SHIRLEY SLOCUM, ET AL. v. INTERNATIONAL PAPER COMPANY, ET AL. DERRICK SANDERS, ET AL. v. INTERNATIONAL PAPER COMPANY, ET AL. JAMIA BOLTON, ET AL. v. INTERNATIONAL PAPER COMPANY, ET AL. BRENT JARRELL, ET AL. v. INTERNATIONAL PAPER COMPANY, ET AL CIVIL ACTION NO. 16-12563, NO. 16-12567, NO. 16-13346, NO. 16-13793 United States District Court, E.D. Louisiana Filed March 01, 2019 Counsel Shawn C. Reed, Kyle T. Del Hierro, Howard & Reed, Covington, LA, D. Douglas Howard, Jr., Jonathan C. Pedersen, Howard & Reed, New Orleans, LA, for Shirley Slocum, Patricia Welch, Cesar Welch, Sr., Billy Youngblood, Sam Abram, Zipporah Abram, Elizabeth Simmons. Tim D. Gray, Chelsea Elizabeth Gaudin, Erin Wedge Latuso, Thomas Peyton Smith, Forman, Watkins & Krutz LLP, New Orleans, LA, Daniel J. Mulholland, Pro Hac Vice, Forman, Watkins, & Krutz, LLP, Jackson, MS, for International Paper Company. Van Meerveld, Janis, United States Magistrate Judge ORDER AND REASONS *1 This case concerns the release of “black liquor” (a paper-making byproduct) into the atmosphere from the 3rd evaporator set at International Paper Company’s paper mill in Bogalusa, Louisiana. After nearly six weeks of status conferences and attempts to find a compromise solution to the issue of what data International Paper will be required to produce to the plaintiffs from the “Pi” electronic data collection system used at the mill, at the parties’ February 25, 2019, discovery status conference, the undersigned ordered International Paper to produce a complete backup of the entire Pi system. The court now issues the following written reasons. Background On January 15, 2019, the plaintiffs in these related actions filed a Motion to Compel on an emergency basis, seeking an order allowing them to inspect the defendants’ on-site weather station and to inspect and gather relevant Pi data pursuant to a proposed protocol. (Rec. Doc. 121). Plaintiffs asked that these inspections be performed the following week at the same time that the defendants’ facility was already being made available for other inspections. A telephone conference was set to discuss the issues. The court granted the motion to compel in part and denied in part, ordering that “[b]y January 22, 2019, defendant shall respond to plaintiffs’ proposed protocol by specifying which information is in Pi (including a listing of all tags from all sources for the evaporators and weather station), what will be produced and on what timeline, and which information is not in Pi.” The court further determined that a weekly status conference to discuss discovery issues would assist the parties as they prepared for their April 25, 2019, trial date. At the first in-person status conference on February 1, 2019, International Paper reported that it had provided plaintiffs with a list of approximately 675 Pi tags.[1] International Paper offered to produce the data associated with 30 of those tags within 10 days. Plaintiffs responded that many more than 30 would be relevant. The court asked the plaintiffs to have their experts review the list of tags to determine how many their experts believed to be relevant. At the next status conference, on February 8, 2019, plaintiffs brought a copy of the spreadsheet of 675 Pi tags and had highlighted approximately 400 tags as identified by their experts. International Paper expressed concern that producing data for so many tags would take a very long time to put together. The parties agreed to explore how long it would take with International Paper’s in-house Pi expert at his deposition the following Thursday, February 14, 2019. At the February 15, 2019, status conference, plaintiffs reported that they had learned that the list of 675 tags[2] was incomplete. It appears the list was generated by searching the term “evaporator” or “evap*” in the full list of tags, search terms unilaterally elected by International Paper. No other potentially relevant terms were searched, such as density, pressure, flow, or liquor. Plaintiffs further reported that through the deposition of International Paper’s in-house Pi expert the day before, they determined that there are other less time-consuming methods of obtaining Pi data than the 30-tags-per-10-days proposal offered by International Paper. One alternative is a complete download of all data from the Pi system, which would take less than three days. Another alternative is to run an OLEDB script, which would take about 45 minutes to write and a short time for the data to be pulled. Plaintiffs added that an inspection of the Pi system and downloading of relevant data by their expert, as originally requested, would take only 2-3 days. The court ordered International Paper to determine and report to plaintiffs and the court “the feasibility of each of plaintiffs’ proposals for obtaining Pi data, including using an oledb script, providing a wholesale backup of all Pi data, and providing onsite access to plaintiffs’ Pi expert.” (Rec. Doc. 130). *2 By email, International Paper reported that it was technically feasible to create backup copy of the data in Pi in less than a week (possibly 2-3 days). But, International Paper objected to this approach because Pi is the data historian for all mill operations and the backup would include vast amounts of unrelated operational data. Without elaborating, International Paper says that this would include production information from the mill’s paper machines that is confidential and proprietary. International Paper later reported by email that after further consultation, it could run an OLEDB script on the approximately 400 tags identified and produce the data within a week. It also advised that it objects to plaintiffs’ proposal to provide onsite access to the Pi system to plaintiffs expert for inspection because it would tie up an International Paper employee; because the scope of the inspection is undefined with no guarantee that plaintiffs would not request additional Pi data following the inspection; and because International Paper was simultaneously attempting to respond to plaintiffs’ other discovery requests, including the production of two corporate representatives for deposition. At the February 25, 2019, status conference, International Paper reported that using an OLEDB script, it had been able to produce the data associated with the approximately 400 tags that had been identified by the plaintiffs. Plaintiffs complained that the format in which the data was produced was time consuming, inefficient, and cumbersome to work with. Their expert described the data returned as “a mess.” Further, they argued that even if the OLEDB script was rewritten so that the data was provided in a more usable format, this would still not be sufficient because the 400 tags do not cover all the data they need. Nor do plaintiffs feel able to identify all the tags they need to incorporate in the OLEDB script because they are not aware of the universe of tags available. International Paper reported that it had a new list of potentially relevant tags that reflect every sensor in the evaporator. This list includes about 1000 tags and would likely include the approximately 675 originally provided. Plaintiffs argued that the new list would be insufficient unless it included LOOP tags, source equations, calculations, and asset framework analytics (“AF”). International Paper was unable to represent that such information was included. Analysis 1. Scope of Discovery The Federal Rules of Civil Procedure provide that “parties may obtain discovery regarding any nonprivileged matter that is relevant to any party’s claim or defense and proportional to the needs of the case.” Fed. R. Civ. Proc. 26(b)(1). Of note, with the 2015 amendment to Rule 26, it is now clear that “[i]nformation within this scope of discovery need not be admissible in evidence to be discoverable.” Id. In assessing proportionality of discovery, the following should be considered: “the importance of the issues at stake in the action, the amount in controversy, the parties’ relative access to relevant information, the parties’ resources, the importance of the discovery in resolving the issues, and whether the burden or expense of the proposed discovery outweighs its likely benefit.” Id. The advisory committee comments to the 2015 amendment to Rule 26 make clear that the parties and the court have a collective responsibility to ensure that discovery is proportional. The party claiming it would suffer an undue burden or expense is typically in the best position to explain why, while the party claiming the information sought is important to resolve the issues in the case should be able “to explain the ways in which the underlying information bears on the issues as that party understands them.” Id. advisory committee’s note to 2015 amendment. “The court’s responsibility, using all the information provided by the parties, is to consider these and all the other factors in reaching a case-specific determination of the appropriate scope of discovery.” Id. 2. Plaintiffs’ Request for Pi Data *3 It is clear that some of the data maintained by the Pi system is relevant, and even critical, to plaintiffs’ claims. The issue is how to get plaintiffs what they need in the most efficient and cost-effective way. And the problem is that after six weeks of trying to do so, the custodian of the data, International Paper, has been unable to present a solution that provides all of the relevant data, without too much superfluous data, in a short period of time for a reasonable cost. Since that ideal scenario will not be possible, the court finds that International Paper must produce a backup copy of all Pi data, subject to a protective order limiting disclosure. When this court’s ruling was articulated at the February 25, 2019, status conference, counsel for International Paper again requested an opportunity to go back to the client to find out whether they could resolve Plaintiffs’ concerns. The time for finding a solution has come to an end. The dispute concerning production of Pi data was first brought to this court’s attention more than six weeks ago on January 15, 2019. Two days later, the court ordered International Paper to produce by January 22, 2019, “a listing of all tags from all sources for the evaporators and weather station.” It was not until the February 25, 2019, status conference that International Paper was finally prepared to produce a list of tags for all sensors for the evaporator. Moreover, it remains unclear whether this list even identifies all the tags that plaintiffs may need. With trial set to begin on April 25, 2019, and a host of other discovery issues to work through, International Paper’s list is too little too late. Similarly, International Paper began by offering to produce data for 30 tags in ten days. But it was not until prompting by the plaintiffs and this court that on February 21, 2019, that International Paper determined that an OLEDB script could be run to provide far more data at a much faster pace. Again, this is too little too late. There is no dispute that plaintiffs need sufficient data about the leak of black liquor to be able to construct their models. International Paper continues to fall back on its suggestion that if the plaintiffs would merely tell International Paper what they want, International Paper could determine whether it would be feasible. This approach fails to address the reality that plaintiffs do not know the universe of available tags. Only International Paper knows this, and they have been unwilling to make this information available to plaintiffs. The negotiation cannot continue in this fashion, with another few weeks going by as International Paper slowly reveals additional tags that might be relevant to the plaintiffs’ experts. Once the Pi data is produced, plaintiffs’ experts will still need time to analyze so they can prepare their reports. Defendant’s experts will need time to rebut the reports. Trial is less than two months away. With trial around the corner, production of the complete backup of the Pi system’s data is the only feasible solution. This method is thorough and, compared to the other options that have been brainstormed, discussed, vetted, and attempted ad nauseum, it is quick[3] and inexpensive.[4] The court is sympathetic to International Paper’s concern that production of a complete backup of the Pi system would include much irrelevant data, some of which could be proprietary. But International Paper has articulated no reason why a protective order limiting disclosure could not guard against the possibility that International Paper’s competitors might discover any of its secrets. Production of a complete backup of the Pi system is the most cost effective and efficient approach. With the entire backup at their disposal, plaintiffs’ experts will be able to perform whatever calculations are necessary for their models without having to come back to make additional requests. *4 Plaintiffs proposed as an alternative that they be allowed to conduct an inspection of the Pi system with their expert. If allowed on site, plaintiffs say, their expert could identify the tags their experts need, write the OLEDB script to pull the data, and have the data downloaded within three days. This approach has the benefit of pulling only the relevant Pi data from the system. But International Paper rejected this approach because of the cost of losing an employee to monitoring and the latent possibility that plaintiffs might still not be able to get everything they need through that process. Furthermore, this multistep process is likely to take a lot more time—time not available under the court’s trial schedule—than a complete backup. The only remaining solution, then, is the full backup. Interestingly, this is not the first time the Eastern District of Louisiana has encountered this issue. According to the parties and the docket, a prior leak at this paper mill also resulted in litigation requiring the production of Pi data. See Evans v. TIN, Inc., Civ. A. No. 11-2067 and consolidated cases (E.D. La.). Under the guidance of Magistrate Judge Chasez, the parties labored over how the Pi data would be produced. In an August 24, 2012, minute entry, Magistrate Judge Chasez reported that the mill’s[5] “refusal to participate in the discovery process regarding that information is becoming increasingly palpable.” Id. ECF No. 557, at 2. The court ordered the parties’ experts to meet and confer on site at the paper mill with the Pi system to be accessed by the mill’s expert while allowing the plaintiffs’ expert to observe. Id. Although it does not appear to be reflected in the docket, attorneys Shawn Reed and Jonathan Pederson for the plaintiffs and attorney Tim Gray for International Paper (all involved in both this and the Evans litigation) reported that ultimately the on-site search was unsuccessful, and production of a full backup was required. Just as that solved the problem in Evans, it should do so here. It is further telling that International Paper’s counsel are unable to point to any abuses or difficulties that arose following that production, such as the fishing expeditions it professes to be concerned about here. Given that the same defense counsel and plaintiffs’ counsel were involved in both lawsuits, there is no reason to believe that full Pi production here will have any adverse consequences that never materialized in Evans. The Court is perplexed as to why International Paper initially refused to allow an on-site inspection of the Pi system as proposed by plaintiffs in January 2019 when this same procedure had been ordered in Evans. International Paper argued that there were better alternatives, but it has failed to deliver. Had the parties started with the onsite inspection in late-January 2019, production of the Pi backup might not be necessary now. Conclusion For the foregoing reasons, and as ordered on February 26, 2019, International Paper shall produce a complete backup of the Pi system for the Bogalusa paper mill by March 11, 2019. This production shall be made subject to a protective order limiting disclosure of confidential data.[6] Any appeal of this order to the district judge shall be filed by March 8, 2019. The filing of such an appeal will automatically stay the effect of this order until the matter is resolved by the district judge. *5 New Orleans, Louisiana, this 28th day of February, 2019. Footnotes [1] A “tag” is a data collection point. [2] Apparently, the Pi system for the mill contains upwards of 50,000 tags. [3] Plaintiffs say it can be prepared in 2-3 days, International Paper admits it can be prepared in less than a week. [4] International Paper has not raised any objections on the basis of cost. [5] The 2011 case involved International Paper’s predecessor in interest, TIN, Inc. [6] At the February 25, 2019, status conference, the parties reported that they had finished negotiating a proposed protective order to govern disclosure of confidential information. International Paper may refer to this protective order when producing the Pi data, or it may present to the court for consideration an alternative protective order specifically tailored to protect the Pi data from disclosure outside of this litigation.