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Occidental Chemical Corp. v. 21St Century Fox America, Inc.

United States District Court, D. New Jersey

October 3, 2019

OCCIDENTAL CHEMICAL CORPORATION, Plaintiff,
v.
21ST CENTURY FOX AMERICA, INC., et. al., Defendants.

          DECISION OF SPECIAL MASTER REGARDING MOTION TO COMPEL PRODUCTION OF SAMPLING DATA

          THOMAS P. SCRIVO SPECIAL MASTER.

         INTRODUCTION

         This matter comes by way of a Motion to Compel the production of site sampling data in the possession of Plaintiff Occidental Chemical Corporation (“Plaintiff”) filed by the Small Parties Group and Gordon Rees Group (collectively, the “Moving Defendants”), and a Motion for a Protective Order filed by Plaintiff.

         Moving Defendants seek the production of certain environmental sampling and testing data, along with related documentation, concerning contamination of the Lower Passaic River and surrounding areas (“Sampling Data”). Moving Defendants argue that the Sampling Data is discoverable under Rule 26 of the Federal Rules of Civil Procedure and proportional to the needs of the litigation. Plaintiff opposes the Motion to Compel and seeks to withhold unvalidated (or raw) Sampling Data, or alternatively, the imposition of conditions surrounding Defendants' use of unvalidated Sampling Data.

         For the reasons set forth herein, Moving Defendants' Motion to Compel Production is granted, and Plaintiff's Motion for a Protective Order is granted in part, and denied in part.

         STATEMENT OF PERTINENT FACTS AND PROCEDURAL HISTORY

         In 2016, Plaintiff entered into an Administrative Settlement Agreement and Order on Consent (the “2016 ASAOC”) with the United States Environmental Protection Agency (“EPA”) to design the remedy the EPA selected for cleanup of the Lower Passaic River. Plaintiff is performing remediation sampling under the 2016 ASAOC on behalf of, and as overseen by, the EPA.

         On February 25, 2019, the Honorable Joseph A. Dickson, U.S.M.J. entered a Second Pretrial Scheduling Order (“Scheduling Order”). The Scheduling Order provides that by no later than April 1, 2019, Plaintiff shall produce:

all sampling data associated with the sampling of Lower 8.3 miles of the Lower Passaic River (“OU2”) or the former Diamond Alkali facility at 80-120 Lister Avenue in Newark, New Jersey (“OU1”) performed from January 1, 2018 through December 31, 2018, including sampling done pursuant to the 2016 ASAOC and pursuant to the EPA five-year review of the OU1 remedy, and any other sampling of OU1 or OU2.

         The Scheduling Order further provides that within thirty days after Plaintiff has made the required production of Sampling Data, Defendants shall serve requests to conduct additional site sampling. The production of Sampling Data was handled by Judge Dickson outside of the purview of traditional ESI productions, and instead, was ordered to be provided at an early stage of this litigation to afford Defendants an opportunity to determine if additional site sampling would be needed. The Scheduling Order makes no distinction between validated and unvalidated Sampling Data, but instead requires the production of “all” Sampling Data obtained from OU1 or OU2. At oral argument, Plaintiff argued that the issue of the production of raw, or unvalidated, Sampling Data was an issue that remained open for a future judicial determination.

         In its First Joint Request for Production of Documents dated March 5, 2019, Moving Defendants requested that Plaintiff produce all Sampling Data in connection with the 2016 ASAOC. The demands include the production of all:

Sampling Data from work OxyChem is currently performing at EPA's direction, Sampling Data from investigations extending back to at least 1983, when the contamination of the [80 Lister Avenue Plant Site (currently owned by OxyChem)] and the Lower Passaic River became the subject of regulatory scrutiny (including Sampling Data not required by EPA that OxyChem or its indemnitors may have elected to collect), and all future Sampling Data.

         Plaintiff objected to this discovery demand as irrelevant and not proportional to the needs of the case. Plaintiff further advised that it could not release unvalidated data due to EPA restrictions placed on the data.

         On June 5, 2019, Moving Defendants filed this Motion to Compel seeking the production of all Sampling Data, validated and unvalidated, arguing that the Sampling Data is relevant and discoverable under Rule 26. Specifically, Moving Defendants argue that the Sampling Data, even unvalidated data, provides information related to the current and historical levels of contamination at the Lister Avenue Plant Site and in the Lower Passaic River. Moving Defendants also claim that the Sampling Data is necessary to evaluate Plaintiff's validation process. According to ...


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