Cooper et al v. Meritor, Inc. et al

Filing 512

ORDER granting (485) Motion to Compel in case 4:16-cv-00052-DMB-JMV; granting (408) Motion to Compel in case 4:16-cv-00053-DMB-JMV; granting (410) Motion to Compel in case 4:16-cv-00054-DMB-JMV; granting (410) Motion to Compel in case 4:16-cv-000 55-DMB-JMV; granting (408) Motion to Compel in case 4:16-cv-00056-DMB-JMV. The motion is GRANTED in so far as concerns production of the subject materials and taken under consideration as relates to an award of fees and expenses. Signed by Magistrate Judge Jane M. Virden on 3/8/18. Associated Cases: 4:16-cv-00052-DMB-JMV, 4:16-cv-00053-DMB-JMV, 4:16-cv-00054-DMB-JMV, 4:16-cv-00055-DMB-JMV, 4:16-cv-00056-DMB-JMV (bfg)

IN THE UNITED STATES DISTRICT COURT
FOR THE NORTHERN DISTRICT OF MISSISSIPPI
GREENVILLE DIVISION

BRENDA J. COOPER, ET AL.

PLAINTIFFS

VS.

CIVIL ACTION NO. 4:16-CV-52-DMB-JMV

MERITOR, INC., ET AL.

DEFENDANTS
Consolidated With

JOE E. SLEDGE, ET AL.
VS.

PLAINTIFFS
CIVIL ACTION NO. 4:16-CV-53-DMB-JMV

MERITOR, INC., ET AL.

DEFENDANTS
AND

KATHERINE LONGSTREET COOKE, ET AL.
VS.

PLAINTIFFS

CIVIL ACTION NO. 4:16-CV-54-DMB-JMV

MERITOR, INC., ET AL.

DEFENDANTS
AND

SRA INVESTMENTS, LLC, ET AL.
VS.

PLAINTIFFS
CIVIL ACTION NO. 4:16-CV-55-DMB-JMV

MERITOR, INC., ET AL.

DEFENDANTS
AND

FELICIA WILLIS, ET AL.
VS.

PLAINTIFFS
CIVIL ACTION NO. 4:16-CV-56-DMB-JMV

MERITOR, INC., ET AL.

DEFENDANTS

1

ORDER

This matter is before the court on the plaintiffs’ Second Motion to Compel Meritor to
produce certain T&M documents withheld on the basis of alleged privileges/protections.1 Doc.
#485. For the reasons discussed below, the motion is GRANTED in so far as concerns production
of the subject materials and taken under consideration as relates to an award of fees and expenses.
I.

The Peeples Designation

Because Meritor’s designation of Jim Peeples, an employee of T&M,2 on its extended
deadline for doing so, August 18, 2017, lies at the heart of the instant dispute over the privileges
and protections, if any, to be afforded the T&M documents at issue here, that designation is set
forth here, in full:
B. EXPERTS NOT SPECIFICALLY RETAINED PURSUANT TO RULE
26(a)(2)(C) AND RETAINED PURSUANT TO RULE 26(a)(2)(B)
Defendants identify the following expert, pursuant to Rule 26(a)(2)(C) and
26(a)(2)(B), in each of the above-styled cases:
James Peeples, PE
Vice President, Senior Technical Environmental Engineer T&M Associates, Inc.
4675 Lakehurst Court, Suite 250
Columbus, Ohio 43016
Exhibit F contains a copy of Mr. Peeples’ Curriculum Vitae and list of reports,
including all opinions, analysis, sources and references contained therein, which
have previously been submitted to the United States Environmental Protection
Agency and/or the Mississippi Department of Environmental Quality and
previously produced to all parties, upon which Mr. Peeples will rely and testify.
The materials reflect the subject matter on which Mr. Peeples will testify. All of the
opinions Mr. Peeples may testify to will be expressed to a reasonable degree of
scientific, technical, and/or engineering certainty. Mr. Peeples’ hourly rate for
expert testimony is $300.

1

As discussed infra., p. 3, the original motion to compel [doc.#466] concerned, generally, the same categories of
documents and the same arguments of counsel. The court’s order on the prior motion appears in case 4:16-cv-52DMB-JMV at Doc. #484.
2
T &M is one of Meritor’s environmental contractors.

2

Exhibit F to the designation of Jim Peeples is as follows:
EXHIBIT F3
1. Corrective Measures Pre-Design Investigation Results, Feb. 21, 2008 (MTOREPA0010647 –10835)
2. Annual Monitoring Report, Calendar Year 2011, Grenada Manufacturing, LLC
(GRENADA 049780 –050389)
3. 2012 Annual Monitoring Report, Grenada Manufacturing, LLC (GRENADA
007684 – f008906)
4. Annual Monitoring Report, Calendar Year 2013, Grenada Manufacturing, LLC
(GRENADA 053281 – 054003)
5. Annual Monitoring Report, Calendar Year 2014, Grenada Manufacturing, LLC
(GRENADA 054004 –055174)
6. Moose Lodge Road Area Additional Investigation Report, Comprehensive
Study Area Groundwater Evaluation (MTOR-00-0000003 – 0002565)
7. April 29, 2016, Trudy Fisher, Butler Snow Letter to Mississippi Department of
Environmental Quality (MTOR-02-0002593 – 0002603)
8. 2016 Data Gap Work Summary (MTOR-02-0002579 – 0002592)
9. Annual Monitoring Report, Calendar Year 2015, Grenada Manufacturing, LLC
(TM024825)(MTOR-02-0018705 - 0019376)
10. 2016 Annual Monitoring Report, Grenada Manufacturing, LLC Facility
(MTOR-020019377 – 0020392)
11. AOC A Investigation Report, Grenada Manufacturing, LLC Facility (MTOR02-0005439 – 0005943)
12. Kirk and PCA Properties Investigation Report (MTOR-02-0009153 – 0010915)
13. Groundwater Monitoring Report, 2nd Quarter 2017, Moose Lodge Road Area
(MTOR02-0016919 – 0017202)
14. T&M Environmental Quality Information System (EQuIS) database
(DATABASE)
15. Sodium Concentrations Data – Deep Zone, figure (MTOR-02-0016917)
16. Sodium Concentrations Data – Shallow Zone, figure (MTOR-02-0016918)
17. Potassium Concentrations Data – Deep Zone, figure (MTOR-02-0016914)
18. Potassium Concentrations Data – Shallow Zone, figure (MTOR-02-0016915)
Doc. #465-1 at 7.

3
The court notes that over 4 months after Peeples designation was due and made, and only after Plaintiff’s first motion
to compel T &M documents became an issue, Meritor emailed plaintiffs’ counsel informing them that it was
designating Peeples as a retained/reporting expert only on certain portions of the 6,000 plus pages of material identified
in Exhibit F. In that email, they also told plaintiffs’ counsel that Peeples was designated only as a non-reporting/nonretained expert, on the balance. However, as designated by Meritor, Peeples remains a purported retained/reporting
and non-retained/non-reporting expert on all of the matters in Exhibit F.

3

II.

The T&M Documents at Issue Here

The parties appear to agree that the documents at issue here, despite their volume4, all fall
within one of just three categories—which correspond with the Exhibits 1 through 3 to Meritor’s
opposition. Doc. #494.
Moreover, the parties’ arguments concerning the protections, if any, that should or should
not be afforded each of the three categories of documents are relatively simple, and, for the most
part, the parties’ arguments are a re-hash of those made previously in relation to the earlier motion
[466] to compel the production of clawback T& M documents.
The three categories of documents at issue5 and arguments for or against their compelled
production are as follows:
1) The Post-2014 Peeples Communications
The first category of documents—those identified on (241) two-hundred and forty-one
pages of privilege log labelled as Exhibit 1 to Meritor’s opposition—are post-2014,
communications between Jim Peeples, and others, to include Meritor counsel.
According to Meritor, it designated Peeples on August 18, 2017, only as a specifically
retained expert, as of January 2015, on the subject of “groundwater flow to the Eastern Heights
neighborhood, as well as the source of the alleged ground water contamination in the
neighborhood.” Doc. #494 at 4. Per Meritor, Peeples’ Rule 26 report, required of a specially

4

Exhibits 1 through 3 collectively comprise over three hundred pages of privilege log and include references to
approximately (1,000) one-thousand documents.
5
Plaintiffs originally appeared to argue that certain documents (those identified on Exhibits C and D to their 2nd
motion to compel are matters considered-even if ultimately rejected- by Peeples in formulating his purported
opinions to be offered a the trial of this matter, and as a consequence, are not protected, regardless of whether
Peeples is deemed a reporter or non-reporter or both. Apparently, those documents are no longer in dispute except
to the extent they appear on Exhibits 1-3 to Meritor’s opposition.

4

retained expert, consisted only of five reports, identified in Exhibit F to his designation. The reports
are labelled as follows:






Moose Lodge Road Area Additional Investigation Report, (Ex. 11)
Annual Monitoring Report, Calendar Year 2015, Grenada Manufacturing,
LLC Facility (Ex. 14)
2016 Annual Monitoring Report, Grenada Manufacturing, LLC Facility
(Ex. 15)
AOC A Investigation Report, Grenada Manufacturing, LLC Facility (Ex.
16)
Kirk and PCA Properties Investigation Report (Ex. 17)

Doc. #494 at 4.
Meritor argues that communications with Peeples as a specially retained expert, after
January 2015, are afforded work product protection pursuant to Fed. R. Civ. P. 26(b)(4)(C) which,
indeed, protects such communication except to the extent the communications concern facts or
data considered, or assumptions relied upon, by a specially retained expert in forming his opinions.
Fed. R. Civ. P. 26(b)(4)(C)(ii-iii). Meritor asserts that none of the documents identified on Exhibit
1 contain any facts or data that Peeples considered in relation to the subject matter of this case or
assumptions on which he based his opinions.
The plaintiffs argue that, contrary to Meritor’s current assertions, Meritor designated, or
purported to designate, Peeples as a non-reporting expert on all of the over six-thousand pages of
documents–plus forty-six additional megabytes of information—identified in Exhibit F to the
Peeples designation. Therefore, as a non-reporter, no work product protection is afforded his
communications with counsel under Fed. R. Civ. P. 26(b)(4)(C).
Moreover, notwithstanding Peeples’ designation as a non-reporter on all of the matters
listed in Exhibit F to the designation, and even though plaintiffs have yet to file their formal
challenge to Meritor’s asserted designation of Peeples as a specially retained, reporting expert,
plaintiffs have argued that, on its face, the purported designation of Peeples as a specially retained
5

expert fails for failure to provide the required report of such experts under Fed. R. Civ. P.
26(a)(2)(B). As such, Meritor is not entitled to the protections afforded by Fed. R. Civ. P.
26(b)(4)(C) to specially retained, reporting experts.
2) Peeples’ Communications/Work Concerning Vapor Intrusion at the Facility and
Performance of the Permeable Remedial Barrier (PRB).
Exhibit 2 pertains to communications with Peeples about performing vapor intrusion
studies in the Grenada facility and communications concerning the warranted performance of the
permeable remedial barrier (PRB) at or near the subject site.
According to Meritor, neither vapor intrusion nor performance of the PRB is a matter on
which Peeples was designated in this case to testify in any capacity. Instead, Meritor asserts that
Peeples performed work or had communications about these matters as a consultant in connection
with other litigation, and as such, these matters are protected under Fed. R. Civ. P. 26(b)(4)(D).
The plaintiffs, on the other hand, assert that both vapor intrusion and the PRB are issues
about which Peeples is purportedly designated to serve as a testifying expert concerning.
3) Peeples’ CSIA Sampling Work.
As it did in response to the original motion to compel production of T&M documents,
Meritor asserts that this sampling work has nothing to do with the areas on which Peeples is
designated to testify and was performed by Peeples as a mere consultant.
Plaintiffs assert that this issue was resolved by the court’s prior opinion that addressed
and ordered the production of the same or substantially similar CSIA documents.
III.

The Court’s Ruling on the Motion to Compel

1) The Post-2014 Peeples Communications.
Meritor premises the entirety of its argument about this category of documents on its
assertion that it designated Peeples on August 18, 2017, as a specifically retained expert only, as
6

of January 2015, on certain limited matters concerning groundwater. However, this assertion
misrepresents the designation.
Instead, as the court has previously held6, the Meritor designation purports to designate
Peeples as a non-reporter on all the matters listed on Exhibit F to the designation for all periods of
time covered by the materials appearing on Exhibit F. As previously noted, these matters span over
a decade and concern, in addition to ground water, air and soil contamination at the Grenada
facility and surrounding areas.
Even further, while it is accurate that the designation purports to also designate Peeples as
a specially retained reporting expert on all of the same subject matters, nothing even resembling a
report required pursuant to Fed. R. Civ. P. 26(a)(2)(B) is provided.
Accordingly, as the court has previously ruled, Meritor is not entitled to the protection
afforded specifically retained experts under Fed. R. Civ. P. 26(b)(4)(C).
2) The Vapor Intrusion and PRB Documents Identified in the Privilege Log, Exhibit 2 to
Meritor’s Opposition.
Contrary to Meritor’s representation that Peoples’ designation in this case has nothing
whatsoever to do with vapor intrusion studies at the Grenada facility or the performance of the
PRB, a review of the matters covered in the documents listed in Exhibit F to Peeples’ designation
demonstrates otherwise. By way of illustration only, Peeples is purportedly designated to testify

6

Doc. #484.

7

to the following concerning vapor intrusion at the subject facility:

Doc. #494-15.
And on the matter of the PRB, Peeples is purportedly designated to testify, for example,
as follows:

8

…

9

Doc. #494-14 at 3-4.
In light of Meritor’s purported designation of Peeples on the subject matter of the PRB
and vapor intrusion, Meritor’s claim of consulting only expert privilege to these documents is not
well taken, and they should be produced.
3) The Samples Taken By Peeples For CSIA Testing:
The documents identified in Exhibit 3 to Meritor’s opposition are Peeples’ notes and
communications reflecting work he did to obtain groundwater samples for isotope analysis (AKA
CSIA testing and/or “chemical fingerprinting”). These samples came from, in most, if not all cases,
the very same wells he retrieved groundwater samples from, and seeks to opine on the
10

contaminants of, in the instant case, as well as the origin of those contaminants. As was explained
in the court’s prior order, and as set forth in the Comment to Fed. R. Civ. R. 26:
Rules 26(b)(4)(B) and (C) do not impede discovery about the opinions to be offered
by the expert or the development, foundation, or basis of those opinions. For
example, the expert's testing of material involved in litigation, and notes of any
such testing, would not be exempted from discovery by this rule. Similarly, inquiry
about communications the expert had with anyone other than the party's counsel
about the opinions expressed is unaffected by the rule. Counsel are also free to
question expert witnesses about alternative analyses, testing methods, or
approaches to the issues on which they are testifying, whether or not the expert
considered them in forming the opinions expressed.
Fed. R. Civ. P. 26 (emphasis added). In short, the fact that Peeples made the decision to collect
ground water samples for CSIA testing but not to inform himself of the outcome of that testing is,
itself, a fact on which the opinions he is designated to testify about are premised.
Accordingly, the CSIA sampling information obtained by Peeples is properly subject to
disclosure.
IV.

The Time for Production

The documents addressed herein shall be produced on or before noon, Monday, March 12,
2018.
V.

The Court’s Ruling on an Award of Fees and Expenses

This matter is under advisement and will be ruled on in due course.

SO ORDERED this, March 8, 2018.
/s/Jane M. Virden
UNITED STATES MAGISTRATE JUDGE

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