Arkansas River Power Authority v. Babcock &Wilcox Power Generation Group, Inc.

Filing 94

ORDER granting in part and denying in part 35 Motion to Compel. Defendant shall supplement its responses to Interrogatories, to the extent it is required to do so, no later than 5/19/15. By Magistrate Judge Nina Y. Wang on 5/5/15. (nywlc1)

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLORADO
Civil Action No. 14-cv-00638-CMA-NYW
ARKANSAS RIVER POWER AUTHORITY,
Plaintiff,
v.
BABCOCK & WILCOX POWER GENERATION GROUP, INC.,
Defendant.

ORDER ON PLAINTIFF’S MOTION TO COMPEL
Magistrate Judge Nina Y. Wang
This matter is before the court on Plaintiff Arkansas River Power Authority’s
(“ARPA”) Motion to Compel Further Responses to Discovery (“Motion to Compel”) [#35,
filed October 21, 2014]. This matter was referred to this Magistrate Judge pursuant to
the Order Referring Case dated May 13, 2014 [#19] and the memorandum dated
October 22, 2014 [#37]. This court has carefully considered the Motion and related
briefing, the entire case file, the arguments offered by the Parties during the March 18,
2015 Motions Hearing, as well as applicable case law. For the following reasons, the
Motion to Compel is GRANTED IN PART and DENIED IN PART.
BACKGROUND AND PROCEDURAL HISTORY
In its First Amended Complaint, Plaintiff ARPA asserts that Defendant Babcock &
Wilcox Power Generation Group, Inc. (“B&W”) is liable for breach of contract,
negligence, misrepresentation, and fraud arising out of an agreement whereby ARPA

purchased a coal-fired steam boiler supplied by B&W at the cost of approximately $20.5
million. [#80].1 In April 2005, ARPA entered into a contract with B&W for a coal-fired
steam boiler to use in converting a natural-gas electric generation facility into one firing
coal, otherwise known as the Lamar Repowering Project (the “LRP”) in Lamar,
Colorado. ARPA alleges the steam boiler has never met the performance standards
delineated in the contract, and, consequently, ARPA is unable to operate the LRP and
has been deprived of the benefit of its $170 million investment in the project. ARPA
further alleges damages resulting from expenditures to cure the steam boiler’s
deficiencies, fines and penalties levied by state and federal regulators for emissions
violations, and costs of ancillary litigation brought by environmental groups challenging
the steam boiler’s failure to meet emissions requirements.
Originally, the Scheduling Order contemplated an October 1, 2014 deadline for
the joinder of additional parties and amendment of pleadings, the completion of
discovery by February 16, 2015, and the filing of dispositive motions by March 16, 2015.
[#30, #31]. However, after discovery commenced, the Parties encountered multiple
disputes, and the court has vacated the discovery, dispositive motion, pretrial order
deadline, and Final Pretrial Conference, to be reset once pending discovery motions are
resolved. [#77 and #78].

1

ARPA is a political subdivision “formed in 1979 by the Colorado municipalities of Las
Junta, Lamar, Las Animas, Trinidad and Walsenburg and the New Mexico city of Raton
for the purpose of operating a wholesale electric utility to supply the electricity
requirements of those communities.” [#80 at ¶ 7].
2

On October 21, 2014, ARPA filed the pending Motion to Compel, taking issue
with B&W’s Rule 26(a)(1) initial disclosures, responses to seven interrogatories,
organization of documents produced pursuant to ARPA’s requests, and documents
withheld on a confidential basis. [#35].

B&W filed a Response to ARPA’s Motion to

Compel on November 14, 2015 [#46]. B&W filed a Reply in support of its Motion to
Compel on December 8, 2014. [#56]. With leave of court, B&W filed a Surreply to the
Motion to Compel on March 13, 2015. [#76].
On March 18, 2015, this court held a Motions Hearing at which the Parties
represented they had resolved their dispute regarding B&W’s initial disclosures and
ARPA clarified it sought only to limit the topics identified in the Rule 30(b)(6) Notice,
rather than prevent B&W from deposing a corporate representative altogether. During
the hearing, it appeared that the Parties had reached agreement with respect to a
number of topics that were subject to the pending discovery motions.
Accordingly, the court ordered the Parties to meet and confer regarding the Rule
30(b)(6) Notice to limit the items at issue and to file a joint status report on or before
March 30, 2015, identifying what issues had been resolved and what issues, if any,
remained outstanding. [See #77 and #79]. Following an extension of time, the Parties
filed their Joint Status Report on April 13, 2015, stating that “certain issues remain to be
resolved.” [#86]. The status report did not indicate that the Parties had reached any
further agreements with respect to written discovery.

[Id.]

This court, therefore,

considers the issues related to written discovery ripe for disposition.

3

In addition, while ARPA requested “a further hearing before the Court to address
all remaining issues,” this court has reviewed the Parties’ filings and the applicable case
law, evaluated the duration of time during which these discovery matters have been
pending, and has determined that further argument regarding ARPA’s Motion to Compel
[#35] would not materially assist the court in resolution of these issues.2
ANALYSIS
Federal Rule of Civil Procedure 26(b)(1) authorizes discovery of “any
nonprivileged matter that is relevant to any party's claim or defense--including the
existence, description, nature, custody, condition, and location of any documents or
other tangible things and the identity and location of persons who know of any
discoverable matter.”

Relevancy is broadly construed, and a request for discovery

should be considered if there is “any possibility” that the information sought may be
relevant to the claim or defense of any party. See, e.g., Sheldon v. Vermonty, 204
F.R.D. 679, 689-90 (D. Kan. 2001).

However, all discovery is subject to the

proportionality limitations imposed by Rule 26(b)(2)(C). See Fed. R. Civ. P. 26(b)(1).
Therefore, while the court may order discovery of any matter relevant to the issues
involved in the action, it “must limit the frequency or extent of discovery” under certain
circumstances. Fed. R. Civ. P. 26(b)(2)(C)(i)-(iii). It is incumbent upon the court to
consider how much discovery is reasonable in a given case in light of the claims and

2

The court notes that ARPA’s Motion to Quash [#60] is currently pending, and that
B&W has filed its own Motion to Compel [#87], which is not yet fully briefed. A hearing
on B&W’s Motion to Compel is scheduled for May 27, 2015. [#89]. Because both these
motions touch upon ARPA’s invocation of privilege, the court intends to address them
together.
4

defenses asserted, the significance of the discovery sought to the propounding party,
and the costs and burden to the producing party. See id. The Federal Rules of Civil
Procedure also permit a court to restrict or preclude discovery when justice requires in
order to protect a party or person from annoyance, embarrassment, oppression, or
undue burden or expense. See Fed. R. Civ. P. 26(c).
“When the discovery sought appears relevant, the party resisting the discovery
has the burden to establish the lack of relevancy by demonstrating that the requested
discovery (1) does not come within the scope of relevance as defined under Fed. R.
Civ. P. 26(b)(1), or (2) is of such marginal relevance that the potential harm occasioned
by discovery would outweigh the ordinary presumption in favor of broad disclosure.”
Simpson v. Univ. of Colo., 220 F.R.D. 354, 359 (D. Colo. 2004) (citations omitted). The
Advisory Committee Note to the 2000 Amendment to Rule 26(b)(1) directs courts to
involve themselves in discovery disputes to determine whether discovery is relevant to
the parties’ claims or defenses, and if not, to determine whether “good cause exists for
authorizing it so long as it is relevant to the subject matter of the action.”
ARPA served its First Set of Discovery Requests on B&W on July 3, 2014 [#3512]. After B&W provided its responses on August 22, 2014 [#35-13], ARPA
communicated to B&W its dissatisfaction with the responses to Interrogatories 5, 7, 8,
10, 12, 14, and 19, and took issue with the fact that the documents responsive to the
Requests for Production were provided “without indication of which requests these
documents relate to, or whether this is intended to be a complete response to the
requests for production of documents.”

[#35-14].

5

On September 12, 2014, B&W

responded that it would endeavor to provide a supplemental response to Interrogatory
No. 5, directed ARPA’s attention to certain documents as responsive to Interrogatory
No. 19, and stated it had no additional information to supply with respect to
Interrogatory Nos. 7, 10, 12, and 14. [#35-15].
I.

Interrogatories
At issue before the court are Interrogatories 5, 7, 8, 10, 12, 14, and 19. The

Parties appear to agree that these Interrogatories are relevant to the claims and
defenses raised by the First Amended Complaint. Nevertheless, ARPA argues that
B&W failed to provide full and complete responses to these Interrogatories, that the
responses are vague, general, and provide no meaningful detail, and B&W’s objections
are improper as generalized and boilerplate. B&W insists it has already satisfied its
discovery obligations through its original and supplemental responses.

The court

considers each of the disputed interrogatories, and the specific arguments of the
Parties, in turn.
Interrogatory No. 5:
Describe in specific factual detail how B&W determined that the boiler
described in its Bid Proposal would meet the flue gas emission guarantees
set forth in Section 8 of the Bid Proposal including all emissions modeling,
testing, and comparable facility data considered by B&W in connection
with the Bid Proposal.
B&W responded:
B&W objects to this Interrogatory on the grounds that discovery is
ongoing, and B&W does not yet know each and every fact supporting its
defenses, including without limitation each and every “Specific factual
detail” regarding the “modeling, testing and comparable facility data
considered” in connection with the Bid Proposal submitted over a decade
ago. Subject to and without waiving this objection, B&W responds as
6

follows: B&W determined that the boiler described in the Bid Proposal
would meet the flue gas emissions guarantees set forth in Section 8 of the
Bid Proposal by applying a design standard based on published and
proprietary data for prediction of gaseous emissions from a circulating
fluidized bed (“CFB”) boiler. By applying that standard, B&W developed an
emissions estimate for the Lamar Repowering Project boiler. The standard
B&W utilized provided for a bracket, or range, of fuels that included the
subbituminous coal-type to which Powder River Basin (“PRB”) coals
belong. B&W experience [sic] in firing PRB coals in pulverized-coal boilers
has shown lower NOx emission on the bituminous coal. For additional
information, and pursuant to Federal Rule of Civil Procedure 33(d), B&W
will produce non-privileged responsive documents. [#35-23].
ARPA argues that B&W fails to identify the “design standard” or the “published
and proprietary data” upon which B&W relied. [#35 at 24-25].

ARPA further argues

that B&W fails to specify the “emissions estimate” for the boiler utilizing the “bracket, or
range, of fuels” included in the estimate, and thus the response remains incomplete
even if B&W supplies the design standard. [Id. at 25].
B&W disagrees, asserting that (1) it identified and produced the design standard
to ARPA on October 22, 2014, see [#46-6], (2) ARPA has not requested other design
standards, and (3) requiring it to identify the data used to formulate its emissions
predictions standard exceeds requiring it “to make a ‘conscientious endeavor’ to
understand and answer Interrogatory No. 5.” [#46 at 9]. Furthermore, B&W asserts, it
produced a document with its predictions of NOx emissions on October 8, 2014
(Babcock00416242) [#46-1 at ¶ 11], and several weeks earlier it identified documents
responsive to this Interrogatory [#35-11 (“For Interrogatory No. 5, B&W directs ARPA’s
attention to Babcock00009667 to Babcock00009670, Babcock 00009716, and
Babcock00009723 to Babcock00009725)].

[#46 at 9].

7

At the March 18 Motions Hearing, B&W argued that no other design standards
are relevant because Interrogatory No. 5 and indeed the crux of the lawsuit concern
only whether the boiler failed to meet Federal and State emissions regulations. ARPA
responded that the design of the boiler controls whether the boiler satisfies the
emissions standards because a flaw found in any part of the design would affect the
overall emissions. B&W disagreed, stating that the emissions design is separate and
distinct from the other design standards, and protesting that ARPA had raised this issue
for the first time at the Hearing.
As an initial matter, the court notes that ARPA’s interrogatory seeks “all
emissions modeling, testing, and comparable facility data considered by B&W in
connection with the Bid Proposal,” without regard to whether it was directly considered
as part of putting together the Bid Proposal, or whether it was indirectly considered as
part of B&W’s general knowledge base. The Interrogatories as propounded do not have
time limitation set forth as part of the definitions. [#35-12 at 14]. The court interprets
this interrogatory as limited to emissions modeling, testing, and comparable facility data
considered directly by B&W in connection with the February 5, 2004 Bid Proposal, not
all modeling, testing, and comparable facility data that went into developing the
emissions prediction standard generally. Otherwise, the interrogatory would be unduly
broad and burdensome and turn the task of deciding how to respond into a guessing
game. See Cartel Asset Mgm’t V. Ocwen Financial Corp., 2010 WL 502721, *& (D.
Colo. Feb. 8, 2010) (noting that omnibus terms like “pertaining to” may cause a
discovery request to be overly broad and unduly burdensome on its face).

8

ARPA argued at the hearing that there are some design features of the boiler
that affect the emissions of the boiler, even if they are not specifically denoted
“emissions” components. Even if I take the representations of ARPA’s counsel, as
officers of the court, as true, see Selsor v. Kaiser, 81 F.3d 1492, 1501 (10th Cir. 1996)
(observing that as officers of the court, statements of attorneys to the court are virtually
made under oath), the plain language of the Interrogatory modifies “modeling, testing,
and comparable facility data” with “emissions,” so that the request is fairly read to be
seeking modeling, testing, and comparable facility data specific to emissions, not simply
information about any mechanical component which could potentially impact emissions.
Furthermore, there is no agreement between the parties regarding any additional
components that affect emissions or corresponding design standards.

Nor can the

court determine what components and corresponding design standards fall within such
a scope based on the record before it. Without a clearly articulated nexus between the
boiler component and the associated design standard and resulting emissions, the court
will not compel discovery of every single design document associated with the boiler.
Accordingly, no later than May 19, 2015, B&W is ordered to supplement its
answer to Interrogatory No. 5 with the additional responses provided to ARPA in written
or oral correspondence3 (including but not limited to responsive documents identified
pursuant to Rule 33(d) of the Federal Rules of Civil Procedure), as ARPA is entitled to
3

For example, both Parties refer to written correspondence (both formal letters and
electronic mail) that provides supplemental information responsive to pending
interrogatories, see e.g., [#35-11] and counsel for B&W also indicates that it informed
counsel for ARPA of additional responsive documents pursuant to teleconference.
[#46-1 at ¶ 12].
9

have a set of verified discovery responses, as contemplated by Rule 33(b)(3).

In

addition, the court orders B&W to identify any data used to generate the emissions
predictions specific to the design of the boiler at issue, and to specify the emissions
estimate for the boiler utilizing the bracket, or range, of fuels included in the estimate.4
To the extent that B&W is relying upon produced documents to respond to this (or any)
Interrogatory, it must identify those documents with particularity; Rule 33(d) of the
Federal Rules of Civil Procedure is not satisfied simply by general references to
produced documents. See Bayview Loan Servicing, LLC v. Boland, 259 F.R.D. 516,
518 (D. Colo. 2009).
Interrogatory No. 8:
With respect to Thomas Garabedian’s letter to Rick Rigel dated January
12, 2009, describe in specific factual detail how B&W had “become aware
of the fact that a CFB boiler very similar in design and arrangement to
ARPA is not meeting its NOx guarantee,” and describe the information
“received in the data obtained to date” indicating that there was “more
than one problem to overcome to achieve NOx guarantees on the ARPA
unit.”
B&W responded:

4

ARPA also seeks supplementation of Interrogatory No. 7 (Describe in specific factual
detail the basis for B&W’s statement that an “SNCR [selective non-catalytic reduction]
system is not required to meet the specified NOx emission level” in Section 6.12 of the
Bid Proposal. Your response should include all analysis and data considered by B&W in
connection with this statement as of the date the Bid Proposal was prepared), arguing
that because this response references the response to No. 5, it is deficient for the same
reasons as described above. ARPA further argues this response is incomplete because
B&W did not state what emission level it expected the boiler to achieve without an
SNCR. [#35 at 25]. B&W claims these arguments fail for the same reasons as stated
above with respect to its response to Interrogatory No. 5. Because the court has
ordered supplementation of Interrogatory No. 5, it assumes that ARPA’s concerns
regarding Interrogatory No. 7 will also be resolved.
10

B&W designed a CFB boiler for AG Processing, Inc. in Hastings,
Nebraska (hereinafter the “AGP project”), which boiler was similar to the
Lamar Repowering Project boiler, including without limitation in its use of
PRB coal. Preliminary tuning data received by B&W in the Fall of 2008
from the AGP project indicated the following: unusually high uncontrolled
NOx at primary air/secondary air split and excess air; unusually high fuel
reactivity resulting in reduced upgraded brown coal (“UBC”) in ash, which
in turn causes NOx to increase; unusually heavy ash resulting in its
reduced entrainment to upper furnace, and in turn leading to lower heat
transfer and higher bed temperature, increasing NOx levels. These
observations led Mr. Garabedian to write the January 12, 2009 letter to
Rick Rigel referenced in this Interrogatory. For additional information, and
pursuant to Federal Rule of Civil Procedure 33(d), B&W will produce nonprivileged responsive documents. [#35-23].
ARPA argues that B&W fails to identify the “tuning data” it received, the amount
of “unusually high uncontrolled NOx,” the “unusually high fuel reactivity” or the
“unusually heavy ash” data which led B&W to its conclusions. ARPA concedes that
counsel for B&W produced tuning data (Babcock00416219) on September 26, 2014,
which counsel stated may be responsive to this Interrogatory [#35-15], but remains
adamant that the documents identified by B&W as responsive (Babcock 0015340200153408) are insufficient and do not identify the amount of NOx, fuel reactivity, or ash
relied upon by Defendant. [#35 at 26 (citing #35-11)].
B&W claims that after receiving Plaintiff’s September 2014 letter, it supplemented
its response to this Interrogatory by “identifying specific documents responsive to [the]
request, including an internal memorandum titled ‘Discussions of Hastings NOx Data
and Impact on ARPA,’ and tuning data.” [#46 at 10 (citing #35-11, “(“For Interrogatory
No. 8, B&W directs ARPA’s attention to Babcock00153402 to Babcock00153408”)].
[See also #35-15]. B&W argues that ARPA’s dissatisfaction with the memorandum

11

“does not mitigate the document’s responsiveness and was never raised by ARPA prior
to filing its Motion.” [#46 at 10].
ARPA replies that the memorandum is an incomplete summary that does not
include the requested data, and, furthermore, it may have been “manipulated,
aggregated, or condensed in ways that obfuscate the underlying raw data.” [#56 at 8].
ARPA also argues that B&W has an affirmative duty to identify which documents are
responsive and suggesting that they “may” be relevant is insufficient.
To the extent ARPA believes that the document produced by B&W is
“manipulated, aggregated, or condensed in ways that obfuscate the underlying raw
data,” the record before the court does not lead it to such a conclusion. The court,
therefore, interprets ARPA’s request as one for the underlying data considered by B&W
in reaching the conclusions reflected in the January 12, 2009 letter. Again, the court
orders B&W to supplement its response to Interrogatory No. 8 to reflect information
provided to ARPA through correspondence. In addition, if there is data separate from
the already-produced tuning data that reflects the “amount of ‘unusually high
uncontrolled NOx,” the ‘unusually high fuel reactivity,” or the ‘unusually heavy ash’ data
which led B&W to its conclusions,” B&W is ordered to identify it and/or produce such
data pursuant to Rule 33(d) no later than May 19, 2015. Finally, because ARPA is
concerned that B&W only indicated that the identified documents “may” be responsive,
B&W is reminded that to rely on Rule 33(d), parties must identify in their answers to
interrogatories specifically which documents contain the requested information, and
once identified pursuant to Rule 33(d), ARPA is entitled to rely upon such documents as

12

an affirmative response to the pending interrogatory. See Bishelli v. State Farm Mut.
Auto Ins. Co., No. 07–cv–00385–WYD–MEH, 2008 WL 1898406, at *1 (D. Colo. Apr.
28, 2008).
Interrogatory No. 10:
Describe in specific factual detail, all studies, analyses, testing or
modeling performed by B&W to determine whether the SNCR system
proposed for the Lamar Repowering Project would bring the boiler into
compliance with the flue gas emission guarantees of the Contract.
B&W responded:
B&W objects to this Interrogatory on the grounds that it is overly broad
and unduly burdensome, particularly in its use of the term “all.” Subject to
and without waiving these objections, B&W responds as follows: The
B&W-designed CFB boiler at the AGP project, which boiler also used PRB
coal, achieved NOx emission limits of 0.08 lb/MBtu utilizing B&W’s
standard SNCR system. This successful implementation of an SNCR
system on the AGP project led B&W to believe that a similar system would
be sufficient for meeting the NOx emission limit of 0.09 lb/MBtu that was
applicable to the Lamar Repowering Project boiler. For additional
information, and pursuant to Federal Rule of Civil Procedure 33(d), B&W
directs ARPA to the documents Bates-labeled Babcock00028984Babcock00028988, produced with these written responses. [#35-23].
Interrogatory No. 12 seeks the same information, except as related to “2011
Modifications.”5 ARPA argues B&W’s responses to Interrogatory Nos. 10 and 12 are

5

Interrogatory No. 12:

Describe in specific factual detail all studies, analyses, testing or modeling
performed by B&W to determine whether the 2011 modifications to the Lamar
Repowering Project boiler would bring the boiler into compliance with flue gas
emission guarantees of the Contract.
B&W responded:
B&W objects to this Interrogatory on the grounds that it is overly broad and unduly
burdensome, particularly in its use of the term “all.” Subject to and without waiving
13

incomplete because they do not address the testing directed at the SNCR system or the
2011 Modifications proposed for the Lamar Repowering Project, and disputes that the
documents identified by B&W as responsive (Babcock 00291917-00291955) are
relevant to the inquiry. [#35 at 27 (citing #35-11)]. ARPA requests that if B&W “did not
perform any studies, analyses, testing or modeling in connection with the SNCR system
proposed for the Lamar Repowering Project,” or the 2011 Modifications, that it simply
confirm such. [#35 at 27, 28].
B&W claims its responses reflect its efforts to understand the requests and
provide a direct response by identifying specific documents in which B&W personnel
evaluate their experiences implementing modifications with the AGP project. B&W also
states that prior to the filing of this Motion, it supplemented its response to Interrogatory
No. 10 to include an internal final job report on the SNCR as applied to the LRP. The
report included a description of the “technical considerations which went into” the

these objections, B&W responds as follows: B&W’s experience with the AGP project
boiler informed its determination that the 2011 modifications to the Lamar Repowering
Project boiler would bring the boiler into compliance with the Contract’s flue gas
emission guarantees. The AGP project boiler, a CFB boiler similar to the Lamar
Repowering Project boiler, successfully achieved NOx emission limits of 0.08 lb/MBtu.
The design and performance features of the AGP project boiler that supported its ability
to achieve emissions limits of 0.08 lb/MBtu are: (a) an SNCR system that includes
nozzles in the upper furnace for injecting ammonia (with carrier steam) and nozzles in
the mid-furnace for injecting steam; (b) reduced excess air; (c) reduced primary-tosecondary air ratio; and (d) the feed of fine sand for adequate furnace heat transfer to
achieve the target bed temperature. All of these features were incorporated into the
2011 modifications to the Lamar Repowering Project boiler. For additional information,
and pursuant to Federal Rule of Civil Procedure 33(d), B&W directs ARPA to
documents Bates-labeled Babcock00028984-Babcock00028988, produced with these
written responses. [#35-23].
14

SNCR’s design. [#46 at 10 (citing #35-11, directing ARPA to Babcock00291917 to
291955)].
ARPA replies that it saw documents from B&W on November 17, 2014 referring
to kinetic modeling used for the LRP in 2011, and that this kinetic modeling was never
discussed nor described in B&W’s interrogatory responses indicating that B&W’s
responses to Nos. 10 and 12 are incomplete.
Interrogatory Nos. 10 and 12 are fairly interpreted to seek information as to
studies, analyses, testing or modeling performed by B&W specific to the LRP to
determine whether the proposed SNCR system or the 2011 Modifications would bring
the boiler into compliance with the flue gas emission guarantees of the Contract,
including but not limited to kinetic modeling. Therefore, the court again orders B&W to
formally supplement their response to Interrogatory Nos. 10 and 12 to reflect any
additional information contained in correspondence to ARPA no later than May 19,
2015. While ARPA seeks an express admission from B&W that it did not undertake any
studies, analyses, testing, or modeling specific to the LRP (either for the SNCR plan or
the 2011 Modifications), ARPA may interpret (and argue) B&W’s failure to identify any
such studies, analyses, testing or modeling works as admissions.

Beyond that,

Interrogatory Nos. 10 and 12 as written are not the appropriate vehicles for ARPA to
achieve the type of admission it currently demands.
Interrogatory No. 14:
Describe in specific factual detail all modeling, testing and analysis
performed by B&W to determine whether the 2012 modifications to the
Lamar Repowering Project would bring the boiler into compliance with the
flue gas emission guarantees of the Contract.
15

B&W responded:
B&W objects to this Interrogatory on the grounds that it is overly broad
and unduly burdensome, particularly in its use of the term “all.” Subject to
and without waiving these objections, B&W responds as follows: B&W
performed the following modeling, testing, and analysis with respect to the
2012 modifications: First, from September 2011 to November 2011,
detailed testing was performed at the Lamar Repowering Project.
Specifically, during periods of operation in this timeframe, minute-byminute data was collected through the Lamar Repowering Project plant’s
distributed control system (DCS system). Also during this time period,
B&W installed and collected emissions data from an emissions-monitoring
grid in the boiler. B&W further tested various flows, temperatures, and
pressures through independent measurements. Second, B&W’s design
engineering department analyzed the data collected from the Lamar
Repowering Project to look for trends in the many factors that lead to NOx
formation, CO burnout, and SNCR effectiveness. B&W also analyzed data
from the AGP project boiler, another B&W-designed CFB boiler using PRB
coal. A side-by-side analysis of data from the two plants was conducted to
determine differences between them. Third, B&W performed various
forms of modeling, including both heat-transfer and kinetic models. These
models were used to verify conclusions made in the data analysis phase
of the engineering. For additional information, and pursuant to Federal
Rule of Civil Procedure 33(d), B&W directs ARPA to the documents
Bates-labeled
Babcock00028989-Babcock00042533
and
Babcock00042543-Babcock00042545, produced with these written
responses. [#35-23].
ARPA argues that B&W fails to describe what data was collected, what analyses
were performed, and what conclusions were reached. [#35 at 28]. B&W contends that
it has fully answered this Interrogatory and, moreover, identified a large amount of data
and over thirty pages of charts (Bates Babcock00028989 and Babcock00029020) “with
the type of minute-by-minute data from September 2011 that is referenced on page 15
of B&W’s discovery responses.” [#46 at 11]. ARPA replies that B&W’s identification of
13,546 pages of documents fails to fulfill its obligation pursuant to Rule 33(d) to “specify

16

the records that must be reviewed in sufficient detail to enable the interrogating party to
locate and identify them as readily as the responding party could.” [#56 at 9].
As discussed above, ARPA is correct that B&W cannot satisfy its obligations
under Rule 33(d) of the Federal Rules of Civil Procedure with a wholesale dumping of
documents. See Bayview, 259 F.R.D. at 518. But B&W also cannot be forced to
prepare ARPA’s defense. Id. at 519. Without additional context of the substance of the
13,546 pages (e.g., what kind of documents; how many documents, the manner in
which the data is reflected, how the text is searchable), the court’s substantive review of
this issue is stymied and it cannot conclude that B&W’s response is “too generic” or fails
to provide “any meaningful level of specificity.” Therefore, the court will compel B&W to
supplement its response with any additional information provided to ARPA through
correspondence, and identify bates ranges for documents, from the 13,546 pages that
are associated with the three categories of testing, modeling, and analysis identified in
its existing interrogatory response: (1) detailed testing performed at the LRP between
September 2011 to November 2011; (2) data analyzed by the B&W design engineering
department; and (3) various forms of modeling, including heat transfer and kinetic,
performed by B&W, no later than May 19, 2015.
Interrogatory No. 19:
Do you contend that the 2012 modification to the boiler of the Lamar
Repowering Project proposed by B&W, if installed, would bring the boiler
into full compliance with the flue gas emission guarantees in the Contract?
If so, please describe in specific factual detail the basis for this contention,
including all facts supporting this contention.
B&W responded:

17

Yes. B&W directs ARPA to its response to Interrogatory number 14 above.
In addition, the following facts support the proposition that the 2012
modifications would ensure the Lamar Repowering Project boiler’s
compliance with the Contract’s flue gas emission guarantees: Three of the
2012 modifications will reduce the CO concentration leaving the boiler’s
lower furnace and allow reduction of excess air. This reduction in excess
air will, in turn, reduce uncontrolled NOx emissions and lighten the
workload for the SNCR system. The reduced CO concentration will also
reduce the competition for the OH-radical at the SNCR injection location.
These three 2012 modifications are: (a) Adding rear wall fuel ports allows
fuel to be more evenly distributed throughout the furnace. This reduces
the effect of a CO plume and allows the air and CO to be more effectively
mixed at the overfire air (“OFA”) location. (b) The addition of steam
injection nozzles increases mixing near the walls where the fuel feed is
introduced, in turn reducing the CO concentrations in those locations. (c)
The changes to the crusher reduce the amount of finer fuel, which fuel
devolatizes more rapidly than coarser fuel. In addition, the following two
2012 modifications will increase the SNCR’s overall effectiveness: (d) The
lowering of the SNCR nozzles, which will increase the residence time for
the NH3/NOx reaction and, in turn, the average temperature for the SNCR
reaction. (e) Removing wing-wall surface, which will increase the average
temperature for the SNCR reaction. [#35-23].
ARPA argues this response is vague and unspecific, particularly in its failure to
identify the data upon which B&W relied and by what amount the modifications would
reduce the CO concentration. [#35 at 29].
B&W responds that it initially provided approximately two pages of written
responses and identified various documents as containing additional information [#46 at
11 (citing #35-13 at 21-22, 15-16)]. Then, after receiving ARPA’s September 2014
letter, it supplemented its response by creating a Power Point presentation “specifying
various values requested in ARPA’s letter, and including various slides addressing the
interaction and interdependency of CO concentrations with other factors.” [Id. (citing
#35-15)]. B&W claims that ARPA never communicated its dissatisfaction with B&W’s
supplement and complained for the first time in the Motion that the presentation “does
18

not include the underlying data.” [#46 at 12]. B&W states its efforts satisfy Rule 33.
[Id.]
ARPA replies that these issues were relayed to B&W during their October 17,
2014 telephone call, and that without documentation demonstrating the level to which
the proposed modifications will reduce CO concentrations in the boiler ARPA cannot
comprehensively analyze the viability of those proposed modifications. and that B&W
continues to fail to provide the underlying data relied upon by B&W. [#46 at 9].
Again, the court orders B&W to supplement its response to Interrogatory No. 19,
no later than May 19, 2015, with information provided to ARPA through
correspondence. The court assumes that B&W has produced the data upon which it
relied to create the Power Point presentation, including but not necessarily limited to the
13,546 pages that are identified in response to Interrogatory No. 14. To the extent that
B&W’s supplementation of Interrogatory No. 14 does not identify where the data
underlying the Power Point presentation is produced, the court orders B&W to do so in
response to Interrogatory No. 19, no later than May 19, 2015.
II.

Requests for Production
ARPA asserts that B&W has produced over 420,000 pages in response to

ARPA’s First Set of Discovery Requests,6 but declined to provide an index of the
documents on the basis that the documents were produced in the usual course of its
business. ARPA also complains that B&W did not identify where these documents are
maintained, the custodians, or the manner in which the documents are organized, and

6

Only 384,000 pages are at issue for the purposes of this Motion.
19

many of the documents were stripped of their metadata prior to production. [#35 at 13].
B&W resists providing this index on the basis that such a project would be burdensome
and difficult, and the materials were produced both in the style in which they are kept in
the usual course of business and in a form that is reasonably usable, submitting
declarations in support from B&W employees.

[#46 at 4-8, #46-3, #46-4]. ARPA

concedes in its Reply that B&W has since provided some metadata, but disputes that
the supplemental metadata is sufficient to indicate how the documents were maintained
in the usual course of business.

[#56 at 11].

ARPA further claims it cannot with

reasonable effort locate documents responsive to its requests, and B&W has not
provided essential metadata in conjunction with a TIFF format to constitute a reasonably
usable form. As a result, ARPA asks the court to order B&W to create an index “linking
the documents produced to specific discovery requests.” [#56 at 7].
Federal Rule of Civil Procedure 34(b)(2)(E)(i) requires a party to produce
documents as the materials are “kept in the usual course of business” or the party “must
organize and label them to correspond to the categories in the request.” If the request
for production does not specify a form for the production, “a party must produce it in a
form or forms in which it is ordinarily maintained or in a reasonably usable form or
forms.” Fed. R. Civ. P. 34(b)(2)(E)(ii).
This District has considered whether Rule 34(b)(2)(E)(i) and (ii) equally apply to
electronically stored information (“ESI”), or whether Rule 34(b)(2)(E)(ii) alone governs.
See National Jewish Health v. WebMD Health Serv. Group, Inc., --- F.R.D. ----, 2014
WL 2118585 at *6 (D. Colo. May 21, 2014) (J. Daniel). In National Jewish Health,

20

District Judge Daniel ruled that Rule 34(b)(2)(E)(i) does not apply to ESI. Id. at *5-7
(adopting the recommendation of Special Master Ronald E. Hedges and concluding that
a party must produce documents in accordance with 34(b)(2)(E)(i), and, if the request
does not specify a form of production, must produce ESI in the form in which it is
ordinarily maintained or in a reasonably usable form or forms) (citing United States v.
O'Keefe, 537 F. Supp. 2d 14, 23 (D.D.C. 2008)).
Indeed, Rule 34(a)(1) and the Advisory Committee Note thereto acknowledge
that ESI, and therefore, its treatment, is distinct from hard copy documents. See Report
of Advisory Committee on Civil Rules to Committee on Rules of Practice and
Procedure, July 25, 2005, found in House Document 109–105, at 157 158 (2006) (The
Committee decided to recommend making ‘electronically stored information’ separate
from ‘documents.’) “The distinction was drawn primarily to recognize the difficulty in
fitting different forms of ESI, like dynamic databases that constantly change, within the
traditional concept of document.”

National Jewish Health, 2014 WL 2118585 at *6

(citing John K. Rabiej, Rabiej on Production of ESI, Emerging Issues 2628 (July 29,
2008)). But see MGP Ingredients, Inc. v. Mars, Inc., No. 06-2318-JWL-DJW, 2007 WL
3010343, at *4 n. 12 (N.D.N.Y. Oct. 15, 2007) (noting that Advisory Committee Notes to
the 2006 amendments to Rule 34 make it clear that subsection (i) applies equally to
electronically stored information);7 City of Colton v. Amer. Promotional Events, Inc., 277

7

The Advisory Committee Note to the 2006 amendment to Rule 34(b) instructs that the
production of ESI should be subject to requirements comparable to those identified in
Rule 34(b)(2)(E)(i). The Note further advises that if the form of production is not
specified by party agreement or court order, the responding party may produce ESI in
the form it which it is ordinarily maintained or in a form that is reasonably usable;
21

F.R.D. 578, 584 (C.D. Cal 2011) (noting the “broad consensus” among courts that Rule
34(b)(2)(E)(i)’s requirements regarding organization of discovery productions apply to
both hard copy documents and electronically stored information).
In Anderson Living Trust v. WPX Energy Production, LLC, the District of New
Mexico similarly relied on Professor Rabiej’s exposition of the application of Rule 34
following the 2006 amendments in determining that the parties, by mutually agreeing to
transmit discovery in ESI format, had chosen to have Rule 34(b)(2)(E)(ii) govern the
production.

298 F.R.D. 514, 526 (D.N.M. 2014) (citing Rabiej, supra at *2)

(“Subparagraph (E)(i) applies only to the production of hard-copy documents, while
subparagraph (E)(ii) exclusively governs the production of ESI…”). “Searchability” is
the reason practical differences between the two production procedures are warranted
and indeed exist:
The option to produce electronically stored information in a reasonably
usable form is not precisely the same as the option to produce hard-copy
documents organized and labeled to correspond to the request, but it is
functionally analogous because producing electronically stored information
in a word searchable format can enable a party to locate pertinent
information, regardless of any index or labeling provided by the
responding party.
Anderson Living Trust, 298 F.R.D. at 526 (quoting Rabiej, supra at *2). In framing its
analysis, the court acknowledged that “[t]he vast majority of courts have treated (E)(i)
and (E)(ii) as supplementary rather than alternative” and have “appl[ied] (E)(i)’s
organized production requirement to ESI the same way they had before the 2006
amendments, and add[ed] the (E)(ii) form requirement on top of the requirements of
however, production in a reasonably usable form does not license the responding party
to convert ESI into a different, more burdensome form.
22

(E)(i).” Id. at 525-26 (citing orders from the District of South Dakota, and Southern and
Northern Districts of New York). It nonetheless held that in determining the form of
production, requesting parties could avail themselves of the guarantees of (E)(i) or
(E)(ii), “but not both.” Id. at 527. “The drafters of 34(b)(2)(E) contemplated that parties
requesting ESI would be able to organize it themselves—in their own way, to their own
satisfactory level of thoroughness, and at their own expense—through the use of textsearching technologies like filtering, grouping, and ordering.” Id. (citing Rabiej, supra, at
*2–3). See also Fed.R.Civ.P. 34, Advisory Committee's Notes. “The nimbleness of
current search functionality with ESI software is the very reason the Advisory
Committee found it unnecessary to make (E)(i)'s organization guarantees applicable to
ESI.” Anderson Living Trust, 298 F.R.D. at 527.
I am persuaded by the reasoning in National Jewish Health and Anderson Living
Trust that the parties, having agreed upon an ESI production, must comply with only
Rule 34(b)(2)(E)(ii). The question, therefore, is whether B&W produced its ESI in the
form in which it is ordinarily maintained or in a reasonably usable form or forms. The
Rule clearly requires one or the other, but not both. While the court appreciates the
challenges for all Parties associated with the production and review of voluminous ESI,
after reviewing the Parties’ papers and the Scheduling Order, I conclude that B&W has
produced its ESI in a reasonably usable form or forms.
The Parties agreed during their Rule 26(f) conference to produce documents in
TIFF, PDF, or other “similarly readable format.” [#35 at 8]. In the Scheduling Order, the
Parties acknowledge that there would be “significant quantities of electronically stored

23

information, such ESI would include electronic copies of correspondence and emails as
well as drawings and technical information in electronic format and testing data,” and
that “[t]he parties have agreed to the format in which electronically stored information
will be produced.” [#31 at 12].
The document production is organized into three categories: approximately
150,000 pages of “Project Lifecycle Management” (“PLM”) documents8; approximately
220,000 pages of emails and corresponding attachments from B&W’s archiving
database; and approximately 14,000 miscellaneous documents. B&W included indices
for the PLM documents and instructed ARPA on how to reference the indices to locate
specific documents. ARPA contends that the indices do not include the document bates
numbers, preventing it from correlating the information in the index to the documents
produced. [#56 at 4]. B&W produced emails and corresponding attachments from its
archiving database along with recipient and sender metadata in a fully text-searchable
form.

B&W provided metadata, where applicable, that allows ARPA to identify a

document by title and an email by recipient or sender. [#46 at 5]. ARPA argues these
documents were produced without an email folder structure and B&W failed to correlate
the documents to specific requests for production. [#56 at 4]. As for the approximately
14,000 miscellaneous documents, ARPA claims simply that these were produced after it
filed its Motion. [#56 at 4].

8

B&W represents that for any given project, the PLM system “records many associated
documents and correspondence, which are loaded into that system as part of [its]
normal business practices.” [#46 at 5].
24

ARPA acknowledges that B&W produced the majority of documents in TIFF
format and that TIFF format is presumably a reasonably usable form. See Aguilar v.
Immigration & Customs Enforcement Div., 255 F.R.D. 350, 357 (S.D.N.Y. 2008)
(citation omitted); see also National Jewish Health, 2014 WL 2118585 at *6. ARPA
claims, however, that many of the TIFF documents are not in reasonably usable form
because they contain limited metadata and missing text, and that while B&W
subsequently provided supplemental metadata, the supplemental metadata is
insufficient for ARPA to determine how the documents were maintained in the usual
course of business. [#56 at 5-6]. As an example, ARPA offers that 5,972 documents
share the same search term, “Text Placeholder,” and are not subject to an informed
search.

[#56 at 6].

But B&W provided metadata that allows ARPA to search by

attachment, custodian, file type, file name, email sent date, email recipient, email
sender, email carbon copy recipient, email subject, location, and native file link. [#76 at
2]. The Sedona Conference has published advisory principles regarding metadata that
read in relevant part:
Absent party agreement or court order specifying the form or forms of
production, production should be made in the form or forms in which the
information is ordinarily maintained or in a reasonably usable form, taking
into account the need to produce reasonably accessible metadata that will
enable the receiving party to have the same ability to access, search, and
display the information as the producing party where appropriate or
necessary in light of the nature of the information and the needs of the
case.

25

Sedona Principles 2d Principle 12.9 Commentary to Principle 12 provides criteria for
determining whether metadata should be produced in a case: “(i) ‘what metadata is
ordinarily maintained’; (ii) the relevance of the metadata; and (iii) the ‘importance of
reasonably accessible metadata to facilitating the parties' review, production, and use of
the information.’” See also Aguilar, 255 F.R.D. at 356 (citing Sedona Principles 2d
Principle 12 Cmt. 12a).

“In selecting a form of production, the two primary

considerations should be the need for and probative value of the metadata, and the
extent to which the metadata will enhance the functional utility of the electronic
information.” Id. (citing Sedona Principles 2d Principle 12 Cmt. 12b) (internal quotation
marks omitted).
Memoranda, emails, and electronic records produced in PDF or TIFF format are
in usable form if accompanied by a load file containing searchable text and selected
metadata.

See Aguilar, 255 F.R.D. at 356 (citing commentary to the Sedona

Conference Principle 12). See also Nat’l Jewish Health, 2014 WL 2118585, at *6.
Almost all documents that were produced are in a format that is fully text-searchable.
[#76 at 2]. Of the 5,972 documents that are not searchable, all but 100 documents are
attachments to fully-searchable email messages.

9

[#76 at n.1].

Furthermore, B&W

The Sedona Conference is a nonprofit legal policy research and education
organization with a working group comprised of judges, attorneys, and electronic
discovery experts dedicated to resolving electronic document production issues. Since
2003, the Conference has published a number of documents concerning electronically
stored information, including the Sedona Principles. Courts have found the Sedona
Principles instructive with respect to electronic discovery issues. See Aguilar, 255
F.R.D. at 357 (citation omitted).
26

made available to ARPA a copy of documents that contain handwritten annotation or
other information that was not reproduced in the electronic form. [#46 at 7].
ARPA has not convinced the court that its ability to search the ESI in any way it
deems appropriate is compromised.

Nor has ARPA convinced the court that any

special circumstance mandates that B&W should have to go beyond the obligations of
Rule 34(b)(2)(ii) and undertake additional burdens of correlating its ESI to the specific
discovery requests. Therefore, I find that B&W has satisfied its discovery obligations
under Rule 34(b)(2)(E)(ii) as to the PLM documents and miscellaneous documents. To
order B&W to provide additional metadata after the Parties represented to the court that
they had discussed and agreed to an appropriate protocol for the production of ESI
would be unduly burdensome. [#31 at 12].
With respect to the email archives, one field of metadata remains outstanding,
i.e., the folder structure of the individual email user. B&W argues it is not required to
produce metadata as to each email because its central information technology (“IT”)
department acts as custodian of its electronic files. [#76 at 2-3]. Presumably, ARPA
seeks that information because it believes it is required as part of a production of ESI in
the ordinary course of business, but as discussed above, B&W’s production need only
to be produced in a form that it is ordinarily maintained or in a reasonably useable form.
Fed. R. Civ. P. 34(b)(2)(ii). ARPA does not explain why it needs the folder structure of
the email archives if such email documents are searchable. [#56 at 5]. Therefore, the
court declines to order B&W to produce the folder structure of the individual email user.

27

II.

Modification of Protective Order
Originally, B&W declined to produce the design standards for the original boiler

design or modifications thereto without agreement from ARPA to modify the Stipulated
Protective Order [#22] to create a class of “HIGHLY CONFIDENTIAL” information.
Documents filed under this designation would be viewed by only “the party’s attorneys
and experts, and perhaps one ARPA representative.” [#35 at 33]. After ARPA filed its
Motion to Compel Interrogatories, B&W produced the design standards, with the
understanding that ARPA would limit their disclosure to attorneys and consulting or
testifying experts until the court ruled. [#46-7]. B&W argues the design standards are
proprietary and the “root of B&W’s success,” and the Stipulated Protective Order in its
current form is inadequate to protect the designs because it does not prohibit or prevent
ARPA from disseminating the standards to employees, principals or agents of
associated entities like Lamar Light & Power, and any fact witness ARPA may ‘expect to
comment or testify’ regarding the standards.

[#46 at 12-13].

B&W has submitted

declaration of Gregory L. Golub in support of its position. [#46-5].
ARPA objects to a two-tiered protective order, arguing that it would “effectively
deny ARPA personnel, who have collaborated with B&W engineers and personnel over
the past ten (10) years, the ability to review documents related to B&W’s design
standard unless ARPA identifies which documents it wants an ARPA employee to
review (revealing attorney work product) and B&W consents that the specific ARPA
employee may review the specific documents.” [#56 at 10]. ARPA does not argue that

28

it must be able to provide access to the design documents to either the principals or
agents of associated entities or third party fact witnesses. [Id.]
“[A]s a sheer matter of power the court has authority to alter the terms of a
protective order it has entered, and ... ordinarily requests to modify are directed to the
district court's discretion and subject to review only for abuse of discretion.” S.E.C. v.
Merrill Scott & Associates, Ltd., 600 F.3d 1262, 1271 (10th Cir. 2010) (citing 8 Charles
Alan Wright, Arthur R. Miller & Richard L. Marcus, Federal Practice & Procedure §
2044. 1, at 575–76 (2d ed.1994)).

“The modification of a protective order, like its

original entry, is left to the sound discretion of the district court.” Rohrbough v. Harris,
549 F.3d 1313, 1321 (10th Cir. 2008).

Rule 26(c)(7) allows the court to enter a

protective order “for good cause shown.” Fed. R. Civ. P. 26(c)(7). The party seeking to
prevent disclosure of certain materials must first establish that the information sought is
a trade secret or other confidential research, development, or commercial information
and then demonstrate that its disclosure could be harmful. Centurion Indus., Inc. v.
Warren Steurer & Assocs., 665 F.2d 323, 325 (10th Cir. 1981). Upon such a showing,
the burden shifts to the party seeking discovery to establish that the disclosure of
confidential materials is relevant and necessary to the action. Id. at 325-26. Ultimately,
the court must balance the discovery needs of the requesting party against potential
injury to the responding party. Id.
The Stipulated Protective Order in this case limits the use of any discovery
material designated “CONFIDENTIAL” to the prosecution or defense of this litigation.
[#22 at ¶ 3]. ARPA is required to ensure that all employees to whom they disclose any

29

CONFIDENTIAL discovery material abide by the terms of the Stipulated Protective
Order. [Id. at ¶ 3(h).] Any fact witness who receives the CONFIDENTIAL discovery
material is required to execute Exhibit A, which reminds such individual any such
discovery material may only be used in connection with the instant action. [Id. at 13].
I do not find that restricting the design documents to only counsel, experts, and
Rick Rigel is warranted in this case, nor does the modification of the Protective Order to
have a second tier appear to be required at this time. It is undisputed that ARPA and
B&W are not competitors. B&W bears the burden of proving the competitive harm that
would result from ARPA disclosing the design standards to its representatives,
employees, or outside associates. See Centurion Indus., Inc., 665 F.2d at 325.

B&W

satisfies this burden only by “a particular and specific demonstration of fact, as
distinguished from stereotyped and conclusory statements.” Gulf Oil Co. v. Bernard,
452 U.S. 89, 102 n. 16 (1981) (internal quotation marks and citation omitted).
B&W fails to specifically articulate how providing ARPA access to the design
standards as CONFIDENTIAL under the existing Protective Order poses harm to B&W.
For example, it fails to point to any individual who has left ARPA to work for a
competitor of B&W. It also does not identify any other boiler provider that ARPA is
working with, to whom ARPA could inevitably or inadvertently disclose B&W’s
proprietary design standards. Nor does B&W identify any additional discovery that
would be subject to a higher designation than CONFIDENTIAL to warrant an entirely
separate tier. Simply put, B&W has not established good cause for a two-tiered
protective order. See, e.g., MGP Ingredients, Inc. v. Mars, Inc., 245 F.R.D. 497, 502 (D.

30

Kan. 2007) (collecting cases that require the party seeking to restrict disclosure
demonstrate good cause for the protective order).
Nevertheless, the court is cognizant of a party’s duty to protect its trade secrets
in order to maintain such protection. See Hartz v. Luzenac, 576 F.3d 1103, 1008-09
(10th Cir. 2009). Given the fact that ARPA does not argue that either a principal or
agent of its affiliates or any other third party fact witness needs access to the design
standards [#56 at 10], the court, by this Order, will preclude access of the design
standard that is Bates-labeled HC-Babcock0000001-24 [#46-6] by those categories of
individuals identified in Paragraph 3(b) and 3(i). To the extent that ARPA finds that
disclosure to individuals in either category is necessary, it may seek leave from the
court, and the Parties may address the particularized need and concerns at that
juncture.
Accordingly, IT IS ORDERED that:
(1)

The Motion to Compel [#35] is GRANTED IN PART, to the extent B&W
shall supplement its responses to Interrogatory Nos. 5, 7, 8, 10, 12, 14,
and 19, consistent with the rulings as set forth in this Order, with, including
but not limited to, any information that was provided to ARPA via written
and oral correspondence;

(2)

B&W will SUPPLEMENT its responses to Interrogatory Nos. 5, 7, 8, 10,
12, 14, and 19 no later than May 19, 2015;

(3)

The Motion to Compel [#35] is DENIED IN PART, to the extent that ARPA
seeks any further metadata associated with the already-produced ESI;

31

(4)

The Motion to Compel [#35] is GRANTED IN PART, insofar as ARPA is
precluded

from

sharing

the

design

standard

Bates-labeled

HC

Babcock0000001-24 with principals or agents of its affiliates or with thirdparty fact witnesses; and
(5)

The Motion to Compel [#35] is DENIED on all other issues.

DATED: May 5, 2015

BY THE COURT:

s/Nina Y. Wang__________
United States Magistrate Judge

32