United States District Court, M.D. Louisiana
ROGER JEAN LeBLANC, individually and on behalf of all others similarly situated
EXXON MOBIL CORPORATION, ET AL
RICHARD L. BOURGEOIS, Jr., Magistrate Judge.
Before the Court is Plaintiffs' Motion to Compel filed on October 8, 2014. (R. Doc. 40). Plaintiffs' Motion seeks to compel discovery purportedly limited to class certification issues. The Motion is Opposed. (R. Doc. 45). Defendants have also filed a Supplemental Response. (R. Doc. 87).
Plaintiffs Roger Jean LeBlanc and James Smith filed class action complaints "on behalf of thousands of purchasers of defective fuel manufactured at Exxon Mobil's Baton Rouge Refinery facility and distributed to retail outlets in Louisiana between April 1, 2013 and April 1, 2014, and owners and lessees of property damaged by the use of that defective fuel." ( See, e.g ., R. Doc. 1 at 1). Plaintiffs alleged that the fuel released during this period damaged or reduced the performance of vehicle engines when used.
Defendants state that they "determined that a pump malfunction on March 7, 2014 sent unusually high levels of polymer (resin) into the gasoline pool, increasing the fuel's UWG [unwashed gum] levels." (R. Doc. 25 at 8). Defendants state that their "investigation revealed that the released fuel had a UWG content between 27 and 50 mg/hml." (R. Doc. 25 at 8). Defendants state that although "there are no industry standards nor government regulations dictating acceptable UWG levels in gas" the Defendants "had internal allowances of up to [100 mg/hml]" of UWG at the time the gasoline at issue was released. (R. Doc. 25 at 7). Defendants further provide that after becoming aware of the release, they shut down the Baton Rouge Terminal, reduced the UWG release limit to 10 mg/hml, issued press releases, and implemented a claims handling program to address consumer complaints. (R. Doc. 25 at 8).
Plaintiffs moved to certify their purported class on June 26, 2014. (R. Doc. 19). On July 7, 2014, Plaintiffs propounded fifteen interrogatories and fifteen requests for production on Defendants. (R. Doc. 40-2). Defendants filed an opposition to Plaintiffs' motion to certify on August 21, 2014. (R. Doc. 25). Defendants argue that Plaintiffs have failed to meet all of the Rule 23 class certification requirements, including numerosity, commonality, typicality, adequacy, predominance, and superiority. (R. Doc. 25 at 11-40). Defendants further argue that Plaintiffs have not demonstrated that the alleged class is ascertainable. (R. Doc. 25 at 41-43).
On August 28, 2014, the Court held a scheduling conference with the parties and provided that "that the scope of discovery prior to the court's ruling on certification shall be limited to class certification issues and shall not go to the merits of the actions." (R. Doc. 29 at 2). On September 12, 2014, Defendants provided their responses and objections to the discovery propounded by Plaintiffs on July 7, 2014. (R. Doc. 40-3). Defendants generally objected to Plaintiffs' discovery requests "as premature, overbroad, and unduly burdensome to the extent they seek information or documents not reasonably calculated to the discovery of information relevant to Plaintiffs' Motion for Class Certification." (R. Doc. 40-3 at 3). Defendants have also raised specific objections regarding the discovery, including the objection that some of the discovery requests seek "information protected by the attorney client privilege, attorney work-product doctrine, or seeks the identification of consulting, non-testifying experts." ( See, e.g., R. Doc. 40-3 at 4).
On October 8, 2014, Plaintiffs filed their instant Motion to Compel. (R. Doc. 40). Plaintiffs seek additional responses to Interrogatory Nos. 1, 2, 3, 4, 5, 7, 8, 9, 10, and 13 and Request for Production Nos. 3, 4, 5, 6, 8, 9, 10, 11, 12, 13, 14, and 15. Plaintiffs primarily argue that Defendants' objections based on relevance are improper because the discovery requests seek information relevant to pre-certification issues. In their broad overview of the issues raised by the Motion to Compel, Plaintiffs argue that they are entitled to discover information regarding any dilution of the problematic gasoline,  other factors that may have impacted the level of damage caused by the gasoline, and the Defendants' claims handling process. Plaintiffs claim that these topics are relevant because Defendants have raised these issues respectively to argue that the numerosity, commonality, and superiority prongs of class certification are not satisfied. In addition, Plaintiffs also argue that to the extent Defendants have withheld responsive documents on the basis of privilege they must provide privilege logs.
On October 29, 2014, Defendants opposed the Plaintiffs' Motion to Compel, primarily arguing that Plaintiffs' discovery requests broadly seek information that does not pertain to class certification at all. (R. Doc. 45). Defendants argue that Plaintiffs' motion "attempts a bait and switch" by characterizing overly broad and unreasonable discovery requests to appear "more reasonable and more narrowly tailored." (R. Doc. 45 at 6).
On November 12, 2014, Defendants produced over 40, 000 pages of documents in a supplemental production. (R. Doc. 87 at 2). According to Defendants, this "was a significant production of documents related to class issues such as internal Exxon communications regarding claims related to the atypical gasoline at issue in this action, correspondence with Crawford and Company related to the claims handling process, and instructions or protocols for handling of claims related to the atypical gasoline." (R. Doc. 87 at 2).
On November 18, 2014, Defendants served additional supplemental responses to Plaintiffs' discovery requests. (R. Doc. 87-1). These supplemental responses narrowed certain objections and identified additional responsive information regarding Interrogatory Nos. 2, 7, 8 and Request for Production Nos. 4, 7, 9, and 15. (R. Doc. 87 at 2-3). Based on these supplemental productions and responses, Defendants reassert their opposition to Plaintiffs' Motion to Compel. (R. Doc. 87 at 3-4).
II. LAW AND ANALYSIS
A. Legal Standards
Rule 26(b)(1) of the Federal Rule of Civil Procedure provides that "[p]arties may obtain discovery regarding any non-privileged matter that is relevant to any party's claim or defense." To be relevant, "information need not be admissible at trial if the discovery appears reasonably calculated to lead to the discovery of admissible evidence." Fed.R.Civ.P. 26(b)(1). District courts have "wide discretion in determining the scope and effect of discovery." Quintero v. Klaveness Ship Lines, 914 F.2d 717, 724 (5th Cir. 1990). In this action, the Court has limited discovery prior to the class certification hearing to class certification issues. (R. Doc. 29 at 2).
A party seeking discovery may move for an order compelling production of requested documents if a party fails to provide answers or responses. Fed.R.Civ.P. 37(a)(3)(B). If the motion to compel is denied, the court may issue any protective order authorized under Rule 26(c). Fed.R.Civ.P. 37(a)(5)(B).
B. The Contested Discovery Requests
The primary issue before the Court is whether and to what extent Plaintiffs have sought information relevant to class certification that Defendants have refused to provide. The Court has reviewed the pre-certification discovery propounded by Plaintiffs, the Defendants' responses and objections, the Defendants' supplemental responses, and the briefing submitted by the parties. Based on that review, the Court will address the individual discovery requests as grouped in the Plaintiffs' motion.
1. Plaintiffs' Interrogatory No. 1
Plaintiffs state in their motion that Interrogatory No. 1 seeks "basic identification information for the Exxon employees involved in the production of the bad gas at issue - e.g ., an organizational chart." (R. Doc. 40-1 at 5). Plaintiffs argue that in response to this interrogatory, Defendants should have produced an organization chart and identified Defendants' employees actually involved in the production of the problematic gasoline. Interrogatory No. 1 states the following:
Interrogatory No. 1. Please list names, department and position of all employees and/or subcontractors with knowledge of relevant facts regarding the gasoline produced during the Event."
Defendants objected to the interrogatory as "vague, overbroad, unduly burdensome, and not reasonably calculated to lead to the discovery of admissible evidence." (R. Doc. 40-3 at 4). Despite these objections, Defendants identified certain individuals as responsive to the interrogatory.
Interrogatory No. 1 does not ask for an organization chart. Interrogatory No. 1 is overly broad because it seeks information from "all employees and/or subcontractors" of the Defendants with any knowledge of any relevant facts regarding gasoline "produced during the Event." As explained by Defendants, providing a complete response to this interrogatory would require Defendants to interview thousands of individuals who may or may not have read about the incident. Without waiving their objections, Defendants identified four employees that could be contracted through defense counsel: (1) John Dill, Claims Supervisor, ExxonMobil Risk Management, Inc.; (2) Alan Rapee, ExxonMobil Risk Management, Inc.; (3) Gerard Forde, Baton Rouge Refinery Technical Manager, ExxonMobil Refining and Supply; and (4) Mike Noorman, Fuel Products Technology Program Leader, ExxonMobil Products Research & Design. (R. Doc. 40-3 at 2). In addition, Defendants provided that "[o]ne or more Crawford and Company representative(s) with knowledge of the claims process established by ExxonMobil in response to claims regarding the gasoline that is at issue in this lawsuit." (R. Doc. 40-3 at 2). In light of Plaintiff's broad interrogatory, it appears that Defendants made reasonable efforts to identify key persons with relevant information. Defendants need not provide an additional response to Interrogatory No. 1.
IT IS ORDERED that Plaintiffs' Motion to Compel is DENIED as to Interrogatory No. 1.
2. Plaintiffs' Interrogatory No. 2
Plaintiffs state in their motion that Interrogatory No. 2 seeks "the identification of all outside consultants Exxon used to investigate the defective fuel." (R. Doc. 40-1 at 5). Interrogatory No. 2 states the following:
Interrogatory No. 2. Please list the names, employers, job description, and terms of engagement for all independent contractors, consultants or other third parties hired by Exxon after it determined there could be a variance in the Event gasoline, whom provided services regarding the gasoline manufactured by the Event. This should include, but not be limited to, outside quality control professionals, public relations firms, adjustment and claims handling firms, remediation professionals, and testing professionals.
In response to this interrogatory, Defendants identified Crawford and Company's representatives, and listed the names and addresses of "mechanics and rental agencies with which Exxon contracted to address consumer complaints." (R. Doc. 45 at 8; R. Doc. 40-3 at 5-11). Plaintiffs acknowledge that Defendants have listed every service station and rental company the Defendants paid to repair damaged engines. (R. Doc. 40-1 at 5). Plaintiffs argue, however, that this interrogatory actually requested a list of "anyone who worked on investigating the fuel itself." (R. Doc. 40-1 at 5). Furthermore, Plaintiffs argue that Defendants have not provided any privilege logs regarding responsive documents withheld on the basis of privilege or other bases. (R. Doc. 40-1 at 5).
In their supplemental response, Defendants removed their objection to the scope of discovery sought through this interrogatory and identified Intertek Group, PLC as an entity that conducted testing of the problematic gasoline. (R. Doc. 87-1 at 1). It is not clear, however, whether Defendants have withheld otherwise responsive information on some basis other than relevance, such as privilege. To the extent Defendants have withheld responses on the basis of privilege or some other permissible basis, Defendants shall ...