Coffeyville Resources Refining & Marketing, LLC v. Liberty Surplus Insurance Corporation et al

Filing 397

MEMORANDUM AND ORDER granting 359 National Union Fire Insurance Company's Renewed Motion to Compel Becht Report and Other Documents Relating to James Berry. The documents shall be produced by September 7, 2012. See order for details. Signed by Magistrate Judge Karen M. Humphreys on 8/27/2012. (sj)

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF KANSAS

COFFEYVILLE RESOURCES
REFINING & MARKETING LLC,
Plaintiff,
v.
LIBERTY SURPLUS INSURANCE
CORPORATION, et al.,
Defendants.

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Case No. 08-1204-MLB

MEMORANDUM AND ORDER

This matter is before the court on National Union Fire Insurance Company of
Pittsburgh’s (“National”) renewed motion to compel production of statements or interviews
of Mr. James Berry. (Doc. 359). For the reasons set forth below, the motion shall be
GRANTED.

Background
A discovery dispute arose earlier in this litigation concerning National’s request for
production of a report prepared by Becht Engineering, plaintiffs’ non-testifying expert
consultant.1 The court concluded that plaintiff satisfied the threshold requirements for

1

The nature and background of this lawsuit have been described in detail in earlier
opinions and will not be repeated. See, e.g., Memorandum and Opinion, Doc. 221.

showing that the Becht report was protected by the work product doctrine. Memorandum
and Opinion, Doc. 221. However, the court was not persuaded, based on the then existing
record, that National had established “exceptional circumstances” for production of interview
notes and witness statements taken by Becht Engineering immediately after the flood and oil
spill. Specifically, the court was unable to determine whether National was able to gather
similar information from fact witnesses. National was granted leave to depose additional fact
witnesses and, depending on the witnesses’ recollections and testimony, to refile its motion
to compel. Doc. 221. p. 10.
As it turns out, James Berry, one of the key witnesses to events at plaintiff’s refinery
during the critical hours, is unavailable for deposition because of health issues.2 The court
is satisfied that National has shown “exceptional circumstances” for the production of Mr.
Berry’s earlier statements and that National cannot obtain their substantial equivalent by
other means. Fed. R. Civ. P. 26(b)(3)(A) and26(b)(4)(D). Accordingly, National’s motion
to compel shall be granted.

IT IS THEREFORE ORDERED that National’s renewed motion to compel (Doc.
359) is GRANTED. Plaintiff shall produce (1) all statements given by James Berry relating
to the flood or oil release, (2) all Becht notes concerning interviews of Mr. Berry, and (3) all
2

The court denied without prejudice National’s motion to depose Mr. Berry in the
fall of 2009 because of his surgery and chemotherapy treatment for cancer. More
recently, Mr. Berry has displayed cognitive difficulties and apparently is disabled. Based
on sealed medical reports, Mr. Berry is not capable of providing National with deposition
testimony or statements concerning the relevant time period.
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Becht Report excerpts describing the factual information provided by Mr. Berry. Nothing
in this ruling should be construed as requiring plaintiff to produce any opinions or analysis
by Becht Becht Engineering concerning Mr. Berry’s factual statements. The documents shall
be produced by September 7, 2012.
IT IS SO ORDERED.
Dated at Wichita, Kansas this 27th day of August 2012.

S/ Karen M. Humphreys
KAREN M. HUMPHREYS
United States Magistrate Judge

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