Diamond X Ranch, LLC v. Atlantic Richfield Company

Filing 220

MINUTES OF PROCEEDINGS - Motion Hearing held on 7/21/2016 before Magistrate Judge William G. Cobb. Crtrm Administrator: Katie Lynn Ogden; Pla Counsel: Noah Perch-Ahern, Fred D. Heather and Brad Johnston (Present); Def Counsel: Jona than W. Rauchway, Robert Dotson (Present) and Adam S. Cohen and Mave Anne Gasaway (Telephonically); FTR #: FTR; Time of Hearing: 1:39:08 p.m. - 2:44:52 p.m. and (SEALED 2:59:02 p.m . - 4:38:51 p.m.) ; Courtroom: 2. The court hears oral arguments. IT IS ORDERED that Diamond X's Motion to Compel Concerning ARCO's Disclosure of Marc Lombardi (ECF No. 192 ) is DENIED. IT IS ORDERED that ARCO's Motion to Compel Document Withheld on the Basis of Privilege (ECF No. 188 ) is DENIED. Diamond X need not produce the "Bailey Document." IT IS ORDERED the Bailey Document (ECF No. 189-1) shall remain under seal. IT IS ORDERE D that pursuant to the agreement of counsel, the one remaining expert deposition may be taken after the close of discovery. The parties represent that neither seeks leave to re-open discovery at this time. The parties are reminded of their right to submit objections. (Copies have been distributed pursuant to the NEF - KO)

UNITED STATES DISTRICT COURT
DISTRICT OF NEVADA
DIAMOND X RANCH, LLC,

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)
Plaintiff,
)
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vs.
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ATLANTIC RICHFIELD COMPANY,
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Defendant.
)
___________________________________ )

3:13-cv-00570-MMD-WGC
MINUTES OF PROCEEDINGS
July 21, 2016

PRESENT: THE HONORABLE WILLIAM G. COBB, U.S. MAGISTRATE JUDGE
DEPUTY CLERK:

Katie Lynn Ogden

REPORTER:

FTR

COUNSEL FOR PLAINTIFF: Noah Perch-Ahern, Fred D. Heather and Brad Johnston (Present)
COUNSEL FOR DEFENDANT: Jonathan W. Rauchway, Robert Dotson (Present) and
Adam S. Cohen and Mave Anne Gasaway (Telephonically)
MINUTES OF PROCEEDINGS: Motion Hearing
1:39 p.m. Court convenes.
The court holds today’s conference to address defendant Atlantic Richfield Company’s
(ARCO) Motion to Compel Document Withheld on the Basis of Privilege (ECF No. 188)1 and
plaintiff Diamond X Ranch LLC’s (Diamond X) Motion to Compel Concerning ARCO’s
Disclosure of Marc Lombardi (ECF No. 192).2
The court hears oral arguments as to Diamond X’s motion to compel (ECF No. 192).
After hearing from counsel and considering relevant case law, including United States v.
Sierra Pacific Industries, No. CIV S-09-2445 KJM EFB, 2011 WL 2119078 (E.D. Cal. May 26,
2011), and PacifiCorp v. Northwest Pipeline GP, 879 F. Supp.2d 1171 (D. Or. July 16, 2012),
the court finds that Mr. Lombardi, who was disclosed by ARCO as a non-reporting witness under
Federal Rule of Civil Procedure 26(a)(2)(C), is a hybrid fact and expert witness. While Federal

1

Plaintiff’s response filed 6/7/2016 (ECF No. 204); Defendant’s reply filed 6/8/2016 (ECF No. 205).

2

Defendant’s response filed 5/31/2016 (ECF No. 201); Plaintiff’s reply filed 6/10/2016 (ECF No. 206).

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Minutes of Proceedings
3:13-cv-00570-MMD-WGC
July 21, 2016
Rule of Civil Procedure 26(b)(3)(C), as amended in 2010, protects as work product
communications between a party’s attorney and a witness required to provide a report under
Federal Rule of Civil Procedure 26(a)(2)(B) (a reporting expert witness), the rule does not
provide for protection of communication between a party’s attorney and a non-reporting witness.
Therefore, communications between ARCO’s counsel and Mr. Lombardi, as a non-reporting
expert witness, would not be protected under Rule 26, but according to the Advisory Committee:
“The rule does not exclude protection under other doctrines, such as privilege or independent
development of the work-product doctrine.” 2010 Advisory Committee Note to
Fed. R. Civ. P. 26. The court notes that while the practical effect of the rule’s silence concerning
communications between counsel and non-reporting experts may be undesirable in many
instances, the Advisory Committee notes reveal that Congress has thus far declined to provide
non-reporting expert witnesses with the protections afforded to reporting expert witnesses.
Following the court’s pronouncement on this issue, ARCO’s counsel represents in open
court that ARCO will withdraw Mr. Lombardi as a non-reporting expert witness. The court
concludes that ARCO may do so, and as a result, ARCO is not required to produce documents
that would otherwise be discoverable relative to Mr. Lombardi’s designation as a non-reporting
expert.
Therefore, IT IS ORDERED that Diamond X’s Motion to Compel Concerning ARCO’s
Disclosure of Marc Lombardi (ECF No. 192) is DENIED.
The court next addresses ARCO’s Motion to Compel Document Withheld on the Basis of
Privilege (ECF No. 188). The court explains this portion of today’s hearing is closed and the
record is SEALED in light of anticipated discussion of the “Bailey Document” (ECF No. 189-1,
filed under seal) that Diamond X claims is protected by the attorney-client privilege or work
product doctrine.
The court hears oral arguments as to ARCO’s motion to compel (ECF No. 188).
After hearing from counsel, the court concludes the Bailey Document is not subject to the
attorney-client privilege. The court finds, however, that while it is a close call, on its face the
document tends to indicate it was made in anticipation of litigation in order to assist
William Shaw, Esq., in advising his client, David Park; therefore, the court finds the Bailey
Document is protected work product.
The court concludes that ARCO demonstrates a substantial need for the document under
Federal Rule of Civil Procedure 26(b)(3)(A)(ii) in connection with its statute of limitations
defense, particularly in light of the contradictions ARCO pointed to in David Park’s testimony
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Minutes of Proceedings
3:13-cv-00570-MMD-WGC
July 21, 2016
concerning when he knew about contamination on the subject property. The court is not
persuaded, however, by ARCO’s argument that it could not, without undue hardship, obtain the
substantial equivalent of the Bailey Document by other means. The court points to evidence in
the record, including documents and testimony, that reflect on Mr. Park’s knowledge of the
contamination. Moreover, ARCO could have deposed Mr. Bailey himself regarding the facts
underlying his retention and scope of work, but ARCO unilaterally withdrew its request to take
Mr. Bailey’s deposition. The court is not convinced by ARCO’s argument that it would have
been unduly burdensome to track down Mr. Bailey. Nor is the court persuaded by ARCO’s
speculation that the deposition would have been futile, when it did not even attempt to depose
Mr. Bailey to ask him the germane questions.
IT IS ORDERED that ARCO’s Motion to Compel Document Withheld on the Basis of
Privilege (ECF No. 188) is DENIED. Diamond X need not produce the Bailey Document.
IT IS ORDERED the Bailey Document (ECF No. 189-1) shall remain under seal.
IT IS ORDERED that pursuant to the agreement of counsel, the one remaining expert
deposition may be taken after the close of discovery.
The parties represent that neither seeks leave to re-open discovery at this time.
The parties should be aware of the following:
1. That they may file, pursuant to 28 U.S.C. § 636(b)(1)(A) and Rule IB 3-1 of the Local
Rules of Practice, specific written objections to this Order within fourteen (14) days of receipt.
These objections should be titled “Objections to Magistrate Judge's Order” and should be
accompanied by points and authorities for consideration by the District Court.
2. That this Order is not an appealable order and that any notice of appeal pursuant to Rule
4(a)(1), Fed. R. App. P., should not be filed until entry of the District Court’s judgment.
There being no additional matters to address at this time, court adjourns at 4:38 p.m.

LANCE S. WILSON, CLERK
By:
/s/
Katie Lynn Ogden, Deputy Clerk

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