The opinion of the court was delivered by: H. Kenneth Schroeder, Jr. United States Magistrate Judge
This case was referred to the undersigned by the Hon. Richard J. Arcara, in accordance with 28 U.S.C. § 636(b), for all pretrial matters and to hear and report upon dispositive motions. Dkt. #4. Following Chief Judge Arcara's recusal, the matter was transferred to the Hon. William M. Skretny. Dkt. #64.
Currently before the Court is plaintiffs' motion to compel disclosure of documents withheld from discovery as protected by the attorney-client and attorney work product privileges in response to plaintiff's demand for documents concerning defendant E.I. DuPont De Nemours and Company's ("DuPont's"), investigation, evaluation and/or knowledge of Goodyear Tire and Rubber Company's ("Goodyear's"), handling practices and safety protocols with respect to ortho-toluidine prior to 1991. Dkt. #108. For the following reasons, plaintiffs' motion is granted in part and denied in part.
Plaintiff Harry D. Weist has been employed at Goodyear Tire and Rubber Company ("Goodyear"), since December 21, 1977. Dkt. #1, ¶ 7. During the period of 1981 through 1990, he alleges workplace exposure to ortho-toluidine, a chemical which was manufactured and distributed to Goodyear by the defendants. Dkt. #1, ¶ ¶ 7-8; Dkt. #22-2, ¶ 1. Plaintiffs allege that this exposure caused Harry D. Weist to suffer personal injuries, including bladder cancer, and that his wife, Diane M. Weist, suffers loss of consortium. Dkt. #1, ¶¶ 9 & 24. Plaintiffs seek to hold defendants responsible on theories of strict liability and negligence, including a claim of negligent entrustment. Dkt. #1. Specifically, defendants allege that defendants failed in their duty to evaluate Goodyear's handling of [orthotoluidine], counsel Goodyear on the safe use of this product, and discontinue sale of the product to Goodyear in order to prevent further unsafe exposure to the product and force the implementation of corrective action.
Defendants moved to dismiss the negligent entrustment claim, arguing there was no legal basis to impose a duty upon a chemical manufacturer to evaluate their customers' handling of that chemical, to counsel their customers on the safe use of the chemical or to discontinue sales of a chemical to prevent unsafe exposure or to force corrective action. Dkt. ##18 & 19. By Decision and Order entered March 31, 2008, Judge Skretny denied defendants' motion without prejudice to renewal following completion of sufficient discovery as to whether defendants' had any reason to question Goodyear's competence to handle ortho-toluidine. Dkt. #91.
As set forth in this Court's Report, Recommendation and Order, "the tort of negligent entrustment is based on the degree of knowledge the supplier of a chattel has or should have concerning the entrustee's propensity to use the chattel in an improper or dangerous fashion." Dkt. #82, p.10, quoting Hamilton v. Beretta U.S.A. Corp., 96 N.Y.2d 222, 237 (2001). As a result, the Court ordered defendants to disclose any investigation or evaluation they conducted regarding Goodyear's use of ortho-toluidine and to produce representatives for deposition regarding defendants' product stewardship program. Dkt. #95.
Plaintiffs' counsel certifies that he is aware that DuPont had "an established business practice by the mid-1980's of evaluating whether its customers were competent to handle DuPont's products safely," and notes the deposition testimony of DuPont's technical manager for ortho-toluidine, Paul Beach, that by the early 1980's DuPont had made "on-site evaluation of a customer's use of orthotoluidine a condition of the customer's continued purchase of DuPont's ortho-toluidine," and had conducted an on-site evaluation of the Goodyear plant in Niagara Falls, New York, but has obtained no documentation or deposition testimony regarding the substance of that visit. Dkt. #112, ¶¶ 16-20 & 25. Plaintiffs' counsel further certifies that DuPont has produced nothing to demonstrate that Goodyear was following DuPont's recommendations for the safe handling of ortho-toluidine. Dkt. #112, ¶ 24. Plaintiffs' counsel posits that
If the business side of DuPont had sent a technical team to the Goodyear plant and investigated how Goodyear was actually using its product, such information should have ended up in a non-privileged file. From the discovery provided by DuPont to date, it can only be concluded that either such a business side evaluation never occurred, or if it did happen, the memoranda are no longer available.
Dkt. #112, ¶ 30. Plaintiffs' counsel then surmises that "the only remaining evidence resides within the documents covered by the Privilege Log" and argues that, to the extent these documents contain information concerning DuPont's knowledge of Goodyear's handling practices for ortho-toluidine, they should be disclosed. Dkt. #112, ¶ ¶ 31 & 34.
DuPont's counsel agrees that its "business unit undertook certain measures, including a meeting among the medical and industrial hygiene personnel of the two companies and meetings at the Goodyear plant" and states that documents regarding such measures have been produced. Dkt. #109-2, pp.14 & 16. DuPont has certified that it has disclosed non-privileged documents relating to its investigation, evaluation and/or knowledge of Goodyear's handling practices and safety protocols regarding ortho-toluidine, including documents relating to business meetings and communications with Goodyear and internal business communications concerning Goodyear. Dkt. #109-2, p. 16. DuPont has provided the Court with 288 pages of documents it withheld as privileged, as well as 3 pages of documents previously reviewed by the Court, for in camera inspection. Dkt. #102.
Plaintiffs seek the deposition summaries of DuPont employee Don Martone and Goodyear employees Gino Fontanarosa and Loren Hilts because the deposition transcripts are no longer available and the individuals are all deceased, leaving the deposition summaries as the only record of their testimony. Dkt. #108-3, pp.3-4. Although L. Christine Oliver, M.D. is alive, plaintiffs argue that absent discovery of the deposition transcript itself, the summary of her deposition on October 2, 1986 is the most reliable evidence of Dr. Oliver's investigation of the handling of ortho-toluidine at the Goodyear plant on behalf of the international union. Dkt. #108-3, p.4.
DuPont argues that the deposition summaries are protected by the attorney work product privilege and challenges plaintiffs' assertion of substantial need and undue hardship, stating that any information contained in the deposition summaries plaintiffs seek are "cumulative and duplicative of the vast amount of information already available to plaintiffs from other depositions taken before 1991 and from the thousands of documents produced before 1991." Dkt. #109-2, pp.12-13. DuPont states that plaintiffs "need only look at the transcripts and discovery responses to determine the extent of ...