Sullivan et al v. Saint-Gobain Performance Plastics Corporation

REPLY to Response to 249 MOTION to Compel Defendant to Produce Documents Plaintiffs' Reply in Further Support of Their Motion to Compel

D. Vt.March 29, 2019

919783.1 UNITED STATES DISTRICT COURT DISTRICT OF VERMONT JAMES D. SULLIVAN et al., individually, and on behalf of a Class of persons similarly situated, Plaintiffs, v. SAINT-GOBAIN PERFORMANCE PLASTICS CORPORATION, Defendant. Civil Action No. 5:16-cv-00125-GWC PLAINTIFFS’ REPLY IN FURTHER SUPPORT OF THEIR MOTION TO COMPEL Plaintiffs submit this reply to Defendant Saint-Gobain Performance Plastics Corporation’s (“Saint-Gobain” or “Defendant”) response in opposition [Doc. 255 (“Opposition”)] to Plaintiffs’ Motion to Compel [Doc. 249]. In its Opposition, Defendant does not justify its overbroad and insufficiently defined subject-matter, time, and geographic scope objections; instead, it attempts to persuade this Court that Plaintiffs’ motion is nothing more than an untimely effort to “restart” or “reopen” discovery to delay this case, and further that Plaintiffs are not entitled to a “log” of documents impermissibly withheld by Defendant. However, Plaintiffs motion is timely, as it was filed as soon as practicable after Defendant confirmed it had withheld relevant and responsive documents. Nor do Plaintiffs have any interest in reopening discovery or delaying the resolution of this case. Rather, since Defendant’s scope objections have been proffered in a manner that violates the Federal Rules of Civil Procedure, Plaintiffs seek an Order compelling Saint-Gobain to identify and produce to Plaintiffs all relevant, non-privileged documents withheld pursuant to these objections, including the 110 documents Plaintiffs now know Defendant has withheld. See Case 5:16-cv-00125-gwc Document 263 Filed 03/29/19 Page 1 of 10 - 2 - 919783.1 Exhibit 1, filed herewith. 1 In the alternative, Plaintiffs seek an order compelling Defendant to identify and produce to the Court all documents it has withheld pursuant to these scope objections, for in camera review and determination of their relevance and discoverability. ARGUMENT I. PLAINTIFFS’ MOTION IS TIMELY AND IS NOT AN ATTEMPT TO REOPEN DISCOVERY OR DELAY THIS CASE. Defendant contends that Plaintiffs should have moved to compel much earlier, because it purportedly “made clear” to Plaintiffs from the outset of discovery that it was withholding documents pursuant to its subject-matter, time, and geographic scope objections. [Doc. 255, at 5]. Defendant urges that its position was evident by the language contained in each of its scope objections, i.e., that documents “may be withheld” pursuant to these objections. [Id., at 9-10 (emphasis added); see also, e.g., Doc. 249-4, at 11-12]. However, that documents may be withheld does not mean that they are, in fact, being withheld. Simply stated, Defendant’s language violates Rule 34(b)(2)(C), which requires that discovery responses state “whether any responsive materials are being withheld ….” Fed. R. Civ. P. 34(b)(2)(C) (emphasis added); see also, e.g., Fischer v. Forrest, 2017 WL 773694, at *1 (S.D.N.Y. Feb. 28, 2017). In this case, Defendant’s position has been further obscured by its assertion of multiple objections to each of Plaintiffs’ document requests, making it difficult, if not impossible, to understand whether documents were being withheld pursuant to Defendant’s scope objections, and, if so, which documents were being withheld pursuant to which objections. [See generally Doc. 249-2 (all three scope objections asserted in response to Req. 23-24, 27-31, 36-37); Doc. 249-4 (all three scope objections asserted in response to Req. 2, 7-9, 11-13, 15-19, 23-24, 29-30); 1 Since Plaintiffs filed their motion to compel [Doc. 249], Defendant produced some additional documents, as well as slip sheets indicating their withholding of four additional documents pursuant to their scope objections, bringing the total of identified, but withheld, documents to 110. Case 5:16-cv-00125-gwc Document 263 Filed 03/29/19 Page 2 of 10 - 3 - 919783.1 Doc. 249-5 (all three scope objections asserted in response to Req. 1-2, 11-15)]. This is contrary to the express purpose of the Rule. 2015 Fed. R. Civ. P. 34 Advisory Committee Notes (purpose of requiring statement as to whether documents are being withheld pursuant to objections sought to “end the confusion that frequently arises when a producing party states several objections and still produces information, leaving the requesting party uncertain whether any relevant and responsive information has been withheld on the basis of the objections”) (emphasis added). Nor can Defendant rely on a July 13, 2017 letter to Plaintiffs, to support its position that it has long been “clear” about what documents it was withholding. [Doc. 255, at 4-5, 10; Doc. 255-4]. That letter Thus, this disclosure added no clarity to Defendant’s general statement in its discovery responses that documents “may” be withheld. [Doc 249-1, ¶ 9 (Joselson Aff.)]. This lack of clarity prompted Plaintiffs to request an early meet and confer conference, in April of 2017, during which Defendant agreed that, if it withheld any documents based on its three scope objections, it would log them, or otherwise communicate this fact to Plaintiffs, so that they could seek relief from this Court. [Id., ¶ 5]. Plaintiffs reasonably relied on this representation. However, several meets and confers later, in July and August 2018, Defendant first admitted it may have withheld documents on this basis. [Id., ¶¶ 10-11]. Due to significant case obligations, during the fall and winter of 2018, on February 1, 2019, Plaintiffs requested Case 5:16-cv-00125-gwc Document 263 Filed 03/29/19 Page 3 of 10 - 4 - 919783.1 confirmation from Defendant that it actually had withheld documents based on these scope objections. [Id., ¶ 13]. Two weeks later, on February 14, 2019, Defendant provided that confirmation, and admitted that “in those instances” in which it had withheld documents, it “produced a slip sheet indicating that ‘Document Not Produced—Non-responsive.’” [Id. ¶¶ 14- 15]. Once in receipt of such confirmation, Plaintiffs reviewed all of Defendant’s productions, searching for any slip sheets indicating “Document Not Produced–Non Responsive,” and found 106 such slip sheets. 2 While it is still unclear whether Defendant has withheld entire “families” of responsive documents pursuant to its scope objections, Plaintiffs now know for certain that it has withheld individual documents from responsive document families otherwise produced. Within two weeks of Defendant’s February 14th letter, Plaintiffs filed the instant Motion. 3 In sum, Plaintiffs moved as promptly as possible after Defendant’s confirmation that it had withheld responsive documents in filing this motion. 2 On March 1, 2019—the same day Plaintiffs filed their motion to compel—Defendant sent Plaintiffs a small supplemental production. Upon review, Plaintiffs found four additional instances where Defendant withheld documents pursuant to its scope objections, bringing the total to 110. See Exhibit 1. Plaintiffs also request in camera review of these four documents. 3 Importantly, between Plaintiffs’ receipt of Defendant’s February 14, 2019 letter and the time they filed their motion to compel (March 1, 2019, Doc. 249), Plaintiffs were also engaged in significant motion practice, including drafting opposition memoranda to Defendant’s 97 page Motion to Exclude Plaintiffs’ Expert Testimony (Doc. 236) and Defendant’s Motion to Strike Plaintiffs’ Untimely Expert Disclosures (Doc. 245). Case 5:16-cv-00125-gwc Document 263 Filed 03/29/19 Page 4 of 10 - 5 - 919783.1 II. DEFENDANT’S SUBJECT-MATTER, TIME, AND GEOGRAPHIC SCOPE OBJECTIONS ARE IMPROPER AND INCONSISTENT WITH THE FEDERAL RULES. Saint-Gobain claims its scope objections are justified because Plaintiffs themselves limited the scope of discovery “in one of their early discovery demands.” [Doc. 255, at 3]. 4 However, this “early discovery demand[]” was not a “discovery demand” at all, but the preservation letter Plaintiffs sent before formal discovery began. [Doc. 255-2]. Further, Defendant cites no authority as to why a preservation letter would limit the scope of an opposing party’s discovery requests, once formal discovery commences. 5 [Doc. 255, at 3-4]. Instead, Plaintiffs’ actual discovery requests, which are relevant to the claims and defenses in this action, control the broad scope of discovery permitted by Fed. R. Civ. P. 26. See, e.g., Elhannon LLC v. The F.A. Bartlett Tree Expert Co., 2017 WL 1382024, at *5 (D. Vt. Apr. 18, 2017) (discovery rules “are to be accorded a broad and liberal treatment to effectuate their purpose that civil trials in the federal courts no longer need be carried on in the dark”) (quoting Ratliff v. Davis Polk & Wardwell, 354 F.3d 165, 170 (2d Cir. 2003)); Fed. R. Civ. P. 26(b)(1) (information “need not be admissible in evidence to be discoverable.”). Defendant maintains that, even if Plaintiffs’ preservation letter did not limit the scope of discovery, Saint-Gobain’s subject-matter, time, and geographic scope objections are nonetheless proper. However, these objections neither specify that documents are being withheld, nor provide the limits that controlled Defendant’s search. See Fed. R. Civ. P. 34(b)(2)(C) and 2015 4 If Defendant believed Plaintiffs failed to comply with the Federal Rules in their discovery requests/responses, its remedy was to file a motion under Fed. R. Civ. P. 37 and Local Rule 26, rather than to withhold relevant documents pursuant to its opaque disclaimer that “documents may be withheld.” 5 In any event, Plaintiffs’ pre-discovery preservation letter was not as narrow as Defendant suggests; Plaintiffs’ “notice extends to the broadest possible reach of information related to this matter even though formal discovery has not begun.” [Doc. 255-2, at 1]. Case 5:16-cv-00125-gwc Document 263 Filed 03/29/19 Page 5 of 10 - 6 - 919783.1 Advisory Committee Notes to Fed. R. Civ. P. 34 (recognizing Rule 34 may be satisfied if party states the “limits that have controlled the search for responsive and relevant materials”). In its subject-matter objection, Defendant refuses to produce documents Defendant concedes it did not articulate search parameters that would allow Plaintiffs or the Court to objectively assess how Defendant determined what is discoverable pursuant to this objection. 6 Indeed, it is still unclear how Defendant determined Similarly, it is unclear what parameters Defendant used to segregate “relevant” documents pursuant to its geographic scope objection, particularly in light of its representation, during the April 18, 2017 meet and confer, that it would produce all documents having “anything to do with Vermont,” regardless of geographic scope. [Doc. 249-1, ¶ 5 (Joselson Aff.)]. While the parties may have differing opinions on what documents from Defendant’s other operations are discoverable in this action, given the broad scope of Fed. R. Civ. P. 26(b)(1) it is difficult to imagine that these documents are not relevant to Plaintiffs’ claims. 6 Defendant states that “[t]wo of the objections—the time and geographic scope objections— provided the scope of Saint-Gobain’s forthcoming responses.” [Doc. 255, at 9-10]. However, Defendant makes no such assertion for its subject-matter objection. Id. Case 5:16-cv-00125-gwc Document 263 Filed 03/29/19 Page 6 of 10 - 7 - 919783.1 Defendant’s failure to identify its search parameters has allowed it to withhold potentially responsive and relevant documents, with no mechanism for Plaintiffs or the Court to contest the search. Furthermore, Defendant’s assurance that it has taken a “broad approach to its discovery” [Doc. 255, at 6], is belied by the 110 documents Plaintiffs now know have been withheld. Defendant barely addresses these documents in its Opposition, and does not argue against in camera review. Instead, it urges that, because it never denied using PTFE products at its other facilities, Plaintiffs’ assertion that “certain file names necessarily suggest their relevance to the case is not persuasive.” [Doc. 255, at 8]. Saint-Gobain also argues that its time and geographic scope objections are proper, urging that information after its Vermont operations ceased in 2002, or involving Defendant’s facilities outside of Vermont, are irrelevant. [Doc. 255, at 7-8]. Plaintiffs vehemently disagree. Key elements in Plaintiffs’ negligence claims focus on what Defendant knew, or should have known, about the potential hazards and toxicity of PFOA, how PFOA was emitted from its plants and deposited into the surrounding environments, when it knew such information, and its response thereto. [See Doc. 113, ¶¶ 92-98; Doc. 249, at 2-3, 6, 12-13]. [Doc. 249, at 12-13]. Indeed, Defendant’s knowledge over the 14 years between 2002, when it left Vermont, and 2016, when its PFOA contamination in the Bennington area was publicly disclosed, is clearly relevant to the claims and defenses in this case, as residents within the Zone continued unknowingly to consume PFOA-contaminated water. Defendant’s geographic scope limitation, based on relevance grounds, is similarly meritless. Defendant did not operate its Vermont plant in a vacuum. Rather, Case 5:16-cv-00125-gwc Document 263 Filed 03/29/19 Page 7 of 10 - 8 - 919783.1 Defendant’s relevance argument cannot stand as grounds for denying Plaintiffs access to discoverable materials. For all of these reasons, Plaintiffs respectfully request that, at a minimum, these 110 documents be produced to Plaintiff. Indeed, their titles, many of which explicitly reference PFOA, environmental issues, and Defendant’s knowledge of the hazards of PFOA, as well as its use and deposition of PFOA in the environment, indicate their clear relevance to the claims and defenses in this action. [Doc. 249, at 12-14; Doc. 249-9]. These documents have already been identified by Defendant, should be easily accessible, and their production should create no hardship or burden. They are limited in number, and their production will not, as Defendant suggests, “drastically change the scope of discovery to go beyond any reasonable and proportional scope.” [Doc. 255, at 1]. III. PLAINTIFFS ARE ENTITLED TO AN ORDER COMPELLING IDENTIFICATION AND PRODUCTION OF RESPONSIVE DOCUMENTS WITHHELD PURSUANT TO IMPROPER SCOPE OBJECTIONS. This Court has broad discretion to manage discovery. [See Doc. 249, at 10]. The relief Plaintiffs seek is narrowly tailored. Specifically, given that Defendant’s scope objections are improper under the Federal Rules of Civil Procedure, Plaintiffs seek an order compelling Saint- Case 5:16-cv-00125-gwc Document 263 Filed 03/29/19 Page 8 of 10 - 9 - 919783.1 Gobain to identify and produce to Plaintiffs all relevant, non-privileged documents withheld pursuant to these objections. In the alternative, the Court should issue an Order compelling Defendant to identify and produce to the Court all documents withheld pursuant to these scope objections, for in camera review and a determination of relevance and discoverability. CONCLUSION For the foregoing reasons, Plaintiffs respectfully request that the Court grant Plaintiffs’ motion, find that Defendant’s scope objections are improper, and require Defendant to identify and produce to Plaintiffs all non-privileged documents it has withheld pursuant to its scope objections, including the 110 withheld documents. In the alternative, Plaintiffs request an Order requiring Defendant to identify and produce for in camera review all documents it has withheld pursuant to its scope objections, so that the Court can make a determination of relevance and discoverability. DATED at Middlebury, Vermont this 29th day of March, 2019. /s/ Emily J. Joselson Emily J. Joselson, Esq. James W. Swift, Esq. LANGROCK SPERRY & WOOL, L.L.P. 111 South Pleasant Street P.O. Drawer 351 Middlebury, VT 05753-0351 T: (802) 388-6356 F: (802) 388-6149 ejoselson@langrock.com jswift@langrock.com David F. Silver, Esq. BARR STERNBERG MOSS SILVER & MUNSON, P.C. 507 Main Street Bennington, VT 05201 T: (802) 442-6341 F: (802) 442-1151 dsilver@barrsternberg.com Gary A. Davis. Esq. (Pro Hac Vice) James S. Whitlock, Esq. (Pro Hac Vice) DAVIS & WHITLOCK, P.C. 21 Battery Park Ave., Suite 206 Asheville, NC 28801 T: (828) 622-0044 F: (828) 398-0435 gadavis@enviroattorney.com jwhitlock@enviroattorney.com Attorneys for Plaintiffs Case 5:16-cv-00125-gwc Document 263 Filed 03/29/19 Page 9 of 10 - 10 - 919783.1 CERTIFICATE OF SERVICE The undersigned hereby certifies that on March 29, 2019, a public version of the foregoing was filed electronically in the United States District Court for the District of Vermont. Notice of filing will be sent by operation of the Court’s electronic filing system to all parties indicated on the electronic filing receipt. An unredacted version of the foregoing was served on defense counsel by email on March 29, 2019 and will be filed under seal with the Court pursuant to its normal practices. s/ Emily J. Joselson Emily J. Joselson, Esq. Attorney for Plaintiffs Case 5:16-cv-00125-gwc Document 263 Filed 03/29/19 Page 10 of 10