Columbia Gas Transmission, LLC v. 252.071 Acres, More or Less, In Baltimore County, Maryland et al

Filing 236

ORDER granting in part and denying in part 222 Defendants' Motion to Compel; and granting in part and denying in part 224 Plaintiff's Motion to Compel. Signed by Magistrate Judge Stephanie A Gallagher on 10/6/2016. (bmhs, Deputy Clerk) Modified on 10/6/2016 (bmhs, Deputy Clerk).

UNITED STATES DISTRICT COURT
DISTRICT OF MARYLAND
CHAMBERS OF
STEPHANIE A. GALLAGHER
UNITED STATES MAGISTRATE JUDGE

101 WEST LOMBARD STREET
BALTIMORE, MARYLAND 21201
[phone]
Fax [phone]

October 6, 2016

LETTER TO COUNSEL
RE:

Columbia Gas Transmission, LLC v. 252.071 Acres, More or Less, in Baltimore
County, Maryland, et al.; Civil Case No. ELH-15-3462

Dear Counsel:
Pursuant to an order referring this case to me for discovery, [ECF No. 223], I have
reviewed the Motions to Compel filed by both parties, and the oppositions and replies thereto.
[ECF Nos. 222, 224]. No hearing is deemed necessary. See Loc. R. 105.6 (D. Md. 2016). For
the reasons set forth below, Defendants’ Motion to Compel will be GRANTED IN PART and
DENIED IN PART; and Plaintiff’s Motion to Compel will be GRANTED IN PART and
DENIED IN PART.
I. Background
Plaintiff Columbia Gas Transmission LLC (“Columbia”) is authorized by the Federal
Energy Regulatory Commission (“FERC”) to engage in the business of transporting natural gas.
Columbia has operated a natural gas pipeline (“Line MB”1) in and around Baltimore County
since the 1960s. See Pl.’s Compl., [ECF No. 1 at 22]. Columbia now seeks to construct and
operate an extension to Line MB. Id. FERC issued a certificate of public convenience and
necessity to Columbia for this purpose on November 21, 2013. Id. Subsequently, Columbia
filed a complaint in condemnation against numerous owners of interest in real property
(“Defendants”) seeking temporary and permanent easements on Defendants’ property necessary
to carry out the project. Id. Defendants Dean L. and Jill K. Fiergang, Mary M. Herndon, Robert
and Joan M. Iwanowski, Chanan and Adriana Levy, Benjamin Lowentritt, Steven G. and Lisa C.
Luray, Lee Snyder, and Timothy S. Wang are involved in the instant discovery dispute.
In March, 2016, U.S. District Judge Ellen L. Hollander granted Columbia’s Motion for
Partial Summary Judgment and Immediate Possession, allowing Columbia to begin surveying
and construction activities and to take immediate possession of the areas of Defendants’ property
over which easements are sought. See [ECF Nos. 163, 164]. The only issues remaining before
the Court involve determining “whether Columbia is entitled to any permanent land rights in this
1

The parties alternate between referring to the existing natural pipeline as “Line MB” (see, e.g., [ECF No. 1 at 22])
and “Line MA” (see, e.g., [ECF No. 222-2 at 5]; see also [ECF No. 163 at 12]). I will refer to the existing natural
pipeline as “Line MB” and the project as “Line MB Extension,” consistent with the initial complaint in this matter.

Columbia Gas v. 252.071 Acres, et al.
Civil Case No. ELH-15-3462
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Page 2
matter” and “the amount of any just compensation owed to the [Defendants] in this matter.”
Order Granting Pl.’s Mot. for Immediate Possession of the Easements, [ECF No. 181 at 3]. The
instant discovery dispute relates to the latter of these two issues.
The parties’ Amended Scheduling Order set a discovery deadline of November 4, 2016.
See [ECF No. 221]. The parties exchanged interrogatories and requests for production beginning
in January, 2016. See [ECF Nos. 222 at 1-3, 224 at 1-4]. Answers and responses from both
sides, as well as discussions intended to cure perceived deficiencies, followed. Id. Despite these
efforts, Defendants filed their Motion to Compel Discovery Responses on July 13, 2016. See
[ECF No. 222]. Columbia’s Motion to Compel Discovery Responses followed on July 14, 2016.
See [ECF No. 224].
Each party disputes the adequacy of several of its opponent’s Responses to Document
Production Requests and Answers to Interrogatories. Specifically, the following Answers and
Responses are contested:








Columbia’s Responses to Defendants’ Requests for Document Production Nos. 9, 16, 20,
21, and 23 as to Defendants Fiergang, Herndon, Iwanowski, Levy, Lowentritt, and Luray;
Columbia’s Responses to Defendants’ Requests for Document Production Nos. 27, 28,
and 30 as to Defendant Herndon;
Columbia’s Responses to Defendants’ Requests for Document Production Nos. 27 and 28
as to Defendants Lowentritt and Fiergang;
Columbia’s Responses to Defendants’ Requests for Document Production No. 27 as to
Defendant Iwanowski;
Columbia’s Answers to Defendants’ Interrogatories Nos. 1 and 18 as to Defendants
Fiergang, Herndon, Iwanowski, Levy, Lowentritt, and Luray;
Defendants’ Response to Columbia’s Request for Document Production No. 3 as to
Defendants Fiergang, Herndon, Iwanowski, Levy, Lowentritt, Luray, Snyder, and Wang;
and
Defendants’ Answer to Columbia’s Interrogatory No. 14 as to Defendants Fiergang,
Herndon, Iwanowski, Levy, Lowentritt, Luray, Snyder, and Wang.
I will address each of these disputes in turn.

II. Legal Standard
Federal Rule of Civil Procedure 26(b)(1) permits discovery of “any nonprivileged matter
that is relevant to any party’s claim or defense and proportional to the needs of the case.” In
determining proportionality, the Court must consider “the importance of the issues at stake in the
action, the amount in controversy, the parties’ relative access to relevant information, the parties’
resources, the importance of the discovery in resolving the issues, and whether the burden or
expense of the proposed discovery outweighs its likely benefit.” Fed. R. Civ. P. 26(b)(1).

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III. Discussion
A. Defendants’ Motion to Compel
1. Graphic representations, surveys, construction and engineering plans, and
related visual and technical information
i. Request for Document Production No. 9
Defendants’ Request for Document Production No. 9 asks Columbia to produce all
graphic representations, such as photographs, maps, diagrams or surveys, relating to the
Defendants’ Property. Defs.’ Mot. to Compel, [ECF No. 222-1 at 7]. Columbia contends
Request No. 9 is overly broad, unduly burdensome, and irrelevant to the extent it seeks graphic
representations of Defendants’ property prior to the date of the taking. Id. Nonetheless,
Columbia promised to produce any plats depicting the easements it seeks to acquire relating to
Defendants’ property, and reserved the right to supplement its Response with documents
produced as part of its expert disclosures. Id. at 7-8. Defendants claim that Response No. 9 is
deficient because Columbia has limited its production to plats amounting to “rough sketches of
the properties and Line MB locations” that lack specificity as to the location of the lots, as well
as the permanent and construction easements sought. Id. at 1-2, 8. In its Opposition, Columbia
insists that it has already produced all non-privileged and responsive documents it possesses
relating to this Request and, therefore, that Defendants’ motion to compel should be denied.
Pl.’s Opp., [ECF No. 222-2 at 2].
According to Judge Hollander’s finding, Columbia has furnished the following graphic
representations:




A set of maps identifying “each particular lot for which Columbia seeks an easement
relative to adjacent properties and major roads;”
A set of maps containing “diagrams purporting to show the path of the pipeline and the
proposed easement on each tract of affected land;” and
Revised plats supplying “(1) a bar scale that depicts the actual distances on the plat, (2)
the location of the existing Line MA pipeline, (3) the location of the Line MB easement
as approved by FERC, and (4) the distance between the existing Line MA pipeline and
the Line MB easement, (5) the distance between the Line MA pipeline and the Line MB
easement at the corners for some of the property, (6) the distance between the existing
Line MA pipeline and some of the nearby buildings, (7) the distance between the
existing Line MA pipeline and some of the nearby wells, and (8) additional property
boundary features.”

Mem. Op., [ECF No. 163 at 12-15]. Judge Hollander’s account is at odds with Defendants’
claim that Columbia has only provided “meaningless plats” responsive to Request No. 9. Defs.’
Mot. to Compel, [ECF No. 222-1 at 8]. Indeed, Judge Hollander concludes that the lot and block
maps, diagrams, and accompanying written descriptions identifying the parcel number, liber
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folio number, and exact size of each easement for each property properly put Defendants “on
notice of the location and size of the proposed easements.” Mem. Op., [ECF No. 163 at 15].
Judge Hollander’s summary corroborates Columbia’s representation that it has already
produced all non-privileged responsive documents. Columbia is subject to a duty to supplement
if additional responsive documents are discovered, but otherwise Defendants’ motion to compel
further response to Request No. 9 is denied.
ii. Request for Document Production No. 20
Defendants’ Request for Document Production No. 20 asks Columbia to produce “[a]ll
past or present plats, specifications, construction plans, engineering plans, and other documents
relating to… the Project and the Property.” Defs.’ Mot. to Compel, [ECF No. 222-1 at 11].
Defendants insist that the specific technical information encompassed by Request No. 20 is
relevant to the valuation of the damages done to their respective properties, and will help form
the basis of Defendants’ expert testimony and opinions. Id. at 11-12.
Columbia has agreed to produce any plats for Defendants’ properties, but objects that the
definition of “Project” is overly broad, unduly burdensome, and seeks information beyond the
scope of this action. Id. Specifically, Columbia states that “the Court already entered Orders
that confirm the location and size of Columbia’s easements on the properties,” essentially
rendering Defendants’ Request No. 20 superfluous. Pl.’s Opp., [ECF No. 222-2 at 2-3].
Columbia further contends that the terms “engineering plans” and “construction plans”
are undefined, and thus vague and confusing. Defs.’ Mot. to Compel, [ECF No. 222-1 at 11-12].
Columbia avers that its construction and engineering plans are not relevant to the issue of just
compensation; they cannot be used to alter or enhance the size or location of the taking; they do
not impact or contain information relevant to the market value of the property at the time of the
taking; they are not relevant to damages because they do not speak to the impact any alleged fear
of pipelines will have on the public when purchasing properties; and, to the extent they are
indicative of post-taking severance damages, they must be brought in a separate action. Pl.’s
Opp., [ECF No. 222-2 at 13-19].
Columbia is bound by a duty to continue to attempt to obtain, and to supplement, all
requested discovery. Fed. R. Civ. P. 26(e). To this end, Columbia is directed to produce all plats
for the Property that have not yet been produced, or have been updated since Columbia produced
Revised Plats on March 6 and 7, 2016, see [ECF Nos. 160, 161], within fourteen (14) days
from the date of this Order. I agree that other plats relating to “the Project” are irrelevant to
the remaining issues in this case.
This leaves “specifications, construction plans, engineering plans, and other [such]
documents.” Defs.’ Mot. to Compel, [ECF No. 222-1 at 11]. I will deny Defendants’ request for
“specifications” on the basis that it is undefined and, as a consequence, vague and ambiguous.
Just compensation is “measured by ‘the market value of the property at the time of the taking.’”
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United States v. 100.01 Acres of Land in Buchanan County, 102 Fed. Appx. 295, 297 (4th Cir.
2004) (unpublished) (citing United States v. 50 Acres of Land, 469 U.S. 24, 29 (1984)). The
documents sought through Request No. 20 are relevant only to the extent they aid this inquiry.
Construction and engineering plans regarding Defendants’ property are forward looking; they do
not represent the state of the property at the time of the taking, but rather Columbia’s
unexecuted, evolving approach to developing, installing, and operating the Line MB Extension.
As such, construction and engineering plans will not shed light on the value of the property taken
or its remainder at the time of the taking. Any claim Defendants have to damages for the alleged
dangers posed by the depth of the pipeline, the materials used in its construction, and other
technical features, are beyond the scope of an action in condemnation. See Washington Metro.
Transit Auth. v. One Parcel of Land, 549 F. Supp. 584, 591-92 (D. Md. 1982) (damages caused
after the date of take not compensable as part of the taking). Except as specified above as to
plats, then, the motion to compel a further response to Defendants’ Request No. 20 is denied.
iii. Interrogatory No. 18
As a preliminary matter, Columbia argues that Defendants failed to confer with Columbia
about its interrogatory answers and certain document requests prior to filing a Motion to Compel,
in violation of Local Rule 104.7 and the Court’s Discovery Guidelines. Pl.’s Opp., [ECF No.
222-4 at 1]. Defendants have neither confirmed nor denied this allegation. While
acknowledging this potential lapse in adherence to the requirements of Local Rule 104.7, I will
proceed with resolving the dispute in the interest of judicial efficiency.
Defendants’ Interrogatory No. 18 asks for all drawings and other construction documents
which engineers, contractors, or construction employees will use to carry out survey or
construction activities on or adjacent to Defendants’ property relating to the Project. Defs.’ Mot.
to Compel, [ECF No. 222-3 at 12]. Defendants also ask Columbia to identify the custodian of
any such drawings or documents. Id. Defendants argue that Columbia’s claim that “below
ground construction has nothing to do with just compensation” is erroneous “as a matter of law
and fact.” Id. at 13. Defendants maintain that field drawings specifying “[t]he exact items to be
buried and their exact location on each property” are not protected by the attorney-client
privilege because they are relied on by Columbia’s employees or contractors performing
construction work. Id. Defendants further insist that this information is essential to the valuation
and damages assessments of Defendants’ remaining properties by Defendants’ experts. Id.
Columbia objects that Interrogatory No. 18 seeks information that is protected by the
attorney-client privilege and/or work product doctrine; is beyond the scope of discovery; and is
overly broad and unduly burdensome because “any documents related to the design and
construction of the natural gas pipeline Columbia will install below ground in the permanent
easement areas has nothing to do with the issue of just compensation.” Defs.’ Mot. to Compel,
[ECF No. 222-3 at 12-13]. Columbia explains that the methods and equipment it will use to
build the pipeline extension are not considered when determining the fair market value of
Defendants’ properties. Pl.’s Opp., [ECF No. 222-4 at 15].

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In its Opposition, Columbia further argues that Interrogatory No. 18 should be denied
because, first, “the Court already entered Orders that confirm the location and size of Columbia’s
easements on the properties,” and second, “this information is not relevant because any harm that
occurs to the properties after the date of take or outside of the easement areas must be brought in
a separate action for inverse condemnation which are issues, if at all, for another day before
another tribunal.” Pl.’s Opp. (citations omitted), [ECF No. 222-4 at 3 & 17-20]. Moreover, to
the extent Defendants argue that they seek information to understand how the installation of the
pipeline will impact their right to use the easements, Columbia explains it has already provided
Defendants with Columbia’s “Minimum Guidelines for Construction Near Pipeline Facilities,”
which answers this question. Id. at 17.
Columbia is right. Defendants cite no authority supporting their claim that the
construction documents it seeks through Interrogatory No. 18 are relevant to determining just
compensation. Moreover, as noted above, any claim for damages caused by Columbia’s
activities on or around the easements after the date of taking must be brought in a separate
action. See Washington Metro., 549 F. Supp. at 591-92 (“Because only subsurface easements
were condemned in these cases, any compensation for damage to physical structures above
ground due to construction methods employed by [Plaintiff’s] contractors is properly recoverable
only in tort actions against those contractors, or in actions against [Plaintiff] for inverse
condemnation or trespass.”). See also United States v. 79.20 Acres of Land, 710 F.2d 1352, 1356
(8th Cir. 1983) (distinguishing “between severance damages, compensable in a condemnation
proceeding and damages to the remainder caused by physical invasion of the remainder resulting
from the intended use of the land taken. … The latter are not compensable in the condemnation
case.”) (citations omitted). Accordingly, Defendants’ motion to compel further response to
Interrogatory No. 18 is denied.
2. Retained Experts
i. Amended Request for Document Production No. 16
Defendants’ Amended Request for Document Production No. 16 asks Columbia to
produce “[a]ll Documents and Things provided or made available to, or prepared or reviewed by,
all persons retained as … experts relating to [Defendants’] Property.” Defs.’ Mot. to Compel,
[ECF No. 222-1 at 10]. Columbia argues that this information is protected by the attorney-client
privilege, work product doctrine, and Federal Rules of Civil Procedure 26(b)(3) and (4), and that
the request is overly broad and unduly burdensome because it is not limited in scope, time, and
as to the term “Things.” Id. See also Pl.’s Opp., [ECF No. 222-2 at 2]. Defendants assert that
Columbia’s refusal to respond is improper because Defendants are entitled to know what
materials Columbia’s additional retained experts consulted or generated relating to the Property.
Defs.’ Mot. to Compel, [ECF No. 222-1 at 10].
Request No. 16 closely mirrors Request No. 15, which asks for all documents and things
delivered to or seen by expert witnesses for purposes of any appraisal, evaluation or investigation

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relating to the Project and Property. Defs.’ Mot. to Compel, [ECF No. 222-1 at 9].2 As best I
can discern, Request No. 15 relates to expert witnesses and Request No. 16 relates to nonwitness experts.
Based on this interpretation, the issue becomes one of relevance. When considering nonwitness experts who may have evaluated the Property, there is a distinct difference between the
opinions such experts may have rendered to Columbia and the far more tangential inquiry into
anything those experts may have considered in forming their opinions. I order Columbia to
produce all non-privileged Documents and Things3 prepared by its retained non-witness experts
relating to Defendants’ property. I do not see the relevance of Documents and Things provided
or made available to or reviewed by Columbia’s retained non-witness experts, or opinions the
non-witness experts may have expressed regarding the Project, but not the Property.
Accordingly, Request No. 16 is granted in part and denied in part, and Columbia is directed to
comply with the narrowed request within fourteen (14) days from the date of this Order.
ii. Request for Document Production No. 21
Defendants’ Request for Document Production No. 21 asks Columbia to produce all
documents exchanged with expert witnesses, appraisers, engineers, or owners of the Property
regarding the Property or Project. Defs.’ Mot. to Compel, [ECF No. 222-1 at 13]. Defendants
argue that the correspondence with other parties identified in Request No. 21 would aid
Defendants in determining what Columbia’s expert witnesses used to form the basis of their
reports and opinions. Id. at 14.
Columbia objects that Request No. 21 (1) seeks information beyond the scope of Federal
Rule of Civil Procedure 26; (2) seeks information that is protected by the attorney-client
privilege, work product doctrine, and Federal Rule of Civil Procedure 26(b)(3) and (4); and (3)
uses the term “Project,” which is overly broad, unduly burdensome, and seeks information
beyond the scope of this action. Id. at 13. Nonetheless, Columbia has promised to produce
copies of communications between Columbia and Defendants concerning the property rights
Columbia seeks to acquire. Id. Columbia also notes that Federal Rules of Civil Procedure
26(a)(2) and 26(b)(4)(C) “limit[] the scope of expert witness discovery to specific information
and communications with expert witnesses that have been retained for trial.” Pl.’s Opp., [ECF
No. 222-2 at 2]. Accordingly, Columbia argues that since it has already agreed to produce the
non-privileged information required under Rules 26(a)(2) and 26(b)(4)(C), Defendants’ demand
for additional documents responsive to this Request should be denied. Id.
2

The parties have created further confusion as to Requests No. 15 and 16 because Defendants do not include
Request No. 15 in their list of unresolved discovery items, [ECF No. 222 at 3], while Columbia suggests that both
Requests No. 15 and 16 are in dispute. [ECF No. 222-2 at 2 & 12-13]. Because Defendants are the movant, I will
treat Request No. 15 as settled, and will assume Columbia has made the required disclosures pertaining to expert
witnesses.
3

“Documents” and “Things” are adequately defined in the Instructions and Definitions to Defendants’ First Request
for Production of Documents and Electronically Stored Information. See, e.g., [ECF No. 222-1 Def.’s Ex. B at 2].

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Columbia is correct. As noted above, Defendants’ Exception reveals their motive behind
Request No. 21 to be “ascertain[ing] what was submitted to [Columbia’s] expert witnesses to
assist in selecting bases for their respective reports and opinions.” Defs.’ Mot. to Compel, [ECF
No. 222-1 at 14]. Columbia has a duty to identify and produce this exact universe of documents
pertaining to all of its retained expert witnesses, as set out in Federal Rules of Civil Procedure
26(a)(2) and 26(b)(4)(C). Defendants are entitled to no more and no less. If Columbia has
fulfilled Request No. 21 through its prior expert disclosures, no further production is required;
otherwise, Columbia is directed to provide additional information within fourteen (14) days
from the date of this Order.
3. The 2007 Monkton Incident and Risk Analysis
Several of the discovery requests addressed below relate to an “accident related to and/or
involving the natural gas pipeline that occurred in Monkton, Maryland on or around July 17,
2007.” See, e.g., [ECF No. 222-1 Ex. B at 4].
i. Request for Document Production No. 23
Defendants’ Request for Document Production No. 23 asks for all risk analysis
performed by or for Columbia in connection with the Property or Project. Defs.’ Mot. to
Compel, [ECF No. 222-1 at 14]. Columbia objects to the term “Project,” contends that “risk
analysis” is undefined and therefore ambiguous, vague, broad, and nonspecific, and argues that
the information sought exceeds the scope of the issues before this Court. Id. Columbia refuses
to provide anything in response to the Request. Id. at 15. Defendants counter that “risk analysis”
is a commonly used technical term in the industry, and that the information sought is a “major
factor” in determining valuation and damages. Id.
In its Opposition, Columbia rejects the Defendants’ “claim that this information will
allow them to assess the ‘integrity of Line MA’ and the impact the public’s alleged fear of the
new Line MB pipeline will have on the value of their properties.” Pl.’s Opp., [ECF No. 222-2 at
3]. Columbia contends that “any diminution in value caused by the public’s alleged fear of
pipelines must be proven by market data that demonstrates there is a nexus between the alleged
fear and effect on the public when purchasing the properties.” Id. Columbia also insists that
these documents cannot affect “the public’s perception of the value of Defendants’ properties
because they are confidential and are not available to the public.” Id. Columbia further argues
that “the risk a project may pose to the landowners is not compensable in a condemnation action
because just compensation is made for the land taken, not any risk the project allegedly poses to
the owners.” Id. at 21 (citations omitted). Columbia submits that any risk analyses it performed
as part of this project “is limited to assessing the construction activities related to the project.”
Id. at 22. As such, it does not contain any market data about the nexus between fear of pipelines
and property values. Id. at 21-22.
I concur with Columbia’s position. “Risk analysis” may be a commonly used term in the
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natural gas industry, but that does not mean its definition is predictable and constant in all
contexts. Generally speaking, it is possible to conduct risk analysis for many purposes –
including assessment and management – and on countless aspects of a property or project –
including operational hazards, financing, maintenance, and construction activities, to name a
few. In the absence of a definition in the discovery request, the request is vague and overbroad.
The motion to compel a response to Request No. 23 is therefore denied.
ii. Requests for Document Production Nos. 27, 28, and 30 as to
Defendant Herndon; Requests Nos. 27 and 28 as to Defendant
Lowentritt; Requests Nos. 27 and 28 as to Defendant Fiergang; and
Request No. 27 as to Defendant Iwanowski
Defendants Herndon, Lowentritt, Fiergang, and Iwanowski propound various document
requests relating to the 2007 Monkton Incident, including seeking information regarding its
causes; the resulting environmental impact, equipment damage, and product loss; and any risk
assessments and hazard analyses of the pipeline before and after the incident. Defs.’ Mot. to
Compel, [ECF No. 222-1 at 16-23]. Columbia raises similar objections to all of these Requests.
Columbia argues that the Requests contain undefined terms rendering them ambiguous, vague,
broad and/or non-specific; that some of the Requests seek information protected by the attorneyclient and work-product privileges; that the Requests are beyond the scope of discovery; and that
the Requests are irrelevant because they seek information that may not involve the pipeline,
properties, or parties that are the subject of this action. Id. Columbia further contends that the
documents are confidential and thus cannot influence the public’s alleged fear of pipelines nor
their perception of the fair market value of Defendants’ property. Pl.’s Opp., [ECF No. 222-2 at
22-24]. Columbia has made no production in response to these Requests. Defs.’ Mot. to Compel,
[ECF No. 222-1 at 16-23].
In response, the Defendants argue that the information sought through these Requests is
relevant to informing the ultimate damages opinions rendered by Defendants’ engineering and
valuation experts. Id.
Information relating to the 2007 Monkton Incident is only relevant if it sheds light on the
issue of just compensation. See United States v. 97.19 Acres of Land, More or Less, Located in
Montgomery, Washington, & Alleghany Counties, 582 F.2d 878, 881 (4th Cir. 1978) (defining
just compensation as the value of the land permanently taken, the value of the land temporarily
taken, and any devaluation of the remaining land due to the taking). Federal Rule of Civil
Procedure 26(b)(1) requires me to consider issues of relevance, proportionality, and whether the
burden or expense of the proposed discovery outweighs its likely benefit. Defendants’ Requests
relating to the 2007 Monkton Incident fall short of these measures. To begin with, none of the
Defendants establish the proximity of their properties to the Monkton Incident. Indeed,
Columbia avers that the accident did not take place on the properties that are the subject of these
proceedings. Pl.’s Opp., [ECF No. 222-2 at 24]. Nor do Defendants demonstrate how
information regarding the causes and aftermath of the 2007 Monkton Incident translate into fair
market value data about their properties generally, or on the date of the taking specifically. Since
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most, if not all, of the documents sought are confidential and not publicly available, the
documents cannot affect public perception of pipelines and, in turn, the fair market value of
Defendants’ properties. The reasons offered by Defendants to support the relevance of these
Requests are speculative at best. Thus, the charge to “identif[y] and discourage[e] discovery
overuse” obligates me to deny the motion to compel further response to all Requests relating to
the 2007 Monkton Incident. See 2015 Committee Notes to Amended Rule 26(b).
4. Appraisals
i. Interrogatory No. 1
Defendants’ Interrogatory No. 1 addresses the allegations in Columbia’s Complaint that
Columbia has undertaken unsuccessful efforts to reach agreement with the Defendants as to
compensation for the easements and other interests necessary for the pipeline extension. Defs.’
Mot. to Compel, [ECF No. 222-3 at 2]. Specifically, Defendants ask Columbia to identify:
(a) the date, place, amount, and form of any offer by Columbia to
purchase Defendants’ property interests by agreement;
(b) each person involved in making and receiving any such offer;
(c) “all appraisals and other documents upon which Columbia relied in
determining the reasonableness, the bona fides, and the fair market
value of each and every respective amount … offered the Defendants
to purchase their property interests by agreement” as well as all
persons with custody of said documents;
(d) any and all methods of appraisal used to determine the fair market
value of Defendants’ property interests; and
(e) whether, when, or on what occasion any appraiser inspected the land or
property in question, for how long, and the nature of the investigations
in detail.
Id. at 2-3.
Columbia responds that Interrogatory No. 1 is vague and confusing because “appraisal”
is undefined. Id. at 3. Columbia further contends that this Interrogatory is overly broad and
irrelevant because in issuing its Partial Summary Judgment ruling, this Court “specifically
rejected any contention that Columbia’s offer to purchase the property must be based on specific
appraisal methodology.” Id. Columbia denies using any methods of appraisal or real estate
appraisers to calculate its pre-condemnation offers to purchase the easements. Pl.’s Opp.
(citations omitted), [ECF No. 222-4 at 8]. Ultimately, Columbia points Defendants to a subset of
previously produced documents containing “all the information responsive to this Interrogatory”
pursuant to Federal Rule of Civil Procedure 33(d). Defs.’ Mot. to Compel, [ECF No. 222-3 at 3].
Columbia concludes that, having provided Defendants with all notes and communications
describing Columbia’s attempt to negotiate the purchase of the easements, it does not possess
information it could use to supplement its answer to Defendants. Pl.’s Opp., [ECF No. 222-4 at
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8].
Defendants argue that Columbia cannot rely on Rule 33(d) because Columbia has not
shown that the burden of deriving or determining the answer from business records will be
substantially the same for both parties. Defs.’ Mot. to Compel, [ECF No. 222-3 at 3]. Moreover,
Defendants insist that what appraisal method Columbia “actually used to derive the offers made
to Defendants,” “not whether Columbia was required to use any particular appraisal
methodology,” is properly discoverable. Id. at 4.
As noted above, the sole remaining issue before the Court is the amount of any just
compensation owed to the Defendants as a result of the taking. Order Granting Pl.’s Mot. for
Immediate Possession of the Easements, [ECF No. 181 at 3]. As a result, Defendants’ continued
interest in challenging whether Columbia properly satisfied the requirements of 15 U.S.C. §
717f(h) is misguided. See [ECF No. 164]. Since subparts (a), (b), and (c) of Interrogatory No. 1
are expressly tied to the now-irrelevant issue of pre-condemnation offers, I will deny the
requested discovery.
Subparts (d) and (e), however, survive. While Columbia avers that it did not use methods
of appraisal or real estate appraisers to calculate its pre-condemnation offers to purchase the
easements, Pl.’s Opp., [ECF No. 222-4 at 8], that does not necessarily mean Columbia did not
use methods of appraisal or real estate appraisers to evaluate the prospective easements generally
– irrespective of whether this formed the basis of an offer to purchase Defendants’ property.
Appraisal activities and findings around the time of the taking are squarely relevant to
determining just compensation. See Transcon. Gas Pipe Line Co. v. Permanent Easement
Totaling 2.322 Acres, 2014 U.S. Dist. LEXIS 165697 at *8 (E.D. Va. 2014) (noting the
relevance of an appraisal report that considers “sales of comparable land within a reasonable
time before the taking” to determining fair market value) (citing 100.01 Acres of Land, 102 Fed.
Appx. at 298)). Therefore, Columbia must provide answers to Interrogatory No. 1 subparts (d)
and (e), to the extent such answers exist, within fourteen (14) days from the date of this
Order.
B. Plaintiff’s Motion to Compel
Columbia’s Interrogatory No. 14 and Request for Document Production No. 3 both
request information about prior appraisals of Defendants’ properties. The interrogatory asks
Defendants to identify whether they had their property appraised, along with the date, purpose,
value given, and conclusions reached in said appraisal. Pl.’s Mot. to Compel, [ECF No. 224-1 at
4].
Columbia contends that the information sought is properly discoverable because “these
appraisals will contain market data and other information that will refute Defendants’ diminution
in value claim.” Pl.’s Reply, [ECF No. 224-3 at 2]. Columbia surmises that Defendants intend
to demonstrate that the public’s alleged fear of pipelines, together with Columbia’s plan to install
Line MB next to the preexisting Line MA on their properties, have caused their properties to
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Civil Case No. ELH-15-3462
October 6, 2016
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suffer a loss in value. Id. Accordingly, Columbia seeks information that will defend against this
claim – namely, real estate appraisals containing 1) market information or data refuting a nexus
between the fear of pipelines and its effect on the public when purchasing properties and 2)
information that identifies known easements and how they impact the property. Id. at 3-4 (citing
Uniform Standards of Professional Appraisal Practices 1-4).
Similarly, Columbia’s Document Production No. 3 asks Defendants for “[a]ll appraisals
of the Property.” Pls.’ Mot. to Compel, [ECF No. 224-1 at 6]. Although Defendants agree to
hand over all recent appraisals despite their objection that the Interrogatory is not limited in time,
Columbia contends that Defendants intend to improperly restrict this production to just the
appraisal that Defendants’ expert witness is in the process of preparing. Id. Columbia insists
that Defendants’ withholding of information is an effort to conceal evidence that contradicts their
theory of damages and, as such, Defendants should be compelled to respond. Id. at 6-7.
Defendants object that Interrogatory No. 14 is overly broad because it is not limited in
scope or time, and is unlikely to lead to the discovery of admissible evidence because
“documents not pertaining to the value of Defendants’ Property as of the date of take do not have
any bearing on these distinct value issues and are irrelevant.” Pl.’s Mot. to Compel, [ECF No.
224-1 at 4-5]. Defendants further argue that the information that Columbia seeks through both
pre-2012 appraisals (prior to the start of Columbia’s “negotiations” with Defendants regarding
Line MB) and post-2012/pre-2016 appraisals are “not relevant and lack probative value
regarding the damages at issue in this litigation … [because] [i]f they exist, these appraisals
would have been conducted under different conditions in the housing market and for reasons
other than ascertaining the value of the take.” Defs.’ Opp., [ECF No. 224-2 at 2].
Real estate appraisals near (but prior to) the date of taking are more likely than not to
contain market information or data relevant to calculating fair market value. See, e.g., Transcon.
Gas Pipe Line Co., 2014 U.S. Dist. LEXIS 165697 at *8 (citations omitted). Moreover, a
diminution in value as a result of the pipeline efforts could be reflected in a comparison of earlier
and later appraisals, although the change could also be attributed to other market factors. Fed. R.
Civ. P. 26(b)(1). I conclude that 2011 to 2016 – from one year prior to Columbia’s efforts
relating to the Line MB Extension to the date of taking – constitutes a reasonable period of time
prior to taking during which appraisals of Defendants’ property can be deemed relevant to fair
market valuation. Subject to the specified time limits, I direct Defendants to provide the
information sought through Request No. 3 and Interrogatory No. 14 within fourteen (14) days
from the date of this Order.
IV. Conclusion
For the reasons discussed above, Defendants’ Motion to Compel, [ECF No. 222], is
GRANTED IN PART and DENIED IN PART. Columbia is hereby ORDERED to provide
Defendants with the information discussed herein, within the deadlines set forth herein.
Columbia’s Motion to Compel, [ECF No. 224], is also GRANTED IN PART and DENIED IN
PART. Defendants are hereby ORDERED to provide Columbia with the information discussed
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Columbia Gas v. 252.071 Acres, et al.
Civil Case No. ELH-15-3462
October 6, 2016
Page 13
herein, within the deadlines set forth herein. Pursuant to Federal Rule of Civil Procedure
37(a)(5)(C), no fees or expenses will be awarded to either party because relief is being granted in
part and denied in part.
Despite the informal nature of this letter, it will be flagged as an Opinion and docketed as
an Order.
Sincerely yours,
/s/
Stephanie A. Gallagher
United States Magistrate Judge

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