CSX Transportation, Inc. v. Gilkison et al

Filing 1032

MEMORANDUM OPINION AND ORDER AFFIRMING 993 ORDER GRANTING IN PART AND DENYING IN PART PLAINTIFFS MOTION FOR PROTECTIVE ORDER CONCERNING MARK COULTERS FIRST SET OF DOCUMENT REQUESTS TO PLAINTIFF REGARDING THIRD AMENDED COMPLAINT,GRANTING IN PART AND DENYING IN PART DEFENDANT MARK T. COULTERS MOTION TO COMPEL AND GRANTING IN PART AND DENYING IN PART PLAINTIFFS MOTION TO COMPEL RESPONSES TO ITS FIRST REQUESTS FOR PRODUCTION TO DEFENDANTS ROBERT PEIRCE, LOUIS RAYMOND AND MARK COULTER AND DENYING 1017 MOTION FOR STAY. Signed by Senior Judge Frederick P. Stamp, Jr on 4/18/12. (mji)

IN THE UNITED STATES DISTRICT COURT
FOR THE NORTHERN DISTRICT OF WEST VIRGINIA
CSX TRANSPORTATION, INC.,
Plaintiff,
v.

Civil Action No. 5:05CV202
(STAMP)

ROBERT V. GILKISON,
PEIRCE, RAIMOND & COULTER, P.C.,
a Pennsylvania professional corporation
a/k/a ROBERT PEIRCE & ASSOCIATES, P.C.,
a Pennsylvania professional corporation,
ROBERT PEIRCE, JR., LOUIS A. RAIMOND,
MARK T. COULTER and RAY HARRON, M.D.,
Defendants.
MEMORANDUM OPINION AND ORDER
AFFIRMING ORDER GRANTING IN PART AND DENYING IN PART
PLAINTIFF’S MOTION FOR PROTECTIVE ORDER CONCERNING
MARK COULTER’S FIRST SET OF DOCUMENT REQUESTS TO
PLAINTIFF REGARDING THIRD AMENDED COMPLAINT,
GRANTING IN PART AND DENYING IN PART
DEFENDANT MARK T. COULTER’S MOTION TO COMPEL
AND GRANTING IN PART AND DENYING IN PART
PLAINTIFF’S MOTION TO COMPEL RESPONSES TO ITS
FIRST REQUESTS FOR PRODUCTION TO DEFENDANTS
ROBERT PEIRCE, LOUIS RAYMOND AND MARK COULTER
AND DENYING MOTION FOR STAY
I.

Background1

In February 2012, the parties in the above-styled civil action
filed the following discovery motions: (1) CSX Transportation,
Inc.’s

(“CSX”)

motion

for

protective

order

concerning

Mark

Coulter’s first set of document requests to plaintiff regarding

1

For the purpose of resolving the pending motions, this Court
believes that the following abbreviated summary of this case is
sufficient.

third amended complaint (ECF No. 931); (2) Defendant Mark Coulter’s
motion to compel (ECF No. 933); and (3) CSX’s motion to compel
responses to its first requests for production to defendants Robert
Peirce, Louis Raymond, and Mark Coulter (ECF No. 934). Pursuant to
Local Rule of Civil Procedure 72.01, these discovery motions were
referred to United States Magistrate Judge James E. Seibert.
On February 27, 2012, the magistrate judge held an evidentiary
hearing and argument on the motions.

On March 27, 2012, the

magistrate judge issued an order granting in part and denying in
part

plaintiff’s

motion

for

protective

order

concerning

Mark

Coulter’s first set of document requests to plaintiff regarding
third amended complaint, granting in part and denying in part
defendant Mark T. Coulter’s motion to compel and granting in part
and denying in part plaintiff’s motion to compel responses to its
first requests for production to defendants Robert Peirce, Louis
Raymond and Mark Coulter (“March 27th Order”) (ECF No. 993).

The

March 27th Order provided that any party may file objections to the
order within fourteen days of the date of the order.
On April 10, 2012, CSX filed timely objections to the March
27th Order (ECF No. 1016), as well as a motion to stay portions of
the March 27th Order (ECF No. 1017). In its objections, CSX argues
that the March 27th Order is clearly erroneous and contrary to law
to the extent it requires CSX to provide information contained in
its outside counsels’ files from the 10,000 non-Peirce Firm cases.

2

According to CSX, the magistrate judge failed to conduct the
proportionality

analysis

required

Federal Rules of Civil Procedure.

by

Rule

26(b)(2)(C)

of

the

In its motion to stay, CSX

requests that this Court stay the portions of the March 27th Order
requiring CSX to provide information contained in its outside
counsels’ files from the 10,000 non-Peirce Firm cases until this
Court rules upon CSX’s objections.

CSX argues that such a stay is

necessary in order to prevent the waste and irreparable harm that
would result if CSX is required to expend the significant resources
necessary

to

provide

discovery

that,

as

set

forth

in

its

objections, is improper under Rule 26.
The defendants filed a response in opposition to the motion
for stay on April 13, 2012 (ECF No. 1027).

In their response, the

defendants contend that this Court should deny CSX’s request for a
stay and CSX should begin to gather and prepare the relevant
discovery so that it can be expeditiously produced after the Court
rules on the objections.

Both the objections and CSX’s motion for

stay are now pending before this Court.

For the reasons set forth

below, this Court finds that the March 27th Order must be affirmed
and the motion for stay denied.
II.

Applicable Law

As to nondispositive pretrial matters, a magistrate judge’s
ruling may be reversed only on a finding that the order is “clearly
erroneous or is contrary to law.”

3

Fed. R. Civ. P. 72(a); 28 U.S.C.

§ 636(b)(1). “A finding is ‘clearly erroneous’ when although there
is evidence to support it, the reviewing court on the entire
evidence is left with a definite and firm conviction that a mistake
has been committed.”

United States v. United States Gypsum Co.,

333 U.S. 364, 395 (1948).

In light of the broad discretion given

to a magistrate judge in the resolution of nondispositive discovery
disputes, the court should only overrule a magistrate judge’s
determination if this discretion is abused.

Detection Sys., Inc.

v. Pittway Corp., 96 F.R.D. 152, 154 (W.D. N.Y. 1982).
III.

Discussion

In its objections, CSX argues that the magistrate judge did
not

conduct

a

proportionality

analysis

with

respect

to

the

discovery of information contained in CSX’s outside counsels’ files
from the 10,000 non-Peirce Firm claims, but instead focused solely
on CSX’s ability to pay.

CSX argues that when properly considered

in light of the factors set forth in Rule 26(b)(2)(C), the burden
of providing discovery from CSX’s outside counsels’ files from the
10,000 non-Peirce Firm cases far outweighs any potential benefit to
the defendants.2

2

As CSX explains, the record is undisputed that the 10,000
non-Peirce Firm case files in question are located at 40 different
law firms scattered across the eastern United States and that it
will cost CSX an estimated $1.5 million to make information and
documents contained in those files available to Coulter. (CSX’s
Objs. 9.)
4

In discussing the burden of providing this discovery, CSX
first

discusses

the

Harron-related

documents,

arguing:

(1)

discovery of Harron-related documents from CSX’s outside counsels’
files

from

cumulative

the
and

10,000

non-Peirce

duplicative

because

Firm
CSX

cases
has

is

unreasonably

already

produced

thousands of these documents; and (2) to the extent Harron-related
documents from cases brought by law firms other than the Peirce
Firm are relevant at all, they are substantially less relevant than
documents related to Peirce Firm cases, which have already been
provided to Coulter.
Next, CSX turns to the ILO forms related to the 13,000
asbestos-related claims settled by CSX since 1993.

Again, CSX

objects to providing these documents insofar as they relate to nonPeirce Firm cases.

In support of this objection, CSX claims that

discovery of thousands of additional ILOs from cases brought by
other law firms is unreasonably cumulative and duplicative in light
of the volume of comparable information that has or otherwise will
be provided to Coulter.

CSX also argues that these ILOs are, at

best, only marginally relevant to the issues in this case.
Third, CSX objects to the portion of the March 27th Order that
requires it to provide certain information concerning each B reader
that CSX ever used to interpret a chest x-ray in an asbestos case
settled with the Peirce Firm between January 1, 1993 and July 1,
2007.

Again, CSX asserts that discovery of its doctors’ “read

5

rates” from the 10,000 non-Peirce Firm cases is unreasonably
cumulative and duplicative.
CSX then discusses information concerning experts used and
medical conditions alleged in each of the 13,000 asbestos-related
claims settled by CSX since 1993. According to CSX, the defendants
already have in their possession the information that they need to
make comparisons between Harron and non-Harron claims brought by
the

Peirce

Firm.

Thus,

CSX

argues

that

the

massive

burden

associated with the discovery of the non-Peirce Firm claims are of
little to no probative value.
Finally, CSX objects to the disclosure of documents related to
its knowledge of the use of screenings by law firms other than the
Peirce

Firm.

CSX

contends

that

information

concerning

its

knowledge of the use of screenings by law firms other than the
Peirce Firm is, at best, marginally relevant.

Also, CSX alleges

that it has or will produce documents relating to its knowledge of
the use of screenings by law firms other than the Peirce Firm to
the extent they are located in its own internal files or its
outside counsels’ files from the insurance arbitration.
The

central

magistrate

judge

question
conducted

before
a

this

proper

Court

Rule

26

is

whether

the

proportionality

analysis in determining that CSX must produce information and
documents contained in its outside counsels’ files from the 10,000

6

asbestos-related cases brought by non-Peirce law firms.

Rule 26

states, in pertinent part:
On motion or on its own, the court must limit the
frequency or extent of discovery otherwise allowed by
these rules or by local rule if it determines that:
(i) the discovery sought is unreasonably cumulative or
duplicative, or can be obtained from some other source
that is more convenient, less burdensome, or less
expensive;
(ii) the party seeking discovery has had ample
opportunity to obtain the information by discovery in the
action; or
(iii) the burden or expense of the proposed discovery
outweighs its likely benefit, considering the needs of
the case, the amount in controversy, the parties’
resources, the importance of the issues at stake in the
action, and the importance of the discovery in resolving
the issues.
Fed. R. Civ. P. 26(b)(2)(C).

As CSX explained in its objections,

Rule 26(b)(2)(C) “cautions that all permissible discovery must be
measured

against

the

yardstick

of

proportionality.”

Victor

Stanley, Inc. v. Creative Pipe, Inc., 269 F.R.D. 497, 523 (D. Md.
2010).

“Both the Supreme Court and the Federal Rules of Civil

Procedure Advisory Committee have emphasized the importance of the
26(b)(2)(C) proportionality limit on fair and efficient operation
of discovery rules.”

Dongguk Univ. v. Yale Univ., 260 F.R.D. 70,

73 (D. Conn. 2010).
Although CSX contends that the magistrate judge did not
conduct a proper proportionality analysis, this Court finds that
the record undermines that argument.

7

Importantly, during the

February 27, 2012 evidentiary hearing, counsel for CSX acknowledged
that the magistrate judge was considering Rule 26 in deciding
whether to order the discovery of documents in the non-Peirce Firm
cases.

Following questions by the court concerning the cost of

this discovery and CSX’s annual revenue, counsel for CSX stated, “I
understand

the

Court’s

concern

there.

We’re

talking

about

26(b)(3)3 that says the Court should weigh the relevance, the
issues at stake in the litigation, the burden to the parties.

And

I understand the Court’s point on the cost versus the total cost,
but I think the Court also has to weigh the relevance.”
Hr’g Tr. 89-90, Feb. 27, 2012.)

(Evid.

Counsel for CSX then went on to

argue his position as to the relevance of the documents, as well as
the burden of producing them. (Evid. Hr’g Tr. 90.)

Thus, not only

did CSX acknowledge that the magistrate judge was analyzing Rule 26
in making a determination as to the discovery of these documents,
it also had the opportunity to present argument as to the three
prongs of Rule 26(b)(2)(C). The record reveals that in addition to
hearing evidence on CSX’s ability to pay, the magistrate judge also
considered CSX’s arguments with regard to the relevance of the
documents and the burden of producing them.

This Court finds no

clear error in the magistrate judge’s rejection of CSX’s arguments

3

This Court assumes that CSX is referring to Rule 26(b)(2)(C),
as counsel later references the prongs of Rule 26(b)(2)(C).
8

that the production of these documents would be cumulative and
burdensome.
As the magistrate judge stated in his findings of fact, CSX
has “declined to narrow its allegations or enter into a stipulation
that the scope of the instant litigation is limited to those eleven
claimants mentioned in the complaint.” (March 27th Order at 4.)
This finding is based upon CSX’s representation at the February 27,
2012 evidentiary hearing that it cannot narrow its claims to the
eleven claimants mentioned in the complaint.

Even though CSX

stated that it will not attempt to prove frauds other than the
eleven claimants at issue, it also argued that the Peirce Firm’s
general asbestos practice and the settlement of claims other than
the eleven currently at issue could be very compelling evidence of
a conspiracy.

(Evid. Hr’g Tr. 79-80.)

Counsel for CSX went on to

confirm that CSX’s position is that it “can use other relevant
evidence that shows what was going on that goes beyond the eleven
people.” (Evid. Hr’g Tr. 81.) Considering the broad nature of the
allegations in this case, this Court finds no clear error in the
magistrate judge’s determination that there is no unreasonable
burden in ordering the requested discovery.
IV.

Conclusion

For the reasons set forth above, the March 27th Order (ECF No.
993) is hereby AFFIRMED and CSX Transportation, Inc.’s motion for
stay (ECF No. 1017) is DENIED.

9

IT IS SO ORDERED.
The Clerk is DIRECTED to transmit a copy of this memorandum
opinion and order to counsel of record herein.
DATED:

April 18, 2012

/s/ Frederick P. Stamp, Jr.
FREDERICK P. STAMP, JR.
UNITED STATES DISTRICT JUDGE

10