Consolidation Coal Company v. 3M Company, et al

Filing 1334

ORDER dismissing as moot #1321 Motion to Reopen Depositions; granting #1327 to Continue the Deposition of Joe Richard Brewer; granting #1328 Motion for Leave to Re-Open Certain Depositions; dismissing as moot #1332 Motion to Take Deposition from Rappleya, Walsh, Ward, and Weir and memorializing items addressed at 10/16/2013 teleconference - Concerning the October 7, 2013, written discovery responses of the third-party plaintiff, the court deems waived now any complaint about the form of the interrogatories and requests, disclosed on or before September 6, 2013. Having struck objection no. 8 and requiring the third-party plaintiff to serve an amended statement of its objections accompanying its answers and responses, within seven days from date of entry of this order, the court holds further, that if a third-party defendant would seek to show any answer or response deficient, such motion shall be filed not later than seven days from this date, with response by the third-party plaintiff due seven days thereafter. Signed by District Judge Louise Wood Flanagan on 10/17/2013. (Baker, C.)

IN THE UNITED STATES DISTRICT COURT
FOR THE EASTERN DISTRICT OF NORTH CAROLINA
WESTERN DIVISION
No. 5:08-CV-460-FL
DUKE ENERGY PROGRESS, INC.,
Plaintiff,
v.
ALCAN ALUMINUM CORPORATION, et al.,
Defendants.

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ORDER

No. 5:08-CV-463-FL
CONSOLIDATION COAL COMPANY,
Plaintiff,
v.
ALCAN ALUMINUM CORPORATION, et al.,
Defendants.

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These matters come before the court on Truland Corporation’s motion to reopen depositions
(DE 1329), General Electric Company’s motion to continue deposition (DE 1335), and motion by
eighty-three (83) of the one hundred and one (101) remaining original parties for leave to re-open
certain depositions (DE 1336).1 Responses have been filed, and the issues raised are ripe for review.
Also before the court is Truland Corporation’s second motion regarding depositions (DE 1340),
which the court herein addresses. Additionally, this third-party defendant requested and was granted
October 16, 2013, conference by telephone with the court, attended by representatives of PCS
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For the convenience of the court, docket entry numbers refer to the document’s location under case number 5:08-cv460. The instant motions also are lodged under the parallel case number 5:08-cv-463.

Phosphate Company, Inc., in furtherance of its complaint about certain written discovery recently
produced by the third-party plaintiff. Where issues concerning the responses may be of interest to
other third-party defendants, and presage issues potentially arising in the future, the court also
considers further Truland Corporation’s complaints.
BACKGROUND
Reference is made to prior orders for a more complete recitation of the history and
background of this case. The court summarizes here case background of particular importance to
the discovery issues now before the court.
On August 15, 2013, the court conducted a conference regarding the scheduling of discovery
(hereinafter the “Conference”). The court’s August 19, 2013, order (hereinafter the “Scheduling
Order”) followed, which partially lifted the stay of discovery.2 Various categories of discovery at
issue are considered more particularly below.
A.

Written Discovery
As set forth in the Scheduling Order, the third-party plaintiff was tasked with formulating the

initial written discovery to be responded to, because of efficiencies arising, where it was involved
directly in discovery processes in 2010 and 2011. Those processes involving the form of the initial
written discovery were protracted and difficult, as the history of this case bears out.
In the Scheduling Order, the court expressly turned the third-parties’ attention to the court’s
earlier orders. In the June 14, 2010, order, where reference is made to “Initial Informal Discovery,”
and about seven months later, where “[s]ubstantial disagreements were raised and decided in the

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Discovery in this case was stayed on November 29, 2011, in order to facilitate the “test case” framework, which is more
particularly described in the court’s November 14, 2011, and November 29, 2011, orders.

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court’s January 13, 2011, order,” concerning this discovery, the court focused on the importance of
reviewing the orders dated June 14, 2010, and January 13, 2011, “so that third-party defendants also
will understand the original parties’ past initial discovery disputes, and how they were resolved by
the court to avoid unnecessary future delays in parallel discovery now involving them.”
The third-party plaintiff was ordered to draft written discovery on behalf of the third-party
defendants, informed by the prior history in which it participated directly as a time and resource
saving measure. By September 6, 2013, the third-party plaintiff was ordered to disseminate to thirdparty defendants the form of the initial interrogatories, and requests for document production. No
objection was raised by any third-party defendant to this process. And by September 6, 2013, copies
of all Nexus files3 in its possession or to which it has access also were ordered to be provided by the
third-party plaintiff to the third-party defendants. The third-party plaintiff’s responses were tendered
by the deadline of October 7, 2013. This is the discovery of which Truland Corporation complains,
and was the subject of yesterday’s conference with the court.
B.

Depositions
At the August 15, 2013, Conference, the parties indicated some disagreement as to whether

the original defendants had missed their deadlines to request any supplemental deposition session
(hereinafter “Supplemental Session”) of former Ward employees, in consideration of the test case
method used to guide earlier discovery efforts. Accordingly, the court established a briefing
schedule in its Scheduling Order to promote address of any issue as to whether original parties will

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Nexus files (also referred to as nexus documents) is used as that term is defined in the court’s January 13, 2011, order.

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be allowed to engage in depositions of former Ward employees in Supplemental Session.4 The court
imposed on itself, for benefit of the parties’ planning and in furtherance of the compacted schedule
of case activities ongoing, a deadline of October 21, 2013, to decide this issue, too, because of its
importance to the parties in preparation of their joint report and plan, due November 29, 2013.
In considering the background pertinent to this issue, it should be noted that the court’s June
14, 2010, order specifically provided:
The depositions of the current and former Ward employees appear important to all
parties and should be given priority in scheduling. The parties are directed to meet
and confer to establish a mutually convenient expedited schedule for deposing the
current and former Ward employees. There are no limits on the number of
depositions of current and former Ward employees allowed to each party. The
deposition of each current and former Ward employee is limited to sixteen (16)
hours, with eight (8) hours each allocated to the collective plaintiffs and collective
defendants. The collective plaintiffs and collective defendants shall equally bear
(50/50) the cost of the current and former Ward employees' depositions, with each
party to bear its own transcript cost. . . . Depositions may be conducted in two
sessions, an Initial Session and, if necessary, a Supplemental Session. The Initial
Session shall be attended by a lead questioner for each collective party, along with
any other party that wishes to participate. The failure of any party to attend the Initial
Session shall not prejudice that party's right to participate in the Supplemental
Session. After the conclusion of the Initial Session, any party may request a copy of
the transcript. Within thirty (30) days of the completion of the transcript, any party
may notice the resumption of the deposition (Supplemental Session), by stipulation
or with leave of court pursuant to Federal Rule of Civil Procedure 30(a)(2), and all
parties may participate. At that Supplemental Session, each party's questions shall
be limited to: (1) questions specifically about that party or matters that directly affect
that party; or (2) follow-up questions, confined to the scope of topics covered by
another questioning party. The Supplemental Session shall be limited to eight (8)
hours as with the non-Ward depositions. The party that serves the notice of
resumption for the Supplemental Session upon the deponent shall be responsible for
bearing the deponent's reasonable costs incurred in connection with the Supplemental
Session and the cost of the deposition.
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Specifically, the depositions at issue are of former Ward Employees Joe Richard Brewer, Frank Aguirre, Ben
Rappleyea, Robert Ward III and William Weir. Additionally Edward Walsh and Scott Canady are expert witnesses for
plaintiffs who were utilized in the test cases. If the parties decide after conference that other former Ward employees
will require supplemental depositions, that information may be included in the joint report and plan, as required by the
court’s Scheduling Order.

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June 14, 2010, Case Management Order, at 4-5.
Accordingly, the original parties took depositions of former Ward employees in late 2010 and
early 2011, which the court directed all parties to review in its Scheduling Order entered August 19,
2013. The Scheduling Order also adopted the “Supplemental Session” framework established in its
previous case management order.
Third-party defendants in this case are in the unique position of entering into the lawsuit
while a stay of discovery was in place, and after former Ward employees had been deposed. Also
as discussed at Conference, the Scheduling Order sets forth expectation and direction that all parties
will review depositions and confer as to what supplemental depositions of Ward employees may be
needed, with joint report and plan due to the court on or before November 29, 2013.
C.

Liaison Counsel
Pertinent to one issue before the court is the deadline imposed in the Scheduling Order

concerning liaison counsel, encouraging the parties to consider now their organizational structure.
Specifically, the parties are directed to consider whether additional or different liaison groups are
deemed necessary and to submit any notice(s) of change(s) by October 28, 2013. “The defendants
may organize as they see fit for the purpose of conducting discovery,” the court promoted, adding
“[a]ll parties are encouraged to work together as necessary to achieve the court’s directives in the
most effective and efficient manner for the parties and the court.”
Third-party defendant Truland Corporation indicated at conference October 16, 2013, it has
interest in organizing a group of similarly positioned third-party defendants, and that it needs more
precise discovery from the third-party plaintiff in order to determine composition of that group.
D.

Other Matters
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Some other background pertinent to the discovery issues arising devolves around the fact that
the parties have a deadline to meet and confer by November 15, 2013, to consider how the case has
developed. While reference is made to the Scheduling Order for the complete recitation of
conference topics to be reported on, following November 15, 2013, among those topics the court
noted are the following: 1) what Phase I discovery if any remains to be undertaken by the original
parties with proposed deadline(s); 2) what Phase I discovery will be undertaken by the third parties
with proposed deadline(s); 3) and where the depositions of the current and former Ward employees
appear important to all parties and should be given priority in scheduling, the establishment of a
mutually convenient, expedited schedule for deposing current and former Ward employees. The
court promoted a focus on discovery by adding in its Scheduling Order that the parties’ report should
include any other topic necessary to be considered in furtherance of the schedule governing Phase
I discovery and motions.5
COURT’S DISCUSSION
The court takes up the discovery issues presented in turn below.
A.

Informal Request For Address of Written Discovery Responses
In telephone conference with counsel for the third-party plaintiff and Truland Corporation,

the third-party defendant complained about the responses of the third-party plaintiff to written
discovery, referring to the liberty the answering party had in constructing its own discovery
questions. The reason that the court burdened the third-party plaintiff in this way should be plain.
So, too, from the face of the Scheduling Order is the fact the third-party defendants are not limited

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The parties also were encouraged to work together to develop a document depository to enhance the efficiency and
reduce expenses of discovery, and promptly to alert the court to any document preservation or maintenance issues
concerning. No alert has been received.

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to this set of written discovery in Phase I. Truland Corporation and every other third-party litigant
is subject to an ongoing discovery process with opportunity for further written discovery.
Truland Corporation seeks now, however, a contextual chart to be given to it in discovery,
addressing further some of the subject matter of Interrogatory Nos. 10, 11, 12, 13, and 18. Truland
Corporation would seek in this chart for the third-party plaintiff to identify with specificity items of
relevance as to each third-party defendant on which the third-party plaintiff relies in prosecuting its
claims. Opportunity awaits for this defendant and any other third-party defendant to seek more
specific information from the third-party plaintiff, and the court will not now require any chart to be
provided.
As to its concern about needing more information to organize a group of similarly situated
third-party defendants, the court will permit at any juncture liaison counsel to be established if
reasonable. No litigant is cabined by the October 28, 2013, deadline; however, that deadline serves
the purpose of encouraging such discussions in advance of the November conference, to make more
expedient conference activities.
The discovery ordered to be produced October 7, 2013, was a part of putting the third-party
defendants in approximately the same position as the original ones. Truland Corporation has
opportunity to advance its interests with further written discovery in the future. That fact of that
opportunity seemed to elude counsel at conference October 16, 2013, however. The court urges the
litigants to review again the Scheduling Order.
Truland Corporation complains about excessive, inappropriate objections accompanying the
answers and responses, rendering them useless in litigation, specifically with regard to objection no.
8, accompanying the interrogatory answers. General objections ordinarily do not find favor with the
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court. There are many appearing. Objection no. 8, seeking in part to void interrogatory answers for
purposes of summary judgment is particularly troublesome. The court strikes objection no. 8. The
third-party plaintiff shall take a hard look at its remaining objections and serve an amended statement
of its objections to accompany its October 7, 2013, answers and responses, presenting only those
objections deemed truly necessary , and knitted to a particular interrogatory response or document
request, designated by number, within seven days from date of entry of this order.
Now, if Truland Corporation or any third-party defendant would seek to show that what was
drafted by the third-party plaintiff in form of any interrogatory or request propounded, where the
form of the written discovery was disclosed on or before September 6, 2013, did not meet the scope
of the court’s prior rulings on discovery, such showing should have been made immediately after
September 6, 2013. No complaint having been heard before yesterday, entitlement to complain
about the form of the interrogatories or requests, themselves, is deemed waived.
If a third-party defendant would seek now to show any answer or response by the third-party
plaintiff October 7, 2013, is deficient in substance, motion shall be filed not later than seven days
from this date, with response by the third-party plaintiff due seven days thereafter.6
B.

Motions to Reopen Depositions
The court turns to Truland Corporation’s motion to reopen the depositions of former Ward

employees Frank Aguirre and Joe Richard Brewer, followed by a similar motion to reopen the
depositions of Ben Rappleyea, Edward Walsh, Robert Ward III, and William Weir.
Truland Corporation is a third-party defendant that has had no opportunity to depose any

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However, before framing any motion, take note of what this round of discovery was meant to accomplish, the
opportunity in discovery ahead, and what the best use of litigation resources at this time might be.

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previously deposed persons in this case. Furthermore, third-party plaintiff consents to Truland
Corporation’s former motion, and while the time to respond to the latter one has not yet elapsed, for
the reason that follows, the court discerns no basis for delay in addressing it. These motions are
premature or unnecessary pursuant to the Scheduling Order, which specifically allows third-party
depositions, including those for former Ward employees. See Scheduling Order, Parts I.E.6, I.F.3-5.
At this time no discovery plan for third parties has yet been submitted. It is not due until
November 29, 2013. As stated in the Scheduling Order, “the parties shall establish a mutually
convenient, expedited schedule for deposing current and former Ward employees,” during their
conference. Thus, the Supplemental Session depositions must take place after such an agreement
has been reached and reported to the court.
For these reasons Truland’s motions are dismissed as moot. Third-party defendants are
allowed to depose previously deposed Ward employees, subject to the limitations set forth in the
court’s Scheduling Order.
C.

Remaining Motions
The court considers the remaining motions by original defendants, seeking Supplemental

Session depositions of certain former Ward employees.7 Two motions were filed by original
defendants seeking Supplemental Session depositions. Original defendants, it appears, missed
deadlines for seeking Supplemental Session depositions. Pursuant to the court’s July 14, 2010, case
management order quoted above, defendants had thirty (30) days after each deposition to request a
Supplemental Session. It appears that depositions of former Ward employees were completed

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The parties appear to agree that the deposition of plaintiffs’ expert witness may be addressed at conference. Therefore,
the court awaits the parties’ joint report and plan, as to the deposition of Dr. Edward J. Walsh, and other expert witnesses.

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sufficiently in advance of the stay of discovery in November 2011. However, certain original
defendants request now that the court grant them leave to re-open depositions.
Particularly, General Electric contends that it should be able to question Joe Richard Brewer
in a deposition concerning its alleged repair transaction with Ward, broadly asserting that it has not
had the opportunity to depose. Eighty-three (83) other original defendants jointly urge that Mr.
Brewer’s affidavits as to the test case defendants contradicted his deposition testimony, and thus they
should be allowed to depose Mr. Brewer concerning his personal knowledge.
Opportunity to seek Supplemental Session depositions was not denied to defendants nor was
the affidavit process was abused, as the motions argue. Nonetheless, the court recognizes that much
has transpired in this case since discovery was stayed in November 2011. It also recognizes that
before the stay formally was put into effect, the parties were working, under the direction of
Magistrate Judge Daniel, to establish the test case system. There is some suggestion that while
discovery obligations were ongoing, but before any stay was memorialized by the court, parties
operated with assumption that some informal stay of discovery then was in effect.
Magistrate Judge Daniel’s oversight advanced the progress of the case, specifically including
address of early discovery and development of the test case process. With his untimely passing, the
court gives defendants the benefit of any doubt it may have about any reference in those conferences
to some delay of ongoing discovery obligations, while the test case process matured, also where the
court recalls the complexity of that process. Furthermore, given the relatively few depositions at
issue, the court sees lessened impact also where most or all former Ward employees may be deposed
in the near future by third parties.
It is for these reasons that the court finds cause to allow these original defendants to
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participate in Supplemental Session depositions of those former Ward employees at issue. As such,
these motions are allowed.
CONCLUSION
For the foregoing reasons, Truland Corporations’s motions to reopen depositions are
DISMISSED AS MOOT (DE 1329, 1340). The original defendants’ motions as to depositions are
GRANTED (DE 1335, 1336). Concerning the October 7, 2013, written discovery responses of the
third-party plaintiff, the court deems waived now any complaint about the form of the interrogatories
and requests, disclosed on or before September 6, 2013. Having struck objection no. 8 and requiring
the third-party plaintiff to serve an amended statement of its objections accompanying its answers
and responses, within seven days from date of entry of this order, the court holds further, that if a
third-party defendant would seek to show any answer or response deficient, such motion shall be
filed not later than seven days from this date, with response by the third-party plaintiff due seven
days thereafter.
SO ORDERED, this the 17th day of October, 2013.

_____________________________
LOUISE W. FLANAGAN
United States District Judge

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