Opinion
Case No. 3:21-cv-159 Case No. 3:22-cv-75
2023-10-19
Brian K. PYLE, Plaintiff, v. A.H. BENNETT COMPANY, a Minnesota corporation, et al., Defendants. Glenn W. Frericks, Plaintiff, v. A.H. Bennett Company, a Minnesota corporation, et al., Defendants.
David C. Thompson, Grand Forks, ND, for Plaintiff in Nos. 3:21-cv-159, 3:22-cv-75. Elizabeth Sorenson Brotten, Jason Mohr, Joanna M. Salmen, Kyle B. Mansfield, Paul William Magyar, Foley & Mansfield PLLP, Minneapolis, MN, David E. Scouton, Thibodeau, Johnson & Feriancek, Duluth, MN, for Defendant A.H. Bennett Company in No. 3:21-cv-159. Kristi K. Brownson, Brownson PLLC, Minneapolis, MN, for Defendant A.W. Chesterton Company in Nos. 3:21-cv-159, 3:22-cv-75. Elizabeth Sorenson Brotten, Jason Mohr, Joanna M. Salmen, Kyle B. Mansfield, Paul William Magyar, Foley & Mansfield PLLP, Minneapolis, MN, for Defendants A.W. Kuettel & Sons, Inc. in Nos. 3:21-cv-159, 3:22-cv-75, Goodyear Tire & Rubber Company in No. 3:21-cv-159, Rockbestos-Surprenant Cable Corporation in Nos. 3:22-cv-75, 3:21-cv-159, The Marley-Wylain Company, LLC in Nos. 3:21-cv-159, 3:22-cv-75, Zurn Industries, Inc. in No. 3:21-cv-159, A.H. Bennett Company in No. 3:22-cv-75, H.H. Robertson Company in No. 3:22-cv-75, Riley Power, Inc. in No. 3:22-cv-75. Abigale Raye Griffin, Matthew P. Kopp, Todd E. Zimmerman, Fredrikson & Byron, P.A., Fargo, ND, for Defendant American Crystal Sugar Company in Nos. 3:21-cv-159, 3:22-cv-75. Kathryn Nekola, Flom Law Office, P.A., Moorhead, MN, Joel A. Flom, Flom Law Office, P.A., Fargo, ND, for Defendant Asbestos Corporation, Ltd. in Nos. 3:21-cv-159, 3:22-cv-75. Thomas D. Jensen, Stuart David Campbell, Lind Jensen Sullivan & Peterson PA, Minneapolis, MN, for Defendants Bell & Gossett in Nos. 3:21-cv-159, 3:22-cv-75, Goulds Pumps in Nos. 3:21-cv-159, 3:22-cv-75, Western Steel & Plumbing, Inc. in No. 3:22-cv-75. Heather H. Neubauer, Meagher & Geer, P.L.L.P., Minneapolis, MN, for Defendants Burnham, LLC in Nos. 3:21-cv-159, 3:22cv-75, Mine Safety Appliances Company, LLC in Nos. 3:21-cv-159, 3:22-cv-75m Building Sprinkler Company, Inc. in No. 3:22-cv-75. Thomas D. Jensen, Lind Jensen Sullivan & Peterson PA, Minneapolis, MN, Elizabeth Sorenson Brotten, Jason Mohr, Joanna M. Salmen, Kyle B. Mansfield, Foley & Mansfield PLLP, Minneapolis, MN, for Defendant Cleaver-Brooks, Division of Aqua-Chem, Inc. in Nos. 3:21-cv-159, 3:22cv-75. David T. Schach, Jon R. Russell, Meagher & Geer, P.L.L.P., Minneapolis, MN, for Defendants S.O.S. Products Company, Inc., United Conveyor Corporation in Nos. 3:21-cv-159, 3:22-cv-75. David T. Schach, Jon R. Russell, John C. Hughes, Meagher & Geer, P.L.L.P., Minneapolis, MN, for Defendant Redco Corporation in No. 3:22-cv-75. Marc E. Betinsky, Robert Bennett, Robins Kaplan LLP, Minneapolis, MN, Stacey Elizabeth Tjon Bossart, Haugen & Moeckel, Fargo, ND, for Defendant Crown Cork & Seal Company, Inc. in Nos. 3:21-cv-159, 3:22-cv-75. David E. Scouton, Matthew R. Thibodeau, Thibodeau, Johnson & Feriancek, Duluth, MN, for Defendant Foster Wheeler Corporation in Nos. 3:21-cv-159, 3:22-cv-75. David D. Schweigert, Tyler Johnson Siewert, Schweigert, Klemin & McBride, P.C., Bismarck, ND, for Defendant General Electric Company in Nos. 3:21-cv-159, 3:22-cv-75. Elizabeth Sorenson Brotten, Foley & Mansfield PLLP, Minneapolis, MN, for Defendant H. H. Robertson Company in No. 3:21-cv-159. Scott D. Jensen, Camrud, Maddock, Olson & Larson, Ltd., Grand Forks, ND, for Defendant John Crane, Inc. in Nos. 3:21cv-159, 3:22-cv-75. Peter K. Doely, Michael C. McCarthy, Maslon Edelman Borman & Brand, LLP, Minneapolis, MN, for Defendant Metropolitan Life Insurance Company in Nos. 3:21cv-159, 3:22-cv-75. Daniel L. Hull, Anderson & Bottrell, Fargo, ND, for Defendants 3M Company in No. 3:21-cv-159. Matthew R. Thibodeau, Thibodeau, Johnson & Feriancek, Duluth, MN, for Defendant Paul W. Abbott Company, Inc. in Nos. 3:21-cv-159, 3:22-cv-75, Industrial Contractors, Inc. in 3:22-cv-75. Elizabeth Sorenson Brotten, Jason Mohr, Kyle B. Mansfield, Paul William Magyar, Foley & Mansfield PLLP, Minneapolis, MN, for Defendant Riley Power, Inc. in No. 3:21-cv-159. David E. Scouton, Thibodeau, Johnson & Feriancek, Duluth, MN, for Defendants U.S. Filter Co., Whittier Filtration, Inc. in Nos. 3:21-cv-159, 3:22-cv-75. Jane L. Dynes, Serkland Law Firm, P.C., Fargo, ND, for Defendant Union Carbide Corporation in Nos. 3:21-cv-159, 3:22-cv-75. Jon R. Russell, Meagher & Geer, P.L.L.P., Minneapolis, MN, for Defendant Redco Corporation in No. 3:21-cv-159. Elizabeth Sorenson Brotten, Jason Mohr, Foley & Mansfield PLLP, Minneapolis, MN, for Defendants IKO Midwest, Inc., IKO Industries, Ltd. in No. 3:21-cv-159. H.H. Robertson Company, Pro Se. Jon P. Parrington, Jon P. Parrington, P.A., Minneapolis, MN, for Defendant Fargo-Moorhead Insulation Company in No. 3:22-cv-75. Elizabeth Sorenson Brotten, Jason Mohr, Joanna M. Salmen, Kyle B. Mansfield, Paul William Magyar, Ye Xu, Foley & Mansfield PLLP, Minneapolis, MN, for Defendants Goodyear Tire & Rubber Company, Zurn Industries, Inc. in No. 3:22-cv-75.
David C. Thompson, Grand Forks, ND, for Plaintiff in Nos. 3:21-cv-159, 3:22-cv-75.
Elizabeth Sorenson Brotten, Jason Mohr, Joanna M. Salmen, Kyle B. Mansfield, Paul William Magyar, Foley & Mansfield PLLP, Minneapolis, MN, David E. Scouton, Thibodeau, Johnson & Feriancek, Duluth, MN, for Defendant A.H. Bennett Company in No. 3:21-cv-159.
Kristi K. Brownson, Brownson PLLC, Minneapolis, MN, for Defendant A.W. Chesterton Company in Nos. 3:21-cv-159, 3:22-cv-75.
Elizabeth Sorenson Brotten, Jason Mohr, Joanna M. Salmen, Kyle B. Mansfield, Paul William Magyar, Foley & Mansfield PLLP, Minneapolis, MN, for Defendants A.W. Kuettel & Sons, Inc. in Nos. 3:21-cv-159, 3:22-cv-75, Goodyear Tire & Rubber Company in No. 3:21-cv-159, Rockbestos-Surprenant Cable Corporation in Nos. 3:22-cv-75, 3:21-cv-159, The Marley-Wylain Company, LLC in Nos. 3:21-cv-159, 3:22-cv-75, Zurn Industries, Inc. in No. 3:21-cv-159, A.H. Bennett Company in No. 3:22-cv-75, H.H. Robertson Company in No. 3:22-cv-75, Riley Power, Inc. in No. 3:22-cv-75.
Abigale Raye Griffin, Matthew P. Kopp, Todd E. Zimmerman, Fredrikson & Byron, P.A., Fargo, ND, for Defendant American Crystal Sugar Company in Nos. 3:21-cv-159, 3:22-cv-75.
Kathryn Nekola, Flom Law Office, P.A., Moorhead, MN, Joel A. Flom, Flom Law Office, P.A., Fargo, ND, for Defendant Asbestos Corporation, Ltd. in Nos. 3:21-cv-159, 3:22-cv-75.
Thomas D. Jensen, Stuart David Campbell, Lind Jensen Sullivan & Peterson PA, Minneapolis, MN, for Defendants Bell & Gossett in Nos. 3:21-cv-159, 3:22-cv-75, Goulds Pumps in Nos. 3:21-cv-159, 3:22-cv-75, Western Steel & Plumbing, Inc. in No. 3:22-cv-75.
Heather H. Neubauer, Meagher & Geer, P.L.L.P., Minneapolis, MN, for Defendants Burnham, LLC in Nos. 3:21-cv-159, 3:22cv-75, Mine Safety Appliances Company, LLC in Nos. 3:21-cv-159, 3:22-cv-75m Building Sprinkler Company, Inc. in No. 3:22-cv-75.
Thomas D. Jensen, Lind Jensen Sullivan & Peterson PA, Minneapolis, MN, Elizabeth Sorenson Brotten, Jason Mohr, Joanna M. Salmen, Kyle B. Mansfield, Foley & Mansfield PLLP, Minneapolis, MN, for Defendant Cleaver-Brooks, Division of Aqua-Chem, Inc. in Nos. 3:21-cv-159, 3:22cv-75. David T. Schach, Jon R. Russell, Meagher & Geer, P.L.L.P., Minneapolis, MN, for Defendants S.O.S. Products Company, Inc., United Conveyor Corporation in Nos. 3:21-cv-159, 3:22-cv-75.
David T. Schach, Jon R. Russell, John C. Hughes, Meagher & Geer, P.L.L.P., Minneapolis, MN, for Defendant Redco Corporation in No. 3:22-cv-75.
Marc E. Betinsky, Robert Bennett, Robins Kaplan LLP, Minneapolis, MN, Stacey Elizabeth Tjon Bossart, Haugen & Moeckel, Fargo, ND, for Defendant Crown Cork & Seal Company, Inc. in Nos. 3:21-cv-159, 3:22-cv-75.
David E. Scouton, Matthew R. Thibodeau, Thibodeau, Johnson & Feriancek, Duluth, MN, for Defendant Foster Wheeler Corporation in Nos. 3:21-cv-159, 3:22-cv-75.
David D. Schweigert, Tyler Johnson Siewert, Schweigert, Klemin & McBride, P.C., Bismarck, ND, for Defendant General Electric Company in Nos. 3:21-cv-159, 3:22-cv-75.
Elizabeth Sorenson Brotten, Foley & Mansfield PLLP, Minneapolis, MN, for Defendant H. H. Robertson Company in No. 3:21-cv-159.
Scott D. Jensen, Camrud, Maddock, Olson & Larson, Ltd., Grand Forks, ND, for Defendant John Crane, Inc. in Nos. 3:21cv-159, 3:22-cv-75.
Peter K. Doely, Michael C. McCarthy, Maslon Edelman Borman & Brand, LLP, Minneapolis, MN, for Defendant Metropolitan Life Insurance Company in Nos. 3:21cv-159, 3:22-cv-75.
Daniel L. Hull, Anderson & Bottrell, Fargo, ND, for Defendants 3M Company in No. 3:21-cv-159.
Matthew R. Thibodeau, Thibodeau, Johnson & Feriancek, Duluth, MN, for Defendant Paul W. Abbott Company, Inc. in Nos. 3:21-cv-159, 3:22-cv-75, Industrial Contractors, Inc. in 3:22-cv-75.
Elizabeth Sorenson Brotten, Jason Mohr, Kyle B. Mansfield, Paul William Magyar, Foley & Mansfield PLLP, Minneapolis, MN, for Defendant Riley Power, Inc. in No. 3:21-cv-159.
David E. Scouton, Thibodeau, Johnson & Feriancek, Duluth, MN, for Defendants U.S. Filter Co., Whittier Filtration, Inc. in Nos. 3:21-cv-159, 3:22-cv-75.
Jane L. Dynes, Serkland Law Firm, P.C., Fargo, ND, for Defendant Union Carbide Corporation in Nos. 3:21-cv-159, 3:22-cv-75.
Jon R. Russell, Meagher & Geer, P.L.L.P., Minneapolis, MN, for Defendant Redco Corporation in No. 3:21-cv-159.
Elizabeth Sorenson Brotten, Jason Mohr, Foley & Mansfield PLLP, Minneapolis, MN, for Defendants IKO Midwest, Inc., IKO Industries, Ltd. in No. 3:21-cv-159.
H.H. Robertson Company, Pro Se.
Jon P. Parrington, Jon P. Parrington, P.A., Minneapolis, MN, for Defendant Fargo-Moorhead Insulation Company in No. 3:22-cv-75.
Elizabeth Sorenson Brotten, Jason Mohr, Joanna M. Salmen, Kyle B. Mansfield, Paul William Magyar, Ye Xu, Foley & Mansfield PLLP, Minneapolis, MN, for Defendants Goodyear Tire & Rubber Company, Zurn Industries, Inc. in No. 3:22-cv-75.
ORDER
Alice R. Senechal, United States Magistrate Judge
Plaintiffs in the above-captioned cases allege state law claims arising from their occupational exposures to asbestos. This
court's jurisdiction is based on diversity of citizenship.
Defendants, in both cases, move to compel discovery responsive to joint interrogatories, requests for production of documents, and requests for admissions. Defendants also move for an order requiring plaintiffs to comply with investigation and filing provisions of North Dakota's Asbestos Bankruptcy Trust Transparency Act (Trust Transparency Act) set forth in North Dakota Century Code section 32-46.1-02. (Pyle, Doc. 160; Frericks, Doc. 86).
Prior to defendants filing their motions, the parties complied with Civil Local Rule 37.1.
Plaintiffs oppose the motions, contending a December 1, 2022 order of this court precludes defendants from seeking discovery that would mandate their compliance with the Trust Transparency Act. They assert that the Trust Transparency Act, as a whole, is procedural and therefore preempted by the Federal Rules of Civil Procedure. And they contend information about asbestos bankruptcy trust claims is not discoverable under Federal Rule of Evidence 408. (Pyle, Doc. 163; Frericks, Doc. 89).
The briefs and supporting materials filed in Pyle and Frericks are nearly identical. Hereinafter, the court cites only to the briefs and supporting materials filed in Pyle.
Background
The December 1 order described the history of the Trust Transparency Act:
Individuals with asbestos-related injuries may seek compensation through two avenues—by filing claims with trusts established by bankrupt asbestos manufacturers and by initiating litigation in the courts against solvent companies that caused plaintiffs' exposure to asbestos.
In 1994, Congress enacted 11 U.S.C. § 524(g) of the Bankruptcy Code to "address a critical problem posed by asbestos-related bankruptcies, namely that, because of the delayed onset of many asbestos-related illnesses, 'potential claimants against an asbestos manufacturer's bankruptcy estate may not know of their claims until years after the estate has been depleted by other claimants whose symptoms became apparent earlier.'" Fireman's Fund Ins. Co. v. OneBeacon Ins. Co., 49 F.4th 105, 111 n.8 (2d Cir. 2022) (citation omitted). Under § 524(g), a bankruptcy court, through an injunction, may channel asbestos-related claims to a settlement trust created for the purpose of compensating present and future claimants. Id.
Because the trust system is separate from the court system, some courts have commented on abuses resulting from a lack of transparency between the two systems. In 2014, a bankruptcy judge issued an order estimating a debtor's liability for present and future mesothelioma claims arising from asbestos exposure. In re Garlock Sealing Techs., LLC, 504 B.R. 71 (Bankr. W.D.N.C. 2014). During an evidentiary hearing, after the debtor, Garlock, was permitted full discovery in fifteen settled asbestos tort cases, Garlock demonstrated each of the plaintiffs had withheld information about sources of their asbestos exposure. Further, "Garlock identified 205 additional cases where the plaintiff's discovery responses conflicted with one of the Trust claim processing facilities or balloting in bankruptcy cases." Id. at 86-87. The court described the plaintiffs' conduct as a "startling pattern of misrepresentation." Id. at 86.
In 2017, North Dakota enacted legislation requiring a plaintiff alleging asbestos-related injuries to disclose all asbestos
trust claims. That statute, titled "Required disclosures by plaintiff," provides:
1. Within thirty days after an asbestos action is filed, the plaintiff shall:
a. Provide the court and parties with a sworn statement signed by the plaintiff and plaintiff's counsel indicating an investigation of all asbestos trust claims has been conducted and all asbestos trust claims that could be made by the plaintiff have been filed. The sworn statement must indicate whether a request has been made to defer, delay, suspend, or toll any asbestos trust claim and provide the disposition of each asbestos trust claim.
b. Provide parties with all trust claims materials, including materials related to the conditions other than those that are the basis for the asbestos action and any materials from all law firms connected to the plaintiff in relation to the plaintiff's exposure to asbestos.
c. Produce all available trust claims materials submitted to any asbestos trusts by other individuals if the plaintiff's asbestos trust claim is based on exposure to asbestos through those individuals.
2. The plaintiff shall supplement the information and materials required under this section within thirty days after supplementing an existing asbestos trust claim, receiving additional information or materials related to an asbestos trust claim, or filing an additional asbestos trust claim.
3. The court may dismiss an asbestos action if the plaintiff fails to comply with this section.
4. An asbestos action may not proceed to trial until at least one hundred eighty days after the requirements of this section have been met.
[The North Dakota statute does not limit] [a]sbestos trusts ... to those created under § 524(g) [of the Bankruptcy Code]. The state statute defines "asbestos trust" as:
a government-approved or court-approved trust, qualified settlement fund, compensation fund, or claims facility created as a result of an administrative or legal action, a court-approved bankruptcy, or pursuant to 11 U.S.C. [§] 524(g), 11 U.S.C. [§] 1121(a), or other applicable provision of law intended to provide compensation to claimants arising out of, based on, or related to the health effects of exposure to asbestos.
N.D. Cent. Code § 32-46.1-01(3).
N.D. Cent. Code § 32-46.1-02. (footnote[ ] added). A number of other states have enacted similar legislation.
The Trust Transparency Act includes additional provisions not currently in dispute. See N.D. Cent. Code §§ 32-46.1-03 to -06.
At legislative hearings on the bill that became the Trust Transparency Act, one proponent briefly discussed the Garlock case. (Doc. 106-15, p. 14). Several proponents described the primary purpose of the bill as ensuring that juries in asbestos injury actions have sufficient information to accurately apportion fault. See id. at 4, 8-9, 15-17, 23, 30, 34. Proponents described the bill as a mechanism that would achieve that purpose by requiring plaintiffs to file trust claims at the beginning of an asbestos lawsuit so that juries would know what portion of fault might be attributable to bankrupt wrongdoers. Id. at 4, 16-17, 24. Proponents also described the bill as "streamlining the discovery process," noting there would be fewer discovery motions, as avoiding "double-dipping," and as
"Double-dipping" refers to a plaintiff withholding identification of sources of asbestos exposure in litigation but identifying those withheld sources in asbestos trust claims. [A potential effect of "double-dipping"] is ... a jury ... apportion[ing] a higher percentage of fault to a less culpable defendant. There is no evidence of "double-dipping" in North Dakota asbestos injury litigation, but there is ... evidence [of that having occurred] in other states. (See Doc. 106-4 to -12).
"govern[ing] proceedings in state courts." Id. at 8-9, 17-18, 25, 27, 31-32. One proponent stated:
North Dakota is a state that allows the bankrupt — anybody that may have contributed to the plaintiff's disease to be put on the verdict form, and we're not changing that in any way with this bill.
... [W]e're not intending in any way to change the mechanism in which North Dakota is apportioning liability. This is simply an information disclosure piece of legislation.
Id. at 28-29.
(Doc. 147, pp. 3-6) (footnote omitted).
The December 1 order concluded Federal Rule of Civil Procedure 26 directly collided with the disclosure requirements of section 32-46.1-02 and therefore preempted the state law's disclosure requirements. Id. at 9-14. The order, however, permitted defendants "to serve discovery aimed at obtaining trust related information." Id. at 16.
After the December 1 order was issued, defendants served identical trust related discovery requests on both plaintiffs. Asserting plaintiffs' responses to the discovery requests were inadequate, defendants now seek to compel plaintiffs to "provide complete, non-contradictory answers to Interrogatory Nos. 2 and 4, and Requests for Admissions Nos. 1 and 2" and to "produce all documents related to the filing of any bankruptcy trust claims in response to Document Production Request No. 1." (Doc. 160, p. 1). Defendants also request an order compelling plaintiffs "to investigate and file available asbestos bankruptcy trust claims" in accordance with the Trust Transparency Act. (Doc. 161, p. 2).
Defendants' Interrogatory No. 1 sought to determine whether each plaintiff had filed any claim with any asbestos trust and, if the plaintiff had filed any trust claim, requested information related to such claims:
1. State whether you have submitted at any time since your alleged asbestos-related disease diagnosis, a claim or demand of any kind seeking compensation for asbestos-related injuries from any entity, including any trust created in whole or in part to administer such claims, which is not a party to this lawsuit. If so:
a. Identify all non-party entities to which claims or demands have been submitted on your behalf;
b. State the factual basis for your claim(s) against each non-party entity;
c. Identify all witnesses and documents evidencing your exposure to asbestos-containing products allegedly manufactured, sold, or supplied by each non-party.
(Doc. 162-2, p. 1). Though interspersed with various objections, each plaintiff stated, "as of the date of this discovery response, the Plaintiff has not filed asbestos bankruptcy trust claims with any asbestos bankruptcy trust." Id.
Interrogatory No. 2 sought to determine whether each plaintiff had investigated and filed all asbestos trust claims and, if the plaintiff had filed any claim, requested information related to each claim:
2. State whether you or anyone on your behalf, has conducted an investigation of all asbestos trust claims and filed all asbestos trust claims that could have been made. If so, identify the following:
a. All trust claim materials, including but not limited to, documents, affidavits, deposition transcripts or excerpts, and medical reports or records, submitted in support of proof of claim forms seeking compensation for asbestos-related injuries, and any materials from all law firms connected to you in relation to your alleged exposure to asbestos.
b. All available trust claim materials, including but not limited to documents, affidavits, deposition transcripts or excerpts, and medical reports or records, submitted in support of proof of claim forms seeking compensation for asbestos-related injuries, submitted to any asbestos trusts if your claim is based on exposure to asbestos through any other individual.
Id. at 2. Though also interspersed with various objections, each plaintiff stated, "To date, no asbestos bankruptcy trust claims have been filed on behalf of the Plaintiff." Id. at 3.
Request for Admission No. 1 asked each plaintiff to admit he had conducted no investigation of trust claims that could be made because of alleged asbestos-related disease. Both plaintiffs denied that request for admission. (Doc. 162-2, p. 4). Request for Admission No. 2 asked each plaintiff to admit he had made no available asbestos trust claims. Both plaintiffs denied that request for admission.
Finally, Request for Production No. 1 asked each plaintiff to "[p]roduce all documents related to the filing of any bankruptcy trust claims related to your exposure to asbestos." Id. at 4. Both plaintiffs objected to Request for Production No. 1 but stated, "While the Plaintiff has not yet filed any claims with any asbestos bankruptcy trust, if the Plaintiff should do so in the future, ... the Plaintiff will execute document release authorizations." Id. at 5.
Though both plaintiffs responded to defendants' Interrogatory No. 2 in part, stating "no asbestos bankruptcy trust claims have been filed," neither plaintiff stated whether he had investigated all potential asbestos trust claims. See id. at 2-3. Defendants contend each plaintiff's response "implies no investigation [was] performed," contradicting plaintiffs' responses to the Requests for Admission. (Doc. 161, p. 15).
Law and Discussion
1. Discovery Requests
Defendants' motions to compel discovery are governed by Federal Rules of Civil Procedure 26, 36, and 37. Under Rule 26(b)(1), parties are entitled to discover any nonprivileged matter that is relevant to any party's claims or defenses and proportional to the needs of the case. Factors to be considered in determining proportionality include the importance of the issues at stake, the amount in controversy, the parties' relative access to relevant information, the parties' resources, importance of the discovery in resolving the issues, and whether the burden or expense of the proposed discovery outweighs its likely benefit. "Information within this scope of discovery need not be admissible in evidence to be discoverable." Fed. R. Civ. P. 26(b)(1). As the moving party, defendants have the burden to establish their requests come within the scope of Rule 26(b)(1). Rychner v. Cont'l Resources, Inc., No. 1:19-cv-71, 2021 WL 2211110, at *2 (D.N.D. June 1, 2021) (stating the proponent must make a threshold showing of relevance); InCompass IT, Inc. v. Dell Inc., Civ. No. 11-0629, 2012 WL 13027072, at *3 (D. Minn. June 29, 2012) (stating the moving party has the burden to show why the non-moving party should be compelled to respond to discovery). Under Rule 37(a)(3)(B)(iii) and (iv), a party may move to compel an answer to an interrogatory submitted under Rule 33 or to produce documents as requested under Rule 34. "[A]n evasive or incomplete disclosure, answer, or response must be treated as a failure to disclose, answer, or respond." Fed. R. Civ. P. 37(a)(4).
Under Rule 36(a)(6), a party may move to determine the sufficiency of responses to requests for admissions. If an answer does not comply with Rule 36, the court "may order either that the matter is admitted or that an amended answer be served." Fed. R. Civ. P. 36(a)(6). Alternatively, the court may defer its decision until a pretrial conference or until a specified time before trial.
Defendants contend that, taken together, the "only interpretation" of plaintiffs' discovery responses that would not be contradictory is that each plaintiff "has fully investigated possible trust claims but identified no available claims." (Doc. 161, p. 15 n.4). Defendants further contend they do not believe either plaintiff is taking that position, "as it would defy credibility." Id. They cite each plaintiffs disclosure of his work history, noting each alleges "exposure to numerous products covered by asbestos bankruptcy trusts." Id. Thus, defendants argue neither plaintiff can "credibly claim he has investigated available trust claims and identified no claims that could be filed." Id. at 16 n.4. Plaintiffs counter that defendants are requesting the court to compel plaintiffs to answer discovery requests that seek information "drawn from improperly compelled compliance with" section 32-46.1-02. (Doc. 163, p. 6).
Whether compelling further responses to defendants' discovery requests would have the effect of compelling plaintiffs' compliance with section 32-46.1-02 is not relevant to the question to be decided. Rather, the court considers whether the information defendants requested is discoverable under Rule 26. Defendants contend the requested discovery is relevant to apportionment of fault. (Doc. 161, pp. 3, 14). Plaintiffs do not dispute that portions of the requested discovery are relevant to apportionment of fault but contend the "the dollar amount or terms of a settlement" are not relevant. (Doc. 163, p. 16).
In response to Interrogatory Nos. 1 and 2, plaintiffs state they have filed no asbestos trust claims. And, in their briefing, they state, "Counsel for the plaintiffs has repeatedly informed defense counsel and the Court that no trust claims have been filed by plaintiffs thus far." (Doc. 163, p. 10 n.4). Because plaintiffs have not filed any asbestos trust claims, there are no "dollar amounts or terms of settlement" that might be disclosed. The question of relevance of that information is therefore not ripe at this time.
Plaintiffs contend information about asbestos bankruptcy trust claims is not discoverable under Federal Rule of Evidence 408, which generally governs the admissibility of compromise offers and negotiations. The question of whether Rule 408 is applicable is not ripe at this time since plaintiffs have not filed any asbestos trust claims. Further, the court notes that contrary to plaintiffs' assertion that "dollar amounts or terms of settlement are not discoverable," plaintiffs state in response to Request for Production No. 1, and again in their briefs, that if they pursue any bankruptcy trust claims in the future, they "will execute document release authorizations in favor of any inquiring Defendant to permit any inquiring Defendant to have access to the Plaintiff's entire file with any such asbestos bankruptcy trust." (Doc. 162-2, p. 5; Doc. 170, p. 5).
Plaintiffs have sufficiently answered Interrogatory No. 1, stating they have filed no asbestos trust claims. That Interrogatory requested additional information only if claims had been filed. Since both plaintiffs stated no claims had been filed, they cannot
not be expected to disclose information about any claims.
Plaintiffs have not, however, sufficiently responded to Interrogatory No. 2 because they have not stated whether they conducted an investigation of any potential asbestos trust claims. Plaintiffs will therefore be required to supplement their responses to Interrogatory No. 2 to specifically respond to that question. The remainder of Interrogatory No. 2, like Interrogatory No. 1, asked for identification of trust claim materials only if plaintiffs have filed any asbestos trust claims. Since they stated no claims had been filed, plaintiffs sufficiently responded to the second part of Interrogatory No. 2.
In response to Request for Admission No. 1, plaintiffs deny not having conducted an investigation into potential asbestos trust claims. In response to Request for Admission No. 2, they deny they have not made asbestos trust claims that could be made. Plaintiffs, however, do not dispute their work histories support exposure to products covered by asbestos bankruptcy trusts. If plaintiffs were exposed to products covered by asbestos bankruptcy trusts as their work histories document, and plaintiffs have investigated potential asbestos trust claims they could make as implied by their responses to Request for Admission No. 1, but there are no asbestos trust claims that they could make as implied by their responses to Request for Admission No. 2, then their work histories coupled with their responses to Requests for Admission Nos. 1 and 2 are in fact contradictory. But defendants have provided no authority under which this court could compel a party to amend a response to a discovery request to remedy an inconsistency among responses. And defendants' requests for admissions are inconsistent with the purposes of Rule 36.
Rule 36 serves two purposes designed to reduce trial time—(1) "to facilitate proof with respect to issues that cannot be eliminated from the case" and (2) "to narrow the issues by eliminating those that can be." Fed. R. Civ. P. 36 advisory committee's note to 1970 amendment; see also Hardy v. Bartmess, No. 1:09CV00041, 2011 WL 13195971, at *1 (E.D. Ark. Apr. 1, 2011) ("The purpose of the rule is to expedite the trial and to relieve the parties of the cost of proving facts that will not be disputed at trial.") (citation and internal quotation marks omitted); Guinan v. A.I. duPont Hosp. for Children, No. 08-228, 2008 WL 938874, at *1 (E.D. Pa. Apr. 7, 2008) ("The purpose of Requests for Admission is to expedite the trial by establishing certain material facts as true, thus reducing the number of issues for trial."). Here, whether plaintiffs investigated and filed bankruptcy trust claims are not issues that would arise at trial. Additionally, courts addressing motions under Rule 36 "do not compel a different answer" to a request for admission "simply because the requesting party 'is unsatisfied with [the responding party's] denials.'" Bakambia v. Schnell, No. 20-cv-1434, 2021 WL 4622250, at *7 (D. Minn. Oct. 7, 2021) (citation omitted). "A disagreement with an answering party's refusal to admit certain matters and an argument that the record shows otherwise is generally not a basis to require the answering party to provide a different answer." Id. Plaintiffs will therefore not be ordered to amend or supplement their responses to Requests for Admission Nos. 1 and 2.
Request for Production No. 1 required plaintiffs to produce all documents related to asbestos trust claims. Since plaintiffs have sworn they have not filed any such claims, there are no documents to produce, at least at this time. Defendants' motions to compel, as they relate to the discovery requests, will be granted in part and denied in part. Plaintiffs must specifically respond to Interrogatory No. 2 to the extent it asks whether they have investigated all potential asbestos trust claims. Plaintiffs will not be ordered to otherwise supplement their discovery responses.
2. North Dakota Century Code Section 32-46.1-02's Investigation and Filing Requirements
Defendants request that the court compel plaintiffs to investigate and file available asbestos trust claims in accordance with section 32-46.1-02(1). That statute, titled "Required disclosures by plaintiff," provides:
1. Within thirty days after an asbestos action is filed, the plaintiff shall:
a. Provide the court and parties with a sworn statement signed by the plaintiff and plaintiff's counsel indicating an investigation of all asbestos trust claims has been conducted and all asbestos trust claims that could be made by the plaintiff have been filed. The sworn statement must indicate whether a request has been made to defer, delay, suspend, or toll any asbestos trust claim and provide the disposition of each asbestos trust claim.
b. Provide parties with all trust claims materials, including materials related to the conditions other than those that are the basis for the asbestos action and any materials from all law firms connected to the plaintiff in relation to the plaintiff's exposure to asbestos.
c. Produce all available trust claims materials submitted to any asbestos trusts by other individuals if the plaintiff's asbestos trust claim is based on exposure to asbestos through those individuals.
N.D. Cent. Code § 32-46.1-02(1) (emphasis added).
As discussed in the December 1 order, the North Dakota statute—though titled "Required disclosures by plaintiff"— requires more than disclosure. (See Doc. 147, pp. 8-9). It also requires, at least impliedly, a plaintiff to investigate and file all available trust claims. Because Rule 26 controls discovery, including disclosure requirements, the December 1 order concluded Rule 26 preempts section 32-46.1-02's disclosure requirements. Id. at 14-16.
Defendants contend section 32-46.1-02(1)(a)'s inherent investigation and filing requirements do not conflict with any Federal Rule of Civil Procedure, those requirements are substantive, and plaintiffs should therefore be compelled to "investigate and file available asbestos bankruptcy trust claims" in accordance with the Trust Transparency Act. (Doc. 161, p. 2). Defendants rely on a decision from another district, which determined only part of Utah's Asbestos Bankruptcy Trust Claims Transparency Act was preempted by Rules 26 and 37 but a section permitting orders to compel filing of trust claims was not preempted. See Hipwell v. Air & Liquid Sys. Corp., 1:20-cv-00063-JNO-JCB, 2020 WL 6899492 (D. Utah Nov. 24, 2020). The court next discusses when federal procedural rules preempt state statutes.
If a state statute directly collides with a federal procedural rule, the federal rule governs in a diversity case unless the federal rule violates the Constitution or the Rules Enabling Act. Burlington N.R.R. Co. v. Woods, 480 U.S. 1, 4-5, 107 S.Ct. 967, 94 L.Ed.2d 1 (1987). "If the federal rule does not apply or can operate alongside the state rule, then ... the court must engage in the traditional Rules of Decision Act inquiry under Erie [R. Co. v. Tompkins, 304 U.S. 64, 58 S.Ct. 817, 82
L.Ed. 1188 (1938)] and its progeny." Shady Grove Orthopedic Assocs., P.A. v. Allstate Ins. Co., 559 U.S. 393, 421, 130 S.Ct. 1431, 176 L.Ed.2d 311 (2010).
As discussed in the December 1 order, the Hipwell court determined Rules 26 and 37 preempted section 2004, now section 2405, of Utah's Act, which required a plaintiff to investigate potential asbestos trust claims but did not require a plaintiff to file a potential asbestos trust claim. (See Doc. 147, pp. 9-10). It required a plaintiff to provide:
(1) a sworn statement identifying all asbestos trust claims that a plaintiff has filed or could file within 120 days prior to trial; (2) all trust claim materials for each asbestos trust claim that has been filed by a plaintiff; and (3) supplement the information and materials within 90 days after a plaintiff files an additional asbestos trust claim, supplements an existing trust claim, or receives additional information or materials related to a claim or potential claim.
Hipwell, 2020 WL 6899492, at *2 (citing Utah Code Ann. § 78B-6-2004(1)-(3) (2022)). Section 2004 further provided that failure to comply "shall constitute grounds for the court to extend the trial date in an asbestos action." Id. (citing Utah Code Ann. § 78B-6-2004(4) (2022)).
The current version of the Utah statute includes provisions requiring a court to stay an asbestos action if the court finds a plaintiff failed to make the required disclosures within the requisite time and permitting a court to stay an asbestos action until the plaintiff files any potential asbestos trust claims and provides trust claim materials to other parties. Utah Code Ann. § 78B-6-2405(8) (effective May 3, 2023).
The Hipwell court did not, however, find section 2007, now section 2406, of Utah's Act preempted:
Section 2007 sets forth a process for Defendants to compel Plaintiff to file asbestos trust claims prior to trial if Defendants identify a claim that they reasonably believe Plaintiff can file. Utah Code Ann. § 78B-6-2007(1)-(2). If Plaintiff does not file the claim per Defendants' request, the court can order Plaintiff to file the claim and stay the case if a sufficient basis exists to file the claim identified by Defendants. Utah Code Ann. § 78B-6-2007(3). No federal procedural rule exists that either allows a party to move to compel the filing of trust claims or authorizes a court to grant such a motion.
Id. at *3. After considering Erie, the Hipwell court determined section 2007 applied and incorporated that statute's deadlines into the scheduling order. Id.
Here, like the court in Hipwell recognized, no federal procedural rule allows a party to move to compel the filing of trust claims or authorizes a court to grant such a motion. But, unlike Utah's section 2007, which permitted motions to compel plaintiffs to file trust claims and permitted court orders directing that they do so, North Dakota's section 32-46.1-02(1) includes no such provision. Thus, regardless of whether section 32-46.1-02(1)(a)'s inherent investigation and filing requirements would apply in this court under Erie, there is no authority for this court to order plaintiffs to file trust claims. In fact, another North Dakota statute provides a plaintiff is not required to file an available claim if "the cost of submitting an asbestos trust claim exceeds the plaintiff's reasonably anticipated recovery," though in those circumstances the plaintiff must provide "all parties with a verified statement of the plaintiff's history of exposure, usage, or other connection to asbestos covered by the identified asbestos trust." N.D. Cent. Code § 32-46.1-03(4). Defendants rely on another case from this court, Kotalik v. A.W. Chesterton Co., 471 F. Supp. 3d 934 (D.N.D. 2020), which described the Trust Transparency Act's disclosure requirements as substantiative law and granted a motion to compel the plaintiffs' compliance with section 32-46.1-02(1). But, in the December 1 order, this court reexamined its Kotalik decision:
The Kotalik order addressed nearly identical motions in two cases—Kotalik and Selfors v. Apollo Piping Supply, Inc., 471 F.Supp.3d 934 (D.N.D. 2020). This court refers to the two cases collectively as Kotalik.
Kotalik did not address whether section 32-46.1-02 conflicted with any federal rule, specifically noting that argument had not been raised. 471 F. Supp. 3d at 945. In determining section 32-46.1-02 was substantive rather than procedural, this court noted the plaintiffs did "not directly address defendants' position that the disclosure requirements of the Trust Transparency Act [were] substantive, and not procedural, law" and further noted the plaintiffs' brief referred to the defendants' motions as involving a "North Dakota state substantive law." Id. at 948. Given those circumstances, Kotalik did not analyze whether section 32-46.1-02 is substantive or procedural and Kotalik is therefore not instructive....
(Doc. 147, p. 8).
Kotalik was decided before courts in this district considered Shady Grove's impact on another North Dakota statute. In a series of decisions relying on Shady Grove, courts in this district concluded Federal Rule of Civil Procedure 15, rather than North Dakota Century Code section 32-03.2-11(1), sets the standard for motions to amend pleadings to add claims for exemplary damages in cases where jurisdiction is based on diversity. See Friederichs v. Sanford Health, No. 3:22-cv-8, 2022 WL 16549160, at *2 (D.N.D. July 21, 2022); Weather Modification LLC v. Brackin, 340 F.R.D. 316, 322 (D.N.D. 2021); Ralston v. PFG Transco, Inc., No. 3:20-cv-236, 2021 WL 2669559, at *3 (D.N.D. May 4, 2021); First Int'l Bank & Trust v. Oasis Petroleum N. Am., LLC, 587 F. Supp. 3d 896, 903 (D.N.D. 2020), aff'd, No. 1:18-cv-67, 2020 WL 1297754 (D.N.D. Aug. 18, 2020). Kotalik did not discuss Shady Grove. And Kotalik did not discuss whether any federal procedural rule, or section 32-46.1-02(1), permitted court orders directing plaintiffs to file asbestos trust claims. Insofar as it described the Trust Transparency Act's disclosure requirements as substantive law and directed the plaintiffs' compliance with the requirements of section 32-46.1-02(1), the court now recognizes Kotalik was wrongly decided.
Of the decisions applying Shady Grove to North Dakota's exemplary damages statute, First International was the only decision that preceded the Kotalik decision. Another magistrate judge issued the First International decision shortly before this court's Kotalik decision. The First International decision was appealed, and a district judge affirmed the decision after Kotalik was decided.
The December 1 order contemplated discovery focused on each plaintiff's history of exposure, usage, or other connection to asbestos that might be covered by an asbestos trust claim. Certainly, since apportionment of fault is a relevant area of inquiry, defendants could have served discovery requesting that each plaintiff identify every potential asbestos bankruptcy trust claim he could make and requesting that each plaintiff provide information related to any potential claims that could be relevant to apportionment of fault.
Because defendants now request relief that is not available regardless of whether investigation and filing requirements
apply in this court, the court will deny defendants' motion to compel plaintiffs to investigate and file asbestos bankruptcy trust claims. But the court will permit additional discovery for the purpose of identifying all asbestos trust claims each plaintiff could make, each plaintiff's history of exposure, usage, or other connection to asbestos covered by any asbestos trust, and any other discovery relevant to apportionment of fault.
One North Dakota state court granted a motion to enforce a plaintiff's compliance with section 32-46-02(1) of the Trust Transparency Act. The state court's order stated that if the plaintiff did not comply with that section, the defendants could "file a motion and affidavit for non-compliance" and the state court would dismiss the case pursuant to section 32-46.1-02(3). (Doc. 106-1, p. 2). The state court did not, however, discuss its authority to grant such a motion and did not discuss section 32-46.1-03(4). (See Doc. 106-2). Further, this court notes the state court described the Trust Transparency Act as a "legislatively-enacted rule of procedure" and a "procedural statute." Id. at 85.
Conclusion
Defendants' motions to compel are GRANTED IN PART and DENIED IN PART. Within ten days of the date of this order, each plaintiff must specifically respond to Interrogatory No. 2 to the extent it asks whether he has investigated all potential asbestos trust claims. Defendants may serve additional discovery, as described above, within fourteen days of the date of this order. After meeting and conferring and within thirty days of the date of this order, the parties in each case are to submit joint proposals as to any necessary extension of pretrial deadlines. Those proposals should be emailed to ndd_JSenechal@ndd.uscourts.gov. After the court receives the proposals, a status conference may be scheduled.
IT IS SO ORDERED.