Waste Action Project v. Port of Olympia

Filing 132

ORDER denying Defendant's Amended 95 Motion to Compel signed by Judge Benjamin H. Settle. (GMR)

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UNITED STATES DISTRICT COURT
WESTERN DISTRICT OF WASHINGTON
AT TACOMA

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WASTE ACTION PROJECT,
Plaintiff,

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v.

CASE NO. C17-5445 BHS
ORDER DENYING
DEFENDANT’S MOTION TO
COMPEL

PORT OF OLYMPIA,

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Defendant.

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This matter comes before the Court on Defendant Port of Olympia’s (“Port”)

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amended motion to compel testimony of non-party witness Paul Stasch (“Stasch”). Dkt.

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95.

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On July 12, 2019, the parties deposed Stasch. Dkt. 96, ¶ 3. The Port’s counsel

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asked Stasch whether he had a valid driver’s license while he worked for the Washington

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Department of Ecology (“Ecology”) in 2011, Dkt. 96-2 at 4, questions regarding Stasch’s

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resignation, id. at 5, and details about a lecture he may have given at a local community

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college, id. at 5–6. Stasch refused to answer these questions.

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On August 21, 2019, the Court granted the Port’s motion for leave to file a
discovery motion past the discovery deadline. Dkt. 69. On August 22, 2019, the Port

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filed a motion to compel another deposition of Stasch to ask questions “regarding his

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criminal history and disciplinary history while employed at Ecology.” Dkt. 70. On

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September 9, 2019, Plaintiff Waste Action Project (“WAP”) responded and argued that

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the Court should deny the motion because the Port failed to serve the motion on Stasch or

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his personal counsel. Dkt. 78 at 3. WAP’s argument appeared valid because neither

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Stasch nor his counsel were included in the Port’s certificate of service. Dkt. 72. On

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September 16, 2019, the Port withdrew its motion and filed this amended motion. Dkts.

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93, 95. On September 30, 2019, WAP responded. Dkt. 107. On October 1, 2019, Stasch

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responded. Dkt. 113. On October 4, 2019, the Port replied. Dkt. 115. On October 8,

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2019, WAP filed a surreply requesting that the Court strike new facts and argument the

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Port submitted for the first time in reply. Dkt. 122. 1

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In this case, WAP and Stasch argue that the Court should deny the Port’s motion

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for both procedural and substantive reasons. First, WAP argues that the Port’s decision

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to withdraw its original motion after WAP’s response and file an amended motion

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correcting the deficiencies identified by WAP violates the letter and intent of the local

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rules of procedure. Dkt. 107 at 4–6. The Court disagrees because WAP responded to the

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substantive merits of both motions. This is not a situation where a party repeatedly files

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motions only to withdraw them after forcing the other party to respond. Attorney

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oversight in serving the relevant parties does not warrant denial of the motion or

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sanctions.

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The Court denies this motion as moot because those facts and argument are irrelevant to
the Court’s analysis.

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Second, WAP argues that the motion violates the Court’s deadlines. Id. at 6–7.

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This argument is without merit because the Court granted the Port leave to file the

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motion.

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Third, Stasch argues that the Port failed to meet and confer before filing the

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motion. Dkt. 113 at 5–7. The Port contends that it did meet and confer with Stasch’s

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counsel regarding a new deposition. Dkt. 115. In fact, the Port submits an email

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exchange between the parties after the Port filed this motion with an offer from Stasch to

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resume his deposition if the Port withdrew its motion and request for sanctions. Dkt.

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116-4 at 4. Inexplicably, the Port refused this offer suggesting that it might be more

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interested in sanctions than the subject of Stasch’s testimony. Moreover, the Port has

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repeatedly asserted that this case is nothing more than an attempt, even unethical in some

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respects, by WAP and its counsel to exact penalties and attorney’s fees for baseless

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allegations. See, e.g., Dkt. 80 at 9 (“WAP’s citizen suit is an attempt to piggyback on

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Ecology’s enforcement actions by seeking its own set of penalties and damages—and of

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course attorney fees and litigation costs”). It would be clearly improper if the Port is

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seeking its own fees in retaliation. Regardless of the actual motive, the Court will not

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condone the denial of efforts to resolve a discovery dispute before requesting the Court’s

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intervention. The Court finds that this is reason alone to deny the motion, but it will

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briefly address the merits.

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Regarding the subject matter of the deposition, WAP and Stasch argue that any

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further questions regarding his driver’s license or resignation would be irrelevant and

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duplicative. The Court agrees. To the extent such additional testimony might be

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marginally relevant, the Port should have sufficient information from the previous

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deposition and other sources to competently attack his credibility on the issues set forth in

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the complaint. Therefore, the Court DENIES the Port’s amended motion to compel.

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IT IS SO ORDERED.

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Dated this 19th day of November, 2019.

A

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BENJAMIN H. SETTLE
United States District Judge

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