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Texas Brine Company, LLC v. Dow Chemical Co.

United States District Court, E.D. Louisiana

February 20, 2018

TEXAS BRINE COMPANY, LLC, ET AL.
v.
DOW CHEMICAL COMPANY, ET AL. Applies to all cases

         SECTION: “N” (1)

          KURT D. ENGELHARDT JUDGE.

          ORDER AND REASONS

          JANIS VAN MEERVELD UNITED STATES MAGISTRATE JUDGE.

         Before the Court is the Motion to Quash filed by non-party Occidental Chemical Corporation (“Oxy”) (Rec. Doc. 334) and the related Motion to Compel filed by plaintiffs Texas Brine Company, LLC (“Texas Brine”) and Louisiana Salt, LLC (Rec. Doc. 366). For the following reasons, the Motion to Quash is GRANTED and the Motion to Compel is DENIED.

         Background

         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

         The parties are before the Court regarding a subpoena issued by Texas Brine to Oxy seeking documents related to a business relationship between Oxy and Boardwalk Louisiana Midstream, LLC (“Boardwalk”), a competitor of Texas Brine in the salt brine industry. Oxy is a consumer of brine from places like the Napoleonville Salt Dome (the “Dome”) where the issues in this lawsuit arise. For decades, Texas Brine has supplied Oxy with brine from the Dome. In 2012, a sinkhole occurred in Bayou Corne, near the Dome, and Oxy and Texas Brine were both parties to the resulting litigation (“Sinkhole Litigation”).

         Texas Brine first reached out to Oxy regarding the present lawsuit in November 2017, when it sought to produce certain confidential transcripts and expert reports from the Sinkhole Litigation to Dow. It appears the parties were able to reach a compromise regarding both the transcripts, which were produced with certain redactions, and the expert reports, which were produced subject to an attorney's eyes only provision that allowed Dow's counsel to review, but not use, the reports.

         Plaintiffs issued the subpoena for documents to Oxy on January 10, 2018. It provided a January 15, 2018, response date. The parties agree that pursuant to the Sinkhole Litigation, Texas Brine already obtained possession of a large portion of the documents sought by the subpoena. But the documents are subject to a protective order, which prohibits their disclosure or use in this litigation (or elsewhere). As summarized by Oxy, Texas Brine's subpoena seeks:

• Oxy's brine supply agreements with Boardwalk from the last five years (Request No. 1)
• All negotiations of the Boardwalk agreements (Request No. 2)
• All documents relating to royalties and payments under the Boardwalk ...

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