The opinion of the court was delivered by: JAMES ZAGEL, District Judge
Plaintiffs' Seventh Motion to Compel
In their Seventh Motion to Compel, Plaintiffs have asked for the
production of documents that demonstrate environmental practices at two
Ohio plants, a deposition of Defendant's environmental expert, Hull &
Associates, a detailed privilege log, the "source area and sediments"
test results, Defendant's undisclosed sample retesting, and the missing
XRF test results. My order is as follows:
1. Documents that demonstrate environmental practices at two Ohio
Plaintiffs claim that they are entitled to discovery of documents
dealing with environmental issues at two of Defendant's Ohio plants.
According to Plaintiffs, these documents are relevant because Defendant
used the same or similar practices in dealing with environmental problems
there. To the extent that this discovery relates to arsenic
contamination, I agree. The Defendant may redact information that is not
so related. This request is GRANTED with the stated restriction.
2. Deposition of Defendant's environmental expert Hull & Associates
Defendant has previously designated Hull & Associates as a
non-testifying expert under Rule 26(b)(4)(B). Such a designation
prohibits parties from seeking facts known or opinions held by an expert
who has been retained or specifically employed by another party in
anticipation of litigation and who is not expected to be called as a
witness at trial. This request is DENIED.
3. A detailed privileged log
Defendant has provided Plaintiffs with a log of materials that it has
withheld from production in order to account for gaps in Bates numbering.
Plaintiffs now request a more detailed description of the withheld
documents so that they may determine if the documents are legitimately
privileged. However, these documents are being withheld because they are
protected by Rule 26(b)(4)(B), not because they are privileged. Since
Plaintiffs have no need to make a privilege determination, this request
4. The "source area and sediments" test results
Defendant has undertaken a remedial investigation/feasibility study
that includes source areas within the Ottawa Plant, groundwater, river
sediment, and residential soils. Defendant has provided to Plaintiffs
reports and chemical analyses for each of the four areas of
investigation. Defendant has also provided backup documentation
pertaining to the groundwater and residential soils. Plaintiffs request
that Defendant turn over the backup documentation for the river sediment
and Ottawa Plant tests. This backup data is relevant to Plaintiffs' case
and should be produced as soon as the data collection is complete. If
Plaintiffs encounter an undue delay in receiving this information, I will
set a specific date for its production. This request is GRANTED.
5. Defendant's undisclosed sample retesting
As was discussed during the last status hearing, Defendant has
performed tests on Plaintiffs' soil samples other than the tests required
by the EPA and the tests explicitly contemplated by the parties'
negotiated soil sample agreement. In that agreement, the Plaintiffs
allowed Defendant to take soil samples from their property so that
Defendant could perform tests designated by the EPA. In return for this
access, Defendant agreed to provide its test results to Plaintiffs. Since
the retesting was made possible by Plaintiffs' original access agreement,
and since it is unlikely that Plaintiffs would grant additional access to
soil samples, Plaintiffs are entitled to all the retesting results. This
request is GRANTED.
6. The missing XRF test results
Defendant has stated that some of the XRF test results were lost
because a technician failed to properly download the data. To the extent
that any such ...