Antitrust Law Daily Wrap Up, ANTITRUST—D. Kan.: Dow’s supplemental discovery request in urethane price fixing case denied, (Jan 27, 2014)

By Linda O’Brien, J.D., LL.M.

In an antitrust action against Dow Chemical Company and other chemical producers over an alleged conspiracy to fix prices for chemicals used in the manufacture of polyurethane products, Dow’s request for supplemental discovery relating to a subsequent antitrust action was denied, the federal district court in Kansas City, Kansas, has decided (In re Urethane Antitrust Litigation, January 24, 2014, O’Hara, J.).

A series of class actions were filed against Dow and other producers of certain chemicals used in the manufacture of polyurethane products. Three direct-action plaintiffs opted out of the class action to pursue separate claims. The plaintiffs were manufacturers and sellers of polyurethane form that purchased polyether polyol products (PPPs) from Dow. Similarly, a series of class actions (Foam litigation) were filed in which the plaintiffs were charged with engaging in a price-fixing conspiracy for the sale of polyurethane foam products.

Dow served discovery notices on the plaintiffs seeking information on the plaintiffs’ communications with competitors and competitor prices. The plaintiffs produced a limited number of documents in response to the discovery request. After discovery closed, two plaintiffs moved to reopen discovery for the limited purpose of allowing various executives of the plaintiff companies who had previously invoked their Fifth Amendment privilege against self-incrimination to withdraw the innovations and provide deposition testimony in the case. In deposing the executives, Dow learned that the executives had given depositions in the Foam litigation. Dow requested additional discovery from the plaintiffs, asserting that the additional documents arose from the deposition testimony and were relevant to the plaintiff’s efforts to gain information about its’ competitors prices. The plaintiffs responded that they complied with their discovery obligations and would not produce the request Foam litigation documents. Subsequently, Dow moved to compel the plaintiffs to supplement their prior discovery responses.

The court determined that the plaintiffs have no obligation to supplement their prior discovery responses with discovery from the Foam litigation. Federal Rule of Civil Procedure 26(e) requires a party to supplement a discovery disclosure or response if the party learns that in some material respect the disclosure or response is incomplete or incorrect, and the additional or corrective information has not otherwise been made known to the other parties. Since Dow’s prior discovery request sought documents from a limited time period which ended before the Foam litigation began, the request could not be construed to cover the later-created documents.

In rejecting Dow’s argument that all requested documents designated during the time period were subject to supplementation regardless of when they were created, the court found that there was no duty to supplement documents generated after the designated time period. Further, Dow agreed to set a time limit on its prior discovery requests which was sufficient to discover the nature of the plaintiffs’ business practices.

The case is No. 04-1616-JWL, MDL No. 1616.

Attorneys: Brian R. Markley (Stinson Morrison Hecker LLP) for Dow Chemical Co.

Companies: Dow Chemical Co.

Cases: Antitrust KansasNews