United States District Court, E.D. Louisiana
TEXAS BRINE COMPANY, LLC, ET AL.
DOW CHEMICAL COMPANY, ET AL.
D. ENGELHARDT JUDGE.
ORDER AND REASONS
van Meerveld United States Magistrate Judge.
the Court is the Motion for Protective Order filed by
defendants the Dow Chemical Company and Dow Hydrocarbons
& Resources, LLC (“Dow”) and Clifton Land
Corporation (“Clifton” and with Dow,
“Defendants”). (Rec. Doc. 264). For the following
reasons, the Motion is GRANTED in part and taken under
submission in part, pending further briefing and in camera
review of DOWTBC180130-180133 as further provided herein.
lawsuit, Plaintiff Texas Brine Co. (“Texas
Brine”) alleges that solution mining cavern Well Serial
# 971667 located in Assumption Parish, Louisiana (“Dow
# 18”) has encroached onto or within one foot of
property owned by Texas Brine at the time of filing suit and
now owned by plaintiff Louisiana Salt, LLC (“Louisiana
Salt” and with Texas Brine, the
“Plaintiffs”). During the relevant time period,
Dow # 18 was operated by Dow, and owned by Clifton. Texas
Brine alleges that as a result of the encroachment,
Defendants have mined salt belonging to Texas Brine and they
have deprived Texas Brine of its ability to operate solution
mining operations as close to its property line as it
otherwise would have been able to do.
Brine filed this lawsuit on April 7, 2016 (Rec. Doc. 1), it
filed its First Amended Complaint (Rec. Doc. 5) on August 7,
2015, it filed its Second Amended Complaint (Rec. Doc. 55) on
July 1, 2016, and it filed its Third Amended Complaint on
February 9, 2017, joining Louisiana Salt as a plaintiff. The
Plaintiffs seek damages as well as injunctive relief
prohibiting Dow from further operation of Dow #18. Trial is
currently set to begin on March 26, 2018.
November 8, 2017, this Court denied a Motion to Compel filed
by the Plaintiffs seeking to compel Dow to amend its
responses to Plaintiffs' Requests for Production 78
through 88, which concerned certain financial and mining
records that Plaintiffs argued were relevant to their damages
model. The Court was not convinced by this argument, finding
instead that there was “no basis for discovery of
Dow's financial information.” (Rec. Doc. 162, at
8). Plaintiffs appealed this ruling to the District Judge.
The District Judge overruled their objections on January 22,
2018. (Rec. Doc. 299).
have filed the present Motion for Protective Order because
they say that Plaintiffs have served additional discovery
requests that seek information this Court has already ruled
is irrelevant to the issues in this case. Plaintiffs respond
that some of the information is relevant to their negligence
claims under Louisiana Civil Code Article 667. Under that
article, “if the work [a landowner] makes on his estate
deprives his neighbor of enjoyment or causes damage to him,
he is answerable for damages only upon a showing that he knew
or, in the exercise of reasonable care, should have known
that his works would cause damage, that the damage could have
been prevented by the exercise of reasonable care, and that
he failed to exercise such reasonable care.” La. Civ.
Code art. 667. Plaintiffs argue that other requests are
relevant to their damages model, but are not encompassed by
the Court's November 8, 2017, Order. Oral Argument was
held on January 19, 2018. Below, the Court summarizes the
rulings made in open Court and addresses the issues taken
Scope of Discovery
Federal Rules of Civil Procedure provide that “parties
may obtain discovery regarding any nonprivileged matter that
is relevant to any party's claim or defense and
proportional to the needs of the case.” Fed. R. Civ.
Proc. 26(b)(1). Of note, with the 2015 amendment to Rule 26,
it is now clear that “[i]nformation within this scope
of discovery need not be admissible in evidence to be
discoverable.” Id. In assessing
proportionality of discovery, the following should be
considered: “the importance of the issues at stake in
the action, the amount in controversy, the parties'
relative access to relevant information, the parties'
resources, the importance of the discovery in resolving the
issues, and whether the burden or expense of the proposed
discovery outweighs its likely benefit.” Id.
The advisory committee comments to the 2015 amendment to Rule
26 make clear that the parties and the court have a
collective responsibility to ensure that discovery is
proportional. The party claiming it would suffer an undue
burden or expense is typically in the best position to
explain why, while the party claiming the information sought
is important to resolve the issues in the case should be able
“to explain the ways in which the underlying
information bears on the issues as that party understands
them.” Id. advisory committee comments to 2015
amendment. “The court's responsibility, using all
the information provided by the parties, is to consider these
and all the other factors in reaching a case-specific
determination of the appropriate scope of discovery.”
26(c) provides that the Court “may, for good cause,
” protect a party from “annoyance, embarrassment,
oppression, or undue burden or expense” by issuing an
order “forbidding inquiry into certain matters, or
limiting the scope of disclosure or discovery to certain
matters.” Fed. R. Civ. Proc. 26(c)(1)(D).
Plaintiffs' Discovery Requests
RFP 63 - Geomechanical Studies
Request for Production 63 asks for all documents
“reflecting or related to geomechanical studies and/or
geomechanical analyses conducted of solution-mining caverns
owned or operated by Dow on the Napoleonville salt
dome.” Defendants insist that, except for documents
related to Dow # 18, the requested documents are irrelevant
to the issues in this case, just as the other well
information has already been found outside the scope of
discovery. Dow's other wells are not adjacent to the
property at issue.
memorandum in opposition did not address Request for
Production 63. The Court finds that any opposition to
Defendants' motion as to this request has been waived.
Moreover, the Court finds unavailing the argument raised by
counsel at oral argument-that studies and analysis of other
caverns are relevant to what Dow knew or should have known
about the possibility of the damages allegedly caused by its
operations at Dow # 18. As ruled by the Court at oral
argument on January 19, 2018, the Court has found good cause
to order that Defendants not be required to provide the
requested geomechanical data except as to Dow # 18.
RFP 94 - Dow's Response to Gulf South Cavern
Request for Production 94, Plaintiffs ask for “all
reports, communications, or other Documents generated in
connection with any root cause analyses and/or root cause
investigations (“RCI”) undertaken in response to
the Gulf South cavern failure.” Defendants explain that
the “Gulf South cavern failure” refers to a 2003
natural gas leak from two Dow caverns, which were being
leased and operated by Gulf South Pipeline, L.P. (“Gulf
South”) to store natural gas. The caverns are not
adjacent to the property at issue here. Dow #18 was not
involved. Defendants say the requested information is
irrelevant. They add that much of the information sought is
publically available because of LDNR's involvement.
respond that Request for Production 94 seeks information that
is relevant to their Article 667 claim because if Dow's
RCI into the Gulf South cavern failure identified a causal
factor that is similar to “inattentiveness to
caverns” (which they say is the “negligence that
occurred in the over-mining of the Dow 18”), then this
would support their argument that Dow knew or should have
known that mining of Dow #18 could cause harm to the
Plaintiffs. They add that the magnitude of the failure is
also important because it shows the magnitude of harm that
results from inattentiveness.
reply, Defendants say that the request is disproportionate to
the needs of the case because it occurred long ago in 2003
and involved caverns that had been in storage service for at
least ten years prior. Dow notes that its position has always
been that operator Gulf South was responsible for the
failure. Dow also ...