Free Order on Motion for Leave to File - District Court of Delaware - Delaware

Case 1:05-cv-00023-JJF Document 121 Filed 01/17/2008 Page 1 of 4
IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF DELAWARE
DOW CHEMICAL CANADA, INC., :
Plaintiff & Counterclaim E
Defendant :
v. ; C.A. No. 05»23 JJF
HRD CORPORATION, E
Defendant & Counterclaim Z
Plaintiff. :
MEMORANDUM ORDER
Pending before the Court are Counterclaim Plaintiff HRD
Corporations' Second Motion to Compel Production of Documents and
for Sanctions (D.I. 95), and Counterclaim Defendant Dow Chemical
Canada, Inc.'s Motion for Leave to File Supplemental Paper (D.I.
116). For the reasons discussed below, the Court will grant in
part and deny in part Counterclaim Plaintiff's Motion, and deny
Counterclaim Defendant's Motion.
I. BACKGROUND
This lawsuit between diverse parties, Dow Chemical Canada,
Inc. (“Dow") and HRD Corporation (“HRD”), arises out of a dispute
over two contracts entered into in July 2002 concerning the
development of polyethylene waxes. A protective order was
stipulated to by the parties (D.I. 43) and entered by the Court
on January 20, 2006. Following an earlier and unrelated
discovery dispute, HRD filed a Motion to Compel and the Court
granted that motion on May, 25, 2007. (D.I. 92.)

Case 1:05-cv-00023-JJF Document 121 Filed 01/17/2008 Page 2 of 4
II. Pending Motions
A. Dow's Motion for Leave to File Supplemental Paper
On January ll, 2008, Dow filed a motion for leave to file
supplemental paper in opposition to HRD's second motion to compel
and for sanctions. Dow presents no explanation for why it should
be allowed to supplement the response it filed to HRD’s Motion to
Compel on July 27, 2007. Accordingly, the Court will deny Dow’s
Motion.
B. HRD's Motion to Compel Production of Documents
On July 20, 2007, HRD filed a motion to compel production of
documents and for sanctions. In relevant part, Federal Rule of
Civil Procedure 26 provides that the “[p]arties may obtain
discovery regarding any matter, not privileged, that is relevant
to the claim or defense of any party.” As long as the
information sought is reasonably calculated to lead to the
discovery of admissible evidence, it is discoverable, even if it
is ultimately not admissible at trial. In the Third Circuit, “it
is well recognized that the federal rules allow broad and liberal
discovery.” Pacitti v. Macy’s, 193 F.3d 766, 777-78 (3d Cir.
l999)(citations omitted).
By its motion, HRD contends that the documents Dow has
produced have been improperly and extensively redacted, and that
none of the redactions appear related to any possible claim of
privilege. HRD raises several examples where it contends Dow
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Case 1:05-cv-00023-JJF Document Filed 01/17/2008 Page 3 of 4
inappropriately redacted information relevant to the claims at
issue. (D.I. 95, Exh. H—K.) Further, HRD contends that Dow has
radacted almost all information produced concerning the
production of the HRD products.
In response, Dow contends that it has redacted only
information both irrelevant to the claims at issue and highly
confidential. To require Dow to disclose its “unpatented trade
secrets,” Dow contends, would put it at risk of suffering
“irreparable injury.” (D.I. 98.) Dow further contends that
HRD’s motion should be denied because HRD has “failed to engage
in good—faith ‘meet and confer' discussions,” as required by
local rules. Lastly, Dow presents an expert declaration that
purported demonstrates the irrelevance of the redacted
information specifically raised by HRD. (Kolthammer
Declaration.}
After reviewing the record evidence, the Court concludes
that the discovery provided by Dow is extensively redacted and
that the relevance of the information redacted by Dow cannot be
determined without explanations of the type provided in the
Kolthammer Declaration. The Court will therefore order Dow to
provide specific explanations to HRD, on a page by page basis,
for the redactions in the documents it has already submitted to
HRD and for any redactions it makes in documents still to be
submitted.
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Case 1:05-cv-00023-JJF Document 121 Filed 01/17/2008 Page 4 of 4
III. Conclusion
For the reasons discussed above, the Court concludes that
Dow has not adequately explained the extensive redactions in the
discovery it has provided to HRD.
NOW THEREFORE, IT IS HEREBY ORDERED that:
1. Counterclaim Defendant's Motion for Leave to File
Supplemental Paper (D.I. 116) is DENIED;
2. Counterclaim Plaintiff’s Motion to Compel Production of
Documents and for Sanctions is GRANTED in part and
DENIED in part, as follows:
a. Within 90 days of this order, Dow shall submit
specific explanations to HRD, on a page by page
basis, for the redactions in the documents it has
already disclosed and for any future redactions it
makes in documents still to be disclosed;
b. The Court reserves decision on sanctions.
January 2008 \n€:.4 ·
UN€TFD ST¢TE· JISTRICT 1 nGE
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