United States of America et al v. United States Steel Corporation
Filing
88
OPINION AND ORDER granting 84 Motion to Alter Phase 2 Deposition Limits. Signed by Magistrate Judge Andrew P Rodovich on 4/17/2014. (rmn)
UNITED STATES DISTRICT COURT
NORTHERN DISTRICT OF INDIANA
HAMMOND DIVISION
UNITED STATES OF AMERICA, et al.
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Plaintiffs,
v.
UNITED STATES STEEL CORPORATION
Defendant.
2:12-cv-304
OPINION AND ORDER
This matter is before the court on the Motion to Alter Phase 2 Deposition Limits [DE 84]
filed by the plaintiffs on February 13, 2014. For the following reasons, the motion is
GRANTED.
Background
The plaintiffs filed their complaint on August 1, 2012, alleging that the defendant, United
States Steel Corporation, violated various environmental laws at three of its integrated iron and
steel mills. For purposes of discovery, this action was divided into three phases— one for each
mill. The second phase, and the subject of this motion, involves the Great Lakes Works plant
located in Michigan. During the parties’ planning meeting, the plaintiffs requested the right to
take twenty depositions during this phase of discovery. USS proposed five depositions during
each phase in addition to five “floating depositions” that could be used during any of the three
phases. At the preliminary pretrial conference, the court directed that the parties could take five
depositions at each phase.
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USS turned over its initial disclosures following the preliminary pretrial conference and
identified nine individuals with discoverable information whom USS might use to support its
defenses in phase 2. Three of the individuals identified work in the corporate office and have
knowledge concerning the regulatory compliance, permits, environmental obligations, notices of
violations, and communications with the government, while the other six have or had jobs at the
mill and have information concerning U.S. Steel’s operations at Great Lakes Works, including
work practices, recordkeeping, reporting, inspections, maintenance, emissions monitoring, and
environmental controls. The plaintiffs now move the court for leave to conduct ten depositions
during phase 2 of discovery, arguing that it is necessary to depose the nine individuals whom
USS identified as having relevant information. USS opposes the plaintiffs’ motion.
Discussion
The Federal Rules presumptively limit the number of depositions taken by a party to ten.
Federal Rule of Civil Procedure 30(a)(2)(A). See also Bell v. Fowler, 99 F.3d 262, 271 (8th
Cir.1996). The rule provides for expanding this limit only upon leave of court and “consistent
with the principles stated in Rule 26(b)(2)” which provides a gauge for altering the scope of
discovery. Rule 26(b)(2) also requires the court to address whether the discovery is
“unreasonably cumulative or duplicative, or is obtainable from some other source that is more
convenient, less burdensome or less expensive.” The court also must consider the burden of the
proposed discovery, including the “needs of the case, the amount in controversy, the parties'
resources, the importance of the issues at stake in the litigation, and the importance of the
proposed discovery in resolving the issues.” Rule 26(b)(2)(C). See also Barrow v. Greenville
Independent School District, 202 F .R.D. 480, 482 (N.D.Tex. 2001); Pedraza v. Holiday
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Housewares, Inc., 203 F.R.D. 40, 42 (D.Mass. 2001).
In justifying additional depositions, a party must demonstrate a particularized need for
the total number of depositions it seeks to take, including those already taken. See Barrow, 202
F.R.D. at 483 (“If this approach were condoned, a party could indirectly circumvent the cap on
depositions by exhausting the maximum allotted number to take those that she could not justify
under the Rule 26(b)(2) standards, and then seeking leave to exceed the limit in order to take
depositions that she could substantiate.”). See also Duncan v. Paragon Publishing, Inc., 204
F.R.D. 127, 128 (S.D.Ind. 2001).
The plaintiffs wish to increase the number of depositions permitted during phase two of
discovery from five to ten. The plaintiffs explain that the discovery limits were determined prior
to the initial disclosures. In the initial disclosures, USS identified nine people with discoverable
information whom the plaintiffs now wish to depose. Given the complexity of the case, the
number of facilities involved, and the number of violations alleged, the plaintiffs sought a limit
of twenty depositions per phase during the parties’ planning meeting. The defendants took the
position that discovery should be limited to five depositions per phase with five “floating
depositions” that could be used at any phase. Instead, the court limited the depositions to five
per phase and did not adopt the proposal to allow five floating depositions. Because more
depositions were contemplated by the parties, the plaintiffs argue that the limits should be
increased. The plaintiffs further argue that if they had filed a complaint against each of the
defendants separately, they would have been entitled to conduct ten depositions per facility, and
that they should not be further limited because they filed one lawsuit against all of the
defendants.
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USS opposes the plaintiffs’ motion, arguing that the plaintiffs have not made an
individualized showing that the depositions are necessary. USS believes that the plaintiffs
should conduct some of the depositions and then determine whether further discovery is
warranted. The plaintiffs oppose this idea, explaining that this arrangement would slow down
the pace of discovery and may cause the phase 2 discovery to exceed its June 20, 2014 deadline.
The court agrees that a delay in resolving this issue likely would affect the discovery
deadline and slow down the pace of the litigation. Although USS argues that the plaintiffs’ case
primarily should be based off of documents, rendering the depositions unnecessary, the plaintiffs
have responded that the depositions are relevant to the defenses USS raised. Specifically, USS
stated that some of the opacity exceedances were caused by malfunctions, that corrective action
was taken to address other violations, and that it can demonstrate compliance in almost all
occasions even though it cannot locate records documenting compliance. It is highly unlikely
that a single person has personal knowledge about each claimed malfunction and USS’s
respective defense. This is particularly true because the complaint alleges more than 100
violations of opacity limits applicable to five different operating areas within Great Lakes
Works. Of the people the plaintiffs wish to depose, three work in the corporate office and have
knowledge concerning the regulatory compliance, permits, environmental obligations, notices of
violations, and communications with the government, while the other six have or had jobs at the
mill and have information concerning U.S. Steel’s operations at Great Lakes Works, including
work practices, recordkeeping, reporting, inspections, maintenance, emissions monitoring, and
environmental controls.
In light of the various claims and defenses, the court finds that the plaintiffs have
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demonstrated why the additional depositions are necessary. The claims were spread out across
five different operating areas at Great Lakes Works, and various individuals have knowledge of
the operations within each division of the plant, while others will testify about what occurred in
the corporate office. For this reason, the proposed depositions do not appear to seek duplicative
information, as the individuals whose depositions are sought have knowledge of different
working areas and processes. Moreover, the parties themselves previously had agreed to more
depositions than determined at the preliminary pre-trial conference, and USS has acknowledged
that no single employee has knowledge of all the issues involved in phase 2.
Taking into consideration the burden of the proposed discovery, the plaintiffs have
demonstrated that the additional depositions are warranted. For the reasons stated above, the
plaintiffs have demonstrated that this case is complex and that the depositions are necessary to
understand USS’s defense. Given the number of violations that resulted from conduct in
different departments of the plant, the additional depositions are necessary to understand USS’s
processes and reactions and would have been permitted if each case was filed separately.
Furthermore, the environmental violations concern the public at large, and for this reason prompt
resolution is desirable. The parties do not lack the resources to conduct the discovery at this
time. Because the burden is minimal in light of the complexity of the case and the depositions
do not seek duplicative information, but rather request the depositions of employees who were
active in different aspects of USS’s defenses, the court finds that the plaintiffs have satisfied
their burden to show that the additional depositions are warranted.
Based on the foregoing reasons, the plaintiffs’ Motion to Alter Phase 2 Deposition Limits
is GRANTED.
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ENTERED this 17th day of April, 2014
/s/ Andrew P. Rodovich
United States Magistrate Judge
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