Opinion
3:21-md-3004-NJR MDL 3004
10-10-2022
In re PARAQUAT PRODUCTS LIABILITY LITIGATION This Document Relates to All Cases
SPECIAL MASTER'S REPORT AND RECOMMENDATIONS REGARDING PLAINTIFFS' AND CHEVRON U.S.A. INC.'S DISCOVERY DISPUTES WITH RESPECT TO COMPANY WITNESSES RICHARD CAVALLI AND SARA MCMILLEN AND CERTAIN BOXES STORED AT IRON MOUNTAIN
RANDI S. ELLIS COURT-APPOINTED SPECIAL MASTER
The following Report and Recommendation pertains to three pending discovery disputes between Plaintiffs and Defendant Chevron U.S.A. (“Chevron”). The parties met and conferred on these issues on October 3, 2022 and October 10, 2022 in the presence of the Special Master. Having met and conferred with the parties and having considered the facts and circumstances of each dispute, the Special Master provides a short background of each of the disputes along with recommendations below.
I. Issues Pertaining to Richard Cavalli's Deposition
The first dispute relates to the deposition of former Chevron employee, Richard Cavalli. On August 3, 2022, Chevron disclosed Mr. Cavalli as a non-retained expert witness, according to Chevron, “out of an abundance of caution.” Plaintiffs requested that Chevron provide a Rule 26 Disclosure for Mr. Cavalli, which Chevron did, by agreement of the parties, on August 18, 2022. Mr. Cavalli was deposed on August 2223, 2022.
On September 20, 2022, Plaintiffs filed a Motion to Compel and a Motion for Sanctions (Doc. 2407); on September 23, 2022 Chevron filed an Emergency Motion to Strike (Doc. 2437); and on September 26, 2022, the Court granted Chevron's motion, struck the Plaintiffs' motions, ordered the parties to meet and confer in a good faith, and referred the matter to the Special Master.
On October 3, 2022, the parties met and conferred with the Special Master present. Plaintiffs noted that the Motion to Compel sets out the documents they request and the deposition topics they want to explore in a second deposition of Mr. Cavalli. As more fully set forth in the Motion to Compel, Plaintiffs claim that Chevron is entitled to extremely limited privilege protections having named Mr. Cavalli as a non-retained expert. Plaintiffs request (1) that the Court order Mr. Cavalli to appear for a second deposition so they can question him on documents he reviewed in preparation for his deposition and communications with counsel both in preparation for his deposition and on breaks during plaintiffs' examination of Mr. Cavalli; (2) that Chevron be compelled to produce all documents considered and/or relied upon by Mr. Cavalli; (3) that the second deposition take place at Chevron's expense; and (4) that Chevron's counsel be sanctioned.
As set forth in its Disclosure of Mr. Cavalli as a non-retained expert and as noted at Mr. Cavalli's deposition, Chevron disclosed Mr. Cavalli as a non-retained expert out of an abundance of caution and does not agree that it has waived any privilege protections with respect to Mr. Cavalli's preparation for his deposition. Without waiving that privilege, Chevron's counsel permitted Mr. Cavalli to testify with respect to the studies he reviewed in preparation for his deposition, all of which had been produced by Chevron. He was unable to recall any specific studies that he reviewed; he also testified that none of the documents he reviewed in preparation for his deposition refreshed his recollection.
At Plaintiffs' request, Chevron served Chevron's Disclosure of Non-Retained Expert Richard Cavalli Pursuant to Rule 26 on August 18, 2022. In that Disclosure, Chevron identified the documents upon which Mr. Cavalli's testimony on the issues described therein was based (e.g., human data, toxicological studies, worker exposure studies, and autopsy reports). Counsel for Chevron stated that Plaintiffs did not request production of any of these materials or the materials reviewed by Mr. Cavalli in preparation for his deposition, prior to Mr. Cavalli's deposition. Plaintiffs do not refute Chevron's statement.
During the deposition, Plaintiffs questioned Mr. Cavalli about meetings with Chevron attorneys to prepare for his testimony. When asked these questions, Mr. Cavalli was instructed by his counsel not to provide the substance of those conversations. Mr. Cavalli answered that he did meet with the Chevron attorneys on several occasions to prepare, where they took place, and approximately how long they lasted. Thereafter, Mr. Cavalli was asked “were you shown any medical literature, published articles, in any of these meetings?” Counsel for Chevron stated, “I'm going to object to asking him what he was shown until you establish that those documents refreshed his recollection.” Mr. Cavalli did not remember, and he stated, “none of the documents that I looked at refreshed my memory.” Finally, Mr. Cavalli answered “yes” that he did review documents provided by the Chevron lawyers and the questioning moved on to a new topic. (Dep. Tr. Vol. II at 76-79).
On the record, Plaintiffs questioned Mr. Cavalli about communications with Chevron attorneys between breaks in his deposition. “And last evening after the questioning by Mr. Kelly and before the commencement of his questioning today, did you meet with the Chevron lawyers to discuss this case?” And Mr. Cavalli answered, “I did.” Next Mr. Cavalli was asked “And did you meet again between Mr. Kelly's questioning last night and the beginning of today? Did you meet this morning in talking to Chevron lawyers about this case?” And Mr, Cavalli answered, “Yes.” (Dep. Tr. Vol. II at 80). The Special Master cannot locate any other questioning wherein the Plaintiffs asked about the substance of those communications. Plaintiffs had the opportunity at that time to question Mr. Cavalli further, but they did not; and there was no instruction not to answer that prevented any such questioning. Plaintiffs have not presented any evidence that any improper communications took place during breaks in the course of Plaintiffs' examination of Mr. Cavalli.
The Special Master finds no basis for sanctions, or the other relief requested by Plaintiffs.
The Special Master has reviewed Chevron's disclosure of Mr. Cavalli as well as the transcript of Mr. Cavalli's deposition and finds that it is not necessary at this time to make a determination as to (1) whether Mr. Cavalli needed to be identified as a nonretained expert, given the nature of his testimony, or (2) whether such identification would require that Chevron waive attorney-client and related privileges with respect to communications with Mr. Cavalli related to the preparation for his deposition. Given the facts and circumstances, the issues in dispute can be resolved without deciding those issues and recommends the following:
Plaintiffs' request for the documents that Mr. Cavalli reviewed in preparation for his deposition is GRANTED. Defendants shall produce to Plaintiffs within seven days a list of the documents reviewed by Mr. Cavalli in preparation for his deposition.
Plaintiffs' request to re-open the deposition to examine Mr. Cavalli on the documents he reviewed in preparation for his deposition is DENIED.
Plaintiffs' request to re-open the deposition to inquire about Chevron's counsel's communications with Mr. Cavalli during breaks in the course of Plaintiffs' examination is DENIED.
Plaintiffs' remaining requests for relief in their Motions to Compel and Motion for Sanctions are DENIED.
II. Plaintiffs' Request for Additional Time to Examine Chevron's 30(b)(6) Witness, Sara McMillen
The second dispute relates to Plaintiffs' September 27, 2022 email request for additional time to examine Chevron's 30(b)(6) witness, Sara McMillen. Ms. McMillen was deposed on April 27, 2022; the Special Master attended this deposition. Plaintiffs claim that Chevron “pulled the witness before [Plaintiffs] had finished, and despite Ms. Ellis asking that [Plaintiffs] complete the deposition.”
Plaintiffs took the deposition of Chevron's 30(b)(6) witnesses on April 26, 2022 (Jeff Podawiltz) and April 27, 2022 (Sara McMillen). At the conclusion of 12 hours of questioning, Plaintiffs announced they needed additional time to complete the deposition. In the Special Master's presence, Chevron offered limited additional time to Plaintiffs beyond the 12 hours permitted by the Coordination Order. Plaintiffs rejected that offer and ended the deposition.
During the parties' meet and confer on October 3, 2022 (with the Special Master present), Plaintiffs requested 1.5 hours to examine Ms. McMillen (in her 30(b)(6) capacity). Plaintiffs subsequently provided a list of the following topics for her examination:
1. Any and all results, protocols, correspondence, EPA communications relating to the “California” study.
2. All PBPK studies (including study findings, results, and conclusions).
3. All studies relating to redox cycling of PQ in human or animal tissue including study findings, results, and conclusions.
4. Human studies - the nature and number of follow-up physical examinations conducted on workers that were in any human studies.
5. Any microscopic or histopathological examination of the tissues obtained in human poisoning cases.
6. IBT studies - Chevron's determination, findings, and assessment of the IBT studies of paraquat.
The Special Master has reviewed the deposition transcript (and was in attendance during the deposition) and Plaintiffs' request to reopen Ms. McMillen's deposition is GRANTED IN PART and DENIED IN PART.
Plaintiffs questioned Ms. McMillen extensively on Topics 4 and 5 and their request to reopen her deposition on these topics is DENIED. The Special Master GRANTS Plaintiffs' request to re-open Ms. McMillen's testimony for 45 minutes on Topics 1-3 and Topic 6.
III. Iron Mountain Boxes That Were the Subject of a Review in the Hoffmann Litigation
The third dispute relates to Plaintiffs' request to review approximately 700 boxes of hard copy documents stored at Iron Mountain that were the subject of review by one of Plaintiffs' Leadership counsel in the Hoffmann litigation.
The approximately 700 boxes at issue are Chevron Chemical Company boxes dated 1960-1986. After Plaintiffs' counsel review of these boxes in Hoffmann, non-privileged documents selected by Plaintiffs were produced in that case, and subsequently in the MDL.
In March 2022, in response to Plaintiffs' request, Chevron confirmed to MDL Leadership that the approximately 700 boxes reviewed by Mr. Baghdadi's team in Hoffmann were still being retained at Iron Mountain. Plaintiffs served a Request for Inspection of these documents on September 22, 2022. Defendants served Responses and Objections on September 29, 2022.
Plaintiffs and Chevron met and conferred on these issues, in the presence of the Special Master, on October 3, 2022 and October 10, 2022. The parties have reached agreement on approximately 350 boxes to be retrieved from Iron Mountain and reviewed for paraquat-related documents.
Chevron shall retrieve and review the approximately 350 boxes for paraquat-related documents and produce any non-privileged paraquat-related documents. Chevron estimates the cost of the retrieval costs associated with retrieval of these boxes will be approximately $17,000-23,000; Plaintiffs shall pay half the total cost. Chevron shall bear the cost of attorney review and production.
Chevron shall report back to the Special Master in 30 days on the status of the review and production.