In Re Diisocyanates Antitrust Litigation

Facts

Plaintiffs claim that Defendants colluded to manipulate the global production and supply of methylene diphenyl diisocyanate (MDI) and toluene diisocyanate (TDI), to fix prices affecting the U.S. market for these products. The parties have been disputing the geographic scope of discovery since 2020 when Defendants objected to Plaintiffs' First Request for Production of Documents for Unstructured Data on the basis that Plaintiffs sought to elicit documents with no apparent connection to the U.S. market for MDI or TDI. The parties reached agreements or understandings that the geographic scope of Defendants' document productions would reflect an actual effect on U.S. commerce (even if such documents do not expressly mention the United States or locations within it) in a way that purportedly is actionable under the Sherman Act. Under the agreement, BASF SE avers that it spent approximately 10,000 hours reviewing and quality control checking more than 330,000 documents over a five-month period to complete its document review and that it produced approximately 107,000 documents with more to come. BASF SE contends that it would need to re-review these documents as part of its search and gathering obligations if compelled to expand its responses as Plaintiffs now insist. Huntsman also agreed to a similar search it stated in a final understanding that: Huntsman will produce documents containing information that is reasonably understood to affect the U.S. market . . . To determine whether the information in a document would affect the U.S. market for MDI, we will look at the specific language of the document as well as relevant contexts, such as the locations and job functions of the sender and recipient. As to documents located outside the United States, Huntsman is not categorically objecting to searching for such documents to the extent that Huntsman reasonably believes the document would contain information relating to the pricing and/or production of MDI in the United States.” Plaintiffs' counsel never objected or otherwise responded to this last correspondence, so Huntsman searched for and produced documents accordingly. Plaintiffs' interrogatories seek to elicit: (i) the identities and contact information of personnel who had managerial responsibility for recommending, reviewing, setting, deciding, or approving prices, price increases, production, capacity, inventory levels, supply, or output of MDI and/or TDI, along with personnel authorized to implement or make decisions relating to changes to production, capacity, or inventory levels; (ii) inter-competitor meetings and communications regarding MDI and TDI products; (iii) the names of the products, costs of manufacture, and factors influencing pricing; (iv) plants, production activity (including volume of U.S. sales generated), declarations of force majeure, and other plant disruptions; and (v) joint ventures and swaps. The Objecting Defendants re-asserted their geographic objections and limited their interrogatory responses to matters affecting the United States' market in accord with their prior agreements and understandings reached when responding to Plaintiffs' Document Requests. Other Defendants responded to these interrogatories without objecting to the global geographic scope or otherwise responded based upon limitations deemed acceptable to Plaintiffs. Plaintiffs took issue with the Objecting Defendants' responses, contending that limiting their responses based upon the absence of a nexus to the United States is too narrow and ought to be expanded to include information and individuals that “can” or “may” affect United States pricing and supply.” Plaintiffs contend that those prior agreements or understandings were applicable only to their Document Requests and not to their subsequent interrogatories. Plaintiffs filed the instant Motion to Compel. Plaintiffs make two general arguments: first, that foreign conduct is relevant even if such conduct does not affect, but only potentially affects, the market for MDI or TDI in the United States; and, second, that the Objecting Defendants have not established that responding in this broader way would pose a burden beyond the proportional needs of the case. The Objecting Defendants contend that they already produced substantial information regarding foreign conduct insofar as the information requested reasonably bears on imports or exports of MDI or TDI to or from the United States. Objecting Defendants also contend that the parties previously agreed to limit the geographic scope of their discovery responses in this regard. Objecting Defendants also contend that interrogatories seeking to elicit “purely foreign commerce” are not relevant or are marginally relevant at best and unduly burdensome.

Issues

Rule of Law

Holding and Decision

Legal Analysis

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