Arconic Inc. v. Novelis Inc.
Arconic Inc. v. Novelis Inc.
2022 WL 2669201 (W.D. Pa. 2022)
April 1, 2022
Hochberg, Faith S., United States District Judge
Summary
Novelis complied with its discovery obligations related to production of information related to Gardobond and produced all responsive, non-privileged documents within the parameters agreed to by the parties. Arconic sought an order compelling supplementation of Novelis' production, but the Special Master found that Arconic's argument was not supported by Rule 26(e) and denied the motion. Novelis also voluntarily produced additional documents as an effort at compromise.
Additional Decisions
ARCONIC INC., Plaintiff,
v.
NOVELIS INC. and NOVELIS CORP, Defendants
v.
NOVELIS INC. and NOVELIS CORP, Defendants
CIVIL ACTION NO. 17-1434
United States District Court, W.D. Pennsylvania
Signed April 01, 2022
Counsel
Adam Adler, Pro Hac Vice, Christine E. Lehman, Connor S. Houghton, David A. King, Natalie J. Hausknecht, Pro Hac Vice, Reichman Jorgensen Lehman & Feldberg LLP, Washington, DC, Collin R. White, Pro Hac Vice, Aaron M. Panner, Pro Hac Vice, Kellogg, Hansen, Todd, Figel, & Frederick PLLC, Washington, DC, Aleksandra V. Williams, Antoinette C. Oliver, Aleksandra Phillips/Meyer, Unkovic & Scott LLP, Pittsburgh, PA, Ariel C. Green Anaba, Pro Hac Vice, Brian Baran, Pro Hac Vice, Caroline M. Walters, Courtland L. Reichman, Karlanna M. Lewis, Pro Hac Vice, Kate S. Falkenstien, Pro Hac Vice, Leaf Williams, Pro Hac Vice, Reichman Jorgensen Lehman & Feldberg LLP, Redwood Shores, CA, Sarah O. Jorgensen, Reichman Jorgensen Lehman & Feldberg LLP, Atlanta, GA, for Plaintiff.Charles Kelly, Michael J. Joyce, Saul Ewing LLP, Pittsburgh, PA, Holly A. Ovington, Pro Hac Vice, Julia Prochazka, Pro Hac Vice, Marissa A. Lalli, Pro Hac Vice, Mark A. Ford, Mark G. Matuschak, Pro Hac Vice, William F. Lee, Kate M. Saxton, Pro Hac Vice, Wilmer Cutler Pickering Hale and Dorr LLP, Boston, MA, Mindy Sooter, Pro Hac Vice, Samantha Picans, Pro Hac Vice, Wilmer Cutler Pickering Hale and Dorr LLP, Denver, CO, Mitchell G. Stockwell, Pro Hac Vice, Jeffrey H. Fisher, Pro Hac Vice, Vaibhav P. Kadaba, Pro Hac Vice, Kilpatrick Townsend & Stockton LLP, Atlanta, GA, Heather Petruzzi, Pro Hac Vice, Leon Bradford Greenfield, Pro Hac Vice, Wilmer Cutler Pickering Hale and Dorr LLP, Washington, DC, for Defendants.
Hochberg, Faith S., United States District Judge
Report & Recommendation No. 41 re: Gardobond Discovery Dispute
*1 Before the Special Master is a dispute regarding whether Novelis is required by Rule 26(e) to supplement its production of documents related to a potential alternative aluminum pretreatment product, Gardobond 4595 (“Gardobond”). Gardobond is a product that Novelis has been developing [Redacted]
On March 10, 2022, Arconic submitted its letter brief arguing that Novelis should be ordered to produce broad categories of additional documents related to Gardobond (“Arconic Ltr.”). On March 21, 2022, Novelis submitted its opposition (“Novelis Ltr.”). Arconic sought leave to submit a brief reply; with the Special Master's permission, that reply was submitted on March 24, 2022 (“Arconic Reply”). The Special Master, having heard full briefing on the dispute and considered it in the context of the procedural history and discovery of this case, finds as follows:
Background
At the heart of this dispute are the stipulated parameters for discovery set by the parties’ agreement, that became embedded in Report & Recommendation No. 29, and thereafter in an order of this Court. Its history dates back nearly three years ago in this case when Novelis had recently filed its antitrust counterclaims. In June 2019, the Special Master presided over a lengthy oral argument regarding 70 disputes about discovery on Novelis’ antitrust counterclaims. In Report & Recommendation No. 29, the Special Master memorialized certain agreements by the parties reached during the oral argument. Report & Recommendation No. 29 also recommended rulings on the remaining disputes.
Relevant to the present dispute are the following discovery parameters:
(i) Arconic's April 22, 2019 brief in support of its discovery positions stated: “The date through which the parties have agreed to produce documents responsive to RFPs relating to Novelis’ new [antitrust] claims” is “February 8, 2019.” (Apr. 22, 2019 Arconic Ltr. Brief, Ex. A at 26.)
(ii) Two categories of potential alternatives to A951 pretreated aluminum were discussed in Report & Recommendation No. 29. The first was known potential alternatives, meaning potential alternative products that had searchable names. Gardobond was one such known potential alternative; thus the search terms “Gardobond” and “4595” were run as standalone search terms by Novelis so that responsive communications and documents pertaining to this alternative could be identified and produced. (R&R 29 at 51.) In response to Arconic Request No. 40, among others, Novelis agreed to produce broad categories of documents and communications related to any known potential A951 alternative, including Gardobond. (See R&R 29 at 21; Apr. 22, 2019 Joint Redfern at 14.) As discussed above, by mutual agreement stipulated by the parties, and stated in Arconic's brief, the date cutoff for this production was February 8, 2019.
(iii) The second category of A951 alternatives was unknown or unnamed products that were in early R&D stages and not near enough to commercialization to be discoverable. (R&R 29 at 23 (“alterative product[s] ... not included on the list of known alternative products being used as search terms ... are too premature to have relevance to the market definition....”).) Because Gardobond was in the category of known potential alternative products, its nearness to commercialization was not linked to its discoverability; it has already been searched for, with responsive documents produced.
*2 In response to these parameters, Novelis produced “all non-privileged, responsive” communications and documents “relating to 4595 created on or before February 8, 2019.” (Novelis Ltr. at 2.) Novelis states [Redacted] Id. at 2 n.1.) Accordingly, Novelis produced all responsive, non-privileged documents within the parameters agreed to by the parties and/or recommended by the Special Master as it relates to Gardobond.
Arconic's New Argument
Arconic now seeks an order compelling supplementation of Novelis’ production, citing as its grounds the testimony elicited at the deposition of Novelis North American President Thomas Boney that was held on December 1, 2021.[1] According to Arconic, it learned of new information regarding [Redacted] (Arconic Ltr. at 1-2.) Arconic argues that it is entitled to a supplemented document production pursuant to Federal Rule 26(e). Rule 26(e) states in relevant part that a party “must supplement or correct its” production “if the party learns that in some material respect the disclosure or response is incomplete or incorrect.” According to Arconic, the developments learned of during Mr. Boney's deposition demonstrate that Novelis’ Gardobond production is materially incomplete. Arconic seeks several broad categories of supplemental production, including [Redacted] (Arconic Ltr. at 4.)
Analysis
In light of the procedural history and agreed scope of discovery in this case, Novelis complied with its discovery obligations related to production of information related to Gardobond. Supplementation under Rule 26(e) would be owed if Arconic proffered evidence that Novelis failed to produce information within the agreed scope of discovery, or that Novelis had not disclosed that there was a potential new pretreatment alternative. Arconic does not make such a claim. [Redacted]
Instead, Arconic argues that material new information has been uncovered through Mr. Boney's deposition, which entitles Arconic to extend the date range for discovery on Novelis’ antitrust claims beyond the parties’ agreement. This is not what Rule 26(e) contemplates:
Rule 26(e) ... only imposes on [parties] a continuing obligation to amend their responses to that request to the extent they learn of gaps or errors in the ... information they provided. Under the plain language of the Rule, however, there is no general duty to produce ... information, for which there was never any enforceable request for production (or corresponding duty to disclose) in the first place.
Hnot v. Willis Group Holdings Ltd., 2006 WL 2381869, at *5 (S.D.N.Y. 2006).
Arconic argues that supplementation is warranted because Mr. Boney's testimony shows that Gardobond [Redacted] (Arconic Ltr. at 3.) Actually, Mr. Boney testified that [Redacted]
Based on this testimony, [Redacted]
Discovery is now closed. Nothing in Mr. Boney's testimony or Arconic's arguments persuade the Special Master that further supplementation under the standard of Rule 26(e) is required. [Redacted]
In an attempt to resolve this dispute, Novelis voluntarily produced [Redacted] was an effort at compromise. That compromise neither concedes nor demonstrates that Novelis is obligated to provide more information. Novelis has also agreed to supplement its response to a contention interrogatory regarding substitutes for A951 [Redacted] (Novelis Ltr. at 3.)
*3 The authorities cited by Arconic do not point to any different conclusion. No authority cited by Arconic supports the argument that a party who has completed its production in compliance with the agreed scope of discovery has an obligation to reopen discovery because new information is learned. In Sherwin-Williams Co. v. PPG Indus., Inc., 2021 WL 633506, at *2 (W.D. Pa. Feb. 18, 2021) (Conti, J.), the parties “agree[d] that supplemental damages discovery should be provided to reflect the passage of time,” and the “dispute involve[d] the scope of that discovery.” Here, by contrast, there is no agreement between the parties that they would supplement discovery [Redacted]
Likewise, in United States v. All Assets Held at Bank Julius Baer & Co., Ltd., 270 F. Supp. 3d 220, 226 (D.D.C. 2017), the party agreed that it had a duty to supplement its discovery response under the facts at issue in that case. And in Rodriguez v. IBP, Inc., 243 F.3d 1221, 1230 (10th Cir. 2001), the party had failed to comply with its discovery obligations in the first instance—a contention Arconic does not make here. While a Rule 26(e) duty to supplement extends past the fact discovery deadline, see Woods v. Google, 2014 WL 1321007, at *4 (N.D. Cal. Mar. 28, 2014), there is no duty to supplement when the party was not obligated to produce the information in the first place. See Hnot, 2006 WL 2381869, at *5.
Arconic's Reply cites two instances where the parties have mutually agreed to supplement certain discovery responses, particularly with respect to damages discovery. (Arconic Reply at 1.) Supplementation of specific discovery responses by mutual agreement of the parties does not demonstrate that Arconic is entitled to revisit the agreed-to scope of discovery.
Arconic seeks to unilaterally reopen discovery beyond the parameters the parties have agreed and abided by for three years. Arconic argues that “[a]ny new discussions regarding [Redacted] (Arconic Reply at 1.) Such a standard is both unworkable and inconsistent with how the parties have agreed to conduct discovery in this case. If this were the standard, Arconic would be entitled [Redacted] and Arconic would be required to supplement [Redacted] past the discovery cut-off date agreed by the parties, and into the future. In fact, there is no limiting principle that the Special Master can discern if Rule 26(e) allowed parties to reopen discovery on this basis. There is no showing of such a need for this intrusive information in this case unless and until [Redacted][2]
Finally, the record shows that much of the passage of time in this case is attributable to the delays rooted in Arconic's repeated failure to identify its trade secrets, the history of which is well-known by the parties and will not be repeated here. But for these delays, this case would already have gone to trial and a verdict would have been reached long before [Redacted]. And that may still happen, despite these delays. Arconic has made no showing of any particular cause of action in this case that would be affected by [Redacted]
For the foregoing reasons, the Special Master recommends that Arconic's motion seeking an order compelling supplementation of Novelis’ Gardobond production be denied, subject to the information that Novelis will disclose [Redacted] At such time, this Court will decide whether, and to what extent, that fact is germane to any of the issues in this case.
Footnotes
Notwithstanding that all fact discovery was to have been completed by November 9, 2021, with the Court's permission, the parties have held several depositions after that date. (Oct. 28, 2021 Minute Entry.)
In addition to the foregoing reasons why such production is not warranted, Arconic seeks commercial information about its competitor and a competing product that are extremely sensitive in nature. Arconic has not demonstrated that it is entitled to this information.