Save Our Sound OBX, Inc., et al v. North Carolina Department of Transportation, et al

Filing 65

ORDER granting plaintiff's oral motion for privilege log; denying Defendant's oral Motion for court's reconsideration as to not filing administrative record in CM/ECF. The court lifted stay of the defendant' ;s deadline to respond to the motion to compel with response due 9/19/17. Plaintiff's shall file a reply by 9/26/17. Privilege log shall be filed ex parte, in camera under seal by 9/19/17. Counsel is reminded to read the order in its entirety for critical deadlines and information. Signed by District Judge Louise Wood Flanagan on 9/1/2017. (Collins, S.)

IN THE UNITED STATES DISTRICT COURT
FOR THE EASTERN DISTRICT OF NORTH CAROLINA
NORTHERN DIVISION
NO. 2:17-CV-4-FL

SAVE OUR SOUND, OBX, INC.;
THOMAS ASCHMONEIT; RICHARD
AYELLA; DAVID HEDLEY MARK
HAINES; JER MEHTA; and GLENN
STEVENS,
Plaintiffs,
v.
NORTH CAROLINA DEPARTMENT OF
TRANSPORTATION; JAMES H.
TROGDON, III in his official capacity as
Secretary of the North Carolina
Department of Transportation; FEDERAL
HIGHWAY ADMINISTRATION; and
JOHN F. SULLIVAN, III, in his official
capacity as Division Administrator for the
Federal Highway Administration,
Defendants,
and
DEFENDERS OF WILDLIFE; and
NATIONAL WILDLIFE REFUGE
ASSOCIATION,
Intervener-Defendants.

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ORDER

This matter is before the court following court-hosted telephonic conference September 1,
2017, pursuant to Federal Rule of Civil Procedure 16(a), with plaintiffs appearing through counsel
Michael K. Murphy, Brazen C. Smith, and Zia Gatley; defendants North Carolina Department of
Transportation and James H. Trogdon, III (collectively, “the state defendants”), appearing through

counsel John G. Batherson, Colin Justice, and Mollie Cozart; defendants Federal Highway
Administration and John F. Sullivan, III (collectively “the federal defendants”), appearing through
counsel Carter Fleeth Thurman; and Intervener-defendants Defenders of Wildlife and National
Wildlife Refuge Association appearing through counsel Kimberly Hunter and Nicholas S. Torrey.
This order memorializes the court’s oral pronouncements, including amendments to the court’s
prior order amending order on joint motion for briefing schedule. The court also memorializes
herein its orders upon the federal defendants’ oral motion for reconsideration of issues pertinent to
filing of the administrative record, and plaintiffs’ oral motion for privilege log.
SUMMARY OF ISSUES ADDRESSED
A.

Miscellaneous Case Filing Considerations
The federal defendants’ oral motion for reconsideration of the court’s determination that the

administrative record shall be filed in CM/ECF in a miscellaneous case file, on a date to be decided,
was denied. Request to be able to reference portions of the electronic case record in the prior
related case also was denied. Counsel was encouraged to work closely with the clerk’s office in
advance of filing to make certain of procedures governing filing of voluminous materials in a
companion miscellaneous file.
B.

Privilege Log
With regard to plaintiffs’ motion to compel completion of the administrative record, (DE 60),

at conference, plaintiffs moved that the federal defendants be required to maintain and produce a
privilege log identifying documents withheld under claims of attorney-client privilege or the work
product doctrine, which motion was allowed.

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C.

Motion to Compel and Related Considerations
The court lifted stay of the federal defendants’ deadline to respond to the motion to compel

and reimposed the original response deadline of September 19, 2017.
While local rules ordinarily do not permit replies in discovery motions, plaintiffs were
granted opportunity to make reply to any response no later than September 26, 2017. (If plaintiffs
deem reply unnecessary, plaintiffs immediately shall lodge notice of such determination on the
docket).
Upon consideration of concerns raised by the federal defendants concerning filing of the
disputed materials, the court negated requirement for filing of any joint report. No joint status report
as previously ordered need be made. Rather, the federal defendants shall file the disputed materials
together with the privilege log, ex parte, in camera under seal, by September 19, 2017, at which
time their response is due. The court also negated prior directive, given representations today the
disputed materials are minimal, that electronic copy including a searchable index with hyperlinks
separately be provided to chambers.1
SO ORDERED, this the 1st day of September, 2017.

_____________________________
LOUISE W. FLANAGAN
United States District Judge

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The court notes deadlines for filing the settled administrative record and any dispositive motion remain to
be decided. The state defendants informed at conference that the project remains on schedule, with ground-disturbing
activities set to begin March 2018.

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