Trimbur et al v. Norfolk Southern Corporation et al

Filing 112

OPINION AND ORDER granting in part and denying in part 92 and 93 Motion to Compel. Replies to 90 Motion for Summary Judgment due by 2/17/2015. Responses to 106 Motion for Partial Summary Judgment due by 2/6/2015. Signed by Magistrate Judge Norah McCann King on 1/16/2015. (pes1)

IN THE UNITED STATES DISTRICT COURT
FOR THE SOUTHERN DISTRICT OF OHIO
EASTERN DIVISION
RENEE K. TRIMBUR, et al.,
Plaintiffs,
vs.

Civil Action 2:13-cv-0160
Judge Sargus
Magistrate Judge King

NORFOLK SOUTHERN CORPORATION,
et al.,
Defendants.
OPINION AND ORDER
I.

Background
Renee K. Trimbur, the Kyron Tool & Machine Co., Inc., and C4R’S,

LLC, (“plaintiffs”) filed this action against Norfolk Southern
Corporation (“NSC”) and Norfolk Southern Railway Company (“NSRC”)
(collectively “defendants”), asserting claims of negligence, gross
negligence, negligence per se, strict liability, nuisance, and
trespass in connection with a train derailment adjacent to property
owned or leased by the plaintiffs.

Several of the derailed cars

ruptured, causing explosions and fires and releasing allegedly
hazardous materials into the air and soil.

Id. at ¶¶ 8, 10.

Plaintiffs claim that the release of these materials contaminated
their property and other properties near the track, including an
embankment controlled by one or both defendants.

Id. at ¶ 12.

Plaintiffs allege that, although defendants remediated these
properties, plaintiffs’ property remains unusable.

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Id. at ¶ 13.

Plaintiffs’ Complaint seeks attorneys’ fees and actual and punitive
damages.
On May 1, 2013, the Court issued a preliminary pretrial schedule
requiring, inter alia, that discovery be completed by April 15, 2014.
Preliminary Pretrial Order, ECF 12.

The Order expressly advised the

parties that “the discovery completion date requires that discovery
requests be made sufficiently in advance to permit timely response by
that date.”

Id.

The Order also specified that “[d]iscovery related

motions, if any, must be filed prior to the discovery completion
date.”

Id.

After several discovery disputes and conferences with the

Court, see ECF 20, 23, 33, 41, 47, 52, the deadline for completing
discovery was extended to September 30, 2014, ECF 47, and the deadline
for filing dispositive motions was extended to November 21, 2014.

ECF

71.
On August 14, 2014, the Court granted in part and denied in part
plaintiffs’ June 11, 2014 motion to compel discovery.
Order, ECF 52.

Opinion and

Specifically, the Court denied, without prejudice to

renewal in a motion to be filed no later than August 26, 2014,
plaintiffs’ motion to the extent that the motion sought to compel
response to interrogatories.

Plaintiffs filed a renewed motion to

compel response to interrogatories on August 26, 2014.

ECF 56.

That

motion was denied on September 23, 2014, for failure to exhaust
extrajudicial means for resolving the parties’ dispute.

ECF 68.

In

denying the motion on this basis, the Court observed that “further
discussion between counsel regarding plaintiffs’ actual concerns could

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resolve many of the issues raised in [the motion].”

Id. at p. 4.

This matter is now before the Court on Plaintiffs’ Second Renewed
Motion to Compel Defendants to Respond to Interrogatories (“Motion to
Compel Response to Interrogatories”), ECF 93.

Defendants oppose the

motion, ECF 99, and plaintiffs have filed a reply.

ECF 105.

This

matter is also before the Court on Plaintiffs’ Second Motion to Compel
Defendants to Produce Documents (“Motion to Compel Production of
Documents”), ECF 92.

Defendants oppose plaintiffs’ Motion to Compel

Production of Documents, ECF 98, and plaintiffs have filed a reply.
ECF 104.

For the reasons that follow, plaintiffs’ motions are GRANTED

in part and DENIED in part.
II.

Standard
Rule 37 of the Federal Rules of Civil Procedure authorizes a

motion to compel discovery when a party fails to provide a proper
response to an interrogatory under Rule 33 or a proper response to a
request for production of documents under Rule 34.
37(a)(3)(B).

Fed. R. Civ. Pro.

“The proponent of a motion to compel discovery bears the

initial burden of proving that the information sought is relevant.”
Martin v. Select Portfolio Serving Holding Corp., No. 1:05–cv–273,
2006 U.S. Dist. LEXIS 68779, at *2 (S.D. Ohio Sept. 25, 2006) (citing
Alexander v. Fed. Bureau of Investigation, 186 F.R.D. 154, 159 (D.D.C.
1999)).
Rule 26(b) provides that “[p]arties may obtain discovery
regarding any nonprivileged matter that is relevant to any party’s
claim or defense.”

Fed. R. Civ. P. 26(b)(1).

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Relevance for discovery

purposes is extremely broad.

Lewis v. ACB Bus. Servs., Inc., 135

F.3d 389, 402 (6th Cir. 1998).

“The scope of examination permitted

under Rule 26(b) is broader than that permitted at trial.

The test is

whether the line of interrogation is reasonably calculated to lead to
the discovery of admissible evidence.”

Mellon v. Cooper-Jarrett,

Inc., 424 F.2d 499, 500-01 (6th Cir. 1970).

However, “district courts

have discretion to limit the scope of discovery where the information
sought is overly broad or would prove unduly burdensome to produce.”
Surles ex rel. Johnson v. Greyhound Lines, Inc., 474 F.3d 288, 305
(6th Cir. 2007) (citing Fed. R. Civ. P. 26(b)(2)).

See also Lewis,

135 F.3d at 402 (determining the proper scope of discovery falls
within the broad discretion of the trial court).

In determining the

proper scope of discovery, a district court balances a party’s “right
to discovery with the need to prevent ‘fishing expeditions.’”

Conti

v. Am. Axle & Mfg. Inc., 326 F. App’x 900, 907 (6th Cir. 2009)
(quoting Bush v. Dictaphone Corp., 161 F.3d 363, 367 (6th Cir. 1998)).
Finally, the party moving to compel discovery must certify that
it “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.”

Fed. R. Civ. P. 37(a)(1).

See also

S.D. Ohio Civ. R. 37.2.
III. Discussion
Plaintiffs’ Motion to Compel Response to Interrogatories seeks to
compel response or supplemental response to nine interrogatories
propounded by plaintiff Trimbur, to 15 interrogatories propounded by

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plaintiff The Kyron Tool & Machine Co., Inc., and to 17
interrogatories propounded by plaintiff C4R’s LLC, which were
originally propounded on August 2, 2013.
Interrogatories, p. 2.

Motion to Compel Response to

Plaintiffs’ Motion to Compel Production of

Documents seeks to compel production of document requests propounded
on August 6, 2014.

Plaintiffs’ counsel has certified that

extrajudicial measures have been undertaken in an effort to resolve
this discovery dispute.

See Motion to Compel Response to

Interrogatories, Exhibit A; Motion to Compel Production of Documents,
Exhibit A.
As an initial matter, defendants argue that plaintiffs’ motions
should be denied for failure to exhaust extrajudicial means of
resolving the disputes.

Defendants argue that plaintiffs never

presented specific discovery concerns to defendants prior to filing
their motions to compel.

According to defendants, plaintiff’s letter

requesting to meet and confer was a “hollow gesture” because it
“referred only to non-specific ‘ongoing discovery issues.’”
pp. 14-15.

ECF 99,

Defendants compare plaintiffs’ motions to their August 26,

2014 motion to compel, which was denied for failure to exhaust
extrajudicial means of resolving the dispute addressed in that motion.
See Opinion and Order, ECF 68.
Local Rule 37.1 provides that discovery related motions “shall
not be filed in this Court under any provision in Fed. R. Civ. P. 26
or 37 unless counsel have first exhausted among themselves all
extrajudicial means for resolving the differences.”

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S.D. Ohio Civ. R.

37.1.

In denying plaintiffs’ August 26, 2014 motion to compel, the

Court held that “the exhaustion requirement requires, at a minimum,
that counsel have discussed the particular issues presented to the
court.”

Opinion and Order, ECF 68, p. 3.

Plaintiffs’ only attempt to

resolve the prior dispute was a letter containing general discovery
objections that had been sent nine months prior to the filing of their
motion to compel.

Id.

The Court was not convinced that the parties’

dispute had reached impasse.

Id. at p. 4.

In attempting to resolve the present disputes, plaintiffs sent
defendants a letter on October 11, 2014, seeking to meet and confer in
an attempt to resolve “numerous open issues with regard to discovery,”
including those addressed in the current motions to compel.
Plaintiffs’ Motion to Compel Production, Exhibit E.

See

Defendants

responded by a letter dated October 16, 2014, refusing to meet and
confer or to discuss discovery issues that had arisen prior to the
September 30, 2014 discovery completion deadline.

Id. at Exhibit F.

These positions were reaffirmed in subsequent letters between counsel.
Id. at Exhibits G, H.
The Court is satisfied that plaintiffs have exhausted all
extrajudicial means of resolving their current disputes.

Although the

Court previously expressed its belief that further discussions between
counsel could resolve many of plaintiffs’ concerns, see Opinion and
Order, ECF 68, p. 4, defendants have apparently refused to discuss the
current discovery disputes.

Nothing more is required of plaintiffs.

Defendants next argue that plaintiffs’ motions should be denied

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as untimely.

As noted supra, plaintiffs’ motions were filed on

November 21, 2014, i.e., almost two months after the September 30,
2014 discovery completion deadline and on the date for filing
dispositive motions.

Plaintiffs argue that the September 30, 2014

discovery completion deadline does not preclude motions to compel
filed after that deadline so long as the motions address discovery
disputes that arose during the discovery period.

Alternatively,

plaintiffs seek an extension of the pretrial schedule to permit the
filing of their motions to compel.

Plaintiffs’ Motion to Compel

Production, p. 7; Motion to Compel Response to Interrogatories; p. 5.
Rule 16(b) requires that the Court, in each civil action not
exempt from the operation of the rule, enter a scheduling order that,
inter alia, limits the time to complete discovery and file motions.
Fed. R. Civ. P. 16(b)(3)(A).

The rule further provides that “[a]

schedule may be modified only for good cause and with the judge’s
consent.”

Fed. R. Civ. P. 16(b)(4).

See also S.D. Ohio Civ. R. 16.2

(“[T]he Magistrate Judge is empowered to . . . modify scheduling
orders upon a showing of good cause.”).

“‘The primary measure of Rule

16’s ‘good cause’ standard is the moving party’s diligence in
attempting to meet the case management order’s requirements.’”

Inge

v. Rock Fin. Corp., 281 F.3d 613, 625 (6th Cir. 2002) (quoting
Bradford v. DANA Corp., 249 F.3d 807, 809 (8th Cir. 2001)).

“A

district court should also consider possible prejudice to the party
opposing the modification.”

Andretti v. Borla Performance Indus.,

Inc., 426 F.3d 824, 830 (6th Cir. 2005) (citing Inge, 281 F.3d at
625).

The focus is, however, “primarily upon the diligence of the

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movant; the absence of prejudice to the opposing party is not
equivalent to a showing of good cause.”

Ortiz v. Karnes, 2:06-cv-562,

2010 WL 2991501, at *1 (S.D. Ohio July 26, 2010) (citing Tschantz v.
McCann, 160 F.R.D. 568, 571 (N.D. Ind. 1995)).

Whether to grant leave

under Rule 16(b) falls within the district court’s discretion.

Leary

v. Daeschner, 349 F.3d 888, 909 (6th Cir. 2003).
The Court issued a scheduling order on May 1, 2013 requiring,
inter alia, that discovery related motions be filed prior to the
discovery completion date.

Preliminary Pretrial Order, ECF 12.

Plaintiffs’ argument that the September 30, 2014 discovery deadline
did not govern the filing of motions to compel is therefore without
merit.
Plaintiffs next argue that they should be granted an extension of
time in which to file Plaintiffs’ Motion to Compel Production because
they were making “good faith efforts” to review discovery and meet and
confer prior to the filing of the motion.
Compel Production, p. 7.

Plaintiffs’ Motion to

Plaintiffs’ argument is not well taken.

Defendants responded to plaintiffs’ request for production of
documents on September 2, 2014.

Id. at Exhibit C.

Defendants’

response asserted several objections and referred plaintiffs to two
prior responses to requests for production.

Id. at Exhibit C, p. 6.

Plaintiffs apparently took from September 2, 2014 until October 11,
2014, “to review the discovery materials already produced by
Defendants in this matter” and to determine that defendants had not
produced the documents requested by plaintiffs.

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Id. at p. 7.

This general assertion is insufficient to establish that
plaintiffs were diligent in attempting to meet the Court’s deadlines.
Plaintiffs do not indicate how many documents they were required to
review or how many hours they spent reviewing defendants’ production
in order to determine that defendants’ response was deficient.
Moreover, it is evident from defendants’ response to the second
request for production that defendants did not in fact produce the
documents that plaintiffs now seek.
Plaintiffs make similar arguments in an attempt to justify the
late filing of their Motion to Compel Response to Interrogatories,
and their arguments are similarly unavailing. Plaintiffs also argue
that the Court’s September 23, 2014 order denying their August 26,
2014 motion to compel permitted them to file the Motion to Compel
Response to Interrogatories after the September 30, 2014 deadline.
See Motion to Compel Response to Interrogatories, p. 5.

As discussed

supra, however, plaintiffs’ renewed motion to compel was denied for
failure to exhaust extrajudicial means of resolving the dispute.
Opinion and Order, ECF 68, pp. 3-4.

The Court did not extend the case

schedule to permit plaintiffs to re-file their motion.

Moreover, the

Court is unpersuaded by plaintiffs’ representation that they were
reviewing “the voluminous discovery responses” from the September 23,
2014 denial of their renewed motion to compel until October 11, 2014,
when plaintiffs asked to meet and confer with defendants.

Plaintiffs’

Motion to Compel Response to Interrogatories is nearly identical in
substance to their August 2014 motion to compel, and the request to

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meet and confer merely states that defendants had objected to
plaintiffs’ interrogatories.
Interrogatories, Exhibit B.

See Motion to Compel Response to
Considering the foregoing, the Court

simply cannot say that plaintiffs were diligent in attempting to meet
the Court’s deadlines.
Nevertheless, the Court will consider plaintiffs’ motions.
Although it would have been preferable for plaintiffs to seek
clarification of the September 23, 2014 order and its impact on the
deadline for filing motions to compel, plaintiff’s interpretation of
that order is not unreasonable.

Moreover, the Court has already

amended the trial schedule to accommodate plaintiffs’ motions, ECF 97,
and the Court prefers that cases be tried on the merits.

The Court

also notes that to entertain the merits of plaintiffs’ motions carries
little risk of prejudice to defendants.

Defendants argue that they

will be prejudiced by additional briefing of dispositive motions and
having to re-file their motion for partial summary judgment.
pp. 3 n.4, 14 n.11.

ECF 99,

However, defendants have already re-filed their

motion for partial summary judgment, ECF 106, and any additional
briefing of the motions for summary judgment will assist the Court in
resolution of the motions.
The Court therefore now turns to the substance of Plaintiffs’
Motion to Compel Production.

By that motion, plaintiffs seek to

compel response to their Second Joint Request for Production of
Documents, which was propounded on August 6, 2014:
(1) Any and all documents relating to any and all water or
liquid sampling, soil sampling, free product sampling, air

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quality sampling, or any other type of environmental
sampling,
tests,
test
results,
or
other
assessments
performed during the post-derailment period, specifically:
• Anything that shows the derailment site is
hazardous
materials,
particularly
dioxins,
pentachlorophenol, as well as TCLP metals; and

free of
cresols,

• Any and all environmental samplings, laboratory or other
tests, test results or other assessments taken or performed
during the post-derailment period to determine potential
toxic and hazardous products of incomplete combustion in
soil, water or liquid, free product, and air that are or
were associated with the derailment site or the train
derailment that occurred in Columbus, Ohio on or about July
11, 2012.
(2) Any and all documents relating to any and all testing,
test results, sampling, or other assessments taken or
performed by Norfolk Southern or any agent, contractor, or
subcontractor, from January 1, 2008 until the present, on
any railroad right of way or railroad embankment owned or
controlled by Norfolk Southern anywhere in the continental
United States, that was specifically performed to identify
or
measure
dioxins,
herbicides,
pesticides,
or
pentachlorophenol.
Plaintiffs’ Motion to Compel Production, Exhibit B.
With regard to the first request, the parties disagree whether
testing performed on the contents of roll-off containers is relevant
to this action.

Defendants argue that the disputed tests are not

relevant because the roll-off containers were not housed on
plaintiffs’ property and because the containers contained soil from in
and around drums that were not on plaintiffs’ property “and had
nothing to do with the derailment.”

ECF 98, pp. 4, 6-7.

The drums

referred to by defendants were apparently buried on the south
embankment and were inadvertently dug up during the remediation
process.

Id. at pp. 4 n.2, 6.

The parties dispute whether the roll-

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off containers were ever on the north embankment, where plaintiffs’
property is located.

See, e.g., id. at p. 5 n.3; ECF 104, p. 2.

This is not the first time that the parties have disagreed
whether evidence related to the cleanup and remediation of the south
embankment is relevant to plaintiffs’ claims that defendants failed to
properly remediate plaintiffs’ property on the north embankment.

In

ruling on a previous motion to compel, the Court noted the following:
Plaintiffs have produced evidence that the north embankment
at the derailment site was often used as a staging,
processing, and remediation site for contaminants on both
sides of the tracks and that contaminated materials were
moved between the two embankments during cleanup.
See
Plaintiffs’ Reply, Exhibits E, G.
Plaintiffs represent
that contractors worked on both sides of the embankment
during cleanup and, as one would expect, their invoices do
not distinguish between work done on each embankment. Id.
at p. 5.
Similarly, a draft Preliminary Environmental
Activities Derailment report prepared on behalf of NSC does
not distinguish between the north and south embankments.
Id. at Exhibit F.
Based on the foregoing, the Court
concludes that, due to the nature of the derailment and
cleanup, evidence of the cleanup and remediation of the
south embankment may be relevant to the issues in the case.
Considering that both embankments were, at least to some
extent,
cleaned
up
simultaneously
and
by
the
same
contractors,
evidence
related
to
the
cleanup
and
remediation of the south embankment is likely to lead to
the discovery of admissible evidence.
It is also noted
that the Court previously found that plaintiffs are
entitled to discover what, if any, hazardous materials
remain
on
defendants’
property
after
defendants’
remediation efforts.
Opinion and Order, Doc. No. 41.
In
permitting plaintiffs entry onto defendants land to take
soil samples and conduct field and laboratory tests for
this purpose, the Court found that discovery related to the
contamination and remediation of defendants’ property
(i.e., the south embankment) was relevant to plaintiffs’
nuisance claim.

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Opinion and Order, ECF 52, pp. 8-9.

This analysis also applies here.

Plaintiffs must therefore produce documents responsive to this request
within seven (7) days.
Plaintiffs’ second request for production of documents seeks
documents related to testing performed by defendants in the past six
years on any railroad right of way or embankment controlled by
defendants in the continental United States that was performed to
identify or measure specific chemicals.

Plaintiffs argue that the

requested discovery will assist in determining background levels of
contaminants on plaintiffs’ property prior to the train derailment.
Plaintiffs’ Motion to Compel Production, pp. 9-10.

Plaintiffs also

argue that the testing is relevant to a determination of whether
defendants performed the proper testing in this instance and whether
defendants knew of the risks of failing to properly remediate after
the derailment.

Id.

Defendants argue that plaintiffs’ request in

this regard is overly broad and seeks irrelevant documents not
reasonably calculated to lead to the discovery of admissible evidence.
ECF 98, pp. 8-11.

The Court agrees.

Plaintiffs’ second request is not reasonably calculated to lead
to the discovery of admissible evidence.

It is entirely unclear how

soil testing from railroad right-of-ways and embankments from around
the country and in entirely different soil conditions would be
relevant to a determination of the background levels of contaminants
on plaintiffs’ property before the derailment.

Moreover, defendants

represent that they do not conduct random soil sampling along railroad

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right-of-ways and that they test soil only in response to a spill or
“incident.”

Id. at p. 2.

Plaintiffs’ arguments to the contrary

notwithstanding, testing from unrelated train spills and incidents has
no bearing on what contaminants were on plaintiffs’ property prior to
the train derailment or whether defendants properly remediated
plaintiffs’ property.
The Court will now turn to plaintiffs’ Motion to Compel Response
to Interrogatories, which seeks to compel response to interrogatories
originally propounded on August 2, 2013.

Plaintiffs argue that

defendants’ answers improperly refer to documents, improperly utilize
boilerplate objections, improperly invoke the doctrine of federal
preemption, and improperly refuse to answer interrogatories that call
for opinions. Plaintiffs also complain that defendants have never
supplemented their answers.
Plaintiffs first argue that, in response to several
interrogatories, defendants improperly referred to documents instead
of providing narrative answers.

Rule 33(d) gives a party responding

to interrogatories the option of producing business records.
Civ. P. 33(d).

Fed. R.

This option exists “[i]f the answer to an

interrogatory may be determined by examining, auditing, compiling,
abstracting, or summarizing a party's business records (including
electronically stored information), and if the burden of deriving or
ascertaining the answer will be substantially the same for either
party.”

Id.

When these conditions are met,

the responding party may answer by:

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(1) specifying the records that must be reviewed, in
sufficient detail to enable the interrogating party to
locate and identify them as readily as the responding party
could; and
(2) giving the interrogating party a reasonable opportunity
to examine and audit the records and to make copies,
compilations, abstracts, or summaries.
Id.

Plaintiffs argue that defendants failed to comply with Rule 33(d)

because they failed to specify the records to be reviewed in
sufficient detail to enable plaintiffs to locate and identify them as
readily as could defendants.
Interrogatories, p. 7.

Motion to Compel Response to

Plaintiffs also argue that it will be more

burdensome for plaintiffs to derive the answers to the interrogatories
because the documents produced use industry terms and abbreviations
that are not familiar to lay persons.

Id.

Defendants respond that

they “have provided the documents requested by Plaintiffs in an
organized manner with specificity as to which interrogatory each
document responds.”

ECF 99, p. 16.

Defendant argue that, because the

documents have “been marked individually,” plaintiffs should be able
to locate and identify the documents as readily as could defendants.
Id. at p. 17.
Plaintiffs have identified numerous interrogatories to which
defendants responded by referring to documents previously produced in
discovery.

See ECF 93, Exhibit G.

Three of these interrogatories

were actually answered without referring to prior document
productions.

See ECF 40-4, pp. 10-11 (C4R’S LLC’s Interrogatories

Nos. 13, 14, 15, referring to defendants’ response to Trimbur
Interrogatory No. 1); ECF 40-2, pp. 4-5 (defendants’ response to

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Trimbur Interrogatory No. 1).

Defendants responded to the remaining

interrogatories by referring to documents previously produced in
response to document requests.

Defendants argue that they complied

with Rule 33(d) because they identified the document production that
contains the documents that will allow plaintiffs to determine for
themselves the answers to their interrogatories.

The Court disagrees.

Although defendants’ answers often refer to documents produced in
response to particular document requests, see e.g., ECF 40-4, pp. 2-3
(Response to C4R’s LLC’s Interrogatory No. 1: “see documents produced
in response to Plaintiffs’ Request for Production of Documents Request
No. 14), other answers simply refer generally to all documents
produced by defendants.

See e.g., ECF 40-3 (Response to Kyron Tool &

Machine Co., Inc.’s Interrogatory No. 1: “see documents produced in
response to Plaintiffs’ Request for Production of Documents including,
in particular, Request No. 1.”).

Defendants argue that they labeled

every document and provided a list of documents produced in every
production, but they did not actually identify relevant documents by
document number, and the list of documents establishes that defendants
failed to adequately specify which records should be reviewed by
plaintiffs.

The list of documents responsive to request for

production No. 1, for example, details 11 different categories of
documents, including documents titled train diagram, consist, train
tonnage profile, Columbus Division of Fire Report, dispatcher’s even
information, derailment/rail equipment report, block consist, FM-2090,
Lake Division Timetable, System Timetable, Switch List.

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ECF 59-7.

The list of documents responsive to request for production 19 refers
to 14 categories of documents.

ECF 59-11.

Plaintiffs complain that

defendants produced hundreds of documents in response to the
referenced requests.

See ECF 65, p. 3.

Although this number is not

inherently impermissible, defendants must specify the records to be
reviewed “in sufficient detail to enable the interrogating party to
locate and identify them as readily as the responding party could.”
Fed. R. Civ. P. 33(d)(1).

Defendants failed to do so here.

Defendants must therefore supplement their responses to Kyron Tool &
Machine Co., Inc.’s Interrogatories Nos. 1, 2, 3, 4, 5, 6, and 8,
C4R’S LLC’s Interrogatories Nos. 1, 2, and 3, and Trimbur’s
Interrogatories Nos. 2 and 3.
C4R’S LLC’s Interrogatories Nos. 16, 17, and 18 and Trimbur’s
Interrogatory No. 10 seek information related to expenses incurred by
defendants in connection with the cleanup and remediation after the
train derailment.

Defendants object to these requests on the basis

that they seek information related to both the north and south
embankments.

ECF 59, p. 18; ECF 99, p. 20.

As noted supra, the Court

previously determined that discovery related to the contamination and
remediation of the south embankment is relevant to plaintiffs’ claims.
See Opinion and Order, ECF 52, pp. 8-9.

Defendants must therefore

respond to C4R’S LLC’s Interrogatories Nos. 16, 17, and 18 and
Trimbur’s Interrogatory No. 10.
Plaintiffs seek to compel response to C4R’S, LLC’s
Interrogatories Nos. 4, 5, 6, 7, 8, 9, 10, and 12. According to

17

plaintiffs, defendants previously deferred substantive response
pending further investigation but that defendants have never
supplemented their answers.

Motion to Compel Response to

Interrogatories, p. 8, Exhibit H.

Defendants cite to Rule 26(e), and

argue that they are not required to supplement their responses because
“additional or corrective information has . . . otherwise been made
known” to plaintiffs through discovery responses, motions to compel,
and depositions.

ECF 98, pp. 17-18.

Rule 26(e) provides the procedure for supplementing responses to
interrogatories:
A party . . . who has responded to an interrogatory . . .
must supplement or correct its disclosure or response:
(A) 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; or
(B) as ordered by the court.
Fed. R. Civ. P. 26.

Defendants’ reliance on Rule 26(e) is misplaced.

Rule 26(e) provides the procedure to supplement interrogatory
responses once a party “has responded to an interrogatory.”

The

interrogatories at issue were originally propounded on August 2, 2013,
and defendants responded by stating that they would investigate and
supplement their responses.

Defendants neither provided substantive

response to plaintiffs’ interrogatories nor supplemented their
responses.

Rule 26(e) therefore does not apply.

Whether plaintiffs

could have obtained the information requested through other means of
discovery is inconsequential.

Defendants must therefore supplement

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their responses to C4R’S, LLC’s Interrogatories Nos. 4, 5, 6, 7, 8, 9,
10, and 12.
Plaintiffs next seek to compel response to Trimbur’s
Interrogatories Nos. 4, 5, 6, 7, and 8.

These interrogatories seek

“Defendants’ opinion with regard to why in certain areas of the area
defined as the derailment site” “surface water is discolored,”
“vegetation fails to grow,” “foul odors permeate the area,” “numerous
animals have died after exposure to the area,” and “ill health and
symptoms requiring hospitalizations have resulted from exposure to the
area.”

Motion to Compel Response to Interrogatories, Exhibit I; ECF

40-2, pp. 6-7.
Ambiguous.
opinion.”

Defendants objected to the interrogatories as “Vague.

Assumes facts not evidence [sic].
Id.

Requires an expert

Plaintiffs cite to Rule 33(a)(2) and argue that the

interrogatories are not objectionable merely because they ask for an
opinion.
The Court agrees that these interrogatories are unreasonably
vague.

The interrogatories ask for defendants’ opinion about water

discoloration, vegetation, odors, animal deaths, and the health of
unidentified individuals in unspecified parts of the derailment site,
which spans a two mile radius of the site where the train derailment
occurred.

See ECF 43-1, p. 54. Defendants need not further respond to

these interrogatories.
Plaintiffs seek to compel response to C4R’S LLC’s Interrogatory
No. 11:
For each instance during the past ten years that freight or
tanker cars in a Norfolk Southern train derailed, ruptured,

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exploded or experienced any sort of spillage therefrom,
including but not limited to Norfolk Southern trains that
included one or more ethanol tanker car, DOT-111 tanker
car, or tanker or freight car transporting styrene, state
with specificity when and where each such incident occurred
and
describe
with
specificity
what
solids,
liquids,
hazardous materials, petroleum materials, chemicals, or
chemical compounds exploded or spilled in each such
incident.
ECF 40-4, pp. 8-9.

Defendants objected on numerous grounds, including

relevancy and overbreadth.

Plaintiffs argue that the requested

information is relevant because it involves “accidents similar to the
one that occurred on Plaintiffs’ property, involving similar cargo and
the same model tanker car.”
Interrogatories, pp. 8-9.

Motion to Compel Response to
The Court agrees that this interrogatory is

overly broad and not reasonably calculated to lead to the discovery of
admissible evidence.

First, the request is much broader than

plaintiffs suggest; the request is not limited in any way to train
derailments similar to the derailment in this case, nor is it limited
to accidents involving similar cargo or the same model tanker car.
Moreover, plaintiffs have not explained how the location, date, and
quantity and types of materials spilled from every train accident in
the previous ten years is relevant to this action.
Plaintiffs also seek to compel substantive response to
interrogatories to which defendants asserted “boilerplate objections.”
Motion to Compel Response to Interrogatories, p. 7.

According to

plaintiffs, defendants failed to state with specificity the grounds
for their objections, how the discovery requests were deficient, and
how defendants would be harmed if forced to respond to the requests.

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Id.

Plaintiffs’ arguments are not well taken.

Notably, defendants

objected to the remaining interrogatories at issue, but they also
provided answers over their objections.

See ECF 40-3, pp. 8, 11-15

(Kyron Tool & Machine Co., Inc.’s Interrogatories Nos. 7, 10, 13, 14,
15, 19, 20); ECF 40-2, pp. 7-8 (Trimbur’s Interrogatory No. 9); ECF
40-4, pp. 10-11 (C4R’S LLC’s Interrogatories Nos. 13, 14, and 15).
Defendants did not provide a substantive answer to Kyron Tool &
Machine Co. Inc.’s Interrogatory No. 9, but their objection
specifically stated that the interrogatory was “[u]nclear as to the
meaning of ‘these records’ and train manifests.’”

ECF 40-3, p. 9.

Plaintiffs have not addressed this objection.
Plaintiffs have also asked that they be awarded sanctions,
including their attorney’s fees, in connection with their motions to
compel.

A court must ordinarily award a movant’s reasonable expenses

incurred in filing a motion to compel, including attorney’s fees, if
the motion to compel is granted.

Fed. R. Civ. P. 37(a)(5)(A).

Where,

as here, the motion is granted in part and denied in part, a court is
authorized to “apportion the reasonable expenses for the motion.”
Fed. R. Civ. P. 37 (a)(5)(C).

A court is vested with wide discretion

in determining an appropriate sanction under Rule 37.

Nat’l Hockey

League v. Metro. Hockey Club, Inc., 427 U.S. 639 (1976); Reg’l Refuse
Sys. v. Inland Reclamation Co., 842 F.2d 150, 154 (6th Cir. 1988).
Considering that plaintiffs’ motions were untimely and that the
parties prevailed in approximate equal degree, the Court concludes
that an award of sanctions would be inappropriate.

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WHEREUPON, based on the foregoing, plaintiffs’ motions to compel,
ECF 92, 93, are GRANTED in part and DENIED in part.
Defendants are ORDERED to respond to plaintiffs’ Second Joint
Request for Production of Documents No. 1 within seven (7) days.
Defendants must respond to or supplement their responses to Kyron
Tool & Machine Co., Inc.’s Interrogatories Nos. 1, 2, 3, 4, 5, 6, and
8, C4R’S LLC’s Interrogatories Nos. 1, 2, 3, 4, 5, 6, 7, 8, 9, 10, 12,
16, 17, and 18, and Trimbur’s Interrogatories Nos. 2, 3, and 10 within
twenty-eight (28) days.
In all other respects, plaintiffs’ motions are DENIED.
Plaintiffs’ request for an award of sanctions is DENIED.
Considering that the deadlines for discovery and dispositive
motions have passed, plaintiffs’ motions to compel were untimely, and
a trial date has already been set, the Court will not permit discovery
to be reopened on the basis of the discovery materials obtained as a
result of this order.
Defendants filed a motion for summary judgment, ECF 90, on
November 21, 2014, to which plaintiffs have filed a response.
107.

ECF

Defendants have filed an unopposed motion, ECF 111, seeking to

extend until February 5, 2015 the deadline to file a reply.

In light

of the foregoing, defendants may have until February 17, 2015 to file
their reply.

If plaintiffs conclude that they must supplement their

response as a result of discovery ordered herein, they may have until
March 13, 2015 to file a supplemental response to the motion.

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Defendants may then have until March 30, 2015 to file a supplemental
reply.
Defendants filed a motion for partial summary judgment, ECF 106,
on December 30, 2014.

Upon unopposed motion, ECF 110, plaintiffs may

have until February 6, 2015, to file a response to defendants’ motion
for partial summary judgment.
The Clerk is DIRECTED to remove ECF 92, 93, 110, and 111 from the
Court’s pending motions list.

January 16, 2015

s/Norah McCann King_______
Norah McCann King
United States Magistrate Judge

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