Northern Natural Gas Company v. Tract No. 1062710 et al

Filing 620

MEMORANDUM AND ORDER denying 537 Northern's Motion to Compel Against the L.D. Drilling Group, without prejudice to renewal after appropriate fact discovery has been conducted. Signed by Magistrate Judge Donald W. Bostwick on 12/5/2012. (Bostwick, Donald)

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF KANSAS

NORTHERN NATURAL GAS
COMPANY,
Plaintiff,
v.
Approximately 9117.53 acres in
Pratt, Kingman, and Reno Counties,
Kansas and as further described
herein;
Tract No. 1062710 containing 80.00
acres more or less, located in
Kingman County, Kansas, and as
further described herein, et al.
Defendants.

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Case No. 10-1232-MLB-DWB

ORDER DENYING NORTHERN’S MOTION TO COMPEL
AGAINST THE L.D. DRILLING GROUP

Plaintiff, Northern Natural Gas Company (Northern) has filed a motion to
compel against the L.D. Drilling Group1 and a subsequent Notice of Errata. (Doc’s
537, 541.) The L.D. Drilling Group has responded (Doc. 578), and Northern has
filed a Reply. (Doc. 585.) While the motion deals with several topics, the main

1

The Scheduling Order of August 11, 2011 (Doc. 306, at pp. 2-5) organized the
defendants into “groups.” This grouping was suggested and defined by the parties in their
Report of Parties’ Planning Conference in order to promote efficiency and judicial
economy.

thrust of the motion is directed at whether the L.D. Drilling Group has adequately
searched for and produced electronically stored information (ESI).
Northern has filed similar motions directed at other defendants in this case
and those motions were discussed and ruled on at the recent status conference on
October 19, 2012. See Doc. 570. In denying those motions, without prejudice to
renewal in the future, the court noted that the factual circumstances concerning the
ESI issues have not been fully developed and it would be premature to rule on the
motions at this time. Because the parties were directed to commence depositions
of fact witnesses (some of which have now been scheduled, see e.g., Doc. 583),
Northern will be entitled during those fact depositions to more fully develop the
record on the issue of any ESI discovery issues.
The same circumstances are present in the present motion to compel
directed to the L.D. Drilling Group. Northern bases its claim that L.D. Drilling
Group has not adequately searched for ESI upon one instance of recently
identified electronic files of the GLM entity and upon the supposition that
geologists working for L.D. Drilling “may have utilized sophisticated software to
generate one or more structure maps.” (Doc. 585, at 5.) They cite two instances
where references were made in documents to an Excel spreadsheet and a Power
Point Presentation which were not produced by L. D. Drilling. Id. While these
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circumstances do raise some questions, they are not sufficient to justify the court’s
intervention until further discovery has been conducted concerning this issue.2
Accordingly, this motion to compel (Doc. 537) is also DENIED, without
prejudice to renewal after appropriate fact discovery has been conducted.
IT IS SO ORDERED.
Dated this 5th day of December, 2012, at Wichita, Kansas.

s/ DONALD W. BOSTWICK
Donald W. Bostwick
U.S. Magistrate Judge

2

In Robinson v. City of Arkansas City, Kansas, 2012 WL 603576 at * 15 (D.
Kan., Feb. 24, 2012), Judge Rushfelt proceeded to independently determine the
sufficiency of ESI search efforts by a defendant. In that case, however, the plaintiff had
already conducted a Rule 30(b)(6) deposition to ascertain what efforts the defendant had
made to find ESI materials. Here, no such discovery has yet taken place and much of the
argument about ESI search efforts are speculative in nature.
3