# OCCIDENTAL CHEMICAL CORPORATION v. 21ST CENTURY FOX AMERICA, INC.

> District Court, D. New Jersey · June 13, 2022

URL: https://www.frixlaw.com/law-library/cases/10273258

## Case

- **Court:** District Court, D. New Jersey
- **Decided:** June 13, 2022
- **Opinion:** 100trialcourt
- **Cited by:** 0 later opinions in the Frix Law Library

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## Opinion text

UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF NEW JERSEY
Civil Action No. 18-11273 (MCA)(LDW)
OCCIDENTAL CHEMICAL
CORPORATION, SPECIAL MASTER DECISION
GRANTING IN PART AND DENYING
Plaintiff, IN PART SMALL PARTIES GROUP
DEFENDANTS’ MOTION FOR A
v. DETERMINATION OF PLAINTIFF’S
RESPONSES TO REQUESTS FOR
21ST CENTURY FOX AMERICA, INC., et ADMISSION AND DENYING
al., PLAINTIFF’S CROSS-MOTION FOR
A PROTECTIVE ORDER
Defendants.
INTRODUCTION
This matter comes by way of a Motion, filed by the Small Parties Group Defendants (“SPG
Defendants”) on January 14, 2022, pursuant to Federal Rule of Civil Procedure 36(a)(6), for a
determination regarding Plaintiff, Occidental Chemical Corporation’s (“OxyChem’s”), amended
answers to SPG Defendants’ Requests for Admission (the “RFAs”) (ECF No. 1945) (the “RFA
Motion”). SPG Defendants contend that OxyChem’s amended responses are insufficient and, thus,
seek an Order deeming the amended responses to the RFAs admitted.
On February 24, 2022, OxyChem filed opposition to the RFA Motion and, pursuant to
Federal Rule of Civil Procedure 26(c) and L.Civ.R. 7.1(h), a cross-motion for a protective order
(ECF No. 1997) (“Cross-Motion”). OxyChem asserts that the RFAs violate the purpose of Federal
Rule of Civil Procedure 36 because the RFAs are oppressive and unduly burdensome.
On March 28, 2022, SPG Defendants’ filed a reply in further support of the RFA Motion
and in opposition to the Cross-Motion (ECF No. 2011) (the “Reply”).
The parties have participated in several meet-and-confers to resolve the discovery dispute
over the RFAs, but were unable to come to a full resolution. However, the parties have agreed
that the dispute is limited to 267 RFAs identified in Exhibit A to OxyChem’s November 19, 2021,
letter to SPG Defendants (ECF No. 1907) (the “Nov. 19 Letter”). The motions, therefore, are ripe
for a decision by the Special Master. For the reasons set forth herein, the RFA Motion is granted
in part and denied in part, and the Cross-Motion is denied. The Special Master’s Findings as to
all disputed RFAs are detailed in Exhibit A to this Decision and OxyChem has 30 days to provide

amended answers as required in Exhibit A.
BACKGROUND

A. SPG Defendants’ RFAs

On July 13, 2021, SPG Defendants served 449 RFAs on OxyChem (ECF No. 1504) (the
“July 13 Letter”). See July 13 Letter at 1; see also Exhibit A to the RFA Motion.1
On August 13, 2021, OxyChem sent a letter to SPG Defendants to request a meet-and-
confer to discuss the RFAs. See ECF No. 1945-9.
On August 23, 2021, OxyChem sent a letter to SPG Defendants wherein OxyChem: (i)
objected to the RFAs as unduly burdensome; (ii) proposed a meet-and-confer to discuss the RFAs;
and (iii) requested that the Special Master grant leave to file a motion to quash or for protection.
See July 13 Letter.
On September 2, 2021, the parties held a meet-and-confer on the RFAs. See ECF No.
1997-4.
On September 10, 2021, OxyChem provided its initial responses to the RFAs. See ECF
No. 1945-3 at 4.
On October 13, 2021, SPG Defendants sent a letter to OxyChem stating that OxyChem’s
initial responses to the RFAs were improper and included inappropriate answers and/or denials.

1 SPG Defendants served the RFAs prior to the parties’ agreement that the universe of RFAs is
limited to 267 RFAs.
See ECF No. 1945-10 (“Oct. 13 Letter”). SPG Defendants also requested a meet-and-confer to
discuss the responses. OxyChem did not respond to the Oct. 13 Letter.
On October 27, 2021, SPG Defendants sent a follow up letter to OxyChem. See ECF No.
1945-11.
On November 10, 2021, the parties held a second meet-and-confer to discuss OxyChem’s

initial responses to the RFAs. See ECF No. 1945-2.
On November 17, 2021, the Special Master held a status conference (the “November Status
Conference”). At the November Status Conference, OxyChem reported that it agreed to provide
amended responses to the RFAs on or about December 8, 2021. Prior to doing so, however,
OxyChem requested that SPG Defendants submit correspondence detailing which, if any, of the
449 RFAs SPG Defendants planned to withdraw.
On November 19, 2021, OxyChem filed the Nov. 19 Letter wherein OxyChem requested
confirmation that the discovery dispute was limited to the 267 RFAs listed in Exhibit A to the Nov.
19 Letter.

On November 30, 2021, SPG Defendants confirmed that the dispute was limited to the 267
RFAs identified in Exhibit A, and that any motion practice related to the RFAs would not include
RFAs outside the 267. See ECF No. 1910.
On December 8, 2021, OxyChem served amended answers and objections to the RFAs (the
“Amended Responses”). See ECF No. 1945-12.
On December 9, 2021, OxyChem filed a letter to the Special Master to provide an update
on the dispute. See ECF No. 1922 at 1.
On December 15, 2021, SPG Defendants filed a letter stating that SPG Defendants planned
to file a motion to determine the sufficiency of the Amended Responses. See ECF No. 1929.
B. SPG Defendants’ RFA Motion

On January 14, 2022, SPG Defendants filed the RFA Motion. SPG Defendants contend
that the Amended Responses should be deemed admitted, or alternatively, OxyChem should be
directed to serve additional amended responses for failing to properly admit or deny the RFAs.
To that end, SPG Defendants set forth three arguments in support of the RFA Motion: (i)
OxyChem relied on boilerplate objections; (ii) OxyChem provided evasive answers to
straightforward requests; and (iii) OxyChem offers irrelevant, self-serving explanations. SPG
Defendants also rely on unpublished cases from the Eastern District of Pennsylvania for the
proposition that responses, which do not go to the truth contained in the RFAs and purportedly
frustrate the purpose of Federal Rule of Civil Procedure 36, require that the responding party
submit amended responses. See United States v. Lorenzo, 1990 U.S. Dist. LEXIS 7362 (E.D. Pa.
June 14, 1990); Penn Eng’g & Mfg. Corp. v. Peninsula Components, Inc., 2021 U.S. Dist. LEXIS
64382 (E.D. Pa. April 1, 2021).
C. OxyChem’s Cross-Motion for a Protective Order

On February 24, 2022, OxyChem filed the Cross-Motion. By way of support, OxyChem
asserts that a protective order should be entered because: (i) the RFAs are oppressive and unduly
burdensome by sheer number, form, and subject; (ii) the Amended Responses are not evasive; and
(iii) OxyChem provided qualifications and explanations where necessary.
In citing to a decision from the District for the District of Columbia, Harris v. Koenig, 271
F.R.D. 356, 372 (D.D.C. 2010), OxyChem asserts that the propounding parties’ disagreement with
an answer is neither a proper basis for finding a response insufficient, nor grounds for deeming
requests admitted. OxyChem also cites to an unpublished decision from this District for the
proposition that whether OxyChem properly denied an RFA requires an analysis of the denial and
qualification, if any. In re Valeant Pharms. Int’l Secs. Litig., 2021 U.S. Dist. LEXIS 108161, *50
(D.N.J. April 1, 2021) (citations omitted).
Finally, OxyChem asserts that should the Special Master find any of the Amended
Responses insufficient, the proper relief is to order OxyChem to submit additional amended
responses.

D. SPG Defendants’ Reply

On March 28, 2022, SPG Defendants filed the Reply. SPG Defendants set forth two
arguments in support of granting the RFA Motion and denying the Cross-Motion. First, SPG
Defendants argue that OxyChem improperly seeks to relieve itself of its obligation to further
amend its Amended Responses. Second, SPG Defendants argue that OxyChem failed to show
significant harm or that the RFAs are unduly burdensome and/or oppressive.
LEGAL STANDARD

A. Requests for Admission Are Used to Admit the Truth of Matters Pertinent to the Case

Federal Rule of Civil Procedure 36 governs requests for admission. Shelton v. Fast
Advance Funding, LLC, 805 Fed. Appx. 156, 158 (3d Cir. 2020). The Rule provides in pertinent
part:
A party may serve on any other party a written request to admit, for
purposes of the pending action only, the truth of any matters within
the scope of Rule 26(b)(1) relating to: (A) facts, the application of
law to fact, or opinions about either; and (B) the genuineness of any
described documents.

[FED. R. CIV. P. 36(a)(1)(A)-(B).]

Requests for admission “serve[] two vital purposes, both of which are designed to reduce
trial time.” Notes of Advisory Committee on 1970 Amendments. First, “to facilitate proof with
respect to issues that cannot be eliminated from the case,” and second, “to narrow the issues by
eliminating those that can be.” Ibid.
Federal Rule of Civil Procedure 36 “give[s] an admission a conclusively binding effect,
for purposes only of the pending action, unless the admission is withdrawn or amended.” Note to
Subdivision (b); see also Shelton, 805 Fed. Appx. at 158-59 (“An admission is . . . an unassailable
statement of fact and is binding on the non-responsive party unless withdrawn or amended.”)

(citations omitted); Langer v. Monarch Life Ins. Co., 966 F.2d 786, 803 (3d Cir. 1992)
(“[A]dmissions are conclusive for purposes of the litigation and are sufficient to support summary
judgment.”) (citation omitted).
If a “matter is not admitted, the answer must specifically deny it or state in detail why the
answering party cannot truthfully admit or deny it.” FED. R. CIV. P. 36(a)(4). When denying a
request for admission, the “use of only the word denied is often sufficient under the [R]ule.”
United Coal Cos. v. Powell Constr. Co., 839 F.2d 958, 967 (3d Cir. 1988) (citations and internal
quotations omitted).
The propounding party “may move to determine the sufficiency of an answer or objection.”

FED. R. CIV. P. 36(a)(6). “Unless the court finds an objection justified, it must order that an answer
be served.” Id. Upon “finding that an answer does not comply with” Federal Rule of Civil
Procedure 36, the “court may order either that the matter is admitted or that an amended answer
be served.” Id.
Accordingly, on a motion pursuant to Federal Rule of Civil Procedure 36(a)(6), the court
must analyze each of the requests of admission, and the response thereto, to determine if the
responding party must submit amended answers and/or if any answer should be deemed admitted.
B. Good Cause Must Be Demonstrated to Warrant Entry of a Protective Order

Federal Rule of Civil Procedure 26(c)(1) provides in pertinent part that:
A party or any person from whom discovery is sought may move for
a protective order in the court where the action is pending . . . The
court may, for good cause, issue an order to protect a party or person
from annoyance, embarrassment, oppression, or undue burden or
expenses, including . . . (A) forbidding the disclosure or discovery;
. . . [or, inter alia, ] (D) forbidding inquiry into certain matters, or
limiting the scope of disclosure or discovery to certain matters . . . .

[FED. R. CIV. P. 26(c) (1)(A)-(D).]

“If a motion for a protective order is wholly or partly denied, the court may, on just terms,
order that any party or person provide or permit discovery.” FED. R. CIV. P. 26(c)(2).
A “court may issue a protective order to regulate the terms, conditions, time or place of
discovery.” Adesanya v. Novartis Pharms. Corp., 2015 U.S. Dist. LEXIS 159712, *5 (D.N.J. Nov.
24, 2015) (citations omitted). Indeed, the “objective” of Federal Rule of Civil Procedure 26 is “to
guard against redundant or disproportionate discovery by giving the court authority to reduce the
amount of discovery that may be directed to matters that are otherwise proper subjects of inquiry.”
Notes of Advisory Committee on 1983 amendments, Note to Subdivision (b). To that end, the
“grounds” for “limiting discovery reflect the existing practice of many courts in issuing protective
orders under Rule 26(c).” Id.
DISCUSSION
A. The Motions Are Not Procedurally Defective

Several procedural arguments are raised by the parties that must be initially addressed.
First, it is undeniable that the RFAs at issue here are the 267 RFAs identified by OxyChem and
confirmed by SPG Defendants. Therefore, the Special Master’s Findings apply only to the 267
RFAs. This Decision has no bearing on any of the 182 other RFAs not identified in Exhibit A to
the Nov. 19 Letter, and does not bar any party from serving requests for admission on any other
party at a later date.
Second, OxyChem was required to respond to the RFAs within thirty-days, but failed to
do so. See FED. R. CIV. P. 36(a)(3); see also Certain Underwriters at Lloyd’s of London v. Alesi,
843 F. Supp. 2d 517, 532 (D.N.J. Dec. 30, 2011) (citations omitted). However, upon receipt of the

RFAs, OxyChem requested an extension of time to respond. See ECF No. 1945-8 at 6. The parties
also held their first meet-and-confer prior to the due date. Finally, OxyChem submitted its initial
responses to the RFAs on the requested date. As a result, neither OxyChem’s initial responses nor
the Amended Responses are untimely.
Third, contrary to SPG Defendants’ assertion, OxyChem’s motion for leave to file a motion
to quash or protective order is of no consequence. On September 22, 2021, the Special Master
held a status conference. At the September Status Conference, the Special Master stated that
motion practice related to the RFAs would be decided on “the merits of the issue as opposed to
any procedural wranglings[,]” and not on whether OxyChem purportedly waived its “burden

objection by answering” the RFAs. See ECF No. 1997-10, Tr. of September Status Conference at
T54:25-T56:1. Therefore, the Special Master does not accept SPG Defendants’ contention that
OxyChem’s motion to quash or for a protective order is moot because of OxyChem’s responses to
the RFAs.
Fourth, Federal Rule of Civil Procedure 36 permits OxyChem to qualify its answer. See
FED. R. CIV. P. 36(a)(4) (A denial “must fairly respond to the substance of the matter; and when
good faith requires that a party qualify an answer to deny only a part of a matter, the answer must
specify the part admitted and qualify or deny the rest.”). SPG Defendants’ arguments to the
contrary do not bar OxyChem from qualifying its Amended Responses, where appropriate. The
appropriateness of each of OxyChem’s qualified responses is addressed in Exhibit A.
Fifth, Federal Rule of Civil Procedure 36 provides that “a denial is a perfectly reasonable
response[,]” United Coal Cos., 839 F.2d at 967. The denial, however, “must fairly respond to the
substance of the matter; and when good faith requires that a party qualify or an answer to deny
only a part of a matter, the answer must specify the part admitted and qualify or deny the rest.

FED. R. CIV. P. 36(a)(4). The Special Master agrees that OxyChem does not need to “explain” the
reasons for every one of its Amended Responses, see ECF No. 1504 n.1, but may need to explain
certain denials, as detailed herein. Accordingly, the Special Master will not strike all RFA
responses that contain a mere denial. Instead, the Rule requires an analysis of each RFA and the
Amended Response thereto.
Accordingly, the RFA Motion and Cross-Motion are not procedurally defective, and thus,
the motions will be decided on the merits.
B. Good Cause is Not Demonstrated to Trigger Entry of a Protective Order

Before the Special Master are two interrelated issues: (i) whether OxyChem carried its
burden to warrant entry of a protective order; and (ii) whether the Amended Responses comply
with Federal Rule of Civil Procedure 36. OxyChem failed to carry its burden to trigger entry of a
protective order regarding the RFAs. OxyChem is directed to comply with the Special Master’s
Findings for each individual RFA and Amended Response as set forth in Exhibit A, which is
annexed to this Decision.
Federal Rule of Civil Procedure 26 requires that the movant demonstrate, with specificity,
the purported harm that will occur if a protective order is not entered. FED. R. CIV. P. 26(c)(1); see
also Arnold v. Pennsylvania, 477 F.3d 105, 108 (3d Cir. 2007) (“Good cause” is defined as
“showing that disclosure will work a clearly defined and serious injury to the party seeking
closure.”) (quoting Publicker Indus., Inc. v. Cohen, 733 F.2d 1059, 1071 (3d Cir. 1986)). Failure
to meet this burden is detrimental to the protective order application. See Cipollone v. Liggett
Group, Inc., 785 F.2d 1108, 1121 (3d Cir. 1986) (“Broad allegations of harm, unsubstantiated by
specific examples or articulated reasoning” are not enough) (citations omitted). The harm, if any,
must also “be significant.” Id. (citations omitted). The “burden of persuasion is on the party

seeking the protective order.” Cipollone v. Liggett Group, Inc., 785 F.2d 1108, 1121 (3d Cir.
1986). Indeed, “[t]o overcome the presumption, the party seeking the protective order must show
good cause by demonstrating a particular need for protection.” Cipollone, 785 F.2d at 1121; see
also Glenmede Trust Co. v. Thompson, 56 F.3d 476, 483 (3d Cir. 1995) (citations omitted).
“Good cause” is established based on “balancing a number of considerations.” Arnold,
477 F.3d at 108 (citations omitted); see also In re Avandia Mktg., Sales Practices & Prods. Liab.
Litig., 924 F.3d 662, 671 (3d Cir. 2019) (citation and internal quotations omitted). Thus, whether
a protective order is warranted turns on a finding that the moving party has established good cause
based on an analysis of pertinent factors. Courts in this District have denied motions for protective

orders when movants fail to set forth the grounds “constituting good cause,” and information
sought by way of requests for admission is relevant under Federal Rule of Civil Procedure 26. See
Del Monte Fresh Produce N.A. v. M/V Tundra Consumer, 2005 U.S. Dist. LEXIS 54188, *3-5
(D.N.J. April 19, 2005). Instead, courts have opted to make specific determinations regarding the
scope of individual RFAs and the appropriateness of the responses thereto. Mickley v. Sunrise
Senior Living, 2010 U.S Dist. LEXIS 152819, *5-7 (D.N.J. May 10, 2010).
OxyChem has not carried its burden for entry of a protective order. OxyChem failed to
demonstrate that the RFAs are oppressive and/or unduly burdened by sheer number, form, and
subject. Specifically, OxyChem contends that SPG Defendants’ initial 449 RFAs are oppressive
and unduly burdensome. Whether true or not is not pertinent to the Cross-Motion. It is undisputed
that SPG Defendants withdrew 182 of its initial RFAs (449 RFAs to 267 RFAs). While certain of
the disputed 267 RFAs are improper, they are not sufficiently oppressive or burdensome to warrant
a protective order. Federal Rule of Civil Procedure 36 is clear “that a reasonable burden may be
imposed on the parties when its discharge will facilitate preparation for trial and ease the trial

process.” Note to Subdivision (a). In light of the scope of OxyChem’s claims, responding to 267
RFAs is not unduly burdensome. In fact, responses to RFAs may well ease the trial process and
resolve certain facts currently in dispute.2 Instead of entering a protective order, the Special Master
has undertaken a detailed review of all disputed RFAs to determine the appropriateness of the
requests and OxyChem’s responses. Accordingly, OxyChem’s Cross-Motion for entry of a
protective order is denied.
C. Special Master Finds That Not All of The Amended Responses Comply with Federal
Rule of Civil Procedure 36

As a threshold matter, the Special Master finds that OxyChem’s general objections serve
no legitimate purpose. Harding v. Dana Transp., 914 F. Supp. 1084, 1102 (D.N.J. 1996). As such,
they are stricken.
As required by applicable law, the Special Master has made a specific finding in respect of
each disputed RFA, analyzing OxyChem’s response and the specific and particularized objections
to each RFA. See Exhibit A. As set forth in Exhibit A, the Special Master has made one of the
following findings regarding the RFAs and the Amended Responses:
(1) The Amended Response complies with Federal Rule of Civil Procedure 36
and no further action is required;

2 It is noted that the Cross-Motion does not include a good cause analysis. Instead, OxyChem
asserts in conclusory fashion that the RFAs are oppressive and unduly burdensome without any
specific factual basis. The relevant case law is clear that this basis is insufficient.
(2) The Amended Response does not comply with Federal Rule of Civil
Procedure 36 and requires an amended response;

(3) The Amended Response does not comply with Federal Rule of Civil
Procedure 36 and the request is deemed admitted; or

(4) The RFA is improper and no further action is required.

CONCLUSION

SPG Defendants’ motion for a determination of the Amended Responses is GRANTED in
part and DENIED in part, and OxyChem’s cross-motion for a protective order is DENIED.
OxyChem shall provide any required amended answers within 30 days from the date hereof.

/s/ Thomas P. Scrivo
THOMAS P. SCRIVO
Special Master
EXHIBIT A

Special Master’s Findings
Case 2:18-cv-11273-MCA-LDW Document 2083 Filed 06/13/22 Page 14 of 58 PageID: 60817
Request Occidental Response SPG Response Special Master Findings

(15) Admit that in 1984, Objection 1, 2, 3, 4, and 5. This • Boilerplate objections that are The Special Master finds that the response complies
DSCC signed an request seeks an admission regarding inapplicable to request with Rule 36 and no further response is needed.
Administrative Consent Order an administrative consent order, • “Document speaks for itself” is Occidental admits that Diamond Shamrock
with NJDEP regarding which document speaks for itself. inappropriate objection. Chemicals Company (“DSCC”) signed the subject
contamination at the Site. Subject to these objections, admitted • Denial does not fairly meet substance of Administrative Consent Order. This response fairly
(OCC-CER000226082). in part and denied in part. OCC the request; OxyChem does not address meets the substance of the request. Moreover,
admits that on March 8, 1984, whether the Administrative Consent Occidental’s objection to the term “contamination”
Diamond Shamrock Chemicals Order relates to contamination of the is appropriate and contains a factual basis for the
Company and Marisol, Inc. signed an Lister property objection.
Administrative Consent Order with
NJDEP pertaining to the property at
80 Lister Avenue; denied that this
was an order pertaining to
“contamination at the Site,” because
the Diamond Alkali Superfund Site
was not added to the National
Priorities List until September 21,
1984.

(39) Admit a 2002 study by Objection 1, 2, 3, 4, 5, 7, and 8. This • Boilerplate objections that are The Special Master finds that the response does not
William Hansen concluded request does not accurately recite the inapplicable to request comply with Rule 36 and orders that an amended
that sediment sample referenced document. Subject to • Request does not quote document, so answer be served which addresses the basis for the
immediately offshore of the these objections, denied. objection that request “does not statement that the request does not accurately recite
Lister Plant contained the accurately recite the referenced the contents of the referenced document.
highest concentration of document” is inapposite
TCDD ever recorded in • Request accurately summarizes the
ambient environment (5 ppm). referenced conclusion in the document
(William J. Hansen, A • Impossible to decipher if denial is based
Statistical and Spatial on substance of request or stated
Analysis of Dioxin-Furan objections
Contamination in the Hudson
Estuary, 24 Northeastern
Geology & Envtl. Sci. 159,
169 (2002)).
Exhibit A to June 13, 2022 Special Master Decision
Case 2:18-cv-11273-MCA-LDW Document 2083 Filed 06/13/22 Page 15 of 58 PageID: 60818
Request Occidental Response SPG Response Special Master Findings

(45) Admit that in November Objection 1, 2, 3, 4, 5, 7, and 8. • Boilerplate objections that are The Special Master finds that the response does not
2013, NJDEP Site inapplicable to request and do not comply with Rule 36 as it merely contains
Remediation Program provide a basis for not responding objections with no admission, denial, or
employee Anne Hayton explanation. The Special Master orders that an
referred to 2,3,7,8-TCDD in amended answer be served.
sediment as ‘the pervasive,
continuing source of risk’
until remediated. (SPG-
NJDEP-000019136).
(73) Admit that PCBs were Objection 1, 2, 3, 4, and 7. Subject • Boilerplate objections that are The Special Master finds that the response does not
generated at the Lister Plant as to and without waiving these inapplicable to request comply with Rule 36 and orders that an amended
byproducts during the objections, denied. • Impossible to decipher if denial is based answer be served which addresses the basis for the
manufacture of chlorinated on substance of request or stated denial.
benzenes. objections
(75) Admit that PCBs have Objection 1, 2, 3, and 4. The request • Boilerplate objections that are The Special Master finds that this is an attempt to
been found in sediments is impermissibly vague and inapplicable to request evade the substance of the request and orders that it
adjacent to the Lister Plant. unlimited as to time. It does not • Objecting to word “adjacent” to evade be admitted that PCBs have been found in sediments
define what the SPG considers to be responding directly to request on the riverside boundary of the Lister Plant.
“adjacent” to the Lister Plant. • Inappropriate extraneous narrative to Occidental’s objection to the term “adjacent” was
Subject to these objections, admitted avoid providing clean admission appropriate, but Occidental clarified the term, as it
in part and denied in part. Admitted understood it, in its response.
that the riverside boundary of the
Lister Plant property abuts the
Lower 8.3 Miles of the Passaic
River, which EPA has described as
“ubiquitously” contaminated, bank
to bank, with chemicals of concern
including PCBs, and further
admitted that properties owned by
Defendant Sherwin Williams at 40,
60, and 62 Lister Avenue, which are
located next door to the Lister Plant
property, are contaminated with
PCBs. Denied as to any implication
that the Lister Plant is the source of
PCBs on neighboring properties or
2
Exhibit A to June 13, 2022 Special Master Decision
Case 2:18-cv-11273-MCA-LDW Document 2083 Filed 06/13/22 Page 16 of 58 PageID: 60819
Request Occidental Response SPG Response Special Master Findings

in the Lower Passaic River because
no operational or other evidence
indicates the Lister Plant used or
generated PCBs in any of its
manufacturing processes.

(82) Admit that PCBs were Objection 1, 2, 3, 4, 5, 7, and 8. This • Boilerplate objections that are The Special Master finds that Occidental’s response
detected in sumps and tanks at request is compound and vague. It inapplicable to request does not comply with Rule 36 and orders that an
the Lister Plant. fails to define what is meant by • Objecting to word “detected” to evade amended answer be served. The objection to the
“detected” or to identify how, when, responding directly to request term “detected” is not proper and Occidental’s
or where PCBs were allegedly • The request does define “where” PCBs grounds for refusing to respond is simply that
“detected” in both “sumps and were detected: “in sumps and tanks at “without reasonable inquiry and without undue
tanks” at some point in the decades- Lister Plant” burden,” Occidental cannot admit or deny this
long operating history of the Lister • Request does not need to specify “how request. Rule 36 requires that a party must
Plant or during its subsequent and “when” to be answerable. If PCBs affirmatively state that it lacks knowledge sufficient
remediation. OxyChem cannot, with ever detected in sumps and tanks, to respond only after it has made reasonable inquiry.
reasonable inquiry and without OxyChem need only answer yes
undue burden, admit or deny this • Hyper-technical objection to request as
request. compound.

(88) Admit that in or Objection 1, 2, 3, 4, 5, 7, and 8. This • Boilerplate objections that are The Special Master finds that this an attempt to
about1984 Diamond request is compound and vague and inapplicable to request evade the substance of the request and orders that it
identified PAHs in soil fails to define what is meant by • The request does define “locations” be admitted that samples from the Lister Plant site
samples taken from locations “Diamond” and how, when, or at where PAHs were identified: soil identified PAHs. Occidental’s response makes this
onshore at the Lister Plant. what specific “locations” PAHs onshore the Lister Plant admission, but in uncertain terms. Occidental’s
were “identified.” It also fails to • Request does not need to specify “how objection to the term “onshore” is appropriate, but is
define the term “onshore.” Subject and “when” to be answerable. If PAHs not sufficient to avoid responding to the request.
to and without waiving these ever identified in soil samples, Occidental’s extraneous explanation regarding an
objections, admitted in part and OxyChem need only answer yes “implication,” which is found in many of its
denied in part. Admitted that the • Extraneous narrative to avoid providing responses is not appropriate or contemplated by the
Lister Plant property, like other clean admission that “Lister Plant Federal Rules of Civil Procedure.
upland industrial areas throughout property. . . has background levels of
the Lower Passaic watershed, has PAHs.”
background levels of PAHs. Denied
as to any implication that the Lister
Plant is the source of those PAHs
3
Exhibit A to June 13, 2022 Special Master Decision
Case 2:18-cv-11273-MCA-LDW Document 2083 Filed 06/13/22 Page 17 of 58 PageID: 60820
Request Occidental Response SPG Response Special Master Findings

because: a) no known manufacturing • Denial is about implication injected by
or other process of the Lister Plant OxyChem and thus denial does not fairly
used or generated PAHs; and b) the meet substance of request
Phase I Removal Area is a known
depositional area that collects
sediments transported there from
elsewhere by the hydrodynamics of
the Lower 8.3 Miles of the Passaic
River, which the EPA has described
as “ubiquitously” contaminated with
chemicals of concern, bank to bank,
including PAHs.

(93) Admit that mercury has Objection 1, 2, 3, 4, 5, 7, and 8. This • Boilerplate objections that are The Special Master finds that this an attempt to
been found on the Lister request is vague, compound, and inapplicable to request evade the substance of the request and orders that it
Plant in soil. unlimited as to time. It fails to state • The request does define where the be admitted that mercury has been found in soil
where, when, or in what samples mercury was found: in the soil at the samples collected at the Lister Plant site.
“mercury has been found on the Lister Plant Occidental’s extraneous explanation regarding an
Lister Plant in soil.” Subject to these • Request does not need to specify “how “implication,” which is found in many of its
objections, admitted in part and and “when” to be answerable. If responses is not appropriate or contemplated by the
denied in part. Admitted that trace mercury ever detected in soil samples, Federal Rules of Civil Procedure.
amounts of mercury have been OxyChem need only answer yes
found in some soil samples collected • Extraneous narrative to avoid providing
at or near the Lister Plant property clean admission that “trace amounts of
but denied to the extent this request mercury have been found in some soil
implies the source of this mercury samples collected at. . . the Lister Plant
was the Lister Plant itself because: a) Property”
no known industrial process of the • Denial is about implication injected by
Lister Plant generated or used OxyChem and thus denial does not fairly
mercury; b) the riverside boundary meet substance of request
of the Lister Plant property abuts a
portion of the Lower 8.3 Miles of the
Passaic River, which EPA has
described as “ubiquitously”
contaminated with chemicals of
concern, bank to bank, including
4
Exhibit A to June 13, 2022 Special Master Decision
Case 2:18-cv-11273-MCA-LDW Document 2083 Filed 06/13/22 Page 18 of 58 PageID: 60821
Request Occidental Response SPG Response Special Master Findings

mercury; and, c) mercury is
transported freely through ground
and floodwaters, including through
the hydrodynamics of the Lower
Passaic River which have created a
depositional area abutting the
riverside boundary of the Lister
Plant property that contains
sediments transported there from
elsewhere.
(94) Admit that mercury has Objection 1, 2, 3, 4, 5, 7, and 8. This • Boilerplate objections that are The Special Master finds that this an attempt to
been found on the Lister Plant request is vague, compound, and inapplicable to request evade the substance of the request and orders that it
in groundwater. unlimited as to time. It fails to state • The request does define where the be admitted that mercury has been found in the
where, when, or in what samples mercury was found: in the groundwater groundwater at the Lister Plant site. Occidental’s
“mercury has been found on the at the Lister Plant extraneous explanation regarding an “implication,”
Lister Plant in soil.” Subject to these • Request does not need to specify “how which is found in many of its responses is not
objections, admitted in part and and “when” to be answerable. If appropriate or contemplated by the Federal Rules of
denied in part. Admitted that trace mercury ever found in groundwater, Civil Procedure.
amounts of mercury have been OxyChem need only answer yes
found in some groundwater at or • Extraneous narrative to avoid providing
near the Lister Plant property but clean admission that “trace amounts of
denied to the extent this request mercury have been found in some
implies the source of this mercury groundwater at. . . the Lister Plant
was the Lister Plant itself because: a) Property”
no known industrial process of the • Denial is about implication injected by
Lister Plant generated or used OxyChem and thus denial does not fairly
mercury; b) the riverside boundary meet substance of request
of the Lister Plant property abuts a
portion of the Lower 8.3 Miles of the
Passaic River, which EPA has
described as “ubiquitously”
contaminated with chemicals of
concern, bank to bank, including
mercury; and, c) mercury is
transported freely through ground
and floodwaters, including through
5
Exhibit A to June 13, 2022 Special Master Decision
Case 2:18-cv-11273-MCA-LDW Document 2083 Filed 06/13/22 Page 19 of 58 PageID: 60822
Request Occidental Response SPG Response Special Master Findings

the hydrodynamics of the Lower
Passaic River which have created a
depositional area abutting the
riverside boundary of the Lister
Plant property that contains
sediments transported there from
elsewhere.
(96) Admit that mercury was Objection 1, 2, 3, 4, 5, 7, and 8. This • Boilerplate objections that are The Special Master finds that this an attempt to
measured in sediment cores request is vague, compound, unduly inapplicable to request evade the substance of the request and orders that it
collected from the Phase I burdensome, and unlimited as to • The request does define where the be admitted that mercury has been found in
Removal Area. time. It fails to identify the particular mercury was collected: in the sediment sediment cores collected in the Phase I Removal
sediment core samples from the cores from the Phase I Removal Area Area. Occidental’s extraneous explanation
Phase I Removal Area about which • Request does not need to specify “how regarding an “implication,” which is found in many
it inquires, or to state where or when and “when” to be answerable. If of its responses is not appropriate or contemplated
they were collected. Subject to these mercury ever measured in sediment by the Federal Rules of Civil Procedure.
objections, admitted in part and cores collected from the Phase I
denied in part. Admitted that trace Removal Area, OxyChem need only
amounts of mercury have been answer yes
found in some sediment cores • Extraneous narrative to avoid providing
collected in the Phase I Removal clean admission that “trace amounts of
Area but denied as to any mercury have been found in some
implication that the Lister Plant is sediment cores collected in the Phase I
the source of this mercury because: Removal Area”
a) no known industrial process of the • Denial is about implication injected by
Lister Plant generated or used OxyChem and thus denial does not fairly
mercury; b) the riverside boundary meet substance of request
of the Lister Plant property abuts a
portion of the Lower 8.3 Miles of the
Passaic River, which EPA has
described as “ubiquitously”
contaminated with chemicals of
concern, bank to bank, including
mercury; and, c) mercury is
transported freely through ground
and floodwaters, including through
the hydrodynamics of the Lower
6
Exhibit A to June 13, 2022 Special Master Decision
Case 2:18-cv-11273-MCA-LDW Document 2083 Filed 06/13/22 Page 20 of 58 PageID: 60823
Request Occidental Response SPG Response Special Master Findings

Passaic River, which have created a
depositional area abutting the
riverside boundary of the Lister
Plant property that contains
sediments transported there from
elsewhere.
(100) Admit that lead has been Objection 1, 2, 3, 4, 5, 7, and 8. This • Boilerplate objections that are The Special Master finds that this an attempt to
found on the Lister Plant in request is vague, compound, and inapplicable to request evade the substance of the request and orders that it
groundwater. unlimited as to time. It fails to state • The request does define where the lead be admitted that lead has been found in groundwater
where, when, or in what samples was found: in groundwater at the Lister samples collected at the Lister Plant site.
“lead has been found on the Lister Plant Occidental’s extraneous explanation regarding an
Plant in groundwater.” Subject to • Request does not need to specify “how “implication,” which is found in many of its
these objections, admitted in part and “when” to be answerable. If lead responses is not appropriate or contemplated by the
and denied in part. Admitted that ever found in groundwater at the Lister Federal Rules of Civil Procedure.
trace amounts of lead have been Plant, OxyChem need only answer yes
found in some groundwater samples • Extraneous narrative to avoid providing
collected at or near the Lister Plant clean admission that “trace amounts of
property, but denied as to the lead have been found in some
embedded assumption that the traces groundwater samples collected at or near
of lead in groundwater are from the the Lister Plant property”
Lister Plant itself because: a) no • Denial is about implication injected by
known industrial process at the OxyChem and thus denial does not fairly
Lister Plant generated or used lead; meet substance of request
b) the riverside boundary of the
Lister Plant property abuts a portion
of the Lower 8.3 Miles of the Passaic
River, which EPA has described as
ubiquitously contaminated with
chemicals of concern, including
lead, that were transported to that
depositional area by the
hydrodynamics of the Passaic River
from other locations; and, c) the
Lister Plant property is also near the
New Jersey Turnpike, a heavily
trafficked area that—like others in
7
Exhibit A to June 13, 2022 Special Master Decision
Case 2:18-cv-11273-MCA-LDW Document 2083 Filed 06/13/22 Page 21 of 58 PageID: 60824
Request Occidental Response SPG Response Special Master Findings

the state—received leaded gasoline
fallout that contaminated nearby
soils and is a known source of
contamination of groundwater.
(101) Admit that lead has Objection 1, 2, 3, 4, 5, 7, and 8. This • Boilerplate objections that are The Special Master finds that this an attempt to
been found on the Lister Plant request is vague, compound, and inapplicable to request evade the substance of the request and orders that it
in soil. unlimited as to time. It fails to state • The request does define where the lead be admitted that lead has been found in soil samples
where, when, or in what samples was found: in soil at the Lister Plant collected at the Lister Plant site. Occidental’s
“lead has been found on the Lister • Request does not need to specify “how extraneous explanation regarding an “implication,”
Plant in soil.” Subject to these and “when” to be answerable. If lead which is found in many of its responses is not
objections, admitted in part and ever found in soil at the Lister Plant, appropriate or contemplated by the Federal Rules of
denied in part. Admitted that trace OxyChem need only answer yes Civil Procedure.
amounts of lead have been found in • Extraneous narrative to avoid providing
some soil samples collected at or clean admission that “trace amounts of
near the Lister Plant property, but lead have been found in some soil
denied as to the embedded samples collected at or near the Lister
assumption that the traces of lead in Plant property”
soils are from the Lister Plant • Denial is about implication injected by
because: a) no known industrial OxyChem and thus denial does not fairly
process at the Lister Plant generated meet substance of request
or used lead; b) the riverside
boundary of the Lister Plant property
abuts a portion of the Lower 8.3
Miles of the Passaic River, which the
EPA has described as ubiquitously
contaminated with chemicals of
concern, including lead, that were
transported to that depositional area
by the hydrodynamics of the Passaic
River from other locations; and, c)
the Lister Plant property is also near
the New Jersey Turnpike, a heavily
trafficked area that—like others in
the state—received leaded gasoline
fallout that contaminated nearby
soils.
8
Exhibit A to June 13, 2022 Special Master Decision
Case 2:18-cv-11273-MCA-LDW Document 2083 Filed 06/13/22 Page 22 of 58 PageID: 60825
Request Occidental Response SPG Response Special Master Findings

(103) Admit that lead was Objection 1, 2, 3, 4, 5, 7, and 8. This • Boilerplate objections that are The Special Master finds that this an attempt to
measured in sediment cores request is vague, compound, unduly inapplicable to request evade the substance of the request and orders that it
collected from the Phase 1 burdensome, and unlimited as to • The request does define where the lead be admitted that lead has been found in sediment
Removal Area. time. It fails to identify the particular was measured: in sediment cores cores collected from the Phase I Removal Area.
sediment core samples from the collected from the Phase I Removal Area Occidental’s extraneous explanation regarding an
Phase I Removal Area about which • Request does not need to specify “how “implication,” which is found in many of its
it inquires, or to state where or when and “when” to be answerable. If lead responses is not appropriate or contemplated by the
they were collected. Subject to these ever measured in sediment cores Federal Rules of Civil Procedure.
objections, admitted in part and collected from the Phase I Removal
denied in part. Admitted that trace Area, OxyChem need only answer yes
amounts of lead have been in some • Extraneous narrative to avoid providing
sediment cores collected in the clean admission that “trace amounts of
Phase I Removal Area but denied as lead have been found in some sediment
to any implication that the Lister cores collected in the Phase I Removal
Plant is the source of this lead Area”
because: a) no known industrial • Denial is about implication injected by
process of the Lister Plant generated OxyChem and thus denial does not fairly
or used lead; b) the riverside meet substance of request
boundary of the Lister Plant property
abuts a portion of the Lower 8.3
Miles of the Passaic River, which
EPA has described as “ubiquitously”
contaminated with chemicals of
concern, bank to bank, including
lead; c) lead is transported freely
through ground and floodwaters,
including through the
hydrodynamics of the Lower Passaic
River, which have created a
depositional area abutting the
riverside boundary of the Lister
Plant property that contains
sediments transported there from
elsewhere; and c) the Phase I
Removal Area is also near the New
9
Exhibit A to June 13, 2022 Special Master Decision
Case 2:18-cv-11273-MCA-LDW Document 2083 Filed 06/13/22 Page 23 of 58 PageID: 60826
Request Occidental Response SPG Response Special Master Findings

Jersey Turnpike, a heavily trafficked
area that—like others in the state—
received leaded gasoline fallout that
contaminated nearby soils, surface
waters, and groundwater that flowed
into the Passaic River.
(106) Admit that copper has Objection 1, 2, 3, 4, 5, 7, and 8. This • Boilerplate objections that are The Special Master finds that this an attempt to
been found on the Lister Plant request is vague, compound, and inapplicable to request evade the substance of the request and orders that it
in soil. unlimited as to time. It fails to state • The request does define where the be admitted that copper has been found in soil
where, when, or in what samples copper was found: in soil at the Lister samples collected at the Lister Plant site.
“copper has been found on the Lister Plant Occidental’s extraneous explanation regarding an
Plant in soil.” Subject to these • Request does not need to specify “how “implication,” which is found in many of its
objections, admitted in part and and “when” to be answerable. If copper responses is not appropriate or contemplated by the
denied in part. Admitted that trace ever found in soil at the Lister Plant, Federal Rules of Civil Procedure.
amounts of copper have been found OxyChem need only answer yes
in some soil samples collected at or • Extraneous narrative to avoid providing
near the Lister Plant property but clean admission that “trace amounts of
denied as to any implication that the lead have been found in some
Lister Plant was the source of any groundwater samples collected at or near
copper because: a) no known the Lister Plant property”
industrial process of the Lister Plant • Denial is about implication injected by
used or generated copper, b) the OxyChem and thus denial does not fairly
Lister Plant property is located near meet substance of request
the facilities of Defendant Benjamin
Moore, which used copper in its
manufacturing processes and
generated copper-contaminated
stormwaters and compressor
blowdowns that it disposed of
directly in the Passaic River near the
Lister Plant and is also next door to
Defendant Sherwin Williams, whose
facility has soil contaminated with
copper, whose employees observed
the dumping of process waste and
other products into the Passaic
10
Exhibit A to June 13, 2022 Special Master Decision
Case 2:18-cv-11273-MCA-LDW Document 2083 Filed 06/13/22 Page 24 of 58 PageID: 60827
Request Occidental Response SPG Response Special Master Findings

River, and that had seven outfall
pipes that discharged directly into
the River; c) the riverside boundary
of the Lister Plant property abuts a
portion of the Lower 8.3 Miles of the
Passaic River, which the EPA has
described as “ubiquitously”
contaminated with chemicals of
concern, bank to bank, including
copper; and, d) copper is a substance
that is transported freely through
ground and floodwaters, including
through the hydrodynamics of the
Passaic River which have created a
depositional area abutting the
riverside boundary of the Lister
Plant that contains sediments
transported there from elsewhere.
(107) Admit that copper has Objection 1, 2, 3, 4, 5, 7, and 8. This • Boilerplate objections that are The Special Master finds that this an attempt to
been found on the Lister Plant request is vague, compound, and inapplicable to request evade the substance of the request and orders that it
in groundwater. unlimited as to time. It fails to state • The request does define where the be admitted that copper has been found in
where, when, or in what samples copper was found: in groundwater at the groundwater samples collected at the Lister Plant
“copper has been found on the Lister Lister Plant site. Occidental’s extraneous explanation regarding
Plant in groundwater.” Subject to • Request does not need to specify “how an “implication,” which is found in many of its
these objections, admitted in part and “when” to be answerable. If copper responses is not appropriate or contemplated by the
and denied in part. Admitted that ever found in groundwater at the Lister Federal Rules of Civil Procedure.
trace amounts of copper have been Plant, OxyChem need only answer yes
found in some groundwater samples • Extraneous narrative to avoid providing
collected at or near the Lister Plant clean admission that “trace amounts of
property but denied as to any copper have been found in some
implication that the Lister Plant was groundwater samples collected at or near
the source of any copper because: a) the Lister Plant property”
no known industrial process of the • Denial is about implication injected by
Lister Plant used or generated OxyChem and thus denial does not fairly
copper, b) the Lister Plant property meet substance of request
is located near the facilities of
11
Exhibit A to June 13, 2022 Special Master Decision
Case 2:18-cv-11273-MCA-LDW Document 2083 Filed 06/13/22 Page 25 of 58 PageID: 60828
Request Occidental Response SPG Response Special Master Findings

Defendant Benjamin Moore, which
used copper in its manufacturing
processes and generated copper-
contaminated stormwaters and
compressor blowdowns that it
disposed of directly in the Passaic
River near the Lister Plant and is
also next door to Defendant Sherwin
Williams, whose facility has soil
contaminated with copper, whose
employees observed the dumping of
process waste and other products
into the Passaic River, and that had
seven outfall pipes that discharged
directly into the River; c) the
riverside boundary of the Lister
Plant property abuts a portion of the
Lower 8.3 Miles of the Passaic
River, which the EPA has described
as “ubiquitously” contaminated with
chemicals of concern, bank to bank,
including copper; and, d) copper is a
substance that is transported freely
through ground and floodwaters,
including through the
hydrodynamics of the Passaic River
which have created a depositional
area abutting the riverside boundary
of the Lister Plant that contains
sediments transported there from
elsewhere.
(109) Admit that copper was Objection 1, 2, 3, 4, 5, 7, and 8. This • Boilerplate objections that are The Special Master finds that this an attempt to
measured in sediment cores request is vague, compound, and inapplicable to request evade the substance of the request and orders that it
collected from the Phase 1 unlimited as to time. It fails to state • The request does define where the be admitted that copper has been found in sediment
Removal Area. where, when, or in what sediment copper was measured: in sediment cores cores in the Phase I Removal Area. Occidental’s
cores “copper was measured” in the extraneous explanation regarding an “implication,”
12
Exhibit A to June 13, 2022 Special Master Decision
Case 2:18-cv-11273-MCA-LDW Document 2083 Filed 06/13/22 Page 26 of 58 PageID: 60829
Request Occidental Response SPG Response Special Master Findings

Phase I Removal Area. Subject to collected from the Phase 1 Removal which is found in many of its responses is not
these objections, admitted in part and Area appropriate or contemplated by the Federal Rules of
denied in part. Admitted that trace • Request does not need to specify “how Civil Procedure.
amounts of copper have been found in and “when” to be answerable. If copper
some sediment cores in the Phase I ever detected in sediment cores at the
Removal Area, but denied as to any Lister Plant, OxyChem need only answer
implication that the Lister Plant was yes
the source of any copper in any • Extraneous narrative to avoid providing
sediment cores because: a) no known clean admission that “trace amounts of
industrial process of the Lister Plant copper have been found in some
used or generated copper, b) the Lister sediment cores collected at or near the
Plant property is located near the Lister Plant property”
facilities of Defendant Benjamin • Denial is about implication injected by
Moore, which used copper in its OxyChem and thus denial does not fairly
manufacturing processes and meet substance of request
generated copper-contaminated
stormwaters and compressor
blowdowns that it disposed of directly
in the Passaic River near the Lister
Plant and is also next door to
Defendant Sherwin Williams, whose
facility has soil contaminated with
copper, whose employees observed
the dumping of process waste and
other products into the Passaic River,
and that had seven outfall pipes that
discharged directly into the River; c)
the Phase I Removal Area is in the
Lower 8.3 Miles of the Passaic River,
which EPA has described as
“ubiquitously” contaminated with
chemicals of concern, bank to bank,
including copper; and, d) copper is a
substance that is transported freely
through ground and floodwaters,
including through the hydrodynamics
13
Exhibit A to June 13, 2022 Special Master Decision
Case 2:18-cv-11273-MCA-LDW Document 2083 Filed 06/13/22 Page 27 of 58 PageID: 60830
Request Occidental Response SPG Response Special Master Findings

of the Passaic River which have
created a depositional area that abuts
the riverside boundary of the Lister
Plant property, and e) the Phase I
Removal Area that abuts the riverside
boundary of the Lister Plant, as noted,
contains sediments transported there
from elsewhere.
(120) Admit that the Lister Objection 1, 2, and 3. As noted in • Boilerplate objections that are The Special Master finds that the response complies
Plant was located adjacent to response to other requests, the SPG inapplicable to request with Rule 36 and no further response is needed.
LPR. fails to define what it means by the • Objects to “adjacent” to evade directly Occidental’s objection to the term “adjacent” is
term “adjacent.” Subject to these responding appropriate and Occidental’s response fairly meets
objections, OxyChem admits that the substance of the request.
the Lower Passaic River flows along
the riverside boundary of the
property at 80-120 Lister Avenue
where the Lister Plant is located.

(121) Admit that the Lister Objection 1, 2, and 3. This request is • Boilerplate objections that are The Special Master finds that the response complies
Plant had trenches and vague, compound, unlimited as to inapplicable to request with Rule 36 and no further response is needed. The
drainpipes leading directly to time, and misleads by failing to • Request need not specify time to be Request attempts to paraphrase deposition
LPR. (Deposition of John acknowledge the limitations, answerable; the request is asking about testimony rather than ask Occidental to admit to the
Burton at 50–54, Mar. 18, qualifications, and assumptions any time in the Lister Plant’s history authenticity of the actual deposition testimony, a
1987 (Diamond Shamrock included by the witness in the • OxyChem is distracting from the request common and fair use of a request for admission.
Chems. Co. v. Aetna Cas. & referenced deposition testimony. by stating that the SPG needed to specify Occidental has appropriately set forth the basis for
Sur. Co., N.J. Super. Ct. Law Subject to and without waiving these “limitations” of the witness testimony. its objection to the accuracy of the paraphrasing.
Div.) (“Burton Dep. I”) objections, admitted in part and The referenced testimony is provided for
denied in part. Admitted that this convenience but does not obviate
request purports to paraphrase the OxyChem’s obligation to respond to the
testimony of witness John Burton, factual assertion.
but denied that the paraphrase is • Improper denials that do not go to
accurate or that this accurately substance of request: (1) the testimony is
describes the layout or disposal paraphrased accurately; (2) even if it
practices of the Lister Plant at all wasn’t the question stands on its own
times during its operation. As noted apart from document referenced for
above, the Lister Plant was OxyChem’s convenience so OxyChem
14
Exhibit A to June 13, 2022 Special Master Decision
Case 2:18-cv-11273-MCA-LDW Document 2083 Filed 06/13/22 Page 28 of 58 PageID: 60831
Request Occidental Response SPG Response Special Master Findings

connected to the Passaic Valley needs to address request; (3) request does
Sewerage Commission sewer line in not ask OxyChem about its layout at all
1956. time during Lister Plant’s operation
• Extraneous narrative (“As noted
above…”) that does not answer question
• Hyper-technical objection to “trenches
and drainpipes” as “compound” should
not eliminate obligation to respond.
(123) Admit that waste Objection 1, 2, and 3. This request is • Boilerplate objections that are The Special Master finds that the response complies
effluents discharged from the vague, compound, and unlimited as inapplicable to request with Rule 36 and no further response is needed. The
Lister Plant to LPR contained to time. It also fails to define the • Objecting to “waste effluents” request is marginally complex and compound and
hazardous substances. terms “waste effluents,” “discharged” and “hazardous contains vague terminology that is not appropriate
“discharged,” or “hazardous substances” to evade responding directly for a request for admission. Occidental’s response
substances.” Subject to these to request fairly meets the substance of the request.
objections, denied. As noted above, • Need not define time to be answerable;
the Lister Plant was connected to the request wants to know if this is true for
Passaic Valley Sewerage any point in Lister Plant’s history
Commission sewer line in 1956. • Extraneous information (“As noted
above…”) that does not answer question
generally and specifically avoids
answering question as to the period
before 1956

(124) Admit that waste Objection 1, 2, and 3. This request is • Boilerplate objections that are The Special Master finds that the response complies
effluents discharged from the vague, compound, and unlimited as inapplicable to request with Rule 36 and no further response is needed. The
Lister Plant to LPR contained to time. It also fails to define the • Objecting to “waste effluents” request is marginally complex and compound and
contaminants. terms “waste effluents,” “discharged” and “contaminants” to contains vague terminology that is not appropriate
“discharged,” or “contaminants.” evade responding directly to request for a request for admission. Occidental’s response
Subject to these objections, denied. • Need not define time to be answerable; fairly meets the substance of the request.
As noted above, the Lister Plant was request wants to know if this is true for
connected to the Passaic Valley any point in Lister Plant’s history
Sewerage Commission sewer line in • Extraneous information (“As noted
1956. above…”) that does not answer question
generally and specifically avoids
15
Exhibit A to June 13, 2022 Special Master Decision
Case 2:18-cv-11273-MCA-LDW Document 2083 Filed 06/13/22 Page 29 of 58 PageID: 60832
Request Occidental Response SPG Response Special Master Findings

answering question as to the period
before 1956

(125) Admit that waste Objection 1, 2, and 3. This request is • Boilerplate objections that are The Special Master finds that the response complies
effluents discharged from the vague, compound, and unlimited as inapplicable to request with Rule 36 and no further response is needed. The
Lister Plant to LPR contained to time. It also fails to define the • Objecting to “waste effluents” and request is marginally complex and compound and
COCs. terms “waste effluents” and “discharged” to evade responding contains vague terminology that is not appropriate
“discharged.” In addition, the request directly to request for a request for admission. Occidental’s response
fails to define where, when, or how • Even if SPG did not define where, when, fairly meets the substance of the request.
the undefined “waste effluents” were or how, waste effluents were discharged,
allegedly discharged. Subject to these OxyChem is required to admit to what it
objections, denied. As noted above, can admit
the Lister Plant was connected to the • Extraneous information (“As noted
Passaic Valley Sewerage above…”) that does not answer question
Commission sewer line in 1956. generally and specifically avoids
After reasonable inquiry, OxyChem answering question as to the period
is aware of no operational or other before 1956
evidence indicating the Lister Plant is • Improper qualification; SPG did not ask
the source of all COCs in the Lower for operational or other evidence that the
Passaic River, but it is aware that the Lister Plant is the source of all COCs in
Lower Passaic River is an area of the Lower Passaic River
deposition where sediments
containing COCs from other
locations are transported by the
River, by sheet flow, and by
floodwaters from elsewhere and
deposited in river sediments in the
Lower Passaic River

(126) Admit that Diamond Objection 1, 2, and 3. This request is • Boilerplate objections that are The Special Master finds that the response complies
Alkali directly discharged vague, compound, and unlimited as inapplicable to request with Rule 36 and no further response is needed. The
waste effluents from the Lister to time. It also fails to define the • Objecting to “waste effluents” and request is marginally complex and compound and
Plant to LPR. terms “waste effluents” and “discharged” to evade responding contains vague terminology that is not appropriate
“discharged.” Subject to these directly to request for a request for admission. Occidental’s response
objections, denied. As noted above, fairly meets the substance of the request.
16
Exhibit A to June 13, 2022 Special Master Decision
Case 2:18-cv-11273-MCA-LDW Document 2083 Filed 06/13/22 Page 30 of 58 PageID: 60833
Request Occidental Response SPG Response Special Master Findings

the Lister Plant was connected to the • Need not specify time period to be
Passaic Valley Sewerage answerable; if true for any point for
Commission sewer line in 1956. Diamond Alkali, OxyChem needs to
admit
• Extraneous information (“As noted
above…”) that does not answer question
generally and specifically avoids
answering question as to the period
before 1956

(128) Admit that pathways of Objection 1, 2, and 3. This request is • Boilerplate objections that are The Special Master finds that the response complies
TCDD discharges from the vague, compound, and unlimited as inapplicable to request with Rule 36 and no further response is needed. The
Lister Plant to LPR included to time. It fails to define either the • Objecting to “waste effluents” and request is complex and compound and contains
waste trichloroethane sludge alleged “pathways” inquired about or “discharged” to evade responding vague terminology that is not appropriate for a
and unrecycled the term “discharges” as used in this directly to request request for admission. Occidental’s response fairly
trichloroethane. (Diamond request. Subject to these objections, • Need not specify time period to be meets the substance of the request. Moreover, the
Shamrock Chems. Co. v. denied. The language quoted in the answerable; if true for any point for Request attempts to paraphrase a document rather
Aetna Cas. & Sur. Co., 609 request contains no reference to Diamond Alkali, OxyChem needs to than ask Occidental to admit to the authenticity of
A.2d 440, 463 (N.J. Super. Ct. TCDD, trichloroethane, discharges, admit the document Occidental has appropriately set forth
App. Div. 1992) (“Both the air or pathways, nor does it state that • Denial does not meet substance of the basis for its objection to the accuracy of the
and ground, inside and outside “pathways of TCDD discharges from request because request does not purport paraphrasing.
of the [Lister Plant], were the Lister Plant to LPR included to excerpt directly from referenced
regularly subjected to dioxin waste trichloroethane sludge and document
emissions through venting, unrecycled trichloroethane.” • Document is provided for convenience
and contamination from spills, and the request stands independent from
leaks, and ‘sloppy practice’ in document. OxyChem must answer
and around the plant”)). request, not shift focus to referenced
document
(129) Admit that pathways of Objection 1, 2, and 3. This request is • Boilerplate objections that are The Special Master finds that the response does not
TCDD discharges from the vague, compound, and unlimited by inapplicable to request comply with Rule 36 as Occidental has failed to
Lister Plant to LPR included time. It also fails to define either the • Objecting to “pathways” and admit, deny, or provide sufficient basis to not
washing of equipment utilized alleged “pathways” inquired about “discharged” to evade responding response substantively to the Request. However, no
in the TCP/2,4,5-T processes. or the term “discharges” as used in directly to request further response is necessary because the request is
this request. complex and compound and contains vague

17
Exhibit A to June 13, 2022 Special Master Decision
Case 2:18-cv-11273-MCA-LDW Document 2083 Filed 06/13/22 Page 31 of 58 PageID: 60834
Request Occidental Response SPG Response Special Master Findings

• Further the request is defining a terminology that is not appropriate for a request for
pathway: the washing of equipment admission.
utilized in the TCP/2,4,5-T processes
(130) Admit that pathways of Objection 1, 2, and 3. This request is • Boilerplate objections that are The Special Master finds that the response does not
TCDD discharges from the vague, compound, and unlimited by inapplicable to request comply with Rule 36 as Occidental has failed to
Lister Plant to LPR included time. It also fails to define either the • Objecting to “pathways” and admit, deny, or provide sufficient basis to not
wastewater from the alleged “pathways” inquired about “discharged” to evade responding response substantively to the Request. However, no
manufacture of TCP. or the term “discharges” as used in directly to request further response is necessary because the request is
this request. • Further the request is defining a complex and compound and contains vague
pathway: the wastewater from the terminology that is not appropriate for a request for
manufacture of TCP admission.
(131) Admit that pathways of Objection 1, 2, and 3. This request is • Boilerplate objections that are The Special Master finds that the response does not
TCDD discharges from the vague, compound, and unlimited by inapplicable to request comply with Rule 36 as Occidental has failed to
Lister Plant to LPR included time. It also fails to define either the • Objecting to “pathways” and admit, deny, or provide sufficient basis to not
wastewater from the alleged “pathways” inquired about “discharged” as undefined terms to response substantively to the Request. However, no
manufacture of 2,4,5-T. or the term “discharges” as used in evade responding directly to request further response is necessary because the request is
this request. • Further the request is defining a complex and compound and contains vague
pathway: the wastewater from the terminology that is not appropriate for a request for
manufacture of 2,4,5-T admission.

(132) Admit that pathways of Objection 1, 2, and 3. This request is • Boilerplate objections that are The Special Master finds that the response does not
TCDD discharges from the vague, compound, and unlimited by inapplicable to request comply with Rule 36 as Occidental has failed to
Lister Plant to LPR included time. It also fails to define either the • Objecting to “pathways” and admit, deny, or provide sufficient basis to not
autoclave blowdown sump. alleged “pathways” inquired about “discharged” to evade responding response substantively to the Request. However, no
or the term “discharges” as used in directly to request further response is necessary because the request is
this request. • Further the request is defining a complex and compound and contains vague
pathway: the wastewater from the terminology that is not appropriate for a request for
manufacture of TCP admission.
• The request is defining a pathway:
autoclave blowdown sump
• Objecting to “discharges” to evade
directly responding
18
Exhibit A to June 13, 2022 Special Master Decision
Case 2:18-cv-11273-MCA-LDW Document 2083 Filed 06/13/22 Page 32 of 58 PageID: 60835
Request Occidental Response SPG Response Special Master Findings

(148) Admit that in Objection 1, 2, 3, 4, 5, 7, and 8. This • Boilerplate objections that are The Special Master finds that the response complies
approximately 1960, a request is impermissibly vague and inapplicable to request with Rule 36 and no further response is needed. The
massive explosion resulted in compound because terms “massive” • Admitted there was a massive explosion request is complex and compound and contains
high concentrations of COCs, and “high concentrations” are in 1960 in Response to RFA 147; must vague and inflammatory terminology that is not
including TCDD, entering undefined and subject to multiple admit this request to the extent possible appropriate for a request for admission.
LPR. (OCC- interpretations, and the request seeks • Referenced document irrelevant to Occidental’s response fairly meets the substance of
MAXUS0296071.; William J. admissions regarding multiple OxyChem’s response to request; the request.
Hansen, A Statistical and unspecified COCs. In addition, this OxyChem evading response by focusing
Spatial Analysis of Dioxin- request refers to OCC- on referenced document
Furan Contamination in the MAXUS0296071, which has not
Hudson Estuary, been produced to OxyChem, and
24 Northeastern Geology & Hansen 2002, a graduate school
Envtl. Sci. 159, 169 (2002)). dissertation authored without first-
hand knowledge of or citation to any
source for statements regarding the
subject matter of this request. Subject
to these objections, denied.

(149) Admit that the 1960 Objection 1, 2, 3, 4, 5, 7, and 8. • Boilerplate objections that are The Special Master finds that the response complies
autoclave explosion disturbed Without defining the location or inapplicable to the request with Rule 36 and no further response is needed. The
historic fill containing nature of the “historic fill,” and • OxyChem is required to admit to extent it request is complex and compound and contains
the eight COCs. because the request is compound can do so vague terminology that is not appropriate for a
and refers to all eight COCs, six of request for admission. Occidental’s response fairly
which were not associated with meets the substance of the request.
operations of the Lister Plant,
OxyChem is unable to admit or deny
this request.

(152) Admit that the Lister Objection 1, 2, 3, 4, 5, 7, and 8. • Boilerplate objections that are The Special Master finds that the response does not
Plant discharged all its Subject to these objections, denied inapplicable to the requests comply with Rule 36 and a further response is
untreated plant effluents into that the request accurately recites the • Denial does not fairly meet substance of needed. The Request may not accurately quote the
LPR until about 1956. (Burton referenced testimony of Mr. Burton. request; OxyChem is denying question cited testimony, but the Request, standing alone, is
Dep I. at 156-58). of its own making, not the question asked plain enough to be answered directly.
19
Exhibit A to June 13, 2022 Special Master Decision
Case 2:18-cv-11273-MCA-LDW Document 2083 Filed 06/13/22 Page 33 of 58 PageID: 60836
Request Occidental Response SPG Response Special Master Findings

• Impossible to decipher if denial is based
on substance of request or stated
objections
(153) Admit that in or about Objection 1, 2, 3, 4, 5, 6, 7, and 8. • Boilerplate objections that are The Special Master finds that the response complies
1956, PVSC officially Subject to these objections, denied inapplicable to the requests with Rule 36 and no further response is needed.
objected to Diamond Alkali’s because the referenced document • Basis of denial is unclear. If OxyChem Occidental states that after reasonably inquiry it
illegal discharges and does not say this and, after denying based on the “PVSC building,” cannot locate a document that responds to the
instructed Diamond Alkali to reasonable inquiry, OxyChem is that is impermissible parsing Request. The term “PVSC building” was used in the
connect the entire plant to the unable to identify any document Request and Occidental is not required to imply
PVSC building. containing an instruction to connect definitions that do not exist. Occidental’s response
(MAXUS3791783). the Lister Plant to “the PVSC fairly meets the substance of the request.
building.”
(155) Admit that Diamond Objection 1, 2, 3, 4, 5, and 8. This • Boilerplate objections that are The Special Master finds that the response complies
Alkali decided to connect the request does not accurately recite the inapplicable to the requests with Rule 36 and no further response is needed.
Main Building to the sewer to referenced deposition testimony. • Request does not quote referenced Occidental states that after reasonably inquiry it
save money. (Burton Dep. I at Subject to these objections, after testimony cannot locate a document that confirms Diamond
158-64). reasonably inquiry, OxyChem is • Referenced testimony supports request Alkali decided to connect the Main Building to the
unable to otherwise admit or deny • OxyChem must detail reasonable inquiry sewer to save money.
the reason or reasons Diamond
Alkali connected the Main Building
to the PVSC system.

(156) Admit that from in or Objection 1, 2, 3, 4, 5, 7, and 8. This • Boilerplate objections that are The Special Master finds that the response complies
about 1956 until operations request is unlimited as to time, does inapplicable to the requests with Rule 36 and no further response is needed.
were ceased in or around not define what is meant by • Objecting to “untreated industrial waste” Occidental’s response fairly meets the substance of
1969, Diamond Alkali “untreated industrial waste,’ nor and “discharged” to evade responding the request.
discharged untreated does it define the terms directly to request
industrial waste into LPR. “discharged,” which could include • OxyChem uses “discharge” without
(MAXUS0046461). transportation by sheet flow, definition in its response
stormwater flow, and/or • Need not specify time period to be
floodwaters. Subject to and without answerable; if true for any point for
waiving these objections, this Diamond Alkali, OxyChem needs to
request is denied. The Lister Plant admit
was connected to the sewer line of
20
Exhibit A to June 13, 2022 Special Master Decision
Case 2:18-cv-11273-MCA-LDW Document 2083 Filed 06/13/22 Page 34 of 58 PageID: 60837
Request Occidental Response SPG Response Special Master Findings

the Passaic Valley Sewerage • Is OxyChem admitting that it discharged
Commission in 1956, at which point after the sewer line was hooked up in
plant process wastes were 1956? If so, it needs to say that.
discharged through the PVSC Otherwise this is an extraneous
treatment line. qualification.

(159) Admit that John Burton, Objection 1, 2, 3, 4, 5, 7, and 8. This • Boilerplate objections that are The Special Master finds that the Request is
the Lister Plant Manager, request is vague and unlimited as to inapplicable to the requests objectionable as presented and the term “harmful” is
acknowledged that effluents time. The request fails to define • Objecting to “effluents” and “harmful” vague. However, Occidental is required to
were harmful to LPR. either what is encompassed in the to evade responding directly to request undertake a reasonable inquiry to determine if such
term “effluents” or what is meant by • Need not specify time period to be an admission did occur using that specific term.
“harmful.” Subject to and without answerable; if true for any point, Therefore, a further response is required from
waiving these objections, OxyChem OxyChem needs to admit Occidental.
cannot neither admit nor deny this • OxyChem needs to specify reasonable
request. inquiry it took

(160) Admit that John Burton, Objection 1, 2, 3, 4, 5, 7, and 8. This • Boilerplate objections that are The Special Master finds that the Request is
the Lister Plant Manager, request is compound, vague, and inapplicable to the requests objectionable as presented and the term “harmful” is
recommended avoiding unlimited as to time. The request • Objecting to “effluents” and “harmful” vague. However, Occidental is required to
spending money to construct a also fails to define either what is to evade responding directly to request undertake a reasonable inquiry to determine if such
larger sanitary sewer to encompassed in the term “effluents” • Need not specify time period to be an admission did occur using that specific term.
neutralize the effluent through or what is meant by “harmful.” answerable; if true for any point, Therefore, a further response is required from
pretreatment, despite his Subject to and without waiving these OxyChem needs to admit Occidental.
acknowledgment that objections, OxyChem can neither • OxyChem needs to specify reasonable
effluents were harmful to admit nor deny this request. inquiry it took
LPR.
(166) Admit that employees at Objection 1, 2, 3, 4, 5, and 7. This • Boilerplate objections that are The Special Master finds that the response complies
the Lister Plant began request does not identify which inapplicable to the requests with Rule 36 and no further response is needed.
experiencing chloracne “employees” it refers to, nor does it • Objecting to “employees” and “shortly Occidental’s response fairly meets the substance of
shortly after TCP production define what it means by “shortly defined” to evade responding directly to the request.
began in 1949. after.” Subject to and without request
waiving these objections, denied. • OxyChem can answer to the extent that
it knows
21
Exhibit A to June 13, 2022 Special Master Decision
Case 2:18-cv-11273-MCA-LDW Document 2083 Filed 06/13/22 Page 35 of 58 PageID: 60838
Request Occidental Response SPG Response Special Master Findings

• Impossible to decipher if denial is based
on substance of request or stated
objections

(169) Admit that, as early as Objection 1, 2, 3, 4, 5, 7, and 8. The • Boilerplate objections that are The Special Master finds that the response complies
1956, Diamond Alkali knew request is compound, does not inapplicable to the requests with Rule 36 and no further response is needed.
its TCP process was the source identify which “employees” are • Objecting to “employees” and “Diamond Occidental’s response fairly meets the substance of
of employees’ chloracne. referenced, and fails to define the Alkali knew” to evade responding the request.
(Burton Dep. II at 265–67; nature of what “Diamond Alkali directly to request
Aetna Cas. & Sur. Co., 609 knew” and the basis of that • Does not have to define the basis of
A.2d at 447 (“[A]t a relatively purported knowledge. The request knowledge; OxyChem can answer
early date, Diamond became also fails to accurately recite the request regardless
aware of the dangerous referenced deposition testimony. • The request does not recite the referenced
propensities of dioxins and Subject to and without waiving these document and the referenced document
chose to disregard methods objections, this request is denied. supports the request
designed to diminish their • Impossible to decipher if denial is based
production.”)). on substance of request or stated
objections
(178) Admit that Oxy- Objection. The request includes two • Objecting to “Oxy-Diamond Alkali” and The Special Master finds that the response complies
Diamond Alkali was aware of vague and undefined terms—"Oxy- “the 1986 Merger” to evade responding with Rule 36 and no further response is needed.
Administrative Order No. EO Diamond Alkali” and “the 1986 directly to request Occidental’s response fairly meets the substance of
40-6 at the time it entered into Merger.” The Requests for • Further “the 1986 Merger” is first term the request.
the 1986 Merger. Admission do not define either term, defined in RFAs
but there was no 1986 Merger of • OxyChem is required to detail inquiry if
which OxyChem is aware. In it neither admits nor denies a request
addition, if the term “Oxy-Diamond • Oxy-Diamond Alkali Corporation is a
Alkali” is intended to refer to Oxy- predecessor of OxyChem (it acquired
Diamond Alkali Corporation, Diamond Shamrock Chemicals
OxyChem is after reasonable inquiry Company from Diamond Shamrock
unable to admit or deny whether Corporation, then the name was changed
Oxy-Diamond Alkali Corporation to Occidental Electro Chemical
could have accessed Administrative Corporation, then name changed to
Order No. EO-40-6 in September of Occidental Chemical Corporation), so a
1986 when it acquired the stock of
22
Exhibit A to June 13, 2022 Special Master Decision
Case 2:18-cv-11273-MCA-LDW Document 2083 Filed 06/13/22 Page 36 of 58 PageID: 60839
Request Occidental Response SPG Response Special Master Findings

Diamond Shamrock Chemicals reasonable inquiry by OxyChem
Company via a Stock Purchase includes Oxy-Diamond Alkali
Agreement with Diamond Shamrock Corporation’s knowledge
Corporation. • Answering question of its own making—
whether Oxy-Diamond Alkali “could
have accessed” the Order, instead of the
question asked—whether OxyChem was
aware of the Order
(183) Admit that Oxy- Objection 1, 2, and 3. The request • Objecting to “Oxy-Diamond Alkali” and The Special Master finds that the response complies
Diamond Alkali knew about includes two vague and undefined “the 1986 Merger” to evade responding with Rule 36 and no further response is needed.
Administrative Order No. EO- terms—“Oxy-Diamond Alkali” and directly to request Occidental’s response fairly meets the substance of
40-1 at the time of the 1986 “the 1986 Merger.” The Requests • “The 1986 Merger” is first term defined the request.
Merger. for Admission do not define either in RFAs
term, but there was no 1986 Merger • OxyChem is required to detail inquiry if
of which OxyChem is aware. In it neither admits nor denies a request
addition, if the term “Oxy-Diamond • Oxy-Diamond Alkali Corporation is a
Alkali” is intended to refer to Oxy- predecessor of OxyChem (it acquired
Diamond Alkali Corporation, Diamond Shamrock Chemicals
OxyChem is after reasonable inquiry Company from Diamond Shamrock
unable to admit or deny whether Corporation, then the name was changed
Oxy-Diamond Alkali Corporation to Occidental Electro Chemical
could have accessed Administrative Corporation, then name changed to
Order No. EO-40-1 in September of Occidental Chemical Corporation), so a
1986 when it acquired the stock of reasonable inquiry by OxyChem
Diamond Shamrock Chemicals includes Oxy-Diamond Alkali
Company via a Stock Purchase Corporation’s knowledge
Agreement with Diamond Shamrock • Answering question of its own making—
Corporation. whether Oxy-Diamond Alkali “could
have accessed” the Order, instead of the
question asked—whether OxyChem
knew about the Order
(188) Admit that Oxy- Objection 1, 2, and 3. The request • Boilerplate objections The Special Master finds that the response complies
Diamond Alkali was aware of includes two vague and undefined • “The 1986 Merger” is first term defined with Rule 36 and no further response is needed.
Administrative Order No. EO- terms—“Oxy-Diamond Alkali” and in RFAs
23
Exhibit A to June 13, 2022 Special Master Decision
Case 2:18-cv-11273-MCA-LDW Document 2083 Filed 06/13/22 Page 37 of 58 PageID: 60840
Request Occidental Response SPG Response Special Master Findings

40-19 at the time of the 1986 “the 1986 Merger.” The Requests • Oxy-Diamond Alkali Corporation is a Occidental’s response fairly meets the substance of
Merger. for Admission do not define either predecessor of OxyChem (it acquired the request.
term, but there was no 1986 Merger Diamond Shamrock Chemicals
of which OxyChem is aware. If the Company from Diamond Shamrock
term “Oxy-Diamond Alkali” is Corporation, then the name was changed
intended to refer to Oxy-Diamond to Occidental Electro Chemical
Alkali Corporation, OxyChem is Corporation, then name changed to
after reasonable inquiry unable to Occidental Chemical Corporation), so a
admit or deny whether Oxy- reasonable inquiry by OxyChem
Diamond Alkali Corporation could includes Oxy-Diamond Alkali
have accessed Administrative Order Corporation’s knowledge
No. EO-40-19 in September of 1986 • Answering question of its own making—
when it acquired the stock of whether Oxy-Diamond Alkali “could
Diamond Shamrock Chemicals have accessed” the Order, instead of the
Company via a Stock Purchase question asked—whether OxyChem was
Agreement with Diamond Shamrock aware of the Order
Corporation.

(193) Admit that Oxy- Objection 1, 2, and 3. The request • Objecting to “Oxy-Diamond Alkali” and The Special Master finds that the response complies
Diamond Alkali was aware of includes two vague and undefined “the 1986 Merger” to evade responding with Rule 36 and no further response is needed.
Administrative Order No. EO- terms—“Oxy-Diamond Alkali” and directly to request Occidental’s response fairly meets the substance of
40-17 at the time of the 1986 “the 1986 Merger.” The Requests • “The 1986 Merger” is first term defined the request.
Merger. for Admission do not define either in RFAs
term, but there was no 1986 Merger • OxyChem is required to detail inquiry if
of which OxyChem is aware. In it neither admits nor denies a request
addition, if the term “Oxy-Diamond • Oxy-Diamond Alkali Corporation is a
Alkali” is intended to refer to Oxy- predecessor of OxyChem (it acquired
Diamond Alkali Corporation, Diamond Shamrock Chemicals
OxyChem is after reasonable inquiry Company from Diamond Shamrock
unable to admit or deny whether Corporation, then the name was changed
Oxy-Diamond Alkali Corporation to Occidental Electro Chemical
could have accessed Administrative Corporation, then name changed to
Order No. EO-40-17 in September Occidental Chemical Corporation), so a
of 1986 when it acquired the stock of reasonable inquiry by OxyChem
Diamond Shamrock Chemicals includes Oxy-Diamond Alkali
Company via a Stock Purchase Corporation’s knowledge
24
Exhibit A to June 13, 2022 Special Master Decision
Case 2:18-cv-11273-MCA-LDW Document 2083 Filed 06/13/22 Page 38 of 58 PageID: 60841
Request Occidental Response SPG Response Special Master Findings

Agreement with Diamond Shamrock • Answering question of its own making—
Corporation. whether Oxy-Diamond Alkali “could
have accessed” the Order, instead of the
question asked—whether OxyChem was
aware of the Order
(195) Admit that OxyChem Objection 1, 2, 3, 4, 5, 6, 7, and 8. • Boilerplate objections that do not apply to The Special Master finds that the response does not
was legally obligated to This request is vague, compound, the request comply with Rule 36 and orders that an amended
comply with the 1984 undefined by time, and calls for a • The Third Circuit permits RFAs asking answer be served which clearly addresses whether
Administrative Consent Order legal conclusion. The 1984 about legal obligations; this is not an Occidental was legally obligated to comply with the
as DSCC’s successor. Administrative Consent Order was impermissible legal conclusion. 1984 Administrative Consent Order as DSCC’s
signed by DSCC before the 1986 • OxyChem is being evasive by answering successor after the 1986 Stock Purchase Agreement
Stock Purchase Agreement. During its own question about whether Maxus was executed. Good faith qualifications to such a
that period, OxyChem had no was a successor to DSCC. response are clearly permitted, but an objection that
obligations at all under the 1984 • OxyChem does not answer the question. the request calls for a legal conclusion is not
Consent Order. Subject to these It admits only that it is a legal successor appropriate because this request is not objectionable
objections, OxyChem admits it is a to DSCC (already established and not in even if it requires opinions or conclusions of law
successor to DSCC after April of question here) and does not admit because the legal conclusions relate to the facts of the
1987, but denies that it was the sole whether it was legally complied to case.
successor to DSCC because Maxus comply with the Order after 1987
was also a successor to DSCC. The • OxyChem inserts extraneous narrative to
request otherwise calls for a legal relitigate established facts
conclusion and requires no response.

(196) Admit that OxyChem, Objection 1, 2, 3, 4, 5, 6, 7, and 8. • Boilerplate objections that to not apply to The Special Master finds that the response does not
as successor to DSCC, was This request is compound, undefined the request comply with Rule 36 and orders that an amended
legally required to perform all by time, and calls for a legal • The Third Circuit permits RFAs asking answer be served which clearly addresses whether
of DSCC’s obligations to conclusion. The 1984 Administrative about legal obligations; this is not an Occidental, as a successor to DSCC, was legally
regulatory authorities Consent Order was signed by DSCC impermissible legal conclusion required to perform all of DSCC’s obligations to
regarding environmental before the 1986 Stock Purchase • OxyChem is being evasive by answering regulatory authorities regarding environmental
contamination. Agreement. During that period, its own question about whether Maxus contamination. Appropriate qualifications, made in
OxyChem had no obligations at all was a successor to DSCC. Regardless, good faith, including those related to the terms
under the 1984 Consent Order. OxyChem is legally DSCC’s successor. “regulatory authorities” and “environmental
Subject to these objections, • OxyChem does not answer the question. contamination” are permitted, but an objection that
OxyChem admits it is a successor to It admits only that it is a legal successor the request calls for a legal conclusion is not
25
Exhibit A to June 13, 2022 Special Master Decision
Case 2:18-cv-11273-MCA-LDW Document 2083 Filed 06/13/22 Page 39 of 58 PageID: 60842
Request Occidental Response SPG Response Special Master Findings

DSCC after April of 1987, but denies to DSCC (already established and not in appropriate because this request is not objectionable
that it was the sole successor to question here) and does not admit even if it requires opinions or conclusions of law
DSCC because Maxus was also a whether it was legally complied to because the legal conclusions relate to the facts of the
successor to DSCC. The request comply with the Order after 1987 case.
otherwise calls for a legal conclusion • OxyChem inserts extraneous narrative to
and requires no response. relitigate established facts

(197) Admit that Maxus Objection 1, 2, 3, 4, 5, 7, and 8. This • Boilerplate objections that do not apply to The Special Master finds that the response complies
performed OxyChem’s request is compound, undefined by the request with Rule 36 and no further response is needed. The
obligations on OxyChem’s time, and calls for a legal conclusion. • The Third Circuit permits RFAs asking request is complex and compound and contains
behalf under the 1984 The 1984 Administrative Consent about legal obligations; this is not an vague terminology that is not appropriate for a
Administrative Consent Order was signed by DSCC before impermissible legal conclusion request for admission. Occidental’s response fairly
Order. the 1986 Stock Purchase Agreement. • OxyChem is being evasive by answering meets the substance of the request as Occidental, in
During that period, OxyChem had no its own question about whether Maxus good faith, parsed the request based on specific
obligations at all under the 1984 was a successor to DSCC. Regardless, timeframes.
Consent Order. Subject to these OxyChem is legally DSCC’s successor.
objections, OxyChem admits Maxus • OxyChem inserts extraneous narrative to
was obligated to and did perform relitigate established facts
obligations under the 1984
Administrative Consent Order
because it was a successor to
Diamond Shamrock Chemicals
Company when the Order was
entered and was obligated, as
DSCC’s successor, to perform it.
After the 1986 Stock Purchase
Agreement, OxyChem admits
Maxus continued to perform the
1984 Administrative Consent Order
pursuant to its contractual obligation
to indemnify and hold harmless
OxyChem against any
environmental liabilities arising
from the Lister Plant.

26
Exhibit A to June 13, 2022 Special Master Decision
Case 2:18-cv-11273-MCA-LDW Document 2083 Filed 06/13/22 Page 40 of 58 PageID: 60843
Request Occidental Response SPG Response Special Master Findings

(210) Admit that at the time of Objection 1, 2, 3, 4, 5, 7, and 8. The • Boilerplate objections that to not apply to The Special Master finds that the response complies
the 1986 Merger, Oxy- request includes four vague and the request with Rule 36 and no further response is needed.
Diamond Alkali knew that undefined terms: “Oxy-Diamond • “The 1986 Merger” is the first term Occidental’s response fairly meets the substance of
DSCC had discharged Alkali,” “the 1986 Merger,” defined in the RFAs the request as Occidental admits Oxy-Diamond
hazardous substances into “discharged,” and “hazardous • Objecting to “discharged” and Alkali knew of environmental contamination at the
LPR. substances.” The Requests for “hazardous substances” to evading time of the 1986 Stock Purchase Agreement and the
Admission do not define any of these directly responding qualification of the denial was made in good faith
terms, but there was no 1986 Merger • The admission does not actually answer and is appropriate based on the use of vague terms in
of which OxyChem is aware. The the RFA; OxyChem’s “admission” about the Request.
request also fails to identify when any whether Oxy-Diamond Alkali knew that
of the undefined “hazardous the Lister Plant was included in the
substances” were “discharged” into Diamond Alkali Superfund Site is
the Lower Passaic River. Subject to evasive
these objections, admitted in part and
denied in part. Admitted that Oxy-
Diamond Alkali knew as of the 1986
Stock Purchase Agreement that the
Lister Plant was included within the
Diamond Alkali Superfund Site,
because Oxy-Diamond Alkali is
indemnified against all
environmental liabilities associated
with that Superfund Site in the
agreement. OxyChem is otherwise
unable to respond to this request
because it does not define the
information that is sought in simple
facts that can be, as the Third Circuit
requires, admitted or denied without
explanation.

(211) Admit that at the time of Objection 1, 2, 3, 4, 5, 7, and 8. The • Boilerplate objections that do not apply The Special Master finds that the response complies
the 1986 Merger, Oxy- request includes four vague and to the request with Rule 36 and no further response is needed.
Diamond Alkali knew that undefined terms: “Oxy-Diamond Occidental’s response fairly meets the substance of
27
Exhibit A to June 13, 2022 Special Master Decision
Case 2:18-cv-11273-MCA-LDW Document 2083 Filed 06/13/22 Page 41 of 58 PageID: 60844
Request Occidental Response SPG Response Special Master Findings

DSCC had discharged Alkali,” “the 1986 Merger,” • “The 1986 Merger” is the first term the request as Occidental admits Oxy-Diamond
contaminants into LPR. “discharged,” and “contaminants.” defined in RFAs Alkali knew of environmental contamination at the
The Requests for Admission do not • Objecting to “discharged” and time of the 1986 Stock Purchase Agreement and the
define any of these terms, but there “hazardous substances” to evade qualification of the denial was made in good faith
was no 1986 Merger of which directly responding to the request and is appropriate based on the use of vague terms
OxyChem is aware. It also fails to • The admission does not actually answer in the Request.
identify when any of the undefined the request; OxyChem’s “admission”
“contaminants” were “discharged” about whether Oxy-Diamond Alkali
into the Lower Passaic River. knew that the Lister Plant was included
Subject to these objections, admitted in the Diamond Alkali Superfund Site is
in part and denied in part. Admitted evasive
that Oxy-Diamond Alkali knew as of
the 1986 Stock Purchase Agreement
that the Lister Plant was included
within the Diamond Alkali
Superfund Site, because Oxy-
Diamond Alkali is indemnified
against all environmental liabilities
associated with that Superfund Site
in the agreement. OxyChem is
otherwise unable to respond to this
request because it does not define
the information that is sought in
simple facts that can be, as the Third
Circuit requires, admitted or denied
without explanation.

(212) Admit that at the time of Objection 1, 2, 3, 4, 5, 7, and 8. The • Boilerplate objections that do not apply The Special Master finds that the response complies
the 1986 Merger, Oxy- request includes four vague and to the request with Rule 36 and no further response is needed.
Diamond Alkali knew that undefined terms: “Oxy-Diamond • The RFAs define “the 1986 Merger”; it Occidental’s response fairly meets the substance of
DSCC had discharged waste Alkali,” “the 1986 Merger,” is the first definition on page 2. the request as Occidental admits Oxy-Diamond
into LPR. “discharged,” and “waste.” The • Objecting to “discharged” and Alkali knew of environmental contamination at the
Requests for Admission do not define “hazardous substances” to evade directly time of the 1986 Stock Purchase Agreement and the
any of these terms, but there was no responding qualification of the denial was made in good faith
1986 Merger of which OxyChem is • The admission does not actually answer and is appropriate based on the use of vague terms
aware. It also fails to identify when the RFA; OxyChem’s “admission” about in the Request.
28
Exhibit A to June 13, 2022 Special Master Decision
Case 2:18-cv-11273-MCA-LDW Document 2083 Filed 06/13/22 Page 42 of 58 PageID: 60845
Request Occidental Response SPG Response Special Master Findings

any of the undefined “waste” was whether Oxy-Diamond Alkali knew that
“discharged” into the Lower Passaic the Lister Plant was included in the
River. Subject to these objections, Diamond Alkali Superfund Site is
admitted in part and denied in part. evasive
Admitted that Oxy-Diamond Alkali
knew as of the 1986 Stock Purchase
Agreement that the Lister Plant was
included within the Diamond Alkali
Superfund Site, because Oxy-
Diamond Alkali is indemnified
against all environmental liabilities
associated with that Superfund Site in
the agreement. OxyChem is
otherwise unable to respond to this
request because it does not define the
information that is sought in simple
facts that can be, as the Third Circuit
requires, admitted or denied without
explanation.

(213) Admit that at the time of Objection 1, 2, 3, 4, 5, 7, and 8. The • Boilerplate objections that do not apply The Special Master finds that the response complies
the 1986 Merger, Oxy- request includes three vague and to the request with Rule 36 and no further response is needed.
Diamond Alkali knew that the undefined terms: “Oxy-Diamond • The RFAs define “the 1986 Merger”; it Occidental’s response fairly meets the substance of
Lister Plant was contaminated Alkali,” “the 1986 Merger,” and is the first definition on page 2 the request as Occidental admits Oxy-Diamond
with dioxin. “contaminated.” The Requests for • Objecting to “contaminated” to evade Alkali knew of environmental contamination at the
Admission do not define any of these directly responding to request; time of the 1986 Stock Purchase Agreement and the
terms, but there was no 1986 Merger OxyChem does not object to qualification of the denial was made in good faith
of which OxyChem is aware. Subject “contaminated” in very next RFA (214) and is appropriate based on the use of vague terms
to these objections, admitted in part • The request is a simple fact, not complex in the Request.
and denied in part. Admitted that or compound. OxyChem is being evasive
Oxy-Diamond Alkali knew as of the by citing a requirement for the
1986 Stock Purchase Agreement that information being sought to be a simple
the Lister Plant was included within fact
the Diamond Alkali Superfund Site, • OxyChem is being evasive by admitting
because Oxy-Diamond Alkali is something that the RFA does not ask
indemnified against all
29
Exhibit A to June 13, 2022 Special Master Decision
Case 2:18-cv-11273-MCA-LDW Document 2083 Filed 06/13/22 Page 43 of 58 PageID: 60846
Request Occidental Response SPG Response Special Master Findings

environmental liabilities associated • OxyChem says it is denying the request
with that Superfund Site in the in part, but does not specifically deny
agreement. OxyChem is otherwise anything. Denial does not fairly meet
unable to respond to this request substance of request
because it does not define the
information that is sought in simple
facts that can be, as the Third Circuit
requires, admitted or denied without
explanation.

(214) Admit that at the time of Objection 1, 2, 3, 4, 5, 7, and 8. The • Boilerplate objections that do not apply The Special Master finds that the response complies
the 1986 Merger, Oxy- request includes three vague and to the request with Rule 36 and no further response is needed.
Diamond Alkali knew that the undefined terms: “Oxy-Diamond • The RFAs do define “the 1986 Merger”; Occidental’s response fairly meets the substance of
Lister Plant was contaminated Alkali,” “the 1986 Merger,” and, it is the first definition on page 2 the request as Occidental admits Oxy-Diamond
with hazardous substances. “hazardous substances.” The • Objecting to “hazardous substances” to Alkali knew of environmental contamination at the
Requests for Admission do not define evade responding directly to request time of the 1986 Stock Purchase Agreement and the
any of these terms, but there was no • The request is a simple fact, not complex qualification of the denial was made in good faith
1986 Merger of which OxyChem is or compound. OxyChem is being evasive and is appropriate based on the use of vague terms
aware. Subject to these objections, by citing a requirement for the in the Request.
admitted in part and denied in part. information being sought to be a simple
Admitted that Oxy-Diamond Alkali fact
knew as of the 1986 Stock Purchase • OxyChem is being evasive by admitting
Agreement that the Lister Plant was something that the RFA does not ask
included within the Diamond Alkali • OxyChem says it is denying the request
Superfund Site, because Oxy- in part, but does not specifically deny
Diamond Alkali is indemnified anything. Denial does not fairly meet
against all environmental liabilities substance of request
associated with that Superfund Site in
the agreement. OxyChem is
otherwise unable to respond to this
request because it does not define the
information that is sought in simple
facts that can be, as the Third Circuit
requires, admitted or denied without
explanation.

30
Exhibit A to June 13, 2022 Special Master Decision
Case 2:18-cv-11273-MCA-LDW Document 2083 Filed 06/13/22 Page 44 of 58 PageID: 60847
Request Occidental Response SPG Response Special Master Findings

(218) Admit that, in the course Objection 1, 2, 3, 4, 5, 6, 7, and 8. • Boilerplate objections that do not apply to The Special Master finds that the response complies
of her representation of This request seeks an admission the request with Rule 36 and no further response is needed.
OxyChem, Ms. Dinkins wrote regarding a letter, which document • “Document speaks for itself” is improper Occidental’s response fairly meets the substance of
a letter to EPA regarding the speaks for itself. It is also vague, objection the request as the qualification of the denial was
1984 Administrative Consent ambiguous, and compound as it • Extraneous information (“Maxus is made in good faith and is appropriate.
Order in which she told EPA falsely characterizes the referenced also…”) that does not answer question
that OxyChem was the document as asserting that OxyChem • Denies an implication it injected itself
“successor to Diamond is the only successor to DSCC and is
Shamrock Chemicals therefore misleading, misrepresents
Company”. the referenced document, and
(NJDEP00175450). improperly asserts a legal
conclusion. Subject to and without
waiving these objections, admitted in
part and denied in part. Admitted that
the referenced document contains the
quoted language, but denied as to any
implication (not stated in the
document) that OxyChem is the sole
successor to DSCC because it is not:
Maxus is also a successor to DSCC.

(221) Admit that on or about Objection 1, 2, 3, 4, 5, 6, 7, and 8. • Boilerplate objections that do not apply to The Special Master finds that the response does not
July 26, 1989, Michael J. This request seeks an admission the request comply with Rule 36 and orders that an amended
Rudick, Vice President and regarding a letter, which document • Extraneous information (“Maxus is answer be served which addresses whether the
General Counsel for speaks for itself. It is also vague, also…”) that does not answer question document contains a statement that Occidental is a
OxyChem, wrote a letter to ambiguous, and compound as it • Denies an implication it injected itself successor to DSCC, subject to any qualification that
Paul W. Herring, Associate falsely characterizes the referenced • There is not an improper legal conclusion there may be other successors to DCSS not
Counsel for Maxus, in which document as asserting that OxyChem here—Judge Arleo has already referenced.
he noted that OxyChem was is the only successor to DSCC and is concluded that OxyChem is successor to
the successor to DSCC. (OCC- therefore misleading, misrepresents DSCC
CER-SA00025699). the referenced document, and
improperly asserts a legal
conclusion. Subject to and without
waiving these objections, denied as
to any implication (not stated in the
document) that OxyChem is the sole
31
Exhibit A to June 13, 2022 Special Master Decision
Case 2:18-cv-11273-MCA-LDW Document 2083 Filed 06/13/22 Page 45 of 58 PageID: 60848
Request Occidental Response SPG Response Special Master Findings

successor to DSCC because it is not:
Maxus is also a successor to DSCC.
If any further response is required,
the document speaks for itself.

(224) Admit that OxyChem Objection 1, 2, 3, 4, 5, 6, 7, and 8. • Boilerplate objections that do not apply to The Special Master finds that the response complies
signed the 1990 AOC as This request is vague, ambiguous, the request with Rule 36 and no further response is needed.
successor to DSCC. and compound as it falsely • Extraneous information (“Maxus is Occidental’s response fairly meets the substance of
characterizes the referenced also…”) that does not answer question the request as the qualification of the denial was
document as asserting that OxyChem • Denies an implication it injected itself made in good faith and is appropriate.
is the only successor to DSCC and is • There is not an improper legal conclusion
therefore misleading, misrepresents here—Judge Arleo has already
the referenced document, and concluded that OxyChem is successor to
improperly asserts a legal DSCC
conclusion. Subject to and without
waiving these objections, admitted in
part and denied in part. Admitted that
OxyChem signed the 1990
Administrative Order on Consent as
a successor to DSCC, but denied as
to any implication (not stated in the
document) that OxyChem is the sole
successor to DSCC because it is not:
Maxus is also a successor to DSCC.
(231) Admit that OxyChem Objection 1, 2, 3, 4, 5, 7, and 8. • Boilerplate objections that do not apply to The Special Master finds that this is an attempt to
executed the 1994 AOC Subject to these objections, admitted the request evade the substance of the request and orders that it
knowing that it would be in part and denied in part. OxyChem • Extraneous information (“Maxus is be admitted that Occidental was aware when it
legally responsible for admits it was aware that—by signing also…”) that does not answer question signed the 1994 Administrative Order on Consent
performing the obligations the 1994 Administrative Order on • Denies an implication it injected itself that it was obligating itself to perform the obligations
under the 1994 AOC. Consent— it was obligating itself to contained therein.
perform the obligations contained in
the Order; denied, however, to the
extent the request implies that
OxyChem alone was obligated to
perform those obligations because
Maxus, as a successor to DSCC and
32
Exhibit A to June 13, 2022 Special Master Decision
Case 2:18-cv-11273-MCA-LDW Document 2083 Filed 06/13/22 Page 46 of 58 PageID: 60849
Request Occidental Response SPG Response Special Master Findings

as OxyChem’s indemnitor, was also
obligated to perform them.

(235) Admit that in its Objection 1, 2, 3, 4, 5, 6, and 7. This • Boilerplate objections that do not apply to The Special Master finds that this is an attempt to
Environmental Management request seeks an admission the request evade the substance of the request and orders that it
Services Agreement with regarding an agreement, which • “Document speaks for itself” is improper be admitted that Occidental is a legal successor to
Glenn Springs Holdings, Inc., document speaks for itself. It is also objection Diamond Shamrock Chemicals Company with
OxyChem agreed that it is vague, ambiguous, and compound as • Extraneous information (“Maxus is respect to the “Newark Plant Site.”
legal successor to Diamond it falsely characterizes the also…”) that does not answer question
Shamrock Chemicals referenced document as asserting • Denies an implication it injected itself
Company with respect to the that OxyChem is the only successor • There is not an improper legal conclusion
“Newark Plant Site.” to DSCC and is therefore here—Judge Arleo has already
misleading, misrepresents the concluded that OxyChem is successor to
referenced document, and DSCC
improperly asserts a legal
conclusion. Subject to and without
waiving these objections, denied as
to any implication (not stated in the
document) that OxyChem is the sole
successor to DSCC because it is not:
Maxus is also a successor to DSCC.
To the extent that any additional
response is required, the agreement
speaks for itself.

33
Exhibit A to June 13, 2022 Special Master Decision
Case 2:18-cv-11273-MCA-LDW Document 2083 Filed 06/13/22 Page 47 of 58 PageID: 60850
Request Occidental Response SPG Response Special Master Findings

(238) Admit that on or about Objection 1, 2, 3, 4, 5, 6, 7, and 8. • Boilerplate objections that do not apply to The Special Master finds that the response complies
November 16, 2003 The request seeks an admission the request with Rule 36 and no further response is needed.
Occidental Chemical regarding an affidavit, which • “Document speaks for itself” is improper Though Occidental did assert that the agreement
Corporation Associate document speaks for itself. It is also objection “speaks for itself,” which is an improper objection,
General Counsel and vague, ambiguous, and compound as • Extraneous information (“Maxus is Occidental also denied the request, and the denial
Assistant Secretary, Robert D. it falsely characterizes the referenced also…”) that does not answer question was sufficient as this request seeks an admission that
Luss, made a sworn affidavit document as asserting that OxyChem • Denies an implication it injected itself Occidental is the sole successor.
admitting that Occidental is the only successor to DSCC and is • There is not an improper legal conclusion
Chemical Corporation is the therefore misleading, misrepresents here—Judge Arleo has already
successor by merger to the referenced document, and concluded that OxyChem is successor to
Diamond Alkali, which was improperly asserts a legal DSCC
later known as DSCC and conclusion. Subject to these
Occidental Electrochemicals objections, and to the fact that the
Corporation. request paraphrases and does not
quote the affidavit in question,
denied. The Affidavit of Mr. Luss
speaks for itself, is not quoted
accurately and nowhere states, as the
request implies, that OxyChem is the
sole successor to Diamond Alkali
because it is not: Maxus is also a
successor to DSCC.

(244) Admit that on or about Objection 1, 2, 3, 4, 5, 6, 7, and 8. • Boilerplate objections that do not apply to The Special Master finds that the response complies
November 2, 2004, Michael The request seeks an admission the request with Rule 36 and no further response is needed.
M. Gordon, as counsel for regarding an affidavit, which • “Document speaks for itself” is improper Though Occidental did assert that the agreement
OxyChem, made a sworn document speaks for itself. The objection “speaks for itself,” which is an improper objection,
affidavit admitting that request is also vague, ambiguous, • Extraneous information (“Maxus is Occidental also denied the request, and the denial
OxyChem is the successor by and compound in that it paraphrases also…”) that does not answer question was sufficient as this request seeks an admission that
merger to the manufacturer of the affidavit in a misleading manner • Denies an implication it injected itself Occidental is the sole successor.
Agent Orange at 80 Lister to suggest that OxyChem is the only
Avenue in Newark, New successor to DSCC (if that is what is
Jersey. meant by the term “manufacturer of
Agent Orange”), because OxyChem
34
Exhibit A to June 13, 2022 Special Master Decision
Case 2:18-cv-11273-MCA-LDW Document 2083 Filed 06/13/22 Page 48 of 58 PageID: 60851
Request Occidental Response SPG Response Special Master Findings

is not the sole successor to DSCC:
Maxus is also a successor to DSCC.
If a further response is required, the
document speaks for itself.
(245) Admit that on or about Objection 1, 2, 3, 4, 5, 7, and 8. The • Boilerplate objections that do not apply to The Special Master finds that the response complies
November 2, 2004, Michael request seeks an admission the request with Rule 36 and no further response is needed.
M. Gordon, as counsel for regarding an affidavit, which • “Document speaks for itself” is improper Though Occidental did assert that the agreement
OxyChem made a sworn document speaks for itself. Subject objection “speaks for itself,” which is an improper objection,
affidavit admitting that neither to these objections, denied. • Extraneous information (“Maxus is Occidental also denied the request, and this denial
Maxus nor Tierra were proper also…”) that does not answer question was sufficient.
parties to a lawsuit concerning • Impossible to decipher if denial is based
Agent Orange manufactured on substance of request or stated
at 80 Lister Avenue. objections

(252) Admit that on or about Objection 1, 2, 3, 4, 5, 7, and 8. This • Boilerplate objections that do not apply to The Special Master finds that the response complies
July 25, 1973, Diamond request seeks an admission the request with Rule 36 and no further response is needed.
Shamrock Corporation and regarding an agreement, which • “Document speaks for itself” is improper Though Occidental did assert that the agreement
Chemicaland Corporation document speaks for itself. Subject objection “speaks for itself,” which is an improper objection,
entered into a Processing to and without waiving these • OxyChem is not responding fairly to Occidental also denied the request, and this denial
Agreement for Chemicaland objections, admitted there was an substance of request; admitting only that was sufficient.
Corporation to produce 2,4-D agreement bearing that date between there was an agreement but not admitting
exclusively for Diamond Diamond Shamrock Corporation that the agreement was a processing
Shamrock Corporation. and Chemicaland; denied that this agreement
(MAXUS0479199). request accurately summarizes its • Impossible to decipher if denial is based
terms. on substance of request or stated
objections

(253) Admit that Occidental Objection 1, 2, 3, 4, 5, 7, and 8. This • Boilerplate objections that do not apply to The Special Master finds that the response complies
Chemical Company entered request seeks an admission the request with Rule 36 and no further response is needed.
into a tolling agreement with regarding an agreement, which • “Document speaks for itself” is improper Though Occidental did assert that the agreement
Chemicaland Corporation for document speaks for itself. Subject objection “speaks for itself,” which is an improper objection,
the production and/or supply to and without waiving these • OxyChem needs to detail the reasonable Occidental also denied the request, and this denial
of 2,4-D. objections, and to the failure of this inquiry it undertook was sufficient.
request to specify any particular date • OxyChem is evading answer by not
at issue, admitted there was an actually answering the question asked;
agreement between Occidental admitting only to “an agreement”
35
Exhibit A to June 13, 2022 Special Master Decision
Case 2:18-cv-11273-MCA-LDW Document 2083 Filed 06/13/22 Page 49 of 58 PageID: 60852
Request Occidental Response SPG Response Special Master Findings

Chemical Company and • Impossible to decipher if denial is based
Chemicaland; denied that this on substance of request or stated
request accurately summarizes its objections
terms because, after reasonable
inquiry, OxyChem has not located a
copy of this document.

(254) Admit that Occidental Objection 1, 2, 3, 4, 5, 7, and 8. This • Boilerplate objections that do not apply The Special Master finds that the response complies
Chemical Company entered request seeks an admission to the request with Rule 36 and no further response is needed.
into a Tolling Agreement regarding an agreement, which • “Document speaks for itself” is improper Though Occidental did assert that the agreement
with Chemicaland document speaks for itself. Subject objection “speaks for itself,” which is an improper objection,
Corporation on August 20, to and without waiving these • OxyChem needs to detail the reasonable Occidental also denied the request, and this denial
1975 for the production of objections, admitted there was an inquiry it undertook was sufficient.
2,4-D. agreement between Occidental • OxyChem is evading answer by not
Chemical Company and actually answering the question asked;
Chemicaland; denied that this admitting only to “an agreement”
request accurately summarizes its • Impossible to decipher if denial is based
terms because, after reasonable on substance of request or stated
inquiry, OxyChem has not located a objections
copy of this document.

(255) Admit that Occidental Objection 1, 2, 3, 4, 5, 7, and 8. This • Boilerplate objections that do not apply The Special Master finds that the response complies
Chemical Company entered request seeks an admission to the request with Rule 36 and no further response is needed.
into a Tolling Agreement with regarding an agreement, which • “Document speaks for itself” is improper Though Occidental did assert that the agreement
Chemicaland Corporation on document speaks for itself. Subject objection “speaks for itself,” which is an improper objection,
September 11, 1975 for the to and without waiving these • OxyChem needs to detail the reasonable Occidental also denied the request, and this denial
production of 2,4-D. objections, admitted there was an inquiry it undertook was suf

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Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/10273258. Public record. Not legal advice.