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

United States District Court, S.D. New York

September 3, 2014

IN RE: METHYL TERTIARY BUTYL ETHER (

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.

Michael Axline, Esq., Miller & Axline P.C., Sacramento, CA, Counsel for Plaintiffs.

Joel G. MacMull, Esq., Goetz Fitzpatrick LLP, New York, NY, Robert J. Cunningham, Jr., Esq., Allison R. Mullins, Esq., Rees Broome P.C., Tysons Corner, VA, Counsel for EPL.

Donald H. Chase, Esq., Morrison Cohen LLP, New York, NY, Scott E. Bayzle, Esq., Parker Poe Adams & Bernstein LLP, Raleigh, NC, Counsel for Hamner.

MEMORANDUM OPINION AND ORDER

SHIRA A. SCHEINDLIN, District Judge.

I. BACKGROUND

In this consolidated multi-district litigation ("MDL"), Plaintiffs seek relief from contamination, or threatened contamination, of groundwater from various defendants' use of the gasoline additive methyl tertiary butyl ether ("MTBE") and/or tertiary butyl alcohol, which is a product formed by the natural degradation of MTBE in water. Familiarity with the facts of this case is presumed for the purposes of this Order.

Between 2010 and 2012, non-parties - the Hamner Institute for Health Sciences ("Hamner") and Environmental Pathology Laboratories, Inc. ("EPL") - produced tens of thousands of documents to Plaintiffs pursuant to a Rule 45 subpoena. The documents were subject to two stipulated protective orders that agreed that these documents would be treated as confidential. Currently before the Court is Plaintiffs' motion to lift the confidentiality designation for these documents. For the following reasons, Plaintiffs' motion is DENIED.[1]

A. The Hamner Protective Order

Hamner is a research institution located in Research Triangle Park, North Carolina. In 2005, several gasoline companies, including Chevron, Shell, and ExxonMobil, began funding a study to evaluate the carcinogenic potential of MTBE in drinking water.[2]

In 2010, Plaintiff CVWD issued a third-party subpoena to Hamner seeking production of documents relating to an MTBE study. CVWD also issued a subpoena to depose Darol E. Dodd, a Hamner employee, about the study. Hamner and Dodd moved to quash these subpoenas. On August 18, 2010, this Court ordered Hamner to "produce any raw data from its MTBE study, the final report of the study when completed, and any communications between ExxonMobil and [Hamner] relating to the study."[3] However, Hamner was not required "to turn over its internal communications or work product[.]"[4] The Court ruled that CVWD could depose Dodd but only after the MTBE study was finalized.[5] Finally, the Court ordered CVWD and Hamner to submit a joint protective order.[6]

On September 29, 2010, Hamner and CVWD agreed to a stipulated protective order ("Hamner Protective Order").[7] Under the protective order,

Documents... produced by [] Hamner shall be stamped "HAMNER-CONFIDENTIAL" to signify that they are subject to the protection of this Order. [D]eposition transcripts and exhibits... and oral statements or communications that quote, summarize or contain information ...

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