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Texas Brine Company, LLC v. Dow Chemical Co.

United States District Court, E.D. Louisiana

January 31, 2018


         SECTION: “N” (1)



          Janis van Meerveld United States Magistrate Judge.

         Before 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.


         In this 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.

         Texas 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.

         Discovery Issue

         On 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).

         Defendants 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 under submission.

         Law and Analysis

         1. Scope of Discovery

         The 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.” Id.

         Rule 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).

         2. Plaintiffs' Discovery Requests

         a. RFP 63 - Geomechanical Studies

         Plaintiffs' 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.

         Plaintiffs' 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.

         b. RFP 94 - Dow's Response to Gulf South Cavern Failure

         In 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.

         Plaintiffs 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.

         In 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 ...

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