Adams, et al v. USA

Filing 2071

MEMORANDUM DECISION AND ORDER RE DUPONT'S MOTION TO COMPEL SUPPLEMENTAL DISCOVERY granting in part and denying in part 1848 Motion to Compel; 1880 Joinder by Defendant USA. Signed by Judge B. Lynn Winmill. (caused to be mailed to non Registered Participants at the addresses listed on the Notice of Electronic Filing (NEF) by cjm)

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF IDAHO

TIMM ADAMS, et al.,
Case No. 4:CV 03-49-BLW
Plaintiffs,
v.

UNITED STATES OF AMERICA, et al.,

MEMORANDUM DECISION AND
ORDER RE DUPONT’S MOTION
TO COMPEL SUPPLEMENTAL
DISCOVERY

Defendants.

INTRODUCTION

The Court has before it DuPont’s motion to compel supplemental discovery. The
BLM joins in this motion. The motion is fully briefed and at issue. For the reasons
explained below, the Court will grant in part and deny in part the motion.
ANALYSIS
Issues Resolved
Some of the matters raised in the briefing have been resolved. For example, the
motion and decisions of this Court were filed close in time, and so issues raised in the
opening brief regarding non-loss crops and the Schritter documents have been resolved by
the Court. See Memorandum Decisions (Dkts. 1846 & 1858). In addition, the plaintiffs
have provided (1) the location of Spencer Maughan’s fields, and (2) the Chris Wride pay
stubs. Plaintiffs have also now made it clear that the Chris Wride ledgers do not exist.

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Those issues are settled and need not be resolved here.
Brad Rogers’ Mitigation Cost Worksheet
DuPont argues that a mitigation cost worksheet prepared by plaintiff Brad Rogers
is discoverable because Rogers testified at his deposition that he discussed the worksheet
with plaintiffs’ damages expert Cornelius Hofman as Hofman was preparing an estimate
of Rogers’ damages. The deposition citation originally provided by DuPont did not
support this argument, and plaintiffs argued that in the absence of evidence that Rogers
discussed the worksheet with Hofman, it was privileged because it was prepared at
counsels’ request. However, DuPont has since provided another citation that does show
that Rogers discussed this worksheet with Hofman as they discussed Rogers’ damages.
See Rogers Deposition at pp. 84-85. It thus appears that Hofman considered Rogers’
mitigation worksheet. This Court has previously held that if plaintiffs share documents
with Hofman that he considers in preparing damage calculations, those documents are
discoverable. See Memorandum Decision (Dkt. 1858). The Court therefore finds that the
Brad Rogers’ mitigation worksheet is discoverable.
Povey Documents
With regard to the Povey documents, it appears that either the documents
requested do not exist or have been provided, except for Povey’s mitigation cost
worksheet. See Exhibit Q to Anderson Affidavit (Dkt. 1865). Plaintiffs allege that the
worksheet was created at counsels’ request for this litigation and is hence privileged.
However, as just discussed, if Hofman considered it, the document is discoverable. The
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Court will direct plaintiffs to determine if the Povey mitigation cost worksheet was
considered by Hofman, and, if so, to produce a copy to DuPont.
Document Disputes
Following depositions of the plaintiffs, DuPont made supplemental requests for
certain specific documents based on the deposition testimony of particular plaintiffs. The
plaintiffs complain that in many cases the defendants already had the documents and in
other cases the defendants failed to identify the deposition testimony at issue making it
impossible for plaintiffs to know if their clients had actually testified that the alleged
documents existed. Of course, both sides were represented at the deposition, and so
plaintiffs could recall as well as defendants what was said at the deposition. And when a
formal transcript was prepared – as they have been by now – the index would make it
easy to find the precise page and line where the document was discussed (or would reveal
the lack of any such discussion of the alleged document). The defendants counter that it
was rare for them to request documents they already had, and plaintiffs were in the best
position to know whether their own documents actually existed or not.
Both sides need to take some responsibility to resolve these complaints. DuPont
needs to make sure before making a request that it does not already have the documents
requested. But DuPont need not cite pages and lines from a deposition – it is enough for
them to ask for a document allegedly possessed by a plaintiff, and the plaintiffs are then
in the best position to determine if the document exists or not by simply asking their
clients. The Court will so order.
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ORDER
In accordance with the Memorandum Decision set forth above,
NOW THEREFORE IT IS HEREBY ORDERED, that DuPont’s motion to compel
(docket no. 1848), in which the BLM joins (docket no. 1880), is GRANTED IN PART
AND DENIED IN PART. It is granted to the extent it seeks to compel plaintiffs to (1)
produce Brad Rogers’ mitigation worksheet; (2) determine whether the Povey mitigation
worksheet was considered by Hofman and, if so, produce it to DuPont, or if not, so
indicate; (3) answer DuPont’s requests for documents allegedly possessed by plaintiffs
after DuPont certifies that it has searched for the documents and does not already have
them. The motion is denied in all other respects.

DATED: September 15, 2011

Honorable B. Lynn Winmill
Chief U. S. District Judge

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