Wilson et al v. Columbia Gas Transmission, LLC

Filing 360

CASE MANAGEMENT ORDER: Defendant shall answer Plaintiffs Complaint (ECF No. 2) by 08/08/2014. Defendant shall file reply briefs in support of its motions to dismiss counterclaims (ECF Nos. 247 and 248) by 08/08/2014. Counter-Defendants shall file re sponses to Defendants motions to dismiss filed on 09/06/2013 (ECF No. 252) and 09/17/2013 (ECF No.254) by 08/08/2014; any reply briefs will be submitted in accordance with this Courts Local Civil Rules. Signed by Magistrate Judge Mark R. Abel on 08/01/2014. (sr1)

IN THE UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF OHIO
EASTERN DIVISION
PAUL GARY WILSON, et al.,
Plaintiffs,
Case No. 2:12-cv-1203
v.
Judge Graham/Magistrate Judge Abel
COLUMBIA GAS TRANSMISSION, LLC,
Defendant/Counterclaimant,
v.
EXCLUSIVE NATURAL GAS STORAGE EASEMENTS, et al.,
Counter-Defendants.

This document applies to: ALL PARTIES

CASE MANAGEMENT ORDER
Having heard and considered the proposals of the parties, the Court ORDERS the
following:
I.

GENERAL MATTERS
1.

Captions and Filing: All filing in this case is to be performed

electronically in accordance with the Court’s procedures on electronic filing. Documents
intended to apply only to a particular Plaintiff, Counter-Defendant or Counter-Defendants will
specifically indicate the parties to which they apply by including, in the caption, the notation
“This document applies to: [party name(s)].”
2.

Service of Documents and Orders: In lieu of service of documents

pursuant to Rule 5 of the Federal Rules of Civil Procedure, service of all papers other than
original process shall be made as follows:

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a.

Service upon Parties Represented by Counsel: Notice of

documents filed with the Court will be automatically sent to all counsel of record
through the automatic operation of the Court’s CM/ECF system, and no further
service is required. Any counsel of record who has not signed up for automatic
notice of filings through the Court’s CM/ECF system is directed to do so
immediately. Documents not filed with the Court, such as discovery documents,
shall be served by electronic mail upon counsel of record, using the e-mail
addresses set out in the Court’s docket.
b.

Service upon Counter-Defendants Not Represented by

Counsel: Any document specifically relating to a Counter-Defendant not
represented by counsel, relating to a parcel owned by a Counter-Defendant not
represented by counsel, or that would require a response from a CounterDefendant not represented by counsel in order to avoid substantive prejudice to
the rights of said party, shall be served upon said party by first-class mail. In all
other respects, service may be effectuated by making a document accessible to all
Counter-Defendants through the document depository to be established pursuant
to Paragraph 17, and (except as otherwise provided in this Paragraph 2) need not
be directly served upon all Counter-defendants.
c.

Service of This Order: This Order shall be served upon all

Counter-Defendants not represented by counsel by first-class mail, at Defendant’s
expense. Any subsequently added Counter-Defendants shall be served with a
copy of this Order with service of original process.
d.

Discovery Documents: The Court orders, pursuant to Rule

5(a)(1)(C) of the Federal Rules of Civil Procedure, that discovery requests
required to be served upon a party need not be served on all other parties.
Discovery responses (except for materials subject to the Stipulated Protective

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Order (ECF No. 152)) shall be made accessible through the document depository
to be established pursuant to Paragraph 17.
e.

Certificates of Service: It shall be sufficient to state in the

certificate of service that service has been made in this manner set out in this
Paragraph 2.
3.

Status Conferences: The Court will convene a status conference in this

litigation every ninety (90) days, subject to the Court’s calendar. A party may participate by
telephone. Counsel for the parties shall confer at least seven days before each scheduled
conference and attempt to resolve outstanding disputes and shall provide the Court at least five
days prior to the hearing a joint letter listing all motions and other matters the parties anticipate
addressing at the conference. No deposition shall go forward on days on which status
conferences are scheduled without prior leave of Court. At the Court’s discretion, additional
telephone conferences may be scheduled to address matters arising between regularly-scheduled
status conferences, if all necessary parties are available.
4.

Amendments/Modifications: Nothing in this Order is intended to limit any

party’s ability to seek an amendment to or modification of any part of this Order.
5.

Pending Matters: Defendant shall file returns of service within ten (10)

days following service of original process upon a party newly added as a Counter-Defendant in
the Second Amended Counterclaim or in any subsequently-filed amended counterclaim.
Defendant shall endeavor in good faith to serve original process on all newly-added CounterDefendants within thirty days of the date hereof.
Defendant shall answer Plaintiffs’ Complaint (ECF No. 2) by August 8, 2014.
Defendant shall file reply briefs in support of its motions to dismiss counterclaims (ECF Nos.
247 and 248) by August 8, 2014. Counter-Defendants shall file responses to Defendant’s
motions to dismiss filed on September 6, 2013 (ECF No. 252) and September 17, 2013 (ECF No.
254) by August 8, 2014; any reply briefs will be submitted in accordance with this Court’s Local
Civil Rules.
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6.

Settlement: The parties are expected to consider and discuss settlement on

an ongoing basis. The Court will schedule a second mediation involving the parties, facilitated
by the Magistrate Judge, in a subsequent order.
II.

ANSWERS AND OBJECTIONS TO COUNTERCLAIMS
7.

Answers and Objections to Previously Filed Counterclaims in

Condemnation: Any Counter-Defendant who has previously filed an Answer and Objections to
the Counterclaim in Condemnation (ECF No. 22) or the First Amended Counterclaim in
Condemnation (ECF No. 275) need not file an Answer and Objections to the Second Amended
Counterclaim in Condemnation (ECF No. 288) or to any subsequently-filed amended
counterclaim. The responses and allegations in the previously-filed Answer and Objections shall
be deemed to apply to the corresponding paragraphs of the Second Amended Counterclaim in
Condemnation or any subsequently-filed amended counterclaim. To the extent there is a
substantive change in Defendant’s allegations with respect to a Counter-Defendant in a
subsequently Amended Counterclaim, the Counter-Defendant may file an Answer and
Objections with respect to the changed paragraphs only and otherwise may incorporate by
reference its previously-filed Answer and Objections.
8.

Answers and Objections to New Counterclaims in Condemnation:

a.

Counsel who have appeared to date and who represent parties newly

added to the case by Defendant’s Second Amended Counterclaim in Condemnation shall each
file a master Answer and Objections applicable to counsel’s clients on or before August 8, 2014.
Counsel for Counter-Defendants are encouraged, but are not required, to collaborate to file a
joint master Answer and Objections. Any master Answer and Objections shall set forth verbatim
those allegations in the Second Amended Counterclaim in Condemnation that do not relate to
specific properties or specific Counter-Defendants (paragraphs 2-48 and 1576-1580), shall state
generally-applicable responses to those allegations, and shall assert any affirmative defenses or
objections that may be generally applicable.

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b.

Any Counter-Defendant answering the Second Amended Counterclaim or

any subsequently-filed amended counterclaim shall be deemed to have incorporated by reference
any Master Answer and Objections filed pursuant to Paragraph 8.a. unless the answering
Counter-Defendant states otherwise. Any such Counter-Defendant need only (i) answer those
allegations that relate specifically to the answering Counter-Defendant and any real property
owned by the answering Counter-Defendant that has been identified in paragraphs 49-1575 of
the Second Amended Counterclaim in Condemnation or that is identified in any subsequentlyfiled amended counterclaim; and (ii) assert any affirmative defenses or objections not already
asserted in the Master Answer that specifically relate to the answering Counter-Defendant and/or
the answering Counter-Defendant’s identified property.
c.

Any responses to the Second Amended Counterclaim shall be due on or

before the later of the following dates: (i) August 15, 2014; (ii) twenty-one (21) days following
the date of service; or (iii) the date stipulated by the relevant parties in a stipulation conforming
to Local Civil Rule 6.1.
III.

DISCOVERY PROCEDURES
9.

Discovery May Proceed: All parties may avail themselves of any of the

discovery mechanisms set forth in the Federal Rules of Civil Procedure, except as those
procedures may otherwise be modified by this Order. No further planning meetings pursuant to
Rule 26(f) of the Federal Rules of Civil Procedure are necessary before any party may serve
discovery on any other party. Initial disclosures pursuant to Rule 26(a) of the Federal Rules of
Civil Procedure are not required.
10.

Parties to Cooperate and Coordinate: The parties shall cooperate with

respect to discovery. Counter-Defendants shall endeavor in good faith to develop and serve joint
discovery requests on Defendant on behalf of all Counter-Defendants collectively where
appropriate and to avoid duplicative requests to Defendant. The parties retain the right to object
to discovery requests on any valid ground, including without limitation that multiple requests by

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separate counsel are unduly burdensome or duplicative or are an attempt to circumvent the limits
on discovery set forth herein, in any subsequent orders, in the Local Civil Rules of this Court, or
in the Federal Rules of Civil Procedure. No motion regarding discovery may be made to the
Court until the parties have had a telephonic or in-person conference, in a good faith effort to
resolve the dispute.
11.

Confidentiality: The provisions of the parties’ Stipulated Protective Order

(ECF No. 152) shall remain in full force and effect as to all parties to this matter.
12.

Numbering System: The parties shall confer and agree upon a system for

uniquely identifying all discovery materials with a prefix indicating the producing party, and a
unique page number for each page. (Documents produced by Defendant shall bear the prefix
“CGT.”) The combination of letters and digits should then be used throughout the discovery
process whenever referring to a particular document or page.
13.

Production of Documents: The parties must produce documents to which

they have not raised an objection on a rolling basis rather than waiting until all documents
responsive to a request have been gathered.
14.

Production of Electronically Stored Information: Electronically stored

information (ESI) shall be produced in image (PDF or TIFF) format, with the exception of any
documents that are only reasonably legible in native format (e.g., large unformatted Excel
spreadsheets). The parties are directed to work cooperatively to determine appropriate custodians
and key word searches. To facilitate this process, Defendant shall, by August 15, 2014, provide
to counsel for Plaintiffs and Counter-Defendants an initial list of proposed custodians and
proposed key-word search terms.
15.

Limits on Interrogatories: The following provisions govern the parties’

service of interrogatories:
a.

Plaintiff’s Claims: Prior to any ruling on a motion for class

certification, Plaintiffs and Defendant may each serve on the other one or more

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sets of interrogatories containing in the aggregate no more than forty (40)
interrogatories, including subparts.
b.

Defendant’s Counterclaims: Counter-Defendants may

serve interrogatories upon Defendant in compliance with the limits set out in Rule
33(a)(1) of the Federal Rules of Civil Procedure. Counter-Defendants shall
endeavor in good faith to serve joint interrogatories where appropriate and to
avoid duplicative interrogatories, and may not utilize separate sets of
interrogatories by individual Counter-Defendants or separate groups of CounterDefendants to circumvent the limits set forth in Rule 33(a)(1). However, each
counsel are entitled to avail themselves of the interrogatories provided for in Rule
33(a)(1) with respect to their Counter-Defendants collectively and to the extent
there is a particularized need for discovery relating specifically to a specific
Counter-Defendant and/or that Counter-Defendant’s identified property, that
Counter-Defendant may serve ten (10) additional Counter-Defendant-specific
interrogatories, including sub-parts. Defendant may serve one joint, coordinated
set of interrogatories upon all Counter-Defendants in compliance with the limits
set out in Rule 33(a)(1) of the Federal Rules of Civil Procedure. Defendant may
also serve ten (10) additional interrogatories, including all subparts, on any
individual Counter-Defendant to the extent that there is a particularized need for
discovery relating specifically to a specific Counter-Defendant and/or that
Counter-Defendant’s identified property.
c.

Additional Interrogatories: Nothing in this Order shall

preclude the parties from agreeing, or from seeking leave of Court, to serve
additional interrogatories.
16.

Document Depository: On or before August 1, 2014, Defendant shall

establish and maintain, at its expense, an internet-accessible document depository program, to
store all materials produced by parties, the Court and non-parties in this proceeding (including
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pleadings and all other documents filed with the Court, interrogatories and objections and
responses, requests for admission and objections and responses, requests for production of
documents and objections and responses, subpoenas and objections and responses, documents
produced in discovery, deposition transcripts, Court transcripts and similar materials), other than
materials subject to the Stipulated Protective Order (ECF No. 152). Upon establishment of the
document depository, Defendant shall electronically file a notice stating that the parties may
access all non-confidential case-related materials through the document depository website, and
shall serve the notice upon all Counter-Defendants not represented by counsel, by first class
mail; any subsequently-added Counter-Defendants shall be served with a copy of this notice with
service of original process.
17.

Privilege Claims: Pursuant to Rule 26(b)(5) of the Federal Rules of Civil

Procedure, a party who, relying on any privilege or on the work product doctrine, does not
produce all relevant or requested documents in response to a request for production of documents
or a subpoena must prepare a log identifying documents withheld by production number. For
each such document, the party must (i) specify which privilege or doctrine it is invoking;
(ii) identify all authors and recipients of the document (including “cc” and “bcc” recipients);
(iii) state the date(s) on which the document was prepared; and (iv) provide a brief description of
the subject matter of the document. The privilege log for a production of documents should be
served within thirty days after the production. Notwithstanding the foregoing, Plaintiffs and
Defendant need not prepare a privilege log for documents subject to privilege or work product
protection that were generated on or after December 21, 2012, and a Counter-Defendant need not
prepare a privilege log for documents subject to privilege or work product protection that were
generated on or after the date upon which it was served with original process.
18.

Redactions: Where a page or part of a page is redacted, the fact of the

redaction shall be made clear on the face of the document. The basis for each redaction shall be
set forth in a privilege log that complies with Paragraph 18 of this Order.

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19.

Inadvertent Production: Pursuant to Rule 502(d) of the Federal Rules of

Evidence, the production of any document as to which a party has a good faith claim of
exemption from discovery (whether based on the attorney-client privilege, the work product
doctrine, or another applicable exemption from discovery) shall not be a waiver of such privilege
or exemption from discovery in this proceeding or in any other federal or state proceeding,
provided that the producing party makes a claim for the return of such document upon
discovering its production. Upon receiving such claim, the receiving party shall return the
document and shall not use it in any way until the validity of the claim of exemption from
discovery shall have been agreed upon or decided upon by the Court.
20.

Depositions: Depositions are to be conducted in accordance with the

following rules, unless agreed by the parties (and not contrary to an order of the Court) or unless
ordered by the Court for good cause shown:
a.

The limitations on the number of depositions pursuant to

Rule 30(a)(2) of the Federal Rules of Civil Procedure shall not apply to this case.
Nonetheless, the parties are encouraged to exercise good judgment in deciding
whether to take the deposition of any particular party or witness.
b.

Counsel are expected to cooperate with, and be courteous

to, each other and deponents.
c.

The parties (and when appropriate, a nonparty witness)

may stipulate, in writing or on the record, to alter, amend, or modify any practice
relating to noticing, conducting, or filing a deposition.
d.

Counsel shall consult in advance with opposing counsel in

an effort to schedule depositions at mutually convenient times and places.
Scheduling should take into account (i) the availability of documents from among
those produced by the parties and third parties, (ii) the objective of avoiding the
need to subject any person to repeated depositions, and (iii) the need to preserve
relevant testimony. No witness shall be deposed more than once in this litigation,
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absent agreement of the parties or good cause shown. Continuing a deposition
that could not in good faith have been concluded at the end of a day shall not
constitute multiple depositions of a single witness.
e.

The deposition of a Plaintiff or Counter-Defendant shall

take place at a location in Franklin County, Ohio or within the county in which
the deponent resides, at the witness’s election. The deposition of an employee,
agent or representative of Defendant shall take place in Kanawha County, West
Virginia; Franklin County, Ohio; or Allegheny County, Pennsylvania, at
Defendant’s election. Depositions conducted in Kanawha County, West Virginia
or Allegheny County, Pennsylvania shall be conducted on consecutive days to the
greatest extent practicable. The depositions of a non-party shall take place in the
county in which the non-party has his or her principal place of business or place
of residence, or at some other place convenient to the non-party, at the nonparty’s election. The depositions of an expert witness shall take place at a
location to be agreed to by the parties; if the parties are unable to agree, the
deposition shall take place in the county in which the expert has his or her
principal place of business. The parties may agree upon other locations for
depositions for the convenience of deponents or counsel.
f.

A copy of the Stipulated Protective Order shall be provided

to the deponent before the deposition commences if the deponent is to produce or
may be asked about Confidential Information. While a deponent is being
examined about any Confidential Information, persons to whom disclosure is not
authorized under the Stipulated Protective Order shall be excluded.
g.

Only one attorney for each party may question a deponent.

h.

Only one attorney for each party may assert objections to a

deposition question; once an objection has been asserted by any attorney, it shall
be deemed to have been asserted by all other counsel and may not be repeated.
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i.

Deposition exhibits shall be identified with the witness’s

name and shall be sequentially numbered, regardless of which party introduces
the exhibit. Extra copies of deposition exhibits are to be provided to opposing
counsel and the deponent. The index of exhibits attached to each deposition
transcript shall contain, for each exhibit marked or referred to in the deposition,
the document production (Bates) number, the exhibit number, and a brief
description of the exhibit.
j.

By so indicating in its notice of a deposition, a party may

video record the deposition, in addition to obtaining a stenographic transcription.
At the commencement of the deposition the video operator(s) shall swear or
affirm to record the proceedings fairly and accurately. Each witness, attorney,
and other person attending the deposition shall be identified at the commencement
of the deposition, but only the deponent (and demonstrative materials used during
the deposition) will be video recorded. No part of a video recorded deposition
shall be released or made available to any member of the public unless authorized
by the Court.
k.

Disputes between the parties that arise during a deposition

should be addressed to this Court, regardless of where the deposition takes place.
Disputes arising during depositions that cannot be resolved by agreement may be
presented by telephone to the Court, at the Court’s discretion. The presentation of
the issue and the Court's ruling will be recorded as part of the deposition.
IV.

SCHEDULE
21.

Pretrial Schedule:
a.

As stated in Paragraph 9 of this Order, discovery may

commence immediately.

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b.

In light of the recent addition of a substantial number of

additional parties, and the fact that service of process on those parties remains
ongoing, the parties shall submit a proposed pretrial schedule, including a class
certification briefing schedule, fact and expert witness discovery deadlines,
deadlines for the filing of dispositive motions and, to the extent applicable,
procedural motions such as motions to transfer venue, and other appropriate
pretrial deadlines, in a subsequent proposed Joint Case Management Order to be
filed by no later than September 5, 2014. If no agreement can be reached on a
proposed pre-trial schedule, the parties may submit their respective proposals
following a good faith attempt to reach agreement in a meet and confer.

SO ORDERED.

Dated: August 1, 2014

s/Mark R. Abel
United States Magistrate Judge

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