Global Comminity Monitor, et al v. Mammoth Pacific, LP et al

Filing 46

STIPULATION and ORDER re 38 Motion for Protective Order signed by Magistrate Judge Kendall J. Newman on 9/16/2015 ORDERING discovery STAYED until Judge England issues a decision of Ormat's Dispositive Motion. (Zignago, K.)

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HOLLAND & HART LLP

222 SO. MAIN STREET, SUITE 2200
SALT LAKE CITY, UTAH 84101

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MATTHEW B. HIPPLER (Cal. Bar No. 212036)
HOLLAND & HART LLP
5441 Kietzke Lane, Second Floor
Reno, NV 89511
Tel: [phone]
Fax: [phone]
[e-mail]
STEVEN G. JONES (Admitted Pro Hac Vice)
EMILY C. SCHILLING (Admitted Pro Hac Vice)
HOLLAND & HART LLP
222 So. Main Street, Suite 2200
Salt Lake City, UT 84101
Tel: [phone]
Fax: [phone]
[e-mail]
[e-mail]
Attorneys for Defendants

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UNITED STATES DISTRICT COURT

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FOR THE EASTERN DISTRICT OF CALIFORNIA

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GLOBAL COMMUNITY MONITOR, a
California nonprofit corporation;
LABORERS’ INTERNATIONAL
UNION OF NORTH AMERICA LOCAL
UNION NO. 783, an organized labor
union; RANDAL SIPES, JR., an
individual; RUSSEL COVINGTON, an
individual;

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Plaintiffs,
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v.
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MAMMOTH PACIFIC, L.P., a California
Limited Partnership; ORMAT NEVADA,
INC., a Delaware Corporation; ORMAT
TECHNOLOGIES, INC. a Delaware
Corporation; and DOES I-X, inclusive,
Defendants.

Case No. 2:14-cv-01612-MCE-KJN
STIPULATION AND ORDER ON
DEFENDANTS’ MOTION FOR A
PROTECTIVE ORDER

Honorable Kendall J. Newman

RECITALS

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1.

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On August 20, 2015, Defendants Mammoth Pacific, L.P., Ormat Nevada, Inc. and

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Ormat Technologies, Inc. (collectively “Ormat”) filed a motion (Dkt No. 38) seeking entry of a

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protective order staying discovery in this matter (“Motion for Stay”). Ormat’s Motion for Stay

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requested a stay of all discovery and the service of initial disclosures under Fed. R. Civ. P. 26(a)(1)

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pending the Court’s disposition of Ormat’s Motion to Dismiss or, In the Alternative, for Summary

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Judgment (“Ormat’s Dispositive Motion”) (Dkt. No. 34). Ormat’s Dispositive Motion was noted

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before Judge Morrison C. England, Jr. on October 1, 2015.
2.

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Ormat’s Motion for Stay pertained to Plaintiffs’ First Requests for Production of

HOLLAND & HART LLP

Documents and First Request for Entry Onto Land, both of which were served on Ormat on May 22,

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222 SO. MAIN STREET, SUITE 2200
SALT LAKE CITY, UTAH 84101

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2015. Copies of Plaintiffs First Request for Production of Documents and First Request for Entry Onto

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Land are attached to this Stipulation and Order as Exhibits A and B, respectively. Ormat served its

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Objections and Responses to GCM’s First Set of Requests for Production of Documents on June 24,

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2015.

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3.

Pursuant to Local Rule 251(c), the Parties filed a Statement Regarding Discovery

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Disagreement (Dkt. No. 42) (the “Joint Statement”) on September 3, 2015. In their Joint Statement,

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both Ormat and Plaintiffs Global Community Monitor, Laborer’s International Union of North America

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No. 783, Randal Sipes, Jr. and Russel Covington (collectively “GCM”) set out their positions with

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respect to Ormat’s Motion for Stay.

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4.

On September 10, 2015, the Hon. Kendall J. Newman held a hearing on Ormat’s Motion

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for Stay. Steven G. Jones appeared on behalf of Ormat and Richard Drury appeared on behalf of GCM,

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accompanied by Meredith Wilensky. Following the hearing, counsel for Ormat and GCM negotiated

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the Stipulation outlined below and jointly request that the Court enter the subjoined Order

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implementing the terms of that Stipulation.

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STIPULATION AND ORDER RE: DEFENDANTS’ MOTION
FOR PROTECTIVE ORDER - 1

STIPULATION

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The Parties, by and through their respective counsel of record, stipulate as follows:

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Plaintiffs’ First Requests for Production of Documents Nos. 1-12

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1.

Plaintiffs’ Requests for Production of Documents (“RFP”) Nos. 1-12 seek production of

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all permits and permit applications for any Authority to Construct (“ATC”) permits and any Permits to

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Operate (“PTO”) submitted by Ormat to the Great Basin Air Pollution Control District (“District”) for

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Ormat’s MP-I, MP-II and PLES-I power plants.

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2.

Ormat has already placed the following permits into the record in connection with

motions filed by Ormat in September 2014:

HOLLAND & HART LLP

PTO 325 (MP-I West; Dec. 13, 1987);

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222 SO. MAIN STREET, SUITE 2200
SALT LAKE CITY, UTAH 84101

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PTO 328 (MP-I East; Dec. 13, 1987);

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PTO 583 (MP-II; June 28, 1991);

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PTO 575 (PLES-I; June 28, 1991);

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PTO 601 (MP-I West; Oct. 2, 1990);

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PTO 601-03-09 (MP-I East; Feb. 8, 2010);

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ATC 601-04-13 (MP-I West; May 1, 2013);

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PTO 602 (MP-I East; Oct. 2, 1990);

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PTO 602-03-09 (MP-I West; Feb. 8, 2010);

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ATC 602-04-13 (MP-I East; May 1, 2013);

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ATC 329 (MP-II; July 26, 1988);

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ATC 583 (MP-II; July 26, 1988);

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PTO 583 (MP-II; June 28, 1991);

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ATC 279/575 (PLES-I; June 30, 1989);

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PTO 575 (PLES I; June 28, 1991);

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PTO 583-03-09 (MP-II; Feb. 16, 2010);

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PTO 575-03-09 (PLES-I; Feb. 16, 2010);

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ATC 575-04-13 (PLES I; March 13, 2014);

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ATC 583-04-13 (MP-II; March 13, 2014).

STIPULATION AND ORDER RE: DEFENDANTS’ MOTION
FOR PROTECTIVE ORDER - 2

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These permits are responsive to GCM’s Requests for Production Nos. 1-12. Ormat’s counsel

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agrees to consult with Ormat to determine if there are any additional responsive permits and, if so, to

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produce any additional permits to GCM on or before September 30, 2015.

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Requests for Production of Documents Nos. 13 - 15.

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3.

GCM’s RFP Nos. 13-15 seek documents referencing the ownership interests in the MP-

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I, MP-II and PLES-I plants. In its response to those RFPs, Ormat has stipulated that MP-I, MP-II and

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PLES-I are jointly owned by Defendants.

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Requests for Production Nos. 28 – 30.

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4.

GCM’s RFP Nos. 28-30 seek production of maps of the geothermal material and

HOLLAND & HART LLP

production wells, control rooms and pipelines for MP-I, MP-II and PLES-I. Ormat’s counsel agrees to

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222 SO. MAIN STREET, SUITE 2200
SALT LAKE CITY, UTAH 84101

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consult with Ormat and to produce a current map or maps of all three facilities, showing the location of

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the facilities relative to each other, all geothermal wells, the location of the control room and pipelines

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on or before September 30, 2015.

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All Other Requests for Production Propounded by GCM

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5.

With the exception of the RFPs specifically identified above, the Parties stipulate that

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Ormat’s production of any documents responsive to GCM’s Requests for Production is stayed until

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Judge England issues a decision on Ormat’s Dispositive Motion.

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6.

In the event that Judge England denies Ormat’s Dispositive Motion, Ormat’s production

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of documents responsive to GCM’s RFPs or its agreement to make responsive documents available for

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inspection and copying by GCM will be due 60 days from the date of entry of Judge England’s Order

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denying Ormat’s Dispositive Motion.

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Initial Disclosures Under Fed. R. Civ. P. 26(a)(1)

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7.

The Parties stipulate that, in the event that Judge England denies Ormat’s Dispositive

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Motion, the Parties’ initial disclosures under Fed. R. Civ. Pro. 26(a)(1) will be due 60 days from the

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date of entry of Judge England’s Order denying Ormat’s Dispositive Motion.

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GCM’s Request for Entry Onto Land

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8.

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Ormat stipulates that, in the event that Judge England denies Ormat’s Dispositive

Motion, counsel for Ormat will work with counsel for GCM to make arrangements for a site visit to be

STIPULATION AND ORDER RE: DEFENDANTS’ MOTION
FOR PROTECTIVE ORDER - 3

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conducted at a mutually convenient time for all Parties, but in no event later than 90 days from the date

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of entry of the Order denying Ormat’s Dispositive Motion.

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So Stipulated this 15th day of September, 2015:

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HOLLAND & HART LLP

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s/ Steven G. Jones
MATTHEW HIPPLER
STEVEN G. JONES (Admitted Pro Hac Vice)
EMILY C. SCHILLING (Admitted Pro Hac Vice)

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Attorneys for Defendants

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HOLLAND & HART LLP

222 SO. MAIN STREET, SUITE 2200
SALT LAKE CITY, UTAH 84101

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LOZEAU | DRURY

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s/ Richard Drury
RICHARD DRURY
DOUGLAS CHERMAK

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Attorneys for Plaintiffs

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ORDER

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Based on the parties’ Stipulation as outlined above, the Court enters the following Order:

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1.

All permits placed into the record as attachments to the September 8, 2014 Declaration

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of Steven G. Jones (Dkt. 15) (“First Jones Dec.”) are deemed to be authenticated by Ormat as true and

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correct copies of those permits.
2.

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Ormat’s counsel is directed to consult with Ormat and ascertain whether there are any

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additional permits pertaining to Ormat’s facilities which were not included as attachments to the First

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Jones Dec. Any additional permits identified are to be produced to GCM on or before September 30,

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2015.

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3.

Defendants’ joint ownership of the MP-I, MP-II and PLES-I facilities is deemed to be a

stipulated fact for the remainder of this matter.
4.

Ormat’s counsel is directed to consult with Ormat and identify a current map or maps of

the MP-I, MP-II and PLES-I facilities, showing the location of the facilities relative to each other, the

STIPULATION AND ORDER RE: DEFENDANTS’ MOTION
FOR PROTECTIVE ORDER - 4

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location of the geothermal wells, the control room and pipelines. Production of this document or

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documents to GCM is to take place on or before September 30, 2015.

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Initial Disclosures under Fed. R. Civ. P. 26(a)(1), Ormat’s production of any other

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documents responsive to Plaintiffs’ First Set of Requests for Production of Documents and Ormat’s

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response to Plaintiffs’ First Request for Entry Onto Land are STAYED until Judge England issues a

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decision on Ormat’s Dispositive Motion.

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6.

In the event Judge England denies Ormat’s Dispositive Motion:
a.

The Parties’ Initial Disclosures under Fed. R. Civ. Pro. 26(a)(1) will be due 60

days from the date of entry of Judge England’s Order denying Ormat’s Dispositive Motion;
b.

Ormat’s production of any additional documents responsive to Plaintiffs’ First

HOLLAND & HART LLP

222 SO. MAIN STREET, SUITE 2200
SALT LAKE CITY, UTAH 84101

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Requests for Production of Documents will be due 60 days from the date of entry of Judge England’s

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Order denying Ormat’s Dispositive Motion; and

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c.

The Parties will consult with each other and make arrangements for a site visit by

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GCM to Ormat’s MP-I, MP-II and PLES-I facilities at a mutually convenient time, but in no event later

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than 90 days from the date of entry of Judge England’s Order denying Ormat’s Dispositive Motion.

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IT IS SO ORDERED.

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Dated: September 16, 2015

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STIPULATION AND ORDER RE: DEFENDANTS’ MOTION
FOR PROTECTIVE ORDER - 5