Kevin Brown et al., v. Saint-Gobain Performance Plastics Corporation, et al Civil No. 16-cv-242-JL United States District Court, D. New Hampshire Filed December 07, 2021 Counsel John A. Yanchunis, Morgan and Moran Complex Litigation Group, Tampa, FL, Kevin Scott Hannon, Hannon Law Firm LLC, Kenneth Rumelt, Morgan and Morgan Complex Litigation Group, Denver, CO, Paul M. DeCarolis, Gottesman & Hollis PA, Nashua, NH, for Kevin Brown. Kevin Scott Hannon, Hannon Law Firm LLC, Kenneth Rumelt, Morgan and Morgan Complex Litigation Group, Denver, CO, Paul M. DeCarolis, Gottesman & Hollis PA, Nashua, NH, for Christopher Blundon, Theresa Brown, Kimberly Peicker, Mark Peicker. Finis E. Williams, III, Williams Law Office, Concord, NH, Kevin Scott Hannon, Hannon Law Firm LLC, Denver, CO, for Darlene DeBlois, Darlene E. DeBlois Living Trust, David True. Kevin Scott Hannon, Hannon Law Firm LLC, Denver, CO, Paul M. DeCarolis, Gottesman & Hollis PA, Nashua, NH, for Bridget Heard. Russell F. Hilliard, Upton & Hatfield LLP, Portsmouth, NH, for Gottesman and Hollis, P.A., The Hannon Law Firm. Russell F. Hilliard, Upton & Hatfield LLP, Portsmouth, NH, Kenneth Rumelt, Morgan and Morgan Complex Litigation Group, Denver, CO, for Morgan & Morgan Complex Litigation Group. Benjamin Sadun, Dechert LLP, Los Angeles, CA, Bruce W. Felmly, Jeremy T. Walker, McLane Middleton, Manchester, NH, Douglas E. Fleming, III, Pro Hac Vice, Lincoln D. Wilson, Pro Hac Vice, Mark Cheffo, Pro Hac Vice, Nathan Williams, Paul A. LaFata, Pro Hac Vice, Rachel B. Passaretti Wu, Pro Hac Vice, Sheila L. Birnbaum, Pro Hac Vice, Bert L. Wolff, Pro Hac Vice, Emily L. Van Tuyl, Pro Hac Vice, Close Marina Schwarz Dockets:10 Cases:20 Trial Court Documents:4 See Full Profile Marina Schwarz, Pro Hac Vice, Dechert LLP, New York, NY, Stefanie A. Tubbs, Pro Hac Vice, Dechert LLP, Philadelphia, PA, for Saint-Gobain Performance Plastics Corporation. Benjamin Sadun, Dechert LLP, Los Angeles, CA, Bert L. Wolff, Pro Hac Vice, Douglas E. Fleming, III, Pro Hac Vice, Mark Cheffo, Pro Hac Vice, Nathan Williams, Rachel B. Passaretti Wu, Pro Hac Vice, Sheila L. Birnbaum, Pro Hac Vice, Emily L. Van Tuyl, Pro Hac Vice, Marina Schwarz, Pro Hac Vice, Dechert LLP, New York, NY, Bruce W. Felmly, Jeremy T. Walker, McLane Middleton, Manchester, NH, Stefanie A. Tubbs, Pro Hac Vice, Dechert LLP, Philadelphia, PA, for Gwenael Busnel. Douglas E. Fleming, III, Pro Hac Vice, Mark Cheffo, Pro Hac Vice, Sheila L. Birnbaum, Pro Hac Vice, Dechert LLP, New York, NY, for John Does 1-5. Laplante, Joseph N., United States District Judge DISCOVERY ORDER *1 The plaintiffs in this action, which centers on the release of toxic chemicals from defendant Saint-Gobain Performance Plastics Corporation's facility in Merrimack, New Hampshire, seek to depose Amiel Gross, former in-house counsel for Saint-Gobain, regarding allegations Gross raised in a complaint he filed with the Occupational Safety and Health Administration in April 2021.[1] The defendants move for a protective order precluding the deposition, arguing in large part that “there is scarcely any relevant testimony [Gross] could provide that would not be privileged or protected.”[2] After considering the parties’ positions and holding oral argument, the court grants the defendants’ motion. In his OSHA complaint, Gross alleged that, from 2016 to 2020, he helped manage Saint-Gobain's defense against this suit and related suits in Vermont and New York. He also alleged that he conducted an investigation for Saint-Gobain in 2020, from which he found that Saint-Gobain historically purchased and used a 3M product containing 100% perfluorooctanoic acid (“PFOA”), a toxic chemical, “in quantities substantially greater than previously known.”[3] Gross claimed that he reported these findings to certain member(s) of Saint-Gobain's leadership, and that he suggested that Saint-Gobain apprise environmental regulators of the findings, as “unreported use of hundreds upon hundreds of pounds of material containing 100% PFOA could substantially enlarge the size, characterization, intensity and scope of the known groundwater contamination plumes ....”[4] According to Gross, leadership within Saint-Gobain rejected his suggestion and retaliated against him. The plaintiffs state that they seek to depose Gross regarding “the facts that his [2020] investigation produced, the identification of documents created that reflect these facts, and to whom within St. Gobain he reported these facts.”[5] “In deciding whether a deposition of opposing counsel, including in-house counsel, is appropriate, courts often use the test adopted by the Eighth Circuit in Shelton v. American Motors Corp[oration,] 805 F.2d 1323 (8th Cir. 1986).” Abiomed Inc. v. Maquet Cardiovascular LLC, 2017 WL 11625640, at *2 (D. Mass. Oct. 6, 2017). “Under that test, depositions of opposing counsel should be limited to where the party seeking to take the deposition has shown that (1) no other means exist to obtain the information other than to depose opposing counsel; (2) the information sought is relevant and nonprivileged; and (3) the information is crucial to the preparation of the case.” Id. (citing Shelton, 805 F.2d at 1327). The plaintiffs have not made the requisite showing to justify Gross's deposition. Among other things, the plaintiffs have failed to demonstrate that they have pursued or legitimately ruled out alternate means for obtaining the information they seek from the deposition. The court thereby grants the defendants’ motion for a protective order,[6] without prejudice to the plaintiffs’ ability to request the deposition again after completing more discovery. *2 The court makes four additional rulings with respect to issues raised in the parties’ briefs and/or at oral argument. 1. The plaintiffs assert that, as part of his 2020 investigation, Gross reviewed a “trove” of documents that Saint-Gobain “received from 3M in a sister case involving Saint-Gobain's New York facility,” and the defendants have not produced these documents to the plaintiffs.[7] According to the defendants, the 3M documents are subject to a protective order that limits their use to the New York litigation.[8] As agreed upon during oral argument, counsel shall obtain the documents by seeking relief from the protective order in place in the New York litigation and/or requesting the documents via a subpoena to 3M. 2. The plaintiffs contend that the defendants have not provided them with all of the documents that Saint-Gobain produced to the State. During oral argument, the defendants agreed to produce Saint-Gobain's complete production(s) to the State, marked with the associated Bates numbering scheme. The defendants shall produce these documents no later than December 13, 2021. 3. The plaintiffs state that they do not know the identity of the “Saint-Gobain fact witnesses with first-hand knowledge of 3M product usage” whom Gross interviewed as part of his 2020 investigation.[9] The court finds that the identity of the witnesses is not protected by the work product doctrine, which prevents the disclosure of an attorney's “mental impressions, conclusions, opinions, or legal theories ....” State v. Zwicker, 151 N.H. 179, 191 (2004). Moreover, even if this information could be considered work product, its disclosure can be compelled in this instance. See Riddle Spring Realty Co. v. State, 107 N.H. 271, 275 (1966) (“[W]ork product ... is not beyond the pale of pretrial discovery.... If [ ] relevant facts are unobtainable by other means, or are obtainable only under such conditions of hardship as would tend unfairly to prejudice the party seeking discovery, disclosure of work product may be compelled.”). As suggested by defense counsel during oral argument, the defendants shall complete a written, sworn disclosure identifying the witnesses. The defendants shall complete this disclosure no later than December 13, 2021. 4. The plaintiffs seek to depose Gross, in part, on matters related to his reporting of the findings from his 2020 investigation, including to whom he reported the findings. On this record, the court is not prepared to make the assumptions and draw the inferences necessary to conclude that this information is not privileged and/or Gross's deposition on this information is appropriate. This ruling is made without prejudice to the plaintiffs’ ability to request the deposition again at a later time. SO ORDERED. Footnotes [1] OSHA dismissed Gross's complaint “as untimely” in April 2021, and Gross's subsequent appeal was denied on October 15, 2021. Doc. no. 321-1 at 2, 15. [2] Doc. no. 280-1 at 8. [3] Gross Compl. (doc. no. 287-1) at ¶ 100. [4] Id. at ¶ 102. [5] Doc. no. 287 at 6. [6] Doc. no. 280. [7] Doc. no. 287 at 9. [8] Doc. no. 289 at 14. [9] Gross Compl. (doc. no. 287-1) at ¶ 99.