Asarco LLC v. Union Pacific Railroad Company et al

Filing 218

MEMORANDUM DECISION AND ORDER - it is HEREBY ORDERED that: 1. Defendants Motion to Compel Discovery Responses and to Deem Requests for Admission Admitted (Docket No. 127 ) is GRANTED, in part, and DENIED, in part. 2. Union Pacific Railroad Companys Objection to, and Motion to Strike or Exclude, Asarcos Untimely Filings (Docket No. 160 ) is GRANTED, in part, and DENIED, in part asfollows: a. Docket Nos. 152-157 are not stricken; in this respect, Union Pacifics Motion is DENIED; and b. Docket No . 158 is stricken; in this respect, Union Pacifics Motion is GRANTED. Correspondingly, Docket Nos. 174 and 182 (and related materials) are likewise stricken. 3. Asarcos Motion to Extend Time for Filing Documents in Support of Asarco LLCs Respon se in Opposition to Union Pacific Railroad Companys Motion for Summary Judgment (Docket No. 176 ) is GRANTED. 4. Asarco LLCs Motion to Strike and Objection to Improper Briefing (Docket No. 178 ) is DENIED. Signed by Judge Ronald E. Bush. (caused to be mailed to non Registered Participants at the addresses listed on the Notice of Electronic Filing (NEF) by (cjs)

UNITED STATES DISTRICT COURT
DISTRICT OF IDAHO

ASARCO LLC,
Plaintiff,

Case No.: 2:12-cv-00283-EJL-REB
MEMORANDUM DECISION AND
ORDER RE:

vs.
UNION PACIFIC RAILROAD COMPANY and
UNION PACIFIC CORPORATION,
Defendants.

DEFENDANT’S MOTION TO
COMPEL DISCOVERY RESPONSES
AND TO DEEM REQUESTS FOR
ADMISSION ADMITTED
(Docket No. 127)
UNION PACIFIC RAILROAD
COMPANY’S OBJECTION TO, AND
MOTION TO STRIKE OR
EXCLUDE, ASARCO’S UNTIMELY
FILINGS
(Docket No. 160)
ASARCO’S MOTION TO EXTEND
TIME FOR FILING DOCUMENTS IN
SUPPORT OF ASARCO LLC’S
RESPONSE IN OPPOSITION TO
UNION PACIFIC RAILROAD
COMPANY’S MOTION FOR
SUMMARY JUDGMENT
(Docket No. 176)
ASARCO LLC’S MOTION TO
STRIKE AND OBJECTION TO
IMPROPER BRIEFING
(Docket No. 178)

Now pending before the Court are (1) Defendant’s Motion to Compel Discovery
Responses and to Deem Requests for Admission Admitted (Docket No. 127), (2) Union Pacific
Railroad Company’s Objection to, and Motion to Strike or Exclude, Asarco’s Untimely Filings

MEMORANDUM DECISION AND ORDER - 1

(Docket No. 160), (3) Asarco’s Motion to Extend Time for Filing Documents in Support of
Asarco LLC’s Response in Opposition to Union Pacific Railroad Company’s Motion for
Summary Judgment (Docket No. 176), and (4) Asarco LLC’s Motion to Strike and Objection to
Improper Briefing (Docket No. 178). Having carefully considered the record and otherwise
being fully advised, the undersigned enters the following Memorandum Decision and Order:1
I. DISCUSSION
A.

Defendant’s Motion to Compel Discovery Responses and to Deem Requests for
Admission Admitted (Docket No. 127)
Through its Motion, Union Pacific ask the Court to require that Asarco:
1.

Supplement its responses to Requests for Admission Nos. 1-8, 15-20, 23-40, 42-

55, and 57-59 in Union Pacific’s First Set of Requests for Admission;
2.

Supplement its responses to Interrogatory Nos. 2, 3, and 8 (as to Requests for

Admission Nos. 1-8) in Union Pacific’s First Set of Interrogatories;
3.

Produce specific documents and other materials requested in (1) Request for

Production Nos. 1, 4, 5, and 6 in Union Pacific’s Second Set of Requests for Production and (2)
Request for Production Nos. 1, 4, 5, 6, 7, 8, 9, and 10 in Union Pacific’s Fourth Set of Requests
for Production; and
5.

Supplement its responses to Request for Admission Nos. 97, 113, and 114 in

Union Pacific’s Second Set of Requests for Admission.

1

U.S. District Judge Edward J. Lodge referred all non-dispositive matters to the
undersigned. See 9/9/15 Order (Docket No. 114). The docket contains numerous pending
motions, both dispositive and non-dispositive, the resolutions of which are bound up in the
extraordinarily heavy docket facing the judges of this Court. This Memorandum Decision and
Order will resolve certain of these motions so as to provide a resolution for the parties of at least
some of the pending motions sooner rather than later.
MEMORANDUM DECISION AND ORDER - 2

1.

Asarco’s Supplemental Responses to Union Pacific’s First Set of Requests for
Admission

The Motion is moot as to Request Nos. 1-8. See Reply, p. 9, n.4 (Docket No. 170). The
remaining Requests are addressed in turn:
a.

Request Nos. 15-20

Asarco objects to each of these Requests as “call[ing] for legal conclusions” and, in other
instances, as being vague and ambiguous, not limited by a period of time. Even so, Asarco
responded to each of these Requests. Union Pacific argues that FRCP 36(a) does not limit
Requests solely to “facts,” and expressly allows a party to request responses that may seek the
“application of law to fact.” As to Asarco’s more substantive responses, Union Pacific contends
that they are “generic.”
“Requests cannot be used to compel an admission of a conclusion of law.” Welcher v.
Idaho Dept. of Correction, 2006 WL 1663567, *2 (D. Idaho 2006) (citing Playboy Enterprises,
Inc. v. Welles, 60 F. Supp. 2d 1050, 1057 (S.D. Cal. 1999)). Union Pacific does not elaborate
how, or why, these Requests do not ask for a legal conclusion and/or how, or why, they properly
seek the application of laws to fact. Moreover, other than commenting that Asarco’s more
substantive responses to these Requests are “generic,” Union Pacific provides no argument that
they are deficient in any respect.2 Union Pacific’s Motion is denied in these respects.
b.

Request Nos. 23-31, 40, 42-55, and 57-593

Union Pacific next contends that Asarco’s supplemental responses to various Requests
are not specific enough. For example, Union Pacific asserts that, while Asarco admits that

2

Additionally, Union Pacific’s Reply does not address Request No. 20. Assuming its
arguments are the same as to Request Nos. 15-19, its resolution here is likewise the same.
3

Union Pacific’s Reply does not speak to Request Nos. 32-39. Assuming its arguments
are the same as the balance of Requests, their resolution here is likewise the same.

MEMORANDUM DECISION AND ORDER - 3

Union Pacific has contribution protection for “certain claims for response costs” or “limited
contribution protection,” Asarco does not identify those limits, claims, or response costs; and,
conversely, that, while Asarco denies that Union Pacific has contribution protection for certain
claims and response costs, it again does not identify them with any specificity. The Court is not
persuaded that Asarco’s responses are lacking in the manner of which Union Pacific complains.
To begin, Asarco clearly points to language from the Union Pacific consent decree as
setting the stage for its responses to various Requests. Nothing is improper about this when, at
least in Asarco’s mind, such language informs an answer to a particular Request. Asarco then
provides an additional response. While this additional response may not contain the level of
specificity that Union Pacific is seeking, the Request itself is similarly broad. Moreover, as
stated earlier in this action, requests for admission are not discovery devices per se – they are
tools to crystalize legitimately undisputed matters to help streamline a prospective trial. Where
Requests speak to matters that are not undisputed on both ends of the equation or may not be
crafted in a manner that permits agreement from both sides as to the details of the subject matter,
then the responses may simply illustrate that situation, rather than being obstructive.
Such is the case here. After reviewing the at-issue Requests and Asarco’s most recent
responses, the undersigned concludes that there is no basis to compel further responses. Union
Pacific’s Motion is denied in these respects.4

4

Asarco did not provide an amended response to Request No. 58. This appears to be an
oversight, given Asarco’s contention that it provided supplemental responses to many Requests,
including Request No. 58. See Opp. to MTC, p. 3 (Docket No. 148). Therefore, Asarco is
ordered to provide an amended response to Request No. 58. In this limited respect, Union
Pacific’s Motion is granted.

MEMORANDUM DECISION AND ORDER - 4

2.

Asarco’s Supplemental Responses to Union Pacific’s First Set of Interrogatories

The Motion is moot as it pertains to Interrogatory Nos. 2 and 3. See Reply, p. 9, n.4
(Docket No. 170). It is unclear, however, whether the remaining Interrogatory – Interrogatory
No. 8 – is still in question. Specifically, it is unclear whether Interrogatory No. 8 speaks only to
Asarco’s denials (or responses that are not an unqualified admission) of Union Pacific’s Request
Nos. 1-8 or something more. To the extent it speaks to the former, Union Pacific’s Motion is
moot (see id.); to the extent it speaks to all of Union Pacific’s Requests (or, at least, something
more than Request Nos. 1-8), the record is too underdeveloped to so rule on the adequacy of
Asarco’s response. However, Asarco is ordered to review its response to Interrogatory No. 8 vis
à vis its supplemental responses to Union Pacific’s Requests for Admission and, if necessary,
supplement its response thereto accordingly. In this limited respect, Union Pacific’s Motion is
granted.
3.

Asarco’s Responses to Union Pacific’s Second and Fourth Sets of Requests for
Production

Union Pacific’s Second and Fourth Sets of Requests for Production generally requests
documents reviewed by, considered by, referred to, cited by and/or relied upon by Asarco’s
experts. Since its filing, Union Pacific’s Motion to Compel has changed somewhat in its focus,
so that it now relates to five sets of documents: (1) publicly-available information, (2) expert
research logs, (3) Mr. Gallacher’s March 13, 2015 memorandum, (4) draft expert reports, and (5)
a July 27, 2015 meet-and-confer conference recording. Each such item is addressed below.
a.

Publicly-Available Information

To the extent any of the three at-issue documents are, in fact, available to Union Pacific
at no expense to Union Pacific, Asarco need not produce them. However, if Union Pacific must

MEMORANDUM DECISION AND ORDER - 5

either pay a publisher’s fee or maintain a membership with a particular organization to access
any of the three at-issue documents, Asarco is ordered to produce them. The record is unclear as
to these issues, but the parties are directed to resolve this dispute based upon the dividing line
described above.
b.

Mr. Gallacher’s Expert Research Logs

Asarco’s expert, Daniel Gallacher, visited numerous archives across the county to copy
records for his report. According to Asarco, the research logs represent a list of the facilities Mr.
Gallacher and his associates visited, as well as the types of documents retrieved at these
facilities. According to Mr. Gallacher himself:
The research logs do not contain any facts or data that I would consider in preparing
or forming the opinions in my report. I only referred to the research logs for source
information, such as information regarding where I procured certain photographs or
articles.
Gallagher Decl., ¶ 8 (Docket No. 148, Att. 12). These logs should be produced.
FRCP 26(a)(2)(B)(ii) requires that an expert report disclose the facts or data the expert
considered in forming his opinions. This is to be “interpreted broadly to require disclosure of
any material considered by the expert, from whatever source, that contains factual ingredients.”
Fed. R. Civ. P. 26(a)(2)(B) Advisory Committee Note (2010). The undersigned is satisfied that
these logs contain the sort of “factual ingredients” that warrant production. Union Pacific’s
Motion is granted in this respect.
c.

Mr. Gallacher’s March 13, 2015 Memorandum

Though identified as a memorandum, Asarco contends that Mr. Gallacher’s March 13,
2015 memorandum is really a draft report, protected from disclosure. See Opp. to MTC, p. 12
(Docket No. 148) (“This ICC Draft is actually an initial draft of Chapter 3, entitled “Interstate

MEMORANDUM DECISION AND ORDER - 6

Commerce Commission Bureau of Valuation Activities, 1913-1933" of the expert report
prepared by Mr. Gallacher and Historical Research Associate, Inc.”); see also Fed. R. Civ. P.
26(b)(4)(B) (“Rules 26(b)(3)(A) and (B) protect drafts of any report or disclosure required under
Rule 26(a)(2), regardless of he form in which the draft is recorded.”). Accepting Asarco’s
counsel’s5 representations as true, the undersigned considers Mr. Gallacher’s March 13, 2015
memorandum as a draft report and considers it in the context of other arguments raised within
Union Pacific’s Motion. See infra.
d.

Draft Expert Reports

FRCP 26(b)(4)(B) generally protects draft expert reports from disclosure. See supra.
However, when an otherwise protected draft report is shared with another expert who then
considers the draft report in forming his/her own opinions, the draft report becomes discoverable
in relation to that other expert. See, e.g., In re Application of Republic of Ecuador, 280 F.R.D.
506, 516 (N.D. Cal. 2012) (communication between company’s expert and his assistants and
other testifying experts in underlying Ecuador civil proceeding did not constitute protected work
product under Federal Rules of Civil Procedure, and were subject to disclosure to Republic of
Ecuador and its Attorney General for use in foreign proceeding).6 Therefore, to the extent draft

5

It is worth noting that, while Mr. Gallacher submitted a declaration testifying about his
research logs (see supra), he did not comment about his memorandum being a draft section of
his ultimate expert report.
6

Asarco alternatively argues that “Dr. Davis did not rely upon any of the five draft
reports listed in Appendix C of the Draft Report,” but, instead, only the final versions. Opp. to
MTC, p. 16 (Docket No. 148). The test, however, is “considered,” not “relied.” See Fed. R. Civ.
P. 26(a)(2)(B) Advisory Committee Note (2010) (“The disclosure obligation extends to any facts
or data ‘considered’ by the expert in forming the opinions to be expressed, no only those relied
upon by the expert.”).

MEMORANDUM DECISION AND ORDER - 7

expert reports were provided to other testifying experts for the latter’s consideration in forming
their opinions, the draft expert reports are discoverable. In this respect, Union Pacific’s Motion
is granted.
e.

July 27, 2015 Meet-and-Confer Conference Recording

Pointing to deposition testimony in which Asarco’s counsel references a “recorded
exchange” with Union Pacific counsel, Union Pacific now seeks the production of such
recordings. See Cooper Dep. at 181:6-19, attached as Ex. 12 to Wutzler Decl. (Docket No. 127,
Att. 15). Asarco says there are no such recordings – other than those prepared by the court
reporter in attendance at Mr. Cooper’s deposition. Without more, the undersigned must accept
Asarco’s counsel’s statement (as an officer of the court) that there is no recording that can be
produced. Union Pacific’s Motion is denied in this respect.
4.

Asarco’s Supplemental Responses to Union Pacific’s Second Set of Requests for
Admission

The Motion is moot as to Request No. 114. See Reply, p. 9, n.4 (Docket No. 170). The
remaining Requests are addressed in turn:
a.

Request No. 97

Union Pacific asks Asarco to “[a]dmit that federal law requires Asarco to properly
package the materials it ships by common carrier.” According to Asarco, this Request does not
specify a time period, and the terms “packaged” and “federal law” are vague and ambiguous,
particularly when considering that federal law on shipments may well have changed over the
decades that Asarco shipped items and the ambiguity of the term “packaged.” At the parties’
meet and confer, Asarco apparently offered to provide a supplemental response if Union Pacific
would define these terms or specify which “federal law” applied. Union Pacific did not do so.

MEMORANDUM DECISION AND ORDER - 8

Asarco’s response is reasonable. Union Pacific’s Motion is denied in this respect. Even
so, within 15 days of this Memorandum Decision and Order, Union Pacific is permitted to
submit a revised Request that takes into account Asarco’s concerns. If Union Pacific does so,
Asarco shall respond pursuant to FRCP 36.
b.

Request No. 113

Union Pacific asks Asarco to “admit that an easement holder is not an ‘owner’ for
purposes of CERCLA liability.” Asarco objected to this Request as “call[ing] for a legal
conclusion.” The undersigned agrees. Union Pacific’s Motion is denied in this respect.
B.

Union Pacific Railroad Company’s Objection to, and Motion to Strike or Exclude,
Asarco’s Untimely Filings (Docket No. 160) and Asarco’s Motion to Extend Time
for Filing Documents in Support of Asarco LLC’s Response in Opposition to Union
Pacific Railroad Company’s Motion for Summary Judgment (Docket No. 176)
Union Pacific takes issue with (1) Asarco’s delinquent filings on October 23, 2015,

relating to Asarco’s response to Union Pacific’s motion for summary judgment; and (2) Asarco’s
efforts to file a cross-motion for partial summary judgment, simultaneous with its opposition to
Union Pacific’s motion for summary judgment. Asarco naturally disagrees with these efforts,
additionally moving for an extension of time to file the at-issue response documents.
Certain of Asarco’s filings (Docket Nos. 152-157) were after the understood October 22,
2015 deadline for responding to Union Pacific’s motion for summary judgment. Under FRCP
6(b)(1)(B), “[w]hen an act may or must be done within a specified time, the court may, for good
cause, extend the time . . . [or] on motion made after the time has expired if the party failed to act
because of excusable neglect.” Fed. R. Civ. P. 6(b)(1)(B). Whether neglect is excusable
requires consideration of four factors: (1) the danger of prejudice to the opposing party; (2) the
length of delay and its potential impact on the proceedings; (3) the reason for the delay; and (4)

MEMORANDUM DECISION AND ORDER - 9

whether the movant acted in good faith. See Stewart Title Guaranty Co. v. Suisse, 2014 WL
10290846, *1 (D. Idaho 2014). Against this standard, good cause exists to allow Asarco’s
delinquent filings.
It is clear that any delay associated with Asarco’s filings in this instance reflected a
situation involving a busy legal practice in the midst of high-stakes litigation with a very large
filing due. This is particularly the case when examining when, exactly, these filings took place:
•

Docket No. 152: Filed on October 23, 2015 at 12:01 a.m. – one minute late

•

Docket No. 153: Filed on October 23, 2015 at 12:02 a.m. – two minutes late

•

Docket No. 154: Filed on October 23, 2015 at 12:07 a.m. – seven minutes late

•

Docket No. 155: Filed on October 23, 2015 at 12:11 a.m. – 11 minutes late

•

Docket No. 156: Filed on October 23, 2015 at 12:42 a.m. – 42 minutes “late”

•

Docket No. 157: Filed on October 23, 2015 at 11:16 a.m. – 11 hours, sixteen
minutes “late”

As to Docket Nos. 152-155, excusable neglect exists to account for an 11-minute (at
most) delay. There is absolutely no prejudice to Union Pacific; the delay is minimal; last-minute
filings are an occasional byproduct of the circumstances presented here; and there is no
indication that Asarco acted in any way other than good faith in getting these materials on file as
soon as possible. And, as to Docket Nos. 156 and 157, these filings represents corrections to
matters already on-file (relating to Asarco’s opposition to Union Pacific’s motion to compel, not
Union Pacific’s motion for summary judgment) – specifically, missing caption and certificate of
service pages. In short, these latter two filings do not even come within the orbit of Union
Pacific’s Motion. With all this in mind, Union Pacific’s Motion is denied in this respect and,
likewise, Asarco’s Motion to Extend Time is granted.

MEMORANDUM DECISION AND ORDER - 10

However, Asarco’s attempt at filing a cross-motion for partial summary judgment is
another matter.
The deadline for filing dispositive motions was September 28, 2015 – to be sure, both
Union Pacific and Asarco filed dispositive motions on or before the September 28, 2015
deadline. The out-of-bounds play occurred when, as part of its opposition to Union Pacific’s
motion for summary judgment, Asarco simultaneously moved for partial summary judgment via
a cross-motion for partial summary judgment. This is not permitted. First, if Asarco wanted to
file a dispositive motion beyond the deadline prescribed by the Court, it needed to so move the
Court, affirmatively requesting such relief. Asarco did not do this. Second, Judge Lodge’s
internal policy on cross motions for summary judgment does not endorse such a practice. The
policy reads in relevant part:
Cross Motions for Summary Judgment: To avoid the panoply of briefs generated by
the filing of cross motions for summary judgment, the Court prefers that the briefing
be combined as follows: initial motion for summary judgment; response combined
with cross motion; reply combined with response to cross motion; and a final reply
brief. If the parties are unable to address the issues in the 20 page limit, they may
request permission to file an overlength brief.
EJL Policy, available at http://id.uscourts.gov/district/judges/lodge/Motion_Practice.cfm.
Despite Asarco’s impressive effort toward construing the policy uniquely in its favor
(though the policy language is admittedly confusing), the effort involved does not operate as an
opportunity for a party to submit an additional dispositive motion, especially after the
dispositive motion deadline. A more objective reading of the policy applies to situations where
one party moves for summary judgment and, in response to that summary judgment, the
responding party not only opposes the original motion for summary judgment, but also
affirmatively moves for summary judgment on those same issues via a cross motion for summary

MEMORANDUM DECISION AND ORDER - 11

judgment – to take place before the dispositive motion deadline has come and gone. This would
indeed be a more organized way to go about things under such a scenario. But that is not this
situation here; simply put, the policy does not operate to permit Asarco’s cross-motion for partial
summary judgment (separate and independent from its otherwise appropriate response to Union
Pacific’s motion for summary judgment). Therefore, Union Pacific’s Motion is granted in this
respect.7
Even so, the practical effect of all this is potentially negligible. As Asarco points out, the
Court has the discretion to award summary judgment in favor of a nonmovant. See Fed. R. Civ.
P. 56(f)(1). That is, Judge Lodge’s consideration of Union Pacific’s motion for partial summary
judgment may nonetheless result in summary judgment in favor of Asarco, after considering the
parties’ briefing – including Asarco’s response (which presumably subsumed arguments that
formed the basis for its cross-motion for summary judgment). In other words, the only practical
effect of actually striking here Asarco’s cross-motion for summary judgment might be that
Asarco has no bite at another briefing apple via a reply in support of its cross-motion for
summary judgment.
C.

Asarco LL’s Motion to Strike and Objection to Improper Briefing (Docket No. 178)
Relevant to this particular dispute, Union Pacific filed a reply in support of its motion for

summary judgment (with related materials), and a response to Asarco’s cross-motion for partial
summary judgment (with related materials). Asarco contends these filings violated the Court’s

7

Accordingly, Asarco’s cross-motion for partial summary judgment (Docket No. 158),
Union Pacific’s opposition to Asarco’s cross-motion for partial summary judgment (Docket No.
174), and Asarco’s reply in support of cross-motion for partial summary judgment (Docket No.
182) (and related materials) are stricken.

MEMORANDUM DECISION AND ORDER - 12

orders, policies, and procedures. Asarco’s Motion, however, is mooted because Asarco’s crossmotion for partial summary judgment is stricken, (see supra) and accordingly, the related Union
Pacific materials that are discussed in Asarco’s Motion (Docket No. 174 and related materials)
are likewise stricken. Asarco’s Motion is therefore denied as moot in this respect.
Turning to Union Pacific’s reply in support of its motion for summary judgment (Docket
No. 172), the undersigned notes that Union Pacific was allowed to file a 30-page reply brief.
The docket reveals that Union Pacific has done just that (subtracting out those pages with nonsubstantive content). The fact that Union Pacific did not combine its reply in support of motion
for summary judgment along with its opposition to Asarco’s cross-motion for partial summary
judgment is of no moment here when realizing the policy that Asarco relies upon in making this
argument does not neatly apply here. See supra. Union Pacific’s reply in support of motion for
summary judgment is proper. Asarco’s Motion is denied in this respect.
Finally, the attachments to Union Pacific’s reply in support of motion for summary
judgment (Docket No. 172, Atts. 1-11) presumably8 address arguments raised in Asarco’s
opposition to Union Pacific’s motion for summary judgment. This is not a violation of any
applicable orders, policies, and/or procedures of the Court as Asarco suggests. If Asarco has a
substantive issue with any of these attachments (for example, if these declarations and exhibits
do not, actually, address matters raised in Asarco’s opposition to Union Pacific’s motion for
summary judgment), it should so move to strike them on such a basis. Asarco has not done so,
choosing instead to seek an order striking all of them as being somehow absolutely prohibited in
the context of a reply memorandum. Asarco’s Motion is denied in this respect.

8

The undersigned has not studied each filing to ensure that this is the case but, at least,
notes that Union Pacific claims as much. See Opp. to Mot. to Strike, p. 7 (Docket No. 186).

MEMORANDUM DECISION AND ORDER - 13

II. ORDER
Based on the foregoing it is HEREBY ORDERED that:
1.

Defendant’s Motion to Compel Discovery Responses and to Deem Requests for

Admission Admitted (Docket No. 127) is GRANTED, in part, and DENIED, in part.
2.

Union Pacific Railroad Company’s Objection to, and Motion to Strike or Exclude,

Asarco’s Untimely Filings (Docket No. 160) is GRANTED, in part, and DENIED, in part as
follows:
a.

Docket Nos. 152-157 are not stricken; in this respect, Union Pacific’s

Motion is DENIED; and
b.

Docket No. 158 is stricken; in this respect, Union Pacific’s Motion is

GRANTED. Correspondingly, Docket Nos. 174 and 182 (and related materials) are likewise
stricken.
3.

Asarco’s Motion to Extend Time for Filing Documents in Support of Asarco

LLC’s Response in Opposition to Union Pacific Railroad Company’s Motion for Summary
Judgment (Docket No. 176) is GRANTED.
4.

Asarco LLC’s Motion to Strike and Objection to Improper Briefing (Docket No.

178) is DENIED.
DATED: September 30, 2016

Honorable Ronald E. Bush
Chief U. S. Magistrate Judge

MEMORANDUM DECISION AND ORDER - 14