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Carpenter Co. v. Basf Se

United States District Court, D. New Jersey

June 16, 2015

CARPENTER CO., et al., Plaintiffs,
BASF SE, et al. Defendants.


WILLIAM J. MARTINI, District Judge.

This matter comes before the Court on Defendant Dow Chemical Company's motion in limine to admit documents filed in a separate action currently pending in the United States District Court for the Northern District of Ohio. Because prior discovery orders in this case have already held those documents to be undiscoverable, Dow's motion in limine is DENIED. Moreover, the Court will strike those documents from Dow Chemical Company's exhibit list.


Plaintiffs in this action are purchasers of Polyether Polyol Products ("PPPs"), while Defendant Dow Chemical Company ("Dow") is a major manufacturer and seller of PPPs. Plaintiffs accuse Dow of conspiring to manipulate prices for PPPs with other PPP manufacturers in violation of antitrust laws. Plaintiffs allege that as a result of the conspiracy, they paid inflated prices for PPPs.

In 2004, Dow (along with other defendants) was named as a defendant in a series of class action lawsuits alleging price fixing. Those cases were consolidated in the United States District Court for the District of Kansas (hereinafter, "the MDL Court") for pre-trial proceedings. In 2008, the MDL Court certified a class of entities that purchased PPPs directly from Defendants between 1999 and 2004. A number of entities that fell within the class description opted out of the class and initiated the instant litigation in the District of New Jersey. The MDL Panel transferred those cases to the MDL Court for the handling of various pretrial proceedings, including discovery disputes. In July 2014, the MDL Court issued an order suggesting that this case be remanded to this Court. The order suggesting remand also indicated that discovery in this matter was "complete." The matter is now before this Court for final pre-trial proceedings and trial.

The MDL Court presided over the bulk of pre-trial proceedings in this matter, including discovery issues. Of relevance to this motion in limine, the MDL Court presided over discovery issues concerning Plaintiffs' role as a seller of foam products in the downstream foam market. Specifically, it has been Dow's position that in the downstream foam market, Plaintiffs have engaged in the same type of conduct that they accuse Dow of in the instant action. Consistent with their position, Dow has sought discovery related to Plaintiffs' participation in the downstream foam market.

One sub-category of those documents consists of court filings in a case captioned In re Polyurethane Foam Antitrust Litigation, No. 10-md-2196 (N.D.Ohio) (hereinafter, "the Foam Litigation"). Certain Plaintiffs in this action (hereinafter, "the Overlapping Parties") are defendants in the Foam Litigation, which was filed in 2010. According to Dow, the Overlapping Parties have taken "diametrically opposed positions" by portraying certain conduct as evidence of price-fixing in this litigation, while simultaneously defending that same conduct in the Foam Litigation.

While Dow has been successful in obtaining some documents that pertain to Plaintiffs' conduct in the downstream market, it has encountered some difficulty in its pursuit of documents from the Foam Litigation (hereinafter, "the Foam Documents"). Before describing those difficulties, it is first important to note that Dow represented to the MDL Court in May 2013 that it did not intend to request new discovery from the Foam Litigation. See Dow Notice Regarding Discovery Materials from the Polyurethane Litigation, June 10, 2013, 04-md-1616 (D. Kansas), May 17, 2013, ECF No. 2882. Additionally, a prior order from the MDL Court had already noted that fact discovery would conclude in February 2012.

In September 2013, however, Plaintiff Carpenter Co. and E.R. Carpenter (collectively, "Carpenter") moved to reopen discovery so that some of their former employees who had previously invoked their Fifth Amendment privilege could withdraw their invocations and testify. The MDL Court permitted discovery to reopen, and allowed Dow to seek "limited follow-up discovery after the depositions."

Following the depositions, Dow sought additional documents filed under seal in the Foam Litigation as follow-up discovery. An order dated November 5, 2013 from the MDL Court (hereinafter, "the November 2013 Order") denied Dow's request, and noted that "Dow fails... to address why its new discovery request is timely, in other words, what information arose in the recent depositions that would justify Dow's request for the information now. " Order dated Nov. 5, 2013, 04-md-1616 (D. Kansas), ECF No. 3073, at 3. It further held:

In its instant request to reopen discovery into the Foam Litigation, Dow does not identify any specific new information arising from the depositions of the [Carpenter] witnesses that would justify a wholesale change of course.... Dow does not identify a single line of recent testimony that would suggest the necessity of follow-up discovery consisting of the entire discovery record in the Foam Litigation"

Id. at 4. Following the November 2013 Order, Dow again sought the Foam Documents, this time arguing that they were encompassed in prior discovery requests. The MDL Court denied that request as well, explaining that "the time to make new discovery requests related to the Foam Litigation had long passed, and that Dow had previously represented to the Court that it would not seek new discovery from that litigation." Order dated Jan. 24, 2014, 04-md-1616 (D. Kansas), ECF No. 3129. Six months later, the MDL Court suggested remand to this Court, noting that discovery in this case was complete. Pretrial Order of the Transferee Court Regarding Cases Ready for Remand dated July 1, 2014, 04md-1616 (D. Kansas), ECF No. 3202.

Having twice failed in its attempts before the MDL Court, Dow then filed a motion to intervene in the Northern District of Ohio (hereinafter, "the Foam Court") for the limited purpose of obtaining the Foam Documents, which, as stated previously, were filed under seal. The Foam Court granted Dow's motion to intervene in part, and provided Dow with electronic access to the Foam Documents, subject to the following caveat: the Foam Court's order only gives Dow "access to the [ Foam documents], and permits use of those documents in In re Urethane Antitrust Litig., Case No. 2:08-cv-5169-WJM-MF (D.N.J) if that court so allows." Order dated February 24, 2015, 10-md-2196 (N.D.Ohio), ECF No. 1527. Moreover, the Foam Court explicitly noted that it was not ruling on the discoverability or admissibility of the Foam Documents in this action; instead it was leaving those issues for this Court to decide. Id.

After this case was remanded here, the parties exchanged exhibit lists. Upon realizing that Dow had placed the Foam Documents on its list, Plaintiffs sought to strike those documents by way of a letter motion filed with United States Magistrate Judge ...

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