MRP Properties Company, LLC et al v. The United States of America

Filing 59

ORDER Granting in Part Defendant's 56 Motion to Extend Time for Depositions. Signed by District Judge Thomas L. Ludington. (KWin)

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF MICHIGAN
NORTHERN DIVISION
MRP PROPERTIES, LLC, et al.,
Plaintiffs,

Case No. 17-11174

v.

Honorable Thomas L. Ludington

UNITED STATES OF AMERICA,
Defendant.
_______________________________/
ORDER GRANTING IN PART DEFENDANT’S MOTION TO EXTEND
TIME FOR DEPOSITIONS
Plaintiffs, MRP Properties, et al., are six wholly owned subsidiaries or affiliates of the Valero
Energy Corporation. Plaintiffs filed their complaint against Defendant United States of America on
April 13, 2017, under the Comprehensive Environmental Response, Compensation, and Liability Act
of 1980 (CERCLA). Plaintiffs seek to recover response costs under section 107(a) arising from the
investigation and cleanup of contamination, contending that the United States exercised control over
their refineries before and during World War II. The case was split into two phases: liability and
damages. ECF Nos. 47, 48, 49. Factual discovery closed on August 23, 2019. ECF No. 52. Discovery
for phase one ends on May 4, 2020. Id.
On March 9, 2020 Defendant filed a motion for additional time to depose Plaintiffs’ three
expert witnesses. ECF No. 56. The response and reply were timely filed. ECF Nos. 57, 58.
I.
Defendant “seeks an order under Rule 30(d)(1) allowing for 7 additional hours of time for
each deposition of two of Plaintiffs’ designated expert witnesses (Messrs. A.J. Gravel and David B.
Lerman) and an additional 3 hours of time for the deposition of one of Plaintiffs’ designated expert
witnesses (Mr. Randall Grip).” ECF No. 56 at PageID.941. In support of their motion Defendant

explains the case involves 12 current or former petroleum refineries. Defendant argues a key factual
questions in the case is “whether and to what extent the ‘Government’s alleged control of inputs,
outputs, conversion of facility operations, and construction projects was specifically brought to bear
on operations having to do with leakage or disposal of hazardous waste’ [and] ‘[a]nother key
question will be whether such coercive ‘control’ existed at all, or whether the operations at Plaintiffs’
polluting facilities were the result of voluntary contractual arrangements.’” Id. at PageID.943.
Defendant explains that Gravel’s report is 145 pages with three opinions and 94 historical document
references. Lerman’s report is 85 pages discussing “theories ranging from refining technologies,
crude oil properties, World War II refinery design consideration, common waste streams, waste
disposal practices during World War II, environmental laws, and alleged impacts of the United
States’ control at the 12 Refinery Sites.” Id. at PageID.945. Grip’s report is 174 pages, the majority
of which are “attachments, including over 150 photographs, maps and documents utilized by Mr.
Grip in offering his opinions.” Id. at PageID.946. It also appears from Defendant’s motion that Mr.
Lerman and Grip’s depositions would be occurring in Houston, Texas and Mr. Gravel’s deposition
would occur in Washington, DC.
Plaintiffs’ counter and contend that they have twice offered to make Mr. Gravel and Mr.
Lerman available for a deposition longer than 7 hours. ECF No. 57. Additionally, Plaintiffs assert
“the Government has deposed two of these experts, who issued opinions similar to their opinions in
this case, in other wartime cases. . . . Given the familiarity with these experts’ credentials, opinions
and bases therefore, the Government’s urging for more time is contrary to the overarching guidance
of Rule 26(b)(2)(C) that the court limit the frequency or extent of discovery if it is unreasonably
cumulative.” Id. at PageID.960-961 (internal quotation omitted).
II.

Federal Rule of Civil Procedure 30(d)(1) provides

-2-

Unless otherwise stipulated or ordered by the court, a deposition is limited to one
day of 7 hours. The court must allow additional time consistent with Rule
26(b)(1) and (2) if needed to fairly examine the deponent or if the deponent,
another person, or any other circumstance impedes or delays the examination.
The Advisory Committee Note to the 2000 Amendments1 states that the “party seeking a court
order to extend the examination, or otherwise alter the limitations, is expected to show good
cause to justify such an order.” Some factors could include the need for an interpreter,
examination of events that occurred over a prolonged period of time, when a witness is
questioned about numerous or lengthy documents, if the witness’ lawyer wants to examine the
witness, and for expert witnesses “there may more often be a need for additional time--even after
the submission of the report required by Rule 26(a)(2)--for full exploration of the theories upon
which the witness relies.”
As this Court has previously explained,
Although the rule [FRCP 30(d)(1)] generally limits a deposition to a single day of
seven hours, on its face, the rule provides for extensions beyond that presumptive
limitation. Indeed, “[t]he court must allow additional time ... if needed to fairly
examine the deponent . . . .” Thus, the Court has an obligation to permit additional
time, if the circumstances require that a fair examination of the deponent run
longer.
Dow Chemical Co. v. Reinhard, 2008 WL 1735295 at *3 (E.D. Mich. Apr. 14,
2008) (emphasis in original).
Traditionally, parties are expected to conduct the first seven hours of deposition
testimony before seeking an extension form the court. See e.g., Arista Music v. Time Warner,
Inc., 2010 WL 11497095 at *3 (M.D. Tenn. Jan. 8, 2010). However, sometimes an anticipatory
motion is more appropriate considering all the circumstances. See e.g., Sexton v. Exxon Mobil
Corp., 2020 WL 515852 at *2–3 (M.D. La. Jan. 31, 2020). In this case, the three experts have
examined data regarding twelve refineries and their production during World War II. Defendant
seeks to question the experts regarding overarching policies and historical events, as well as
1

The most recent substantive amendment regarding the length of depositions.

-3-

detailed information about twelve separate refineries. Plaintiffs’ main response is that Defendant
is aware of the testimony of these experts from other cases. However, even if Defendant is
generally aware of the experts’ backgrounds and limits its questions on background and
qualification to one hour, Defendant explains that
there would remain only 6 hours to cover the expert’s opinions related to each of
the 12 specific refinery sites, thus, leaving only an average of 30 minutes to cover
each of the individual sites and Plaintiffs’ individual theories of liability as to
each site. A full exploration of the Plaintiffs’ experts’ theories and the historical
record underlying the theories and opinions, including historical documents, maps
and photographs, could not be accomplished in such a short period of time—30
minutes per site.
ECF No. 56 at PageID.948.
That said, Defendant has not provided good cause to double the length of deposition testimony of
Experts Gravel and Lerman prior to the deposition occurring. Therefore, Defendant’s motion will
be granted in part. Defendant will be able to depose Plaintiffs’ three experts for a total of 10
hours each over two days.
III.
Accordingly, it is ORDERED that Defendant’s Motion for Additional Time to Depose
Plaintiffs’ Designated Expert Witnesses, ECF No. 56, is GRANTED IN PART. Defendants
may depose Mr. Gravel, Lerman, and Grip for a total of 10 hours each, divided over 2 days.

Dated: April 2, 2020

s/Thomas L. Ludington
THOMAS L. LUDINGTON
United States District Judge

-4-