Puget Soundkeeper Alliance v. SSA Terminals LLC

Filing 69

ORDER - the Court GRANTS IN PART Plaintiffs motion 46 to Compel Discovery, GRANTS Plaintiffs motion to strike 60 and DENIES Defendants motion for a protective order 65 by Judge John C Coughenour.(TM)

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THE HONORABLE JOHN C. COUGHENOUR 1 2 3 4 5 6 UNITED STATES DISTRICT COURT WESTERN DISTRICT OF WASHINGTON AT SEATTLE 7 8 9 PUGET SOUNDKEEPER ALLIANCE, 10 Plaintiff, 11 CASE NO. C11-1617-JCC ORDER v. 12 SSA TERMINALS LLC, 13 Defendant. 14 This matter comes before the Court on Plaintiff’s Motion to Compel Discovery, Award 15 16 Attorneys’ Fees and Continue the Case Schedule (Dkt. No. 46), Plaintiff’s Motion for Leave to 17 File Response or Strike (Dkt. No. 60), and Defendant’s Motion for Protective Order re Financial 18 Records (Dkt. No. 65). Having thoroughly considered the parties’ briefing and the relevant 19 record, the Court finds oral argument unnecessary and hereby GRANTS IN PART Plaintiff’s 20 motion (Dkt. No. 46), GRANTS Plaintiff’s motion to strike (Dkt. No. 60), and DENIES 21 Defendant’s motion for protective order (Dkt. No. 65). 22 I. DISCUSSION 23 This is a suit brought under the Clean Water Act, although these motions concern only 24 the parties’ disputes about their discovery obligations. Parties may discover any non-privileged 25 information that is relevant to its claims or the defenses of another party. Fed. R. Civ. P. 26 26(b)(1). ―Relevant information for purposes of discovery is information reasonably calculated ORDER PAGE - 1 1 to lead to the discovery of admissible evidence.‖ Surfvivor Media, Inc. v. Survivor Productions, 2 406 F.3d 625, 635 (9th Cir. 2005). The Court may grant a protective order for ―good cause‖ to 3 protective a party from ―annoyance, embarrassment, oppression, or undue burden or expense[.]‖ 4 Fed. R. Civ. P. 26(c). As this Court has already noted in this case, a party seeking a protective 5 order ―bears the burden, for each particular document it seeks to protect, of showing that specific 6 prejudice or harm will result if no protective order is granted.‖ Foltz v. State Farm Mut. Auto. 7 Ins. Co., 331 F.3d 1122, 1130 (9th Cir. 2003). If good cause is shown, the court may establish 8 the manner in which confidential commercial information may be revealed. Fed. R. Civ. P. 9 26(c)(1)(G). 10 Courts have broad discretion to control discovery. See Avila v. Willits Envtl. Remediation 11 Trust, 633 F.3d 828, 833 (9th Cir. 2011). At the same time, the Federal Rules strongly encourage 12 parties to resolve discovery disputes privately and discourage them from seeking needless court 13 intervention. 14 A. Responsive Documents 15 Some subset of the ESI that Plaintiff seeks consists of ESI from the Floyd Snider 16 Consulting firm. (Dkt. No. 55 ¶ 4.) Defendant represented in its response motion that 17 approximately 3,700 documents remained to be reviewed and that it would have completed 18 review on these documents ―before this matter is decided.‖ (Dkt. No. 55 ¶ 13.) To the extent that 19 Defendant has not yet produced any non-privileged documents from the original set of 166,074 20 documents referred to (Dkt. No. 55 ¶ 13), Defendant is ORDERED to do so within 14 days. 21 B. Additional ESI discovery 22 Plaintiff also seeks to require Defendant to search for responsive documents in other 23 locations. (Dkt. No. 46 at 11.) Defendant argues both that the Joint Status Report should be 24 amended to address ESI issues, and that discovery has already imposed a disproportionate 25 burden. (Dkt. No. 51 at 10.) It appears that at least some of the extra effort about which 26 Defendant complains would have been resolved had it initially clarified the scope of the terms ORDER PAGE - 2 1 (see, e.g., Dkt. No. 55 ¶¶ 21, 30), and to that extent the burden on Defendant does not necessarily 2 reflect the appropriateness of further discovery. Even so, the Court agrees the proportionality of 3 the effort expended on ESI discovery to date may nonetheless be an issue. These are, however, 4 precisely the sorts of disputes that are meant to be avoided by the establishment of a plan 5 governing ESI production initially. 6 The Local Civil Rules require parties to adopt a plan governing any ESI production. 7 W.D. Wash. Local Civ. R. 26(1)(I)–(J), (2), (3). It appears that the parties discussed the need to 8 amend the Joint Status Report to address ESI issues but failed to do so. Plaintiff is correct that it 9 was allowed to bring this motion absent such an amendment. But Plaintiff has also represented 10 that it ―does not object to formalizing a complete ESI agreement once the Court resolves the 11 outstanding ESI disputes.‖ (Dkt. No. 56 at 7 n.12.) The Court declines, however, to decide this 12 issue before the parties have even attempted to determine whether the district’s model ESI 13 agreement—or an agreement similar to that—might appropriately resolve the issues, including 14 by establishing the relevant sources for any discoverable material. In the absence of such a plan, 15 the Court DENIES the motion to compel in relevant part. 16 C. Financial Records 17 Also at issue are financial records from Defendant, which are the subject both of 18 Plaintiff’s motion to compel and Defendant’s motion for a protective order. (Dkt. No. 65.) The 19 documents at issue are ―annual financial statements, including [Defendant’s] annual reports, 20 profit/loss statements, balance sheets, income statement, statement of cash flow, notes, and 21 letters and other documents from auditors, for each year from 2006 through present,‖ as well as 22 ―documents . . . created or modified since January 1, 2006, summarizing or analyzing operating 23 expenses, revenues, and assets for the site.‖ (Dkt. No. 46 at 10 n. 6; Dkt. No. 65 at 2.) In its 24 initial responses to these requests in 2013, Defendant responded that ―relevant, non-privileged 25 documents will be produced.‖ (Dkt. No. 47, Ex. A.) 26 ORDER PAGE - 3 1 Defendant does not dispute that at least some of the financial records are relevant.1 2 Defendant instead argues that the request is overbroad and that there should be limits on how the 3 confidential commercial information is disclosed. (Dkt. No. 65 at 21.) The Court would be 4 receptive to an argument about which particular aspects of Plaintiff’s requests are overbroad, but 5 Defendant’s description of the request as ―wildly excessive‖ and ―burdensome‖ does not meet its 6 burden of demonstrating that there is some subset of documents that it will be harmed or 7 prejudiced by producing. See Foltz, 331 F.3d at 1130 (describing moving party’s burden). This is 8 particularly true when Defendant agreed to produce ―relevant, non-privileged documents,‖ and 9 yet, nearly a year later, has apparently produced no financial documents. 10 Defendant does make two specific proposals for how the confidential information should 11 be provided. The first proposal is that Defendant simply ―provide the bottom line numbers and 12 data from audited financial statements that Shefftz needs to perform his analysis.‖ (Dkt. No. 65 13 at 4.) The Court agrees with Plaintiff that this proposal is unreasonable: Defendant agrees that 14 the documents are relevant but seeks to avoid allowing Plaintiff to see them at all. Alternatively, 15 Defendant proposes that Plaintiff’s expert be allowed to review Defendant’s financial records at 16 Defendant’s offices or another convenient location and take notes about the records without 17 being allowed to copy or keep any of those records. (Dkt. No. 65 at 4.) Plaintiff objects that this 18 second option is ―unworkable in a litigation context.‖ (Dkt. No. 65 at 20.) Specifically, 19 Plaintiff’s expert suggests that it will be burdensome to arrange travel, that he may not realize 20 what information he needs until after he begins his analysis, and that he will be at a disadvantage 21 to Defendant’s expert, who will have unfettered access to the materials, including for trial 22 1 The Court notes, however, that Plaintiff’s heavy reliance on RE Sources for Sustainable Communities v. Pacific Int’l Terminals, Inc., No CV11-2076-JCC (W.D. Wash., Jan. 8, 2013) is 24 misplaced. Unlike in that case, Defendant here has stipulated to its ability to pay a penalty (Dkt. 25 No. 35), which undermines the reasoning of the original RE Sources order. Neither does Defendant’s reliance on the Court’s request for additional briefing from Plaintiff in that case 26 resolve the issue, particularly given the lack of specificity in Defendant’s arguments here regarding relevance. 23 ORDER PAGE - 4 1 preparation. (Dkt. No. 66.) 2 The Court disagrees with Defendant that subjecting Defendant’s expert to the ―same 3 conditions and restrictions‖ would remove any specter of unfairness. Even if neither expert has 4 hard copies of documents available at a deposition or at trial, Defendant’s expert will clearly 5 have easier and more-extensive access to the documents for preparation and review. This 6 discrepancy is not addressed simply by allowing Plaintiff’s expert additional visits to the 7 documents, particularly when the expert appears to live in Massachusetts. (Dkt. No. 66.) The 8 Court therefore concludes that neither of Defendant’s proposals is reasonable and DENIES the 9 protective order. In light of Defendant’s representation in its initial responses that it would 10 produce relevant, non-privileged documents, the Court GRANTS Plaintiff’s motion to compel. 11 Defendant is ORDERED to produce documents responsive to Plaintiff’s First Set of Requests for 12 Production 25 and 26 within 14 days. (Dkt. No. 43 at 30.) 13 D. Leave to File Response or Strike 14 Surreplies are limited strictly to motions to strike. See W.D. Wash. Local Civ. R. 7(g)(2). 15 Applying this standard, the Court GRANTS Plaintiff’s request to strike Defendant’s surreply, 16 which seeks to provide additional argument, and STRIKES the surreply. (Dkt. No. 58.) 17 E. Award of Fees 18 Plaintiff seeks fees both for Defendant’s behavior as documented in its current motion 19 and for opposing Defendant’s protective-order request that this Court denied in June. (Dkt. No. 20 46 at 13.) Having reviewed the record, the Court concludes that no award of fees is appropriate. 21 F. Continuance 22 Plaintiff seeks a continuance of four months, and Defendant does not oppose a ―modest 23 continuance.‖ (Dkt. No. 51 at 13.) Considering also the needs of this Court’s schedule, the Court 24 VACATES the trial currently set for March 31, 2015, and RESETS the trial for 9:30 a.m. on July 25 13, 2015. The pre-trial deadlines are continued accordingly. 26 ORDER PAGE - 5 1 II. CONCLUSION 2 For the foregoing reasons, the Court GRANTS IN PART Plaintiff’s motion (Dkt. No. 3 46), GRANTS Plaintiff’s motion to strike (Dkt. No. 60), and DENIES Defendant’s motion for a 4 protective order (Dkt. No. 65). 5 DATED this 23rd day of September 2014. 6 7 8 A 9 10 11 John C. Coughenour UNITED STATES DISTRICT JUDGE 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 ORDER PAGE - 6

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