Bristow First Assembly of God et al v. BP p.l.c. et al

Filing 180

OPINION AND ORDER by Magistrate Judge Frank H McCarthy ; denying 172 Motion to Compel (tjc, Dpty Clk)

IN THE UNITED STATES DISTRICT COURT FOR THE
NORTHERN DISTRICT OF OKLAHOMA
BRISTOW FIRST ASSEMBLY OF GOD,
MARK S. EVANS and CHRISTINA J.
EVANS, individually, and as parents and
next of kin to C.J.E and B.K.E., minor
children,
Plaintiffs,
vs.

Case No. 15-CV-523-TCK-FHM

BP p.l.c., MARATHON OIL
CORPORATION, MARATHON
PETROLEUM CORPORATION;
KINDER MORGAN, INC., et al.,
Defendants.
OPINION AND ORDER
Plaintiffs’ Motion to Compel Discovery Responses from Defendant Kinder Morgan,
Inc., [Dkt. 172], is before the undersigned United States Magistrate Judge for decision. The
matter has been fully briefed, [Dkt. 172, 173, 174] and is ripe for decision.
As a preliminary matter, the court notes that Plaintiffs’ motion to compel and related
briefing is deficient in several respects. Even after the court’s earlier discovery order which
reminded the parties of LCvR 37.2(d), [Dkt. 166, p. 2, n1], and explained that the rule
facilitates the court’s consideration of discovery motions, Plaintiffs failed to “include a
verbatim recitation of each interrogatory, request, answer, response and objection” in their
opening brief. Instead of following the simple mandate of the Local Rule, Plaintiffs
paraphrased their discovery requests. In addition, although Plaintiffs’ brief spans over 20
pages, and although Defendant objected to much of the discovery on the basis of
relevance, Plaintiffs’ brief contains virtually no discussion of what must be proven in this
case to support Plaintiffs’ claims or counter the defenses raised. Thus it appears Plaintiff

expects the court to compel production of information without any explanation about why
the information produced is insufficient or why production of additional information should
be ordered. Plaintiffs’ repeated assertion that they are “entitled” to information does
nothing to demonstrate the inadequacy of Defendant’s discovery responses or Plaintiff’s
need of information in relation to the matters at issue.1
Interrogatory No. 4
Identify each and every Person likely to have discoverable
information relevant to facts alleged in the pleadings in this
Case or to any of the issues raised in the pleadings, including
but not limited to all Persons whom You have paid to be on the
Site, the L-W Refinery, the T-O Refinery and/or in Bristow,
Oklahoma. Please also provide a summary of the information
that each individual has, or is expected to have, knowledge of.
[Dkt. 172-1, p. 18]. Defendant cited several reasons for its objection to this interrogatory,
but identified Eric McCord, Assistant General Counsel, and Scott Miller, Senior Counsel for
El Paso, as people who are likely to have information about elements of the corporate
transactions related to Defendant Kinder Morgan and El Paso Corporation referenced in
Plaintiffs’ Amended Complaint. Defendant states there are hundreds of people who have
some knowledge and have sought to have Plaintiffs narrow the scope of this interrogatory.
In their opening brief for the first time Plaintiffs listed four categories of individuals
they would like to have identified:
1) individuals who conducted, managed, oversaw or
participated in due diligence investigations during the alleged
corporate transactions, particularly between Kinder Morgan
and El Paso; 2) individuals who conducted, managed, oversaw

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Plaintiffs have cited and discussed a number of cases, which the court has not addressed
herein. For the most part, the cases pre-date the 2015 amendment of Rule 26 or address situations so
completely unlike the present case that they are of no use in resolving the issues in this case.

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or participated in investigations into any potential or current
environmental liabilities of any Kinder Morgan predecessor
entity identified in this lawsuit; 3) individuals that [sic] Scott
Miller worked with and/or conferred with about ODEQ
contacting El Paso/Kinder Morgan in 2011-2012; and 4)
individuals who participated in or with knowledge of the ODEQ
and the EPA’s investigation into El Paso/Kinder Morgan as a
potentially responsible party for the contamination and pollution
at the Bristow site and related communications.
[Dkt. 172, p. 6]. Defendant asserts that the first two categories are overly broad in that they
would encompass “(1) every due diligence investigation of every corporate transaction of
every alleged Kinder Morgan predecessor referenced by Plaintiffs, and (2) likely thousands
of potential or current environmental liabilities completely unrelated to the facts of this case
or any of Plaintiffs’ claims.”

[Dkt. 173, p. 15].

Defendant states it has begun an

investigation into the last two categories as they are more narrowly focused on the
allegations set forth in the Amended Complaint. Defendant represents it will supplement
its response when its investigation is completed.
It appears, therefore, that Defendant’s solution is acceptable as Plaintiffs’ reply brief
does not pose any objection to Defendant’s proposed supplement. Defendant’s proposed
supplement is reasonable from the court’s perspective. With respect to the first two
categories, the court notes that it does not appear that Plaintiffs have deposed Mr. Scott
and Mr. Miller who have been identified as the persons with the greatest knowledge and
whom Defendant has suggested should be deposed. Given the breadth of Plaintiffs’
request and the large number of people who may have some bit of knowledge of
questionable relevance to the claims and defenses in this case, it is reasonable and
efficient for Plaintiffs to depose Mr. Scott and Mr. Miller. The motion to compel is denied
as to Interrogatory No. 4.
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Interrogatory No. 8
Identify all facts, Documents and/or data You relied on in
preparing the attached correspondence from you to the EPA.
[Dkt. 172-1, p. 19]. The referenced letter is one dated February 3, 2012 from Scott Miller
to the ODEQ. In a supplemental response Defendant identified a list of relevant nonprivileged documents that had been produced to Plaintiffs as responsive to this
interrogatory. Plaintiff objects that the response does not contain any internal files and
documents even though the letter to the ODEQ states that internal files and documents
were reviewed. The referenced letter states that “internal files and documents [were
reviewed], and we can find no record that ODEQ, EPA or anyone else asserted any claim
. . . “ [Dkt. 172-1, p. 25]. Apparently Plaintiff would have Defendant identify everywhere
it looked to find no documentation. Plaintiff has provided the court no basis for requiring
Defendant to engage in such an endeavor. The motion to compel is denied as to
Interrogatory No. 8.
Request for Production Nos. 3-5
No. 3: All Documents concerning the L-W Refinery and/or the
T-O Refinery.
No. 4: All Documents concerning any tank farms, tank sites
and/or pipelines that, in any way, serviced or provided products
to or support for the L-W Refinery and/or the T-O Refinery.
No. 5: All Documents concerning the Site and/or any pollution
or possible pollution in Bristow, Oklahoma.
[Dkt. 172-1, p 16]. Defendant has represented that it produced every document in its
possession, custody, or control concerning the EPA and the ODEQ. Plaintiff asserts that
of the 36,000 documents produced, only 1,386 pages have been identified that did not
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come from Defendant’s Freedom of Information Act (FOIA) request. Plaintiffs think it is
unlikely that Defendant and its affiliates would not have more internal documents on the
topics. Plaintiffs have identified four categories of documents they believe have not been
produced:
(1) documents, e-mails, letters and correspondence relating to
remediation of the Bristow site by any individual at El Paso
and/or Kinder Morgan; (2) records from Tenneco regarding the
closure of the refinery; (3) records from Tenneco and/or Wilcox
regarding ownership, operations, management and
maintenance of the refiner; and (4) records regarding any site
inspections performed during the due diligence process of the
corporate transactions between Tenneco, El Paso and Kinder
Morgan.
[R. 172, p. 16]. Again, Defendant states that these categories have not been previously
identified by Plaintiff in the meet and confer.

Defendant represents “there are no

documents in Kinder Morgan’s possession, custody, or control responsive to categories 1
and 4, as none of the entities described conducted any remediation or site inspection either
during corporate due diligence or otherwise.”

[Dkt. 173, p. 20].

Defendant further

represents that it has already produced all of the documentation in its possession with
respect to categories 2 and 3. The motion to compel is denied as to Requests for
Production Nos. 3, 4, and 5.
Request for Production No. 7
All Documents concerning Your internal policies and
procedures regarding response and handling of Superfund
and/or other environmental claims.
[Dkt. 172-1, p. 16]. Defendant objects to this request as unduly burdensome, overly broad,
vague, and not relevant to any party’s claim or defense. Plaintiffs argue they are entitled
to this information because the main issue in this lawsuit is a Superfund site arising out of
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contamination and pollution, caused, maintained and continued by Kinder Morgan and its
predecessors.” [Dkt. 172, p. 17].
Although the subject matter of the lawsuit may be a Superfund site, Plaintiff has
made no effort to show how Defendant’s policies and procedures pertain particularly to any
claim or defense in this case.

It is no longer adequate under Fed.R.Civ.P. 26 to

demonstrate that the discovery sought pertains to the subject matter of a lawsuit, the
information sought must be relevant to a party’s claims or defenses and be proportional to
the needs of the case. Fed.R.Civ.P. 26(b)(1). The motion to compel is denied as to
Requests for Production No. 7.
Request for Production Nos. 9 and 10
No. 9: All Documents, including organizational charts,
concerning Your corporate structure and history, for You and
all predecessors, successor and affiliated entities.
No. 10: Your current employee charts for all management
personnel, showing names and titles of individual Persons by
department, for onshore U.S. operations and oversight thereof,
from the bottom level managers up to and including Your (and
Your affiliates’) chief corporate officers and boards of directors.
[Dkt. 172-1, p. 16]. Defendant objects that these requests are not limited by time period,
are unduly burdensome, are overly broad, vague, and are not relevant to any claim or
defense. Defendant produced a limited organizational chart. Plaintiffs, however, affirm
they are seeking “all documents.” [Dkt. 172, p. 18]. Plaintiffs also assert they are entitled
to current employee charts as they will provide information about decision makers and the
chain of command within the corporation. Plaintiffs do not, however, indicate how that
information pertains to any claim or defense.

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The court finds that Plaintiffs’ requests for all documents and information about all
management personnel for all onshore U.S. operations is too broad and not proportional
to the needs of this case. The motion to compel is denied as to Requests for Production
Nos. 9 and 10.
Conclusion
Plaintiffs’ Motion to Compel Discovery Responses from Defendant Kinder Morgan,
Inc., [Dkt. 172], is DENIED.
SO ORDERED this 3rd day of May, 2018.

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