Reynolds Consumer Products LLC v. Glencore AG

UNITED STATES DISTRICT COURT

SOUTHERN DISTRICT OF NEW YORK

IN RE ALUMINUM WAREHOUSING

ANTITRUST LITIGATION

16 Civ. 5955 (PAE)

This Document Relates To:

ORDER

Reynolds Consumer Products LLC et al. v.

Glencore Ltd. et al., No. 16 Civ. 5955 (PAE)

(S.D.N.Y.)

PAUL A. ENGELMAYER, District Judge:

The Court has reviewed the letter from plaintiffs Reynolds Consumer Products LLC

(“Reynolds”) and Southwire Company, LLC (“Southwire,” and together with Reynolds,

“plaintiffs”), see Dkts. 179–80 (“R&S Ltr.”), and response from Glencore Ltd. (“Glencore”), see

Dkts. 184–85 (“Glencore Resp.”), regarding the parties’ recent discovery dispute. The Court

resolves this dispute as follows.

On July 15, 2020, fact discovery in this case closed. See Dkt. 145. On August 14, 2020,

plaintiffs filed the instant request, asking the Court to compel Glencore to provide “information

regarding the source of aluminum Glencore sold to plaintiffs.” R&S Ltr. at 1. Such information

had been the subject of an interrogatory (“Interrogatory No. 8”) served by plaintiffs on Glencore

on February 4, 2020, to which Glencore objected on March 5, 2020. See id.; see also Dkt. 179-1

(“Interrogatories”); Dkt. 179-2 (“Objections”). Plaintiffs’ proffered justification for the instant

belated request is that they understood Glencore’s objections to Interrogatory No. 8 to deny

possession of the requested information. See R&S Ltr. at 1–3. Only after the depositions of two

Glencore employees on the last and penultimate days of discovery, plaintiffs argue, did they

learn that Glencore in fact possessed information regarding the sources of its aluminum

purchases. Id. at 2.

In response, Glencore contends that it never denied possessing such information. Instead,

it argues that, as to the sources of its own aluminum purchases, its Objections challenged

Interrogatory No. 8’s compliance with S.D.N.Y. Local Rule 33.3(b). Glencore Resp. at 1; see

Objections at 16–17. That Rule prohibits interrogatories from seeking information other than the

names of witnesses, damages computations, or the “existence, custodian, location, and general

description of documents,” unless such interrogatories are “a more practical method of obtaining

the information sought than a request for production or a deposition.” S.D.N.Y. Local. Rule 33(b).

And Glencore represents that, at the time it made these Objections, plaintiffs were aware of its

position that any request for additional transactional data, such as information about the sources

of its aluminum purchases, were properly the subject of a request for production (“RFP”), not an

interrogatory. See Glencore Resp. at 1.

To the extent Glencore’s Objections stated that Interrogatory No. 8 “purports to seek the

discovery of information or documents that are not in Glencore Ltd.’s possession, custody, or

control,” Glencore now avers that such objection pertained to the interrogatories’ request for

similar transactional data relating to Glencore’s affiliates, which Glencore has long denied

possessing. See id. at 2 n.2; Objections at 17. Thus, Glencore argues, the deposition testimony

near the close of discovery does not support the instant untimely request, as it revealed nothing

new to plaintiffs. Plaintiffs were on notice since at least March 5, 2020, that Glencore possessed

the information discussed in those depositions, but would only produce it upon receipt of an

RFP. Plaintiffs, however, never served such a request. See Glencore Resp. at 2–3. Thus,

Glencore contends, plaintiffs have not identified any reason to move, more than a month after

discovery closed, to compel the additional production of data. Id.

The Court rules for Glencore. Glencore’s Objections cannot fairly be read to deny its

possession of information regarding the sources for its own aluminum purchases. See Objections

at 16–17. Rather, its challenge to Interrogatory No. 8’s compliance with Local Rule 33.3(b)

clearly sought to channel this aspect of plaintiffs’ request into an RFP, on the basis that such a

request was “more practical” than an interrogatory. S.D.N.Y. Local Rule 33.3(b); see, e.g.,

Madanes v. Madanes, 186 F.R.D. 279, 290 (S.D.N.Y. 1999) (“A document request is a far more

practical means of obtaining [transaction history] than is an interrogatory.”). If plaintiffs had

disagreed with this objection, the proper time to challenge it was before the close of discovery,

not today, well after discovery has closed. See Eng-Hatcher v. Sprint Nextel Corp.,

No. 07 Civ. 7350 (BSJ) (KNF), 2008 WL 4104015, at *3 (S.D.N.Y. Aug. 28, 2008).

To the extent Glencore denied possession of any information in its Objections, it is not

plausible that plaintiffs understood such denial to apply to Glencore’s own purchase history.

First, the proposition that a sophisticated entity such as Glencore would lack access to

information concerning the sources of its own aluminum purchases strains credulity. Plaintiffs

have asserted no basis, aside from the less than fully pellucid locutions used in Glencore’s

Objections, for assuming that this was the case. Second, at the time the parties exchanged

interrogatories and objections, they also litigated a motion regarding co-defendant Access World

USA’s access to its affiliates’ data, and contemplated a similar motion regarding Glencore’s

claims that it lacked access to its own affiliates’ information. See Dkt. 134. The day after the

Court ruled for Access World USA on this point, on March 11, 2020 plaintiffs notified the Court

that they would not proceed “at this time” with a similar motion to compel information held by

Glencore’s affiliates. See Dkt. 136. When Glencore, the week prior, served its Objections

denying “possession, custody, or control” of certain information requested in Interrogatory

No. 8, the parties were thus surely aware of Glencore’s position that it did not possess its

affiliates’ transactional data, but had not denied possessing its own such data. Accordingly, the

deposition testimony of Glencore’s employees near the close of discovery does not provide a

basis for allowing plaintiffs to revisit the materials requested in Interrogatory No. 8, as such

depositions did not contradict Glencore’s prior representations.

None of plaintiffs’ other reasons for granting their request is persuasive. It is immaterial

whether Glencore also served interrogatories on plaintiffs that arguably ran afoul of S.D.N.Y.

Local Rule 33.3(b). See R&S Ltr. at 3. The proper means to contest such violations was through

the lodging of objections (which plaintiffs appear to have done, see Glencore Resp. at 3), not to

seek belatedly the reopening of discovery from Glencore. And plaintiffs offer no justification for

their conclusory statement that Interrogatory No. 8 “complies with Local Rule 33.3(c), which

permits contention interrogatories at the conclusion of other discovery.” Id. In any event, the

time to dispute that fact has long since past, and has no bearing on the propriety of the instant

request. Nor is there any basis, in light of this ruling, at this point to preclude Glencore from

introducing evidence regarding the origin of metal that it sold to plaintiffs. R&R Ltr. at 1.

Accordingly, the Court denies plaintiffs’ motion in its entirety.

The Clerk of Court is respectfully directed to terminate the motions pending at

dockets 179–80.

SO ORDERED.

____________________________

Paul A. Engelmayer

United States District Judge

Dated: August 31, 2020

New York, New York