Salt Lake City Corporation et al v. ERM WEST et al

Filing 172

MEMORANDUM DECISION and ORDER granting in part and denying in part #148 Motion to Compel; denying #149 Motion for Discovery; granting #152 Motion to Compel. Signed by Magistrate Judge Paul M. Warner on 7/14/2014. (blh)

IN THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF UTAH
CENTRAL DIVISION
SALT LAKE CITY CORPORATION, a
Utah municipal corporation; BP
PRODUCTS NORTH AMERICA INC., a
Maryland corporation; and CHEVRON
U.S.A. INC., a Pennsylvania corporation,
Plaintiffs,

MEMORANDUM DECISION
AND ORDER

Case No. 2:11-cv-1174-TS-PMW

v.
ERM-WEST, INC., a California
corporation; COMPASS
ENVIRONMENTAL, INC., a Delaware
corporation; and WRS
INFRASTRUCTURE AND
ENVIRONMENT, INC., a North Carolina
corporation, dba WRSCOMPASS, INC.,
Defendants.

Chief District Judge Ted Stewart
Magistrate Judge Paul M. Warner

Chief District Judge Ted Stewart referred this case to Magistrate Judge Paul M. Warner
pursuant to 28 U.S.C. § 636(b)(1)(A). 1 Before the court are (1) ERM-West, Inc.’s (“ERM”)
motion to compel Salt Lake City Corporation (“SLCC”) to make initial disclosures; 2 (2) ERM’s
motion for additional interrogatories; 3 and (3) SLCC, BP Products North America Inc., and
Chevron U.S.A. Inc.’s (collectively, “Plaintiffs”) motion to compel. 4 The court has carefully

1

See docket nos. 62, 63.

2

See docket no. 148.

3

See docket no. 149.

4

See docket no. 152.

reviewed the written memoranda submitted by the parties. Pursuant to civil rule 7-1(f) of the
Rules of Practice for the United States District Court for the District of Utah, the court has
concluded that oral argument is not necessary and will determine the motions on the basis of the
written memoranda. See DUCivR 7-1(f). The court will address the motions in turn.
I. ERM’s Motion to Compel SLCC to Make Initial Disclosures
In this case, Plaintiffs have served joint initial disclosures concerning their damages. In
its motion to compel, ERM moves the court to order SLCC to make its own initial disclosures
concerning damages. Rule 26 of the Federal Rules of Civil Procedure, requires “a party” to
provide initial disclosures to all other parties, including
a computation of each category of damages claimed by the
disclosing party--who must also make available for inspection and
copying as under Rule 34 the documents or other evidentiary
material, unless privileged or protected from disclosure, on which
each computation is based, including materials bearing on the
nature and extent of injuries suffered.
Fed. R. Civ. P. 26(a)(1)(A)(iii). ERM contends that each party must provide a “computation as
to individual damages.” Roska v. Sneddon, 366 Fed. App’x 930, 942 (10th Cir. 2010).
This portion of ERM’s motion is granted. The court agrees with ERM and concludes that
requiring SLCC to provide an individual initial disclosure concerning damages will impose no
prejudice on SLCC, especially in light of its admission that any individual initial disclosure
concerning damages will be identical to the disclosure that ERM already has. Plaintiffs,
including SLCC, are reminded that they initiated this case against the named defendants,
including ERM. As such, the court believes that ERM is making a reasonable request to require
SLCC to provide its own damages disclosure. SLCC shall provide an individual initial
disclosure concerning its damages within thirty (30) days of the date of this order. However, as
2

noted by SLCC, and as admitted by ERM, SLCC is not restricted as to the damages it chooses to
include in its individual initial disclosures.
ERM also moves the court to require SLCC to identify the documents or materials on
which its alleged damages are based. With respect to identification of documents, SLCC has
indicated in its response to ERM’s motion that ERM now has all the documents used in the
calculation of SLCC’s damages. ERM does not dispute this fact in its reply memorandum. As
such, the court is left to conclude that ERM is now satisfied with SLCC’s production of
documents concerning damages. Accordingly, this portion of ERM’s motion is denied as moot.
Finally, ERM moves the court to require SLCC to provide computations of its damages.
In their joint initial disclosures, Plaintiffs have simply provided a summary of their alleged
damages, broken down into seven categories. However, Plaintiffs have not provided any
computation as to how they reached those amounts. SLCC argues, however, that its damages
computations will be further described through an expert report and expert discovery.
The court concludes that SLCC’s argument is without merit. Rule 26 clearly requires a
party to provide in its initial disclosures “a computation of each category of damages claimed by
the disclosing party.” Fed. R. Civ. P. 26(a)(1)(A)(iii) (emphasis added). Plaintiffs, including
SLCC, have simply not done so in this case. The court will not allow SLCC to wait to disclose
those computations until after the expert report deadline. As noted by ERM, allowing SLCC to
do so would deprive ERM of its opportunity to conduct a proper investigation of SLCC’s
damages claims. Accordingly, this portion of ERM’s motion is granted. SLCC shall provide an
individual initial disclosure of the computation of each category of its damages within thirty (30)
days of the date of this order.

3

II. ERM’s Motion for Additional Interrogatories
In this motion, ERM seeks leave of court to serve up to twenty-five (25) additional
interrogatories on SLCC. In this case, the court concludes that ERM current counsel failed to
satisfy the meet-and-confer requirement before filing this motion.
In relevant part, civil rule 37-1 of the Rules of Practice for the United States District
Court for the District of Utah provides that
the court will not entertain any discovery motion . . . unless
counsel for the moving party files with the court, at the time of
filing the motion, a statement showing that the attorney making the
motion has made a reasonable effort to reach agreement with
opposing attorneys on the matters set forth in the motion. Such
statement must recite, in addition, the date, time, and place of such
consultation and the names of all participating parties or attorneys.
DUCivR 37-1(a).
Prior to filing its motion on April 7, 2014, ERM’s counsel sent SLCC’s counsel one email, on April 2, 2014, concerning its request for additional interrogatories. According to
SLCC’s counsel, he responded by e-mail the following day, asking for basic information
necessary to evaluate ERM’s request. Although ERM’s counsel contends that it never received
SLCC’s counsel’s e-mail, it is clear that there were no further discussions among counsel
concerning ERM’s request. Instead, ERM filed its motion a mere five days after sending its
initial e-mail.
Rather than demonstrating additional efforts to resolve the issue without court
intervention, ERM simply states in its motion that “because of the time-sensitive nature of these
discovery issues,” ERM’s counsel felt it was best “to file this motion now rather than make

4

additional attempts at discussing the issue with [SLCC]’s counsel.” 5 In its reply, ERM indicates
that it was somehow SLCC’s counsel’s responsibility to re-send his responsive e-mail or contact
ERM’s counsel after receiving ERM’s motion. The court disagrees. Given that it was ERM’s
request that was at issue, the court believes the responsibility for ensuring that the meet-andconfer requirement was satisfied rested with ERM’s counsel, not SLCC’s counsel.
In the court’s view, the above-referenced efforts by ERM’s counsel did not satisfy either
the spirit or the letter of the meet-and-confer requirement contained in rule 37-1(a). For that
reason, ERM’s motion for additional interrogatories is denied at this time. If, after further
consultation, the parties are unable to agree on whether ERM should be allowed to serve any
additional interrogatories, ERM may refile its motion.
III. Plaintiffs’ Motion to Compel
In this motion, Plaintiffs seek a court order requiring Compass Environmental, Inc. and
WRS Infrastructure and Environment dba WRSCompass, Inc. (collectively, “Compass Entities”)
to provide a complete written answer to Matter Number 29 of Plaintiffs’ October 18, 2013 notice
of deposition pursuant to rule 30(b)(6) of the Federal Rules of Civil Procedure (“Matter Number
29”). See Fed. R. Civ. P. 30(b)(6). Plaintiffs ask the court to require the Compass Entities to
identify the specific documents that support the claims and contentions referenced in Matter
Number 29.
Matter Number 29 asked the Compass Entities to designate and prepare a representative
to identify: “Any and all documents of which [the Compass Entities] and [their] attorneys are

5

Docket no. 149 at 6.
5

aware relating to” a specific set of matters listed in Matter Number 29. 6 Prior to and during the
rule 30(b)(6) deposition of the Compass Entities, there were no objections lodged by the
Compass Entities’ counsel with respect to Matter Number 29.
At the deposition, the Compass Entities’ representative was unprepared to answer
questions related to Matter Number 29. Accordingly, counsel for Plaintiffs and the Compass
Entities entered into a stipulation on the record during the deposition. In relevant part, counsel
for Plaintiffs stated that counsel for the Compass Entities would “go back and identify the
documents that support the various claims and contentions described in the matter numbers set
forth in [Matter] Number 29.” 7 Counsel for the Compass Entities stipulated to that statement. 8
Later, counsel for the Compass Entities sent a supplemental response to Plaintiffs’ rule
30(b)(6) deposition notice, which included objections to Matter Number 29. 9 The supplemental
response also listed forty-five general categories of documents, but did not specifically identify
those documents so that they could be located by Plaintiffs. The supplemental response failed to
identify which claims and contentions the various categories of documents supported.
Counsel for Plaintiffs then sent a letter to counsel for the Compass entities, in which
Plaintiffs’ counsel contended that the objections to Matter Number 29 were untimely and that the
identification of only categories of documents made it impossible to Plaintiffs’ counsel to reopen

6

Docket no. 152, Exhibit 1.

7

Id., Exhibit 5.

8

See id.

9

See id., Exhibit 6.
6

the rule 30(b)(6) deposition to ask questions related to Matter Number 29. 10 After some
communications, counsel were ultimately unable to resolve this dispute.
Plaintiffs then sent a Third Request for Production of Documents to the Compass Entities
on November 27, 2013. 11 After some dispute, counsel for the Compass Entities agreed to
produce documents responsive to Plaintiffs’ Third Request for Production of Documents. 12 On
or around March 25, 2014, counsel for the Compass Entities produced documents responsive to
some, but not all, of those requests. Counsel for the Compass entities further indicated that he
was working on producing additional responsive documents. 13
In their motion to compel, Plaintiffs contend that (A) the Compass Entities have not
complied with the requirements of rule 30(b)(6) or the stipulation entered into during the rule
30(b)(6) deposition concerning Matter Number 29 and (B) the Compass Entities have not
provided full responses to Plaintiffs’ Third Request for Production of Documents. The court will
address those arguments in turn.
A. Matter Number 29
With respect to the first argument, Plaintiffs assert that the Compass Entities had a duty to
have a representative prepared at the rule 30(b)(6) deposition to testify about the documents
identified in Matter Number 29. Plaintiffs further argue that, after failing to make a prepared
witness available, the Compass Entities should have abided by the stipulation entered into during
the deposition, which provided that the Compass Entities would identify documents responsive
10

See id., Exhibit 7.

11

See id., Exhibit 10.

12

See id., Exhibit 11.

13

See id., Exhibits 13, 14.
7

to Matter Number 29. Finally, Plaintiffs contend that the Compass Entities’ objections to Matter
Number 29 were untimely and do not excuse their refusal to abide by the stipulation.
In response, the Compass Entities assert that their objections to Matter Number 29,
including their objection concerning attorney work product, were timely because they never
intentionally relinquished the right to object to Matter Number 29. More specifically, the
Compass Entities assert that, at the time they filed their original response to the rule 30(b)(6)
notice, they did not know that Plaintiffs were interpreting Matter Number 29 to require the
Compass Entities’ representative to identify documents by Bates numbers that were responsive to
Matter Number 29. The Compass Entities claim that as soon as they learned of that fact, they
filed their supplemental response, which contained their objections. The Compass Entities
further contend that their supplemental response to Matter Number 29 complies with the
stipulation entered into during the rule 30(b)(6) deposition and that more specific identification
of documents would be unreasonable and overly burdensome.
For the following reasons, the court agrees with Plaintiffs’ arguments and concludes that
the Compass Entities’ arguments are without merit. First, while the Compass Entities claim that
there was some confusion about the interpretation of Matter Number 29, it is clear that they did
not have a representative prepared at the rule 30(b)(6) deposition to identify the documents
referenced in Matter Number 29. By failing to do so, the Compass Entities failed to comply with
rule 30(b)(6), as noted by Plaintiffs.
Second, the court concludes that the Compass Entities’ objections to Matter Number 29,
including their objection concerning attorney work product, were untimely. It is undisputed that
the Compass Entities failed to raise any objections to Matter Number 29 either before or during
the rule 30(b)(6) deposition. The court recognizes that there may have been some confusion
8

about the interpretation of Matter Number 29. However, in the court’s view, the rule 30(b)(6)
deposition transcript makes it clear that counsel ultimately agreed on the interpretation of Matter
Number 29 during the deposition. Indeed, Plaintiffs’ counsel stated that the Compass Entities’
representative did not “have the ability to identify specific documents with respect to some of
[the] topics” contained in Matter Number 29 and that counsel for the Compass Entities would
“go back and identify the documents that support the various claims and contentions described”
in Matter Number 29. 14 Counsel for the Compass Entities stipulated to that statement and failed
to raise any objections. As such, counsel for the Compass Entities’ had knowledge of Plaintiffs’
interpretation of Matter Number 29 during the deposition, yet failed to raise any objections.
Those facts belie the contention by the Compass Entities’ counsel that he raised his objections as
soon as he knew of Plaintiffs’ interpretation of Matter Number 29. By failing to raise any
objections during the deposition as soon as he had knowledge of Plaintiffs’ interpretation of
Matter Number 29, see Fed. R. Civ. P. 30(c)(2) (providing for objections by a party during a
deposition), and then stipulating to provide documents in accordance with that interpretation, the
Compass Entities’ counsel intentionally relinquished the right to raise objections later. See, e.g.,
McCleve Props., LLC v. D. Ray Hult Family Ltd. P’ship, 307 P.3d 650, 654 (Utah. Ct. App. 2013)
(providing that, under Utah law, a waiver requires “an existing right, benefit or advantage”;
“knowledge of its existence”; and “an intention to relinquish it” (quotations and citations
omitted)).
Finally, the court concludes that the Compass Entities’ supplemental response fails to
satisfy the stipulation entered into during the rule 30(b)(6) deposition. As noted above, during

14

Id., Exhibit 5.
9

the deposition, counsel for the Compass Entities stipulated to “go back and identify the
documents that support the various claims and contentions described” in Matter Number 29. 15 In
the court’s view, the Compass Entities supplemental response, which merely identifies categories
of documents, is insufficient. Without more specific identification of documents, the court
agrees with Plaintiffs contention that it would be nearly impossible for them to reopen the rule
30(b)(6) deposition to ask questions related to Matter Number 29. As for any objections the
Compass Entities have now lodged concerning more specific identification of documents, the
court concludes, consistent with its determination above, that those objections should have been
raised during the rule 30(b)(6) deposition before counsel for the Compass Entities entered into
the stipulation.
Based on the foregoing, this portion of Plaintiffs’ motion to compel is granted. Within
thirty (30) days after the date of this order, the Compass Entities shall identify documents, by
Bates numbers, that are responsive to Matter Number 29.
B. Plaintiffs’ Third Request for Production of Documents
Plaintiffs argue that the Compass Entities have not provided full responses to Plaintiffs’
Third Request for Production of Documents. In response, the Compass Entities do not dispute
that fact. Instead, the Compass Entities claim that on or about March 25, 2014, they provided
Plaintiffs with a substantial amount of documents responsive to those requests. The Compass
Entities further assert that they are in the process of locating and gathering the remaining
responsive documents and will provide them to Plaintiffs. The court recognizes the volume of
discovery in this case, and the apparent difficulties counsel for the Compass Entities has

15

Id., Exhibit 5.
10

experienced in compiling and producing documents. At the same time, the court recognizes that
Plaintiffs have waited multiple months for documents responsive to their requests. The court
believes that, at some point, a deadline must be imposed. Accordingly, this portion of Plaintiffs’
motion is also granted. Within thirty (30) days after the date of this order, the Compass Entities
shall provide full responses to Plaintiffs’ Third Requests for Production of Documents.
*****
In summary, IT IS HEREBY ORDERED:
1.

ERM’s motion to compel SLCC to make initial disclosures 16 is GRANTED IN

PART AND DENIED IN PART.
2.

ERM’s motion for additional interrogatories 17 is DENIED.

3.

Plaintiffs’ motion to compel 18 is GRANTED.

IT IS SO ORDERED.
DATED this 14th day of July, 2014.
BY THE COURT:

PAUL M. WARNER
United States Magistrate Judge

16

See docket no. 148.

17

See docket no. 149.

18

See docket no. 152.
11