Food & Water Watch, Inc. et al v. Environmental Protection Agency et al

Filing 68

ORDER re 67 First Discovery Letter Briefwith the previously (inadvertently) omitted Exhibits A & B filed by Hayden Staudenmaier, Ko Staudenmaier, American Academy of Environmental Medicine, Brenda Staudenmaier, Moms Against Fluor idation, International Academy of Oral Medicine & Toxicology, Kristin Lavelle, Food & Water Watch, Inc., Audrey Adams, Fluoride Action Network, Kyle Adams, Neal Lavelle. Signed by Judge Edward M. Chen on 10/4/2018. (emclc1, COURT STAFF) (Filed on 10/4/2018)

1
2
3
4

UNITED STATES DISTRICT COURT

5

NORTHERN DISTRICT OF CALIFORNIA

6
7

FOOD & WATER WATCH, INC., et al.,
Plaintiffs,

8
9
10
11

Case No. 17-cv-02162-EMC
ORDER RE FIRST JOINT
DISCOVERY DISPUTE LETTER

v.
UNITED STATES ENVIRONMENTAL
PROTECTION AGENCY, et al.,

Docket No. 67

United States District Court
Northern District of California

Defendants.
12
13

On September 28, 2018, the parties filed a joint letter raising disputes regarding Plaintiffs’

14

first set of requests for production and amended notice of Rule 30(b)(6) deposition. See Docket

15

No. 67 (“Ltr”).

16

Plaintiffs’ request for an order compelling the Environmental Protection Agency (“EPA”)

17

to produce documents responsive to requests 10–29 and 33–34 is GRANTED. Under 15 U.S.C.

18

§ 2620(b)(4)(B), the Court reviews Plaintiffs’ administrative petition de novo. The EPA’s

19

documents and correspondence relating to the specified studies are relevant to the ultimate issue

20

the Court must decide—whether the ingestion of fluoride in drinking water causes neurotoxic

21

harm. To the extent that the EPA asserts the deliberative process privilege over any responsive

22

documents, it shall provide a privilege log within 14 days of this Order detailing: (1) the date of

23

the document, (2) the author, (3) the recipient, (4) the subject matter, and (4) the basis for asserting

24

the privilege. See California Native Plant Soc’y v. U.S. E.P.A., 251 F.R.D. 408, 413 (N.D. Cal.

25

2008) (requiring agency to provide detailed privilege logs because “in order to protect a document

26

. . . under the deliberative process privilege, an agency must show enough detail so that the court

27

can determine how each document fits into the deliberative process”).

28

Plaintiffs’ request for an order compelling the EPA to produce a witness in response to

Plaintiffs’ Rule 30(b)(6) notice is also GRANTED. Topics 1 and 2 are relevant because whether

2

the EPA considered the neurotoxic risk of fluoride in establishing its safety standards bears on

3

how much weight the Court should give to any EPA argument that its safety standards can be used

4

to show what a safe level of fluoride is. The EPA protests that the request is duplicative and not

5

proportionate to the needs of the case because the “factual and scientific predicates for EPA’s

6

denial of the petition are publicly expressed and identified in the document denying the petition.”

7

Ltr at 3. But the EPA has not identified any undue burden from the request, and courts have made

8

clear that “the deposition process provides a means to obtain more complete information [than

9

written responses to discovery requests] and is, therefore, favored.” Great Am. Ins. Co. of New

10

York v. Vegas Const. Co., 251 F.R.D. 534, 539 (D. Nev. 2008). Thus, “in responding to a Rule

11

United States District Court
Northern District of California

1

30(b)(6) notice or subpoena, a [party] may not take the position that its documents state the

12

[party]’s position.” Id. The EPA also objects to Topics 3 and 4 on the ground the answers have

13

already been “established through written discovery and party conferences.” Ltr at 3. To the

14

contrary, Plaintiffs seek any urinary fluoride data in the EPA’s possession beyond what is

15

available in the published literature and any chemical not identified in the EPA’s supplemental

16

response to Interrogatory No. 2, so the requests are not duplicative. If in fact the EPA does not

17

have any such data, or if it did provide a comprehensive list of chemicals in its supplemental

18

response, it would not be overly burdensome on the EPA to provide a sworn statement to that

19

effect in lieu of producing a representative to testify. To the extent that the EPA asserts the

20

deliberate process privilege over the subject of any deposition topics, it must provide a privilege

21

log as described above.

22

IT IS SO ORDERED.

23
24

Dated: October 4, 2018

25
26
27

______________________________________
EDWARD M. CHEN
United States District Judge

28
2