RARITAN BAYKEEPER, INC. et al v. NL INDUSTRIES, INC. et al

Filing 334

MEMORANDUM OPINION filed. Signed by Judge Michael A. Shipp on 3/31/2015. (eaj)

NOT FOR PUBLICATION
UNITED STATES DISTRICT COURT
DISTRICT OF NEW JERSEY

RARITAN BAYKEEPER, INC., et al.,
Plaintiffs,

Civil Action No. 09-4117 (MAS) (DEA)

v.

MEMORANDUM OPINION
NL INDUSTRIES, INC., et al.,
Defendants.

SHIPP, District Judge
This matter comes before the Court on Plaintiffs Edison Wetlands Association, Inc. and
Raritan Baykeeper, Inc.' s ("Plaintiffs") appeal of a non-dispositive order issued by the Honorable
Douglas E. Arpert, U.S.M.J., denying Plaintiffs' motion to compel discovery and granting
Defendants NL Industries, Inc. and NL Environmental Management Services, Inc.'s (collectively,
"NL" or "Defendants") cross-motion for a protective order. (ECF No. 302.) NL opposed the appeal
(ECF No. 309), and Plaintiffs filed a reply (ECF No. 310). The Court has carefully considered the
parties' positions and decides the appeal without oral argument pursuant to Local Civil Rule 78.1.
For the reasons set forth below, the decision of the Magistrate Judge is affirmed.

I.

BACKGROUND
A.

Facts Alleged 1

This suit relates to a site formerly owned by Defendants consisting of approximately 440
acres ofland (the "Site") located in Sayreville, New Jersey. The Site is surrounded on three sides
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The facts alleged in this case have been detailed in prior opinions and need not be repeated at
length here. See, e.g., Raritan Baykeeper, Inc. v. NL Indus., Inc., No. 09-4117 (JAP), 2013 WL
103880 (D.N.J. Jan. 8, 2013) (Pisano, J.). Background facts in this section are derived from the
Amended Complaint unless otherwise indicated.

by the Raritan River. NL owned the Site from the early 1930's until 2005. From approximately
1935 to 1982, NL manufactured titanium dioxide pigments on the Site that were used in paints,
paper, cosmetics, and other products. In 1982, NL ceased operations at the Site. In 1988, the New
Jersey Department of Environmental Protection ("NJDEP") required NL to conduct an
environmental investigation of the Site, which revealed that river sediments adjacent to and
downstream from the Site were contaminated with arsenic, copper, lead, nickel, and zinc. The
NJDEP, in June 24, 2004 correspondence, concluded that "N.L. Industries has contributed to the
sediment contamination detected adjacent to the site." NJDEP did not require NL to conduct
remediation or additional investigation of the river sediments at that time because it found that
"any remedial actions conducted in this area of the river should be part of a regional approach."
(Amended Complaint (hereinafter referred to as the "Complaint" ("Compl.")) ii 7 5, ECF No. 221.)
In 2005, the Sayreville Economic and Redevelopment Agency ("SERA"), a defendant in
this action but not a party to this appeal or the underlying motions, acquired the Site from NL by
eminent domain for the purpose of redevelopment. In or about 2008, SERA entered into a
Memorandum of Understanding with NJDEP, pursuant to which SERA undertook responsibility
for completing the remedial investigation and remedial action for the Site. SERA contracted
Sayerville Seaport Associates, L.P. (''SSA") to undertake the redevelopment project and perform
the required cleanup. According to the Complaint, the investigation and remediation process
remained ongoing at the time Plaintiffs filed this action.
B.

Procedural History

On August 11, 2009, Plaintiffs brought this citizens' suit against Defendants and others
alleging violations of various provisions of the Resource Conservation and Recovery Act
("RCRA") and the Clean Water Act ("CWA"). In their complaint, Plaintiffs allege that NL and
other defendants have violated section 7002(a)(l)(B) of the RCRA, 42 U.S.C. § 6972(a)(l)(B), by

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having "contributed to the past or present handling, storage, treatment, transportation, or disposal
of the contaminants"-specifically, arsenic, copper, lead, nickel, and zinc- in the river sediments.
(Compl. i-f 99.) The complaint further alleges that NL and others violated sections 301(a) and 402
of the CWA, 33 U.S.C. §§ 13 ll(a), 1342, by discharging arsenic, copper, lead, nickel, and zinc
into the river from several on-Site sources (North Ditch, Tertiary Lagoon, and through
groundwater) without a permit authorizing the discharges.

Plaintiffs seek declarations that

Defendants have violated the RCRA and CWA, as well as injunctive relief requiring the
remediation of contaminated river sediments and prohibiting unpermitted discharges from the
aforementioned on-Site sources.
On July 12, 2013, the Honorable Joel A. Pisano, U.S.D.J.,2 entered an Order staying certain
portions of this action pending the completion of remedial activities. (ECF No. 268.) As to NL,
proceedings in connection with Plaintiffs' claims that relate to the on-Site source areas have been
stayed. (Id.) Plaintiffs' claims seeking injunctive relief with respect to the Raritan River sediments
adjacent to the Site have not been stayed. 3 (Id.)
Prior to the Court's stay, Plaintiffs sought leave for discovery, and the Court ordered SERA
and SSA to produce documents relating to contamination at the Site and the historical and ongoing
investigation and remediation efforts. Thereafter, Plaintiffs sought leave for discovery from NL.
Judge Pisano, seemingly skeptical of the necessity of the discovery sought by Plaintiffs (ECF No.
294-4 at 48-49), admonished Plaintiffs "that any demands for discovery be tailored to be relevant
to this dispute, i.e., the contamination of the river sediment and groundwater contamination at the
site" (id at 49) and limited the discovery to document production only (id at 48). As a prerequisite

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This matter was reassigned to the Undersigned upon the retirement of Judge Pisano.

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These claims are referred to by the parties in their papers, by Judge Arpert in his decision, and
by Judge Pisano in the Case Management Order (ECF No. 268) as the "un-stayed" claims.
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to the discovery, Judge Pisano required that the Plaintiffs "have an informal conversation with
[Defendants] and tell [Defendants] exactly what [Plaintiffs] want and let [Defendants] determine
whether they've already turned it over, whether it doesn't exist, whether they'll give it to you or
they won't and only then should you file a document demand." (Id. at 51.)
Thereafter, Plaintiffs sent Defendants a thirty-page spreadsheet detailing the extensive
document production that they had already received from SSA, SERA, and the NJDEP. Plaintiffs
also served on NL a Request for the Production of Documents.
Plaintiffs' Request for the Production of Documents to NL contained forty numbered
requests, which, inclusive of subparts, actually constituted 129 separate document requests. NL
objected to twenty-nine of the forty numbered requests. The parties agreed to a rolling document
production schedule, and thereafter NL produced over 10,000 pages of documents relating to the
historical operation of the site, NL's investigation of the river sediments, any discharges from the
site into the river, and permits for outfalls from the Site into the river. (See ECF Nos. 293-14, -15,
-24.) NL did not produce documents in response to the objected-to requests.
After informally trying and failing to resolve their differences over the disputed document
requests, Plaintiffs filed a motion to compel discovery with respect to twenty-five of the twentynine4 disputed requests, which Defendants opposed. In addition, Defendants filed a cross-motion
for a protective order prohibiting Plaintiffs from seeking further discovery from NL. On June 16,
2014, Judge Arpert held a hearing on the motions and advised the parties of his decision to deny
the motion to compel and to grant the motion for a protective order. On July 1, 2014, Judge Arpert
issued his Opinion and Order (July 1, 2014 Op., ECF No. 301), and this appeal followed. Plaintiffs

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Plaintiff conceded that three of their requests were not relevant to NL' s liability for sediment
contamination in the Raritan River and one was cumulative of other requests. (See ECF No. 2931 at 14, n.5.)
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appeal Judge Arpert's decision with respect to thirteen of the twenty-five ruled-on document
requests, specifically requests numbered 3, 6-13, and 28-31.
II.

ANALYSIS
A.

Legal Standard

On an appeal from a discovery order, the scope of the District Court's review is narrow.
Alit (No. 1) Ltd. v. Brooks Ins. Agency, No. 10-2403, 2012 WL 5304636, at *2 (D.N.J. October

25, 2012). Section 636(b) ofTitle 28 to the U.S. Code and Local Civil Rule 72.l(c) govern appeals
from non-dispositive orders of United States Magistrate Judges. Both direct District Courts to
consider the appeal and set aside any portion of the Magistrate Judge's order found to be "clearly
erroneous or contrary to law." 28 U.S.C. § 636(b)(l)(A); L. Civ. R. 72.l(c)(l)(A). A finding is
clearly erroneous "when although there is evidence to support it, the reviewing court on the entire
evidence is left with the definite and firm conviction that a mistake has been committed." Thomas
v. Ford Motor Co., 137 F. Supp. 2d 575, 579 (D.N.J. 2001) (citing Lo Bosco v. Kure Eng'g Ltd.,

891 F. Supp. 1035, 1037 (D.N.J. 1995)).
Further, "[w]here a Magistrate Judge is authorized to exercise his or her discretion in
determining a non-dispositive motion, the decision will be reversed only for an abuse of that
discretion." Thomas, 137 F. Supp. 2d at 579 (citing Lithuanian Commerce Corp. v. Sara Lee
Hosiery, 177 F.R.D. 205, 214 (D.N.J. 1997); Kresefsky v. Panasonic Commc 'ns & Sys. Co., 169

F.R.D. 54, 64 (D.N.J. 1996)). Typically, the management of discovery is committed to a court's
sound discretion. Miller v. Hassinger, 173 F. App'x 948, 954 (3d Cir. 2006) (citing Wisniewski v.
Johns-Manville Corp., 812 F.2d 81, 90 (3d Cir. 1987)).

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B.

Document Requests

In ruling on the motion to compel, Judge Arpert separated Plaintiffs' twenty-five disputed
document requests into four groups and rendered a ruling as to each group. The document requests
encompassed by the instant appeal fall into three of the four groups.
The first group of requests concerned the possession, control, and use of the Site. Requests
12 and 13 were included in this group. NL objected to Request 12 as overbroad and burdensome,
and noted that the documents sought were those that related in any way to any contaminant, solid,
or hazardous waste "generated" at the Site by any party. (ECF No. 294 at 22.) NL further argued
that Request 13 was similarly broad and burdensome, as it, too, was not limited in its scope to the
contaminants at issue in this lawsuit, the Raritan River discharges, or the alleged "source" areas.
Judge Apert found the requests to be overbroad and not relevant to the claims relating to
contaminated river sediments (i.e., the un-stayed claims). The Magistrate Judge also found these
requests to be unduly burdensome, particularly in light of his finding that Plaintiffs were already
in possession of relevant material concerning river sediment contamination.
The second group of requests concerned the physical characteristics of the Site and levels
of contamination at the Site. Requests 3 and 6-11 were included in this group. NL argued that to
the extent that these requests sought documents that did not concern the three source areas at issue,
the requests were overbroad and burdensome. In particular, NL noted that because there are
eighty-three different "areas of concern" on the Site that bear no relevance to this lawsuit,
Plaintiffs' broad requests would require the review and production of as many as tens of thousands
of pages of allegedly irrelevant documents. NL further argued that to the extent that these requests
concern the Site's three source areas, claims regarding these source areas have been stayed. Judge
Arpert accepted NL's argument and found these requests to be unduly burdensome, overbroad,
and beyond the scope of the un-stayed claims. Further, Judge Arpert noted that NL had already

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produced all documents relating to the investigation of any impact the Site's three source areas
had on the River.
The third group of requests concerned the issue of permit compliance. Requests 28-31 fell
into this group. NL again argued that Plaintiffs failed to properly limit their requests to information
relevant to their specific burdens in this case, namely, the particular contaminants identified in the
complaint and permits relating to river discharges as opposed to discharges elsewhere on the Site.
NL further noted that Plaintiffs had already received copies of the relevant permits in discovery
from the NJDEP. Judge Arpert held that the requests were overbroad and upheld NL's objections.
The Court has thoroughly considered the matter in light of the above cited legal standards
and finds no basis to disturb Judge Arpert's rulings. Rule 26 of the Federal Rules of Civil
Procedure provides that "[p]arties may obtain discovery regarding any nonprivileged matter that
is relevant to any party's claim or defense." Fed. R. Civ. P. 26(b)(l). However, while the scope
of discovery may be broad, it is not without bounds. When the burden of a discovery request is
likely to outweigh the benefits, Rule 26(b)(2)(C) vests the District Court with the authority to limit
a party's pursuit of otherwise discoverable information. See Bayer AG v. Betachem, Inc., 173 F .3d
188, 191 (3d Cir. 1999) ("Although the scope of discovery under the Federal Rules is
unquestionably broad, this right is not unlimited and may be circumscribed."). Accordingly, a
discovery request may be denied if this Court finds that there exists a likelihood that the resulting
benefits would be outweighed by the burden or expenses imposed as a consequence of the
discovery after assessing the following factors: (i) the unreasonably cumulative or duplicative
effect of the discovery; (ii) whether "the party seeking discovery has had ample opportunity to
obtain the information by [other] discovery"; and (iii) "the needs of the case, the amount in
controversy, the parties' resources, the importance of the issues at stake in the action, and the
importance of the discovery in resolving the issues." Fed. R. Civ. P. 26(b)(2)(C).

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In denying Plaintiffs' motion to compel, Judge Arpert properly examined Plaintiffs' broad
discovery requests in light of: (1) the existing stay on all claims regarding the on-Site sources of
contaminated river sediment and (2) the specific allegations in the complaint. He further weighed
the relevance and benefits of the requested materials against the burden that would be placed on
the producing party.

Judge Arpert's analysis also appropriately took into consideration the

discovery material already in Plaintiffs' possession from NL and other parties. Further, this Court
has considered the record in this case, including the breadth of Plaintiffs' discovery requests, their
relevance to the un-stayed claims, and the discovery that already has been produced to Plaintiffs,
and finds that Judge Arpert's decision to deny Plaintiffs' motion to compel is supported by the
record. Consequently, the Court finds that Judge Arpert's decision was neither clearly erroneous
nor an abuse of his discretion and affirms Judge Arpert's rulings on the motion to compel the
production of documents.
C.

E-mail Messages

In response to Plaintiffs' discovery requests, NL produced only three responsive e-mail
messages pertaining to contamination at the Site and the historical and ongoing environmental
investigation and remediation efforts at the Site. These came from a consultant's e-mail account.
No responsive e-mail messages were produced from any internal NL account. In their motion to
compel, Plaintiffs took issue with the quantum of the e-mail message production and sought to
compel either the production of additional responsive e-mail messages or a certification from NL
detailing the search methodology undertaken to locate responsive e-mail messages. Plaintiffs
argued that it was "highly implausible" that a search of NL' s email system would produce no
responsive e-mail messages.
In response, NL first explained that e-mail messages did not exist during the time period
in which it conducted operations at the Site (1930s to 1980s), and, second, that early e-mail

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communications (late 1990s to early 2000s) were likely not preserved due to the technological
limitations of the period. Also, NL noted that interaction between NL's consultant and NJDEP
typically occurred through more formal methods - letters, reports, calls and meetings, not through
e-mail messages. Therefore, it was not surprising that few responsive e-mail messages existed.
Nevertheless, in an abundance of caution, NL conducted a second review for responsive e-mail
messages, and no additional messages were found.
Ultimately, Judge Arpert credited NL's representations that it had produced all responsive
e-mail messages in its possession and declined to compel NL to produce additional e-mail
messages or to produce a detailed explanation of its search methodology to Plaintiffs. (July 1,
2014 Op. 12.) On appeal, Plaintiffs argue that Judge Arpert's decision was clearly erroneous
because Judge Arpert stated that NL "certifie[d]" that it provided Plaintiffs with all responsive
e-mail messages when, in fact, there was technically no "certification" to that effect. Indeed, Judge
Arpert may have inadvertently used the term "certifies" when no "certification" was made. The
Court finds, however, that Plaintiffs' argument elevates form over substance. Given the time
period at issue and the technological limitations during that time period (which were noted by
Judge Arpert in his decision), the Court finds no error in Judge Arpert crediting NL's
representations and concluding that NL had produced all the responsive e-mail messages in its
possession. Judge Arpert's decision in this regard, therefore, is affirmed.
D.

Protective Order

Plaintiffs also appeal Judge Arpert's entry of a protective order precluding them from
seeking further document discovery against NL. Rule 26 permits a court, upon a finding of good
cause, to issue a protective order for purposes of "protect[ing] a party or person from annoyance,
embarrassment, oppression, or undue burden or expense." Fed. R. Civ. P. 26(c)(l).

Here,

Plaintiffs' discovery requests were extremely broad and of questionable relevance to the un-stayed

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claims in this matter. The Court is satisfied that good cause exists and, thus, finds no abuse of
discretion in the issuance of the protective order.

III.

CONCLUSION
For the reasons set forth above, the Court affirms the July 1, 2014 decision of the Magistrate

Judge denying Plaintiffs' motion to compel and granting NL's cross-motion for a protective order.
An appropriate order accompanies this Memorandum Opinion.

MICHAEL AfSiIIPP
UNITED STATES DISTRICT JUDGE
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Date: MarcftS~, 2015

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