Eastridge v. Goodrich Corporation et al

Filing 307

MEMORANDUM OPINION AND ORDER by Magistrate Judge Colin H. Lindsay. First Motion to Compel (DN #277 ) is granted in part and denied in part. Second Motion to Compel (DN #289 ) is granted in part and denied in part. Third Motion to Compel (DN #293 ) is granted in full. Fourth Motion to Compel (DN #301 ) is granted in part and denied in part. Parties to comply as set forth. cc: Counsel(JAC)

UNITED STATES DISTRICT COURT
WESTERN DISTRICT OF KENTUCKY
LOUISVILLE DIVISION
CIVIL ACTION NO. 3:12-CV-862-DJH-CHL

PAMELA EASTRIDGE,
Executor of the Estate of Joseph E. Morris, Jr.,

Plaintiff,

v.
GOODRICH CORPORATION, et al.

Defendants.

Memorandum Opinion and Order
I.

Introduction

Four motions to compel are before the Court. All Defendants1 joined in the first and third
motions to compel, while only Certain Defendants2 filed the second and fourth motions to
compel:
1.
2.
3.
4.

The Defendants’ first motion to compel (DN 277).
Certain Defendants’ second motion to compel (DN 289).
The Defendants’ third motion to compel (DN 293).
Certain Defendants’ fourth motion to compel (DN 301).

1

The Defendants include: Air Products and Chemicals, Inc.; American Chemistry
Council; ConocoPhillips Company; The Dow Chemical Company; Ethyl Corporation; Georgia
Gulf Corporation; Georgia-Pacific LLC; The Goodyear Tire and Rubber Company; Gulf Oil
Limited Partnership; Honeywell International, Individually and as successor-in-interest to Allied
Signal Corporation and Allied Chemical; Hexion Inc., f/k/a Momentive Specialty Chemicals
Inc., f/k/a Hexion Specialty Chemicals, f/k/a Borden Chemical, Inc.; Monsanto Company;
Occidental Chemical Corporation; Olin Corporation; PPG Industries, Inc.; Shell Oil Company;
and Union Carbide Corporation.
2

The Certain Defendants include: Occidental Chemical Corporation; Honeywell
International Inc.; Olin Corporation; Ethyl Corporation; Air Products and Chemicals, Inc.;
Monsanto Company; The Dow Chemical Company; Union Carbide Corporation.
1

The Court will refer to the three sets of written discovery requests at issue in the first and
third motions to compel as the “first written discovery requests.” In the first motion to compel,
the Defendants ask the Court to order the Plaintiff to respond to the first written discovery
requests. Defs.’ 1st Mem. 6 – 7 (DN 277-1). In the third motion to compel, the Defendants
argue that the Plaintiff’s late-filed responses to the first written discovery requests are deficient.
Defs.’ 3d Mem. 1 – 2 (DN 293-2).
The Court will refer to the eight3 sets of written discovery requests at issue in the second
and fourth motions to compel as the “second written discovery requests.” In the second motion
to compel, the Certain Defendants ask the Court to compel the Plaintiff to provide responses to
the second written discovery requests. Cert. Defs.’ 2nd Mem. 1 (DN 289-9). In the fourth
motion to compel, the Certain Defendants argue that the Plaintiff’s late-filed responses to the
second written discovery requests are deficient. Cert. Defs.’ 4th Mem. 3 – 4 (DN 301-2).
As explained below, the Court will grant in part and deny in part the Defendants’ first
motion to compel (DN 277).

The Court will grant in part and deny in part the Certain

Defendants’ second motion to compel (DN 289). The Court will grant the Defendants’ third
motion to compel in full (DN 293). The Court will grant in part and deny in part the Certain
Defendants’ fourth motion to compel (DN 301).

3

The Certain Defendants said that “nine” defendants’ discovery requests are at issue in
the second and fourth motions to compel. Cert. Defs.’ 2nd Mot. 1 (DN 289); Cert. Defs.’ 2nd
Mem. 1; Cert. Defs.’ 2nd Reply 3 (DN 296).
The number nine appears to be an error. See Cert. Defs.’ 2nd Reply 2 n.1. Only eight
defendants are moving parties in the second and fourth motions to compel. Cert. Defs.’ 2nd Mot.
1 – 2 (listing eight movants); Cert. Defs.’ 4th Mot. 1 – 2 (DN 301) (same); accord, Cert. Defs.’
2nd Mem. 1; Cert. Defs.’ 2nd Reply 3; Cert. Defs.’ 4th Mem. 1 n.1; Cert. Defs.’ 4th Reply 1 n.1;
Cert. Defs.’ 2nd Prop. Order (DN 289-27); Cert. Defs.’ 4th Prop. Order (DN 301-1).
2

II.

Procedural standards

A party responding to interrogatories “must serve its answers and any objections within
30 days after being served with the interrogatories.” Fed. R. Civ. P. 33(b)(2).

Similarly, a party

responding to a request for production must respond in writing within thirty days. Fed. R. Civ.
P. 34(b)(2)(A). Likewise, a party responding to a request for admission must respond within
thirty days. Fed. R. Civ. P. 36(a)(3).
For interrogatories, “Any ground not stated in a timely objection is waived unless the
court, for good cause, excuses the failure.”

Fed. R. Civ. P. 33(b)(4).

An answer to an

interrogatory “must, to the extent it is not objected to, be answered separately and fully in writing
under oath.” Fed. R. Civ. P. 33(b)(3). For requests for production, failure to timely object
results in a waiver of the objection. See Duracore Pty. Ltd. v. Applied Concrete Tech., Inc., 2015
WL 4750936 *6 (W.D. Ky. Aug. 11, 2015). For requests for admission, “A matter is admitted
unless, within 30 days after being served, the party to whom the request is directed serves on the
requesting party a written answer or objection addressed to the matter and signed by the party or
its attorney.” Fed. R. Civ. P. 36(a)(3).
The Court will discuss first whether the Plaintiff timely responded to the first written
discovery requests, and whether the answers she provided were deficient. Then, the Court will
discuss whether the Plaintiff timely responded to the second written discovery requests, and
whether the answers she provided were deficient.

3

III.

The Defendants’ first and third motions to compel
A. Whether the Plaintiff timely responded to the first written discovery requests

On December 2, 2015, the Defendants served the Plaintiff with the first written discovery
requests. Defs.’ 1st Mem. 2; Pl.’s 1st Resp. Opp. Mot. Compel 1 (DN 285). The first written
discovery requests include:
(1) Defendants’ first set of phase one4 joint requests for admission,
interrogatories, and requests for production;
(2) Shell Oil Company’s first set of phase one requests for admission,
interrogatories, and requests for production; and
(3) PPG Industries, Inc.’s first set of phase one requests for admission,
interrogatories, and requests for production.
Defs.’ 1st Mem. 1.
On December 29, 2015, Plaintiff’s counsel asked the Defendants for a thirty-day
extension of time to respond to the first written discovery requests, and the Defendants agreed to
the extension. Defs.’ 1st Mem. 2; Pl.’s 1st Resp. 1. The Defendants say the extension made the
Plaintiff’s new deadline February 3, 2016. Defs.’ 1st Mem. 2. The Plaintiff did not serve any
responses to the first written discovery requests by February 3. See Pl.’s 1st Resp. 1. When the
Defendants moved to compel on February 15, 2016, the Plaintiff still had not responded. Defs.’
1st Mem. 3.
On March 11, 2016, the Plaintiff filed a response to the motion to compel. Pl.’s 1st Resp.
2. That same day, the Plaintiff served the Defendants with her responses to the first written
4

The Court’s scheduling order (DN 263) includes a two-phase approach to discovery.
Phase one generally excludes discovery related to the claims against the “Acting in Concert
Defendants.” Sch. Order 4 (DN 263); see also, 2nd Am. Compl. 3 – 4 (DN 179). Phase one fact
discovery began on December 1, 2015 and concluded on August 15, 2016. See DN 306 (stating
that the deadline for phase one, fact discovery, remains August 15, 2016). Phase one expert
discovery began on August 16, 2016 and will conclude by February 15, 2017. Sch. Order 4 – 5.
4

discovery requests. Id. The Defendants attached the responses to the first written discovery
requests to their first reply. See, Pl.’s Answers to Defs.’ Phase One Joint Requests (DN 286-3);
Pl.’s Answers to PPG Industries (DN 286-4); Pl.’s Answers to Shell Oil (DN 286-5). Thus, it
appears that the Plaintiff did respond to the first written discovery requests. Accordingly, the
Court will deny as moot the Defendants’ first motion to compel to the extent it requests an order
to respond to the interrogatories and requests for production in the first written discovery
requests.
The Court turns to the timeliness of the Plaintiff’s responses to the first written discovery
requests to determine whether the Plaintiff waived her objections to the interrogatories and
requests for production and to determine whether the Plaintiff’s answers to the requests for
admission should be deemed admitted.
In response to the Defendants’ first motion to compel, the Plaintiff says that “the
calculation of a response time to Defendants’ discovery is in dispute between the Parties.” Pl.’s
1st Resp. 1. She says that when her counsel requested a 30-day extension, she “inadvertently”
mentioned February 3, 2016 as the new deadline for Plaintiff’s responses. Id. She acknowledges
that the Defendants granted her request for an extension until February 3, 2016. Id. She then
argues that because the Court did not enter its scheduling order until January 11, 2016, combined
with the Defendants’ granting of a thirty-day extension, she had until March 14, 2016 to respond
to the written discovery requests. Id. Ultimately, she argues that the first motion to compel is
moot because she provided the answers to the first written discovery requests. Id. at 2.
The Defendants reply that regardless of Plaintiff’s excuses, she failed to serve responses
to the first written discovery requests by the February 3, 2016 extended deadline to which
5

Defendants agreed and which Plaintiff’s counsel confirmed. Defs.’ 1st Reply 6 (DN 286).
Ultimately, they argue their motion to compel is not moot because the untimeliness of the
Plaintiff’s responses results in both waiver of objections to the interrogatories and requests for
production and admission of the requests for admission. Id.
The Court’s scheduling order, entered January 11, 2016, says:
PHASE ONE FACT DISCOVERY shall commence five days after the Court
rules on the scope of PHASE ONE discovery and shall cover factual discovery
including party and fact witness depositions, depositions of [Mr. Morris’s]
treating physicians, and written discovery requests pertaining to the following
issues: … PHASE ONE FACT DISCOVERY shall conclude on August 15, 2016.
Sch. Order Jan. 11, 2016 (DN 263). Five days after the Court ruled on the scope of Phase One
fact discovery was Saturday, January 16, 2016.

Thus, under the local rule, the Court’s

scheduling order instructed the parties to begin phase one fact discovery on Tuesday, January 19,
2016.5
The Court turns to the Plaintiff’s argument that the scheduling order, plus the
Defendants’ thirty-day extension, extended her deadline for responding to the first written
discovery requests to March 14, 2016. In the email correspondence between the parties, the
Plaintiff asked for an extension of “an additional 30 days to respond to the pending discovery,
making the answers due February 3, 2016.” Email Dec. 29, 2015 (DN 277-5). The Defendants
agreed to this deadline: February 3, 2016. Id.
The Court rejects the Plaintiff’s argument that when the Defendants granted a thirty-day
extension, the thirty-day agreed extension morphed into an even longer extension by virtue of the

5

See LR 6.2 (providing that when a deadline falls on a Saturday, the deadline becomes
“the next day that is not a Saturday, Sunday, or legal holiday.”). Monday, January 18, 2016 was
the legal holiday observing Dr. Martin Luther King Jr.’s birthday.
6

Court’s scheduling order. The Plaintiff requested, and the Defendants agreed, to the February 3
deadline before the Court entered the scheduling order.
The Court recognizes that the scheduling order directed the parties to begin phase one
fact discovery on January 19, 2016. The Defendants served the first written discovery requests
on December 2, 2015, seven weeks before January 19. Even assuming that entry of the Court’s
scheduling order meant that the clock for responding to the written discovery requests did not
start until January 19, thirty days after January 19 came and went on February 18.
The Plaintiff did not come close to responding by February 18. Three weeks after
February 18—on March 11, the day her response to the first motion to compel was due—she
responded to the first written discovery requests. Even under this generous reading of the
timeline, the responses to the first written discovery requests were still three weeks late. The
Court finds that the Plaintiff’s responses to the first written discovery requests were untimely.
B. Effect of the Plaintiff’s failure to timely respond to the first written discovery
requests
Having found the Plaintiff’s responses untimely, the Court turns to the effect of the
Plaintiff’s failure to timely respond to the first written discovery requests.
In their memorandum in support of the first motion to compel, the Defendants argue that
by failing to respond to the written discovery requests, the Plaintiff waived all objections to the
interrogatories and requests for production. Defs.’ Mem. 4 – 5. They further argue that failure
to timely respond to the requests for admission deems those answers admitted. Id. at 2 n.2.
The Plaintiff provides no argument in response to the Defendants’ assertion that her
failure to timely respond to the interrogatories or the requests for production results in a waiver
of her objections. See Pl.’s Resp. 1 – 2. In the same vein, the Plaintiff provides no argument in
7

response to the Defendants’ assertion that her failure to timely respond to the requests for
admission deems those answers admitted. See id.
Instead, she argues that because she responded to the first written discovery requests, the
motion to compel is moot. Id. She makes no mention of the “good cause” standard of Rule
33(b)(4), nor did she ask the Court to excuse the failure to timely respond to the interrogatories.
She did not respond to the cases cited by the Defendants suggesting that failure to timely respond
to the requests for production waives any objection.

See, e.g., Defs.’ Mem. 5 n.2 (citing

Duracore, 2015 WL 4750936 at *6). Likewise, she makes no argument that her answers to the
requests for admission should not be deemed admitted by operation of Rule 36(a)(3). She cites
no case that would support the assertion that providing the responses to the written discovery
requests the same day she responded to the motion to compel makes the motion to compel moot.
Finally, the Plaintiff does not respond to the Defendants’ request for attorneys’ fees and costs for
filing the first motion to compel.
The Court finds that the Plaintiff’s failure to timely respond to the interrogatories in the
first written discovery requests results in a waiver of her objections to the interrogatories. See
Fed. R. Civ. P. 33(b)(4). The Court finds that the Plaintiff’s failure to timely respond to the
requests for production in the first written discovery requests results in a waiver of her objections
to the requests for production. See Duracore, 2015 WL 4750936 at *6. Therefore, the Court
will grant the Defendants’ first motion to compel to the extent that it seeks an order that the
Plaintiff’s failure to timely respond to the interrogatories in the first written discovery requests
results in a waiver of her objections to those interrogatories. Likewise, the Court will grant the
Defendants’ first motion to compel to the extent that it seeks an order that the Plaintiff’s failure
8

to timely respond to the requests for production in the first written discovery requests results in a
waiver of her objections to the requests for production.
The Court has considerable discretion in handling discovery matters.

Hadfield v.

Newpage Corp., 2016 WL 427924 *3 (W.D. Ky. Feb. 3, 2016). As part of this discretion, the
Court may “permit a longer time for a written answer to a request for admission and to accept the
filing of an answer that would otherwise be untimely.” United States v. Petroff-Kline, 557 F.3d
285, 293 (6th Cir. 2009) (internal quotation marks and citation omitted). Therefore, the Court is
not required to deem all matters admitted for failure to timely respond. Id.
The Court will exercise its discretion here. The Court will accept the Plaintiff’s late-filed
answers to the Defendants’ requests for admission.

Therefore, the Court will deny the

Defendants’ first motion to compel to the extent that it seeks an order from the Court deeming all
of the Plaintiff’s answers to the Defendants’ requests for admissions admitted.
The Defendants request their reasonable expenses incurred in filing the first motion to
compel. Defs. 1st Mem. 5 – 6. The Plaintiff does not respond to this request. See Pl.’s 1st Resp.
1 – 2. As discussed below, the Court will order the payment of reasonable expenses the
Defendants incurred in filing the third motion to compel. See discussion infra Part III(C). For
this reason, the Court will decline to award the Defendants their reasonable expenses incurred in
filing the first motion to compel because such an award—if combined with the award discussed
infra—would be unjust. See Fed. R. Civ. P. 37(a)(5)(A)(iii).
C. Whether the Plaintiff’s answers to the first written discovery requests were
deficient
In the third motion to compel, the Defendants argue that the following responses to the
first written discovery requests were deficient:
9

1. Defendants’ Joint Requests for Admissions, Interrogatories and Requests for
Production:
o Interrogatories Nos. 12 – 15, 18 – 21, 25 – 26, 29 – 30, 32 – 34
o Requests for Production Nos. 5, 14, 24 – 25 and 29 – 30
2. PPG Industries, Inc.’s First Set of Requests for Admissions, Interrogatories and
Requests for Production:
o Interrogatories No. 5 – 10
o Requests for Production No. 1
3. Shell Oil Company’s First Set of Phase One Requests for Admissions,
Interrogatories, and Requests for Admission:
o Interrogatories Nos. 5 – 10
o Requests for Production No. 1
Defs.’ 3rd Mem. 1 – 2. The Defendants ask the Court to order the Plaintiff to provide “full and
adequate responses” to the specific interrogatories and requests for production detailed above.
Id. at 4.
Under local rule, failure to timely respond to a motion may be grounds for granting the
motion. LR 7.1(c).
The Plaintiff did not respond to the third motion to compel.
The Court will grant the Defendants’ third motion to compel in full. The Court will order
the Plaintiff to provide full and adequate responses to the first written discovery requests. The
Court will order the Plaintiff to pay the Defendants’ reasonable expenses incurred in making the
third motion to compel, including attorneys’ fees. See Fed. R. Civ. P. 37(a)(5)(A).
IV.

Certain Defendants’ second and fourth motions to compel

A. Whether the Plaintiff timely responded to the second written discovery requests
Between January 12, 2016, and February 5, 2016, the Certain Defendants served the
Plaintiff with their second written discovery requests. See Cert. Defs.’ 2nd Mem. 2 – 3. The

10

Plaintiff’s response to the second motion to compel does not dispute these dates. See Pl.’s 2nd
Resp. 1 – 2 (DN 295). The second written discovery requests include:
1. Occidental Chemical Corporation’s phase one requests for admission, interrogatories,
and requests for production;
2. Honeywell International Inc.’s phase one requests for admission, interrogatories, and
requests for production;
3. Olin Corporation’s phase one requests for admission, interrogatories, and requests for
production;
4. Ethyl Corporation’s phase one requests for admission, interrogatories, and requests
for production;
5. Air Products and Chemicals, Inc.’s phase one requests for admission, interrogatories,
and requests for production
6. Monsanto Company’s phase one requests for admission, interrogatories, and requests
for production
7. The Dow Chemical Company’s phase one requests for admission, interrogatories, and
requests for production;
8. Union Carbide Corporation’s phase one requests for admission, interrogatories, and
requests for production.
Cert. Defs.’ 2nd Mem. 2 – 3.
The Plaintiff timely responded to Dow Chemical and Union Carbide’s requests for
admission on March 8 and 9, 2016. Cert. Defs.’ 2nd Mem. 3 – 4. As of March 30, 2016, the
Plaintiff had not responded to the rest of the second written discovery requests, which the Certain
Defendants say were due on March 23, 2016, at the latest. Id. On April 29, 2016, the Plaintiff
responded to the second written discovery requests. Pl.’s 2nd Resp. 1; Cert. Defs.’ 2nd Reply 1.
Thus, it appears that the Plaintiff did respond to the second written discovery requests.
Accordingly, the Court will deny as moot the Defendants’ second motion to compel to the extent
it requests an order to respond to the interrogatories and requests for production in the second
written discovery requests.
In the plaintiff’s response to the second motion to compel, she does not dispute the
Defendants’ assertion that she missed most of the deadlines for responding to the second written
11

discovery requests. See Pl.’s 2nd Resp. 1.

She responded to most of the second written

discovery requests on April 29, 2016, the same day she responded to the second motion to
compel. Id. at 1.
The Court finds that the Plaintiff’s responses to Dow Chemical and Union Carbide’s
requests for admission were timely. The Court finds that the rest of the Plaintiff’s responses to
the second written discovery requests were untimely.
B. Effect of the Plaintiff’s failure to timely respond to the second written discovery
requests
Having found the Plaintiff’s responses untimely, the Court turns to the effect of the
Plaintiff’s failure to timely respond to most of the second written discovery requests.
In their memorandum in support of the second motion to compel, the Certain Defendants
argue that by failing to respond to the written discovery requests, the Plaintiff waived all
objections to the interrogatories and requests for production. Cert. Defs.’ 2nd Mem. 4 – 5 (DN
289-9). They further argue that failure to timely respond to the requests for admission deems
those answers admitted. Id. at 5 n.7.
The Plaintiff does not respond to these arguments. Pl.’s 2nd Resp. 1 – 2. Instead, she
repeats the argument that the motion to compel was moot because she provided the answers on
April 29, 2016. Id. at 2. Again, she cites no case which would suggest that a motion to compel
becomes moot when a party serves the requested discovery.
The Court finds that the Plaintiff’s failure to timely respond to the interrogatories in the
second written discovery requests results in a waiver of her objections to the interrogatories. See
Fed. R. Civ. P. 33(b)(4). The Court finds that the Plaintiff’s failure to timely respond to the
requests for production in the second written discovery requests results in a waiver of her
12

objections to the requests for production. See Duracore, 2015 WL 4750936 at *6. Therefore,
the Court will grant the Defendants’ second motion to compel to the extent that it seeks an order
that the Plaintiff’s failure to timely respond to the interrogatories in the second written discovery
requests results in a waiver of her objections to those interrogatories. Likewise, the Court will
grant the Defendants’ second motion to compel to the extent that it seeks an order that the
Plaintiff’s failure to timely respond to the requests for production in the second written discovery
requests results in a waiver of her objects to the request for production.
As discussed above in Part III(B), the Court has discretion to accept an untimely answer
to a request for admission without automatically deeming the request admitted. The Court will
again exercise its discretion. The Court will accept the Plaintiff’s late-filed answers to the
Certain Defendants’ requests for admission. Therefore, the Court will deny the Defendants’
second motion to compel to the extent that it seeks an order from the Court deeming all of the
Plaintiff’s answers to the Certain Defendants’ requests for admissions admitted.
The Defendants request their reasonable expenses incurred in filing the second motion to
compel. Cert. Defs.’ 2nd Mem. 5 – 6. The Plaintiff does not respond to this request. See Pl.’s
2nd Resp. 1 – 2. The Court has already decided to order the payment of reasonable expenses for
the third motion to compel. See discussion supra Part III(C). For this reason, the Court will
decline to award the Defendants their reasonable expenses incurred in filing the second motion to
compel because such an award—if combined if combined with the award discussed supra—
would be unjust. See Fed. R. Civ. P. 37(a)(5)(A)(iii).

13

C. Whether the Plaintiff’s answers to the second written discovery requests were
deficient
In the fourth motion to compel, the Certain Defendants argue that the Plaintiff’s
interrogatory responses in the second written discovery requests fail to satisfy the obligation to
verify the responses. Cert. Defs.’ Mem. Supp. 4th Mot. Compel 3. They further argue that the
Plaintiff’s responses to the following interrogatories are deficient:
1. Occidental Chemical (No. 1); Olin (No. 2); Ethyl (No. 1); Air Products (No. 1);
Monsanto (No. 1); Dow (No. 1); Union Carbide (No.1); and Honeywell (Nos. 1 – 2);
2. OxyChem (No. 5); Olin (No. 4); Ethyl (No. 5); Air Products (No. 7); Monsanto (No.
4); Dow (No. 6); Union Carbide (No. 6);
3. Air Products (No. 5);
4. Air Products (No. 6);
5. OxyChem (No. 6); Olin (No. 5); Ethyl (No. 6); Air Products (No. 8); Monsanto (No.
5); Dow (No. 7); Union Carbide (No. 7);
6. OxyChem (No. 7); Olin (No. 6); Ethyl (No. 7); Air Products (No. 9); Monsanto (No.
6); Dow (No. 8); Union Carbide (No. 8);
7. OxyChem (No. 8); Ethyl (No. 8); Air Products (No. 10); Dow (No. 2); Monsanto No.
7); Olin (No. 7);
8. OxyChem (No. 9); Olin (No. 9); Ethyl (No. 9); Monsanto (No. 9); Dow (No. 10);
Union Carbide (No. 10);
9. Dow (No. 9); Union Carbide (No. 9); Monsanto (No. 8); Olin (No. 8); Honeywell
(No. 4);
10. OxyChem (No. 10); Olin (No. 10); Ethyl (No. 10); Monsanto (No. 10); Dow (No.
11); Union Carbide (No. 11); Honeywell (No. 5);
11. Dow (No. 12); Union Carbide (No. 12).
Cert. Defs.’ Mem. Supp. 4th Mot. Compel 4 – 12. Additionally, the Certain Defendants argue
that the Plaintiff’s answers to the following requests for production are deficient:
1. OxyChem (No. 1); Olin (No. 1); Ethyl (No. 1); Air Products No. 1; Monsanto No. 1;
14

2. Dow (No. 1); Union Carbide (No. 1); Honeywell (Nos. 1 – 5);
3. Dow (No. 2); Union Carbide (No. 2);
4. OxyChem (No. 2); Olin (No. 2); Monsanto (No. 2); Air Products (No. 2); Dow (No.
3); Union Carbide (No. 3);
5. OxyChem (No. 3); Olin (No. 4); Monsanto (No. 4); Union Carbide (No. 5); Dow (No.
5); Air Products (No. 3);
6. OxyChem (No. 6); Olin (No. 7); Air Products (No. 6); Monsanto (No. 7); Dow (No.
8); Union Carbide (No. 8);
7. OxyChem (No. 7); Olin (No. 8); Monsanto (No. 9); Dow (No. 9); Union Carbide (No.
9);
8. OxyChem (No. 8); Olin (No. 9); Monsanto (No. 9); Dow (No. 10); Union Carbide
(No. 10);
9. Air Products (No. 7).
Id. at 12 – 14.
The Defendants ask the Court to order the Plaintiff to provide “full and complete
responses” to the specific interrogatories and requests for production detailed above. Id. at 16.
Then, they ask the Court to award their costs and attorneys’ fees. Id. at 15 – 16.
The Plaintiff does not respond to these arguments. See Pl.’s Resp. 4th Mot. Compel 1
(DN 302). She chastises the Certain Defendants for citing “no authority” in the fourth motion to
compel. Id. She argues that, “Since Plaintiff has served answers to all pending discovery to the
best of her ability and has nothing additional to supplement at this time, the issue is moot.” Id.
Again, the Plaintiff cites no case which might suggest that serving a discovery response moots a
motion to compel.
The Court will grant the Certain Defendants’ fourth motion to compel to the extent that it
seeks to order the Plaintiff to verify her responses to interrogatories in accordance with Rule
15

33(b)(3). The Court will grant the Certain Defendants’ fourth motion to compel to the extent
that it seeks “full and adequate responses” to the second written discovery requests. The Court
has already decided to order the payment of reasonable expenses for the third motion to compel.
See discussion supra Part III(C). For this reason, the Court will decline to award the Defendants
their reasonable expenses incurred in filing the fourth motion to compel because such an
award—if combined if combined with the award discussed supra— would be unjust. See Fed.
R. Civ. P. 37(a)(5)(A)(iii).
V.

Order

A. The Defendants’ first motion to compel
Accordingly, the Court GRANTS in part and DENIES in part the Defendants’ first
motion to compel (DN 277). The Court GRANTS the Defendants’ first motion to compel in
part as follows:
1. Any objections by the Plaintiff to the following Interrogatories and Requests for
Production are DEEMED WAIVED:
o Defendants’ First Set of Phase One Joint Interrogatories, and Requests for
Production
o Shell Oil Company’s First Set of Phase One Interrogatories, and Requests for
Production;
o PPG Industries, Inc.’s First Set of Phase One Interrogatories, and Requests for
Admission.
The Court DENIES the Defendants’ first motion to compel in part as follows:
1. The Court DENIES as moot the Defendants’ motion to compel to the extent it seeks
to compel the Plaintiff to respond to the interrogatories and requests for production.
2. The Court DENIES the Defendants’ request of an award of their reasonable expenses
incurred in making the first motion to compel.

16

3. The Court DENIES the Defendants’ request to deem the Plaintiff’s answers to the
following requests for admissions as admitted:
o Defendants’ First Set of Phase One Joint Requests for Admission;
o Shell Oil Company’s First Set of Phase One Requests for Admission;
o PPG Industries, Inc.’s First Set of Phase One Requests for Admission;
B. The Certain Defendants’ second motion to compel
The Court GRANTS in part and DENIES in part the Defendants’ second motion to
compel (DN 289). The Court GRANTS the Certain Defendants’ second motion to compel in
part as follows:
1. Any objections by the Plaintiff to the following interrogatories and requests for
production are DEEMED WAIVED:
o Occidental Chemical Corporation’s phase one requests for admission,
interrogatories, and requests for production;
o Honeywell International Inc.’s phase one requests for admission, interrogatories,
and requests for production;
o Olin Corporation’s phase one requests for admission, interrogatories, and requests
for production;
o Ethyl Corporation’s phase one requests for admission, interrogatories, and
requests for production;
o Air Products and Chemicals, Inc.’s phase one requests for admission,
interrogatories, and requests for production
o Monsanto Company’s phase one requests for admission, interrogatories, and
requests for production
o The Dow Chemical Company’s phase one requests for admission, interrogatories,
and requests for production;
o Union Carbide Corporation’s phase one requests for admission, interrogatories,
and requests for production.
The Court DENIES the Certain Defendants’ second motion to compel in part as follows:
17

1. The Court DENIES as moot the Certain Defendants’ second motion to compel to the
extent it seeks to compel the Plaintiff to respond to the interrogatories and requests for
production.
2. The Court DENIES the Certain Defendants’ request of an award of their reasonable
expenses incurred in making the second motion to compel.
3. The Court DENIES the Certain Defendants’ request to deem the Plaintiff’s answers to
the following requests for admission as admitted:
o Occidental Chemical Corporation’s phase one requests for admission;
o Honeywell International Inc.’s phase one requests for admission;
o Olin Corporation’s phase one requests for admission;
o Ethyl Corporation’s phase one requests for admission;
o Air Products and Chemicals, Inc.’s phase one requests for admission;
o Monsanto Company’s phase one requests for admission;
o The Dow Chemical Company’s phase one requests for admission;
o Union Carbide Corporation’s phase one requests for admission.
C. The Defendants’ third motion to compel
The Court GRANTS the Defendants’ third motion to compel in full (DN 293). The
Court GRANTS the Defendants’ request for an award of reasonable expenses incurred for filing
the third motion to compel. The Plaintiff SHALL PROVIDE full and adequate responses to the
following discovery requests within fourteen days of entry of the Court’s order:
1. Defendants’ First Set of Phase One Joint Requests for Admissions, Interrogatories and
Requests for Production:
o Interrogatories Nos. 12 – 15, 18 – 21, 25 – 26, 29 – 30, 32 – 34
o Requests for Production Nos. 5, 14, 24 – 25 and 29 – 30
2. PPG Industries, Inc.’s First Set of Phase One Requests for Admissions, Interrogatories
and Requests for Production:
o Interrogatories No. 5 – 10
o Requests for Production No. 1
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3. Shell Oil Company’s First Set of Phase One Requests for Admissions, Interrogatories,
and Requests for Admission:
o Interrogatories Nos. 5 – 10
o Requests for Production No. 1
D. The Certain Defendants’ fourth motion to compel
The Court GRANTS in part and DENIES in part the Certain Defendants’ fourth motion
to compel (DN 301). The Plaintiff SHALL PROVIDE answers to the Certain Defendants’
interrogatories that comply with Federal Rule of Civil Procedure 33(b)(3). The Plaintiff SHALL
PROVIDE full and adequate responses to the following discovery requests within fourteen
days of the Court’s order:
1. Occidental Chemical Corporation’s First Set of Phase One Requests for Admissions,
Interrogatories, and Requests for Production:
o Interrogatories Nos. 1, 5 – 10
o Requests for Production Nos. 1 – 8
2. Honeywell International’s First Set of Phase One Requests for Admissions,
Interrogatories, and Requests for Production:
o Interrogatories Nos. 1 – 2, 4 – 5
o Requests for Production Nos. 1, 2, 4, 5
3. Olin Corporation’s First Set of Phase One Requests for Admissions, Interrogatories, and
Requests for Production:
o Interrogatories Nos. 1, 4 – 10
o Requests for Production Nos. 1 – 9
4. Air Products and Chemicals, Inc.’s First Set of Phase One Requests for Admission,
Interrogatories, and Requests for Production:
o Interrogatories Nos. 1, 5 – 10
o Requests for Production Nos. 1 – 7
5. Monsanto Company’s First Set of Phase One Requests for Admissions, Interrogatories,
and Requests for Production:
o Interrogatories Nos. 1, 4 – 10
o Requests for Production Nos. 1 – 9
6. The Dow Chemical Company’s First Set of Phase One Requests for Admissions,
Interrogatories, and Requests for Production:
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o Interrogatories Nos. 1, 2, 6 – 12
o Requests for Production Nos. 1 – 10
7. Union Carbide Corporation’s First Set of Phase One Requests for Admissions,
Interrogatories, and Requests for Production:
o Interrogatories Nos. 1, 2, 6 – 12
o Requests for Production Nos. 1 – 3, 5 – 10
8. Ethyl Corporation’s First Set of Phase One Requests for Admissions, Interrogatories, and
Requests for Production:
o Interrogatories Nos. 1, 5 – 10
o Requests for Production No. 1.

cc: Counsel of record

Colin Lindsay, MagistrateJudge
United States District Court

September 29, 2016

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