Ruffin v. BP Exploration & Production, Inc. et al

Filing 47

ORDER AND REASONS that Plaintiffs Motion to Quash 40 be DENIED. Signed by Magistrate Judge Donna Phillips Currault on 9/7/2021. (caa)

Case 2:20-cv-00334-ILRL-DPC Document 47 Filed 09/07/21 Page 1 of 7

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF LOUISIANA
FLOYD RUFFIN

*

CIVIL ACTION

VERSUS

*

NO. 20-334

BP EXPLORATION &
PRODUCTION, INC., ET AL.

*

SECTION “B” (2)
Related to: 12-968 BELO
in MDL No. 2179

ORDER AND REASONS
Plaintiff Floyd Ruffin’s Motion to Quash subpoena duces tecum issued to Natalie Perlin,
PhD and Clair Paris, PhD (ECF No. 40) is pending before me in this matter. Defendants ABP
Exploration & Production, Inc. and BP America Production Company filed a timely Opposition
Memorandum and a supplemental notice of authority. ECF Nos. 41; 43. No party requested oral
argument in accordance with Local Rule 78.1, and the Court agrees that oral argument is
unnecessary.
Having considered the record, the submissions and arguments of counsel, and the
applicable law, Plaintiff’s Motion is DENIED for the reasons stated herein.
I.

BACKGROUND
Plaintiff filed this Back-End Litigation Option suit (“BELO”) for Later Manifested

Physical Conditions (“LMPC”) on January 19, 2020. See ECF No. 1. Plaintiff alleges that he
suffered injuries as a result of exposure (through inhalation, airborne and direct contact) to oil,
dispersants, and other harmful chemicals. Id. ¶ 24. Plaintiff contends the exposure led to his
Prostatic Adenocarcinoma, and seeks damages for pain and suffering, mental anguish, medical
expenses, lost earnings, loss of earning capacity, other economic loss, loss of enjoyment of life
and fear of future medical issues. Id. ¶¶ 26; 32. Plaintiff claims to have satisfied all pre-suit
conditions precedent required by the MSA. Id. ¶¶ 27–29.
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Plaintiff intends to offer expert testimony of Dr. Perlin and Dr. Paris, whom he contends
are experts in oil particle modeling, oil fate and transport, and the dispersion of biotic and abiotic
matter in marine ecosystems, to explain how and when hazardous toxicants were at the sites where
Plaintiff worked. ECF No. 40-1, at 2. Defendants issued a subpoena duces tecum to Dr. Perlin
and Dr. Paris, which Plaintiff contends “goes overboard.” Id. at 5; ECF No. 40-2. Plaintiff argues
that only the inputs and outputs of the computer model should be produced, not the “source code,”
and both the source code and the Connectivity Modeling System (“CMS”) modeling program
developed by Dr. Perlin, Dr. Paris and other University of Miami colleagues and sought through
the subpoena are proprietary trade secrets that do not need to be disclosed in this action. ECF No.
40-1, at 6–8.
Defendants oppose the motion, arguing that the discovery sought is necessary for them to
understand the experts’ methodology of their model, which results are “astonishingly” different
results from the actual water samples collected. ECF No. 41, at 2. Without this information,
Defendants argue, they would be unable to effectively conduct a true Daubert inquiry. Id. at 2, 6–
8. Additionally, Defendants contend that Plaintiff has not established “good cause” as required by
either Rule 26 or Rule 45. BP contends that it has offered to enter into a protective order regarding
the information and that Plaintiff has failed to establish that the information sought constitutes a
trade secret or confidential research. Id. at 4–5. Additionally, Plaintiff lacks standing to quash the
subpoenas duces tecum. Id. at 8–9.
II.

APPLICABLE LAW
A. The Scope of Discovery
Under Rule 26, “[p]arties 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, considering the

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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. Information within this scope of discovery need not be admissible in evidence to be
discoverable.” Fed. R. Civ. P. 26(b)(1). Rule 26(b)(2)(C)(iii) directs the Court to limit the
frequency or extent of discovery otherwise allowed, if it determines: (1) the discovery sought is
unreasonably cumulative or duplicative, or can be obtained from some other source that is more
convenient, less burdensome, or less expensive; (2) the party seeking discovery had ample
opportunity to obtain the information; or (3) the proposed discovery is outside the scope of Rule
26(b)(1).
The threshold for relevance at the discovery stage is lower than the threshold for relevance
of admissibility of evidence at the trial stage.1 This broader scope is necessary given the nature of
litigation, where determinations of relevance for discovery purposes are made well in advance of
trial.2 Facts that are not considered in determining the ultimate issues may be eliminated in due
course of the proceeding.3 At the discovery stage, relevance includes “[a]ny matter that bears on,
or that reasonably could lead to other matter that could bear on, any issue that is or may be in the
case.”4 Discovery should be allowed unless the party opposing discovery establishes that the
information sought “can have no possible bearing on the claim or defense of the party seeking
discovery.”5 If relevance is in doubt, the court should be permissive in allowing discovery.6

1

Rangel v. Gonzalez Mascorro, 274 F.R.D. 585, 590 (S.D. Tex. 2011) (citations omitted).
Id. n.5 (citation and quotations omitted).
3
Id.
4
Id. at 590 (citations omitted).
5
Dotson v. Edmonson, No. CV 16-15371, 2017 WL 11535244, at *3 (E.D. La. Nov. 21, 2017) (citing Merrill v. Waffle
House, Inc., 227 F.R.D. 467, 470 (N.D. Tex. 2005)).
6
E.E.O.C. v. Simply Storage Mgmt., L.L.C., 270 F.R.D. 430, 433 (S.D. Ind. 2010) (quoting Truswal Sys. Corp. v.
Hydro–Air Eng’g, Inc., 813 F.2d 1207, 1212 (Fed. Cir. 1987) (internal quotations omitted)).
2

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B. Motion to Quash and Standing
Discovery may be obtained from non-parties pursuant to Rule 45 of the Federal Rules of
Civil Procedure. Although governed in the first instance by Rule 45, non-party subpoenas are also
subject to the parameters of Rule 26.7 “Both Rules 45 and 26 authorize the court to modify a
subpoena duces tecum when its scope exceeds the boundaries of permissible discovery or
otherwise violates the parameters of Rule 45.”8
The person filing the motion to quash has the burden of proof to demonstrate that
compliance would impose undue burden or expense.9 To determine whether the subpoena presents
an undue burden, the Fifth Circuit considers the following factors: (1) relevance of the information
requested; (2) the need of the party for the documents; (3) the breadth of the document request;
(4) the time period covered by the request; (5) the particularity with which the party describes the
requested documents; and (6) the burden imposed.10

“Whether a burdensome subpoena is

reasonable ‘must be determined according to the facts of the case,’ such as the party's need for the
documents and the nature and importance of the litigation.”11
A party, however, may not seek to quash a subpoena directed to a third party when the
party is not in possession of the materials subpoenaed and does not allege any personal right or
privilege with respect to the materials subpoenaed because the party lacks standing.12 A party who

7

In re Application of Time, Inc., No. 99-2916, 1999 WL 804090, at *7 (E.D. La. Oct. 6, 1999) (citations omitted),
aff'd, 209 F.3d 719 (5th Cir. 2000).
8
Hahn v. Hunt, No. 15-2867, 2016 WL 1587405, at *2 (E.D. La. Apr. 20, 2016) (citing Fed. R. Civ. P. 45(d)(3);
26(c)(1)(D)).
9
See Wiwa v. Royal Dutch Petroleum Co., 392 F.3d 812, 818 (5th Cir. 2004) (citations omitted); McLeod, Alexander,
Powel & Apffel, P.C. v. Quarles, 894 F.2d 1482, 1485 (5th Cir. 1990) (citation omitted) (finding party resisting
discovery must show why each discovery request is not relevant or otherwise objectionable).
10
Wiwa, 392 F.3d at 818 (internal citations omitted).
11
Id. (citation omitted).
12
Brown v. Braddick, 595 F.2d 961, 967 (5th Cir. 1979) (ruling movants lacked standing because they were not in
possession of the materials subpoenaed and had no personal right or privilege in the materials subpoenaed); Black v.
DMNO, LLC, No. 16-02708, 2018 WL 488991, at *2 (E.D. La. Jan. 19, 2018) (“[I]n order to challenge the subpoena,
the movant must be: in possession or control of the requested material; be the person to whom the subpoena is issued;

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lacks standing under Rule 45 does have standing to seek relief under Rule 26(c).13
C. Protective Order
Under Rule 26, a “court may, for good cause, issue an order to protect a party or person
from annoyance, embarrassment, oppression, or undue burden or expense.” Fed. R. Civ. P.
26(c)(1). “Good cause” exists when disclosure will result in a clearly defined and serious injury
to the party seeking the protective order.14 In determining good cause, the court must balance the
risk of injury without the protective order and the requesting party's need for information.15 The
party seeking the protective order bears the burden of showing that a protective order is necessary,
“which contemplates a particular and specific demonstration of fact as distinguished from
stereotyped and conclusory statements.”16
Rule 26 offers a variety of potential options that the court may use to protect the moving
party, including forbidding or limiting the scope of discovery into certain matters or requiring that
a trade secret or other confidential commercial information not be revealed or be revealed in only

or have a personal right or privilege in the subject matter of the subpoena.”) (citation omitted); Bounds v. Cap. Area
Fam. Violence Intervention Ctr., Inc., 314 F.R.D. 214, 218 (M.D. La. 2016) (“Parties have limited standing to quash
subpoenas served on non-parties pursuant to Rule 45.”) (citation omitted); see also Weatherly v. State Farm Fire &
Cas. Ins. Co., No. 07-4371, 2009 WL 1507353, at *2 (E.D. La. May 28, 2009) (holding that defendant did not have
standing to challenge the subpoena where it had no privilege over the documents); Guzman v. Latin Am. Ent., LLC,
No. 6:13-CV-41, 2014 WL 12599345, at *1 (S.D. Tex. July 2, 2014) (Costa, J.) (citing U.S. Bank Nat. Ass'n v. James,
264 F.R.D. 17, 18–19 (D. Maine 2010) (“The general rule is that a party has no standing to quash a subpoena served
upon a third party, except as to claims of privilege relating to the documents being sought.”)); Frazier v. RadioShack
Corp., No. 10-855, 2012 WL 832285, at *1 (M.D. La. Mar. 12, 2012) (“As an initial matter, it should be noted that a
plaintiff cannot challenge a Rule 45 subpoena directed to a third party on the basis that it violates another person's
privacy rights . . . that the subpoena is overly broad, or that the subpoena seeks information that is irrelevant because
only the responding third party can object and seek to quash a Rule 45 subpoena on those grounds.”).
13
Bounds, 314 F.R.D. at 218 (“Nevertheless, a party has standing to move for a protective order pursuant to Rule
26(c) seeking to limit the scope of discovery, even if the party does not have standing pursuant to Rule 45(d) to bring
a motion to quash a third-party subpoena.”) (citing Singletary v. Sterling Transp. Co., 289 F.R.D. 237, 240 n.2 (E.D.
Va. 2012); Auto–Owners Ins. Co. v. Se. Floating Docks, Inc., 231 F.R.D. 426, 429 (M.D. Fla. 2005); Washington v.
Thurgood Marshall Acad., 230 F.R.D. 18, 22 (D.D.C. 2005)).
14
Pansy v. Borough of Stroudsburg, 23 F.3d 772, 786 (3d Cir. 1994).
15
Blanchard & Co., Inc. v. Barrick Gold Corp., No. 02-3721, 2004 WL 737485, at *5 (E.D. La. Apr. 5, 2004).
16
E.E.O.C. v. BDO USA, L.L.P., 876 F.3d 690, 698 (5th Cir. 2017) (citing In re Terra Int’l, 134 F.3d 302, 306 (5th
Cir. 1998) (quoting United States v. Garrett, 571 F.2d 1323, 1326 n.3 (5th Cir. 1978))).

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a certain way. Fed. R. Civ. P. 26(c)(1)(D), (G). A district court may exercise its sound discretion
in determining how far to restrict discovery; and, in particular, the decision whether to grant or
deny a request for a protective order is entrusted to the district court’s sound discretion.17 The trial
court enjoys wide discretion in setting the parameters of a protective order.18
III.

ANALYSIS
The information sought by Defendants’ subpoenas duces tecum is relevant and necessary

for a proper Daubert analysis. The cases cited by Plaintiff in support of his standing argument are
inapposite. See ECF No. 40-1, at 10–11. Unlike Valdez v. Mears Group Inc., No. 18-01306, 2019
WL 6829471, at *3 (W.D. La. Dec. 12, 2019), the “source code” and modeling information sought
does not reflect information in which Plaintiff has a personal right or privilege, such as personal
medical information. Likewise, that information was neither sent by nor for Plaintiff, as in
Marquette Transportation Co. Gulf-Island, LLC v. M/V Chembulk Westport, No. 13-6216, 2016
WL 659083, at *3 (E.D. La. Feb. 18, 2016). Thus, Plaintiff lacks standing to urge the motion to
quash either on behalf of the two experts or the University of Miami, as Chief Magistrate Judge
North and Magistrate Judge van Meeerveld recently recognized in similar cases.19
Assuming that the information sought would qualify as a trade secret or confidential
research despite Plaintiff’s failure to make the particularized showing required, the entry of a
protective order would adequately protect the experts and their information or research. The
parties and Plaintiff’s experts shall meet in good faith to negotiate a protective order that limits the
use and disclosure of trade secrets and proprietary information. They shall present their agreed

17

Nguyen v. Excel Corp., 197 F.3d 200, 209 n.27 (5th Cir. 1999) (citation omitted).
See Seattle Times Co. v. Rhinehart, 467 U.S. 20, 36 (1984) (“To be sure, Rule 26(c) confers broad discretion on the
trial court to decide when a protective order is appropriate and what degree of protection is required.”).
19
See Johnson v. BP Expl. & Prod., Inc., No. 20-1329 (E.D. La. Aug. 25, 2021); Osmer v. BP Expl. & Prod., Inc.,
No. 19-10331 (E.D. La. Sept. 2, 2021).
18

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document via Joint Motion for Entry of Protective Order. If the parties are unable to agree on a
Protective Order, they may contact Chambers to request a status conference.
IV.

CONCLUSION
Plaintiff seeks to quash Defendants’ subpoenas duces tecum issued to Plaintiff’s two

experts. The information sought is relevant under Daubert, and Plaintiff lacks standing to quash
the subpoenas duces tecum. Plaintiff’s conclusory assertions of confidential research and trade
secrets do not satisfy its burden to provide a “particular and specific demonstration of fact” to
justify the conclusion that the information must be protected as trade secret or confidential
research. Even if Plaintiff had, however, a protective order adequately addresses those concerns.
Accordingly, for the foregoing reasons,
IT IS ORDERED that Plaintiff’s Motion to Quash (ECF No. 40) be DENIED.
New Orleans, Louisiana, this 7th day of September, 2021.

___________________________________
DONNA PHILLIPS CURRAULT
UNITED STATES MAGISTRATE JUDGE

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