Conservation Law Foundation, Inc. v. Shell Oil Products US et al

Filing 94

MEMORANDUM AND ORDER - Plaintiff's Motion to Compel (ECF No. 72) and Defendants' Cross-Motion for Protective Order (ECF No. 78) are both DENIED without prejudice. 72 Motion to Compel; 78 Motion for Protective Order. So Ordered by Magistrate Judge Lincoln D. Almond on 7/21/2022. (Noel, Jeannine)

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UNITED STATES DISTRICT COURT
DISTRICT OF RHODE ISLAND

CONSERVATION LAW
FOUNDATION, INC.
v.
SHELL OIL PRODUCTS US, et al.

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C.A. No. 17-00396-WES

MEMORANDUM AND ORDER
Pending before me for determination (28 U.S.C. § 636(b)(1)(A)) are Plaintiff’s Motion to
Compel Production of Documents Responsive to Plaintiff’s First Set of Requests for Production
to All Defendants, and Defendants’ Cross-Motion for Protective Order Governing the Production
and Exchange of Discovery. (ECF Nos. 72 and 78). A conference was held on June 3, 2022 and
the parties thereafter filed Supplemental Memoranda. (ECF Nos. 90 and 92).
These Motions raise the issue of the appropriate scope and breadth of discovery in this
citizen-suit enforcement action brought under the Clean Water Act (“CWA”) and the Resource
Conservation and Recovery Act (“RCRA”). Plaintiff’s claims relate to Defendants’ operations at
the Providence Terminal, a bulk storage and fuel terminal. At the risk of over simplifying
Plaintiff’s Third Amended Complaint (“TAC”), the environmental claims fall into two basic
buckets – (1) current operational/permit violations at the Terminal; and (2) violations based on
failure to adapt the Terminal to prepare for and protect against the impacts of climate change.
These impacts are summarized at paragraphs 126 through 246 of the TAC. The instant Discovery
Motions implicate the relevance and proportionality parameters of Rule 26(b) and the good cause
showing necessary for relief under Rule 26 (c).

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Plaintiff’s First Request for Production includes sixty-two Document Requests and it
asserts that the substantial majority (forty-five) are in dispute. (ECF No. 72-2). Plaintiff posits
that the “primary dispute between the Parties centers on the relevance of documents that do not
expressly refer to Defendants’ Terminal, including Shell corporate policies that set standards for
the resilience of its infrastructure to severe weather risks and climate change, as well as analyses
of pollution discharges from other Shell facilities during major storms, such as Superstorm Sandy.”
(ECF No. 72 at p. 4). It asserts, in part, that “documents concerning other Shell facilities, including
generally applicable policies, and Shell’s knowledge of climate change is relevant and
discoverable.” Id. at p. 6.
Defendants argue that Plaintiff’s “worldwide” discovery requests are overbroad and
disproportional to the needs of this case. They counter that Plaintiff misrepresents their position
and that, during the meet and confer process, they have “repeatedly stated that they will produce
documents related to the weather-risks alleged in the complaint and how those risks are assessed
and addressed at the Terminal – including corporate level policies that apply to the Terminal and
are related to the risks at issue – regardless of whether those documents ‘expressly refer’ to the
Terminal.” (ECF No. 79 at pp. 7-8). Defendants contend that Plaintiff’s theory that there is
centralized corporate management of these risks is incorrect, and that each asset, such as the
Terminal, “determines how to manage weather-related risks based on asset-specific
considerations.” (ECF No. 92 at p. 3).
Defendants support their position, in part, with the Declaration of James Kent Yeates (East
Coast Lead Facility Engineer) (ECF No. 79-9), and argue that a deposition would be a far more
efficient discovery mechanism on these issues and propose to “provide a witness to answer
[Plaintiff’s] questions about how the Providence Terminal manages the precipitation and flooding

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risks identified in [Plaintiff’s] complaint, and who makes those decisions for the Terminal (in
addition to the previously proposed topic of applicability of corporate policies to the Terminal).”
(ECF No. 92 at p. 4). Plaintiff contends that it has “continuously asked for information that will
allow it to better understand the Shell corporate structure throughout the Parties’ discovery
negotiations” and asserts that the Yeates Declaration “creates more questions than it answers.”
(ECF No. 90 at pp. 2-3).
This is a complex case, and the parties have presented polarized positions on the proper
scope of discovery. Despite lengthy briefing, the Court is seemingly left to navigate this dispute
in the fog. The one thing that is clear, however, is that Plaintiff seeks far-reaching discovery which,
if allowed, would likely be very time consuming and expensive. Before potentially going down
that path, the Court believes that a more measured approach is warranted. First, Defendants shall
continue their rolling production of those documents they have agreed to produce, subject to their
objections, including the “corporate level policies” described above and any documents referenced
in, or supportive of, statements made in the Yeates Declaration. Second, Defendants shall produce
Mr. Yeates for deposition regarding the contents of his Declaration and Mr. Yeates or an
alternative designee for deposition regarding “how the Providence Terminal manages the
precipitation and flooding risks identified in [Plaintiff’s] complaint, and who makes those
decisions for the Terminal ([including the] applicability of corporate policies to the Terminal).”
(ECF No. 92 at p. 4). The parties shall confer in good faith as to a reasonable schedule for
production of such documents and to conduct such deposition(s), and thereafter shall utilize the
results of such discovery to continue to confer in good faith regarding the scope of document
production. If there are remaining areas of dispute after exhausting that process, the parties shall
request a discovery dispute conference with the Court before refiling the instant discovery motions.

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Conclusion
For the foregoing reasons and with the directives set forth herein, Plaintiff’s Motion to
Compel (ECF No. 72) and Defendants’ Cross-Motion for Protective Order (ECF No. 78) are both
DENIED without prejudice.
/s/ Lincoln D. Almond
LINCOLN D. ALMOND
United States Magistrate Judge
July 21, 2022

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