Roosevelt Irrigation District v. Salt River Project Agricultural Improvement and Power District et al

Filing 1163

ORDER that the Court finds it appropriate to QUASH Plaintiff RID's Subpoena to Produce Documents, Information, or Objects or to Permit Inspection of Premises in a Civil Action Served by Roosevelt Irrigation District upon Third-Party Errol L. Montgomery, Inc. in its entirety. Signed by Magistrate Judge Bruce G Macdonald on 1/14/2016. (DPS)

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UNITED STATES DISTRICT COURT
DISTRICT OF ARIZONA

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ROOSEVELT IRRIGATION
Case No. 2:10-CV-00290-DAE-BGM
DISTRICT, a political subdivision of the
State of Arizona,
ORDER
Plaintiff,
v.
SALT RIVER PROJECT
AGRICULTURAL IMPROVEMENT
AND POWER DISTRICT, et al.,
Defendants.

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Currently pending before the Court is Non-Party Errol L. Montgomery &

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Associates, Inc.’s Objection to Subpoena to Produce Documents, Information, or Objects

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or to Permit Inspection of Premises in a Civil Action Served by Roosevelt Irrigation

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District (Doc. 1125) and its supplement thereto (Doc. 1137) (collectively “Montgomery

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Objections”). Defendant Salt River Project Agricultural Improvement and Power District

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(“SRP”) filed its objection to the subpoena (Doc. 1120), as did Defendant Freescale
Semiconductor, Inc. (“Freescale”) (Doc. 1126). Plaintiff Roosevelt Irrigation District

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(“RID”) filed its Response to the Montgomery Objections (Doc. 1146), and the Court
heard oral argument on December 17, 2015. Minute Entry 12/17/2015 (Doc. 1151).

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I.

BACKGROUND
A.

The 2009 Contract

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In March 2009, Montgomery and RID, as well as RID’s counsel Gallagher &

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Kennedy (“G & K”), entered into a contract through which Montgomery was to serve

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RID and G & K as a technical consultant to implement RID’s response strategy.

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Montgomery’s Suppl. to Obj. (Doc. 1137), Consulting Services Agreement (Exh. “2”).

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“The main purpose of the response strategy [was] to systematically characterize the

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impact of groundwater contamination on the RID well field, distribution system, and

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water use and determine a plan to optimize water use to RID’s benefit as part of the area-

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wide cleanup.” Id., Exh. “2,” Prelim. Scope of Services (Exh. “A”) at 16. “The second

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phase [was to] consist of a detailed evaluation of all RID wells, control system,

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distribution system, water demands, and area-wide groundwater data to develop a PRAP

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to optimize RID pumping and water use for containment of the groundwater containment

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plume in the West Van Buren WQARF Site and OU-3 CERCLA Site.” Id., Exh. “2,”

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Exh. “A” at 17. At the time Montgomery and RID entered into the 2009 agreement,

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Montgomery disclosed to RID that it had pre-existing client relationships with Salt River
Project, Arizona Public Service Corporation, Honeywell, and Motorola. Id., Exh. “2,”
Exh. “A-1.” Each of these entities is now a defendant in the current lawsuit, with the

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exception of Motorola who is indemnified by Freescale Semiconductor.
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B.

Montgomery’s Relationship to Synergy

Dennis Shirley was Montgomery’s Project Manager at the time that the March

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2009 contract between Montgomery, RID, and G & K was made. In January 2010, Mr.

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Shirley left Montgomery and formed Synergy, a new hydrogeologic consulting firm. The

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hydrogeologic representation of RID moved with Mr. Shirley to Synergy. In 2011,

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Montgomery entered into a contract with Synergy to provide a groundwater model as part

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of the feasibility study. It is undisputed that the groundwater model Montgomery was

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contracted to develop was not a contaminate fate-and-transport model. Rather, the model

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was limited to attempting to quantify changes in the characteristics of the plume if RID
altered the pumping volumes at a limited number of wells.
C.

Discovery from Montgomery in the Current Litigation

During the course of this litigation, Defendant City of Phoenix issued a subpoena

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for documents from Montgomery.

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$22,000.00 and in April 2015 produced its entire file from January 1, 2010 onward,

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As a result, Montgomery spent approximately

providing it initially to Synergy, who in turn gave the file to Plaintiff RID’s counsel for

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review. After review, Plaintiff RID’s counsel disclosed those documents that were not

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confidential or privileged.

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A subsequent disclosure was made which apparently

encompassed primarily e-mails.

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Plaintiff RID’s current subpoena seeks additional documents from Montgomery
related to its relationships with certain defendants in this case.

Plaintiff RID has

modified and limited the breadth of documents sought since the initial service of the

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subpoena on Montgomery. See Pl. RID’s Response (Doc. 1146), Hanson Decl. (Exh.
“A”), Exh. “3.”

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II.

ANALYSIS
Non-party Montgomery seeks an order from this Court quashing Plaintiff RID’s

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subpoena for documents. As an initial matter, Montgomery claims that the requested
discovery is not relevant.

Montgomery further asserts that even if the requested

documents were relevant, Plaintiff’s request is not proportional to the needs of this

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litigation and poses an undue burden on it as a non-party.

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“Parties may obtain discovery regarding any nonprivileged matter that is relevant

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to any party’s claim or defense and proportional to the needs of the case, considering the

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issues at stake in the action, the amount in controversy, the parties’ relative access to

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relevant information, the parties’ resources, the importance of the discovery in resolving

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the issues, and whether the burden or expense of the proposed discovery outweighs its

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likely benefit.” Fed. R. Civ. P. 26(b)(1). “On timely motion, the court for the district

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court where compliance is required must quash or modify a subpoena that: (i) fails to

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allow a reasonable time to comply; (ii) requires a person to comply beyond the

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geographical limits specified in Rule 45(c); (iii) requires disclosure of privileged or other

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protected matter, if no exception or waiver applies; or (iv) subjects a person to undue
burden.”

Fed. R. Civ. P. 45(d)(3)(A).

Although Rule 26(b)(1) allows for broad

discovery, a litigant’s right to that discovery is not unlimited. “District courts need not

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condone the use of discovery to engage in ‘fishing expedition[s].’” Rivera v. Nibco, Inc.,
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364 F.3d 1057, 1072 (9th Cir. 2004). Toward this end, the Court has the inherent power
to control discovery as it deems necessary. See Blackie v. Barrack, 524 F.2d 891 (9th

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Cir. 1975).

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A.

Document Requests

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Plaintiff RID’s revised subpoena, provided in red-lined form, seeks the production

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of ten (10) sets of documents. See RID’s Response to Montgomery Objections (Doc.
1146), Exh. “A,” Exh. “3.” The Court will address each of these in turn.
1. Contracts

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Plaintiff seeks production of “all contracts that you have entered with Motorola,

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Inc., Freescale Semiconductor, Inc., or Arizona Public Service since 2005.

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Response to Montgomery Objections (Doc. 1146), Exh. “A,” Exh. “3” ¶ 1. Despite the

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RID’s

reduction in time, this request still seeks to reach back a decade for documents and that

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are not relevant to Plaintiff’s claims in this case. Plaintiff asserts that “[t]he information

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sought bears on the possibility that Montgomery was not neutral in its work for RID[;]”

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however, unlike the cases Plaintiff relies on, Montgomery is neither a party nor an expert

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witness in this litigation. Furthermore, it is undisputed that RID was fully aware of the

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relationships that Montgomery had with certain defendants at the time that it entered in to

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the 2009 contract. “Although irrelevance is not among the litany of enumerated reasons

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for quashing a subpoena found in Rule 45, courts have incorporated relevance as a factor
when determining motions to quash a subpoena.” Moon v. SCP Pool Corp., 232 F.R.D.
633, 637 (C.D. Cal. 2005).

“[I]f the sought-after documents are not relevant nor

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calculated to lead to the discovery of admissible evidence, then any burden whatsoever
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imposed upon [a non-party] would be by definition ‘undue.’” Compaq Computer Corp.
v. Packard Bell Electronics, Inc., 163 F.R.D. 329, 335–36 (N.D. Cal. 1995) (emphasis in

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original).

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“A court may prohibit a party from obtaining discovery from a non-party if that

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same information is available from another party to the litigation.” Rocky Mountain Med.

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Mgmt., LLC v. LHP Hospital Group, Inc., 2013 WL 6446704 at *4 (D. Idaho, Dec. 9,

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2013) (reviewing cases). Here, Defendants Freescale and Arizona Public Service also

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possess the contracts sought from non-party Montgomery. “If the party seeking the party

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seeking the information can easily obtain the same information without burdening the

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nonparty, the court will quash the subpoena.” Precourt v. Fairbank Reconstruction

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Corp., 280 F.R.D. 462, 467 (D. S.D. 2011). As such, the Court finds that Plaintiff’s

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request places an undue burden on non-party Montgomery, and the subpoena shall be

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quashed as to this request.

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2. Invoices

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Plaintiff’s second request seeks production of “invoices for all consulting work or

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services you have performed for Motorola, Inc., Freescale Semiconductor, Inc. or for

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Arizona Public Service since 2005.” RID’s Response to Montgomery Objections (Doc.

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1146), Exh. “A,” Exh. “3” ¶ 2. As discussed in the previous section, this request is

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unlimited in scope, and seeks information beyond Plaintiff’s claims in this litigation. As
such, it is not relevant. Furthermore, the Court finds it inappropriate to burden a nonparty with production of information that is in the possession of defendants in this case.

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Accordingly, the Court finds that Plaintiff’s request places an undue burden on non-party
Montgomery, and the subpoena shall be quashed as to this request.

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3. Proposals or Bids

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Plaintiff RID seeks production of “all documents which reflect, document,

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memorialize, or refer or relate to proposals or bids to perform consulting work or services

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for Motorola, Inc., Freescale Semiconductor, Inc. or Arizona Public Service since 2005.”

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RID’s Response to Montgomery Objections (Doc. 1146), Exh. “A,” Exh. “3” ¶ 3.

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Plaintiff also seeks production of “all documents which reflect, document, memorialize,

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refer or relate to proposals or bids to perform consulting work or services for any of the

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CERCLA Action Defendants since 2005.” Id., Exh. “A,” Exh. “3” ¶ 4. Based on the

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legal authority discussed in Section II.A.1., supra, the Court finds that this request is not

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relevant to Plaintiff’s current claims, the documents are available from party defendants,

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and the requests place an undue burden on non-party Montgomery. Accordingly, the

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subpoena will be quashed as to these requests.

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4. Communication Regarding West Van Buren Area Site

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Plaintiff RID seeks production of “all documents which reflect, document,

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memorialize, refer or relate to any communication (in any form) between you and any

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representative of Motorola, Inc. or Freescale Semiconductor, Inc. regarding any aspect of

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your work for or with RID or Synergy on the West Van Buren Area Site.” RID’s
Response to Montgomery Objections (Doc. 1146), Exh. “A,” Exh. “3” ¶ 5. Plaintiff also
seeks production of “all documents which reflect, document, memorialize, refer or relate

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to any communication (in any form) between you and any representative of any of the
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CERCLA Action Defendants regarding any aspect of your work for or with RID or
Synergy on the West Van Buren Area Site.” Id., Exh. “A,” Exh. “3” ¶ 6. Non-party

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Montgomery avers that it has produced its entire file regarding this litigation from

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January 1, 2010 onward, and Plaintiff’s counsel has reviewed that file. As such, to the

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extent that communication between Montgomery and Motorola, Inc., Freescale

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Semiconductor, Inc., or any other defendant was contained in that file, it is already in

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Plaintiff’s possession. Any communication not contained in Montgomery’s file would

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also be in the possession of a party defendant, and as such the Court finds it inappropriate

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to burden non-party Montgomery with its production. Accordingly, Plaintiff’s subpoena
will be quashed as to these requests.
5. Meetings
Plaintiff RID seeks production of “all documents which reflect, document,

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memorialize, refer or relate to any meetings attended by you and representatives of either

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Motorola, Inc. or Freescale Semiconductor, Inc. since 2005.”

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RID’s Response to

Montgomery Objections (Doc. 1146), Exh. “A,” Exh. “3” ¶ 7. Based on the legal

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authority discussed in Section II.A.1., supra, the Court finds that this request is not

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relevant to Plaintiff’s current claims, the documents are available from party defendants,

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and the request places an undue burden on non-party Montgomery. Accordingly, the

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Court will quash Plaintiff’s subpoena as to this request.
6. Communication with West Van Buren Working Group
Plaintiff RID seeks production of “all documents which reflect, document,

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memorialize, refer or relate to any communication (in any form) between you and any
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member of the West Van Buren Working Group in the past ten (10) years.” RID’s
Response to Montgomery Objections (Doc. 1146), Exh. “A,” Exh. “3” ¶ 8. With regard

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to members of the West Van Buren Working Group who are not defendants in this

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lawsuit and with whom Montgomery had no prior working relationship, the information

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sought is irrelevant and overbroad. As to those members who are currently defendants in

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this litigation and based on the legal authority discussed in Section II.A.1., supra, the

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Court finds that this request is not relevant to Plaintiff’s current claims, the documents

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are available from party defendants, and the requests place an undue burden on non-party

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Montgomery. Accordingly, the Court will quash Plaintiff’s subpoena as to this request.
7. Communication with Tim Leo
Plaintiff RID seeks production of “all documents which reflect, document,
memorialize, refer or relate to any communication (in any form) [sic] Tim Leo or any

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other Montgomery & Associates representative or employee and John Barkett or any

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other attorney with the law firm of Shook, Hardy & Bacon since 2004 regarding your

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work for any entity involved in the West Van Buren Area Site or the M-52 Superfund

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Site.” RID’s Response to Montgomery Objections (Doc. 1146), Exh. “A,” Exh. “3” ¶ 9.

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As an initial matter, Montgomery asserts that there “are no documents relating to any

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communications with Freescale’s attorney.” Montgomery’s Suppl. Obj. (Doc. 1137) at 7.

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Moreover, based on the legal authority discussed in Section II.A.1., supra, the Court
finds that this request is not relevant to Plaintiff’s current claims, the documents are
available from party defendants, and the request places an undue burden on non-party

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Montgomery. Accordingly, the Court will quash Plaintiff’s subpoena as to this request.
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8. Modifications, Clarifications, and Alterations

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Plaintiff RID seeks production of “all documents which reflect, document,

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memorialize, refer or relate to any modifications, clarifications, [sic] alterations you have

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made to reports or documents you created or compiled in connections with your work for

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IRD or Synergy on the West Van Buren Area Site.” RID’s Response to Montgomery

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Objections (Doc. 1146), Exh. “A,” Exh. “3” ¶ 9.

To the extent that they exist,

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Montgomery asserts that these documents have been included in the production to the

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City of Phoenix. Montgomery’s Suppl. Obj. (Doc. 1137) at 7. As such, Plaintiff has

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already reviewed them and is in possession of them. Accordingly, the Court finds that

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because the documents have already been produced in this litigation, the request places

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an undue burden on non-party Montgomery. The Court will quash Plaintiff’s subpoena

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as to this request.

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B.

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Defendants Salt River Project and Freescale Semiconductor objected to the

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Defendants’ Objections

subpoena in writing and at oral argument, and Defendant Honeywell also voiced its

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objection to the scope of the subpoena at the hearing. In light of the Court’s findings

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regarding relevance and burden to non-party Montgomery, it declines to address

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Plaintiff’s opposition, on procedural grounds, to these Defendants’ objections.

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III.

CONCLUSION
Based on the foregoing, the Court finds it appropriate to QUASH Plaintiff RID’s

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Subpoena to Produce Documents, Information, or Objects or to Permit Inspection of
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Premises in a Civil Action Served by Roosevelt Irrigation District upon Third-Party Errol
L. Montgomery, Inc. in its entirety.

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Dated this 14th day of January, 2016.

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Honorable Bruce G. Macdonald
United States Magistrate Judge

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