GOODMAN et al v. SHALIMAR INVESTMENTS, LLC

Filing 66

ORDER denying 58 Motion for Protective Order. See Order for details. Signed by Magistrate Judge Tim A. Baker on 7/21/2016. (MAG)

UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF INDIANA
NEW ALBANY DIVISION

LOUIS GOODMAN, EVELYN
GOODMAN,
BABETTE RAY, LARRY TAYLOR, CARA
TAYLOR, and JOAN THOMPSON,
Plaintiffs,
vs.
SHALIMAR INVESTMENTS, LLC,
Defendant.

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No. 4:14-cv-00079-SEB-TAB

ORDER DENYING DEFENDANT’S MOTION FOR PROTECTIVE ORDER
I.

Introduction
Defendant seeks a protective order barring Plaintiffs from inquiring during depositions of

Defendant and Golars—Defendant’s environmental consultant—about “Shalimar’s relationship
with Golars, including any contract, payments or other consideration to or from Golars, and
payments or other consideration from the Excess Liability Trust Fund, an insurer or any other
entity” and vice versa. [Filing No. 59, at ECF p. 1.] Defendant originally argued that Plaintiffs
were attempting to inquire about Defendant’s ability to satisfy a judgment and that the deposition
topic was vague and overbroad. [Filing No. 59, at ECF p. 4-5.] Enlightened by Plaintiffs’
response to Defendant’s original memorandum, Defendant now argues that the topic violates
Rule 26(b)(1).
The proposed discovery pertains to Plaintiffs’ claims of Indiana Code violations,
nuisance, trespass, and negligence against Defendant. [Filing No. 1, at ECF p. 4-7.] Defendant
is an owner and operator of underground petroleum storage tanks. [Id. at 2.] Plaintiffs allege

that one or more of Defendant’s tanks leaked and damaged their properties. [Id. at 3.] Plaintiffs
further allege Defendant has not properly investigated or corrected the problem. [Id.]

II.

Discussion
A.

Meet and Confer Requirement

Local Rule 37-1 requires counsel to “confer in a good faith attempt” to resolve discovery
disputes before filing a discovery motion. If there is no resolution, counsel is encouraged to
contact the Magistrate Judge to help resolve the dispute. This Court has ruled that a mere
exchange of letters or emails, or an electronic ultimatum, does not satisfy L.R. 37-1’s meet and
confer requirement. Slabaugh v. State Farm Fire & Cas. Co., 2014 WL 3866108 (S.D. Ind.
Aug. 5, 2014), Loparex, LLC v. MPI Release Technologies, LLC, 2014 WL 1767088 (S.D. Ind.
May 16, 2011). “Rather, the local rule contemplates an actual meeting with a date, time, and
place—whether by telephone, videoconference, or (if counsel's location permits) preferably faceto-face.” Loparex, 2014 WL 1767088 at *2.
Defendant’s counsel violated this rule. First, any attempt by the parties to “meet and
confer” is represented by an exchange of only four emails, the first of which contained the threat
of seeking a protective order if Plaintiff failed to amend the topic. Second, neither of
Defendant’s emails suggested a date, time, or place to resolve the matter. Third, Defendant
failed to contact the Magistrate Judge before filing its motion. Because Defendant did not satisfy
the meet and confer requirement, the motion is denied.
B.

Rule 26(b)(1)

Defendant argues that Plaintiffs’ request for “Shalimar’s and/or its environmental
consultant’s investigation and response to the Contamination, the costs incurred by Shalimar
and/or its consultant for those activities, how those costs were itemized/invoiced by Shalimar
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and/or its environmental consultant, how these costs were submitted to IDEM or any other entity
for reimbursement, the amount of funds recovered by Shalimar and/or its environmental
consultant” violates Rule 26(b)(1). [Filing No. 62, at ECF p. 2; Filing No. 61, at ECF p. 5.]
Rule 26(b)(1) states that “[p]arties may obtain discovery regarding any nonprivileged matter that
is relevant to any party's claim or defense and proportional to the needs of the case, considering
the importance of the issues at stake in the action, the amount in controversy, . . . the importance
of the discovery in resolving the issues, and whether the burden or expense of the proposed
discovery outweighs its likely benefit.”
Defendant argues that the requested information is privileged because it considers Golars
to be a retained expert. Defendant first explains that Golars “may be privy to attorney-client
communications.” [Filing No. 62, at ECF p. 2.] However, attorney-client privilege only applies
to communications, not underlying facts of the issue. Upjohn Co. v. United States, 449 US. 383,
395 (1981). Here, Plaintiffs are not inquiring into any communications between Defendant’s
attorney and Defendant or Golars. Plaintiffs are inquiring about procedural and monetary facts.
Defendant also explains that the requested information is privileged because “[Golars]
may be assisting in the preparation of work product materials.” [Filing No. 62, at ECF p. 2.]
The work-product doctrine protects the attorney’s mental processes, specifically in materials
prepared by an attorney or its agents in anticipation of litigation. United States v. Nobles, 422
U.S. 225, 238 (1975). Golars was hired to assist in remediation of any contamination. [Filing
No. 61, at ECF p. 4.] Nothing in the record suggests that Golars was initially retained or
consulted in anticipation of a lawsuit. Therefore, information regarding the Shalimar-Golars
relationship is not privileged.

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Defendant also claims that the information is not relevant to Plaintiffs’ claims. However,
relevance under Rule 26 is “construed broadly to encompass any matter that bears on, or that
reasonably could lead to other matter that could bear on, any issue that is or may be in the case.”
Knauf Insulation, LLC v. Johns Manville Corp., 2015 WL 7089725, at *1 (S.D. Ind. Nov. 13,
2015) (quoting Chavez v. DaimlerChrysler, Corp., 206 F.R.D. 615, 619 (2005)). The deposition
topic at issue is relevant to the duty element of Plaintiffs’ negligence claim. Plaintiffs assert that
Defendant “breached its duty to responsibly and timely clean up the Contamination.” [Filing No.
1, at ECF p. 7.] Plaintiffs’ deposition topic relates to how and to what extent Defendant has
cleaned up the contamination. Evidence revealed by this discovery topic could show whether
Defendant cleaned up the contamination in a way that satisfies the alleged duty. Because the
information may reveal evidence to prove or disprove Plaintiffs’ negligence claim, the
information is relevant.
The deposition topic is also proportional to the needs of the case. Because this
information may help determine if the alleged duty is satisfied, it is important for resolving
Plaintiffs’ negligence claim. Also, Defendant has received $600,000 from the Excess Liability
Trust Fund thus far, suggesting that the contamination, as well as the potential damages, are not
insignificant. Supplying the requested information does not impose a great burden or expense on
Defendant. Thus, in this instance the call for proportionality does not support the requested
protective order.

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III.

Conclusion
For the reasons set forth above, the topic does not violate Rule 26(b)(1) because it is not

privileged, it is relevant, and it is proportional to the needs of the case. Defendant’s motion for
protective order [Filing No. 58] is denied.

Date: 7/21/2016
_______________________________
Tim A. Baker
United States Magistrate Judge
Southern District of Indiana

Distribution:
David Earl Dearing
[e-mail]
Edward S. Griggs
BARNES & THORNBURG LLP (Indianapolis)
[e-mail]
David L. Hatchett
HATCHETT & HAUCK LLP
[e-mail]
Michael Jonathan Reeder
HATCHETT & HAUCK LLP
[e-mail]
Thomas W. Baker
HATCHETT & HAUCK LLP
[e-mail]

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