Cape Fear Public Utility Authority v. The Chemours Company FC, LLC

IN THE UNITED STATES DISTRICT COURT

FOR THE EASTERN DISTRICT OF NORTH CAROLINA

SOUTHERN DIVISION

CAPE FEAR PUBLIC UTILITY )

AUTHORITY, BRUNSWICK COUNTY, )

LOWER CAPE FEAR WATER & SEWER _)

AUTHORITY, and TOWN OF )

WRIGHTSVILLE BEACH, )

) Case No. 7:17-CV-195-D

Plaintiffs, )

) Case No. 7:17-CV-209-D

Vv. ) .

) ORDER

)

THE CHEMOURS COMPANY FC, LLC, )

E.I. DU PONT DE NEMOURS AND )

COMPANY, and THE CHEMOURS )

COMPANY, )

)

Defendants. )

On January 31, 2018, the Cape Fear Public Utility Authority (“Cape Fear” or “plaintiff’)

and Brunswick County (the “County”; collectively “plaintiffs”) filed a Master Complaint of Public

Water Suppliers against DowDuPont, Inc. (“DowDuPont”),! E.I. du Pont de Nemours and

Company (“DuPont”), The Chemours Company, and The Chemours Company FC, LLC

(“Chemours”; collectively “defendants”) alleging that defendants discharged toxic chemicals from

the Fayetteville Works facility into the Cape Fear River and surrounding air, soil, and groundwater.

See Master Compl., Brunswick Cnty., No. 7:17-CV-209-D (E.D.N.C. Jan. 31, 2018) [D.E. 35].

On May 7, 2019, Cape Fear filed an amended master complaint [D.E. 75]. The court has detailed

1 On March 1, 2018, the County voluntarily dismissed without prejudice DowDuPont as a

defendant. See Notice of Voluntary Dismissal, Brunswick Cnty. v. E.I. du Pont de Nemours &

Co., No. 7:17-CV-209-D (E.D.N.C. Mar. 1, 2018) [D.E. 45-47]. On March 2, 2018, Cape Fear

voluntarily dismissed without prejudice DowDuPont as a defendant. See Notice of Voluntary

Dismissal, Cape Fear Pub. Util. Auth. v. Chemours Co. FC, No. 7:17-CV-195-D (Mar. 2, 2018)

[D.E. 35].

the extensive history of this case. See, e.g., Cape Fear Pub. Util. Auth. v. Chemours Co. FC, LLC,

No. 7:17-CV-195, 2019 WL 13300188 (E.D.N.C. Apr. 19, 2019) (unpublished). This order

recounts relevant events concerning the pending motions.

Cape Fear appeals three non-dispositive orders of United States Magistrate Judge Robert

T. Numbers, II [D.E. 295, 301, 303]. On April 23, 2024, Magistrate Judge Numbers denied in part

and granted in part Cape Fear’s motion to compel unredacted copies of documents from defendants

[D.E. 289]. On May 2, 2024, Magistrate Judge Numbers denied Cape Fear’s motion to compel

documents concerning the 2015 Chemours spinoff, limiting the scope of discovery to the claims

included in Cape Fear’s amended master complaint, and restricting Cape Fear’s expert discovery

[D.E. 292]. That same day, Magistrate Judge Numbers denied Cape Fear’s motion to compel

defendants to produce copies of communications between defendants and certain third parties

[D.E. 293]. On May 14, 2024, and May 23, 2024, defendants moved to seal the appeals [D.E. 299,

307, 308]. As explained below, the court denies in part defendants’ motions to seal and affirms

Magistrate Judge Numbers’s orders.

IL

The court begins with defendants’ motions to seal. See [D.E. 299, 307, 308]. The “public

and press have a qualified right of access to judicial documents and records filed in civil and

criminal proceedings.” United States ex rel. Oberg v. Nelnet, Inc., 105 F.4th 161, 170-71 (4th

Cir, 2024) (quotation omitted); Doe v. Pub. Citizen, 749 F.3d 246, 265 (4th Cir. 2014); see

Richmond Newspapers, Inc. v. Virginia, 448 U.S. 555, 580 n.17 (1980); Nixon v. Warner

Communications, Inc., 435 U.S. 589, 597 (1978); Media Gen. Operations, Inc. v. Buchanan, 417

F.3d 424, 428 (4th Cir. 2005). “The right of public access springs from the First Amendment and

the common-law tradition that court proceedings are presumptively open to public scrutiny.” Doe,

749 F.3d at 265; Va. Dep’t of State Police v. Wash. Post, 386 F.3d 567, 575 (4th Cir. 2004).

“Because there are two sources, the right protected by each varies.” Oberg, 105 F.4th at 171.

“The common law presumes a right of the public to inspect and copy all judicial records

and documents.” Id. (quotation omitted); Nixon, 435 U.S. at 597; Va. Dep’t of State Police, 386

F.3d at 575; see Stone v. Univ. of Md. Med. Sys. Corp., 855 F.2d 178, 180 (4th Cir. 1988).

“Documents filed with the court are judicial records if they play a role in the adjudicative process

or adjudicate substantive rights, such as when they were filed with the objective of obtaining

judicial action or relief.” Oberg, 105 F.4th at 171; In re U.S. for an Ord. Pursuant to 18 U.S.C.

Section 2703(D), 707 F.3d 283, 290-91 (4th Cir. 2013). A presumption of public access arises

when a court finds that a document is a judicial record. See Oberg, 105 F.4th at 171; Rushford v.

New Yorker Mag.., Inc., 846 F.2d 249, 253 (4th Cir. 1988). “This presumption of access, however,

can be rebutted if countervailing interests heavily outweigh the public interests in access.”

Rushford, 846 F.2d at 253. In performing this inquiry, the court asks “whether the records are

sought for improper purposes, such as promoting public scandals or unfairly gaining a business

advantage; whether release would enhance the public’s understanding of an important historical

event; and whether the public has already had access to the information contained in the records.”

Oberg, 105 F.4th at 171; In re Knight Publ’g Co., 743 F.2d 231, 235 (4th Cir. 1984); see United

States v. Amodeo, 71 F.3d 1044, 1051 (2d Cir. 1995).

“Unlike the common-law right, the First Amendment right of access extends only to certain

judicial proceedings and records.” Oberg, 105 F.4th at 171; Stone, 855 F.2d at 180. Specifically,

the right attaches to any judicial proceeding or record “(1) that has historically been open to the

press and general public; and (2) where public access plays a significant positive role in the

functioning of the particular process in question.” Oberg, 105 F.4th at 171 (quotation omitted);

Courthouse News Serv. v. Schaefer, 2 F.4th 318, 326 (4th Cir. 2021) (cleaned up). The First

Amendment right of access also protects “materials submitted in conjunction with judicial

proceedings that themselves would trigger the right of access.” Oberg, 105 F.4th at 171; see □□□□

749 F.3d at 267; In re Wash. Post Co., 807 F.2d 383, 390 (4th Cir. 1986). Whenever the First

Amendment protects a proceeding or a document, a court may restrict access “only if closure is

necessitated by a compelling government interest and the denial of access is narrowly tailored to

serve that interest.” Oberg, 105 F.4th at 171 (quotations omitted); see Doe, 749 F.3d at 266; Wash.

Post, 807 F.2d at 390. The First Amendment, however, “does not prohibit a district court from

limiting the disclosure of products of pretrial discovery.” Oberg, 105 F.4th at 172; Rushford, 846

F.2d at 252.

The court has reviewed the documents in the appeals under the governing common law

standard. The documents constitute judicial records; therefore, the common law presumption of

public access arises. See, e.g., Oberg, 105 F.4th at 171; Rushford, 846 F.2d at 253. To maintain |

all the documents under seal, defendants must show that countervailing interests heavily outweigh

the public interests in accessing the documents. See, e.g., Rushford, 846 F.2d at 253. In its motions

to seal, defendants argue the appeals “cite[] to and discuss[]” sealed materials, “including

[Magistrate Judge Numbers’s] provisionally sealed order.” [D.E. 307] 1 1; [D.E. 308] { 1; see

[D.E. 299] J 1. The court also recognizes Magistrate Judge Numbers provisionally sealed two of

his orders. See [D.E. 292, 293]. These facts do not mean, however, that defendants may maintain

all the documents in the appeals under seal.

The documents in the appeals contain myriad references to public information, such as (1)

governing law and legal arguments; (2) public filings and hearings; (3) unsealed, parallel actions

related to this case; (4) publicly available information about this case; and (5) allegations contained

within Cape Fear’s unsealed amended master complaint. The common law protects the public’s

interest in accessing this type of information. Defendants have failed to show that countervailing

interests heavily outweigh the public’s interest and require sealing all the documents. See, e.g.,

Rushford, 846 F.2d at 253.

To the extent that any of the documents in the appeals include confidential, protected, or

privileged information, the documents may remain under seal. Defendants, however, should not

seek to seal the entire record and instead should file redacted documents. See Fed. R. Civ. P.

5.2(a); Local Civ. R. 5.1(g); EDNC CM/ECF Policy Manual § IV.F. The court expects the parties

to more carefully tailor their requests to seal and to ensure that their requests to seal comport with

governing law.

The court denies in part defendants’ motions to seal. Defendants shall file redacted

documents concerning the appeals not later than April 14, 2025.

I.

Rule 26 permits broad but not unlimited discovery. See Fed. R. Civ. P. 26(b)(1); Nallapati

v. Justh Holdings, LLC, No. 5:20-CV-47, 2022 WL 274405, at *2 (E.D.N.C. Jan. 28, 2022)

(unpublished); EEOC v. Sheffield Fin. LLC, No. 1:06CV889, 2007 WL 1726560, at *3 (M.D.N.C.

June 13, 2007) (unpublished); cf. Herbert v. Lando, 441 U.S. 153, 177 (1979); Hickman v. Taylor,

329 U.S. 495, 507 (1947); Ralston Purina Co. v. McFarland, 550 F.2d 967, 973 (4th Cir. 1977).

A court may consider proportional costs and benefits of discovery. See Fed. R. Civ. P. 26(b)(1).

Moreover, parties must comply with a court’s local rules concerning discovery. Furthermore, a

party may not use discovery to annoy, embarrass, oppress, or cause an undue burden or expense

to the opposing party. See Fed. R. Civ. P. 26(c)(1). A district court has substantial discretion to

grant or deny motions to compel discovery. See, e.g., Lone Star Steakhouse & Saloon, Inc. v.

Alpha of Va., Inc., 43 F.3d 922, 929 (4th Cir. 1995); Erdmann v. Preferred Research. Inc., 852

F.2d 788, 792 (4th Cir. 1988); LaRouche v. Nat’] Broad. Co., 780 F.2d 1134, 1139 (4th Cir. 1986).

The court may refer discovery disputes to a United States magistrate judge for resolution.

See 28 U.S.C. § 636(b)(1)(A); Fed. R. Civ. P. 72(a); Local Civ. R. 72.3(b). A party may object

within 14 days after being served with a copy of the magistrate judge’s order. See Fed. R. Civ. P.

72(a); Local Civ. R. 72.4(a). The court shall “consider timely objections and modify or set aside

any portion of the order that is clearly erroneous or is contrary to law.” Fed. R. Civ. P. 72(a). A

factual finding is clearly erroneous when the court is “left with the definite and firm conviction

that a mistake has been committed.” Anderson v. Bessemer City, 470 U.S. 564, 573 (1985)

(cleaned up); see United States v. U.S. Gypsum Co., 333 U.S. 364, 395 (1948); TFWS, Inc. v.

Franchot, 572 F.3d 186, 196 (4th Cir. 2009). A magistrate judge’s order is contrary to law when

“the magistrate judge has misinterpreted or misapplied applicable law.” Trudell Med. Int’l v. DR

Burton Healthcare, LLC, No. 4:18-CV-9, 2021 WL 684200, at *3 (E.D.N.C. Feb. 22, 2021)

(unpublished); Kounelis v. Sherrer, 529 F. Supp. 2d 503, 518 (D.N.J. 2008). “Although the

contrary to law standard permits plenary review of legal conclusions, decisions related to discovery

disputes and scheduling are accorded greater deference.” Johnson v. City of Fayetteville, No.

5:12-CV-456, 2013 WL 4039418, at *3 (E.D.N.C. Aug. 5, 2013) (unpublished); see Trudell, 2021

WL 684200, at *3; In re Outsidewall Tire Litig., 267 F.R.D. 466, 470 (E.D. Va. 2010).

A.

Cape Fear appeals Magistrate Judge Numbers’s order denying in part Cape Fear’s motion

to compel production of certain redacted information contained in documents that the defendants

produced. See [D.E. 295]. Cape Fear argues Magistrate Judge Numbers’s order “is contrary to

law because this Court does not allow unilateral redactions for relevance when a consent protective

order already is in place.” Id. at 6. Cape Fear also argues that the requested documents “are

relevant and proportional to the needs of the case” and that Magistrate Judge Numbers erred

because the order “allows [d]efendants to withhold documents for claims of privilege that

[defendants] ha[ve] never asserted with respect to the [r]edacted [d]ocuments.” Id. at 10.

Defendants respond that Magistrate Judge Numbers conducted an in-camera review of the

disputed documents, read the parties briefs, and held oral argument. Magistrate Judge Numbers

then concluded that, with few exceptions, “the redacted materials appear irrelevant to the claims

and defenses in this case and are not necessary to provide context to the issues in this litigation.”

[D.E. 289]. Moreover, Magistrate Judge Numbers provided specific portions of the redacted

materials that were responsive and ordered defendants to produce unredacted versions of those

portions. See id. at 2-3.

Cape Fear fails to establish that Magistrate Judge Numbers’s factual findings were clearly

erroneous or that Magistrate Judge Numbers misinterpreted or misapplied applicable law. Rather,

Magistrate Judge Numbers carefully considered Cape Fear’s motion to compel and granted the

motion in part. Moreover, the court rejects Cape Fear’s argument that “this [c]ourt does not allow

unilateral redactions for relevance when a consent protective order already is in place.” [D.E. 295]

6. It does. See, e.g., McDougal-Wilson v. Goodyear Tire & Rubber Co., 232 F.R.D. 246, 249-54

(E.D.N.C. 2005). Accordingly, the court affirms Magistrate Judge Numbers’s order.

B.

Cape Fear appeals Magistrate Judge Numbers’s order limiting discovery to the claims

alleged in Cape Fear’s amended complaint and restricting discovery concerning the Chemours

spinoff. See [D.E. 301]. In July 2015, DuPont spun off its chemical division into Chemours, a

newly-created and publicly-traded company. See, e.g., Am. Master Compl. [D.E. 75] ff] 4-5, 27—

28. As part of the transaction, Chemours took ownership of the Fayetteville Works facility and

_ leased manufacturing space in the facility to DuPont. See id. at [7 5, 30, 34. Here, Cape Fear

pursues claims for private nuisance, trespass to real property, and negligence against Chemours.

See id. at J] 158-66, 176-82. Cape Fear seeks both compensatory and punitive damages. See id.

at FJ 196-98. Cape Fear also has sued Chemours and others in the Delaware Court of Chancery

and is pursuing a fraudulent transfer claim concerning DuPont’s 2015 decision to spin off

Chemours. See Cape Fear Pub. Util. Auth. v. EIDP, Inc., et al., C.A. No. 2023-0363 (Del. Ch.

Mar. 24, 2023). The Delaware Court of Chancery stayed the Delaware action pending further

development of the case in this court.

In its sixth set of requests for production to DuPont and seventh set of requests for

production to Chemours, Cape Fear asked defendants “to designate individuals to testify on

[defendants’] behalf about the Chemours spinoff. [Cape Fear] also sent ‘subpoenas seeking

documents and deposition testimony from Deloitte LLP and Houlihan Lokey, Inc. Those

companies performed work for [DuPont] connected to the Chemours spinoff. And [Cape Fear]

designated an expert witness who intends to testify about the economic benefits [DuPont] gained

from the Chemours spinoff.” [D.E. 292] 2. Defendants opposed the requests. See id.

After briefing and oral argument, Magistrate Judge Numbers determined Cape Fear’s

requests for production exceeded the scope of discovery and (1) granted defendants’ motion for a

protective order on “fraudulent transfer issues”; (2) denied Cape Fear’s motion to compel; and (3)

prohibited Cape Fear from designating an expert as to “fraudulent transfer issues,” but permitted

Cape Fear to designate an expert to opine on the savings and economic benefit DuPont allegedly

enjoyed from Chemours’s decision to delay installation of emission-reducing technology at the

Fayetteville Works facility. See id. 6-11. Cape Fear appeals these rulings.

First, Cape Fear argues that its request for production falls within the scope of permissible

discovery because its amended master complaint “puts [dJefendants on notice” that the Chemours

spinoff “is relevant . . . to its trespass, nuisance, and negligence claims.” [D.E. 301] 8. Moreover,

Cape Fear argues it “cannot tell the full story of why both Chemours and DuPont are liable for

compensatory and punitive damages for trespass, negligence, and nuisance, without” the requested

discovery. Id. Furthermore, Cape Fear argues the Chemours spinoff “is willful and wanton”

conduct relevant to its requests for punitive damages. See id. at 9-10. Cape Fear also argues that

Magistrate Judge Numbers’s order “usurped the district court’s role as the gatekeeper of expert

testimony.” Id. at 10.

The court rejects Cape Fear’s arguments and affirms Magistrate Judge Numbers’s order.

Cape Fear pursues claims for trespass, nuisance, and negligence for alleged PFAS contamination

of the Cape Fear River from the defendants’ Fayetteville Works facility. Cape Fear’s asserted

claims and requests for compensatory damages do not turn on the propriety of the Chemours

spinoff. As Magistrate Judge Numbers noted, while Cape Fear’s request for production seeks

information to support a fraudulent transfer theory, Cape Fear does not pursue that theory in this

case. Thus, Magistrate Judge Numbers properly concluded that Cape Fear’s request for production

exceeded the scope of discovery and denied Cape Fear’s motion to compel. See, e.g., Lone Star

Steakhouse & Saloon, 43 F.3d at 929; Erdmann, 852 F.2d at 792; LaRouche, 780 F.2d at 1139.

As for Cape Fear’s argument that the Chemours spinoff is relevant to its request for

punitive damages, punitive damages are not a separate cause of action under North Carolina law.

See Sasso v. Tesla, Inc., 584 F. Supp. 3d 60, 81 (E.D.N.C. 2022); Sykes v. Health Network Sols.,

Inc., 372 N.C. 326, 329, 828 S.E.2d 467, 469 (2019); Watson v. Dixon, 352 N.C. 343, 348, 532

S.E.2d 175, 178 (2000); Newton v. Barth, 248 N.C. App. 331, 345, 788 S.E.2d 653, 664 (2016).

To recover punitive damages, a claimant must prove that an aggravating factor of fraud, malice,

or willful or wanton conduct is present and was related to the injury subject to the compensatory

damages. See N.C. Gen. Stat. § 1D—15(a); DeRose for Est, of DeRose v. DoorDash, Inc., 675 F.

Supp. 3d 591, 605 (E.D.N.C. 2023); OmniSource Corp. v. Heat Wave Metal Processing, Inc., No.

5:13-CV-772, 2015 WL 3452918, at *13 (E.D.N.C. May 29, 2015) (unpublished); Opsitnick v.

Crumpler, No. 5:13-CV-835, 2014 WL 1682013, at *4 (E.D.N.C. Apr. 28, 2014) (unpublished);

Catalano v. AARP Org., No. 5:09-CV-455, 2010 WL 3063263, at *2 (E.D.N.C. Aug. 4, 2010)

(unpublished); Monk v. Progressive Se. Ins. Co., No. 7:06-CV-15, 2006 WL 8439059, at *2-3

(E.D.N.C. May 23, 2006) (unpublished).

Cape Fear’s request for punitive damages must relate to its underlying claims for trespass,

nuisance, or negligence. Cape Fear seeks punitive damages for defendants’ alleged “conduct in

secretly releasing their persistent, bioaccumulative, and toxic perfluoroalkyl substances into the

Cape Fear River and contaminating the drinking water source for thousands of North Carolinians,

all the while misleading state and Federal regulators and the public, [which] was willful and

wanton, in that [djefendants’ acted with a conscious disregard for and indifference to the rights

and safety of others, which [d]Jefendants knew or should reasonably have known was reasonably

likely to result in injury, damage or harm.” Am. Master Compl. 197. Whether DuPont created

Chemours to limit its liability does not relate to Cape Fear’s request for punitive damages. Because

the request for production does not relate to the punitive damages sought in Cape Fear’s amended

master complaint, Magistrate Judge Numbers properly denied Cape Fear’s motion to compel.

The only allegation that the Chemours spinoff might support is that DuPont profited from

Chemours’s alleged decision to delay installing emission-reducing technology at the Fayetteville

Works facility. Magistrate Judge Numbers reached this same conclusion and noted that the

10

“Chemours Spinoff is relevant to [this issue], but only to the extent that the spinoff occurred and

that Chemours was responsible for installation costs.” [D.E. 292] 11. The parties do not dispute

that the Chemours spinoff occurred or that Chemours controlled installation of emission-reducing

technologies. Cape Fear requires no more discovery as to those issues. See id. at 11 n.1.

Moreover, insofar as Chemours’s decision to delay installing emission-reducing technologies

relates to Cape Fear’s request for punitive damages, Magistrate Judge Numbers did not block

expert discovery concerning that issue. See id. at 10-11.

Cape Fear fails to establish that Magistrate Judge Numbers’s factual findings were clearly

erroneous or that Magistrate Judge Numbers misinterpreted or misapplied applicable law.

Accordingly, the court affirms Magistrate Judge Numbers’s order finding Cape Fear’s requests

exceeded the scope of discovery and denying Cape Fear’s motion to compel.

Next, Cape Fear argues that Magistrate Judge Numbers usurped the district court’s role by

limiting the scope of Cape Fear’s expert discovery and granting defendants a protective order

concerning the fraudulent transfer issues. Magistrate Judge Numbers noted that protective orders

“do not focus on admissibility, but focus on discoverability.” Id. at 10. The court may issue a

protective order for good cause, such as “to protect a party or person from annoyance,

embarrassment, oppression, or undue burden or expense.” Fed. R. Civ. P. 26(c)(1). Likewise, a

court may restrict the scope of permissible expert discovery when that restriction is based on

relevance and proportionality. See, e.g., Hadaway v. City of Milwaukee, No. 19-CV-1106, 2024

WL 1435237, at *4 (E.D. Wis. Mar. 31, 2024) (explaining that Rule 26(b)(1) governs “discovery—

including expert discovery”); Shukh v. Seagate Tech., LLC, 295 F.R.D. 228, 238 (D. Minn. 2013)

(“Like all other discovery, information sought in connection with expert testimony must be

relevant to the claim or defense.”). Because Magistrate Judge Numbers properly concluded that

fraudulent transfer issues fell outside the scope of discovery, Magistrate Judge Numbers properly

restricted expert discovery as to this same issue.

Cape Fear fails to establish that Magistrate Judge Numbers’s factual findings were clearly

erroneous or that Magistrate Judge Numbers misinterpreted or misapplied applicable law.

Accordingly, the court affirms Magistrate Judge Numbers’s order.”

C.

Cape Fear appeals Magistrate Judge Numbers’s order denying Cape Fear’s motion to

compel the production of documents that defendants withheld as privileged. See [D.E. 303]. In

March 2023, defendants served Cape Fear with 15 privilege logs. See [D.E. 293] 3. Cape Fear

raised concerns over the contents of the privilege logs, and defendants produced some of the

previously withheld documents. See id. at 4. Cape Fear, however, remained dissatisfied with

defendants’ productions and remaining assertions of privilege. The privilege logs contained, inter

alia, communications between the defendants and (1) litigation consultants, (2) attorneys, and (3)

environmental consultants. See id. at 1. Defendants asserted attorney-client and work-product

privileges over these documents. See id. at 1-5. Eventually, Cape Fear filed a motion to compel

and argued that the defendants’ “privilege logs are so inadequate that the court should order the

production of all items listed on them.” Id. at 1.

Magistrate Judge Numbers denied Cape Fear’s motion to compel because: (1) Cape Fear

failed to comply with Local Civil Rule 7.1(c)(2); (2) defendants’ privilege logs were not so

deficient that the court should deem the attorney-client privilege or work-product doctrine waived;

and (3) defendants’ blanket invocation of work-product protection over communications with its

2 The court did not consider defendants’ constitutional due process argument; therefore,

the court denies as moot Cape Fear’s motion for leave to file a reply [D.E. 312].

12

consultants does not justify an order compelling defendants to produce all documents on their

privilege logs. See id. at 3-4.

The court has reviewed Magistrate Judge Numbers’s order, Cape Fear’s appeal, and the

governing law. See Fed. R. Civ. P. 72(a); TFWS, Inc., 572 F.3d at 196; Johnson, 2013 WL

4039418, at *3; Trudell, 2021 WL 684200, at *3; Qutsidewall Tire, 267 F.R.D. at 470. Magistrate

Judge Numbers thoroughly considered Cape Fear’s motion to compel and issued his order after

receiving briefing on the issue and holding a hearing. The court agrees with Magistrate Judge

Numbers’s findings and conclusions and concludes that (1) Cape Fear failed to comply with Local

Civil Rule 7.1(c)(2); (2) defendants properly asserted the attorney-client privilege and work-

product doctrine; and (3) defendants’ invocation of work-product protection over communications

with consultants does not justify an order compelling defendants to produce all documents on the

privilege logs.

On appeal, Cape Fear largely rehashes arguments from its original motion to compel.

Compare [D.E. 310] 7-10, with [D.E. 149] 1-5, and [D.E. 150] 8-11. To begin, the court

rejects Cape Fear’s understanding of Local Civil Rule 7.1. Local Civil Rule 7.1 states

No discovery motion will be considered by the court unless the motion sets forth

or has attached thereto, by item, the specific question, interrogatory, etc., with

respect to which the motion is filed and any objection made along with the grounds

supporting or in opposition to the objection. The movant must also certify that there

has been a good faith effort to resolve discovery disputes prior to the filing of any

discovery motions.

Loc. Civ. R. 7.1(c)(2). As Magistrate Judge Numbers noted, Cape Fear’s motion to compel

attacked the sufficiency of defendants’ privilege logs without identifying “a discovery request it

served that the withheld documents would address.” [D.E. 293] 5. On appeal, Cape Fear argues

that its motion to compel satisfies Local Civil Rule 7.1(c)(2) because the “specific question raised

13

by [Cape Fear’s] [m]otion is the adequacy of [defendants’] privilege logs.” [D.E. 303] 5 (quotation

omitted).

The court rejects Cape Fear’s argument. If Cape Fear were correct, plaintiffs could always

taise the “specific question” of the adequacy of a defendant’s privilege logs without regard to

whether the privilege logs contain information relevant and responsive to the plaintiff's discovery

requests. Cape Fear’s reading vitiates not only Local Civil Rule 7.1, but also Federal Rule of Civil

Procedure 26 which provides for broad discovery of any nonprivileged matter “relevant” and

“proportional” to a plaintiffs claims. Fed. R. Civ. P. 26(b)(1). Cape Fear failed to comply with

Local Civil Rule 7.1(c)(2), and the court rejects Cape Fear’s argument.

The court also rejects Cape Fear’s argument that Magistrate Judge Numbers failed to apply

“the established Fourth Circuit law concerning engagement of consultants when asserting a

privilege.” [D.E. 303] 7. As Cape Fear admits, Magistrate Judge Numbers cited the relevant

standard in his order. See id. at 9; [D.E. 293] 11 (citing Nat’] Union Fire Ins. of Pittsburgh, Pa. v.

Murray Sheet Metal Co., 967 F.2d 980, 984 (4th Cir. 1992)). As Magistrate Judge Numbers noted,

“the Fourth Circuit recognize[s] that sometimes a document may have both a litigation and non-

litigation purpose. In that circumstance, the attorney-work product doctrine will only apply if

litigation was the ‘driving-force’ behind the document’s creation.” [D.E. 293] 11 (internal citation

omitted); see Nat’l] Union, 967 F.2d at 984. Magistrate Judge Numbers then considered

defendants’ assertion of privilege and found that “the driving force behind the creation of the

documents [at issue] . . . [was] litigation, and . .. Chemours may claim work-product protection”

for its communications with third-party consultants. [D.E. 293] 12.

14

Cape Fear fails to establish that Magistrate Judge Numbers’s factual findings were clearly

erroneous or that Magistrate Judge Numbers misinterpreted or misapplied applicable law.

Accordingly, the court affirms Magistrate Judge Numbers’s order.

I.

In sum, the court AFFIRMS the magistrate judge’s orders [D.E. 289, 292, 293], DENIES

IN PART defendants’ motions to seal [D.E. 299, 307, 308], and DENIES AS MOOT plaintiffs’

motion for leave to file a reply [D.E. 312]. The court temporarily will maintain the documents in

the appeals under seal but DIRECTS defendants’ counsel to refile the documents properly redacted

not later than April 14, 2025.

SO ORDERED. This 24 day of March, 2025.

4. = Naver

J S C. DEVER II

United States District Judge

15