patterns encountered in the normal course of business exemplify common complexities. For example, consider the following:

Railroad A (“USA Rail”) and Contractor (“Build-it Corp.”) have been in an escalating disagreement for years over a services account supporting a bridge construction project along tracks owned by Railroad B. The subject bridge is now crumbling causing damage to Railroad B’s track and forcing train service disruptions. The underlying contract documentation and historical communications between USA Rail and Build-it Corp. are offline due to expiration of records retention periods of USA Rail. Build-it Corp. is also involved in a separate mechanics lien situation filed against USA Rail’s property relating to Job #2 for USA Rail which is unaffiliated to the bridge job.

 

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