Kronberg v. Oasis Petroleum North America LLC et al

Filing 93

ORDER by Magistrate Judge Charles S. Miller, Jr. denying 67 Motion to Compel; granting in part and denying in part 68 Motion to Compel; and granting in part and denying in part 74 Motion in Limine. (KT)

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF NORTH DAKOTA
NORTHWESTERN DIVISION
Margo Kronberg as Personal Representative )
of the Estate of Joseph Kronberg; and
)
Margo Kronberg on behalf of all the heirs )
of Joseph Kronberg,
)
ORDER ON MOTIONS TO COMPEL
)
AND MOTION IN LIMINE
Plaintiffs,
)
)
vs.
)
)
Oasis Petroleum North America LLC;
)
Basin Concrete, Inc.; RPM Consulting, Inc.; )
H and H Electric, Inc.; R and J Technical )
Case No. 4:13-cv-011
Services LLC; American Portables, Inc.;
)
and American Portable Mini Storage, Inc.; )
)
Defendants.
)
_________________________________________________________________________________
Before the court are three motions filed by plaintiff: (1) a motion to compel discovery from
and for sanctions against defendant Oasis Petroleum North America LLC (“Oasis”); (2) a motion
to compel discovery from and for sanctions against defendant RPM Consulting, Inc. (“RPM”); and
(3) a motion in limine to exclude witnesses untimely disclosed by Oasis. The court held a telephonic
hearing on the motions on August 27, 2014.
This is a wrongful death and survival action arising from the death of Joseph Kronberg. The
decedent was electrocuted while working at an oil well drilling site in western North Dakota. Oasis
was the well operator. RPM was a consultant placement service that assigned “company men” Mike
Bader, Paul Brenneise, and Cole Smith (“the consultants”) to the well site.
I.

PLAINTIFF’S MOTION TO COMPEL DISCOVERY FROM OASIS AND FOR
SANCTIONS (Docket No. 67)
On June 2, 2014, plaintiff filed a “Motion to Compel Discovery from Oasis Petroleum North

America LLC and for Sanctions.” The motion relates to Plaintiff’s Second Set of Requests for

Production served on Oasis on April 25, 2014. See Docket No. 67-2, Ex. 3. The requests are for
Oasis’s well file for the well site; communiques to or from RPM Consulting, the consultants, and
the email address [e-mail] for a specified time period; records of safety
meetings related to this case; Oasis’ safety manual in effect on the day of the accident; subsequent
safety manuals; and Oasis’ document retention policy at all applicable times. Plaintiff states that
the requests are relevant to the issue of whether the consultants at the well site where the decedent
was electrocuted were agents of Oasis or RPM.
In the motion to compel, plaintiff asserted that as of June 2, 2014, Oasis had not responded
to the requests, Oasis had not requested or received an extension of time to respond, and Oasis’ May
28, 2014 deadline for serving responses and objections had passed. Plaintiff requested the court to
issue an order holding all objections to the requests waived and requiring Oasis to produce all
responsive documents. Plaintiff further requested that if Oasis withheld or had destroyed responsive
documents, the court sanction Oasis by barring it from arguing that the consultants were independent
contractors.
On June 6, 2014, plaintiff and Oasis filed a stipulation in which they agreed to extend Oasis’
deadline to respond to Plaintiff’s Second Set of Requests for Production until June 20, 2014. The
parties also agreed that the extension would not prejudice plaintiff’s right to pursue the motion to
compel. The court adopted the stipulation.
On June 30, 2014, Oasis filed its response to plaintiff’s motion to compel. Oasis argued the
motion should be denied as moot because as of June 20, 2014, Oasis had responded to all of the
requests at issue. Oasis asserted that plaintiff’s request for sanctions should be denied because
Oasis’ delay in responding to plaintiff’s requests was substantially justified.

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On July 10, 2014, plaintiff filed a reply. Plaintiff stated that issues raised in the motion to
compel remained to be resolved. Specifically, plaintiff alleged that Oasis had failed to produce at
least one category of responsive documents (emails of a key Oasis employee) and that Oasis had
failed to produce the documents in the manner in which they were kept in the ordinary course of
business. Plaintiff requested the imposition of sanctions, including the award of attorney’s fees for
bringing the motion to compel and any other appropriate relief.
During the hearing, plaintiff’s counsel identified two issues remaining to be resolved with
regard to the motion. First, plaintiff argued the emails produced by Oasis were inadequate because
they were produced as PDFs rather than in their native PST format. The court will not require Oasis
to produce the emails in PST format. Second, plaintiff argued Oasis had failed to produce
responsive emails sent by Oasis engineer Laura Strong. Oasis responded that all emails responsive
to plaintiff’s requests had been produced. Based on Oasis’ counsel’s representation, the court
concludes that Oasis has produced all responsive emails to plaintiff’s second set of requests for
production. The court further concludes that the imposition of sanctions is not warranted.
Accordingly, plaintiff’s motion to compel and for sanctions (Docket No. 67) is DENIED.

II.

PLAINTIFF’S MOTION TO COMPEL DISCOVERY FROM RPM AND FOR
SANCTIONS (Docket No. 68)
On June 2, 2014, plaintiff filed a “Motion to Compel Discovery from RPM Consulting, Inc.

and for Sanctions.” The motion relates to RPM’s responses to Requests 1, 2, 3, 7, and 8 of
Plaintiff’s Second Set of Requests for Production. See Docket No. 67-2, Exs. 1-2. As relevant to
this motion, Requests 1-3 are for emails sent to and from RPM, the consultants, and the email
address [e-mail] from December 29, 2007 to January 17, 2013. Request 7 is for
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any written document retention policy in effect during the same time period. Request 8 is for any
contract for information technology services related to email addressed to recipients within the
domain rpmconsulting.com during that time period. Plaintiff states that the requests are relevant to
the issue of whether the consultants at the well site where the decedent was electrocuted were agents
of RPM or independent contractors. Plaintiff requests an order requiring RPM to provide full
responses to its requests. Plaintiff further request that a sanction prohibiting RPM from arguing the
consultants were independent contractors be imposed if RPM refuses to comply or has destroyed
responsive materials. RPM responds that plaintiff’s motion should be denied because RPM
provided all narrative emails in its possession and no document retention policies or information
technology contracts exist.
During the hearing, plaintiff asserted that RPM’s responses to its requests for emails in
Requests 1-3 were inadequate because (1) the responses referred to “narrative” emails and the
“narrative” limitation was inappropriate and (2) deposition testimony indicated additional emails
should exist unless they were intentionally deleted. Counsel for RPM responded that emails were
deleted in the ordinary course of business and that all existing emails responsive to plaintiff’s
request had been produced. The court concludes that RPM’s responses are unclear as to what emails
have been produced. Accordingly, plaintiff’s motion to compel (Docket No. 68) is GRANTED IN
PART and RPM is ORDERED to provide new responses to the requests for email in Requests 1-3.
The new responses must included any responsive emails that have not been previously produced,
but the responses may be that RPM does not have any additional responsive emails. Further, the
court notes that while the requests are not currently overbroad given that RPM apparently intends
to contend that the consultants were independent contractors, the requests would likely be overbroad

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if RPM were to concede that the consultants were acting as its agents.
RPM’s response to Request 7 for any written document retention policy was that “There was
no such written document retention policy.” RPM’s response to Request 8 for information
technology contracts was that “RPM had no such contract with any outside provider in 2011 through
the present time. RPM’s email was previously hosted until 2010 by 1 Stop Hosting and Web and
Design. RPM then installed an exchange server in its office to host email.” RPM’s responses to
Requests 7-8 were adequate. Accordingly, plaintiff’s motion to compel (Docket No. 68) is
DENIED IN PART as to Requests 7-8. Further, plaintiff’s motion for sanctions (Docket No. 68)
is DENIED as there is no indication that RPM has destroyed documents or failed to comply with
a court order.

III.

PLAINTIFF’S MOTION IN LIMINE REGARDING WITNESSES UNTIMELY
DISCLOSED BY OASIS (Docket No. 74)
On June 24, 2014, plaintiff filed a “Motion in Limine Regarding Witnesses Untimely

Disclosed by Oasis.” Plaintiff requests an order prohibiting Oasis form relying on the testimony of
(1) nineteen employees of Nabors Drilling USA, LP (“Nabors”) identified in Oasis’ Supplement to
Rule 26(a) Disclosures dated June 20, 2014 and (2) any employees or principals of Oasis or its
related corporate entities not identified in Oasis’ initial Rule 26(a) Disclosures dated April 3, 2013.
Plaintiff argues that Oasis should not be permitted to rely on these witnesses because they were not
identified until after the deadlines for providing Rule 26(a)(1) disclosures and conducting discovery
had passed.
Oasis responds that plaintiff’s motion should be denied for a number of reasons. First,
defendant argues the motion is moot because after it was filed, the parties stipulated to extend the
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deadlines for deposing the Nabors employees, for disclosing experts, and for completing expert
discovery depositions. See Docket Nos. 86-87. Second, Oasis argues that the supplemental
disclosure was not required because the nineteen Nabors employees were identified in Oasis’ initial
Rule 26 disclosure, either directly or by reference to Nabors’ responses to the Secretary of Labor’s
interrogatories in a related OSHA proceeding. See Docket No. 85-1, pp. 3-5. Oasis asserts that the
supplement was provided as a courtesy to provide updated information on the Nabors employees
because some were no longer employed by Nabors. Finally, Oasis argues that plaintiff’s request to
exclude Oasis employee witnesses is premature.
The court construes plaintiff’s motion as motion for sanctions for failure to timely comply
with discovery. The motion (Docket No. 74) is GRANTED IN PART because the court concludes
that merely referencing Nabors’ responses to the Secretary of Labor’s interrogatories in the related
OSHA proceeding but withholding the document based upon a specious claim of privilege did not
comply with the Rule 26 requirement for disclosing of the name of each individual likely to have
discoverable information. Oasis shall cooperate with discovery of the witnesses identified in the
supplemental disclosure and any additional Oasis employee witnesses, and the court will extend
plaintiff’s time for conducting discovery from these witnesses up to the time of the final pretrial
conference. Further, if Oasis intends to rely on the testimony of any of the newly disclosed
witnesses in support of a dispositive motion, Oasis shall provide plaintiff a detailed written summary
of what the witness will testify to. The summary shall be provided at the time the dispositive motion
is filed.
The remainder of plaintiff’s motion is DENIED.

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IT IS SO ORDERED.
Dated this 10th day of September, 2014.
/s/ Charles S. Miller, Jr.
Charles S. Miller, Jr., Magistrate Judge
United States District Court

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