Foster et al v. United States Environmental Protection Agency et al
Filing
167
MEMORANDUM OPINION AND ORDER this matter is recommitted to the magistrate judge to address the substance of plaintiffs' 133 motion for production of documents claimed privileged; directing that plaintiffs' 159 objections to the mag istrate judge's order are sustained; the magistrate judge's 154 order dated 9/26/2016 is vacated; discovery in this case is reopened with respect to plaintiffs' First Amendment retaliation claim, as set forth in an amended sched uling order entered this same date; and this matter is recommitted to the magistrate judge as heretofore and, specifically, to hear and determine: the merits of plaintiffs' request for the use of forensic discovery to ascertain the origin of the Political Research Document and, if found appropriate, the extent to which forensic discovery is to be ordered; and the substance of plaintiffs' request for production respecting documents claimed privileged; the court notes that the new accompanying scheduling order is necessitated by the recent diversionary litigation that has culminated in the magistrate judge's order of 9/26/2016, and this order by the court, and as directed and set forth more fully herein. Signed by Judge John T. Copenhaver, Jr. on 11/3/2016. (cc: counsel of record; any unrepresented parties) (taq)
UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF WEST VIRGINIA
AT CHARLESTON
RON FOSTER, FOSTER FARMS, LLC,
and MARLETING & PLANNING SPECIALISTS
LIMITED PARTNERSHIP,
Plaintiffs,
v.
Civil Action No. 2:14-16744
UNITED STATES ENVIRONMENTAL
PROTECTION AGENCY and GINA
MCCARTHY, in her official capacity as
Administrator,
Defendants.
MEMORANDUM OPINION AND ORDER
Pending is plaintiffs’ objection to the magistrate
judge’s September 26, 2016 order, filed September 30, 2016.
On August 22, 2016, the court granted plaintiffs’
motion to amend their complaint to include a First Amendment
retaliation claim.
See ECF Doc. No. 148.
That same date, the
court entered a second order, among other things, finding good
cause to reopen discovery in relation to the First Amendment
claim until October 28, 2016.
See ECF Doc. No. 149.
The court
reopened discovery with respect to the First Amendment claim so
that plaintiffs could, among other things, determine the source
of the Political Research Document found by plaintiffs during
the course of discovery.
See id.
1
Indeed, the Political
Research Document is the very essence of the First Amendment
claim allowed by the court.
On September 26, 2016, Magistrate Judge Dwane Tinsley
entered an order denying plaintiffs’ motion for limited
reopening of discovery due to plaintiffs’ lack of diligence in
seeking the origin of the Political Research Document and
denying plaintiffs’ motion for production of documents claimed
privileged as untimely.
See Magistrate Judge’s Sept. 26, 2016
Order (ECF Doc. No. 154).
September 30, 2016.
Plaintiffs’ objections followed on
Defendants responded to the objections on
October 17, 2016 and plaintiffs filed a reply on October 27,
2016.
According to the magistrate judge, because plaintiffs
did not diligently pursue their claim during discovery, they
have not met the good cause standard to reopen discovery.
Magistrate Judge’s Sept. 26, 2016 Order at 11-13.
The
magistrate judge’s determination that good cause does not exist
to reopen discovery is based upon his findings that: (1)
plaintiffs did not diligently pursue the source of the Political
Research Document while discovery was open; and (2) although
discovery closed on September 18, 2015, plaintiffs waited until
February 10, 2016 to move to reopen discovery without giving any
reason for the delay.
Id. at 5-11.
2
When the court granted the plaintiffs’ motion to amend
the complaint to add a First Amendment retaliation claim, it did
so based upon the existence of the Political Research Document.
That same day, the court found that good cause existed and
granted plaintiffs’ motion to reopen discovery with regard to
the First Amendment retaliation claim, in part so that
plaintiffs could determine why and how the Political Research
Document came to be in the EPA’s possession, which plaintiffs
had thus far failed to determine despite its efforts to do so.
Plaintiffs diligently pursued the source of the
Political Research Document after they learned of its existence.
Plaintiffs discovered that document in June 2015, when it was
produced by defendants during discovery.
After plaintiffs
became aware of the Political Research Document, they submitted
three sets of discovery requests, deposed six of defendants’
representatives and issued a set of interrogatories, but were
still unable to discover its origin.
Moreover, plaintiffs had good reason to wait until
February 2016 to move to reopen discovery.
Plaintiffs moved to
depose Regional Administrator Shawn M. Garvin (“Garvin”) on
September 14, 2015, which was necessary under the federal rules
given that the limit of ten individuals had already been
deposed.
See Fed. R. Civ. P. 30(a)(2)(A)(i).
3
Although the
magistrate judge stated in his order that the motion for leave
to depose Garvin did not focus on the Political Research
Document, the contents of plaintiffs’ motion show otherwise.
See Magistrate Judge’s Sept. 26, 2016 Order at 11-12.
Plaintiffs’ motion states that in part, the “purpose of the
deposition will be to find out what information Mr. Garvin knows
regarding certain politically motivated research conducted on
[plaintiffs].”
Pl. Mot. for Leave to Depose Regional
Administrator Garvin at 1.
The hearing on the motion was not
held by the magistrate judge until January 12, 2016, and on
January 15, 2016, the magistrate judge denied plaintiffs’ motion
to depose Garvin, but permitted plaintiffs to send
interrogatories to him.
See ECF Doc. No. 130.
Plaintiffs did
not receive answers to Garvin’s interrogatories until February
5, 2016.
Despite asking Garvin generally about political
research on individuals at EPA Region III, the interrogatories
did not provide any information on the origin of the Political
Research Document.
Plaintiffs then filed the motion to reopen
discovery five days later, on February 10, 2016.
Inasmuch as the deposition of Garvin was to focus in
part on the origin of the Political Research Document, it was
reasonable for plaintiffs to wait until they received the
answers to Garvin’s interrogatories to move to reopen discovery
4
because his answers may have alleviated the need to do so.
Furthermore, in the court’s order granting the reopening of
discovery, the court stated that it considered defendants’
argument that the amendment to the complaint was untimely, but
still found the amendment permissible and additionally found
good cause to reopen discovery based on the new claim.
Doc. 149 at 3.
See ECF
Accordingly, the magistrate judge’s
determination that good cause did not exist to reopen discovery
to permit plaintiffs further time to determine the origin of the
Political Research Document was clearly erroneous and not in
keeping with the orders of the district court entered on August
22, 2016.
In view of the fact that plaintiffs have conducted
extensive discovery and are still unable to determine the origin
of the Political Research Document, and that the court
previously found that good cause existed for plaintiffs to
reopen discovery with respect to its First Amendment claim, the
court recommits this case to the magistrate judge to determine
whether the forensic discovery requested by plaintiffs is an
appropriate means to ascertain the origin of the Political
Research Document.
The magistrate judge also found that plaintiffs’
motion for production of documents claimed privileged was
5
untimely because plaintiffs sought to compel the disclosure of
documents provided to them on August 18, 2015, and that under
Local Rule 37.1(c), any motion to compel these documents was due
by September 18, 2015.
at 13-14.
Magistrate Judge’s Sept. 26, 2016 Order
Local Rule 37.1(c) provides that “Motions to compel
or other motions in aid of discovery not filed within 30 days
after the discovery response or disclosure requirement was due
are waived, and in no event provide an excuse, good cause or
reason to delay trial or modify the scheduling order.”
Plaintiffs’ motion was not filed within this time and was filed
over a month after the expiration of the then discovery
deadline.
Id.
The magistrate judge states in his order that the
privilege log was provided to the parties on August 18, 2015.
Id. at 13.
However, as plaintiffs note in their objection,
defendants supplemented their document production and the
privilege log on February 18, 2016, after plaintiffs’ February
10, 2016 motion was filed.
Defendants had not completely
disclosed existence of all of the documents claimed privileged
even when plaintiffs’ filed their motion.
In addition, after the motion was filed, the court, as
noted, allowed plaintiffs to amend their complaint to add a
First Amendment retaliation claim, reopened discovery relating
6
to that claim, and entered an amended schedule for the case.
See ECF Doc. No. 148, 149.
In light of the court’s order
reopening discovery, defendants are not unduly prejudiced by
plaintiffs seeking the production of the documents claimed
privileged within the extended period for discovery.
Accordingly, the court finds that plaintiffs’ motion
to compel production of documents claimed privileged is not
untimely.
See Mills v. E. Gulf Coal Preparations, Co., LLC, 259
F.R.D. 118, 134 (S.D. W. Va. 2009) (VanDervort, Mag. J.)
(granting the plaintiff’s motion to compel although it was not
timely filed under Local Rule 37.1(c) because the opposing party
did not cooperate in discovery, the discovery deadline had since
been extended, and the defendants were not prejudiced by the
plaintiff’s delay in filing the motion, and additionally noting
that “the Court’s primary objective is to consider the parties’
claims and defenses on their merits and . . . the Court is
generally disinclined to dismiss matters on the basis of
failures to comply with non-jurisdictional time limits.”); see
also Mordesovitch v. Westfield Ins. Co., 235 F. Supp. 2d 512,
517-18 (S.D. W. Va. 2002) (Stanley, Mag. J.) (finding that “it
is more efficient to decide the pending motions on the merits
rather than on a technical failure to comply with the thirty-day
deadline.”).
This matter is recommitted to the magistrate judge
7
to address the substance of plaintiffs’ motion for production of
documents claimed privileged.
For the reasons set forth above, the court ORDERS as
follows:
1.
That plaintiffs’ objections to the magistrate judge’s
order be, and they hereby are, sustained;
2.
That the magistrate judge’s order, dated September 26,
2016, be, and it hereby is, vacated;
3.
That discovery in this case be, and it hereby is,
reopened with respect to plaintiffs’ First Amendment retaliation
claim, as set forth in an amended scheduling order entered this
same date; and
4.
That this matter is recommitted to the magistrate
judge as heretofore and, specifically, to hear and determine:
(a)
the merits of plaintiffs’ request for the use of
forensic discovery to ascertain the origin of the
Political Research Document and, if found appropriate,
the extent to which forensic discovery is to be
ordered; and
(b)
the substance of plaintiffs’ request for production
respecting documents claimed privileged.
8
THOMAS PARKER,
Plaintiff,
v.
Civil Action No. 15-14025
The court notes that the new accompanying scheduling
THE DOW CHEMICAL COMPANY LONG TERM DISABILITY PROGRAM,
an Employee Welfare Benefits Plan,
order is necessitated by the recent diversionary litigation that
LIBERTY LIFE ASSURANCE COMPANY OF BOSTON,
a Massachusetts Corporation, and
has culminated in the magistrate judge’s order of September 26,
DOES 1 THROUGH 10, inclusive,
2016, and this order by the court.
Defendants.
That new schedule provides a
further limited period for additional discovery and is fixed
ORDER AND NOTICE
with the expectation that the recommitted matters will receive
Pursuant to L.R. Civ. P. 16.1, it is ORDERED that the
following dates are hereby fixed as the time by or on which
expedited consideration. This case has been pending for two and
certain events must occur:
a half years, a significant portion of which is due to the
01/28/2016
Motions under F.R. Civ. P. 12(b), together with
supporting briefs, memoranda, affidavits, or other
such matter in support thereof. (All the
court’s delay in passing on plaintiffs’ motion to amend motions
unsupported by memoranda will be denied without
complaint, filed October 5, 2015, and to L.R. Civ. P. 7.1 (a)).
prejudice pursuant fully briefed by November
02/08/2016
Last day for Rule 26(f) meeting.
2, 2015, which plaintiffs supplemented with a notice regarding
02/15/2016
Last day to file Report of Parties= Planning
new controlling authority to See L.R. Civ. P. 16.1.
which defendants responded in June
Meeting.
2016, following which the court entered its decision to allow
02/22/2016
Scheduling conference at 4:30 p.m. at the Robert C.
Byrd United in its order of August 22, 2016.
the amendment of the complaint States Courthouse in Charleston, before
the undersigned, unless canceled. Lead counsel
directed scheduling
Compliance with the amended to appear. order entered this date
02/29/2016
Entry of scheduling order.
will require the diligent assistance of the court and counsel.
03/08/2016
Last day to serve F.R. Civ. P 26(a)(1) disclosures.
The Clerk is directed to forward copies of this order
The Clerk is requested to transmit this Order and
Notice to of counsel of record and to any unrepresented
to all counsel all record and any unrepresented parties.
parties.
DATED: November 3, 2016
DATED: January 5, 2016
John T. Copenhaver, Jr.
United States District Judge
9
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