Opinion
Civil Action 2:09-cv-1081
11-18-2011
THE LITTLE HOCKING WATER ASSN., INC., Plaintiff, v. E.I. DU PONT DE NEMOURS & CO., Defendant.
Judge Smith
Magistrate Judge King
OPINION AND ORDER
This matter is before the Court on plaintiff's motion to compel and defendant's counter-motion for a protective order. Plaintiff's Motion to Compel, Doc. No. 55 ("Motion to Compel"); Defendant's Memorandum in Opposition to Plaintiff's Motion to Compel and Countermotion for Protective Order on the Issue of "Other PFC's," Doc. No. 58 ("Counter-Motion for Protective Order"). In the Motion to Compel, plaintiff moves to modify the parties' Agreed Interim Protective Order, Doc. No. 54, and to compel the production of discovery by defendant of "other PFCs." In the Counter-Motion for Protective Order, defendant opposes plaintiff's requests. For the reasons that follow, both motions are denied. Because the Court deems further briefing unnecessary, defendant's Motion for Leave to File a Surreply, Doc. No. 63, is denied.
I. BACKGROUND
This is a tort action premised on the allegation that defendant improperly handled hazardous waste, i.e., PFCs, at its West Virginia Washington Works facility, resulting in the contamination of plaintiff's wellfields. First Amended Complaint, Doc. No. 23. After the Court established a schedule for discovery, Continued Preliminary Pretrial Order, Doc. No. 35; Status Conference Order, Doc. No. 50, the parties agreed to most terms of a protective order. Agreed Interim Protective Order, p.1. That order allows the parties to designate as confidential the following categories of documents produced during the course of discovery: trade secrets, "[h]ighly private financial information," and "[o]ther highly private information," e.g., human resources information, security information, personnel files and individual medical information. Id., p. 3. However, the parties disagree whether defendant can properly designate, as confidential trade secret information, "'emissions data' as defined in the Clean Air Act ("CAA"), 42 U.S.C.A. §7401 et seq., and its implementing regulations, 40 C.F.R. §2.301 et seq." Id., p.3; Motion to Compel, p.1. Plaintiff also contends that information related to either PFOAs or other PFCs is discoverable in this action and is not properly denominated as confidential. See Agreed Interim Protective Order, p.4. For its part, defendant takes the position that "emissions data" may properly be denominated as confidential if that data include non-public information that would otherwise qualify as a trade secret; defendant also contends that information relating to other PFCs is not relevant to the issues presented in the action and may in any event properly be designated as confidential. Counter-Motion for Protective Order, pp. 2-3. The parties' Motion to Compel and Counter-Motion for Protective Order address these issues. Defendant completed its production of documents after these motions were filed. See Order, Doc. No. 65, p.2.
II. STANDARD
A trial court has "broad discretion" to determine the scope of discovery. Rhodes v. McDannel, 945 F.2d 117, 119 (6th Cir. 1991). A "court may order discovery of any matter relevant to the subject matter involved in the action." Fed. R. Civ. P. 26(b)(1). In this context, information that is relevant "need not be admissible at the trial if the discovery appears reasonably calculated to lead to the discovery of admissible evidence." Id.
Under Rule 26(c) of the Federal Rules of Civil Procedure, "[t]he court may, for good cause, issue an order to protect a party or person from annoyance, embarrassment, oppression, or undue burden or expense." Fed. R. Civ. P. 26(c)(1). The court may also modify a protective order for good cause. In re Upjohn Co. Antibiotic Cleocin Prods. Liab. Litig., 664 F.2d 114, 118 (6th Cir. 1981). See also Agreed interim Protective Order, p. 12 (providing that the order "may be modified or amended for good cause shown . . . if and when the Court believes the interests of justice require modification"). Where good cause exists, a court may issue a protective order "requiring that a trade secret or other confidential research, development, or commercial information not be revealed or be revealed only in a specified way." Fed. R. Civ. P. 26(c)(1)(G). A court also has the discretion "to decide whether trade secrets are relevant and whether the need outweighs the harm of disclosure." R.C. Olmstead, Inc., v. CU Interface, LLC, 606 F.3d 262, 269 (6th Cir. 2010) (internal quotation marks omitted).
III. DISCUSSION
A. Plaintiff's Proposed Modification of Agreed Interim Protective Order
Plaintiff seeks to modify the Agreed Interim Protective Order to prohibit defendant from denominating emissions data as confidential. According to plaintiff, "[t]he additional provision would ensure that important air emission and exposure information is accessible to the public." Motion to Compel, p.1. Plaintiff advances this argument on the basis of (1) the "long-established legal tradition which values public access to court proceedings," Motion to Compel, p.4 (citing Procter & Gamble Co. V. Bankers Trust Co., 78 F.3d 219, 227 (6th Cir. 1996) (internal quotation marks omitted)); and (2) an alleged "congressional intent to limit the secrecy allowed for pollution information," as demonstrated by the Clean Air Act and the Emergency Planning and Community Right-to-Know Act. Motion to Compel, p.5 (citing 42 U.S.C.A. §§ 7414, 11042(b) [hereinafter "the Acts"]). Defendant responds that it intends to denominate as confidential only
certain reports . . . which do contain data aggregated in such a manner that it could, if disclosed to competitors, reveal certain proprietary information regarding manufacturing processes and potentially harm [defendant's] competitive position in the market.Counter-Motion for Protective Order, p. 3.
Documents produced during discovery are not "presumptively public records." The Courier Journal v. Marshall, 828 F.2d 361, 367 (6th Cir. 1987). In fact, "[t]he discovery process is generally private, Marshall v. Bramer, 828 F.2d 355, 360 (6th Cir. 1987). Furthermore, a party who produces discovery responses enjoys "protectable privacy interests in confidential information contained in such documents." Howes v. Ashland Oil, Inc., No. 87-5939, 1991 WL 73251, *7 (6th Cir. 1991) (unpublished) (citing United States v. Anderson, 799 F.2d 1438, 1441 (11th Cir.1986)). A court may limit the ability of a party to distribute documents obtained through discovery even where "there certainly is a public interest" in the information contained in the discovery responses. Seattle Times Co. v. Rhinehart, 467 U.S. 20, 31 (1984).
Because discovery responses are not presumptively public record, plaintiff's "public interest" argument carries little weight at this stage in the proceedings. Moreover, because the Agreed Interim Protective Order guarantees that any information that has been or is subsequently made publicly available may not be designated as confidential, that order does not interfere with the operation of the Acts. In fact, the order prohibits the parties from designating as confidential any information that (1) "is subsequently obtained in a lawful manner by the receiving party," (2) "in the public domain," (3) "is required to be disclosed, or otherwise made available, to the public under any other Federal or State law," or (4) "has been publicly filed with any federal or state regulatory authority." Agreed Interim Protective Order, pp.3-4. Finally, because the order expressly allows the parties to challenge the claimed confidentiality of a document, id., p. 10, or to move to amend any of its provisions, id., p. 12, plaintiff will be able to revisit this issue, if otherwise appropriate, within the context of an actual discovery dispute.
Plaintiff does not contend that it is required to disclose this information to any governmental agency.
To the extent that plaintiff's Motion to Compel seeks to modify the Agreed Interim Protective Order, the motion is therefore denied.
B. Motion to Compel/Counter-Motion for Protective Order
Plaintiff seeks to compel production by defendant "of all PFC-related information in DuPunt's possession, custody, or control," including "discovery of DuPont's PFC-related information and practices at the Washington Works plant as well as at other DuPoint facilities." Motion to Compel, at 7 (emphasis in the original). Plaintiff does not define "PFC" in the motion presently before the Court. In the First Amended Complaint, however, plaintiff defines PFCs as "perfluorinated compounds (including perfluorinated acids, sulfonates, phosponates, and telomer alcohols), precursors to perfluorinated compounds and/or other toxic and hazardous materials that may be released with these perfluorinated compounds." Id. at ¶ 5. The First Amended Complaint also expands the definition as follows:
[T]he term "PFCs" includes all PFCs and their derivatives and/or salts that have been or may be detected in or that are threatening the Wellfields or Little Hocking's water users, including inter alia, PFOA, PFOS, PFBA, PFBS, PFHxA, PFHxS, PFPeA, PFHpA, PFNA, PFDA, PFDS, PFUnA, PFDoA, and PFTrA (a table listing the chemical name, acronym, fluorocarbon chain length, and molecular formula of these exemplar PFCs is attached as Exhibit 1). The term "PFCs" also includes eachId. ¶ 6.
perfluorinated chemical known to DuPont that has not yet been identified to Little Hocking.
In response to plaintiff's motion, defendant asks this court to "issue an order that protects DuPont from having to bear the heavy burden LHWA seeks to impose unless and until LHWA can make certain affirmative showings regarding the relevance and materiality of the information it purports to seek." Counter-Motion for Protective Order, Doc. No. 58, at 2. Defendant also represents that it produced certain information concerning PFCs: "As a reasonable accommodation to LHWA and to avoid unnecessary dispute, DuPont incorporated into its electronic search certain terms that are intended to identify documents referring or relating to other PFCs." Id. at 10.
Plaintiff has failed to satisfy its burden of showing that the information sought by this request is relevant to the issues presented in this action.
First, plaintiff does almost nothing to demonstrate the relevance of information relating to facilities other than defendant's Washington Works facility. In its opening brief, plaintiff asserts without citation that the information from other facilities is relevant because of certain alleged "interaction" between defendant's facilities: "Given the information sharing, waste transfer, and other interaction between various DuPont facilities, this includes discovery of DuPont's PFC-related information and practices at the Washington Works plant as well as at other DuPont facilities." Motion to Compel, at 9. This bare assertion, unsupported by citations to the First Amended Complaint, to plaintiff's document requests or to any other documents, is insufficient to satisfy plaintiff's burden of demonstrating that the information sought in this regard is relevant. Plaintiff's request to compel production of documents relating to defendant's other facilities must therefore fail.
Second, plaintiff does little in the motion presently before the Court to identify the particular deficiencies in defendant's production of documents regarding PFCs. Plaintiff has failed to specify any particular document requests with which it is dissatisfied and has not identified specific deficiencies in the search terms used by defendant. Absent such specificity, the Court is unable to meaningfully evaluate plaintiff's Motion to Compel in this regard.
The Court recognizes that plaintiff referred to interrogatories 17-19, but only for the first time in its reply.
The Court recognizes that disagreement between the parties regarding these, or similar, issues have continued, see, e.g., Order, Doc. No. 82, and the Court also recognizes that, to the extent that the parties are unable to resolve any such continuing disputes, additional discovery-related motions may be filed. Id. The parties are advised, however, that any such motion must specifically address particular discovery requests or responses; generalized claims of relevance or burden are unlikely to be well-received by the Court.
As the Court noted in its Order of July 22, 2011, Doc. No. 65, plaintiff's requests for production of documents relating to chemicals released by defendant are proper "only to the extent that plaintiff can articulate a particular request as relevant to the claims or defenses actually asserted in this action." Id. p. 2.
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WHEREUPON defendant's Motion for Leave to File a Surreply, Doc. No. 63, is DENIED. Plaintiff's Motion to Compel, Doc. No. 55, and defendant's Counter-Motion for a Protective Order , Doc. No. 58, are DENIED without prejudice to renewal if otherwise appropriate.
Norah McCann King
United States Magistrate Judge