Curtis et al v. Marquette Exploration, LLC et al

Filing 25

OPINION AND ORDER granting 17 Motion to Compel. Defendant Hess Ohio Resources, LLC, is ORDERED to produce an un-redacted copy of the 9/27/2011 email, Deposition Exhibit Number 14 with bates stamp number HOR000137, no later than 12/23/2013. Signed by Magistrate Judge Norah McCann King on 12/19/2013. (pes1)

IN THE UNITED STATES DISTRICT COURT
FOR THE SOUTHERN DISTRICT OF OHIO
EASTERN DIVISION

JEFFREY CURTIS, et al.,
Plaintiffs,
vs.

Civil Action 2:13-cv-453
Judge Smith
Magistrate Judge King

MARQUETTE EXPLORATION, LLC, et al.,
Defendants.
OPINION AND ORDER
Plaintiffs seek a declaration that defendants’ interest in an oil
and gas lease signed by them and Solid Rock Energy, Inc. has been
forfeited and that the lease has terminated.

This matter is now

before the Court on plaintiffs’ Motion to Compel Discovery, Doc. No.
17 (“Motion to Compel”), which seeks an order directing the production
of a single document pursuant to Rules 26 and 37 of the Federal Rules
of Civil Procedure.
I.

BACKGROUND
Plaintiffs represent that the deposition of Ivy Phillips, the

corporate designee of defendant Hess Ohio Resources, LLC (“Hess”), was
taken on October 22, 2013.

Motion to Compel, p. 2.

deposition, Hess produced “a number of documents[.]”

Prior to this
Id.

Plaintiffs’

counsel asked Phillips during the deposition for a complete copy of a
previously produced email dated September 27, 2011, from which Hess
redacted “a significant portion[.]”

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Id. (citing attached document,

Doc. No. 17-1, p. 3, which is marked as deposition exhibit number 14
with bates stamp number HOR000137) (“the email”).

The email, sent by

Brent Riggle and addressed to the deponent and other individuals,
contains the subject “Mike Derosa- Lessor” and states as follows:
Will someone give Dr. Derosa a call at his office 740-6955400? We have about 600 acres leased of his, most of it
through the Solid Rock leases Marquette acquired. I
believe maybe 200 acres are in the Porterfield 1h-17 Gas
Unit A. He has some questions about his lease. He asked
if he could speak with someone directly with Hess.
He said his neighbor, Jeff Curtis, met with an Attorney
from Hess yesterday and talked to him about his current
lease with us. Does anyone have any idea what he might be
talking about?
REDACTED
Brent
Doc. No. 17-1, p. 3.
Following this deposition, plaintiffs’ counsel formally requested
an un-redacted copy of the email.

See Doc. No. 17-1, pp. 1-2.

Plaintiffs represent that Hess’s counsel responded on October 27, 2013
that defense counsel was “checking.”

Motion to Compel, p. 2.

Plaintiffs further represent that their counsel followed up by email
on November 4, 2013, but received no response from defense counsel.
Id.

Thereafter, plaintiffs filed the Motion to Compel, which Hess

opposes.

Memorandum of Hess Ohio Resources in Opposition to

Plaintiffs’ Motion to Compel, Doc. No. 20 (“Memo. in Opp.”).

No reply

has been filed.
II.

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

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motion to compel discovery when a party fails to provide proper
response to requests for production of documents under Rule 34.
R. Civ. Pro. 37(a)(3)(B).

Fed.

“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).

purposes is extremely broad.
389, 402 (6th Cir. 1998).

Relevance for discovery

Lewis v. ACB Bus. Servs., Inc., 135 F.3d

“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).
Finally, a 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).

Although

plaintiffs have not technically complied with this prerequisite, it is
clear from the parties’ filings that they have reached impasse in this
matter.

Therefore, based on the circumstances in this particular

case, the Court will nevertheless consider the merits of the Motion to

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Compel.
III. DISCUSSION
In moving to compel the production of the requested email,
plaintiffs take the position that the email heading establishes that
it is not to or from counsel for any entity.

Motion to Compel, p. 2.

They also represent that Phillips’ testimony did not suggest that the
email is privileged.

Id.

Plaintiffs further represent that Hess has

not produced a privilege log justifying the redaction.

Id. at 2-3.

“Plaintiffs suspect that this redacted portion is important to the
allegations in the case.

The context of the un-redacted portion leads

one to believe that the redacted portion is harmful to Hess’s
position.”

Id. at 2.

In opposing the Motion to Compel, Hess repeats what it
purportedly argued in an email dated November 12, 2013 to plaintiffs’
counsel, which was sent after the Motion to Compel was filed.
in Opp., p. 1.

Memo.

Specifically, Hess takes the position that “the

paragraph in question has been redacted because it relates to other
landowners and is neither relevant nor reasonably calculated to lead
to the discovery of admissible evidence.”

Id.

Hess offers to submit

a copy of the email to the Court for in camera inspection.
Hess’s position is not well-taken.

Id.

The uncontroverted record

presently before the Court reflects that Hess produced the email in
the course of discovery.

Having thus shown that the email was

responsive to a document request, plaintiffs have met their initial
burden that the email is relevant.

See Martin, 2006 U.S. Dist. LEXIS

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68779, at *2.

In order to properly redact any portion of this email,

Hess must produce a privilege log and explain why the information is
privileged from discovery.

See Fed. R. Civ. P. 26(b)(5)(A).

The record establishes that the email is a document responsive to
plaintiffs’ document request.
the document is privileged.

Hess does not claim that any portion of
The document must therefore be produced.

Fed. R. Civ. P. 26(b)(1), (b)(5)(A).
WHEREUPON, plaintiffs’ Motion to Compel Discovery, Doc. No. 17,
is GRANTED.

Defendant Hess Ohio Resources, LLC, is ORDERED to produce

an un-redacted copy of the September 27, 2011 email, Deposition
Exhibit Number 14 with bates stamp number HOR000137, no later than
December 23, 2013.

December 19, 2013

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

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