ASARCO LLC v. NL Industries, Inc. et al

Filing 300

MEMORANDUM AND ORDER: IT IS HEREBY ORDERED that Plaintiff Asarco's Motion to Compel Further Rule 30(b)(6) Deposition of Defendant Union Pacific on the Issue of Notice and for Sanctions 291 is DENIED.. Signed by District Judge John A. Ross on 12/10/14. (LGK)

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF MISSOURI
EASTERN DIVISION
ASARCO LLC, a Delaware corporation,
Plaintiff,
vs.
NL INDUSTRIES, INC., et al.,
Defendants.

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Case No. 4:11-CV-00864-JAR

MEMORANDUM AND ORDER
This matter is before the Court on Plaintiff Asarco’s Motion to Compel Further Rule
30(b)(6) Deposition of Defendant Union Pacific on the Issue of Notice and for Sanctions. (Doc.
No. 291) The motion is fully briefed and ready for disposition.
On July 16, 2014, Union Pacific filed its motion for summary judgment based on its
statute of limitations affirmative defense arguing that Asarco’s claim against Union Pacific does
not relate back to its original complaint. (Doc. No. 220) On October 1, 2014, this Court granted
Asarco thirty days to conduct an additional Rule 30(b)(6) deposition on the limited issue of
Union Pacific’s notice of Asarco’s CERCLA contribution claims at the SEMO sites and to
supplement its response to Unions Pacific’s motion for summary judgment. (Doc. No. 288) After
meet and confer efforts between the parties, Asarco served an amended notice of deposition on
Union Pacific on October 20, 2014. The sole topic of examination was “Union Pacific’s notice of
Asarco’s CERCLA contribution claims at the SEMO sites.” (See Doc. No. 292-9 at 5)
On October 28, 2014, Asarco deposed Union Pacific’s designated witness, Robert M.
Grimaila, Vice-President of Safety, Security and Environment, for five hours. (Doc. No. 292-1)
Asarco contends that Grimaila was neither knowledgeable nor prepared to answer questions
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regarding the sole topic of his deposition - when Union Pacific first knew that Asarco had
CERCLA contribution claims at SEMO. (Doc. No. 291 at 5) Asarco asserts that Grimaila was
only provided information that Union Pacific’s counsel deemed critical, while not being
provided any of the records pertaining to an “investigation” of Union Pacific’s notice and
understanding of the lawsuit. Thus, he was unable to testify based on his own review of
documents and inquiry regarding the issue of notice. (Id. at 1) Asarco moves this Court to
compel a further Rule 30(b)(6) deposition of David P. Young, Union Pacific’s General Solicitor
and National Environmental Counsel on the issue of Union Pacific’s notice, including: (a) Union
Pacific’s “investigation” of Asarco’s SEMO claims, including when the investigation of
Asarco’s CERCLA contribution claims commenced, (b) what internal communications and
actions were taken in response to Asarco’s July 20, 2011 CERCLA claim letter, (c) when Union
Pacific first received a copy of the Complaint filed on May 12, 2011, how it was received and
what actions were taken in response, and (d) when Union Pacific first received a copy of the First
Amended Complaint (FAC) filed on September 14, 2011, how it was received and what actions
were taken in response. (Id. at 2)
Union Pacific responds that Grimaila was well prepared for his deposition and responded
to each topic in Asarco’s request for relief. (Doc. No. 295 at 3) Specifically, as to issue (a),
Grimaila testified that Union Pacific did not undertake an investigation until after it was served
with the FAC. (Doc. No. 292-1 at 85:4-13; 87:10-23) He acknowledged Union Pacific’s receipt
of a Law360 article about the Asarco/BNSF suit, but stated that Union Pacific took no action in
response to reading that article. (Id. at 133:3-10; 134:3-135:10) He also testified about the postFAC investigation, including naming certain participants and identifying issues investigated. (Id.
at 38:12-19; 50:6-17; 85:2-86:20; 207:2-13) Regarding issue (b), Grimaila testified that Union
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Pacific did not consider Asarco’s July 20, 2011 letter (see Doc. 242-1) a “claim” letter, (id. at
18:3-19:23; 20:9-21; 33:9-21; 44:5-13; 57:2-9; 60:24-61:13; 70:16-19; 110:2-23; 156:18-158:4;
161:18-162:5; 168:6-169:2; 231:1-17) and that Union Pacific’s August 26, 2011 letter asking for
further information was the extent of the action taken. (Id. at 60:24-61:13; 70:9-19) As for
questions about whether there were internal meetings about the July 20, 2011 letter, Grimaila
stated that counsel assessed the letter and prepared a response (id. at 211:25-214:9) but that any
investigation would commence upon service of proper legal documents (id. at 53:23-54:4),
which Asarco did not do until Union Pacific was served with the FAC in October 2011. (Id. at
16:20-17:1; 224:8-13) Regarding issue (c), Grimaila testified he had not seen the original
complaint (id. at 48:23-49:5), although he reviewed the materials collected in connection with
Union Pacific’s investigation and preparation for the deposition. (Id. at 18:20-19:1). When
presented with a copy of the original complaint, Grimaila stated that Union Pacific would not
have received a copy of the original complaint. (Id. at 221:11-222:24) Regarding (d), Grimaila
testified that Union Pacific received the FAC when it was served. (Id. at 16:20-17:1; 224:8-13)
(Doc. No. 295 at 8-9)
Union Pacific further responds there is no duty to produce a specific witness for a Rule
30(b)(6) deposition (id. at 9) and that in any event, the Eighth Circuit limits the practice of
deposing opposing counsel to certain exceptional circumstances, none of which are applicable
here. (Id. at 10-13)
In reply, Asarco contends that Union Pacific deliberately misinterprets Rule 15(c)1 by
claiming it only learned of Asarco’s claims when it received “formal notice” via the FAC in

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Rule 15(c)(1) provides that “[a]n amendment to a pleading relates back to the date of the original
pleading when… (c) the amendment changes the party or the naming of the party against whom a
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September 2011. Rule 15 requires evidence that a party received notice of the action, not actual
receipt of the complaint, yet according to Asarco, Union Pacific prepared Grimaila to evade
questions pertaining to that subject. Asarco argues it does not need to prove that Union Pacific
had formal notice within the period of time mandated by Rule 4(m), but only such notice of
existence of the action that it would not be prejudiced in defending the action. (Doc. No. 297 at
2-4)
District courts are accorded wide discretion in dealing with discovery matters. Centrix
Financial Liquidating Trust v. National Union Fire Ins. Co. of Pittsburgh, PA, 2013 WL
3225802, at *2 (E.D.Mo. June 25, 2013) (citing Cook v. Kartridg Pak Co., 840 F.2d 602, 604
(8th Cir.1988)). As the Supreme Court has stated, because discovery rules should “ ‘be construed
to secure the just, speedy, and inexpensive determination of every action,’ … judges should not
hesitate to exercise appropriate control over the discovery process.” Miscellaneous Docket
Matter No. 1. V. Miscellaneous Docket Matter No. 2, 197 F.3d 922, 927 (8th Cir. 1999) (quoting
Herbert v. Lando, 441 U.S. 153, 177 (1979)). Upon examination of Grimaila’s deposition
testimony, the Court finds he was prepared and testified about “information known or reasonably
available” to Union Pacific, consistent with the requirements of Rule 30(b)(6). Indeed, in its 16page Supplemental Brief on Notice filed in opposition to Union Pacific’s motion for summary
judgment, Asarco states it believes it has “more than enough evidence to establish … that Union
Pacific had the requisite notice for relation back to apply.” (Doc. No. 293 at 1 n. 1) Nevertheless,
Asarco seeks to compel further Rule 30(b)(6) deposition so it can “finally question a

claim is asserted, if Rule 15(c)(1)(B) is satisfied and if, within [120 days], the party to be brought in
by amendment: (i) received such notice of the action that it will not be prejudiced in defending on the
merits; and (ii) knew or should have known that the action would have been brought against it, but
for the mistake concerning the proper party’s identity. (Emphasis added.)
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knowledgeable deponent on this issue.” (Id.) Rule 30(b)(6) does not obligate the noticed entity to
produce a particular corporate witness. At some point, discovery must close and the case must
progress. Union Pacific’s motion for summary judgment is fully briefed and there is sufficient
evidence on the record regarding the notice issue for the Court to rule on the motion.
Accordingly,
IT IS HEREBY ORDERED that Plaintiff Asarco’s Motion to Compel Further Rule
30(b)(6) Deposition of Defendant Union Pacific on the Issue of Notice and for Sanctions [291] is
DENIED.
Dated this 10th day of December, 2014.

________________________________
JOHN A. ROSS
UNITED STATES DISTRICT JUDGE

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