Wehner v. Syntex Corp.

No. 83-642 C (2) (E.D. Mo. June 10, 1985)

The court issues a protective order concerning production of soil samples allegedly contaminated with dioxin, and holds that the Environmental Protection Agency (EPA) need not produce soil samples sought by defendants, unless defendants agree to make the results of their analysis available to EPA. Syntex defendant seeks portions of soil collected by EPA in order to test the samples for dioxin. The court rules that absent compelling circumstances, a private litigant has no right to test samples secured by EPA. Private litigants may use procedures outlined in Federal Rule of Civil Procedure 34 to collect and test their own soils samples. However, when EPA has sufficient samples, and when the private litigant will pay costs, it is preferable to allow the private party to use the EPA-collected samples. The court goes on to hold, however, the EPA may condition such use upon the requirement that the private party turn over to EPA its testing results.

[Related cases appear at 14 ELR 20212 & 20265 and 15 ELR 20210 & 20346.]

Counsel are listed at 15 ELR 20210.

[15 ELR 21018]

Filippine, J.:

Memorandum and Order

This matter is before the Court on the motion of the United States for a protective order concerning production of soil samples allegedly contaminated with dioxin. The Syntex defendants ("Syntex") in Wehner v. Syntex Corporation seek to secure from the Environmental Protection Agency ("EPA") portions of soil collected by the EPA. Syntex defendants desire to test the samples for the presence of dioxin.

After discussion between the parties the EPA has agreed to turn over to the Syntex defendants a portion of the samples collected by it provided certain conditions are satisfied. Syntex has agreed with all the conditions except the EPA's requirement that Syntex make the results of its analysis available to the EPA. Syntex objects to this condition arguing that the analysis conducted by it are its work product, and, therefore, protected from discovery by the EPA. The EPA, however, maintains that it is under no legal obligation to supply Syntex with the samples and that Syntex may be required to turn over to the EPA its results as a condition of receiving the samples collected by the EPA.

The Court agrees with the position of the EPA. The EPA collected the soil samples in furtherance of its statutory mandate to guard the environment from the toxic effects of hazardous waste. A private litigant, absent some compelling circumstances, has no right to test the samples secured by the EPA. The EPA expended the public's funds for the public's benefit in collecting the soil, and thus private parties have no right as such to secure from the EPA those samples. Private litigants are free to use the procedures outlined in Federal Rule of Civil Procedure 34 to collect and test their own soil samples. However, when the EPA has sufficient samples, and when the private party agrees to pay the costs involved, it is preferable for the EPA to allow the private party to use the samples collected by the EPA. As a condition for such use, however, the EPA may impose the requirement that the party make the results of its analysis available to the EPA. The Court will, therefore, grant the protective order of the United States to this extent.

Accordingly,

IT IS HEREBY ORDERED that the motion of the United States for a protective order be and is GRANTED to the extent herein indicated.

IT IS FURTHER ORDERED that the Environmental Protection Agency need not produced the soil samples sought unless the Syntex defendants agree to make the results of their analysis of those samples available to the Environmental Protection Agency.