Georgia-Pacific Consumer Products LP et al v. Zurich American Insurance Co. et al

Filing 447

Order re: 418 Objection to the Magistrate Judge's denial of National's motion to compel. The Magistrate's denial as to Request for Production 14 is REVERSED with respect to MSA and is otherwise affirmed. Plaintiffs are ordered to produce the MSA by 11/30/2016. Signed by Chief Judge William H. Steele on 11/23/2016. (tgw)

IN THE UNITED STATES DISTRICT COURT
FOR THE SOUTHERN DISTRICT OF ALABAMA
SOUTHERN DIVISION
GEORGIA-PACIFIC CONSUMER
PRODUCTS LP, etc., et al.,
Plaintiffs,
v.
ZURICH AMERICAN INSURANCE
COMPANY, etc., et al.,
Defendants.

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) CIVIL ACTION 15-0342-WS-B
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ORDER

This matter is before the Court on the objection of defendant National
Union Fire Insurance Company of Pittsburgh (“National”). (Doc. 418). National
objects to a ruling of the Magistrate Judge, (Doc. 391), denying National’s motion
to compel. (Doc. 318). The plaintiffs have filed a response, (Doc. 444), and the
matter is ripe for resolution.
“A judge of the court may reconsider any pretrial matter [on a nondispositive issue] where it has been shown that the magistrate judge’s order is
clearly erroneous or contrary to law.” 28 U.S.C. § 636(b)(1)(A); accord Fed. R.
Civ. P. 72(a) (“The district judge in the case must consider timely objections and
modify or set aside any part of the order that is clearly erroneous or is contrary to
law.”). National’s objection – which is confined to the Magistrate Judge’s rulings
regarding requests for production 11, 12 and 14 – is lodged pursuant to these
provisions.
As the Court has repeatedly noted, [t]he ‘clearly erroneous or contrary to
law’ standard of review is extremely deferential. ... Relief is appropriate under the
‘clearly erroneous’ prong of the test only if the district court finds that the
Magistrate Judge abused [her] discretion or, if after reviewing the record as a

whole, the Court is left with a definite and firm conviction that a mistake has been
made. ... With respect to the ‘contrary to law’ variant of the test, an order is
contrary to law when it fails to apply or misapplies relevant statutes, case law or
rules of procedure.” Cordova v. R&A Oysters, Inc., 2016 WL 3102224 at *1 (S.D.
Ala. 2016) (internal quotes omitted). The Court has also noted that, “[i]n
reviewing a magistrate judge’s nondispositive ruling, this Court does not consider
matters not placed before that judge.” White v. Thyssenkrupp Steel USA, LLC
(S.D. Ala. 2010) (internal quotes omitted).
I. Request for Production 11.
National requested that the plaintiffs “[p]roduce a complete copy of the
Lithium Project File referenced by Steven Motiff during his deposition on June 9,
2016.” (Doc. 301-1 at 17). The plaintiffs initially resisted production but
eventually produced (after National limited the request to documents related to
defendant S&S Sprinkler, LLC (“S&S”)) what they say are all responsive
documents. The Magistrate Judge denied National’s motion to compel on the
grounds that “all responsive documents relating to S&S have been produced.”
(Doc. 391 at 5).
National disagrees with the Magistrate Judge’s finding. National points to
the deposition testimony of the plaintiffs’ witness that the file – which contained
“an enormous amount of information” regarding every vendor on the large, threefacility project – includes “[q]ualification forms, POs, insurance certificates [and]
bid package information.” (Doc. 301-1 at 65). Specific to S&S, the witness
testified that the 2008 MSA was included in the project file and that he believes
the two Greer letters also were included in the file. (Doc. 331 at 22-23).
National admits that the plaintiffs have produced the Greer letters but
complains that the specimens produced bear S&S’s Bates-stamp numbers and
deposition exhibit numbers, demonstrating that the copies the plaintiffs produced
did not come directly from the project file. From this, National concludes that the
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plaintiffs “have not produced any documents in response to” its request. (Doc.
418 at 3). This is a non sequitur. Any failure to produce the Greer letters could
not prove that other responsive documents exist but were not produced; indeed,
the plaintiffs informed the Magistrate Judge – without denial or objection from
National – that they had produced S&S’s purchase orders from the lithium project.
(Doc. 318 at 8). That the witness testified that the file includes various sorts of
documents does not establish that the file includes those sorts of documents
specifically with respect to S&S, and National identifies not a single document it
suspects is in the project file that has not been produced. As for the Greer letters,
National has not explained how it could possibly matter that, instead of producing
two letters copied directly from the project file,1 the plaintiffs produced
presumably identical copies of the same documents taken from S&S’s files.
The bottom line is this: The plaintiffs, through counsel, have repeatedly
confirmed that all responsive documents have been produced, the Magistrate
Judge has found this representation to be accurate, and National has done nothing
to show that her finding is clearly erroneous. The Magistrate Judge’s denial of
National’s motion to compel as to Request for Production 11 is thus affirmed.
II. Request for Production 12.
National requested production of “the contract file relating to the June 5,
2007 MSA and Extension Letter Agreement dated June 4, 2012 ….” (Doc. 301-1
at 17). The plaintiffs refused to produce any responsive documents. The
Magistrate Judge denied National’s motion to compel on the grounds that the
documents are neither relevant nor proportional. (Doc. 391 at 6).
National concedes that the Magistrate Judge “may not be aware of how
hotly contested this issue is,” and it asks the Court to draw upon its broader
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The plaintiffs assert that the witness is mistaken and that the Greer letters are not
in the project file. (Doc. 318 at 9; Doc. 444 at 4).

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awareness of the parties’ factual and legal arguments in this action as a basis for
reversing her ruling. (Doc. 418 at 4). That is not how the system works. In order
to obtain reversal, National must show that, based on the parties’ presentation to
the Magistrate Judge, her ruling is clearly erroneous or contrary to law. National
has not attempted such a showing, and its superficial briefing before the
Magistrate Judge – six lines on principal brief and ten lines in reply – reflects that
it could not do so. National’s failure to present adequate facts and argument to the
Magistrate Judge dooms its bid to place her in error. The Magistrate Judge’s
denial of National’s motion to compel as to Request for Production 12 is
affirmed.
III. Request for Production 14.
National requested production of “a complete copy of all MSA’s for any
contractor performing work in the Chemical Process Safety area described by
Kenneth Littles on page 202 of his deposition transcript after ‘the incident at the
GP Naheola facility back in the early 2000s’ as described on page 204 of Kenneth
Littles’s deposition transcript.” (Doc. 301-1 at 18). The plaintiffs produced the
MSA for Burkes Mechanical, (Doc. 331 at 6), but refused to produce any others.
The Magistrate Judge denied National’s motion to compel “[f]or the reasons set
forth with respect to production requests Nos. 2, and 12.” (Doc. 391 at 7).
As noted, the Magistrate Judge denied the motion to compel as to request
12 because the request was not relevant or proportional. She denied the motion as
to request 2 for failure to show proportionality, specifically, failure to “establis[h]
the importance of the requested documents.” (Doc. 391 at 4).
From National’s perspective, one of the critical questions in this lawsuit is
whether its insured (S&S) was required to have $10 million of insurance in place
(which could trigger National’s second-tier excess insurance) or only $3 million
(which could not). Plaintiffs’ counsel elicited testimony from the plaintiffs’
purchasing department manager that all contracts in the chemical process safety
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area (“CPSA”) (essentially, the area from the back of the paper machines all the
way to the river) trigger a $10 million requirement because it is a high-risk area
(including from potential hydrogen sulfide releases, one of which occurred in the
early 2000’s). (Doc. 301-1 at 42-44, 49-50). The subject contract involved work
in this area, and the plaintiffs assert that S&S was required to have $10 million in
insurance to perform the contract. Insurance requirements are addressed in MSA’s
applicable to various contractors. All of this was set forth in support of National’s
motion to compel. (Doc. 301 at 2-3, 4-5, 7-8; Doc. 331 at 6, 9-10).
As National explained to the Magistrate Judge, it sought to test the
deponent’s testimony by reviewing MSA’s from other contractors working in the
CPSA to see if they in fact require $10 million in insurance as the plaintiffs assert.
(Doc. 331 at 6, 9-10). National noted that the Burkes Mechanical MSA, which
involved work in the CPSA (indeed, in essentially the same location as S&S’s
work), requires insurance of only $3 million. (Id.). National also argued that a
$10 million requirement was inconsistent with the plaintiffs’ insurance guidelines
matrix. (Doc. 301 at 8; Doc. 301-1 at 59-61). Before the Magistrate Judge, the
plaintiffs responded that the matrix is only a guideline and that there is thus no
inconsistency between the guideline and the deponent’s testimony. They also
presented a declaration to establish that complying with the request would be
unduly burdensome. (Doc. 318 at 5-6, 11-12).2
Because the minimum amount of insurance required is a central issue in
this case, the veracity of the plaintiffs’ elicited testimony that $10 million is
always required for contracts performed in the CPSA is relevant, and a review of
the MSA’s of other contractors performing work in that area is relevant to the
credibility of the deponent’s testimony.

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Before the Court, the plaintiffs argue that the provisions of National’s policy are
worded such as to render it a “moot point” what any other MSA’s provide. (Doc. 444 at
8-11). Because the plaintiffs made no such argument before the Magistrate Judge, it will
not be considered herein.
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The Magistrate Judge concluded the requested documents are unimportant
for purposes of Rule 26(b)(1) because: (1) the parties’ obligations must be
determined by their own contract, not that of others; and (2) the deponent admitted
he does not know of any contractor working in the CPSA being required to have
$10 million in insurance or of any documents reflecting that any contractor was so
required. (Doc. 391 at 4).
As National argues, blanks in the document addressing S&S’s insurance
requirements introduce questions concerning those requirements with respect to
the subject purchase order; until the parties’ exhaustive dispositive motions are
resolved, it is impossible to say that the contract documents themselves will
resolve the issue without resort to extrinsic evidence. Moreover, it was the
plaintiffs that injected the assertion that all contracts to be performed within the
CPSA must be backed by $10 million in insurance and, in opposing the motion to
compel, they did not deny the centrality of this assertion to resolution of the
minimum limits issue. For these reasons, the existence of a contract with S&S
does not render the requested discovery unimportant for purposes of Rule
26(b)(1).
However, the deponent’s unawareness of documents reflecting a $10
million requirement (or of contractors being told they had to have $10 million of
insurance) reduces – to some extent – the importance of the requested documents.
While not as persuasive as documents directly contradicting the deponent’s
testimony, his admission that he cannot support his testimony undercuts its
persuasive value and thus diminishes the importance of further undermining it.
The plaintiffs offered the declaration of the same witness to establish an
undue burden in responding to National’s request. (Doc. 318-1 at 69-71). The
declaration reflects that the plant issues thousands of contracts/purchase orders
annually, that these are not filed or otherwise identified by location within the
plant, and that it would require the entire manpower of the purchasing department
multiple weeks in order to conduct a search for responsive documents, with the
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results necessarily dubious due to the difficulty or impossibility of identifying the
location of the plant in which the work was performed. (Doc. 318-1 at 69-71).
National scoffs, (Doc. 331 at 10-11), but the very authorities it cites confirms that
the plaintiffs have upheld their burden of showing undue burden. This undue
burden would require affirmance of the Magistrate Judge’s ruling regardless of
any error regarding relevance or importance.
National points out that there must be at least one additional MSA subject
to its request, which can be located without undue burden: the one applicable to
the entity that completed the work S&S was to perform at the time of the subject
incident. (Doc. 331 at 10; Doc. 418 at 6). Before neither the Magistrate Judge nor
the Court have the plaintiffs articulated any response to National’s argument
regarding this MSA; nor did the Magistrate Judge address it. Given the residual
importance of negating the deponent’s testimony, the plaintiffs’ own emphasis on
narrowing the focus to the precise area in which the subject incident occurred,3
and the absence of any burden on the plaintiff of complying with the request, the
Court concludes that, as to this MSA only, the Magistrate Judge’s ruling is clearly
erroneous and/or contrary to law.
For the reasons set forth above, the Magistrate Judge’s denial of National’s
motion to compel as to Request for Production 14 is reversed with respect to the
MSA described in the preceding paragraph and is otherwise affirmed. The
plaintiffs are ordered to produce the MSA on or before November 30, 2016.
DONE and ORDERED this 23rd day of November, 2016.
s/ WILLIAM H. STEELE
CHIEF UNITED STATES DISTRICT JUDGE

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(Doc. 318-1 at 70; Doc. 331 at 10).
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