150 Spear Street Associates L.P. v. VWR International, LLC et al

Filing 67

ORDER by Judge Maria-Elena James granting in part and denying in part 54 Motion to Compel. (mejlc3, COURT STAFF) (Filed on 3/21/2018)

1
2
3
4

UNITED STATES DISTRICT COURT

5

NORTHERN DISTRICT OF CALIFORNIA

6
7

150 SPEAR STREET ASSOCIATES L.P.,

Case No. 17-cv-03246-JST (MEJ)

Plaintiff,
8

DISCOVERY ORDER

v.

Re: Dkt. No. 54

9
10

VWR INTERNATIONAL, LLC, et al.,
Defendants.

United States District Court
Northern District of California

11
12
INTRODUCTION

13

Pending before the Court is Plaintiff 150 Spear Street Associates L.P.’s motion to compel

14
15

further discovery responses from Defendants VWR International, LLC and Univar USA Inc.

16

Mot., Dkt. No. 54. After the motion was fully briefed, the Court continued the hearing on the

17

motion and offered the parties guidance on the relevant issues and ordered them to file a joint

18

statement after they further considered their positions. See Opp’n, Dkt. No. 57; Reply, Dkt. No.

19

60; Discovery Order, Dkt. No. 62. The parties submitted their Joint Letter. Joint Letter Br., Dkt.

20

No. 65.

21

The Court finds this matter suitable for disposition without oral argument. See Fed. R.

22

Civ. P. 78(b); Civ. L.R. 7-1(b). Having considered the parties’ positions, the relevant legal

23

authority, and the record in this case, the Court issues the following order.

24
25

BACKGROUND
Plaintiff is the former owner of a 15-acre parcel of land located at 3745 and 3775 Bayshore

26

Boulevard in Brisbane, California (the Property), which it leased to Defendants for decades. See

27

Mot. at 1, 3-6; Warden Decl., Ex. A (Lease), Dkt. No. 54-2. Plaintiff alleges that Defendants

28

broke the terms of the Lease by using the Property for un-approved uses, contaminating the land

1

with hazardous materials, failing to immediately notify Plaintiff of the contamination, and failing

2

to remediate the contamination. Id. As a result of Defendants’ breaches, Plaintiff alleges it was

3

forced to sell the Property at a steep discount. Id. Defendants dispute these allegations. See

4

Opp’n.

5

The parties also dispute the contents of two documents: a 2010 Consent Order entered into

6

by the San Mateo County Certified Unified Program Agency and VWR International, Inc.

7

(Warden Decl., Ex. B (Consent Order)), and Defendants’ 2014 Request for Agency Oversight of a

8

Brownfield Site (id., Ex. C (Brownfields Appl.)). Plaintiff contends these documents constitute

9

admissions by Defendants that they have contaminated the Property; Defendants dispute this
characterization. According to Defendants, the documents pertain to the handling and/or

11
United States District Court
Northern District of California

10

contamination of hazardous wastes at 3745 and/or 3775 Bayshore Boulevard, although neither

12

document constitutes a finding or admission by Defendants that Defendants caused any

13

contamination of the property. The Consent Order lists numerous violations of California Code of

14

Regulations sections, none of which pertains to actual contamination. Consent Order ¶ 3. The

15

Brownfields Application represents that certain rooms at 3745 Bayshore Boulevard “presumably

16

housed hazardous chemicals during prior business operations . . . but no historical records of those

17

operations have been found” and that “[a]ll hazardous materials from the more recent VWR

18

operation were removed in January 2013”; a former tank farm installed at 3775 Bayshore

19

Boulevard in the early 1960s stored bulk chemicals in above-ground tanks but was removed in

20

1980, but the list of chemicals was not available; current tenant Cal-Rite utilizes and stores

21

chemicals for vehicle repair and maintenance at 3775 Bayshore Boulevard; current tenant Kam

22

Lee Yuen does not appear to use hazardous substances; soil and groundwater data collected from

23

the property indicates that releases of hazardous substances may have occurred from the above-

24

ground tanks and/or piping formerly located at 3775 Bayshore, including “chlorinated ethenes,

25

chlorinated ethanes, and petroleum hydrocarbons”; a floor drain at 3745 Bayshore has corroded

26

“and may have allowed releases of chemicals to soil and groundwater beneath the building” –

27

petroleum hydrocarbons, metals, and low concentrations of chlorinated solvents have been

28

reported in soil samples collected beneath this area.” Brownfields Appl. at 3 (emphases added).
2

When the parties were unable to resolve certain discovery disputes, the Presiding Judge

1
2

referred the matter to the undersigned. After further efforts to meet and confer regarding their

3

discovery disputes, the parties were able to narrow the issues to be presented to this Court. The

4

remaining disputes concern: (1) requests for admission (RFA) 4-9, 12-19, 24-25, 27, 29, 31-38,

5

and 50-60; (2) interrogatories 2-25; and (3) Plaintiff’s request to propound 46 additional

6

interrogatories. The parties also raise for the first time in their Joint Letter a dispute concerning

7

requests for production of documents.
DISCUSSION

8
9

A.

Requests for Admission
VWR International’s responses to Plaintiff’s RFAs are attached as Exhibit E to the

11
United States District Court
Northern District of California

10

Declaration of Philip Warden, Dkt. No. 54-6; Univar USA Inc.’s responses are attached as Exhibit

12

H to the same document, Dkt. No. 54-9.

13

1.

RFAs 4-6

14

These RFAs ask Defendants to admit they caused releases of “hazardous substances” (as

15

defined in the Lease) into the soil, groundwater, or air in or around the Property. Defendants

16

object to each of these on numerous grounds, and respond that they lack sufficient knowledge to

17

admit or deny the RFAs, and on that basis, deny them. At issue in the Motion are their objections

18

that the term “hazardous substances” is incorporated by reference into the RFAs; the definition of

19

the term in the Lease is 54 lines of text, rendering the RFAs compound and complex; and the

20

RFAs call for legal conclusions. See Opp’n at 6-8.

21

As the undersigned previously noted, Defendants’ current responses are sufficient given

22

the way in which these RFAs are currently phrased. Discovery Order ¶ 1. The undersigned

23

indicated it was inclined to allow Plaintiff to propound new RFAs that were reframed with more

24

specificity to refer to each of the chemicals listed on the appendix to the Lease or in the

25

Brownfields Application. Id. The undersigned nonetheless encouraged the parties to reach a less

26

burdensome solution on their own. Id. The parties indicate they discussed the possibility of

27

entering into a stipulation, but have not been able to agree to one. Joint Letter at 2-3.

28

If the parties have not entered into a stipulation resolving their dispute with respect to
3

1

RFAs 4-6 by March 30, 2018, Plaintiff may propound as many versions of RFAs 4-6 as is

2

necessary to cover each of the chemicals listed on the appendix to the Lease. Defendants shall

3

respond to those RFAs within 15 days of receiving them.

4

2

RFAs 13-18

5

These RFAs ask Defendants to admit that Parcel A, Parcel B, and the “neighboring

6

properties” (all as defined by the Lease) are covered by the terms of the Lease. Defendants object

7

and argue that RFAs 13-16 demand Defendants admit Plaintiff’s interpretation of the Lease with

8

respect to the Property, and that they dispute Plaintiff’s interpretation; as such, they impermissibly

9

call for legal conclusions. Opp’n at 9. Furthermore, Defendants argue these RFAs are ambiguous
with respect to “covered by the terms of the Lease” and “neighboring properties.” They also

11
United States District Court
Northern District of California

10

object to RFAs 17-18, which asks Defendants to admit the Lease “requires” them to “comply with

12

applicable environmental laws” and “act in a manner that does not expose the Property to the risk

13

of contamination or damage due to Hazardous materials.” Opp’n at 10. Defendants object that

14

these RFAs call for conclusions of law; are ambiguous, compound, and overbroad; and could not

15

be answered without explanation by Defendants. Id. at 10-11.

16

The undersigned previously indicated Defendants’ objections to these RFAs were not well-

17

taken. Discovery Order ¶ 2. It appears Defendants agree to provide supplemental responses, but

18

disagree about the timing for providing such responses. Joint Letter at 3. Defendants shall

19

provide amended responses to RFAs 13-18 by April 4, 2018.

20

3.

RFA 29

21

This RFA asks Defendants to admit they have not provided documents to Plaintiff

22

demonstrating that they (Defendants) complied with the law when storing and transporting

23

hazardous substances (as defined in the lease). Defendants argue this would require them to admit

24

the absence of proof they complied with the law, and thus to admit they violated the law; again,

25

they contend this calls for conclusions of law. Opp’n at 11.

26

The undersigned previously indicated Defendants’ objections to this RFA was not well-

27

taken. Discovery Order ¶ 2. It appears Defendants agree to provide supplemental responses, but

28

disagree about the timing for providing such responses. Joint Letter at 3. Defendants shall
4

1

provide amended responses to RFA 29 by April 4, 2018.

2

4.

RFAs 31-32

3

These RFAs ask Defendants to admit the Consent Order accurately lists legal violations for

4

which Defendants are responsible, and that Defendants are responsible for the “unplanned sudden

5

or non-sudden release of hazardous waste to air, soil or surface water which could threaten human

6

health or the environment.” Defendants argue the RFAs concern issues in dispute in this case, and

7

thus are impermissible, and also call for legal conclusions. Id. at 12. Finally, they argue these

8

RFAs are incapable of being admitted or denied without explanation because they are compound

9

and ambiguous (e.g., “legal violations” and “responsible”).

10

The undersigned previously indicated Defendants’ objections to this RFA was not well-

United States District Court
Northern District of California

11

taken. Discovery Order ¶ 2. It appears Defendants agree to provide supplemental responses, but

12

disagree about the timing for providing such responses. Joint Letter at 3. Defendants shall

13

provide amended responses to RFAs 31-32 by April 4, 2018.

14

5.

15

These RFAs ask Defendants to admit they have caused certain chemical compounds to be

16

present on the property. Defendants responded that they lacked sufficient knowledge to admit or

17

deny these RFAs. VRW objects and argues that “caused to be present” is vague and ambiguous,

18

and overbroad as to time; Univar admitted that during the time of its operations, chemicals were

19

stored on the Property, but that it has not identified a list of such chemicals.

20

RFAs 33-38

The undersigned previously indicated Defendants’ responses to RFAs 33-38 appeared

21

complete, but that Defendants had an ongoing duty to supplement them based on their continued

22

investigation. Discovery Order ¶ 3. Plaintiff’s Motion to Compel further responses to these RFAs

23

is denied.

24

6.

25

These RFAs ask Defendants to admit they entered into a settlement agreement with a third

RFAs 50-58

26

party, Prologis; that the agreement involved damages caused by hazardous substances present on

27

the Property; that it required Defendants to pay money to Prologis “based on the Lease”, as well as

28

further details regarding the Prologis settlement. Defendants object the RFAs seek irrelevant
5

1

information, as Prologis is not a party to this lawsuit, and any admissions of liability in the

2

settlement agreement could not be admitted into evidence under FRE 408. Opp’n at 13-14. They

3

also contend revealing details about the settlement could violate Prologis’ privacy rights.
The undersigned previously indicated the non-confidential Prologis settlement appeared

4
5

relevant and that Federal Rule of Evidence 408 does not govern discoverability of information

6

contained in the settlement. Discovery Order ¶ 4. It appears Defendants agree to provide

7

supplemental responses, but disagree about the timing for providing such responses. Joint Letter

8

at 3. Defendants shall provide amended responses to RFAs 50-58 by April 4, 2018.

9

B.

10

Interrogatories
VWR’s responses to Plaintiff’s Interrogatories are attached as Exhibit K to the Warden

United States District Court
Northern District of California

11

Declaration (Dkt. No. 54-12); Univar’s responses are attached as Exhibit N to the same document,

12

Dkt. No. 54-15.

13

Interrogatories 2-25 ask Defendants to state facts concerning “any incident in which a

14

Hazardous Substance was unintentionally released into . . . or around the Property”, including

15

persons with knowledge of such incidents, and communications and documents relating to such

16

incidents. Defendants object to these interrogatories on numerous grounds, but in their

17

Opposition, contend they answered them sufficiently by responding they were not aware of any

18

“incidents” in which hazardous substances were released on or around the Property. Opp’n at 15.

19

The parties now argue over the meaning of the term “incident”: Defendants argue this must refer

20

to a specific event in which contaminants were released, Plaintiff argues this construction is

21

artificially narrow.

22

In its prior Order, “[g]iven the parties’ dispute over the definition of ‘the incident’ as used

23

in Interrogatories 2-25, the Court [was] inclined to allow Plaintiff to propound new Interrogatories

24

that simply omit this phrase and, if necessary, to propound new interrogatories for each of the

25

compounds listed on the Lease appendix or in the Brownfields Application. Once again, the Court

26

encourage[d] the parties to reach a less burdensome solution on their own.” Discovery Order ¶ 5.

27

If the parties have not entered into a stipulation resolving their dispute with respect to

28

Interrogatories 2-25 by March 30, 2018, Plaintiff may propound as many versions of these
6

1

interrogatories as is necessary to cover each of the chemicals listed on the appendix to the Lease.

2

Defendants shall respond to those interrogatories within 15 days of receiving them.

3

C.

Additional Discovery

4

1.

Additional Interrogatories

5

Plaintiff served 46 interrogatories beyond the Rule 33(a)(1)’s presumptive limit of 25.

6

Plaintiff did not seek to reach an agreement with Defendants regarding additional discovery and

7

did not seek leave of Court to propound the additional interrogatories before doing so. Plaintiff

8

instead moves to compel, after the fact, Defendants’ responses to the additional interrogatories.

9

Defendants object to the additional discovery, arguing it would not be proportional to the needs of

10

the case, and would be inefficient and unduly burdensome.

United States District Court
Northern District of California

11

Discovery beyond the presumptive limits may be appropriate, but until the parties have

12

responded to the initial sets of discovery addressed by this Motion, the Court cannot determine

13

whether additional discovery is proportional to the needs of the case. See also Discovery Order

14

¶ 6.

15

2.

Requests for Production of Documents

16

Defendant VWR has agreed to supplement its responses to requests for production of

17

documents (RFP) 2, 4-9, 10-12, 17, and 28; it also has agreed to supplement its production if it is

18

able to locate additional documents. Joint Letter at 3. The parties disagree as to the deadline for

19

doing so. Id. VWR shall supplement its responses by April 4, 2018. Defendant Univar declines

20

to supplement its responses. Id. All parties also indicate they have reached an impasse regarding

21

RFP 1, 14, 22-24, 29, and 32. Id. at 4-5. Plaintiff seeks leave to file a motion to compel further

22

responses and/or production. Id. at 3-6.

23

Plaintiff may file a motion to compel further responses to RFP at its convenience; the

24

parties shall file the regular briefing schedule mandated by Local Rule 7-3. The Court will

25

schedule a hearing if it deems one is necessary.

26
27
28
7

CONCLUSION

1
2
3
4

For the reasons stated above, the undersigned grants in part and denies in part Plaintiff’s
motion to compel.
IT IS SO ORDERED.

5
6
7
8

Dated: March 21, 2018
______________________________________
MARIA-ELENA JAMES
United States Magistrate Judge

9
10

United States District Court
Northern District of California

11
12
13
14
15
16
17
18
19
20
21
22
23
24
25
26
27
28
8