Jeddo Coal Company v. Rio Tinto Procurement (Singapore) PTE LTD et al

Filing 64

MEMORANDUM ORDER re: Discover / Granting 61 MOTION for Extension of Time to Certain Case Management Deadlines. Close of Fact Discovery: 6/15/2018. Expert Reports is due by 7/16/2018. Dispostive Motions are due 60 days after period for expert depositions expires. Signed by Magistrate Judge Martin C. Carlson on April 5, 2018. (kjn)

IN THE UNITED STATES DISTRICT COURT
FOR THE MIDDLE DISTRICT OF PENNSYLVANIA
JEDDO COAL CO.,
Plaintiff
v.
RIO TINTO PROCUREMENT
(SINGAPORE) PTD LTD., et al.,
Defendants

:
:
:
:
:
:
:
:
:
:

Civil. No. 3:16-CV-621
(Judge Mariani)
(Magistrate Judge Carlson)

MEMORANDUM ORDER
I.

INTRODUCTION
This litigation, which presents itself as a relatively straightforward

commercial dispute over coal contracts, has been mired in procedural delays and
discovery disputes for a substantial time.
The case was first referred to the undersigned on January 31, 2018, to
address what would be the first of several disagreements regarding casemanagement issues. These matters have now grown to include disagreement over
the proper scope of discovery; the designation of work-product protection and
attorney-client privilege to shield documents from disclosure; the failure of the
plaintiff to produce documents in a particular form that would preserve metadata in
a particular format that the defendant specified; the appropriateness of the

defendants designating thousands of pages of documents as “attorney’s eyes-only,”
which the plaintiff would be unable to share even with in-house counsel; whether
the discovery limitations that the parties agreed to and proposed to the court to
govern in this case would be binding; and, most recently, whether to extend the
discovery and other pre-trial deadlines by a matter of months in order to allow the
parties to complete discovery that has yet to be completed. The parties have
identified and discussed their discovery dispute in a joint statement filed with the
Court on March 9, 2018. (Doc. 60.) Subsequently, Rio Tinto filed a motion
seeking an enlargement of the discovery and case-management deadlines, which
Jeddo has opposed in part. (Doc. 61.)
In order to assist the parties, and to facilitate the continued progress of this
litigation, we provide the following guidance and resolution of the outstanding
discovery and scheduling issues as we understand them.
II.

DISCUSSION
Rulings regarding the proper scope of discovery are matters consigned to the

court’s discretion and judgment. A court’s decisions regarding the conduct of
discovery will be disturbed only upon a showing of abuse of that discretion.
Marroquin-Manriquez v. I.N.S., 699 F.2d 129, 134 (3d Cir. 1983). This farreaching discretion also extends to rulings by United States Magistrate Judges on
discovery matters. In this regard:
2

District courts provide magistrate judges with particularly broad
discretion in resolving discovery disputes. See Farmers & Merchs.
Nat’l Bank v. San Clemente Fin. Group Sec., Inc., 174 F.R.D. 572,
585 (D.N.J. 1997). When a magistrate judge’s decision involves a
discretionary [discovery] matter . . . , “courts in this district have
determined that the clearly erroneous standard implicitly becomes an
abuse of discretion standard.” Saldi v. Paul Revere Life Ins. Co., 224
F.R.D. 169, 174 (E.D. Pa. 2004) (citing Scott Paper Co. v. United
States, 943 F. Supp. 501, 502 (E.D. Pa. 1996)). Under the standard, a
magistrate judge’s discovery ruling “is entitled to great deference and
is reversible only for abuse of discretion.” Kresefky v. Panasonic
Commc’ns and Sys. Co., 169 F.R.D. 54, 64 (D.N.J. 1996); see also
Hasbrouck v. BankAmerica Hous. Servs., 190 F.R.D. 42, 44-45
(N.D.N.Y. 1999) (holding that discovery rulings are reviewed under
abuse of discretion standard rather than de novo standard); EEOC v.
Mr. Gold, Inc., 223 F.R.D. 100, 102 (E.D.N.Y. 2004) (holding that a
magistrate judge’s resolution of discovery disputes deserves
substantial deference and should be reversed only if there is an abuse
of discretion).
Halsey v. Pfeiffer, No. 09-1138, 2010 WL 2735702, at *1 (D.N.J. Sept. 27, 2010).
Mindful of this broad discretion to resolve the current discovery disputes
that have persisted in this litigation, and finding that resolution of those disputes
and addressing scheduling issues relating to that discovery is necessary to the
efficient resolution of parties’ claims, we address each of the areas of conflict that
the parties have identified.

3

A.

Attorneys’-Eyes Only

In early 2018, Rio Tinto produced 5, 267 pages of documents to Jeddo, and
designated 2,355 of these pages as “attorneys’-eyes only” (“AEO”). (Doc. 60, at
1.)

The parties met and conferred regarding Rio Tinto’s designation, and

following that process Rio Tinto removed the AEO designation from a number of
the documents.

As it currently stands, there remain at least 1,140 pages of

documents that are still designated AEO, though Rio Tinto explains that the total
number of documents is far lower, since many of these documents are on
spreadsheets that inflate the overall number of pages covered. The documents
have been identified in summary fashion in an exhibit to the parties’ joint
statement. (Doc. 60, Ex. 1.) Rio Tinto contends that Jeddo’s counsel should not
be permitted to share and discuss the AEO documents even with Jeddo’s in-house
counsel, apparently because Rio Tinto understands that in-house counsel “wear[s]
several hats” including “a business development hat.” (Doc. 60, at 6.)
Rio Tinto defends its designation of these many pages of documents on the
grounds that the information contained within them represents a kind of trade
secret, even though much of the information seems to relate only to the coal prices
agreed upon by Rio Tinto and its current trading partners. Nevertheless, Rio Tinto
argues that if Jeddo’s business team has access to this information it would give
Jeddo an unfair competitive advantage “over Defendants and over Jeddo’s
4

competitors related to the sales of coal because the documentation shows how
much Defendants are paying for coal and the characteristics of that coal and how
much Jeddo’s competitors are charging clients for coal, the amount of coal those
competitors are committed to providing, and the characteristics of that coal.”
(Doc. 60, at 7.) Rio Tinto attempts to analogize the price it pays for coal, and the
suppliers with which it deals, to a pricing or customer list, which some courts have
found to constitute trade secrets that may be subject to some measure of
confidentiality in litigation.
Jeddo dismisses these concerns, arguing that the commercial information on
these documents does not constitute a trade secret, and noting that Rio Tinto and
Jeddo are not competitors and that it is extremely unlikely that the parties will be
doing business again in the future. Even if they do, Jeddo maintains that nothing
about this information could reasonably be expected to give either party an unfair
advantage over the other, and that Rio Tinto would be free to decline to business
with Jeddo if it found the terms of any hypothetical business relationship to be
unfavorable.
Jeddo represents that the AEO issue is the most urgent of its discovery
disputes with Rio Tinto. Jeddo argues that in order to prepare meaningfully for
looming depositions, Jeddo’s counsel needs to be able to talk with his client about
“the many important documents that are still designated as AEO.” (Doc. 60, at 2.)
5

Given counsel’s interest in being able to confer with his client throughout the
litigation, including about a substantial number of the documents Rio Tinto has
produced; and because Jeddo contends that the AEO-designated documents should
not be considered trade secrets in any event, Jeddo urges the Court to overrule Rio
Tinto’s efforts to prevent counsel from sharing these responsive materials with his
in-house counterpart.
We agree with Jeddo that on the current record before us Rio Tinto’s
designation of these documents as AEO appears overly broad and insufficiently
supported, and find that at minimum Jeddo’s outside lawyers should be able to
confer about the materials with in-house counsel and other Jeddo representatives to
the extent necessary. Given what is now before us we disagree with Rio Tinto that
the basic commercial information contained in the documents is so closely-held
that it would be considered tantamount to a trade secret.
Under Rule 26(c)(7), a protective order may issue to protect trade secrets or
other confidential research, development, or commercial information. Smith v. Bic
Corp., 869 F.2d 194, 199 (3d Cir. 1989). The party seeking protection has the
burden of showing that it is entitled to the protection sought. Gulf Oil Co. v.
Bernard, 452 U.S. 89, 102 n.16 (1981). Establishing that a particular document is
a trade secret requires specific showings, and the party seeking to shield potentially
responsive information from disclosure as a trade secret faces a high burden.
6

Bimbo Bakeries USA, Inc. v. Botticella, 613 F.3d 102, 109-110 (3d Cir. 2010).
“Good cause is established on a showing that disclosure will work a clearly defined
and serious injury to the party seeking disclosure. The injury must be shown with
specificity.” Publicker Indus., Inc. v. Cohen, 733 F.2d 1059, 1071 (3d Cir. 1984).
“Broad allegations of harm, unsubstantiated by specific examples or articulated
reasoning” will not establish good cause. Cipollone v. Liggett Group, Inc., 785
F.2d 1108, 1121 (3d Cir. 1986).
Using this well-settled legal standard as our guide, we find that Rio Tinto
simply has not demonstrated that basic pricing information relating to the cost of
coal and related transactions, which is shared between Rio Tinto and its trading
partners, is of such a commercially-sensitive nature that it deserves the stamp of
confidentiality that would prevent counsel from communicating with his client
about it.
Furthermore, although Rio Tinto has recently reduced the overall number of
documents and pages that it would designate as AEO, that number is still
substantial relative to the defendant’s total document production, and in our view is
excessive. Courts have expressed concern about over-designation of discovery
production as AEO, particularly since it has the potential to keep the opposing
party “in the dark about the important facts of the case.” Defazio v. Hollister, Inc.,
No. CIV S-04-1358, 2007 WL 2580633, at *1-2 (E.D. Cal. Sept. 5, 2007); see also
7

Election Systems & Software, LLC v. RBM Consulting, LLC, No. 8:1CV438,
2015 WL 1321440, at *5 (D. Neb. Mar. 24, 2015) (recognizing that the AEO
designation “must be used sparingly and only when truly necessary because it
limits the ability of the receiving party to view the relevant evidence, fully discuss
it with counsel, and make intelligent litigation decisions.”). Moreover, the use of
AEO designations often is limited to cases where a party has demonstrated good
cause for the designation by “articulating concrete and specific harms that would
result from de-designation.”

Bobrick Washroom Equipment, Inc. v. Scranton

Products, Inc., No. 3:14-CV-00853, 2017 WL 841286, at *1 (M.D. Pa. Mar. 3,
2017) (Mariani, J.).
In this case, we do not find that Rio Tinto has met this exacting standard for
showing good cause to restrict the plaintiff’s in-house counsel and other
representatives assisting in this case from reviewing the documents in order to
coordinate Jeddo’s litigation strategy. As described by the parties, the documents
themselves do not clearly appear to be trade secrets and, equally significantly, the
parties seem to agree that Jeddo and Rio Tinto are no longer business competitors,
and thus any arguable risk posed by sharing this information with in-house counsel
appears especially limited, if it exists at all. Rather, as reported by the parties, the
documents appear to contain information reflective of Rio Tinto’s assessment of
the coal market, and concerns information regarding prices and profits, and Rio
8

Tinto’s business decisions regarding the amount of coal to purchase and the
suppliers of that coal. We find that this information is potentially relevant to the
claims and defenses in this case, and do not find that Rio Tinto has articulated
“concrete and specific harms” that would result from counsel reviewing these
documents with Jeddo’s in-house lawyer and other representatives who may be
necessary.
Moreover, we believe that any potential for misuse of arguably sensitive
information contained within these documents may effectively be addressed by
requiring that any Jeddo representative assisting counsel in this matter to treat the
information as confidential and use it only in connection with this litigation.
Accordingly, Jeddo’s request for entry of an Order de-designating the AEO
materials produced will be granted, subject to the requirement that any Jeddo
counsel or representative maintain this information in confidence and use it only in
connection with the claims and defenses in this litigation.
B.

Attorney-Client Privilege and Work-Product Designations

In its February 16, 2018 letter to the Court, Jeddo challenged Rio Tinto’s
assertion of the work-product doctrine over documents pre-dating February 18,
2016, arguing that these documents could not possibly be subject to work-product
protection because Rio Tinto could not reasonably have anticipated litigation
before that time. Jeddo also challenged Rio Tinto’s assertion of the attorney-client
9

privilege over communications that appeared to be between non-attorney
employees and over documents that, in Jeddo’s view, were inadequately described
in RioTinto’s privilege log. On March 8, 2018, Rio Tinto provided Jeddo with an
updated redaction log and privilege log, and declined to remove any of its
redactions or privilege designations. Jeddo continues to maintain that the redacted
or withheld material should be ordered produced, since it constitutes neither work
product nor privileged communications.
1.

The Legal Framework: Attorney-Client Privilege and
Attorney Work-Product

The United States Court of Appeals for the Third Circuit has summarized
the purposes of, and distinctions between, the attorney-client privilege and the
work-product doctrine, and the importance of limiting recognition of evidentiary
privileges when necessary to achieve their purposes, as follows:
Though they operate to protect information from discovery, the workproduct doctrine and the attorney-client privilege serve different
purposes. The purpose behind the attorney-client privilege is “‘to
encourage clients to make full disclosure of facts to counsel so that he
may properly, competently, and ethically carry out his representation.
The ultimate aim is to promote the proper administration of justice.’”
In re Impounded, 241 F.3d 308, 316 (3d Cir. 2001) (quoting In re
Grand Jury Proceedings, 604 F.2d 798, 802 (3d Cir. 1979)). The
work-product doctrine, by contrast, “promotes the adversary system
directly by protecting the confidentiality of papers prepared by or on
behalf of attorneys in anticipation of litigation. Protecting attorneys’
work product promotes the adversary system by enabling attorneys to
prepare cases without fear that their work product will be used against
10

their clients.” Westinghouse Elec. Corp. v. Republic of the Phil., 951
F.2d 1414, 1428 (3d Cir. 1991) (citations omitted).
Though evidentiary privileges have important purposes, their
recognition may result in the withholding of relevant information and
so may obstruct the search for truth. Indeed, the protections are
effective only if they shield relevant evidence and thus they
necessarily obstruct the search for the truth at a trial at which they are
recognized either implicitly or explicitly. Consequently, privileges
should be recognized only when necessary to achieve their respective
purposes. See Fisher v. United States, 425 U.S. 391, 403 (1976).
In re Chevron Corp., 633 F.3d 153, 164 (3d Cir. 2011).
a.

The Attorney-Client Privilege

The attorney-client privilege is meant to facilitate “full and frank
communication between attorneys and their clients.” Wachtel v. Health Net, Inc.,
482 F.3d 225, 231 (3d Cir. 2007). The privilege “recognizes that sound legal
advice or advocacy serves public ends and that such advice or advocacy depends
upon the lawyer’s being fully informed by the client.” Upjohn v. United States
449 U.S. 383, 389 (1981). The privilege “applies to any communication that
satisfies the following elements: it must be ‘(1) a communication (2) made
between [the client and the attorney or his agents] (3) in confidence (4) for the
purpose of obtaining or providing legal assistance for the client.’” In re Teleglobe
Communications Corp., 493 F.3d 345, 359 (3d Cir. 2007) (quoting the Restatement
(Third) of the Law Governing Lawyers § 68 (2000)). Thus, the privilege reaches
11

“[c]onfidential disclosures by a client to an attorney made in order to obtain legal
assistance.” Fisher v. United States, 425 U.S. 391, 403 (1976); see also In re Ford
Motor Co., 110 F.3d 954, 965 n.9 (3d Cir. 1997) (communication made by client
and an attorney are privileged if made “for the purpose of securing legal advice.”);
United States v. Amerada Hess Corp., 619 F.2d 980, 986 (3d Cir. 1980).
The privilege applies both to information that the client provides to the
lawyer for purposes of obtaining legal advice, as well as to the advice the attorney
furnishes to the client. To this end, the Supreme Court has explained that “the
privilege exists to protect not only the giving of professional advice to those who
can act on it but also the giving of information to the lawyer to enable him to give
sound and informed advice.” Upjohn, 449 U.S. at 390. However, the privilege
extends only to the disclosure of the communications, and does not extend to
disclosure of the underlying facts conveyed in those communications. Id. at 385.
While recognizing the value served by the privilege, courts must also be
mindful that the privilege obstructs the truth-finding process and should therefore
be “applied only where necessary to achieve its purpose.” Wachtel, 482 F.3d at
231; see also Westinghouse Elec. Corp., 951 F.2d at 1423. Therefore, because the
purpose of the privilege is to protect and promote the “dissemination of sound legal
advice,” it applies only to communication conveying advice that is legal in nature,
as opposed to where the lawyer is providing non-legal, business advice. Wachtel,
12

482 F.2d at 231; see also Allendale Mut. Ins. Co. v. Bull Data Sys., Inc., 152
F.R.D. 132, 137 (N.D. Ill. 1993) (stating that the privilege is inapplicable where
the legal advice is incidental to business advice); Hardy v. New York News, Inc.,
114 F.R.D. 633, 643 (S.D.N.Y. 1987) (“The attorney-client privilege is triggered
only by a client’s request for legal, as contrasted with business advice . . . .”).
Federal courts are further required to assess the application of the privilege
on a case-by-case basis. Thus, “Rule 501 [of the Federal Rules of Evidence]
requires the federal courts, in determining the nature and scope of an evidentiary
privilege, to engage in the sort of case-by-case analysis that is central to commonlaw adjudication.” Id. at 230; see also Upjohn, 449 U.S. at 386, 396-97; In re
Processed Egg Prods. Antitrust Litig., MDL No. 2002, 08-md-2002, 2011 U.S.
Dist. LEXIS 120708, at *10-11 (E.D. Pa. Oct. 19, 2011). In addition, the party
asserting the privilege bears the burden of providing that it applies to the
communication at issue. In re Grand Jury, 603 F.2d 469, 474 (3d Cir. 1979).
b.

The Work-Product Doctrine

The work-product doctrine is embodied within Rule 26(b)(3) of the Federal
Rules of Civil Procedure, which provides that “a party may not discover
documents and tangible things that are prepared in anticipation of litigation or for
trial” unless otherwise discoverable or a party shows substantial need for the
material. Fed. R. Civ. P. 26(b)(3). The doctrine recognizes that a lawyer requires
13

a “certain degree of privacy, free from unnecessary intrusion by opposing parties
and their counsel.” Hickman v. Taylor, 329 U.S. 495, 511 (1947).
The doctrine thus is intended “to protect material prepared by an attorney
acting for his client in anticipation of litigation.” United States v. Rockwell Int’l,
897 F.2d 1255, 1265 (3d Cir. 1990); see also United States v. Nobles, 422 U.S.
225, 238 (1975) (“At its core, the work-product doctrine shelters the mental
processes of the attorney, providing a privileged area within which he can analyze
and prepare his client’s case.”). The doctrine does not extend to protect documents
that were prepared “in the ordinary course of business, or pursuant to public
requirements unrelated to litigation, or for other nonlitigation purposes.’” Martin v.
Bally’s Park Place Hotel & Casino, 983 F.2d 1252, 1260 (3d Cir.1993) (quoting
Fed. R. Civ. P. 26(b)(3) advisory committee note).
In order for the doctrine to apply, Rule 26(b)(3) requires “that the material
be prepared in anticipation of some litigation, not necessarily in anticipation of the
particular litigation in which it is being sought.” In re Ford Motor Co., 110 F.3d
954, 967 (3d Cir. 1997) (emphasis omitted). It is not necessary that litigation has
been commenced or even threatened before a document can be found to have been
prepared in anticipation of litigation. See In re Processed Egg Prods. Antitrust
Litig., MDL No. 2002, 08-md-2002, 2011 U.S. Dist. LEXIS 120708, at *16 (E.D.
Pa. Oct. 19, 2011) (citing Hydramar, Inc. v. Gen. Dynamics Corp., 115 F.R.D. 147,
14

150 n.3 (E.D. Pa. 1986)). However, documents will come within the scope of the
work-product doctrine only where the documents were prepared primarily in
anticipation of future litigation. See In re Diet Drugs Prods. Liability Litig., MDL
No. 1203, 2001 U.S. Dist. LEXIS 5494, 2001 WL 34133955, at *5 (E.D. Pa. Apr.
19, 2001).
2.

Rio Tinto’s Work-Product Designation

Rio Tinto represents that it engaged its in-house counsel in September of
2015 to advise the company of issues related to what it describes as “an approach
to Jeddo concerning the Variation Agreement.” (Doc. 60, at 18.) In a nutshell, it
appears that Rio Tinto came to realize that due to market conditions, it would need
either concessions from Jeddo on their existing agreements, or it could wind up
facing legal action from Jeddo who might seek legal remedies on the grounds that
Rio Tinto had breached the parties’ agreement. Rio Tinto represents that in-house
counsel became involved in order to advise the business team regarding the legal
and litigative consequences that were likely to flow in response to the business
decisions that were under consideration at that time. Rio Tinto has offered to
submit a sworn declaration from in-house counsel attesting to this fact, if the Court
deems it necessary. (Doc. 60, at 19 at n.4.)
In its letter to the Court, and in its section of the parties’ joint statement,
Jeddo insists that Rio Tinto could not possibly have reasonably anticipated
15

litigation prior to February 18, 2016, since it was only then that Jeddo had raised
the prospect of litigation. Jeddo maintains that prior to that time, and as reflected
in a letter from Rio Tinto to Jeddo dated December 18, 2015, the parties had
engaged in nothing more than an invitation to discuss revisions to the existing
contract. In short, Jeddo urges the Court to find that prior to February 18, 2016,
Rio Tinto was simply engaged in business negotiations and was endeavoring to
persuade Jeddo to consider making concessions to the existing contract. Rio Tinto
disagrees, noting that in the months leading up to February 18, 2016, Rio Tinto’s
business team and lawyers were engaged in strategic planning regarding not
merely business matters, but what they anticipated – correctly – was likely to be
litigation if Rio Tinto rejected their proposal.
Upon consideration, the Court finds that Rio Tinto has persuasively shown
that in the months shortly preceding Jeddo’s letter raising the prospect of litigation,
the company was working with its in-house lawyers to prepare for a potential
lawsuit in light of the decisions it was faced with in terms of a contract that had
become unfavorable.

The defendant has consistently maintained that the

correspondence flagged as protected work-product was prepared in coordination
with counsel specifically because it reasonably anticipated the potential for a
lawsuit with Jeddo, which occurred shortly after Rio Tinto took the steps of
inviting discussions to address the very issue that inspired the company to involve
16

its in-house lawyer to assist in making strategic decisions based on the potential for
litigation. Although Jeddo is right that litigation was plainly foreseeable as of
February 18, 2016, since litigation was actually raised as a possibility in that letter,
this does not mean that Rio Tinto was unreasonable in anticipating litigation could
arise prior to that time given the decisions it was facing. Accordingly, we find that
Rio Tinto has adequately explained and justified its use of the work-product
designation for the withheld documents, and will not require that they be disclosed.
3.

Rio Tinto’s Attorney-Client Privilege Claim

Turning to Jeddo’s challenge to the documents withheld as attorney-client
privileged, we do not find that the parties have sufficiently explained the basis for
Jeddo’s challenge or Rio Tinto’s defense of the privilege in the joint statement.
Although Jeddo did raise a number of arguments in its February 16, 2018 letter to
the Court (Doc. 57), it did not expound upon those arguments in the joint statement
or even incorporate them by reference, other than to propose that the Court
undertake a limited in camera review of up to 20 documents to make a judgment
about whether Rio Tinto’s attorney-client privilege designations were appropriate.
Rio Tinto insists that its designations were adequately explained, are fully justified
and should be honored, representing that all of the communications at issue
involved clients of Rio Tinto’s in-house counsel – in other words, Rio Tinto’s
employees or consultants who had been retained to assist the company.
17

While we acknowledge and appreciate the representations of Rio Tinto’s
counsel, in order to have a more substantial basis upon which to rule on this issue,
the Court will agree to Jeddo’s proposal to identify up to 20 documents for Rio
Tinto to submit to the Court for in camera review.1 Following review of those
documents, the Court will issue a separate Order ruling on whether Rio Tinto’s
invocation of the attorney-client privilege as a basis to withhold the documents
from production was appropriate.2
C.

Limitations on Requests for Production

The next issue concerns the number of requests for production (“RFP”) that
Jeddo served upon Rio Tinto. The parties agree that Jeddo initially served Rio
Tinto with 36 RFP, and on February 18, 2018, Jeddo served an additional four
requests. This number exceeded the 25-request limit that the parties recommended
to the District Court in their Joint Case Management Plan. The parties agree that
Judge Mariani did not expressly impose a limit on requests for production in the
Case Management Order that was issued. The parties have met and conferred on
this issue, with Jeddo requesting that Rio Tinto agree to a limit of 45 RFP, which is

1

To the extent these documents are emails that are part of a longer email chain,
Rio Tinto will also submit to the Court for in camera inspection a copy of the
email that contains the complete chain to the extent any such email also appears on
Rio Tinto’s privilege log.
2
Rio Tinto may also provide a cover letter or other document that explains the
basis for the privilege and identifies the persons who are party to the
communications.
18

five more than the current number of requests served, and 20 more than the parties
proposed originally. Rio Tinto has refused to agree to a number of RFP greater
than 25.
The parties’ positions can be simply stated: Jeddo maintains that because
Judge Mariani did not specify a limit on the number of RFPs that could be served,
there are no limits on this form of discovery. Rio Tinto contends that the parties
should be bound by their joint recommendation to the Court, which really was in
the nature of an agreement that should now be honored and enforced. We agree
with Rio Tinto.
As an initial matter, we disagree with Jeddo’s argument that because the
District Court did not include an express limitation on the number of RFPs, either
party was free to disregard the limits it agreed to. The rules governing joint case
management plans make it clear that in making recommendations to the district
court, the parties are to submit an agreed-upon number, and if they cannot agree,
they should offer competing proposals. See, e.g., Rule 26(f) Report (Doc. 27), 4.5
(“(where the parties cannot agree, set forth separately the limits . . . .)”); Fed. R.
Civ. P. 26(f)(2) (parties are to confer “for attempting in good faith to agree on the
proposed discovery plan, and for submitting to the court within 14 days after the
conference a written report outlining the plain.”). Thus, in submitting the proposed
case-management plan to the Court, and submitting a jointly agreed-upon limit on
19

RFPs, Jeddo and Rio Tinto were by definition representing that they were in
agreement on this limitation.
Moreover, Rule 29 permits parties to enter into stipulations, including about
discovery. See Fed. R. Civ. P. 29 (allowing the parties to “stipulate that . . . (b)
other procedures governing or limiting discovery be modified . . . .”). The Rule is
intended to give the parties “greater opportunity . . . to agree upon modifications to
the procedures governing discovery or to limitations upon discovery.” Id., 1993
Notes. The Rules, therefore, support the parties’ efforts to come to agreements
regarding the conduct of discovery in federal court.
Finally, courts in the Middle District of Pennsylvania routinely have found
that “agreements in joint case management plans entered into by counsel” are
enforceable. See, e.g., Dolfi v. Disability Reinsurance Mgmt. Servs., Inc., 548 F.
Supp. 2d 709, 728 (M.D. Pa. 2008); Fisher v. Marquip, Inc., No. 3:CV-99-1976,
Order at 3 (M.D. Pa. Sept. 26, 2002) (Dkt. Entry 116). Rio Tinto has cited to
multiple decisions from other courts outside of the Third Circuit where parties’
agreed-upon limitations to discovery have likewise been found to be enforceable,
providing further support to Rio Tinto’s position here. (Doc. 60, at 14-16.) These
decisions are in line with Dolfi and Fisher, and rest on the straightforward
proposition that the parties’ agreements with respect to the conduct of discovery
should be honored.
20

Because we find that the parties agreed that RFPs would be capped at 25,
Jeddo’s service of an additional 15 RFPs without leave of Court or agreement by
Rio Tinto contravened the parties’ prior agreement, and was improper.
Accordingly, we will not require Rio Tinto to respond to RFP Nos. 26-40.3
D.

Enlargement of the Case-Management Deadlines

The most recent dispute in this case concerns Rio Tinto’s motion to extend
the case-management deadlines, including the deadlines governing discovery.
Jeddo opposes the motion in part, arguing that even if the discovery deadline is
extended all other deadlines should remain in place.

Although we recognize

Jeddo’s interest in moving this case forward, it is clear to the Court that any
extension of discovery deadlines, which we find is necessary here, will also
necessitate enlarging the remaining deadlines as well.
Fact discovery is currently set to end in two weeks, on April 19, 2018. In its
motion, Rio Tinto represents that in addition to the discovery issues being resolved
in this Order, additional discovery issues are likely to be brought to the Court’s
attention, although counsel are working to explore resolution of some of those
3

To the extent Jeddo has a particular need for the discovery sought in these RFPs,
the plaintiff may move for leave to take some additional discovery upon a showing
of good cause. The plaintiff has not made that showing here, but has merely
argued that it should be permitted to serve as many as 40 or 45 RFPs simply
because the District Court did not specify any limits in the case-management order.
In the absence of some showing, however, the Court is unwilling to allow Jeddo to
go beyond the limits that it agreed to when it proposed the initial discovery
limitations to the Court.
21

issues without Court intervention.4 The parties both indicate a desire to take
additional depositions, and the instant Order will impose discovery obligations on
the parties, and involve the Court in an in camera review of certain documents
over which Rio Tinto claimed privilege. In short, the parties will need additional
time to complete discovery; it is prudent to enlarge the remaining deadlines as well
which may be affected by what the parties learn in discovery; and we do not find
that Jeddo will be prejudiced by moving all pre-trial deadlines back by 60 days.
III.

ORDER
Accordingly, for the reasons discussed above, IT IS HEREBY ORDERED

THAT:
1.

Attorneys’-Eyes Only. Because the Court does not find that Rio

Tinto has demonstrated that its use of the AEO designation was appropriate or
necessary, Jeddo shall be permitted to share the AEO-designated documents with
in-house counsel and other Jeddo representatives as may be necessary, provided

4

It appears that at least some of these potential discovery issues involve Jeddo’s
compliance with Rio Tinto’s demand that it produce documents in particular
electronic format, with metadata. Rio Tinto expounds on this issue in its reply
brief in further support of the motion to extend deadlines, (Doc. 63), but there is
nothing before the Court at this time requesting resolution of this particular
dispute. We note only that this appears to be a point of ongoing contention for the
parties, and the Court stands ready to assist them if they are unable to come to a
mutually agreeable resolution of the matter. However, because the Court will be
enlarging all deadlines in this case, the parties are urged to continue their efforts to
hammer out a compromise solution to this particular dispute before turning to
motions practice.
22

that counsel and any Jeddo representative reviewing any document identified as
AEO treats the document as confidential and for use only in connection with this
litigation.
2.

Work-Product.

Rio Tinto’s designation of certain potentially

responsive documents as work product was appropriate, and Rio Tinto will not be
required to produce these documents to Jeddo.
3.

Attorney-Client Privilege. With respect to Rio Tinto’s designation

of certain documents as subject to attorney-client privilege, Jeddo shall review Rio
Tinto’s privilege log and identify up to 20 documents to be submitted to the Court
for in camera review. To the extent these documents are emails that are part of a
longer email chain, Rio Tinto will also submit to the Court for in camera
inspection a copy of the email that contains the complete chain to the extent any
such email also appears on Rio Tinto’s privilege log. Jeddo shall identify the
documents on or before Friday, April 13, 2018. Rio Tinto shall thereafter submit
those documents to the Court, together with any explanatory cover letter, by
Friday, April 20, 2018.
4.

Limits on RFP. The Court finds that the parties agreed that requests

for production would be limited to 25 per side, and this agreement is enforceable
regardless of the fact that the Case-Management Order did not contain express
limitations. Therefore, Rio Tinto is not obligated to respond to RFP Nos. 26-40.
23

To the extent Jeddo has a particular need for the discovery sought in these RFPs,
the plaintiff may move for leave to take some additional discovery upon a showing
of good cause.
5.

Revised Case-Management Deadlines.

The motion to extend

discovery deadlines (Doc. 61) is GRANTED since Court agrees that good cause
has been shown to enlarge all case-management deadlines by 60 days.
Accordingly, the new deadlines are as follows:
a.

Fact discovery – June 15, 2018;

b.

Expert reports – July 16, 2018;

c.

Expert response reports – July 30, 2018;

d.

Supplemental reports – August 13, 2018;

e.

Expert discovery – 60 days after last report is submitted; and

f.

Dispositive motions – 60 days after period for expert
depositions expires.

So ORDERED this 5th day of April, 2018.

/s/ Martin C. Carlson
Martin C. Carlson
United States Magistrate Judge

24