United States of America v. Sierra Pacific Industries et al

Filing 291

ORDER as modified signed by Magistrate Judge Edmund F. Brennan on 08/24/11 ORDERING that the U.S.'s 248 Motion to Compel is GRANTED as detailed in the order; Sierra Pacific Industries' 247 Motion to Compel is DENIED w/o prejudice based on a failure to meet and confer. (Benson, A.)

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IN THE UNITED STATES DISTRICT COURT

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FOR THE EASTERN DISTRICT OF CALIFORNIA

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UNITED STATES OF AMERICA,

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CASE NO. 2:09-cv-02445-KJM-EFB

Plaintiff,

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v.

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ORDER GRANTING THE UNITED
STATES' MOTION TO COMPEL AND
DENYING SIERRA PACIFIC
INDUSTRIES MOTION TO COMPEL

SIERRA PACIFIC INDUSTRIES, et al.,

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Defendants.
/

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AND RELATED CROSS-ACTIONS.
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This matter came before the Court on August 10, 2011, on dual motions to compel discovery

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responses filed by the United States and Sierra Pacific Industries. The parties submitted Stipulations

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for Partial Resolution on some of the disputes, which have been will be entered separately. This Order

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deals only with the remaining unresolved issues.

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After consideration of the motions, the joint statements regarding the discovery disputes, the

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declarations and exhibits submitted by all parties, and oral argument, the Court ruled from the bench

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orders as follows:

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The Court hereby grantsed the United States' motion to compel as follows:

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1.

Sierra Pacific Industries was ordered to produce will produce non-privileged documents

Order on US and SPI Motions to Compel

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responsive to the United States' requests for production ## 235 through 240, regarding damages Sierra

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Pacific sustained in the Fred's fire. To the extent Sierra Pacific claims that documents are protected by

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the work product doctrine, it was ordered to shall identify those documents on a privilege log and file

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that log on Wednesday, August 10, 2011. Upon receipt of that log, the Court will determine whether

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the asserted protections exist and, if so, whether they have been waived. Sierra Pacific has complied

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and filed the required privilege log. Upon further consideration and review of the privilege log, the

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court finds that the privileges were not waived. The United States representsed that it is not seeking

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attorney-client communications between Sierra Pacific and Downey Brand and those documents need

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not be logged or produced. After the hearing, the parties subsequently agreed that communications

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involving Downey Brand and its consultants would be logged categorically, and that Sierra Pacific

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would provide the United States with a supplemental privilege log that identifies these categories of

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communications and provides an estimate of the volume of documents fitting within these categories.

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2.

In response to requests for production ## 137 and 491, Sierra Pacific Industries willas

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ordered to make John Forno's personnel file and mill forester application available for inspection at the

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law offices of Downey Brand LLP at (or before) 8:30 a.m. on Friday, August 12, 2011. The United

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States was to will identify what portions of the file it wantsed produced and only those portions were to

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will be marked confidential and produced subject to the stipulated protective order. (Docket Entry

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#101). The United States has represented that it only seeks those documents relating to Mr. Forno's

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performance as an employee of Sierra Pacific Industries and is not seeking any financial, health, or

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otherwise private information, relating to Mr. Forno.

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3.

On or before Friday, August 12, 2011, Sierra Pacific Industries was to will provide

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supplemental responses to the United States' requests ## 77 and 443 regarding the methodologies and

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calculation of damages it has sustained from any other fires occurring on Sierra Pacific owned or

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managed land in the last ten years and where Sierra Pacific Industries has made a claim, filed a lawsuit,

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calculated damages, or otherwise sought to collect monies as a result thereof. Sierra Pacific

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representsed that it will make all reasonable efforts to produce responsive documents as soon as

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reasonably possible. Sierra Pacific was to will make rolling productions as responsive documents are

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reviewed and processed. Sierra Pacific was to will promptly provide the United States a privilege log

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for any documents being withheld on the grounds of work product or privilege.
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On or before Friday, August 12, 2011, Sierra Pacific Industries was to will provide a

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supplemental response to the United States' request # 441, regarding fires occurring in the last ten years

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on Sierra Pacific owned or managed land where the fire was determined, believed, suspected, or

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alleged to have been caused by metal parts on equipment striking rocks. To the extent responsive

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documents exist, Sierra Pacific Industries was to will make all reasonable efforts to produce them to

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the United States prior to Friday, August 12, 2011.

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The Court hereby denieds Sierra Pacific Industries' Motion to Compel against the United States
without prejudice based on a failure to meet and confer.

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Those rulings are hereby confirmed with this written order.

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IT IS SO ORDERED.

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Date: August 24, 2011

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Order on US and SPI Motions to Compel

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