Rychner et al v. Continental Resources, Inc.

Filing 72

ORDER by Magistrate Judge Clare R. Hochhalter granting in part and denying in part 57 Motion to Compel; finding as moot 59 Motion for Hearing. (BG)

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF NORTH DAKOTA
Keith Rychner, Omer Rychner, and
Roselyn Rychner,
Plaintiffs,
vs.
Continental Resources, Inc.,
Defendants.

)
)
)
)
)
)
)
)
)
)

ORDER GRANTING IN PART AND
DENYING IN PART PLAINTIFFS’
MOTION TO COMPEL

Case No.: 1:19-cv-071

Before the Court are a Motion to Compel and a Motion for Hearing filed by Plaintiffs Keith,
Omer, and Roselyn Rychner on June 30, 2020. (Doc. No. 110). For the reasons given below, the
Motion to Compel is granted in part and denied in part. The Motion for Hearing is deemed moot.
I.

BACKGROUND
The following facts are taken from the Rychers’ pleadings and the briefs submitted by the

parties. They are either undisputed or otherwise presumed to be true for the purposes of this order.
Omer Rychner owns property in Dunn County, North Dakota, described as SW4SW4 of
Section 28, T147N, R96W. (Doc. No. 1, ¶ 4). Keith Rychner owns adjacent property in Dunn
County, North Dakota described as SE4SW4 and SW4SE4 of Section 28, T147N, R96W. (Id. at
¶ 11).
Continental Resources, Inc. (“Continental”) is responsible for drilling and operating the
Carus 2-28H1 well, which is partially upon the lands owned by Omer Rychner. (Id. at ¶ 11). It
offered to pay Omer a single lump sum, or, in the alternative, an up-front payment and annual
payments. (Id. at ¶ 6). Omer rejected its offers. (Id. at ¶¶ 7-10).
Continental is also responsible for drilling and operating the Carus 2-21H1, 4-28H1, 5-28H,
1

6-28H1, and 7-28H wells, which are located in whole or in part on property owned by Keith
Rychner. (Id. at ¶¶ 12 and 13). In August 2018, it notified Keith of its intent to drill the
aforementioned well and offered to pay him a single lump sum, or, in the alternative, an up-front
payment and annual payments on a per acre basis. (Id. at ¶ 14). Keith also rejected its offer. (Id.
at ¶ 15).
The Rychners initiated this action against Continental in April 2019, seeking compensation
for surface damages to their property pursuant to Oil and Gas Production Damage Compensation
Act (hereafter referred to as “the Act”), codified at N.D.C.C. ch. 38-11.1.
Keith and Omer each served Continental with Interrogatories and Requests for Production
in November 2019. Continental served its written responses to Keith and Omer respectively in
January 2020. Attached to its written responses were discs containing electronic copies of certain
documents. On the disc provided to Keith, the documents were organized into a single folder titled
“RESP” and were Bates-stamped CLR-Rychner 207-1406. On the disc provided to Omer, the
documents were similarly organized into a single folder titled “RESP” and were Bates-stamped
CLR-Rychner 1407-2824.
In December 2019, the Rychners served B.J. Kadrmas, Inc. (“Kadrmas”), a non-party field
agent for Continental, with a subpoena duces tecum and notice of a Rule 30(b)(6) deposition. They
requested nineteen categories of documents.
Kadrmas objected to the subpoena on January 2, 2020. On January 24, 2020, at the Rule
30(b)(6) deposition of one if its representatives, Matthew Kostelecky, Kadrmas produced a disc
containing electronic copies of the documents it had assembled in response to the Rychners’
subpoena. The documents were broken down into eighteen folders.

2

The Rychners were dissatisfied with Continental’s and Kadrmas’s production and contacted
Continental to express their concerns. On January 28, 2020, the Rychners and Continental met and
conferred. On February 3, 2020, Continental responded to the Rychners’ concerns by letter. The
parties subsequently had a telephone conference with the undersigned in accordance with the local
rules. They also participated in a settlement conference but were unable to resolve this matter.
On June 30, 2020, the Rychners filed a Motion to Compel. (Doc. No. 57). They assert that
Continental’s general objections to their production requests and the manner in which Continental
produced documents did not comport with the requirements of Fed. R. Civ. P. 34. Additionally, they
assert that Kadrmas’s responses to their subpoena duces tecum did not comport with the
requirements of Fed. R. Civ. P. 34. They seek an order from the court compelling Continental and
Kadrmas to provided supplemental responses to their discovery requests and to otherwise produce
the documents that they have requested. They also seek reimbursement for the expenses they have
incurred related to this motion.
On July 14, 2020, Continental filed a response in opposition to the Rychners’ motion. (Doc.
No. 60). On July 21, 2020, the Rychners filed a reply in support of their motion. (Doc. No. 62).
Thus, the motion has now been fully briefed and is ripe for the court’s consideration.
II.

APPLICABLE LAW
Rule 37 of the Federal Rules of Civil Procedure authorizes motions to compel discovery.

See Fed. R. Civ. P. 37 (a)(1) (“On notice to other parties and all affected persons, a party may move
for an order compelling disclosure or discovery.”). Rule 26(b)(1) of the Federal Rules of Civil
Procedure defines the scope of permissible discovery as follows:
Parties may obtain discovery regarding any nonprivileged matter that is relevant to any
party’s claim or defense and proportional to the needs of the case, considering the
3

importance of the issues at stake in the action, the amount in controversy, the parties’
relative access to relevant information, the parties’ resources, the importance of discovery
in resolving the issues, and whether the burden or expense of the proposed discovery
outweighs its likely benefit. Information within this scope of discovery need not be
admissible in evidence to be discoverable.
Fed. R. Civ. Pro. 26(b)(1).
“The scope of discovery under Rule 26(b) is extremely broad.” Gowan v. Mid Century Ins.
Co., 309 F.R.D. 503, 508 (D.S.D. 2015) (citing 8 Charles A. Wright & Arthur R. Miller, Federal
Practice & Procedure §§ 2007, 3637 (1970)). “The reason for the broad scope of discovery is that
‘[m]utual knowledge of all the relevant facts gathered by both parties is essential to proper litigation.
To that end, either party may compel the other to disgorge whatever facts he has in his possession.’”
8 Wright & Miller, § 2007, 39 (quoting Hickman v. Taylor, 329 U.S. 495, 507–08 (1947)).
“Discoverable information itself need not be admissible at trial; rather, the defining question
is whether it is within the scope of discovery.” Colonial Funding Network, Inc. v. Genuine Builders,
Inc., 326 F.R.D. 206, 211 (citing Fed. R. Civ. P. 26(b)(1)). After the proponent makes a threshold
showing of relevance, the party opposing a motion to compel has the burden of showing its
objections are valid by providing specific explanations or factual support as to how each discovery
request is improper. Jo Ann Howard & Assocs., P.C. v. Cassity, 303 F.R.D. 539, 542 (E.D. Mo
2014) (citing Hofer v. Mack Trucks, Inc., 981 F.2d 377, 380 (8th Cir. 1992), and St. Paul
Reinsurance Co. V. Commercial Fin. Corp., 198 F.R.D. 508, 511-12 (N.D. Iowa 2000)). “The party
must demonstrate that the requested documents either do not come within the broad scope of
relevance defined pursuant to Rule 26(b)(1) or else are of such marginal relevance that the potential
harm occasioned by discovery would outweigh the ordinary presumption in favor of broad
disclosures.” Id. (quoted case omitted). Relevancy in this context “has been construed broadly to

4

encompass any matter that bears on, or that reasonably could lead to another matter that could bear
on, any issue that is or may be in the case.” Jo Ann Howard & Assocs., P.C. v. Cassity, 303 F.R.D.
539, 542 (E.D. Mo 2014) (citation and quotation omitted); Klein v. Affiliated Grp., Inc., No.
18-CV-949 DWF/ECW, 2019 WL 1307884, at *2 (D. Minn. Mar. 22, 2019).
III.

DISCUSSION
A

Continental
1.

Continental’s Responses to Omer’s and Keith’s Requests for Production

Omer and Keith each served Continental with 18 interrogatories and 22 requests for
production. Their interrogatories and requests are identical in almost all respects.
Continental prefaced its written responses to Keith’s and Omer’s requests with the following
general objection:
The defendant Continental Resources Inc. objects to the definitions, instructions, and
requests for production of privileged materials or any materials that are not
calculated to lead to the discovery of admissible evidence. Defendant Continental
Resources will provide responses, documents, and materials only as required by the
Federal Rules of Civil Procedure.
(Doc. No. 58-6). It then went on to respond to each of Keith’s enumerated requests for production
as follows. With respect to requests for production numbers 1-8, 11-13, 18-19, and 22, it responded:
“Subject to and without waiving the foregoing objections, Continental produces any responsive
documents herein.” (Id.). With respect to requests for production numbers 9 and 11, it responded:
“This request is objected to the extent it seeks attorney-client privileged communication. Subject
to and without waiving the foregoing objections, Continental produces any responsive documents
herein.” (Id.). With respect to request for production numbers 14, 16, and 17 , it responded: “This
request is objected to as not calculated to lead to the discovery of admissible evidence, overbroad,

5

and unduly burdensome to the extent it seeks drilling and production information. It is further
objected to the extent it seeks attorney-client privileged information subject to and without waiving
the foregoing objection, see the documents provided herewith.” (Id.). With respect to request for
production number 15, it responded: “This request is objected to as unduly burdensome, as CLR
cannot provide responsive documents in possession of another entity. Subject to and without
waiving the foregoing objection, see the documents provided herewith.” (Id.). With respect to
request number 20, it objected on the grounds the request was overbroad and not calculated to lead
to the discovery of admissible evidence. (Id.). With respect to request numbers 21 and 22, it
responded simply that it had no responsive documents. (Id.). It similarly responded to Omer’s
requests for production. As noted above, it provided the documents in PDF format on discs to both
Keith and Omer.
2.

General Objections

The Rychners take issue with Continental’s general objection and responses to their requests
for production. Specifically, they assert that Continental’s responses to their requests do not comport
with the specificity requirements of Rule 34, making it difficult, if not impossible, for them to
discern exactly what Continental is agreeing to produce. They ask the court to strike Continental’s
general prefatory objection along with the references to it in Continental’s responses to each of their
individual document requests and to direct Continental to produce Bates-stamped copies of any
documents it may have withheld pursuant to its general prefatory objection.
In response, Continental first denies that it withheld any documents pursuant to its general
objection. Second, it emphasizes that, prior to involving the court, it informed the Rychners via
letter dated February 3, 2020, that no documents had been withheld with respect to request numbers

6

1-10 and 12-16, that it did not believe any documents had been withheld with respect to request
number 11, but that certain documents had been withheld in response to Keith’s request numbers
14, 16, 17, and 20, and in response to Omer’s request numbers. 16 and 20. Third, it maintains that
its objections to these last requests were valid.
Rule 34(b) requires that a response to a request for production of documents “must either
state that inspection and related activities will be permitted as requested or state an objection to the
request, including the reasons.” Fed. R. Civ. P. 34(b)(2). In other words, “[o]bjections to discovery
must be made with specificity, and the responding party has the obligation to explain and support
its objections.” Cartel Asset Mgmt. V. Ocwen Fin. Corp., No 01-cv-01644-REB-CBS, 2010 WL
502721, at * 10 (D. Colo. Fed. 8, 2010).
General objections are of little value. In the face of such objections, it is impossible to know
whether information has been withheld and, if so, why. This is particularly true where a general
objection has been incorporated into the responses to particular requests with no attempt to show
the application of each objection to the particular request.
In Heller v. City of Dallas, the district court opined that, outside of the privilege and work
product doctrine, simply responding to a document request “subject to” and “without waiving”
objections is not consistent with the Federal Rules. See 303 F.R.D. 466, 487. Other courts have
similarly looked upon such responses with disfavor. See, e.g., Liguria Foods, Inc. v. Griffith
Lab'ys, Inc., 320 F.R.D. 168, 187 (N.D. Iowa 2017) (“[S]imply stating that a response is ‘subject to’
one or more general objections does not satisfy the ‘specificity’ requirement, because, for example,
it leaves the propounding party unclear about which of the numerous general objections is
purportedly applicable as well as whether the documents or answers provided are complete, or
whether responsive documents are being withheld.”); cf. Broom, Clarkson, Lanphier & Yamamoto
7

v. Kountze, 2015 WL 7302226, at *7 (D. Neb. Nov. 18, 2015) (“Although it is common practice for
a party to respond to discovery requests subject to and without waiving objections, such responses
prevent the requesting party from knowing whether all information has been provided.”);
Taylor-Shaw v. Bestway Rent-to-Own, No. 5:09CV00329 JLH, 2010 WL 2998796, at *3 (E.D. Ark.
July 28, 2010) (overruling the defendant’s qualified objections to the plaintiff’s interrogatories).
The court finds that Continental’s general objection does not comport with Rule 34's
specificity requirement. Consequently, the court orders it stricken. Continental should update its
disclosures as necessary. If what Continental has represented is true, that it has not withheld any
documents pursuant to its general objection, then its work is done as the objection was superfluous
from the start.
3.

Manner of Production

The Rychners next object to the manner in which Continental produced the documents in
response to their request. They characterize Continental’s production as an unorganized document
dump. They assert that Continental violated the spirit, if not the letter, of the discovery rules
because it neither produced the documents as kept in the ordinary course of business nor delineated
which documents were responsive to which requests. In an effort to illustrate the disorganization
of Continental’s production, they have submitted screen shots from their computer of the directory
structure on the discs provided to them by Continental. (Doc. No. 58-10). The first screen shot is
of two folders, named "Docs Keith Rychner RFP" and "Docs Omer Rychner RFP." (Id.). The
second screen shot is of a subfolder named "RESP." (Id.). The third screen shot is a list of the
“RESP” subfolder’s contents: approximately 234 Bates-numbered PDF files. (Id.). They ask the
court to require Continental to identify which document is responsive to which request.
Continental disputes Rychners’ characterization of its production as a document dump and
8

in so doing maintains that it has produced documents as kept in the ordinary course of business,
which is all that is required of it under the rules. See Bala City Line, LLC v. Ohio Security Insur.
Co., 2017 WL 3443218 (E.D. Penn. 2017) (holding the defendant’s production of 3,293 documents
as they were kept in the ordinary course of business comported with the requirements of Rule 34 and
that defendant did not have to further label the documents to correspond to the categories in the
plaintiff’s request). Specifically, it asserts:
Continental produced well files related to the surface damage as they are kept in
Continental’s usual course of business. The only change made to the files was to
[B]ate stamp the individual documents for production, resulting in the screen shot
provided by the Plaintiffs. A screen shot provides no information, but the actual
documents do. The documents provided show they are files kept in the ordinary
course of business as received by Continental from its land agent Kadrmas.
(Doc. No. 6). It has inserted a table into its brief that breaks down several of the documents it
produced by Bates number and description. It has also attached indexes to its brief that breaks
down all of the documents it produced by Bates number and description.
Pursuant to Rule 34, unless the parties otherwise agree, or the court orders otherwise, a party
responding to a request for production has the option of producing them “as they are kept in the
usual course of business,” or organizing and labeling them “to correspond with the categories in the
request.” Fed. R. Civ. P. 34(b)(2)(E)(i). This rule is intended to prevent parties from hiding “a
needle in a haystack” and to minimize the costs associated with discovery. Hagemeyer N. Am., Inc.
v. Gateway Data Sciences Corp., 222 F.R.D. 594, 598 (E.D. Wisc. 2004). A party claiming that
the documents were produced as were kept in the ordinary course of business bears the burden of
demonstrating that fact. See Johnson v. Charps Welding & Fabricating, Inc., No. 14-CV-2081
(RHK/LIB), 2017 WL 9516243, at *21 (D. Minn. Mar. 3, 2017).
Having reviewed the record, the court concludes that Continental has produced the
9

documents in substantially the same manner in which they were kept. Any unwieldliness of
Contintental’s production is mitigated by the provision of indexes by Continental to guide the
Rychners. The indexes organize the documents by Bates stamp and description. They also appear
to sort the production of electronic communications by date. With this information, the Rychners
should, with reasonable effort, be able to discern which documents are responsive to which requests.
The documents were produced electronically and should therefore be searchable. Accordingly, the
court finds that the manner of Continental’s production comports with requirements of Fed. R. Civ.
P. 34(b)(2)(E)(i). The court next addresses the Rychners’ issues with Continental’s objections to
their respective request for production number 20.
4.

Objections to Request Nos. 20

Keith’s Request for Production No. 20 states as follows:
Request for Production No. 20: All documents showing payments made by
Continental to landowners in Dunn County, North Dakota to obtain easements,
releases, surface use agreements, leases or other real property rights, licenses or
permissions during the period from January 1, 2018, to October 31, 2019.
(Doc. No. 58-4). Omer’s request is the same, except for the applicable time period:
Request for Production No. 20: All documents showing payments made by
Continental to landowners in Dunn County, North Dakota to obtain easements,
releases, surface use agreements, leases or other real property rights, licenses or
permissions during the period from June 1, 2018 to May 31, 2019.
(Doc. No. 58-8). Continental objected to these requests on grounds of relevance and overbreadth.
The Rychners assert Continental’s relevance objection is specious and that information
regarding Continental’s payments to other landowners in Dunn County is relevant and necessary to
determine their statutory damages in this case. For support, they rely on the North Dakota Supreme
Court’s answers to this court’s certified questions in Mosser v. Denbury Resources, Inc., 2017 ND
179.
10

The Rychners dispute Continental’s characterization of Request No. 20 as overbroad. In so
doing they stress that their request is limited to a very specific group of people (land owners in
Dunn County that have received payments from Continental) during a very specific time frame (the
times during which Continental was drilling the Carus various wells).

In anticipation of

Continental’s response that request number 20 as drafted arguably encompassed every conceivable
payment it had made to Dunn County landowners, the Rychners narrow request number 20 to
exclude payments for office leases and mineral leases.
In response, Continental first asserts that the Rychners’ requests are extremely broad and
unduly burdensome as the requests encompass, among other things, payments for mineral leases,
roadways, electrical lines, aboveground freshwater lines, purchases of real property, leases for office
of storage space, and payments for pipeline projects. Second, it asserts that the Rychners’ after-thefact narrowing of their requests serves to underscore how broad the requests are. Third, it asserts
that Mosser concerned pore space as opposed to the surface and therefore has no application in the
context of the instant dispute. Fourth, it asserts the discovery of payments for other projects on
different land owned by different surface owners is wholly irrelevant, disproportional to the needs
of the case, and will needlessly spawn “meta-litigation” over what other landowners were paid and
why. Fifth, it asserts that the information being sought is confidential and cannot adequately be
safeguarded through the issuance of a protective order.
a.

Relevancy

In Mosser, the North Dakota Supreme Court stated in relevant part the following when
answering certified questions posed by this court.
[T]he plain language of N.D.C.C. § 38-11.1-04 does not preclude a surface owner
from recovering what others may be paying to dispose of saltwater in pore space;
rather, the price per barrel others are paying for saltwater disposal may provide some
11

probative evidence of the amount a surface owner maybe damaged for “lost use of
and access to the surface owner’s land” under N.D.C.C. § 38-11.1-04. We do not
speculate on the extent of the evidence a surface owner may proffer to establish lost
use of and access to a surface owner’s land, because the probative effect and
admissibility of proffered evidence is a matter for a trial court’s discretion. See F. R.
Ev. 401-403 and N.D. R. Ev. 401-403.
Id. at ¶ 30.
The court appreciates that the facts in Mosser are distinguishable from those in the instant
case; Mosser concerned compensation for use of pore space whereas the instant case concerns
compensation for surface use and damage. That being said, the court is not inclined to construe
Mosser as narrowly as Continental and conclude that it has no application outside of cases involving
pore space. Rather, it views the Supreme Court’s statement in Mosser as a recognition of the
liberality and broad scope of discovery. With that, the court shall address Continental’s relevancy
objection.
Relevancy for discovery purposes is broadly construed. “[A] request for discovery should
be considered relevant if there is ‘any possibility’ that the information sought may be relevant to the
claim or defense of any party.” E.E.O.C. v. Thorman & Wright Corp., 243 F.R.D. 426, 429 (D. Kan.
2007).
The court finds that payments to other landowners in close proximity to the Rychners may
be probative of values in the area. Such information could perhaps provide the Rychners with
means of ascertaining the value of their property that was affected by Continental’s operations. Cf.
Greggory Tank v. Petro-Hunt, L.L.C., No. 1:16-cv-366 (N.D.) (permitting a land owner to testify
about two of his leases to extent that he relied upon them as a basis for his opinion regarding the
value of his property). The deposition testimony Anna Theeson, an employee of Kadrmas, bears
this out.

12

Q.

Do you think the amount payed by other developers to landowners for
surface use is a good way to determine the amount Continental should pay
landowners for surface use?

A.

I have no opinion. I believe that each negotiation is pertinent to their
situation.

Q.

Is there ever a situation where the amount that had been paid by other
companies to other landowners would be good way to determine what
Continental ought to pay?

A.

Do I believe in those situations?

Q.

Yes.

A.

I don’t know what they negotiated. Was there something special that they
needed at the time? I – I really don’t base my negotiations on others.

Q.

So you don’t know in – in this situation whether that was a good idea to look
at what others had paid?

A.

It is because then Continental has the choice to decide if they want to
increase their offers.

Q.

Okay. So Continental could learn about what others had paid and then make
its own decision about whether to use those – shall we call them
comparables? Is that okay?

A.

Certainly.

Q.

Okay. Could you use those comparables to determine what they should pay
to a landowner?

A.

Or they will understand what their competition is and why they are being
refused.

Q.

Okay. Why would it be important for Continental to know what their
competition is paying?

A.

That would be up to them. If you were going to a car dealership, you like to
know the price of different cars. Maybe you need a red station wagon, but
it doesn’t have to be a Ford.

Q.

Okay. So if I knew what others – other car dealerships are paying for a red
station wagon, it would help me to know whether the price on the one I was
13

looking at was correct?
A.

Would a be ballpark, correct. That’s true.

Q.

Okay. And so transferring that kind of a hypothetical to the situation before
us, it would have been helpful to Continental to know what other landowners
were being paid by other customers?

A.

Yes, it would have been–it would have been good for Continental to know
that.

Q.

Okay. Would have been good for them to know what the Rychners were
showing you with respect to other companies had paid others in the area for
surface use?

A.

Yes, Sir.
***

Q.

And then you met with [the Rychners] on March 4?

A.

Yes.

Q.

And one of the topics during that meeting was payment for the Carus 2?

A.

And that is what they wanted to talk about, yes.

Q.

And that is what you talked with them about; correct?

A.

Yep.

Q.

And in the course of that meeting, they gave you a bunch of examples where
other landowners had been paid by other companies for similar work on their
land; is that right?

A.

That is–I believe that is where I got this information, yes.

Q.

And then it says, “It might be helpful to have the list in the file.” Is that your
words?

A.

Yes.

Q.

And it would be helpful why?

A.

That way Continental could chose whether they wish to increase their offers
14

or not.
Q.

Okay. And a comparable would be–might be a good reason for Continental
to increase their offer?

A.

If we’re talking apples and oranges. Again I wasn’t part of these
negotiations. I did not know if they had other items involved in their
settlements.

Q.

Okay. Under the right circumstances, then, comparables would be a good
way to determine what Continental should have paid the Rychners?

A.

That is correct.
***

Q.

. . . [H]ave there been other projects where you provided Continental with
comparables in order for them to make a determination on how much to pay
a surface owner?

A.

I certainly have, yes, sir.

Q.

And that’s happened regularly?

A.

Occasionally. Occasionally.

Q.

Okay. And do you do your own research, then, in order to provide
Continental with that information?

A.

Yes.

Q.

That’s part of your normal course of business, what you do when you’re
assigned to a project?

A.

Of course.

(Doc. No. 58-20, pp. 55-57). Whether this information is relevant and admissible at trial is a wholly
different question that the court need not concern itself with at this juncture. For present purposes,
payment information is probative and discovery of such information cannot be ruled on grounds of
irrelevance. The court shall next address Continental’s protestations to production on grounds of
confidentiality.
15

b.

Confidentiality

As noted above, Continental asserts that the information sought by the Rychners is
confidential and cannot be adequately protected by a protective order. Specifically, it asserts that
the payments it makes to landowners are kept confidential for many reasons, including the desire
of some landowners to keep such matters private, that payments to landowners are akin to pricing
data (which is considered to be a trade secret in North Dakota), and that it would be harmed should
it be required to disgorge such information.
It is obvious that Continental keeps this type of information confidential as it is not
filed with the county recorder. Otherwise there would be no need for Plaintiffs to
request it from Continental. Continental would be harmed by disclosure of this
information as it would allow Plaintiffs and their counsel (who represent landowners
throughout western North Dakota during negotiations with Continental) to use that
information in future negotiations. The protective order would not prevent counsel
from still having the knowledge even if they could not disclose it.
(Doc. No. 60).
The court appreciates the sensitive nature of the information sought and the natural tension
that exists in cases such as this. Continental’s concerns are valid. Nevertheless, they do not pose
an insuperable obstacle to production. The court deals with highly sensitive information on a regular
basis and has confidence than an order can be crafted to protect the information at issue in the instant
case.
Nonetheless, the court is not ready to conclude that payments made to landowners are
entitled to trade secret protection. Notably, Continental cited no authority for the proposition that
such payments are a trade secret. Rather, they have cited authority for the proposition that its
pricing data–how it arrives at a price for the oil it produces–is a trade secret. To extrapolate this
authority to surface damages is simply too much of a stretch.
The court finds Continental’s stated concern about opposing counsel’s ability to wield
16

knowledge obtained in the case in future negotiations with other landowners to be specious. As
Continental points out, counsel for the Rychners has represented others landowners throughout
western North Dakota during negotiations with Continental. It stands to reason that knowledge
obtained in their prior representation of landowners informed how they approached negotiations in
the instant case and additional knowledge they obtain will inform how they approach such
negotiations in the future. Continental bemoans that negotiations in the future will be more difficult
should counsel for the landowners obtain more knowledge of what landowners are being paid. If
the instant case is any indication, the future may have already come to pass. In any event, at the end
of the day, Continental is in control over what it offers.
c.

Scope and Burden

The requests as originally framed arguably encompass any conceivable payment made by
Continental to landowners in Dunn County and thus appear at first blush to be overbroad. However,
the Rychners have clarified or narrowed the scope of their request in their brief. This is a decent
first step.
Having reviewed the record, the court is not persuaded that production in this instance is
disproportional or unduly burdensome. It should not be very difficult to produce available
documents pertaining to a small, identifiable group in a limited geographical area for a narrow span
of time. Consequently, the court is inclined to order the production of payment documents, albeit
with some parameters or guide rails. Accordingly, the court shall require Continental to produce
documents that reflect the amount paid to other landowners for oil well pads, pipelines, and any
similar oilfield or industrial surface uses or disturbances on property located in the same township
as Rychners property as well as in the eight surrounding townships during the period from January
1, 2018, to October 31, 2019. Continental need not produce information regarding offers rejected
17

by other landowners.
B.

Kadrmas
1.

Kadrmas’ Response to the Subpoena Duces Tecum

In December 2019 the Rychners served Kadrmas with a notice of a Rule 30(b)(6) deposition.
(Doc. No. 58-11). They simultaneously served Kadrmas with a subpoena duces tecum in which they
demanded that Kadrmas produce the following:
1.

All documents related to any compensation offered or paid to Omer Rychner or
Rodney Rychner or Keith Rychner for the Carus 2 Well Location.

2.

All documents related to any compensation offered or paid to Keith Rychner for
operations involving the Carus 13-28 Well Location.

3.

All documents related to any compensation offered or paid to Keith Rychner or
Rodney Rychner for the Carus 4-7 Wells Location.

4.

All documents that were prepared by Kadrmas and were provided to Keith Rychner
or Omer Rychner or Roselyn Rychner or Rodney Rychner.

5.

All documents that Kadrmas received from Keith Rychner or Omer Rychner or
Roselyn Rychner or Rodney Rychner.

6.

All documents related to any internal communication involving any Kadrmas
owner, employee, or agent concerning the dollar amount of compensation offered to
Keith Rychner for the Carus 4-7 Well Location.

7.

All documents related to any internal communication involving any Kadrmas
owner, employee, or agent concerning the dollar amount of compensation offered to
Keith Rychner for the Carus 13-28 Well Location.

8.

All documents related to any communication between Continental and Kadrmas
18

concerning the dollar amount of compensation offered to Keith Rychner for the
Carus 4-7 Wells Location.
9.

All documents related to any communication between Continental and Kadrmas
concerning the dollar amount of compensation offered to Keith Rychner for the
Carus 13-28 Well Location.

10.

All communications between Kadrmas and Keith Rychner or Omer Rychner or
Roselyn Rychner or Rodney Rychner.

11.

All communications between Kadrmas and Continental related to Keith
Rychner or Omer Rychner or Roselyn Rychner or Rodney Rychner.

12.

Documents sent by Matt Kostelecky to Rance Lemieux in response to the request by
Rance Lemieux to Matt Kostelecky, contained in the email dated April 25, 2019:
"Please pull all correspondence related to these wells."

13.

Documents attached as a "scan" to the email from Ann Theesen to Rance Lemieux,
dated July 19, 2018.

14.

The Carus 2-28 well file.

15.

The Carus 4-7 well files.

16.

The Carus 13-28 well file.

17.

All maps that relate to any meeting between Ann Theesen and Omer Rychner
or Roselyn Rychner or Keith Rychner..

18.

The "Do Not Contact" list for pipeline negotiations.

19.

Each Notice of Drilling Operations sent by Kadrmas to landowners in Dunn County,
North Dakota for the period from January 1, 2018 to June 30, 2019.

(Doc. No. 58-11). What follows is Continental’s and Kadrmas’s response:
19

Defendant Continental Resources, Inc. and non-party B.J. Kadrmas, Inc.
Hereby object to the subpoena to B.J. Kadrmas, Inc. The subpoena demands
production of certain documents to be produced at the deposition of B.J. Kardrmas,
Inc. on January 24, 2020.
The following objections are made to the subpoena/amended subpoena:
Continental and B.J. Kadrmas, Inc. object to the subpoena in that it is unduly
burdensome to a non-party, B.J. Kadrmas, Inc. Objection is made to all requests for
production of information and/or documents to the extent that such requests are
repetitive, overbroad, and non calculated to lead to the discovery of admissible
evidence. Objection is made to all requests for production of information and/or
documents to the extent that such requests relate to privileged or otherwise nondiscoverable information; materials prepared in anticipation of litigation; trade secret
or other research, development or commercial information; and any attorney-client
privileged information. Subject to the above objections, B.J. Kadrmas, Inc. will
produce responsive documents related to the Rychners’ property which does not
contain confidential information, attorney-client privileged information, or otherwise
privileged information.
((Doc. No. 58-12).
At the Rule 30(b)(6) deposition, Kadrmas provided electronic copies of certain documents
to the Rychners, along with a privilege log that set forth what it had withheld and why. One of its
designated representatives, Matthew Kostelecky, testified at length about the process employed to
collect, review, and disseminate the documents in response to the subpoena.
2.

General Objections

The Rychners assert that Kadrmas’s general objection to its requests or production did not
comport with the specificity requirements of Rule 34, making difficult if not impossible to discern
exactly what it was agreeing to provide. They ask the court to direct Kadrmas to remove its general
objection and produce all documents it withheld pursuant to its general objection.
The court find that Kadrmas’ general objection does not comport with Rule 34's specificity
requirement. Consequently, the court orders it stricken. Kadrmas shall update its disclosures as
necessary. Whith that being said, the court suspects that the only documents withheld by Kadrmas
were the items listed in its privilege/withheld documents log. The court shall specifically address
20

these items below.
3.

Manner of Production

The Rychners assert that Kadrmas violated the rules of procedure by failing to either
produce the documents as they are kept in the ordinary course of business or otherwise specify
which documents were responsive to which request. They further assert that Kostelecky conceded
as much his deposition.
Q. When you brought the documents with you today you did not produce them as
they’re kept in the ordinary course of business, did you?
A. Okay, I mean, I guess I organized them a little bit so they’re easier for us to
understand and go through today.
Q. And you didn’t label them as responsive to any specific request; correct?
A. Correct.
(Doc. No. 58-7).
Kadrmas responds that the Kostelecky’s testimony bears out that Kadrmas produced wells
files as they are stored in the usual course.
Q. (MR. ARMSTRONG CONTINUING) If we take, for example, the subpoena,
Exhibit 1, let’s just start with Number 1 – you see Production Number 1. Do you
have a folder in your office that has – is labeled “compensation offered or paid to
Omer Rychner”?
A. No.
Q. Where would information like that be kept in the ordinary course of your
business?
A The well folder.
Q. And did you produce the well folders in response to the subpoena today?
A. Yes.
Q. And would that be same for all of the Numbers 1 through 6, you don’t have
21

folders like what are described in 1 through 6 in your office?
A. No, we don’t have folders labeled like that. No.
Q. And so where would the information from those be found?
A. It’s in the well folder.
Q. How about for folders number – or requests 7 through 11, do you have folders
with those names within your office?
A. We have well folders named Carus 13-28, 4 through 7 and stuff but not worded
like this.
Q. And so the information responsive to those would be found in where?
A. The well file.
Q. And that’s were they’re stored during the ordinary course of your business?
A. Yes.
Q. And then you also discussed they could be in email communications.
A. Yes.
Q. For Number 12, did you do that as specific request?
A. Yeah. I thought that was a more specific request, yes.
Q. And were you able to respond to that specifically in the production today?
A. Yes.
Q. With Number 13, did you view that as a specific request.
A. Yes.
Q. And were you able to produce that specifically in response to Number 13?
A. Yes.
Q. And that included within the production?
A. Yes.
22

Q. With Number 14, that was a more specific request; is that fair?
A. Yes.
Q. And did you produce the entire Carus 2-28 well file?
A. Yes.
Q. And is that produced in its native format?
A. Yes.
Q. So if we look at the screen, which would be–what would show on the production,
it says Carus 2-28H1 electrical; correct”
A. Yes.
Q. And that is how it looks on your server?
A. Yes, minus the 14 dash. Yes.
Q. And would that be same for Numbers 15 and 16.
A. Yes.
Q. For Number 17, first off did that request any specific map?
A. No.
Q. If you were asked to produce the map that was talked about in Exhibit 3, would
you have endeavored to produce that map?
A. If that was specifically asked for, yes.
Q. Do you have a folder that says maps that relate to any meetings between Ann
Theesen and Omer Rychner or Roseyln Rychner or Keith Rychner?
A. No.
Q. Where do you store maps in your files?
A. Within the well files or project files.
Q. With Number 18, was that a specific request?
23

A. Yes.
Q. And did your provide with that what you understand to be the do no contact list
as it would be stored within your office?
A. Yes.
(Id.). As for emails, Continental asserts that Kadrmas endeavored to produce them in a manner that
approximates as close as possible how they are kept in the usual course.
“As provided for in Rule 45, a nonparty may be compelled to produce documents and
tangible things or to permit an inspection.” Fed. R. Civ. P. 34(c). “A party or attorney responsible
for issuing and serving a subpoena must take reasonable steps to avoid imposing undue burden or
expense on a person subject to the subpoena.” Fed. R. Civ. P. 45(d)(1). “A person responding to a
subpoena to produce documents must produce them as they are kept in the ordinary course of
business or must organize and label them to correspond to the categories in the demand.” Fed. R.
Civ. P. 45(e)(1)(A).
Having reviewed the record, the court finds the manner of Kadrmas’s production comports
with the requirements of federal rules. First, it appears to the court that Kadrmas has produced well
files as they are kept in the ordinary course. These well filed contain document’s responsive to the
Rychners’ various requests. Although the format in which Kadrmas may have kept these records
in the ordinary course of business may not be ideal, it does not undermine the usefulness of the
production. With reasonable effort, the Rychners should be able to discern which documents in the
well files are responsive to which requests. Second, with respect to the production of emails, it is
apparent that emails identified as responsive following a search of Kadrmas’s servers were copied
into folders organized by well. This is arguably the organization that Kostelecky was referring in
the testimony cited by the Rychners. While imperfect, this production suffices for purposes of Rule
24

34 as it apparent the emails were produced in a form closely approximating the manner in which
they were kept in the usual course. Consequently, Kadrmas need not reproduce its records.
4.

Privilege/Withheld Documents Log

Attached to the Rychners’ motion is a copy of a Kadrmas’s “Privilege/Withheld Documents
Log” dated February 3, 2020.

(Doc. No. 58-16). The first two entries on the log–notes from

Kostelecky to counsel–were withheld on the grounds of attorney-client privilege. (Id.). The
remaining entries on the log–email communications, notices, status maps, line lists, and/or
attachments–were withheld on the grounds that they contained confidential commercial information
related to third-parties as opposed to Rychners, did not contain information relating to the Rychners’
claims, and/order were not calculated to lead to the discovery of admissible evidence (Id.)
The Rychners asserts that the bulk of the documents listed on Kadrmas’s privilege log were
improperly withheld. Specifically, they assert that Kadrmas improperly withheld documents on
grounds of confidentiality as opposed to privilege and otherwise failed to articulate its basis for
withholding certain documents with the requisite specificity. They ask the court to order the
production of all of the documents listed on the privilege log save documents identified or described
as attorney/client notes. They also ask the court to order the production of unredacted versions of
redacted documents produced by Kadrmas.
Kadrmas responds that the items listed in the log are not discoverable, incorporating by
reference Continental’s assertion that the Rychners are not entitled to offers or payments made to
other landowners. It also asks the court to review the documents in camera to determine whether
production is necessary.
In their reply, the Rychners hone in on the drilling notices withheld by Kadrmas. Stressing
that the drilling notices contain the initial offers made to surface owners, the assert that “they are
25

entitled to discover Continental’s offer amounts [to other surface owners] and the reasoning behind
them.”
The court is not persuaded that the Rychners require documentation regarding how
Continental formulated their offers to other surface owners or what they offered to other surface in
order to prepare their experts and prove up their claim for damages. The Rychners have the ability
to examine Continental about how it is calculating damages. The ability coupled with the
information regarding actual payments made by Continental to other surface owners in the vicinity
of the Rychners should be more than sufficient.
IV.

CONCLUSION
The Rychners’ Motion to Compel (Doc. No. 57) is GRANTED IN PART AND DENIED

IN PART. The court strikes Continental’s and Kadrmas’ general objections. Neither Continental
nor Kadrmas needs to reorganize and reproduce the documents they have already provided the
Rychners. However, Continental and Kadrmas shall produce documents that reflect the amount paid
to other landowners for oil well pads, pipelines, and any similar oilfield or industrial surface uses
or disturbances on property located in the same township as Rychners’ property as well as in the
eight surrounding townships during the period from January 1, 2018, to October 31, 2019. The
parties will prepare and submit for the court’s review by June 7, 2021, a joint proposed protective
order setting forth how confidential materials will be handled. The Rychners’ Motion for Hearing
(Doc. No. 59) is deemed MOOT. The parties shall bear their own costs and fees associated with
these motions.

26

IT IS SO ORDERED.
Dated this 1st day of June, 2021.
/s/ Clare R. Hochhalter
Clare R. Hochhalter, Magistrate Judge
United States District Court

27