The opinion
UNITED STATES DISTRICT COURT
NORTHERN DISTRICT OF NEW YORK
MICHELE BAKER, et ai.,
Plaintiffs,
V. 1:16-CV-917
(LEK/DJS)
SAINT-GOBAIN PERFORMANCE
PLASTICS CORP., et al.,
Defendants.
DANIEL J. STEWART
United States Magistrate Judge
ORDER DENYING RECONSIDERATION
Defendant E.J. DuPont de Nemours and Company (“DuPont”) seeks
reconsideration of this Court’s prior Discovery Order, Dkt. No. 374, insofar as it denied
DuPont’s request to conduct certain Rule 30(b)(6) depositions of Saint-Gobain
Performance Plastics Corp. (“Saint-Gobain”) representatives.! Dkt. No. 375. Saint-
Gobain has opposed the Motion for Reconsideration, and requests that the Court impose
costs and fees on DuPont for vexatious conduct. Dkt. No. 376. For the reasons that
' DuPont does not move for reconsideration of other aspects of this Court’s Discovery Order, in particular, that
portion of the Order which granted the request to conduct the depositions of two non-party witnesses, Mr. Peter
Spohn and Mr. Damien Nevoret. See Dkt No. 374 at pp. 3-4.
]
follow, both the Motion for Reconsideration of the May 26, 2023 Discovery Order, as
well as the request for the imposition of costs, are hereby denied.
The present PFOA litigation is amongst the most extensive and complicated that
this District has handled. Practically speaking, the Court would not be able to do so
“) without the help of all counsel coordinating discovery and aggressively utilizing the
meet and confer process that, in this case, has resolved many of the complicated issues.
That self-regulation was mandated by the Court’s Standing Order and Amended
Standing Order, which require the parties and counsel to, among other things,
“coordinate discovery activities and avoid unnecessary duplication...” Dkt. Nos. 72 &
117 at 8. With regard to depositions 1n particular, the Coordination Orders, stipulated
“| to by all counsel, specifically provide that “the parties are entitled to seek a protective
order as to any additional noticed deposition that, in light of other depositions and other
discovery taken in the Affected Cases, would be wasteful, duplicative, burdensome, or
otherwise unnecessary.” /d. at § 14. This is an important qualifier, because, as has been
noted:
Depositions are often overused and conducted inefficiently, and thus tend to
be the most costly and time-consuming activity in complex litigation. The
judge should manage the litigation so as to avoid unnecessary depositions,
limit the number and length of those that are taken, and ensure that the
process of taking depositions is as fair and efficient as possible.
FEDERAL JUDICIAL CENTER, MANUAL FOR COMPLEX LITIGATION, § 11.45,
(4th ed.).
Despite the joint work of counsel, this Court on occasion is called to make rulings
concerning the scope of discovery so as to promote the mandates of Rule 1. In the
present case, such a judgment was made regarding DuPont’s Rule 30(b)(6) Deposition
Notice based upon the briefing of the parties, as well as extensive oral argument during
the Court’s May 5, 2023, telephone conference. Having reviewed the present papers
from DuPont, the Court does not see sufficient grounds for overruling this judgment.
The standard for reconsideration in this District is well known, and was recently
summarized by Chief Judge Sannes:
A court may justifiably reconsider its previous ruling if: (1) there is an
intervening change in the controlling law; (2) new evidence not previously
available comes to light; or (3) it becomes necessary to remedy a clear
error of law or to prevent manifest injustice. Delaney v. Selsky, 899 F.
Supp. 923, 925 (N.D.N.Y. 1995) (McAvoy, C.J.) (citing Doe v. New York
City Dep’t of Soc. Servs., 709 F.2d 782, 789 (2d Cir. 1983)). The standard
for granting a motion for reconsideration is strict. Shrader v. CSX
Transportation, Inc., 70 F.3d 255, 257 (2d Cir. 1995). A motion for
reconsideration “should not be granted where the moving party seeks
solely to relitigate an issue already decided.” /d. Thus, a motion for
reconsideration is not to be used for “presenting the case under new
theories, securing a rehearing on the merits, or otherwise taking a ‘second
bite at the apple.’” Sequa Corp. v. GBJ Corp., 156 F.3d 136, 144 (2d Cir.
1998).
”) Dean v. Annucci, 2023 WL 2325074, at *10 (N.D.N.Y. Mar. 2, 2023).
Judged against that standard, the present Motion for Reconsideration fails. There
has not been an intervening change in the law, no new evidence has been presented, and
the Court perceives no clear error or manifest injustice.
By way of history, this case was commenced in early 2016. On July 27, 2016,
this Court issued an Order consolidating certain cases, and appointing interim class
counsel. Dkt. No. 1. A Uniform Pretrial Scheduling Order was issued in February of
2018. Dkt. No. 48. The first Standing Order for the coordination of discovery in the
many pending PFOA lawsuits in Hoosick Falls was issued on October 9, 2018. Dkt.
No. 72. An Amended Standing Coordination Order was issued in May of 2019. Dkt.
No. 117. In addition, Pretrial Case Management and Scheduling Orders were put in
place. Dkt. Nos. 136, 138, 178, 194, & 219. After completion of what has been
described as massive discovery during the five years since the initial Rule 16 conference,
the Baker class action Plaintiffs agreed to a global settlement with Saint-Gobain,
Honeywell International Inc., and 3M Company, and that settlement received final
approval from the District Court on February 4, 2022. Dkt. No. 316. The day prior to
the final approval of settlement in the Baker Class Action, DuPont, the sole remaining
Defendant, served its Rule 30(b)(6) Notice.
DuPont’s Motion dwells upon what it perceives to be a clear error by the Court
in distinguishing between merits discovery and class certification discovery. See Dkt.
No. 375-1 at pp. 2-5. It notes that the scheduling order issued after the Saint-Gobain
settlement extended merits discovery through June of 2023, and therefore the 30(b)(6)
notice was well within that date. Jd. at p. 2; Dkt. No. 335. Further, while DuPont
recognizes this Court’s authority to limit discovery, the Court’s present Order is said to
go so far as to affect DuPont’s substantial nights, and therefore constitutes an abuse of
discretion. Dkt. No. 375-1 at pp. 5-7.
The Court’s Order, however, was not premised upon the fact that a particular
discovery deadline had expired, but rather that Saint-Gobain had established to the
Court’s satisfaction that the areas on which DuPont now seeks depositions, were topics
that have already been covered in detail, or could have been covered, in the multiple
depositions that DuPont already attended. See Dkt. No. 370 at pp. 4-9. The topics
identified in the Rule 30(b)(6) deposition notice included: (1) meetings with DuPont
regarding safety, health, and environmental issues for PFOA and product containing
PFOA; (2) discussions, meetings or inquiries, regarding handling and emission control
technologies for PFOA and products containing PFOA, including meetings with W.L.
Gore; (3) communications with other sellers or manufacturers of PFOA or products
containing PFOA; (4) information regarding Team “Tymor”; (5) Saint-Gobain’s
involvement with the Society of Plastics Industry (SPI) from 1990 to the present; and
(6) emissions testing conducted by Saint-Gobain for PFOA. Dkt. No. 366 at pp. 3-4.
Douglas Fleming, counsel for Saint Gobain, represented to the Court in a detailed
filing that he attended almost all of the corporate witness depositions, and asserts that
there has already been disclosure about these very same issues identified in the Rule
30(b)(6) Deposition Notice. Dkt. No. 370. Eleven current or former Saint-Gobain
employees have been deposed, and over a million pages of documents have been
produced. Jd. Representatives from DuPont attended all of the depositions and asked
questions at many. /d. These multiple witnesses are said to have provided responsive
testimony regarding the items now at issue: spills of PFOA at Hoosick Falls, meetings
about PFOA, sales of PFOA, uses of PFOA, the Tymor group, discussions with W.L.
“| Gore, participation in the Society of Plastic Industry, and emissions testing and control
technology. Jd. at pp. 1-9. Using Tymor as just one example,” counsel notes that the
parties have already conducted depositions of four different witnesses on this issue,
including Edward Canning, the Tymor team leader, who testified over multiple days, as
well as two additional team members, Ruth Jamke and Richard Hoeck. Dkt. No. 370-
2 at pp. 4-6. While there may have been an inability of a particular witness to recall a
particular fact, there is no serious dispute that this area of inquiry (as well as the others)
was extensively covered in the discovery that all parties participated in. Attorney
Fleming further sets forth that he had conferred with DuPont’s counsel to establish the
repetitious nature of the discovery that was being sought through the Rule 30(b)(6)
Notice, but despite identifying page numbers and identifying witnesses, counsel for
DuPont still insisted on going forward.
DuPont’s argument that there is time left to do merits discovery misses the mark.
First, there was, in fact, no practical dichotomy whereby the topics upon which DuPont
seeks testimony from Saint-Gobain were somehow blocked during the initial years of
2 In his submission, Attorney Fleming details each topic of inquiry, and provides specific reference as to how the
area was covered. ‘
class action discovery. In fact, and as detailed by Attorney Fleming, the record is clear
that these topics identified in the Rule 30(b)(6) Notice were covered in significant detail
with multiple witnesses. See Dkt. No. 370-2. Insofar as these areas were critical, their
significance was known to the parties when these depositions and document production
were occurring. There has been no explanation why, if DuPont felt it was required,
30(b)(6) depositions were not conducted at that time.
Ultimately, while the Court granted the request of DuPont to depose two
additional witnesses, it concluded that Dupont had not established that the additional
testimony sought by way of the 30(b)(6) witness or witnesses was not duplicative of
what had already been done, or could have been done, to date. DuPont’s argument that
30(b)(6) witnesses, as corporate designees, can never be repetitious of other
witnesses, runs contrary to the federal rules and also the unique nature of this case. Like
other forms of discovery, a Rule 30(b)(6) deposition notice is subject to the limitations
under Federal Rule 26 - deposition topics should be proportional to the needs of the case,
not unduly burdensome or duplicative, and described with “reasonable particularity.”
FED. R. CIv. P.30(b)(6); Blackrock Allocation Target Shares: Series S Portfolio v. Wells
Fargo Bank, Nat'l Ass’n, 2017 WL 9400671, at *1 (S.D.N.Y. Apr. 27, 2017). As one
court has noted: “A Rule 30(b)(6) deposition is not to be used to re-ask all of the
questions a party has previously explored with multiple witnesses.” BAT LLC v. TD
Bank, N.A., 2019 WL 13236131, at *5 (E.D.N.Y. Sept. 24, 2019) (citing Bellinger v.
Astrue, 2011 WL 4529602, at *4 (E.D.N.Y. Sept. 28, 2011)), objections overruled, 2019
WL 13257498 (E.D.N.Y. Nov. 20, 2019).
The Court does recognize the difference between Rule 30(b)(6) witnesses and
individual witnesses, but in light of the particular facts of this case, the joint discovery
efforts that were mandated by prior Court Orders, the scope of the discovery that has
already been undertaken, and the clear direction of the parties to eliminate duplicative
discovery, it was and is the Court’s view that it would be inappropriate to essentially
start over on these topics utilizing a Rule 30(b)(6) notice. Although DuPont clearly
disagrees with this Court’s analysis and exercise of its discretion over discovery, a
Motion for Reconsideration is not a proper vehicle for re-arguing theories.
Accordingly, the request for reconsideration is denied.
As for Saint-Gobain’s request for costs and fees, Local Rule 7.1(1) provides that
“Ta] party who presents vexatious or frivolous motion papers or fails to comply with this
Rule is subject to discipline as the Court deems appropriate, including sanctions and the
imposition of costs and attorney’s fees to the opposing party.” L.R. 7.141). While the
Court does not adopt the arguments of DuPont and its counsel, it does not find that their
arguments were advanced in bad faith or were wholly without merit. Indeed, and as
noted above, this was at the end a judgment call. Therefore, Defendant Saint-Gobain’s
request for a fee award 1s likewise denied.
ACCORDINGLY, it is
ORDERED, that DuPont’s Motion for Reconsideration (Dkt. No. 375) is
DENIED; and it is further
ORDERED, that Saint-Gobain’s request for the Court to impose attorney’s fees
on DuPont (Dkt. No. 376) is DENIED; and it is further
ORDERED, that the Clerk of the Court shall serve copies of this Decision and
Order on the parties.
Dated: July 26, 2023
Albany, New York
( ole “
U.SMMfagistrate Judge