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In re Methyl Tertiary Butyl Ether (" MTBE") Products Liability Litigation

United States District Court, Second Circuit

June 27, 2013


Michael Axline, Esq., Tracey O'Reilly, Esq., Miller, Axline & Sawyer, Sacramento, CA Victor Sher, Esq. Todd Robins, Esq., Sher Leff LLP, San Francisco, CA, Counsel for Plaintiff Orange County Water District.

Jon D. Anderson, Esq., Latham & Watkins LLP, Costa Mesa, CA, Counsel for Defendants.

Robin Greenwald, Esq., Robert Gordon, Esq., Weitz & Luxenberg, P.C., New York, NY, Liaison Counsel for Plaintiffs.

Peter John Sacripanti, Esq., James A. Pardo, Esq. McDermott Will & Emery LLP, New York, NY, Liaison Counsel for Defendants.


SHIRA A. SCHEINDLIN, District Judge.


This is a consolidated multi-district litigation ("MDL") relating to contamination -actual or threatened -of groundwater from various defendants' use of the gasoline additive methyl tertiary butyl ether ("MTBE") and/or tertiary butyl alcohol, a product formed by the breakdown of MTBE in water. In this case, plaintiff Orange County Water District (the "District"), which is charged with maintaining groundwater quality, alleges that defendants' use and handling of MTBE has contaminated, or threatens to contaminate, groundwater within its jurisdiction. Familiarity with the background of the case is presumed for the purposes of this Order.

Currently before the Court on letter briefs is the District's objection to Special Master Kenneth J. Warner's Pre-Trial Order No. 76 ("PTO 76").[1] For the following reasons, I affirm PTO 76.


A. Facts

This dispute relates to a document that one the District's experts, Stephen W. Wheatcraft, Ph.D., referred to in order to refresh his recollection during his deposition. Wheatcraft is engaged by the District as both a consulting expert and a testifying expert. In his capacity as a testifying expert, he intends to offer affirmative opinions on the alleged future impacts of MTBE to drinking wells in the Orange County Water district, and to offer rebuttal testimony in response to Defendants' experts.[3]

Defendants deposed Wheatcraft on January 17, 2012. The dispute underlying the present matter concerns Wheatcraft's criticism of defense experts' failure to replicate results that plaintiffs' experts had obtained from a certain computational model. The District asserts that Defendants have improperly failed to turn over certain input parameters used by their experts in modeling the threatened impact of MTBE.[4] During Wheatcraft's deposition, defense counsel asked him for an example of a defense expert that ran the District's "model with their own variations and where the information has not been provided...."[5] In response, Wheatcraft referred to the 45-page spreadsheet that is the subject of this objection (the "Spreadsheet"), and then read into the record a quote from a defense expert report reproduced in the Spreadsheet.

Later in the deposition, defense counsel asked Wheatcraft to describe the Spreadsheet. In response, he testified that it is "a document that contains information about each expert and the details of opinions they provide that relate to the issue we have been discussing."[6] Defense counsel then asked if the document "summarize[d] the deficiencies that [existed] in connection with the defense experts' reports[]...."[7] Counsel for the District objected, stating that Wheatcraft merely used the document "as a reference to refresh his recollection."[8] When defense counsel continued to press Wheatcraft about the nature of the Spreadsheet, counsel for the District again objected to the line of questioning. However, Wheatcraft testified that he and his assistant had prepared the Spreadsheet. The District maintains that "the [S]preadsheet was created at the direction of counsel for the District, as the result of a communication by the District's counsel to [] Wheatcraft, and was subsequently provided to the District by [] Wheatcraft in response to counsel's request."[9]

B. PTO 71 (Special Master Warner's First Ruling on Defendants' Motion to Compel)

On January 20, 2012, defendants filed a motion with Special Master Warner to compel production of the Spreadsheet. The District opposed the motion. On January 27, 2012, the day that the District's opposition was due, counsel for the District informed Special Master Warner and defense counsel that she would produce the materials "reviewed and relied upon" by Dr. Wheatcraft during his deposition by close of business on January 30, 2012, thereby mooting the pending motion. Ultimately, though, the District only produced eight pages of the Spreadsheet, along with a cover-page asserting that production of the entire Spreadsheet was not required because Wheatcraft had only read a portion of it during his deposition. In response, Defendants renewed their motion on February 6, 2012. Two weeks later, on February 20, 2012, Special Master Warner held a telephonic hearing at which he heard the arguments of the parties.

On February 29, 2012, Special Master Warner entered PTO 71. Based on his in camera review, he found that the entirety of the Spreadsheet related to Dr. Wheatcraft's testimony at the deposition, and ruled that Federal Rule of Evidence 612 therefore required its production. This ruling was expressly limited to "only [] the document at issue, " and did not "constitute a ruling that the attorney/client privilege has been waived as to any other document."[10] In fact, the ruling did not reach the issue of whether the Spreadsheet was entitled to work-product protection at all. Instead, it rested on the rationale that ...

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