In the matter of a Petition to Perpetuate Testimony by Waste Stream, Inc. PRP Group

Filing 4

DECISION AND ORDER that Petitioner's Amended Petition (Dkt. No. 3 ) is GRANTED. Petitioner may perpetuate testimony as specified in this Decision and Order from Chester Bisnett, Sr., Harold Villnave, Jr., and Skip Bisnett either orally (including through use of video-conferencing or other technology) or by written interrogatories. Signed by Chief Judge Glenn T. Suddaby on 10/14/2020. (sal)

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UNITED STATES DISTRICT COURT
NORTHERN DISTRICT OF NEW YORK
___________________________________________
IN THE MATTER OF A PETITION TO
PERPETUATE TESTIMONY BY WASTE
STREAM, INC. PRP GROUP,

5:20-MC-0043
(GTS/TWD)

Petitioner.
___________________________________________
APPEARANCES:

OF COUNSEL:

BARCLAY DAMON LLP
Counsel for Petitioner
125 East Jefferson Street
Syracuse, NY 13202

JOHN JOSEPH PELLIGRA, ESQ.
YVONNE E. HENNESSEY, ESQ.

GLENN T. SUDDABY, Chief United States District Judge
DECISION and ORDER
Currently before the Court is the Amended Petition to perpetuate testimony by Waste
Stream, Inc. PRP Group (“Petitioner”). (Dkt. No. 17.) For the reasons set forth below, the
Amended Petition is granted.
I.

RELEVANT BACKGROUND
A.

Decision and Order of July 20, 2020

In its Decision and Order of July 20, 2020, the Court denied Petitioner’s original Petition
and ordered Petitioner to file an Amended Petition within 30 days to correct the identified
pleading deficiencies or the Petition would be dismissed. (Dkt. No. 2 [Decision and Order filed
July 20, 2020].) Specifically, the Court found that, although the Petition sufficiently established
the second and third elements of the relevant analysis (i.e., that Petitioner expects to be party to
an action but cannot currently bring that action or cause that action to be brought, and that
testimony sought would be lost, concealed or destroyed if it is not allowed to be taken before an

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action is initiated), it did not sufficiently show the first element, which is the provision of a
focused explanation of what the anticipated testimony would demonstrate and a showing that the
petitioner knows the substance of the testimony sought to be preserved and that the testimony
will not be used to discover evidence for the purpose of stating a claim and filing a complaint.
(Id. at 4-5, 8-9.) The Court identified the following specific deficiencies: (1) as to testimony
requested from Chester Bisnett, Sr., the fact that Petitioner has never previously interviewed
Chester Bisnett, Sr., leads to an inference that Petitioner does not already know the substance of
his testimony, even in a general form, about “the source, nature and extent of scrap metal
purchased, processed, and scrapped by CBI, and the resulting release of hazardous substances at
the Site”; (2) as to the testimony requested from Harold Villnave, Jr., the Court noted that there
appeared to be a discrepancy between the information obtained from him in previous interviews
and the information now sought that raises an inference that Petitioner was seeking to discover
new information; and (3) as to the testimony requested from Skip Bisnett, the Court found the
same deficiencies and ambiguities existed that were present in the request for testimony from
Harold Villnave, Jr. (Id. at 9-11.) The Court also noted that Petitioner’s indication that it would
use the testimony of Harold Villnave, Jr., and Skip Bisnett for “fact development and [the]
calculation of damages” raised an inference that Petitioner required new details from this
testimony to actually file a claim. (Id.)
B.

Amended Petition

In the Amended Petition, Petitioner makes the following relevant assertions: (1)
Petitioner is seeking to memorialize or preserve testimony of essential factual information
relevant to the expected future litigation; (2) Petitioner does not plan to bring claims against any
PRPs who are not already known, and does not plan to bring claims against the three proposed
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individual deponents; (3) the “more detailed information sought from the proposed deponents . . .
will be used solely for the purposes of allocation and determining orphan shares”; (4) Chester
Bisnett, Sr., has personal knowledge of PRPs that sold scrap to CBI, Petitioner is seeking to
obtain more detailed testimony from him regarding (i) the source, nature and quantity of waste
that was brought to CBI, (ii) the manner in which it was brought to CBI, and (iii) CBI’s
operations, including how waste was handled or processed, and such testimony would be of the
same subject matter as prior interviews and prospective deposition testimony from Harold
Villnave, Jr., and Skip Bisnett but will allow for that information to be provided in a more
detailed form; (5) Harold Villnave, Jr., was previously interviewed about the weighing and
processing of scrap materials and equipment, the types and nature of scrap that was processed at
the Site, the meaning of terms used in the ledger, sources of scrap metal and equipment, and the
quantity and frequency at which scrap material and equipment were acquired from various
sources; (6) Petitioner is seeking to preserve information already known to it from previous
interviews and its own review of the Site by taking testimony from Harold Villnave, Jr., in a
more detailed form; (7) Petitioner is seeking to obtain more detailed testimony from Harold
Villnave, Jr., about (i) the source, nature and quantity of waste that was brought to CBI, (ii) the
manner in which it was brought to CBI, and (iii) CBI’s operations, including how waste was
handled or processed; (8) Skip Bisnett was previously interviewed, during which he discussed
that CBI brought in a variety of types of scrap material and equipment from different sources; (9)
Petitioner is seeking to preserve information already known to it from previous interviews and its
own review of the Site by taking testimony from Skip Bisnett in a more detailed form; (10)
Petitioner is seeking to obtain more detailed testimony from Skip Bisnett about (i) the source,
nature and quantity of waste that was brought to CBI, (ii) the manner in which it was brought to
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CBI, and (iii) CBI’s operations, including how waste was handled or processed; and (11) the
information that Petitioner already knows is sufficient to file a complaint against the already
identified PRPs. (Dkt. No. 3, at 8 [Am. Petition].)
Along with the Amended Petition, Petitioner submitted copies of draft summaries from
the previous interviews of Harold Villnave Jr. and Skip Bisnett. (Dkt. No. 3, Attachs. 1, 2.) The
summary of the testimony of Harold Villnave, Jr., indicates that he previously provided
information about the following: (1) WSI owned several trucks that were used to pick up
transformers from Niagara Mohawk depots, to deliver empty roll-off bins to customers, to pick
up full bins of scrap metal, and as snow plows for businesses in the area; (2) WSI owned 50 to
60 roll-off waste bins that were used to collect scrap from large commercial customers, which
were used to dispose of any type of scrap or material for recycling, including various types of
metals, office paper, and cardboard boxes; (3) individuals brought to WSI brass, copper, iron,
and other metal scrap, as well as cars, and larger items such as machine tool dies, broken steel
equipment and heavy electrical transformers were brought to WSI by an outside hauler; (4) the
methods by which various types of scrap and equipment were processed by WSI; and (5) the
various sources of scrap that WSI received and the equipment that WSI purchased. (Dkt. No. 3,
Attach. 2.)
The summary of the testimony of Skip Bisnett indicates that he previously provided
information about the following: (1) where scrap metal purchased by Reynolds Metals and Alcoa
came from; (2) the processes of purchasing scrap from Reynolds Metal and Alcoa, including the
amount of times scrap was picked up from those facilities, where scrap was accumulated, what
type of scrap was collected, and how much scrap was obtained; and (3) scrap types obtained
from other named sources. (Dkt. No. 3, Attach. 2.)
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II.

GOVERNING LEGAL STANDARD
The governing legal standard was discussed in detail in the Court’s Decision and Order of

July 20, 2020. Because this current Decision and Order is intended primarily for the review of
the parties, the Court will not repeat that standard here, but refers the parties to the Court’s
previous Decision and Order for an understanding of the applicable standard.
III.

ANALYSIS
After careful consideration, the Court finds that the Amended Petition should be granted

for the following reasons.
The Amended Petition cures the defects of the original Petition identified in the Decision
and Order of July 20, 2020. Notably, Petitioner specifically states in the Amended Petition that
it is seeking deposition testimony from all three proposed deponents as to (a) the sources, nature,
and quantity of waste that was brought to CBI, (b) the manner in which the waste was brought to
CBI, and (c) CBI’s operations, including how waste was handled and/or processed on the Site.
(Dkt. No. 3, at ¶¶ 61, 73, 84 [Am. Petition].) As discussed above in Part I.B. of this Decision
and Order, the summaries of the interviews conducted with Harold Villnave Jr., and Skip Bisnett
indicate that all three of these subjects were discussed in detail at those interviews and significant
information about those subjects was previously provided. (Dkt. No. 3, Attachs. 1, 2.) The
Court is therefore more confident on the basis of the Amended Petition that the information that
Petitioner seeks to memorialize through the requested depositions is information that is already
known to it. Notably, although Petitioner did not interview Chester Bisnett previously, Petitioner
makes clear that it will be taking deposition testimony from him on the same subjects already
discussed by Harold Villnave Jr., and Skip Bisnett in their interviews. Although Petitioner may,
in the course of taking deposition of Chester Bisnett, acquire more details on those matters that
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had not been previously known or disclosed, the Court is persuaded that Petitioner already
possesses the information sought in a general form and in a manner that would be sufficient to
enable it to bring claims against the relevant PRPs, and that the depositions would merely allow
them to preserve that information in a more detailed form.
Additionally, Petitioner has clarified that it has already identified all of the PRPs against
whom it intends to bring claims and that it does not intend to bring claims against any of the
three individual proposed deponents, which sufficiently suggests that the depositions are not for
the purpose of identifying new PRPs for future litigation, but rather to preserve evidence related
to each already identified PRPs level of involvement and responsibility in the contamination of
the Site. (Dkt. No. 3, at ¶ 58 [Am. Petition].)
In conducting the requested depositions, Petitioner should be diligent not to stray beyond
the bounds of what it has specified it is seeking in the Amended Petition: namely, information as
to (a) the sources, nature, and quantity of waste that was brought to CBI, (b) the manner in which
the waste was brought to CBI, and (c) CBI’s operations, including how waste was handled
and/or processed on the Site. Petitioner should also be careful to ensure that it confines its
depositions of these three individuals to the information already generally known to it and not
engage in factfinding that is impermissible under Fed. R. Civ. P. 27.
ACCORDINGLY, it is
ORDERED that Petitioner’s Amended Petition (Dkt. No. 3) is GRANTED; and it is
further
ORDERED that Petitioner may perpetuate testimony as specified in this Decision and
Order from Chester Bisnett, Sr., Harold Villnave, Jr., and Skip Bisnett either orally (including
through use of video-conferencing or other technology) or by written interrogatories.
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Dated: October 14, 2020
Syracuse, NY

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