The opinion of the court was delivered by: John F. Keenan, United States District Judge
Before the Court is Plaintiffs' Objections to Magistrate Judge Pitman's July 23, 2010 Order denying their motion to compel. For the reasons that follow, Plaintiffs' objections are overruled, and the Court affirms Magistrate Judge Pitman's ruling in its entirety.
Familiarity with the facts and extensive procedural history of this case is presumed. See Sahu v. Union Carbide Corp., 418 F. Supp. 2d 407 (S.D.N.Y. 2005); Sahu v. Union Carbide Corp., No. 04 Civ. 8825, 2006 WL 3377577 (S.D.N.Y. Nov. 20, 2006), rev'd, 548 F.3d 59 (2d Cir. 2008); Sahu v. Union Carbide Corp., 262 F.R.D. 308 (S.D.N.Y. 2009) (granting limited Rule 56(f) discovery); Sahu v. Union Carbide Corp., No. 04 Civ. 8825, 2010 WL 909074 (S.D.N.Y. Mar. 15, 2010) (denying cross motions for reconsideration of September 22, 2009 Order granting limited Rule 56(f) discovery). Briefly, Plaintiffs seek recovery for injuries allegedly caused by exposure to soil and water polluted with hazardous wastes produced by the Union Carbide India Limited ("UCIL") plant in Bhopal, India. Plaintiffs seek to hold Union Carbide Corporation ("UCC," together with its former CEO Warren Anderson, "Defendants"), which was UCIL's parent company until 1994, liable for their injuries because: (1) Defendants were direct participants and joint tortfeasors in the activities that resulted in the pollution; (2) Defendants worked in concert with UCIL to cause, exacerbate, or conceal the pollution; and (3) UCIL acted as UCC's alter ego.
To oppose summary judgment on those theories of liability, Plaintiffs served a number of Rule 56(f) discovery requests on Defendants, including two which are the subject of the instant dispute. Request Number 33 seeks "Documents referring or relating to the Foreign Collaboration Agreement regarding the Bhopal plant," and Request Number 34 seeks "All documents concerning the technology transfer agreement, if any, between UCC and UCIL." In its September 22, 2009 Order, the Court held that Requests 33 and 34 were germane to the issue of whether UCC transferred inadequate technology to UCIL. Sahu, 262 F.R.D. at 313-14. The Court subsequently denied Defendants' motion to reconsider its finding with respect to these two requests.
Sahu, 2010 WL 909074, at *5 ("Plaintiffs supported Document Request Nos. 33 and 34 with evidence which indicates that UCC transferred technology, know-how, and technical support to UCIL. The nature of the alleged technology transfer and the extent to which process designs were used at Bhopal are exactly the factual disputes for which additional discovery is required.").
In response to Requests 33 and 34, Defendants assert that they produced over 9,000 pages of documents. (Pl. Ex. 2, April 28, 2010 Letter from William C. Heck). Defendants clarified that there is no single "Foreign Collaboration Agreement" between UCC and UCIL; instead, Defendants produced a Design Transfer Agreement and a Technical Service Agreement UCC and UCIL executed in 1973. Defendants also produced documents related to the Design Transfer Agreement. However, Defendants did not produce four categories of documents: (1) drafts and preliminary documents which were superseded by the final agreements that were produced; (2) documents not provided to UCIL; (3) documents related to the Technical Service Agreement to the extent they do not concern design-related services UCC provided to UCIL; and (4) documents about UCIL's Batch Sevin Carbamoylation Unit. (Id.). In a hearing on July 22, 2010, Magistrate Judge Pitman denied Plaintiffs' letter motion to compel production of the remaining four categories of documents, primarily relying on defense counsel's representation that any documents in those categories that related to environmental pollution had already been produced. Magistrate Judge Pitman held that "with respect to documents in those categories that don't relate to pollution issues I think they're either entirely irrelevant or their relevance is so attenuated that their production is not warranted." (Pl. Ex. 6, July 22, 2010 Tr. at 52:22-25). To substantiate this finding, defense counsel submitted an affidavit confirming that
Defendants made diligent and extensive searches in [predecessor case Bano v. Union Carbide Corp.] for documents related to environmental or pollution issues in connection with the former plant of Union Carbide Indian Limited ("UCIL") located in Bhopal, India. When defendants searched for documents to produce in this action, they also looked for any additional documents related to environmental or pollution issues in connection with the UCIL Bhopal plant. The documents searched included, but were not limited to, documents in the following four categories...: (1) draft and preliminary documents; (2) documents not provided to UCIL; (3) non-design-related services; and (4) documents related to UCIL's Batch Sevin Carbamoylation Unit. The documents that related to such environmental or pollution issues that were located were produced. (William C. Heck Aff. at ¶ 4). On July 23, 2010, Magistrate Judge Pitman entered an order formalizing his oral ruling.
A District Court reviewing a Magistrate Judge's nondispositive discovery order must modify or set aside any part of the order only if it is "clearly erroneous or is contrary to law." Fed. R. Civ. P. 72(a); see Catskill Dev., L.L.C. v. Park Place Entm't Corp., 206 F.R.D. 78, 86 (S.D.N.Y. 2002). "An order is clearly erroneous if the reviewing court is left with the definite and firm conviction that a mistake has been committed. An order is contrary to law when it fails to apply or misapplies relevant statutes, case law or rules of procedure." MacNamara v. City of New York, 249 F.R.D. 70, 77 (S.D.N.Y. 2008) (internal citations and quotations omitted). This is a highly deferential standard, and "[t]he party seeking to overturn a magistrate judge's decision thus carries a heavy burden." U2 Home Entm't, Inc. v. Hong Wei Int'l Trading Inc., No. 04 Civ. 6189, 2007 WL 2327068, at *1 (S.D.N.Y. Aug. 13, 2007); see Nikkal Indus., Ltd. v. Salton, Inc., 689 F. Supp. 187, 189 (S.D.N.Y. 1988) ("Consistently, it has been held that a magistrate's report resolving a discovery discourse between litigants should be afforded substantial deference and be overturned only if found to be an abuse of discretion.").
Plaintiffs' primary objection is that the July 23, 2010 Order is contrary to law because Magistrate Judge Pitman failed to consider the relevance of the challenged documents to agency and concerted action theories of liability. Plaintiffs additionally argue that Magistrate Judge Pitman erred by: (1) contradicting this Court's September 22, 2009 Order; (2) authorizing an attorney without scientific expertise to certify the completeness of document production; and (3) contradicting his own findings.
Plaintiffs claim that Magistrate Judge Pitman's July 23, 2010 Order is contrary to law because unproduced documents may not implicate pollution or environmental concerns, but they may show the extent to which UCC controlled, reviewed, and approved the technology design used by UCIL; those documents could support Plaintiffs' opposition to summary judgment on agency and concerted action theories of liability.
The issue of UCC's control over UCIL is primarily relevant to Plaintiffs' veil piercing claim, but the September 22, 2009 Order specifically denied requests for veil piercing documents as "either duplicative of past discovery or unnecessary to withstand Defendants' narrow summary judgment argument." Sahu, 262 F.R.D. at 314. The Court will not condone an attempt to obtain excluded documents under the guise of an alternate theory of liability. Control is an expansive concept; a document concerning UCC's involvement in any aspect of UCIL's business could theoretically demonstrate control, but the Court has already indicated its unwillingness to allow such broad discovery into UCC and UCIL's business relationship. Plaintiffs are correct, however, that the Court did not intend to foreclose all discovery on agency and concerted action theories of liability simply because documents may also be relevant to the veil piercing claim.*fn1 ...