PORTLAND PIPE LINE CORPORATION et al v. CITY OF SOUTH PORTLAND et al

Filing 178

ORDER denying in part and deferring ruling in part 172 Defendants' Motion in Limine. By JUDGE JOHN A. WOODCOCK, JR. (MFS)

UNITED STATES DISTRICT COURT
DISTRICT OF MAINE
PORTLAND PIPE LINE
CORPORATION, et al.,
Plaintiffs,
v.
CITY OF SOUTH PORTLAND,
et al.,
Defendants.

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2:15-cv-00054-JAW

ORDER ON DEFENDANTS’ MOTION IN LIMINE
The Court denies the Defendants’ motion in limine to exclude from evidence
any testimony or documents concerning the volume of crude oil delivered to Montreal
East from Enbridge Line 9B, but defers ruling on whether the failure to disclose was
harmless and, if not harmless, whether a remedy short of exclusion is in order.
I.

BACKGROUND
On February 6, 2015, Portland Pipe Line Corporation (PPLC) and the

American Waterways Operators (AWO) (collectively, Plaintiffs) filed a nine-count
complaint in this Court against the city of South Portland and its code enforcement
officer (collectively, Defendants).

The Complaint challenges the validity of a

municipal ordinance that prohibits the “bulk loading” of crude oil onto marine vessels
in the harbor of South Portland, Maine. Compl. for Declaratory and Injunctive Relief
(ECF No. 1) (Compl.). PPLC owns and operates the United States portion of a
pipeline system that stretches from South Portland, Maine, to Montreal East,

Quebec. Id. ¶ 11. PPLC’s parent company, Montreal Pipe Line Limited (MPLL),
operates the portion of the pipeline system that lies within Quebec. Pls.’ Statement
of Material Fact ¶ 6 (ECF No. 89) (PSMF). At the time the Plaintiffs filed the
Complaint in February 2015, PPLC and MPLL transported crude oil northward from
South Portland to Montreal East at a rate of approximately 2.4 million barrels of oil
per month. Compl. ¶ 11. The practical effect of the Ordinance is to prevent PPLC
and MPLL from reversing the flow of its existing pipeline infrastructure to transport
oil south from Montreal to vessels in the South Portland harbor.
On March 31, 2015, the Defendants filed a motion to dismiss for lack of subject
matter jurisdiction pursuant to Federal Rule of Civil Procedure 12(b)(1), arguing,
among other things, that the Plaintiffs’ claims are unripe and that the Plaintiffs lack
standing. Defs.’ Mot. to Dismiss the Compl. Pursuant to Rule 12(b)(1) (ECF No. 16);
Mem. of Law in Supp. of Defs.’ Mot. to Dismiss Pursuant to Rule 12(b)(1) (ECF No.
17). Specifically, the Defendants argued that the Plaintiffs have no concrete plan to
reverse the flow of oil and thereby violate the Ordinance, that the present effect of
the Ordinance on the Plaintiffs consists of a “threadbare claim of economic
uncertainty,” and that the Plaintiffs’ claims rest on a “chain of contingencies,
including whether PPLC ever decides to bulk load crude oil in the City and whether
it initiates a process for federal, state and local approvals that may conflict with the
Ordinance.” Id. at 11–18.
On February 11, 2016, the Court issued an order denying the Defendants’
Motion to Dismiss. Order on Defs.’ Mot. to Dismiss (ECF No. 29). Viewing the facts

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in the light most favorable to the Plaintiffs, the Court concluded that “but for the
Ordinance, PPLC would commence plans to reverse the flow of crude oil and would
begin marketing that oil.” Id. at 38–38. However, the Court cautioned that “it
remains to be seen whether PPLC will amass a set of facts sufficient for the Court to
make its legal determinations [regarding justiciability] . . . .” Id. at 40.
Subsequent to the Court’s Order, the parties engaged in discovery, and on
November 17, 2016, the parties filed cross motions for summary judgment with
supporting statements of material facts. Pls.’ Mot. for Summ. J. (ECF No. 87); PSMF
(ECF No. 89); Defs.’ Consolidated Mot. to Dismiss Pursuant to Rule 12(b)(1) and Mot.
for Summ J. (ECF No. 88) (Defs.’ Mot. for Summ. J. and to Dismiss); Defs.’ Rule
12(b)(1) and Loc. R. 56(b) Statement of Undisputed Material Facts [Redacted Verion]
(ECF No. 95). As part of their motion for summary judgment, the Defendants also
renewed their motion to dismiss for lack of subject matter jurisdiction pursuant to
Rule 12(b)(1). Defs.’ Mot. for Summ. J. and to Dismiss at 2–3.
To support their claim that the matter is not ripe, the Defendants argue that
there is not a sufficient supply of oil flowing into MPLL’s facilities in Montreal East
to make PPLC’s flow reversal project economically feasible. Id. at 15–16. Here, the
Defendants rely on their expert, Sarah Emerson. See Decl. of Sarah Emerson, Ex. 1,
Mem. for City of South Portland at 7–9 (ECF No. 91) (Emerson Decl.). Ms. Emerson
explains that there are two sources of crude oil currently available to supply PPLC’s
reversal project: railway infrastructure transporting crude oil from western Canada
to Quebec, and the Enbridge Line 9 pipeline running from Sarnia, Ontario, and

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terminating at MPLL’s facilities in Montreal East. Id. Ms. Emerson estimates that
60,000 barrels per day would be available by railway but that the high cost of
transporting crude oil by rail would make the reversal plan uneconomical given the
current market conditions. Id. at 9.
Focusing on the Enbridge pipeline, Ms. Emerson states that the amount of
crude oil from Line 9B that would be available for PPLC to ship south from Montreal
East to South Portland “is currently and should remain close to zero.” Id. According
to Ms. Emerson, this is because two other refineries in Quebec—Suncor and Valero—
have already entered into “take or pay” commitments for ninety percent of the
capacity of Line 9. Id. Ms. Emerson concludes that “as a result of the commitments
by Suncor and Valero to receive crude oil from Line 9, there is little to no ‘spare’ crude
oil from Line 9” to feed PPLC’s reversal project.” Id. at 6. Because there is no “spare”
crude to supply the PPLC reversal project, the Defendants contend that the matter
is not ripe. Defs.’ Mot. for Summ. J. and to Dismiss at 15–16.
In response, the Plaintiffs argue that Ms. Emerson lacks personal knowledge
of the facts asserted in her declaration, and thus, the facts are inadmissible. Pls.’
Resp. to Defs.’ Statement of Material Fact ¶ 10 (ECF No. 128). The Plaintiffs further
highlight that the Defendants “cannot point to any of the actual shipping agreements
between Suncor or Valero and Enbridge [and] can only speculate as to what those
agreements provide . . . .” Pls.’ Mem. in Opp’n to Defs.’ Mot. to Dismiss and for Summ.
J. at 8–9 (ECF No. 127). Additionally, the Plaintiffs point out that even if Suncor and
Valero receive “significant shipments” of oil from Enbridge Line 9, Enbridge can make

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oil available for PPLC by expanding the throughput of Line 9 without significant
investment. Id. at 9.
On May 11, 2017, the Court issued an interim order holding in abeyance the
parties’ motions for summary judgment and ordering further proceedings under
Federal Rule of Civil Procedure 12(b)(1) to resolve whether the Court has subject
matter jurisdiction. Interim Order at 11–12 (ECF No. 156). The Court expressed
discomfort with the factual underpinnings of Ms. Emerson’s opinions, but it noted
that her testimony “raises substantial questions about the practical ability of the
Plaintiffs to move forward with a plan to reverse the flow of their pipelines.” Id. at
10.

Rather than rule on a truncated record, the Court requested “additional

assistance from the parties to clarify the factual jurisdictional disputes and to provide
materials of evidentiary quality to assist the Court’s determination.” Id. at 11.
On June 8, 2017, the Court held a telephone conference in which the parties
agreed to schedule a hearing to present evidence on the Court’s subject matter
jurisdiction. Min. Entry (ECF No. 159). The parties set the hearing date for August
9, 2017. Notice of Re-Sched. Hr’g (ECF No. 165). In anticipation of the hearing, and
in accordance with the Court’s request, both parties submitted witness lists and
summaries of their witnesses’ expected testimony. Pls.’ Witness List (ECF No. 169);
Defs.’ Witness List (ECF No. 170); Direct Testimony of Thomas A. Hardison (ECF No.
171) (Hardison Decl.); Defs.’ Summ. of Direct Exam. Test. (ECF No. 173).
The Plaintiffs listed Thomas A. Hardison, the president of PPLC, as their only
witness and submitted an affidavit of Mr. Hardison summarizing his expected

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testimony. Pls.’ Witness List at 1; Hardison Decl. ¶¶ 1–70. In his affidavit, Mr.
Hardison responded to Ms. Emerson’s assertion that the amount of crude oil available
for PPLC’s reversal project from Enbridge Line 9B “is currently and should remain
close to zero”. Hardison Decl. at ¶¶ 47–55. Mr. Hardison referenced “available data”
that demonstrate that “[Enbridge] Line 9B can be a sufficient source of volume for
PPLC to support flow reversal under current conditions.” Id. at ¶ 54. Mr. Hardison
explains that MPLL’s Montreal East facilities and Enbridge Line 9B are “physically
interconnected” and that all crude oil that arrives in Montreal East through Line 9B
passes into and through MPLL’s facilities. Id. From there, MPLL can then store the
oil in its tanks or direct the oil onward to the Suncor or Valero refineries. Id. Mr.
Hardison stated that, as a result of this arrangement, Enbridge provides electronic
data reflecting the volume delivered from Line 9B to the main computer that monitors
and runs PPLC’s pipeline infrastructure. Id.
According to Mr. Hardison, Line 9B has a stated “nameplate” capacity of
300,000 barrels per day. Id. at ¶ 55. He claimed that the data indicate that since
December 2015, Line 9B has delivered a monthly average of 215,000 barrels per day
to Suncor and Valero through MPLL’s facilities in Montreal East, thus leaving 85,000
barrels per day available under Line 9B’s nameplate capacity. Id. Furthermore, Mr.
Hardison stated that “there have been days where Line 9B’s volume has reached as
high as 320,000 barrels per day”—20,000 barrels over its nameplate capacity.
Accordingly, Mr. Hardison contended that “Line 9B can make available over 100,000
barrels per day in volume in addition to what Suncor and Valero currently transport

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on the line.” Id. Mr. Hardison therefore concluded that there is sufficient volume
available on Line 9B to support a successful flow reversal project. Id.
On July 10, 2017, counsel for the Defendants sent an email to counsel for the
Plaintiffs, complaining that the Plaintiffs failed to produce the data underlying Mr.
Hardison’s testimony. Defs.’ Mot. in Limine, Attach. 6, July 10, 2017 Email at 2 (ECF
No. 172). Accordingly, counsel for the Defendants demanded that the Plaintiffs
produce all data that Mr. Hardison used in formulating his testimony. Id. at 2–3.
Counsel for the Plaintiffs responded the following day. Defs’ Mot. in Limine, Attach.
7, July 11, 2017 Email (ECF No. 172) (July 11, 2017 Email). They denied that the
Defendants were entitled to the data. Id. at 2–3. Nevertheless, counsel for the
Plaintiffs provided the Defendants with a spreadsheet showing the monthly average
of barrels of crude oil per day flowing from the Enbridge Line 9 through MPLL’s
facilities in Montreal East. Id. at 5. According to counsel for the Plaintiffs, the
spreadsheet “represents all of the data available to PPLC that supports Mr.
Hardison’s testimony about how much additional capacity on Enbridge Line 9 could
be available to ship south on PPLC’s pipeline.” Id. at 4.
On July 14, 2017, the Defendants moved in limine to exclude from evidence
any data or testimony concerning the volume of crude oil delivered to MPLL from
Line 9B. Defs.’ Mot. in Limine (ECF No. 172) (Defs.’ Mot.). The Plaintiffs responded
on August 2, 2017. Pls.’ Opp’n to Defs. Mot. in Limine (ECF No. 175) (Pls.’ Opp’n).
The Defendants replied on August 4, 2017. Reply Mem. in Supp. of Defs.’ Mot. in
Limine (ECF No. 176) (Defs.’ Reply).

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II.

PARTIES’ POSITIONS
A.

The Defendants’ Motion in Limine

The Defendants move in limine under Federal Rule of Civil Procedure 37(c)
and Federal Rules of Evidence 701 and 1006 to exclude from evidence any data or
testimony concerning the volume of crude oil passing through MPLL’s facilities in
Montreal East from the Enbridge 9B pipeline. Defs.’ Mot. at 1.
1.

Federal Rule of Civil Procedure 37(c)

First, the Defendants argue that the Court should exclude the Line 9B
volumetric data underlying Mr. Hardison’s testimony as a sanction under Rule 37(c)
because the Plaintiffs failed to produce the data during discovery. Id. at 3–4. The
Defendants allege that they asked specifically for this data in two separate requests
for production—Request #2 and Request #24. Id. at 2. Request #2 sought “All
documents identified in Plaintiffs’ Initial Disclosures.” Defs.’ Mot., Attach. 2, Pls.
PPLC’s Resp. to Defs.’ First Req. for Prod. of Docs. and Things at 2 (ECF No. 172)
(Resp. to Req. for Prod.). The Plaintiffs’ initial disclosures stated that the Plaintiffs
“may use . . . documents regarding the throughput volume of oil through its pipeline
facilities” in support of their claims. Defs.’ Mot., Attach. 3, Pls.’ Rule 26(a) Initial
Disclosures at 2 (ECF No. 172) (Initial Disclosures). Request #24 sought “Any and all
documents, including, but not limited to, studies, reports, and analyses, whether or
not commissioned by PPLC, since January 1, 2004, concerning transportation of
Canadian Crude oil, including but not limited to . . . (e) The Enbridge Line 9 Project.”
Resp. to Req. for Prod. at 3.

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Moreover, when the Defendants asked Mr. Hardison during his deposition
whether there were “any documents at PPLC that set out the current projections for
how much oil could be available from Enbridge Line 9,” Mr. Hardison replied, “No,
not that I’m aware of.” Defs.’ Mot. at 3 (citing Defs.’ Mot., Attach 5, 30(b)(6) Dep. of
PPLC and Thomas A. Hardison 81:3–7 (ECF No. 172) (Hardison Dep.)).

The

Defendants assert that there is no “substantial justification” for the nondisclosure
and that the nondisclosure is not harmless. Defs.’ Mot. at 4–7. Thus, because the
Plaintiffs failed to provide the data in response to the Defendants’ requests for
production, the Defendants argue that the Court must exclude the data under
Federal Rule of Civil Procedure 37(c).
2.

Federal Rule of Evidence 1006

Second, the Defendants assert that the Court should exclude Mr. Hardison’s
testimony regarding the “monthly average” of throughput on Enbridge Line 9B. Id.
The Defendants explain that Federal Rule of Evidence 1006 allows a party to
introduce a calculation to prove the content of voluminous records but requires the
proponent to make the originals available to the opposing party. Id. (citing FED. R.
EVID. 1006). The Defendants contend that they have not had an opportunity to
examine the data underlying Mr. Hardison’s calculation. Id. The Defendants point
out that the Plaintiffs merely provided them with a “one-page summary” and refused
to provide the data itself and sufficient contextual information.” Id. at 3. Therefore,
the Defendants argue that the Court must exclude Mr. Hardison’s testimony on the
“monthly average.” Id. at 7.

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3.

Federal Rule of Evidence 701–702

Third, the Defendants argue that Mr. Hardison’s testimony is undisclosed
expert opinion in the guise of lay testimony. Id. at 7–9. The Defendants contend that
determining the “availability” of oil on Line 9 requires specialized knowledge that
does not “result from a process of reasoning familiar to everyday life.” Id. at 9 (citing
United States v. Sepulveda-Hernandez, 752 F.3d 22, 34 (1st Cir. 2014)). Because the
Plaintiffs did not designate Mr. Hardison as an expert, the Defendants contend that
his testimony concerning the availability of crude oil for PPLC’s reversal project is
inadmissible. Id. at 7.
B.

The Plaintiffs’ Response
1.

Federal Rule of Civil Procedure 37(c)

The Plaintiffs respond that there can be no sanction for failing to disclose or
supplement under Rule 37(c) where there was no duty to disclose in the first place.
Pls.’ Opp’n at 5. First, the Plaintiffs contend that PPLC had no duty to produce data
that the City never diligently pursued in discovery.

Id.

They assert that the

Defendants never specifically requested data concerning the volume shipped on Line
9 in their requests for documents. Id. at 6. The Plaintiffs explain that they objected
to the Defendants’ requests for documents as overly broad and only provided some,
but not all, of the documents that the Plaintiffs requested. The Plaintiffs point out
that the Defendants “appeared content” with the Plaintiffs’ approach and did not seek
judicial relief with respect to the Plaintiffs’ objections. Id. Moreover, the Plaintiffs
observe that the Defendants never requested the data in their interrogatories, nor

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did the Defendants seek the data directly from Enbridge. Id. Additionally, the
Plaintiffs assert that Mr. Hardison testified at his deposition that PPLC knew the
volume “available on the Enbridge pipeline system today” but that the Defendants
never sought the data. Id. at 7. Because the Plaintiffs did not diligently pursue the
data in discovery, the Plaintiffs argue that they had no duty to produce the
information.
Second, the Plaintiffs submit that they have no duty to produce the data
because the information is offered “for the purpose of rebutting Ms. Emerson’s
anticipated testimony.” Id. at 5; see also July 11, 2017 Email at 2 (contending that
the data constitute “rebuttal testimony for which no advance disclosure is required”).
The Plaintiffs contend that even if they failed to supplement their discovery,
the Court should not issue a sanction under Rule 37(c) because the failure was
“substantially justified” and “harmless.” Id. at 7. The Plaintiffs assert that they were
justified in not providing the data because “PPLC never anticipated that the specific
issue of Line 9B’s capacity would become a consideration in the standing analysis”
and that the “issue has been thrust on PPLC . . . .” Id. at 7. The Plaintiffs insist that
the failure to supplement the discovery was harmless because the Defendants’ expert
has now had the opportunity to consider Mr. Hardison’s testimony and is able to
respond to it. Id. at 7–8.
2.

Federal Rule of Evidence 1006

Next, the Plaintiffs contend that they have provided the Defendants with the
underlying values giving rise to the monthly average data underlying Mr. Hardison’s

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testimony. Id. at 8 (citing July 11, 2017 Email at 5). The Plaintiffs insist that the
Defendants have “had more than enough time to evaluate whether Mr. Hardison’s
testimony accurately states the average of the monthly volumes set forth in the
underlying data,” and thus, Rule 1006 provides no basis for excluding Mr. Hardison’s
testimony. Id. at 8–9.
3.

Federal Rule of Evidence 701–702

Finally, the Plaintiffs assert that Mr. Hardison’s testimony concerning the
availability of oil on Enbridge Line 9B is not expert testimony. Id. at 9. They explain
that Mr. Hardison’s testimony regarding the volume of Line 9B consists of “two
simple points: (a) the volume of crude oil that has shipped on Line 9B since December
2015, and (b) the unused capacity on line 9B demonstrated by its historical
performance.” Id. According to the Plaintiffs, the former reflects facts about MPLL
and PPLC’s operations have occurred during the time that Mr. Hardison has served
as MPLL and PPLC’s president and of which he has personal knowledge. Id. The
latter, the Plaintiffs explain, flows naturally from the former. Id. The Plaintiffs
maintain that neither statement constitutes expert testimony. Id.
C.

The Defendants’ Reply

In reply, the Defendants argue that the Plaintiffs’ objections to the Defendants
requests for production do not excuse the Plaintiffs from failing to produce the data.
Defs.’ Reply at 2. Moreover, the Plaintiffs assert that they were diligent in pursing
the data; they contend that they twice inquired to make sure they had received all

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the materials that the Plaintiffs would use to support their case as identified in their
Initial Disclosures. Id. at 3.
According to the Defendants, the spreadsheet showing the monthly volumes
from the Enbridge Line 9B pipeline is “wholly unsatisfactory” under Federal Rule of
Civil Procedure 34 and Federal Rule of Evidence 1006. Id. at 3. The Defendants
point out that Mr. Hardison offered testimony as to the daily flows of Line 9B, but
the spreadsheet does not include the daily figures. Id. Moreover, the Defendants
explain that “whether the crude oil ‘averaged’ by Mr. Hardison is heavy or light
commodity would have [an] impact on whether there is actually ‘available’ volumes
of crude oil for southward transportation.” Id. Thus, the Defendants insist that they
are entitled to the complete information underlying the spreadsheet the Plaintiffs
provided. Id. at 3–4.
III.

DISCUSSION
A.

Federal Rule of Civil Procedure 37(c)

Federal Rule of Civil Procedure 37 (c) provides:
If a party fails to provide information or identify a witness as required
by Rule 26(a) or (e), the party is not allowed to use that information or
witness to supply evidence on a motion, at a hearing, or at a trial, unless
the failure was substantially justified or is harmless.
FED. R. CIV. P. 37(c)(1). Hence, the applicability of Rule 37(c) in this case turns on
whether the Plaintiffs failed to provide the data in violation of Rule 26(a) or (e) and,
if so, the significance of the Plaintiffs’ failure and what sanction, if any, should be
imposed.

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Rule 26(a) pertains to required disclosures, including initial disclosures. FED.
R. CIV. P. 26(a). Rule 26(a)(1)(A)(ii) requires parties to submit “a copy–or a description
by category and location—of all documents, electronically stored information, and
tangible things that the disclosing party has in its possession, custody, or control and
may use to support its claims or defenses, unless the use would be solely for
impeachment.” FED. R. CIV. P. 26(a)(1)(A)(ii). The Plaintiffs fulfilled this requirement
with respect to the data in question.

In their initial disclosures, the Plaintiffs

revealed that “PPLC has the following categories of documents, which are located at
its offices at 30 Hill Street, South Portland, Maine: . . . documents regarding the
throughput volume of oil through its pipeline facilities . . . .” Initial Disclosures at 3.
In sum, the Court concludes that PPLC satisfied its requirements under Rule 26(a).
Rule 26(e), relating to supplementing discovery disclosures, presents a more
difficult question. The rule provides:
A party who has made a disclosure under Rule 26(a)—or who has
responded to an interrogatory, request for production, or request for
admission—must supplement or correct its disclosure or response:
(A) in a timely manner if the party learns that in some material
respect the disclosure or response is incomplete or incorrect, and
if the additional or corrective information has not otherwise been
made known to the other parties during the discovery process or
in writing; or
(B) as ordered by the court.
Fed. R. Civ. P. 26(e).
The Defendants assert that they specifically asked for this data in two
documents requests. Defs.’ Mot. at 4. As mentioned above, the Defendants’ document
Request #2 asked for “All documents identified in Plaintiffs’ Initial Disclosures.”
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Resp. to Req. for Prod. at 3. Request #24 sought “Any and all documents, including,
but not limited to, studies, reports, and analyses, whether or not commissioned by
PPLC, since January 1, 2004, concerning transportation of Canadian Crude oil,
including but not limited to . . . (e) The Enbridge Line 9 Project.” Resp. to Req. for
Prod. at 4. Yet the Plaintiffs objected to these requests and ultimately turned over
only a limited number of documents excluding the data in question. Resp. to Req. for
Prod. at 3–5. There is no evidence that the Defendants pursued the discoverability
of the data further, despite the plain language in the initial disclosure that PPLC
possessed documents “regarding the throughput volume of oil.”
The Defendants suggest that Mr. Hardison misled them as to whether PPLC
possessed the data in question during his deposition. The Defendants point out that
when the Defendants asked Mr. Hardison during his deposition whether there were
“any documents at PPLC that set out the current projections for how much oil could
be available from Enbridge Line 9,” Mr. Hardison replied, “No, not that I’m aware of.”
Defs.’ Mot. at 3 (citing Hardison Dep. 81:3–8). Yet, the deposition transcript is clear
that the Defendants asked Mr. Hardison if PPLC had any documents relating to
projections for how much oil would be available from Enbridge Line 9, not whether
PPLC had any documents regarding the volume of oil that Enbridge Line 9 actually
pumped through its facilities. In sum, nothing in the Defendants’ conduct in this case
prompted a duty on the part of the Plaintiffs to supplement their Rule 26(a)
disclosures.

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Nevertheless, the Court’s Interim Order changed the landscape of the
litigation. In the Interim Order, the Court wrote:
[T]he Court is unclear on the extent to which PPLC’s marketing efforts depend
on crude oil flowing from west to east on the reversed Enbridge Line 9 system;
whether the oil flowing west to east on the Enbridge Line 9 system is already
committed to other refineries; the ramifications of the take-or-pay contracts
between Enbridge Pipelines, Inc., and Suncor and Valero Jean Gaulin
Refineries near Montreal, Quebec . . . .
Interim Order at 8–9. With the issuance of this Interim Order, the data in PPLC’s
possession regarding the volumetric capacity of Enbridge Line 9B became a central
issue in this part of the dispute. It is no answer for PPLC to complain that it “never
anticipated” that the issue of the capacity of Line 9B “would become a consideration”
and that the issue had been “thrust” upon it and therefore Rule 26(e) somehow does
not apply. Pls.’ Opp’n at 7. Once the Court deemed the issue significant, whether
PPLC agrees it should be or not, the issue became part of the case and should have
caused PPLC to reevaluate its disclosure obligations under Rule 26(e).
PPLC suggests that it does not need to disclose the data under Rule 26(a)—
and thus to supplement under Rule 26(e)—because the data serve merely as rebuttal
evidence. Pls.’ Opp’n at 2, 5; see also July 11, 2017 Email at 2 (contending that the
data constitute “rebuttal testimony for which no advance disclosure is required”).
PPLC cites no rule or caselaw that supports the notion that categorizing otherwise
discoverable information as “rebuttal” shields it from disclosure. The Court is aware
of no rule excepting “rebuttal evidence” from discovery. Rather, Rule 26(a) only
provides an exception for information “used solely for impeachment.” FED. R. CIV. P.
26(a)(1)(A)(ii). Here, based on the content of Mr. Hardison’s proposed testimony,
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PPLC has confirmed that it intends to use the data for more than impeachment. The
Court is concerned that it will be left in the same position it was in before the
evidentiary hearing: questioning the underpinnings of Ms. Emerson’s testimony but
bereft of any substantive evidence on PPLC’s actual ability to reverse the flow of its
pipeline. In short, the Court views with skepticism PPLC’s excuses for failing to
supplement its discovery with the underlying data after the Interim Order.
Nevertheless, this does not end the discussion because PPLC did turn over the
spreadsheet and therefore, the Court turns to whether the spreadsheet that PPLC
did produce satisfies its disclosure obligations. July 11, 2017 Email at 5. Based on
this record, the Court is at a disadvantage on this issue because it is difficult to know
how significant this controversy really is, especially in light of the fact that the
underlying data have not been disclosed. If the underlying data, once disclosed, track
the contents of the spreadsheet, it would be difficult to see how the Defendants have
been prejudiced. Yet if the underlying data reveal significant flaws in Mr. Hardison’s
opinions, the Defendant will have been disadvantaged from PPLC’s inaction.
The Court has resolved that it will not grant the Defendants’ primary objective,
namely to exclude Mr. Hardison’s testimony to the extent his testimony relies on the
underlying, non-disclosed data. This would leave the Court in precisely the same
position it was in when it issued the May 11, 2017 interim order, attempting to
evaluate justiciability without any testimony on the capacity of Line 9B from PPLC,
deciding the case, not on the merits, but on the difficult evidentiary issue of whether
the data upon which the Defendant’s expert relied is admissible for the truth of the

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matter, and resting its judgment on a matter of public concern on a technical legal
issue and not on the merits. Accordingly, the Court will not exclude Mr. Hardison’s
testimony on the issue before the Court because it would be much too drastic a
sanction.
All of this may become clearer during the August 9, 2017 evidentiary hearing,
when Mr. Hardison testifies, both on direct and cross examination. The Court will be
in a better position to determine whether this is more or less than it seems to be and
whether it is necessary to impose some type of a sanction, such as requiring PPLC to
immediately disclose the underlying data and allowing the Defendant to quickly
depose Mr. Hardison post-hearing to present a complete record. The resolution of
these issues, however, must await the upcoming hearing.
B.

Federal Rule of Evidence 1006

Mr. Hardison testified to the overall monthly average volume of oil delivered
by Line 9B since December 2015. Hardison Decl. ¶ 55. The Defendants complain
that the Plaintiffs have refused to provide any opportunity for the Defendants to
examine or copy the relevant data underlying Mr. Hardison’s calculation. Defs.’ Mot.
at 7. The parties’ filings indicate otherwise. The Plaintiffs provided a spreadsheet
containing the relevant data–namely, the overall monthly average volume (in
barrels/day) of oil delivered to MPLL’s facilities by Line 9B since December 2015.
July 11, 2017 Email at 5.
The Defendants also argue that Mr. Hardison has offered testimony as to daily
flows, but that the Plaintiffs have not offered these figures.

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Defs.’ Reply at 3.

Testimony about the daily flows of Enbridge Line 9B does not implicate Rule 1006.
Mr. Hardison is not using a “summary, chart, or calculation to prove the content of
voluminous writing, recordings or photographs that cannot be conveniently examined
in court.” FED. R. EVID. 1006. Rather, as discussed below, Mr. Hardison is simply
testifying to the flows he is personally aware of in his position as president of both
MPLL and PPLC.
C.

Expert versus Lay Testimony

Mr. Hardison’s testimony concerning the availability capacity of Enbridge Line
9B is not expert testimony under Rule 702. Mr. Hardison testifies that since the
Enbridge Line 9B pipeline began flowing east in December 2015, “there have been
days where Line 9B’s volume has reached as high as 320,000 barrels per day.”
Hardison Decl. ¶ 55. Further, he testifies that since December 2015, it has delivered
a monthly average of 215,000 barrels per day. Id. During this time period, Mr.
Hardison was the president of both MPLL and PPLC. Id. ¶ 2. He has worked for the
company for over forty years. Id. He explains that for nearly forty years, Enbridge
Line 9B has been physically interconnected with PPLC’s pipeline infrastructure. Id.
¶ 54. As a result of this arrangement, PPLC receives data from Enbridge about the
volumetric flow of Line 9B. Id.
The “line between expert testimony under [Federal] Rule [of Evidence] 702 and
lay opinion testimony under [Federal] Rule [of Evidence] 701 is, in practice, ‘not [an]
easy [one] to draw.” United States v. Valdivia, 680 F.3d 33, 50 (1st Cir. 2012) (quoting
United States v. Colón Osorio, 360 F.3d 48, 52–53 (1st Cir. 2004)). However, as the

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First Circuit observed in United States v. Munoz-Franco, 487 F.3d 25 (1st Cir. 2007),
courts have allowed lay witnesses to testify under Rule 701 “about a business based
on the witness’s own perceptions and knowledge and participation in the day-to-day
affairs of the business.” Id. at 35 (internal punctuation omitted). Here, the Court is
satisfied that Mr. Hardison has the requisite competence as PPLC’s president to
testify about the volume of crude oil shipped on Line 9B since December 2015 and the
unused capacity on Line 9B as these matters should be within his personal knowledge
in his capacity as PPLC’s chief executive officer.
Thus, Mr. Hardison is able to testify about the volumetric flow pumped into
MPLL’s facilities without qualifying as an expert. His testimony is not based on
“scientific, technical, or other specialized knowledge within the scope of Rule 702”;
rather, it is “rationally based on [his] perception” as the president and long-time
employee of the very company with access to the volumetric flow data. FED. R. EVID.
701(a), (c).
The Defendants assert that determining the “availability” of oil on Line 9B is
not within the ken of a layperson. Defs.’ Mot. at 9. The Court disagrees. Mr.
Hardison applied simple arithmetic. If the stated capacity of Line 9B is 300,000
barrels per day, and the data show that Line 9B is pumping an average of 215,000
barrels per day, then, there is an average of 85,000 barrels per day of capacity that is
available to supply the PPLC project. This testimony does not require specialized
knowledge within the meaning of Rule 702.
IV.

CONCLUSION

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The Court DENIES the Defendants’ motion in limine to exclude from evidence
any testimony or documents concerning the volume of crude oil delivered to Montreal
East from Enbridge Line 9B (ECF No. 172) and the Court DEFERS ruling on whether
some lesser sanction is warranted, and if so, what that sanction should be, in light of
Portland Pipe Line Corporation’s failure to disclose the data underlying their
witness’s proposed testimony.
SO ORDERED.
/s/ John A. Woodcock, Jr.
JOHN A. WOODCOCK, JR.
UNITED STATES DISTRICT JUDGE
Dated this 8th day of August, 2017

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