Ruffin v. BP Exploration & Production, Inc.

UNITED STATES DISTRICT COURT

EASTERN DISTRICT OF LOUISIANA

FLOYD RUFFIN * CIVIL ACTION

VERSUS * NO. 20-334

BP EXPLORATION & * SECTION “B” (2)

PRODUCTION, INC., ET AL.

Related to: 12-968 BELO

in MDL No. 2179

ORDER AND REASONS

Plaintiff Floyd Ruffin’s Motion to Quash subpoena duces tecum issued to Natalie Perlin,

PhD and Clair Paris, PhD (ECF No. 40) is pending before me in this matter. Defendants ABP

Exploration & Production, Inc. and BP America Production Company filed a timely Opposition

Memorandum and a supplemental notice of authority. ECF Nos. 41; 43. No party requested oral

argument in accordance with Local Rule 78.1, and the Court agrees that oral argument is

unnecessary.

Having considered the record, the submissions and arguments of counsel, and the

applicable law, Plaintiff’s Motion is DENIED for the reasons stated herein.

I. BACKGROUND

Plaintiff filed this Back-End Litigation Option suit (“BELO”) for Later Manifested

Physical Conditions (“LMPC”) on January 19, 2020. See ECF No. 1. Plaintiff alleges that he

suffered injuries as a result of exposure (through inhalation, airborne and direct contact) to oil,

dispersants, and other harmful chemicals. Id. ¶ 24. Plaintiff contends the exposure led to his

Prostatic Adenocarcinoma, and seeks damages for pain and suffering, mental anguish, medical

expenses, lost earnings, loss of earning capacity, other economic loss, loss of enjoyment of life

and fear of future medical issues. Id. ¶¶ 26; 32. Plaintiff claims to have satisfied all pre-suit

conditions precedent required by the MSA. Id. ¶¶ 27–29.

Plaintiff intends to offer expert testimony of Dr. Perlin and Dr. Paris, whom he contends

are experts in oil particle modeling, oil fate and transport, and the dispersion of biotic and abiotic

matter in marine ecosystems, to explain how and when hazardous toxicants were at the sites where

Plaintiff worked. ECF No. 40-1, at 2. Defendants issued a subpoena duces tecum to Dr. Perlin

and Dr. Paris, which Plaintiff contends “goes overboard.” Id. at 5; ECF No. 40-2. Plaintiff argues

that only the inputs and outputs of the computer model should be produced, not the “source code,”

and both the source code and the Connectivity Modeling System (“CMS”) modeling program

developed by Dr. Perlin, Dr. Paris and other University of Miami colleagues and sought through

the subpoena are proprietary trade secrets that do not need to be disclosed in this action. ECF No.

40-1, at 6–8.

Defendants oppose the motion, arguing that the discovery sought is necessary for them to

understand the experts’ methodology of their model, which results are “astonishingly” different

results from the actual water samples collected. ECF No. 41, at 2. Without this information,

Defendants argue, they would be unable to effectively conduct a true Daubert inquiry. Id. at 2, 6–

8. Additionally, Defendants contend that Plaintiff has not established “good cause” as required by

either Rule 26 or Rule 45. BP contends that it has offered to enter into a protective order regarding

the information and that Plaintiff has failed to establish that the information sought constitutes a

trade secret or confidential research. Id. at 4–5. Additionally, Plaintiff lacks standing to quash the

subpoenas duces tecum. Id. at 8–9.

II. APPLICABLE LAW

A. The Scope of Discovery

Under Rule 26, “[p]arties may obtain discovery regarding any nonprivileged matter that is

relevant to any party’s claim or defense and proportional to the needs of the case, considering the

importance of the issues at stake in the action, the amount in controversy, the parties’ relative

access to relevant information, the parties’ resources, the 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). Rule 26(b)(2)(C)(iii) directs the Court to limit the

frequency or extent of discovery otherwise allowed, if it determines: (1) the discovery sought is

unreasonably cumulative or duplicative, or can be obtained from some other source that is more

convenient, less burdensome, or less expensive; (2) the party seeking discovery had ample

opportunity to obtain the information; or (3) the proposed discovery is outside the scope of Rule

26(b)(1).

The threshold for relevance at the discovery stage is lower than the threshold for relevance

of admissibility of evidence at the trial stage.1 This broader scope is necessary given the nature of

litigation, where determinations of relevance for discovery purposes are made well in advance of

trial.2 Facts that are not considered in determining the ultimate issues may be eliminated in due

course of the proceeding.3 At the discovery stage, relevance includes “[a]ny matter that bears on,

or that reasonably could lead to other matter that could bear on, any issue that is or may be in the

case.”4 Discovery should be allowed unless the party opposing discovery establishes that the

information sought “can have no possible bearing on the claim or defense of the party seeking

discovery.”5 If relevance is in doubt, the court should be permissive in allowing discovery.6

1 Rangel v. Gonzalez Mascorro, 274 F.R.D. 585, 590 (S.D. Tex. 2011) (citations omitted).

2 Id. n.5 (citation and quotations omitted).

3 Id.

4 Id. at 590 (citations omitted).

5 Dotson v. Edmonson, No. CV 16-15371, 2017 WL 11535244, at *3 (E.D. La. Nov. 21, 2017) (citing Merrill v. Waffle

House, Inc., 227 F.R.D. 467, 470 (N.D. Tex. 2005)).

6 E.E.O.C. v. Simply Storage Mgmt., L.L.C., 270 F.R.D. 430, 433 (S.D. Ind. 2010) (quoting Truswal Sys. Corp. v.

Hydro–Air Eng’g, Inc., 813 F.2d 1207, 1212 (Fed. Cir. 1987) (internal quotations omitted)).

B. Motion to Quash and Standing

Discovery may be obtained from non-parties pursuant to Rule 45 of the Federal Rules of

Civil Procedure. Although governed in the first instance by Rule 45, non-party subpoenas are also

subject to the parameters of Rule 26.7 “Both Rules 45 and 26 authorize the court to modify a

subpoena duces tecum when its scope exceeds the boundaries of permissible discovery or

otherwise violates the parameters of Rule 45.”8

The person filing the motion to quash has the burden of proof to demonstrate that

compliance would impose undue burden or expense.9 To determine whether the subpoena presents

an undue burden, the Fifth Circuit considers the following factors: (1) relevance of the information

requested; (2) the need of the party for the documents; (3) the breadth of the document request;

(4) the time period covered by the request; (5) the particularity with which the party describes the

requested documents; and (6) the burden imposed.10 “Whether a burdensome subpoena is

reasonable ‘must be determined according to the facts of the case,’ such as the party's need for the

documents and the nature and importance of the litigation.”11

A party, however, may not seek to quash a subpoena directed to a third party when the

party is not in possession of the materials subpoenaed and does not allege any personal right or

privilege with respect to the materials subpoenaed because the party lacks standing.12 A party who

7 In re Application of Time, Inc., No. 99-2916, 1999 WL 804090, at *7 (E.D. La. Oct. 6, 1999) (citations omitted),

aff'd, 209 F.3d 719 (5th Cir. 2000).

8 Hahn v. Hunt, No. 15-2867, 2016 WL 1587405, at *2 (E.D. La. Apr. 20, 2016) (citing Fed. R. Civ. P. 45(d)(3);

26(c)(1)(D)).

9 See Wiwa v. Royal Dutch Petroleum Co., 392 F.3d 812, 818 (5th Cir. 2004) (citations omitted); McLeod, Alexander,

Powel & Apffel, P.C. v. Quarles, 894 F.2d 1482, 1485 (5th Cir. 1990) (citation omitted) (finding party resisting

discovery must show why each discovery request is not relevant or otherwise objectionable).

10 Wiwa, 392 F.3d at 818 (internal citations omitted).

11 Id. (citation omitted).

12 Brown v. Braddick, 595 F.2d 961, 967 (5th Cir. 1979) (ruling movants lacked standing because they were not in

possession of the materials subpoenaed and had no personal right or privilege in the materials subpoenaed); Black v.

DMNO, LLC, No. 16-02708, 2018 WL 488991, at *2 (E.D. La. Jan. 19, 2018) (“[I]n order to challenge the subpoena,

the movant must be: in possession or control of the requested material; be the person to whom the subpoena is issued;

lacks standing under Rule 45 does have standing to seek relief under Rule 26(c).13

C. Protective Order

Under Rule 26, a “court may, for good cause, issue an order to protect a party or person

from annoyance, embarrassment, oppression, or undue burden or expense.” Fed. R. Civ. P.

26(c)(1). “Good cause” exists when disclosure will result in a clearly defined and serious injury

to the party seeking the protective order.14 In determining good cause, the court must balance the

risk of injury without the protective order and the requesting party's need for information.15 The

party seeking the protective order bears the burden of showing that a protective order is necessary,

“which contemplates a particular and specific demonstration of fact as distinguished from

stereotyped and conclusory statements.”16

Rule 26 offers a variety of potential options that the court may use to protect the moving

party, including forbidding or limiting the scope of discovery into certain matters or requiring that

a trade secret or other confidential commercial information not be revealed or be revealed in only

or have a personal right or privilege in the subject matter of the subpoena.”) (citation omitted); Bounds v. Cap. Area

Fam. Violence Intervention Ctr., Inc., 314 F.R.D. 214, 218 (M.D. La. 2016) (“Parties have limited standing to quash

subpoenas served on non-parties pursuant to Rule 45.”) (citation omitted); see also Weatherly v. State Farm Fire &

Cas. Ins. Co., No. 07-4371, 2009 WL 1507353, at *2 (E.D. La. May 28, 2009) (holding that defendant did not have

standing to challenge the subpoena where it had no privilege over the documents); Guzman v. Latin Am. Ent., LLC,

No. 6:13-CV-41, 2014 WL 12599345, at *1 (S.D. Tex. July 2, 2014) (Costa, J.) (citing U.S. Bank Nat. Ass'n v. James,

264 F.R.D. 17, 18–19 (D. Maine 2010) (“The general rule is that a party has no standing to quash a subpoena served

upon a third party, except as to claims of privilege relating to the documents being sought.”)); Frazier v. RadioShack

Corp., No. 10-855, 2012 WL 832285, at *1 (M.D. La. Mar. 12, 2012) (“As an initial matter, it should be noted that a

plaintiff cannot challenge a Rule 45 subpoena directed to a third party on the basis that it violates another person's

privacy rights . . . that the subpoena is overly broad, or that the subpoena seeks information that is irrelevant because

only the responding third party can object and seek to quash a Rule 45 subpoena on those grounds.”).

13 Bounds, 314 F.R.D. at 218 (“Nevertheless, a party has standing to move for a protective order pursuant to Rule

26(c) seeking to limit the scope of discovery, even if the party does not have standing pursuant to Rule 45(d) to bring

a motion to quash a third-party subpoena.”) (citing Singletary v. Sterling Transp. Co., 289 F.R.D. 237, 240 n.2 (E.D.

Va. 2012); Auto–Owners Ins. Co. v. Se. Floating Docks, Inc., 231 F.R.D. 426, 429 (M.D. Fla. 2005); Washington v.

Thurgood Marshall Acad., 230 F.R.D. 18, 22 (D.D.C. 2005)).

14 Pansy v. Borough of Stroudsburg, 23 F.3d 772, 786 (3d Cir. 1994).

15 Blanchard & Co., Inc. v. Barrick Gold Corp., No. 02-3721, 2004 WL 737485, at *5 (E.D. La. Apr. 5, 2004).

16 E.E.O.C. v. BDO USA, L.L.P., 876 F.3d 690, 698 (5th Cir. 2017) (citing In re Terra Int’l, 134 F.3d 302, 306 (5th

Cir. 1998) (quoting United States v. Garrett, 571 F.2d 1323, 1326 n.3 (5th Cir. 1978))).

a certain way. Fed. R. Civ. P. 26(c)(1)(D), (G). A district court may exercise its sound discretion

in determining how far to restrict discovery; and, in particular, the decision whether to grant or

deny a request for a protective order is entrusted to the district court’s sound discretion.17 The trial

court enjoys wide discretion in setting the parameters of a protective order.18

III. ANALYSIS

The information sought by Defendants’ subpoenas duces tecum is relevant and necessary

for a proper Daubert analysis. The cases cited by Plaintiff in support of his standing argument are

inapposite. See ECF No. 40-1, at 10–11. Unlike Valdez v. Mears Group Inc., No. 18-01306, 2019

WL 6829471, at *3 (W.D. La. Dec. 12, 2019), the “source code” and modeling information sought

does not reflect information in which Plaintiff has a personal right or privilege, such as personal

medical information. Likewise, that information was neither sent by nor for Plaintiff, as in

Marquette Transportation Co. Gulf-Island, LLC v. M/V Chembulk Westport, No. 13-6216, 2016

WL 659083, at *3 (E.D. La. Feb. 18, 2016). Thus, Plaintiff lacks standing to urge the motion to

quash either on behalf of the two experts or the University of Miami, as Chief Magistrate Judge

North and Magistrate Judge van Meeerveld recently recognized in similar cases.19

Assuming that the information sought would qualify as a trade secret or confidential

research despite Plaintiff’s failure to make the particularized showing required, the entry of a

protective order would adequately protect the experts and their information or research. The

parties and Plaintiff’s experts shall meet in good faith to negotiate a protective order that limits the

use and disclosure of trade secrets and proprietary information. They shall present their agreed

17 Nguyen v. Excel Corp., 197 F.3d 200, 209 n.27 (5th Cir. 1999) (citation omitted).

18 See Seattle Times Co. v. Rhinehart, 467 U.S. 20, 36 (1984) (“To be sure, Rule 26(c) confers broad discretion on the

trial court to decide when a protective order is appropriate and what degree of protection is required.”).

19 See Johnson v. BP Expl. & Prod., Inc., No. 20-1329 (E.D. La. Aug. 25, 2021); Osmer v. BP Expl. & Prod., Inc.,

No. 19-10331 (E.D. La. Sept. 2, 2021).

document via Joint Motion for Entry of Protective Order. If the parties are unable to agree on a

Protective Order, they may contact Chambers to request a status conference.

IV. CONCLUSION

Plaintiff seeks to quash Defendants’ subpoenas duces tecum issued to Plaintiffs two

experts. The information sought is relevant under Daubert, and Plaintiff lacks standing to quash

the subpoenas duces tecum. Plaintiffs conclusory assertions of confidential research and trade

secrets do not satisfy its burden to provide a “particular and specific demonstration of fact” to

justify the conclusion that the information must be protected as trade secret or confidential

research. Even if Plaintiff had, however, a protective order adequately addresses those concerns.

Accordingly, for the foregoing reasons,

IT IS ORDERED that Plaintiff's Motion to Quash (ECF No. 40) be DENIED.

New Orleans, Louisiana, this 7th day of September, 2021.

UNITED STATES MAGISTRATE JUDGE