USA v. Sterling Centrecorp Inc. et al

Filing 303

STIPULATION AND ORDER signed by District Judge Morrison C. England, Jr. on 2/7/2017 GRANTING additional discovery relating to recovery of enforcement costs. (Michel, G.)

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Gary J. Smith (State Bar No. 141393)
([e-mail])
Kaitlyn D. Shannon (State Bar No. 296735)
([e-mail])
BEVERIDGE & DIAMOND, P.C.
456 Montgomery Street, Suite 1800
San Francisco, CA 94104-1251
Telephone: [phone]
Facsimile: [phone]
Attorneys for Defendant
Sterling Centrecorp Inc.

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UNITED STATES COURT

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EASTERN DISTRICT OF CALIFORNIA

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SACRAMENTO DIVISION

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UNITED STATES OF AMERICA, and
CALIFORNIA DEPARTMENT OF TOXIC
SUBSTANCES CONTROL,

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Case No. 2:08-cv-02556- MCE-DB
STIPULATION AND ORDER
GRANTING ADDITIONAL
DISCOVERY RELATING TO
RECOVERY OF ENFORCEMENT
COSTS

Plaintiffs,
vs.

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Trial Date: Not Scheduled
Judge:
Hon. Morrison C. England, Jr.

STERLING CENTRECORP INC., STEPHEN P.
ELDER, and ELDER DEVELOPMENT, INC.,
Defendants.

[Complaint Filed: October 27, 2008]

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WHEREAS, on March 25, 2009, the Court entered the Bifurcation Order (ECF No. 26)

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separating the discovery and trial of defendants’ liability (“Phase I”) from the discovery and trial on

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plaintiffs’ entitlement to response costs (“Phase II”), and;

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WHEREAS, on September 8, 2015, the Court signed a Stipulation and Order (ECF No. 244)

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providing that (a) on or before 60 days after the conclusion of the Phase II trial, Plaintiffs United

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States of America and California Department of Toxic Substances Control (“Plaintiffs”) shall jointly

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file a motion seeking enforcement costs, which are a subset of the response costs being litigated in

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Phase II; (b) on or before 60 days after Plaintiffs’ deadline to file a motion seeking enforcement

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costs, if Defendant Sterling Centrecorp, Inc. (“Sterling”) decides a response is necessary, Sterling

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shall file a response in opposition to Plaintiffs’ motion for enforcement costs; and (c) on or before 21
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Stipulation and [Proposed] Order Granting Additional Discovery Relating to Recovery of Enforcement Costs
Case No. 2:08-cv-02556-MCE-CKD

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days after Sterling’s deadline to file its response, if Plaintiffs decide a reply is necessary, Plaintiffs

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shall jointly file a reply to any response in opposition filed by Sterling. The Court’s order further

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provided that (d) Sterling will have an opportunity to take discovery on Plaintiffs’ enforcement costs

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following the Phase II trial until 60 days after Plaintiffs’ deadline to file a motion seeking

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enforcement costs, however, Plaintiffs do not waive their right to assert any privilege or any

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objection that could apply to any part of Sterling’s discovery request; and (e) Plaintiffs do not agree

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to submit their attorneys for depositions in this matter and do not waive their right to seek a

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protective order barring any depositions they deem objectionable;

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WHEREAS, the Court has resolved all matters that could have been tried in Phase II

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pursuant to the Parties’ stipulation, leaving only the enforcement costs portion of Plaintiffs’ response

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costs unresolved;

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WHEREAS, on October 24, 2016, the Court signed a Stipulation and Order (ECF No. 301)

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staying the deadlines in the Court’s September 8, 2015 Order until December 21, 2016 to provide the

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Parties time to negotiate a settlement of enforcement costs. The stipulated schedule for briefing and

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discovery related to Plaintiffs’ motion for enforcement costs would commence when the stay ended

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on December 21, 2016 if the Parties were unable to settle the issue of enforcement costs;

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WHEREAS, the Parties did not settle the issue of enforcement costs and Plaintiffs’ deadline

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for filing a joint motion for recovery of enforcement costs is February 21, 2017. Sterling’s

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opposition to such a motion, if any, is due April 21, 2017 and Plaintiffs’ joint reply is due on May

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12, 2017;

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WHEREAS, Plaintiffs and Sterling wish to agree to limit the number of document requests

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that may be served and increase the number of interrogatories that may be served beyond the limits

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contained in Federal Rule of Civil Procedure 33 and the Court’s Scheduling Orders;

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IT IS HEREBY STIPULATED BY AND BETWEEN PLAINTIFFS AND STERLING, BY
AND THROUGH THEIR UNDERSIGNED COUNSEL, THAT:
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Sterling and Plaintiffs may each serve up to 25 interrogatories and 25 document

requests relating to enforcement costs.
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Sterling and Plaintiffs agree not to depose each other’s timekeepers. Sterling and
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Stipulation and Order Granting Additional Discovery Relating to Recovery of Enforcement Costs
Case No. 2:08-cv-02556-MCE-CKD

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Plaintiffs retain their rights to depose any retained expert witnesses, as that term is used in the

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Court’s Phase II Pretrial Scheduling Order, that Sterling or Plaintiffs rely upon to support or oppose

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Plaintiffs’ motion for enforcement costs.

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3.

Plaintiffs agree that billing records, narratives, and cost documentation voluntarily

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shared with Sterling during settlement discussion and marked privileged and confidential may be

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filed with the Court. Sterling agrees to file these documents under seal with the Court.

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4.

Should Plaintiffs seek discovery of Sterling and require additional time to prepare

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their reply brief, Sterling will not oppose Plaintiffs’ request to stay their reply deadline up to 45 days

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after Sterling serves its response to written discovery and any retained expert witnesses offered by

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Sterling have been deposed.

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For Defendant Sterling Centrecorp, Inc.

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January 31, 2017
DATED

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/s/ Gary J. Smith
GARY J. SMITH
Beveridge & Diamond, P.C.
456 Montgomery Street , Suite 1800
San Francisco, CA 94104

For Plaintiff United States of America

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January 31, 2017
DATED

/s/ Patricia L. Hurst
PATRICIA L. HURST
Senior Counsel
Environmental Enforcement Section
Environment and Natural Resources Division
United States Department of Justice
PO Box 7611
Washington, DC 20044-7611

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For Plaintiff Department of Toxic Substances Control

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XAVIER BECERRA
Attorney General of California
TIMOTHY R. PATTERSON
Supervising Deputy Attorney General

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Stipulation and Order Granting Additional Discovery Relating to Recovery of Enforcement Costs
Case No. 2:08-cv-02556-MCE-CKD

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January 31, 2017
DATED

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/s/ John Everett
JOHN EVERETT
Deputy Attorney General
600 West Broadway, Suite 1800
San Diego, CA 92186

Counsel for Plaintiffs the United States of America and Department of Toxic Substances Control
have authorized Defendant Sterling Centrecorp, Inc. to file this Stipulation on behalf of these
Parties. Sterling Centrecorp, Inc. will retain documents evidencing this authorization.

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ORDER

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In accordance with the foregoing stipulation, and good cause appearing, IT IS SO
ORDERED.

Dated: February 7, 2017

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Stipulation and Order Granting Additional Discovery Relating to Recovery of Enforcement Costs
Case No. 2:08-cv-02556-MCE-CKD