OCCIDENTAL CHEMICAL CORPORATION v. 21ST CENTURY FOX AMERICA, INC. et al

Filing 2188

SPECIAL MASTER DECISION Denying in Part and Granting in Part Small Parties Group Defendants' Motion for Reconsideration and Clarification of the 6/10 Special Master Decision Denying the Motion for Protective Order and Granting the Motion to Compel. Signed by Special Master Thomas P. Scrivo on 10/7/2022. (dam)

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UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF NEW JERSEY
Civil Action No. 18-11273(MCA)(LDW)
OCCIDENTAL CHEMICAL
CORPORATION,

DECISION OF SPECIAL MASTER
DENYING IN PART AND GRANTING
IN PART SMALL PARTIES GROUP
DEFENDANTS’ MOTION FOR
RECONSIDERATION AND
CLARIFICATION OF THE SPECIAL
MASTER’S JUNE 10 DECISION
DENYING THE MOTION FOR A
PROTECTIVE ORDER AND
GRANTING THE MOTION TO
COMPEL

Plaintiff,
v.
21ST CENTURY FOX AMERICA, INC., et
al.,
Defendants.

INTRODUCTION
This matter comes by way of motion (the “Motion”) by Small Parties Group Defendants
(“SPG Defendants”) (ECF No. 2091), seeking reconsideration and clarification of the June 10
Decision denying SPG Defendants’ Motion for a Protective Order and Granting Occidental
Chemical Corporation’s (“OxyChem”) Cross-Motion to Compel (the “RFP Decision”).
SPG Defendants filed a motion for a protective order on January 29, 2022 (ECF No. 1959),
contending that numbers 1, 2, 4, and 6 of OxyChem’s Second Request for Production of
Documents (“RFP”) sought privileged materials. The Special Master denied SPG Defendants’
motion for a protective order because SPG Defendants failed to establish that all responsive
documents were privileged and no other good cause for a protective order existed.
SPG Defendants seek reconsideration of the RFP Decision on the grounds that it
contradicts a prior order excusing all parties from searching for, producing, and logging documents
requested by OxyChem, and because it violates the Alternative Dispute Resolution Act (“ADR
Act”). In the alternative, SPG Defendants seek clarification of the RFP Decision on two points:
(1) whether SPG Defendants are required to produce documents distributed to the Cooperating
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Parties Group (“CPG”) in response to RFP No. 1; and (2) the definition of the terms “agreement”
and “applicable law.”
OxyChem filed opposition (ECF No. 2109) arguing that the RFP Decision mandates that
SPG Defendants comply with the most basic requirements of the Federal Rules of Civil Procedure
governing document discovery, and SPG Defendants have not met the standard for
reconsideration.
For the reasons set forth herein, the Motion is DENIED IN PART (reconsideration) and
GRANTED IN PART (clarification).
I.

STATEMENT OF PERTINENT FACTS AND PROCEDURAL HISTORY
On September 9, 2021, OxyChem served seventy-one SPG Defendants with a series of

supplemental requests for production (“RFPs”), including four categories of documents:
•

RFP No. 1. All Documents regarding the Fourth Amendment to the
ARAO [sic], including Communications between You and any Person
regarding the Fourth Amendment to the ARAO.

•

RFP No. 2. All Communications with FTI regarding the Diamond Alkali
Superfund Site, including Communications regarding the RM10.9
Recommendation.

•

RFP No. 4. If You participated in the Batson Process, all Documents
regarding Your Decision to participate in the Batson Process.

•

RFP No. 6. All Documents in the possession, custody, or control of You
or the CPG regarding the decision to terminate or cease the 2015 Allocation
Process. This Request includes Communications with any Person regarding
the decision to terminate or cease the 2015 Allocation Process.

On October 15, 2021, SPG Defendants objected to the RFPs, arguing that they: (1) are
neither relevant nor proportional to the needs of the case; (2) unduly burdensome; (3) seek
information in the possession of the CPG, not SPG Defendants; (4) related to Electronically Stored
Information (“ESI”) discovery on new topics; and (5) call for the production of privileged and

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confidential information under the Amended and Restated Organization Agreement, the CPG Joint
Defense Agreement, or are confidential communications between SPG Defendants and
government entities.
On October 22, 2021, OxyChem sent a letter to SPG Defendants requesting to meet and
confer on the RFPs and objections. The October 22 Letter noted that if SPG Defendants did not
withdraw the objections, OxyChem would move to compel.
On November 8, 2021, SPG Defendants submitted a letter in response to the October 22
Letter, proposing a meet-and-confer in November 2021.
On November 16, 2021, the parties held a meet-and-confer where OxyChem agreed to
narrow the scope of some of the RFPs.
By letter dated January 14, 2022, OxyChem notified SPG Defendants that it had revised
the RFPs, including limiting the scope of RFP No. 1, to documents generated on or before May
29, 2012. OxyChem also agreed to revise RFP No. 2 by requesting documents concerning only the
RM 10.9 Recommendation.
On January 29, 2022, SPG Defendants filed a Motion for Protective Order regarding
OxyChem’s RFPs, contending RFP Nos. 1, 2, 4 and 6 requested privileged materials and were
unduly burdensome. On February 2, 2022, OxyChem filed opposition to the Motion for Protective
Order and cross-moved to compel production of documents responsive to the RFPs (the “CrossMotion”). On February 15, 2022, SPG Defendants filed a reply in further support of the Motion
for Protective Order and in opposition to the Cross-Motion.
On June 10, 2022, the Special Master issued the RFP Decision. SPG Defendants filed this
Motion on June 27, 2022.

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II.

LEGAL STANDARD
A party moving for reconsideration must “set[ ] forth concisely the matter or controlling

decisions which the party believes the Judge or Magistrate Judge has overlooked[.]” L. CIV. R.
7.1(i). “The only proper ground for granting a motion for reconsideration, therefore, is that the
matters or decisions overlooked, if considered by the court, ‘might reasonably have altered the
result reached. . .'” G-69 v. Degnan, 748 F. Supp. 274, 275 (D.N.J. 1990) (citation omitted).
To prevail on a motion for reconsideration, the moving party must show at least one of the
following grounds: “(1) an intervening change in the controlling law; (2) the availability of new
evidence that was not available when the court [made its initial decision]; or (3) the need to correct
a clear error of law or fact or to prevent manifest injustice.” Cole v. Guardian Life Ins. Co. of Am.,
594 F. App'x 752, 756 (3d Cir. 2014). “Motions for clarification and reconsideration are often
evaluated under the same standard.” Garcia v. Corr. Med. Serv., 2018 WL 1317867, *1 (D.N.J.
March 14, 2018.
III.

ANALYSIS
SPG Defendants do not present any intervening change in controlling law or new evidence

for consideration. The crux of SPG Defendants’ argument relates to an alleged error in the
application of the standard for a protective order and the ESI Protocol agreed to between the parties
excusing all parties in the litigation from searching for, producing, and logging certain documents,
and purported violations of the ADR Act.
a) Whether the Special Master Needs to Correct a Clear Error of Law
SPG Defendants argue that the Special Master did not consider the correct standard for a
protective order. According to SPG Defendants, the Special Master held SPG Defendants to a
“double” good-cause standard by requiring SPG Defendants to establish: (1) the applicable

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privilege; and (2) an additional reason for good cause, such as a privacy interest, undue burden, or
embarrassment. In opposition, OxyChem argues that the Special Master considered both grounds
for a protective order separately, rather than as a “double” burden. OxyChem also points out that
SPG Defendants must actually prove the applicability of privilege and not merely state it.
The Special Master found in the RFP Decision that SPG Defendants failed to argue that
the information was being requested for an improper purpose. SPG Defendants also did not state
any potential risk of embarrassment or concern for public health and safety to warrant a protective
order. Instead, SPG Defendants requested that the Special Master find that a protective order was
warranted because certain documents were categorically privileged.
As noted in the RFP Decision, “[t]he Federal Rules of Civil Procedure are clear. The
burden is on the moving party to demonstrate that a privilege attaches to warrant the entry of a
protective order. Rockwell Int’l, 897 F.2d at 1265; In re Human Tissue Prod. Liab. Litig., 255
F.R.D. at 163. SPG Defendants did not do so here.” RFP Decision at 19. Simply put, SPG
Defendants did not satisfy this burden. Nothing was presented to the Special Master other than
briefing. SPG Defendants presented neither a privilege log nor exemplars to consider. Given that
SPG Defendants failed to provide sufficient detail to support a claim of privilege or confidentiality
and withheld general categories of documents, the Special Master was unable to find whether
specific documents were privileged.
Accordingly, the Special Master considered whether SPG Defendants properly established
the privilege, and when a privilege was not found, the Special Master considered the factors of
good cause. At no point did the Special Master state that SPG Defendants would need to prove
the privilege asserted and then meet a separate burden associated with good cause. SPG
Defendants’ argument amounts to disagreement with the Special Master’s ruling. The proper

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standard of review was applied by the Special Master. On this basis, the RFP Decision will not be
disturbed.
b) Whether the ESI Protocol Conflicts with the Decision.
SPG Defendants argue that the ESI Protocol dictates that all responsive materials to RFP
Nos. 1, 2 and 6 are privileged and exempt from search, production, and privilege logging
requirements. SPG Defendants suggest that the responsive materials would include custodial files
of counsel of record, outside attorneys and/or in-house attorneys regarding this litigation or the
Diamond Alkali Superfund Site. SPG Defendants suggest that the responsive materials outside of
these categories would remain protected under the ESI Protocol as joint defense communications.
OxyChem argues that SPG Defendants regurgitate arguments previously made and
rejected. OxyChem further argues that SPG Defendants misread the ESI Protocol to include a
provision categorically deeming certain documents as privileged even though the ESI Protocol
only exempts joint defense communications from privilege log requirements. OxyChem contends
that the joint defense does not apply because: (1) OxyChem was part of the CPG through May 29,
2012; and (2) CPG members have sued each other, which destroys the joint defense privilege.
The purpose of the ESI Protocol, as SPG Defendants correctly assert, is to avoid wasting
time and resources in the production of documents that are obviously privileged. The ESI Protocol
provides: “[n]o party is required to search, produce, or include in its privilege logs:. . . joint defense
communications pursuant to a joint defense agreement, provided that the date of the joint defense
agreement and the parties to it are disclosed.” ESI Protocol at 11. As explained in the RFP
Decision, there is no dispute that communications related to the CPG were subject to a joint
defense agreement. The core issue is that OxyChem was a party to the CPG through May 29, 2012.
In accordance with Katz v. AT&T Corp., 191 F.R.D. 433, 437 (E.D. Pa. 2000), a party is required

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to demonstrate an attorney-client privilege to substantiate a claim of joint-client privilege. If there
is no underlying attorney-client privilege, the document is not privileged. Considering OxyChem
was a party to the CPG until May 29, 2012, there is no attorney-client privilege during that period,
and thus, SPG Defendants must produce responsive documents prior to May 29, 2012. There is no
new evidence or change in the law cited by SPG Defendants that requires reconsideration of the
RFP Decision.
The ESI Protocol does not overrule laws of privilege. The RFP Decision addressed these
arguments and will not be reconsidered on this basis.
c) Whether the Decision Conflicts with the ADR Act.
The ADR Act prohibits a party to an administrative dispute resolution proceeding from
disclosing communications as follows:
(b) A party to a dispute resolution proceeding shall not voluntarily disclose or
through discovery or compulsory process be required to disclose any dispute
resolution communications, unless—
(1) the communication was prepared by the party seeking disclosure;
(2) all parties to the dispute resolution proceeding consent in writing;
(3) the dispute resolution communication has already been made public;
(4) the dispute resolution communication is required by statute to be made
public;
(5) the dispute resolution that such testimony or disclosure is necessary to—
(A) precent a manifest injustice
(B) help establish a violation of law; or
(C) prevent harm to the public health and safety, of sufficient magnitude
in the particular case to outweigh the integrity of dispute resolution
proceedings in general by reducing the confidence of parties in
future cases that their communications will remain confidential;

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(6) the dispute resolution communication is relevant to determining the
existence or meaning of an agreement or award that resulted from
the dispute resolution proceeding or to the enforcement of such an
agreement or award; or
(7) except for dispute resolution communications generated by
the neutral, the dispute resolution communication was provided to or
was available to all parties to the dispute resolution proceeding.
[5 U.S.C. 574(b)]
A “dispute resolution communication” is “any oral or written communication prepared for
the purposes of a dispute resolution proceeding, including any memoranda, notes or work product
of the neutral, parties or a nonparty participant.” 5 U.S.C. 571(5).

A “dispute resolution

proceeding” is “any process in which an alternative means of dispute resolution is used to resolve
an issue in controversy in which a neutral is appointed and specified parties participate.” 5 U.S.C.
571(6).
According to SPG Defendants, RFP No. 4 seeks documents that are privileged under the
ADR Act. By way of background, the Batson allocation is an EPA-sponsored allocation by a
neutral third-party mediator completed in the context of regulatory settlement proceedings. SPG
Defendants argue that all related documents and communications of the parties who participated
in it fall within the ADR Act’s confidentiality protection, and therefore, fall outside permissible
discovery. SPG Defendants rehash the same arguments made in the original Motion for Protective
Order and present no new evidence or law that was overlooked by the Special Master.
OxyChem argues that RFP No. 4 is not seeking dispute resolution communications, but
rather, discovery on why SPG Defendants did (or did not) decide to participate in the Batson
allocation.

OxyChem states that SPG Defendants are conflating the “dispute resolution

communications” covered by the ADR Act (which are not sought by RFP No. 4) with documents

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regarding a party’s decision to participate in the Batson allocation, which are not covered by the
ADR Act.
The parties disagree on the discovery being sought by OxyChem. This issue should have
been resolved in a meet-and-confer. OxyChem seeks information about the decision by any of
SPG Defendants to participate in the Batson allocation. OxyChem does not seek dispute resolution
communications made during or in connection with the Batson allocation proceedings. This
information does not fall within the definition of “dispute resolution communications,” and the
Special Master has previously ordered OxyChem to produce similar documents regarding its
decision to not participate. Therefore, reconsideration of the RFP Decision regarding RFP No. 4
is denied.
To the extent SPG Defendants believe that the information sought in RFP No. 4 is within
the definition of dispute resolution communications, SPG Defendants are free to object on the
basis of any applicable privilege. If SPG Defendants object, it will be incumbent on SPG
Defendants to satisfy the burden of demonstrating privilege, which the Special Master may review.
d) Clarifications of the Decision
As an alternative to reconsideration, SPG Defendants seek clarification of the RFP
Decision. Specifically, SPG Defendants state that “the RFP Decision notes that OxyChem agreed
to “limit[] the scope of RFP No. 1 to documents generated on or before May 29, 2012” but then
state “the Special Master confirmed that SPG has no obligation to produce to OxyChem materials
that OxyChem already has in its possession.” SPG Defendants contend that OxyChem has already
received all responsive documentation for RFP No. 1. If OxyChem already has in its possession
the documents it seeks from SPG Defendants, then SPG Defendants should not have the burden to
reproduce such materials. SPG Defendants should not assume OxyChem has everything provided

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to CPG while it was a member. The parties should meet and confer to clarify what OxyChem has
and does not have.
SPG Defendants also seek clarification of the definition of “agreement” in the RFP
Decision as used on pages 12 and 13 in reference to RFP No. 2. On September 11, 2019, OxyChem
and SPG Defendants submitted a joint report to the Special Master on the status of the parties’
efforts to resolve outstanding discovery issues (“September 2019 Joint Report”). The parties
reported on the production of documents responsive to subpoenas served on The Intelligence
Group and FTI. The parties agreed to produce documents in FTI’s possession and withhold
documents on the basis of the attorney-client privilege or work product protection. By way of
clarification, the Special Master was referring to the agreement between the parties as reported in
the September 2019 Joint Report. RFP Decision at 11 - 13. SPG Defendants attempt to parse the
difference between documents in FTI’s possession and communications from SPG Defendants to
FTI. This argument is unavailing as there is no difference between the two. When SPG Defendants
communicate with FTI, those communications become documents within FTI’s possession and
are subject to the September 2019 Joint Report. Documents outside of the September 2019 Joint
Report are governed by the ESI Protocol.
Furthermore, SPG Defendants requested clarification regarding the definition of
“applicable law” referenced on page 13 of the RFP Decision. The Special Master refers generally
to all precedent and the Federal Rules of Civil Procedure as it relates to withholding documents on
the grounds of privilege.

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IV.

CONCLUSION
Based on the foregoing reasons and cited authority, the Motion is DENIED IN PART

(reconsideration) and GRANTED IN PART (clarification).

October 7, 2022

/s/ Thomas P. Scrivo
THOMAS P. SCRIVO
Special Master

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