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Momentive Specialty Chemicals, Inc. v. Alexander

United States District Court, Sixth Circuit

May 23, 2013

Momentive Specialty Chemicals, Inc., Plaintiff,
Ricky Alexander, Defendant.


TERENCE P. KEMP, Magistrate Judge.

This case is currently before the Court to decide defendant Ricky Alexander's motion to compel discovery (Doc. 13). The matter has been fully briefed. This order constitutes the Court's ruling on the motion.

I. Background

In another discovery order filed on May 16, 2013 (Doc. 10), the Court set forth a brief background of this case. The case involves Momentive's claim that defendant Ricky Alexander, who used to work for Momentive, has gone to work for a competitor, breached a non-compete agreement, and taken proprietary information with him to use in competing against Momentive. According to the complaint, Mr. Alexander worked for Momentive in the area of selling "proppants, " which "are injected into deep, underground wells to create a pathway for gas and oil." Complaint, Doc. 2, ΒΆ6. One of the disputes which has arisen is whether Momentive is in the business of selling raw sand as a proppant. Mr. Alexander appears to contend that, at least while he was at Momentive, the only sand Momentive sold as a proppant was resin-coated sand (it also sold ceramic proppants), and that Momentive should not be able to prevent him from working for a company which serves the same market but sells raw sand rather than coated sand. He suggests that any company selling raw sand is not a competitor of Momentive's and that the non-compete agreement he signed did not prevent him from working for such a company.

In order to flesh out this defense, Mr. Alexander served written discovery requests which asked for various documents and other information pertaining to Momentive's sale of raw sand. Momentive responded to those requests by producing some of the information, but it redacted some of the documents it produced and designated others as "attorneys eyes only." Mr. Alexander asks the Court to order Momentive to provide him with additional information about its raw sand sales, to redesignate the documents which it marked at "attorneys eyes only, " and to produce unredacted versions of many documents. For the following reasons, the Court will grant the motion in part.

II. Discussion

There are two main themes running through Momentive's response to the motion to compel: that some of the information requested by Mr. Alexander is too competitively sensitive to justify allowing anyone but outside counsel to see it, and that other information he has asked for is simply irrelevant. The Court will organize its discussion around these two themes.

A. Relevance

The information which Momentive believes to be irrelevant includes (1) certain items redacted from its 2013 Business Plans; (2) its 2012 Business Plans; (3) the identities of both its sales people who sell raw sand and its raw sand suppliers; (4) the sales price it charges for raw sand and to whom it has made such sales; and (5) information about it inventory capacity at the Longview, Texas transload facility. The Court will address each of these categories of information in turn.

First, Momentive has represented that none of the information redacted from the 2013 Business Plans deals with raw sand. Mr. Alexander does not actually dispute this, but asks the Court to conduct an in camera review of an unredacted version of the documents to confirm that representation. In the absence of any reason to suspect that Momentive is withholding relevant information from the Plans, the Court declines to order an in camera review.

Turning to the second issue, Momentive's argument about the 2012 Business Plans is somewhat different. It appears to admit that the 2012 Plans address sales of raw sand. However, it contends that the 2012 Plans are now out of date and were out of date when Mr. Alexander left Momentive in January, 2013, and that it has already produced evidence of its raw sand sales from November, 2011 forward. It asserts that the Plans would add nothing to that information.

Assuming that raw sand sales are either relevant or, at a minimum, discoverable because information about such sales may lead to the discovery of relevant evidence about one of Mr. Alexander's defenses (see Fed.R.Civ.P. 26(b)), the fact that Momentive has produced other information about its 2012 raw sand sales does not make information in that year's Business Plans any less relevant. Further, Momentive, as the party resisting production of relevant evidence on grounds that it is duplicative of other information produced, has the burden of showing that the discovery of the 2012 Plans would not just be cumulative or duplicative, but unreasonably so, see Rule 26(b)(2)(C), and it has not met that burden because it has not shown that the information in the Plans and in the invoices would completely overlap. Cf. Alexander v. F.B.I. , 194 F.R.D. 299, 302 (D.D.C. 2000). Finally, any burden in producing the 2012 Plans would appear to be minimal. The Plans should therefore be produced, although, as with the 2013 Plans, information that does not deal with raw sand sales may be redacted.

As to the third issue, relating to the identity of Momentive's sand suppliers and the names of its sand salespersons, Momentive makes a similar argument. Although it phrases its argument in relevancy terms ("The identification of salesmen who sold raw sand for Momentive is, quite simply, irrelevant" and "the source of raw sand, and the supply contracts for raw sand, are wholly irrelevant")(Memorandum in Opposition, Doc. 22, at 6), it supports those assertions not with any argument about relevance, but by repeating its claim that it has already produced both Business Plans and invoices showing that it has been selling raw sand since 2011. Mr. Alexander does not necessarily dispute the fact that Momentive has sold some quantity of raw sand, but he argues that it did not do so in the same way as the company he worked for, and that its sales may have been of contaminated sand and may have been to suppliers rather than to end users of the product. Certainly, knowing who made the sand sales in question may allow Mr. Alexander to explore these issues further, and the issues do relate to his defense.

The same cannot be said for information about Momentive's suppliers, however. Whether, and to whom, Momentive sold raw sand may be pertinent to Mr. Alexander's theory that Momentive is not really in the raw sand business, but where it got its sand from strikes the Court as immaterial. Mr. Alexander's reply memorandum says only that he needs to know this information "to see if the raw sand sales are the result of supply contract obligations...." (Reply Memorandum, Doc. 26, at 7). He does not explain how, if Momentive's purchases of sand were tied to some supply contract obligation, that might ...

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