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United States District Court, N.D. Illinois

June 3, 2004.


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 Plants

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 is DENIED.

 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 data is recovered, this request is GRANTED.


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