Ogle et al v. Columbia Gas Transmission, LLC et al
Filing
123
ORDER granting 105 the Columbia Defendants' Motion for Disclosure; denying 112 Plaintiffs' Motion for Protective Order; denying 113 Plaintiffs' Motion to Compel Discovery; denying 120 Plaintiffs' Motion to Quash a subpoena served on Ogleshill Farm, LLC; denying 121 Plaintiffs' Motion for an investigation into a missing colloquy that occurred during a deposition. Signed by Magistrate Judge Terence P Kemp on 8/8/14. (sem1)
IN THE UNITED STATES DISTRICT COURT
FOR THE SOUTHERN DISTRICT OF OHIO
EASTERN DIVISION
Charles R. Ogle, et al.,
Plaintiffs,
:
:
v.
:
Case No. 2:10-cv-1059
:
JUDGE PETER C. ECONOMUS
Magistrate Judge Kemp
Columbia Gas Transmission,
LLC, fka Columbia Gas
Transmission Corp., et al.,
Defendants.
:
:
OPINION AND ORDER
This case involves, as the Court of Appeals has put it,
Plaintiffs Charles and Melanie Ogle’s claim for “damages and
injunctive relief relating to the expansion of natural-gas
facilities on their land ....”
See Ogle v. Columbia Gas
Transmission Co., LLC, Case No. 11-4155 (6th Cir. January 31,
2013), slip op. at 2.
More particularly, Columbia Gas
Transmission asked, in 2008, for permission from the Federal
Energy Regulatory Commission to place a second storage well and
an access road on the Ogles’ property. Permission was granted,
and the Court has dismissed all of the Ogles’ claims for
injunctive relief, so the remaining issue in the case is damages.
Those damages are limited to the effect that Columbia’s actions
had on the property prior to November 5, 2009, when the property
was transferred to Ogleshill Farm, LLC. See Opinion and Order of
August 9, 2013 (dismissing all other claims for lack of
standing). According to the most recent scheduling order, Doc.
117, fact discovery is to be completed by September 2, 2014, and
dispositive motions are due by January 15, 2015.
There are a number of discovery motions outstanding. They
include the Columbia Defendants’ motion for disclosure and to
compel discovery (Doc. 105), the Ogles’ motion for a protective
order (Doc. 112), the Ogles’ motion to compel discovery (Doc.
113), a motion to quash a subpoena served on Ogleshill Farm, LLC
(Doc. 120), and a motion for investigation into a missing
colloquy that occurred during a deposition (Doc. 121). This
Opinion and Order will address all of these motions.
I.
In their motion to compel disclosure and discovery, the
Columbia Defendants ask the Court to force the Ogles to provide
information and documentation about their damages claims. The
Columbia Defendants served discovery on that issue in February,
2014, asking for specifics about each of the eight categories of
damages alleged by the Ogles.
The Ogles responded that they had
not determined the extent of their damages at that time and had
no documents to produce. They were also deposed but did not
provide any more specifics in response to questions about
damages.
The Ogles have not specifically responded to the motion to
compel, but the Court understands their position to be that their
damages claims will all be covered by their expert witness
report. The Court had set a date of October 2, 2014, for
disclosure of that report, which the Ogles, by motion filed on
July 24, 2014, now seek to have postponed to December 1, 2014, on
grounds that their expert cannot do the necessary work until the
month of November, 2014. The time for filing a response to that
motion has not yet passed.
The Ogles have an obligation, during either the fact or
expert discovery period, to specify their damages and to provide
the Columbia defendants with any and all documents which support
their claims. They may well need an expert to assist them in
quantifying their damages, and may also need help from that
expert to identify relevant documents (if, indeed, there are
any). As long as it does not disrupt the case schedule, there
would appear to be no harm to the Columbia Defendants if further
responses to their interrogatories and document requests are
deferred until the expert report is disclosed. If that report
does not address all areas of damage about which the Ogles intend
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to offer evidence (including their own testimony) at trial,
however, they must then supplement their prior answers with
information in addition to the expert report, and may be subject
to an additional deposition as to any supplemental information
they provide. The Court will resolve any issues arising from
those circumstances if and when that situation occurs, but it
will insure that prior to the end of all discovery, the Columbia
Defendants have all the information the Ogles possess, both by
way of testimony and documents, relating to their damages claims.
If there is any information the Ogles do not provide during
discovery, they will not be able to use that information at the
trial. See Fed.R.Civ.P. 26(e)(1)(“A party who has ... responded
to an interrogatory, [or] request for production ... must
supplement or correct its disclosure or response ... in a timely
manner if the party learns that in some material respect the
disclosure or response is incomplete or incorrect, and if the
additional or corrective information has not otherwise been made
known to the other parties during the discovery process or in
writing”); Fed.R.Civ.P. 37(c)(1)(“If a party fails to provide
information ... as required by Rule 26(e), the party is not
allowed to use that information to supply evidence on a motion,
at a hearing, or at a trial”).
II.
The Ogles’ motion for a protective order was filed on May 9,
2014. In their motion, they assert that the “Defendants’
attorneys have repeatedly harassed Plaintiffs throughout
discovery about answering questions related to Ogleshill Farm,
LLC” and that they have demanded that Ogleshill Farm be a party
to any settlement. Motion for a Protective Order, Doc. 112, at
1. They ask the Court to preclude the Defendants from any
additional questioning or demands about Ogleshill Farm. The same
issue is raised in their motion to quash, which is directed to a
deposition subpoena issued to Ogleshill Farm, LLC. According to
the Ogles, since the damages in this case are limited to those
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which occurred prior to the November 5, 2009 transfer of
ownership of the property to Ogleshill Farm, “Defendants can
offer no reasonable explanation as to why a deposition of
Ogleshill Farm, LLC is warranted.” Motion to Quash, Doc. 120, at
2.
The Columbia Defendants’ position on this issue is set forth
in their response to the motion for a protective order. In
addition to raising a number of arguments not directly related to
the merits of the motion, they contend that the relationship
between the Ogles and Ogleshill Farm, LLC is a relevant topic for
discovery because both the terms of the property transfer and the
Ogles’ ability to continue to reside on and otherwise use the
property relates to their damage claim.
The Court understands the Ogles’ reluctance to permit
discovery concerning Ogleshill Farm given the prior ruling
limiting damages in this case to only the injury to the property,
or loss of value of the property, which occurred prior to the
transfer of ownership. But the Columbia Defendants have the
better of this argument.
Relevance, for discovery purposes, is broader than relevance
for trial purposes. Fed.R.Civ.P. 26(b)(1) permits discovery of
both evidence which would be admissible at trial and of
information “reasonably calculated to lead to the discovery of
admissible evidence.” Consequently, “just because something may
not be admissible under the Federal Rules of Evidence does not
mean that it is not discoverable.” Levick v. Malmonides Medical
Center, 2011 WL 1673782, *3 (E.D.N.Y. May 3, 2011). As this
Court has often recognized, “[t]he Federal Rules of Civil
Procedure authorize extremely broad discovery,” and
“[i]nformation subject to disclosure during discovery need not
relate directly to the merits of the claims or defenses of the
parties. Rather, it may also relate to any of the myriad of
fact-oriented issues that arise in connection with those claims
or defenses.” See Guild Associates, Inc. v. Bio-Energy
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(Washington) LLC, 2014 WL 2767605, *12-13 (S.D. Ohio June 18,
2014).
Judged by these standards, at least some amount of
information about both the transfer of ownership of the property
to Ogleshill Farm, LLC, and the use of the property after
transfer may relate to the Ogles’ claim of damage to the property
prior to the transfer. One rule which applies to the type of
damage claim asserted by the Ogles has been stated this way:
“When, in a partial taking, the landowner asks the condemnation
court for damages to the remainder, the court asks whether the
remainder will be less valuable as a result of the taking.”
United States v. 101.88 Acres of Land, More or Less, Situated in
St. Mary Parish, State of La., 616 F.2d 762, 768-69 (6th Cir.
1980); see also United States v. 329.05 Acres of Land, More or
Less, Situate in Town of Newburgh, Orange County, N.Y., 156
F.Supp. 67, 71 (S.D.N.Y. 1957)(“[t]he valuation of an easement
necessarily must be measured by the loss or diminution in value
of the lands upon which the easements are imposed and which
directly result from the restrictions or limitations upon the use
of the land imposed by the easements appropriated”), aff’d sub
nom. United States v. Kooperman, 263 F.2d 331 (2d Cir. 1959).
The actual use to which the land has been put after the partial
taking is relevant to this question. While it may not
definitively answer the question of whether the taking has
limited the use of the property, it would show that certain uses
have not been limited because the owner still uses the property
in that way even after the taking occurred. Further, in
condemnation cases, sales of similar or comparable properties may
be used to show the market value of the property in question, and
“[t]here is no absolute rule which excludes evidence of sales of
similar property made subsequent to the condemnation action.”
See United States v. 691.81 Acres of Land, More or Less, Situate
in Clark County, State of Ohio, 443 F.2d 461, 462 (6th Cir.
1971). That would certainly include the sale of the exact
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property in question if the sale occurred in the context of an
arms-length transaction. Consequently, evidence about how the
sale to Ogleshill Farm, LLC took place, and the price paid, is
potentially relevant to the issue of how much value, if any, the
property lost as a result of the takings at issue. The
Defendants are therefore entitled to pursue discovery on these
issues.
The parties have also addressed whether Defendants may
legitimately insist on Ogleshill Farm, LLC being a party to any
settlement. That is simply not an issue for the Court to decide.
While the Court has some authority over the settlement process,
which includes requiring parties to engage in mediation and doing
so in good faith, “a court cannot force a party to settle.” In
re A.T. Reynolds & Sons, Inc., 452 B.R. 374, 382 (S.D.N.Y. 2011).
The parties ultimately choose the terms on which they will
settle, and if a particular term is important to one party, it is
not the Court’s job to second-guess that decision, nor does the
Court have the authority to veto it. Thus, that portion of the
Ogles’ motion raises an issue which the Court cannot properly
address.
III.
The Ogles’ motion to compel discovery asserts that
Defendants have been evasive in the answers they provided to
written discovery. That includes, according to the motion to
compel, withholding the names of witnesses (including expert
witnesses) and failing to provide supplementary document
discovery. They have attached the discovery they served and the
answers from various Defendants, but have not stated more
specifically which interrogatories or document requests they
believe require further answers, other than their reference to
witnesses.
Both groups of remaining defendants have responded to the
motion. The Columbia Defendants’ response (Doc. 115) states that
(1) Columbia has provided the names of its involved employees,
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either by interrogatory answer or document, and does not know the
names of all individuals employed by its contractors (but the
contractors have provided such information in discovery); (2) the
Columbia Defendants will submit an expert report if deemed
necessary in response to any such report that the Ogles produce;
and (3) the motion does not sufficiently identify what
supplemental documents the Ogles are asking for - and if it
refers to documents relating to other landowners, the Ogles never
formally requested such documents. The Columbia Defendants also
point out that the motion to compel was not accompanied by either
an effort to resolve the issues presented on an extrajudicial
basis (that is, between the parties without the involvement of
the Court) or a certification that such an effort took place.
That certification is required by Fed.R.Civ.P. 37(a)(1), which
reads in full:
On notice to other parties and all affected persons, a
party may move for an order compelling disclosure or
discovery. The motion must include a certification that
the movant has in good faith conferred or attempted to
confer with the person or party failing to make
disclosure or discovery in an effort to obtain it
without court action.
In their separate response to the motion to compel, see Doc. 118,
the Off Duty Services Defendants make essentially the same
response, also stating that they have no additional responsive
documents which they could produce even if ordered to do so.
The Defendants are correct that the motion is procedurally
defective because it is not accompanied by the certification
required by Rule 37(a)(1). This Court has, in the past, denied
motions to compel for this reason, even motions filed by pro se
litigants, stating that “Plaintiff's status as a pro se litigant
does not discharge him from adhering to the requirements of the
Federal Rules of Civil Procedure ....” Despot v. American Income
Life Ins. Co., 2012 WL 787387, *1 (S.D. Ohio March 9, 2012). The
rule is not just a formality; it was designed to “avoid
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unnecessary court intervention, protracted legal proceedings and
needless expense and fees.” See Hilton-Rorar v. State and
Federal Communications, Inc., 2010 WL 148127, *1 (N.D. Ohio Jan.
7, 2010), citing Naviant Mktg. Solutions, Inc. v. Larry Tucker,
Inc., 339 F.3d 180, 182 (3d Cir. 2003). Deciding discovery
motions which do not comply with the Rules is not an efficient
way to proceed; as this Court has also said, “[t]he Court does
not believe that disregarding the certification requirement of
Civil Rule 37 or Local Rule 37 in any way promotes efficiency.”
Avis Rent A Car System, LLC v. City of Dayton, Ohio, 2013 WL
3781784, *5 (S.D. Ohio July 18, 2013).
Having said that, it also appears that the motion lacks
merit. All responding defendants assert that they have
adequately disclosed the names of the people involved with the
construction on the property and have produced all documents
relevant to those operations. They are correct that the Ogles
have not asked for information about other properties, so there
is nothing to compel with respect to that issue. And, like the
Ogles, they may defer producing any expert opinions on the issue
of damages until the time set by the Court’s scheduling order.
Therefore, the Court will deny the motion to compel.
IV.
The final motion before the Court is the Ogles’ request for
an investigation into an exchange they had with counsel at Mr.
Ogle’s March 24, 2014 deposition. They claim that the colloquy
should have been on the record but that it is not. They have not
filed any portion of the transcript with the Court, and
Defendants have not responded to the motion.
The Court ordinarily does not initiate investigations into
matters which occur during discovery. Its powers over discovery
are generally set out in Rules 26-37 and Rule 45 of the Federal
Rules of Civil Procedure. It is difficult to determine which of
these rules is being invoked by Plaintiff’s motion. Without more
information, such as evidence that the transcript of the
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deposition is actually incomplete, and an explanation from
someone - perhaps the court reporter - as to why this particular
discussion did not appear on the record, the Court cannot enter
any type of order. If some type of sanction is being asked for,
the current record is simply too sparse to justify relief.
V.
For the reasons set forth above, the following motions are
denied: the Ogles’ motion for a protective order (Doc. 112), the
Ogles’ motion to compel discovery (Doc. 113), the motion to quash
a subpoena served on Ogleshill Farm, LLC (Doc. 120), and the
motion for investigation into a missing colloquy that occurred
during a deposition (Doc. 121). The Columbia Defendants’ motion
for disclosure and to compel discovery (Doc. 105) is granted to
this extent: no later than the expert witness disclosure date,
the Ogles shall disclose all information in their possession,
including any responsive documents, which explain or support
their claim for damages. Should they fail to do so, the Court
may preclude them from offering any evidence not disclosed in
response to this order.
VI.
Any party may, within fourteen days after this Order is
filed, file and serve on the opposing party a motion for
reconsideration by a District Judge.
28 U.S.C. §636(b)(1)(A),
Rule 72(a), Fed. R. Civ. P.; Eastern Division Order No. 14-01,
pt. IV(C)(3)(a).
The motion must specifically designate the
order or part in question and the basis for any objection.
Responses to objections are due fourteen days after objections
are filed and replies by the objecting party are due seven days
thereafter.
The District Judge, upon consideration of the
motion, shall set aside any part of this Order found to be
clearly erroneous or contrary to law.
This order is in full force and effect even if a motion for
reconsideration has been filed unless it is stayed by either the
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Magistrate Judge or District Judge.
S.D. Ohio L.R. 72.3.
/s/ Terence P. Kemp
United States Magistrate Judge
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