Scott Hutchison Enterprises, Inc. v. Cranberry Pipeline Corporation et al

Filing 162

MEMORANDUM OPINION and ORDER granting Defendants' 133 MOTION for Protective Order Regarding Plaintiffs FRCP 30(b)(6) Notices of Corporate Representative Deposition; granting Plaintiff's 136 MOTION to Compel Discovery Responses of Defend ants; directing Defendants to produce to Plaintiff within seven (7) days (from the date of the hearing on 9/19/2016) a copy of the documents more fully described herein; directing the parties to meet and confer upon completion of Plaintiff's rev iew and attempt to agree on the scope of any depositions to be taken pursuant to the second notices; directing the parties to take the Rule 30(b)(6) depositions at a location convenient for Defendants. Signed by Magistrate Judge Cheryl A. Eifert on 9/20/2016. (cc: counsel of record) (jsa)

IN THE UNITED STATES DISTRICT COURT
FOR THE SOUTHERN DISTRICT OF WEST VIRGINIA
HUNTINGTON DIVISION
SCOTT HUTCHISON ENTERPRISES, INC.,
Plaintiff,
v.

Case No.: 3:15-cv-13415

CRANBERRY PIPELINE CORPORATION and
CABOT OIL & GAS CORPORATION,
Defendants.
MEMORANDUM OPINION and ORDER
Pending before the court are Defendants’ Motion for Protective Order Regarding
Plaintiff’s FRCP 30(b)(6) Notices of Corporate Representative Deposition (ECF No. 133)
and Plaintiff’s Motion to Compel Discovery Responses of Defendants Cabot Oil & Gas
Corporation and Cranberry Pipeline Corporation. (ECF No. 136). On the 19th day of
September, 2016, the parties appeared, by counsel, for oral argument on the pending
motions. Having considered the written materials and the arguments, the court
GRANTS the motion for protective order, as set forth below, and GRANTS the motion
to compel, as set forth below.
I. Relevant Facts
This civil action involves a gas pipeline owned by Defendants, which is located on
real property purchased by Plaintiff for the purpose of developing a residential
subdivision (“Ridgewood Subdivision”). The pipeline (“C-1004 pipeline”) is 13 miles in
length, crosses over land in both Wayne and Cabell counties, and was constructed by
Owens Illinois Glass Company in approximately 1962. In 1970, Defendants, or a
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subsidiary or predecessor of Defendants, purchased the C-1004 pipeline and has used it
to transport gas since its purchase.
The dispute between the parties arose in 2013 when Plaintiff began improvements
on an existing roadway in the Ridgewood Subdivision, which involved excavating the
earth above and around the pipeline. When Defendants learned of the excavation
activities, they requested that Plaintiff cease work, fearing that the pipeline would rupture
and potentially cause bodily injury, or even death. Plaintiff ceased operations, and the
property has been sitting, undeveloped, since that time. Plaintiff claims that Defendants’
pipeline renders the Ridgewood Subdivision undevelopable. Consequently, Plaintiff
asserts a variety of claims against Defendants, including trespass, unjust enrichment, and
negligence. In turn, Defendants have filed a counterclaim, asserting inter alia that they
have a prescriptive easement for the portion of the C-1004 pipeline located in the
Ridgewood Subdivision. Defendants claim that they did not receive permission from
Plaintiff or any prior owner of the Ridgewood Subdivision to place, operate, or maintain
the C-1004 pipeline; that they have operated the C-1004 pipeline continuously for more
than ten years; that the operation of the C-1004 pipeline has been open and notorious;
and that the operation of the C-1004 pipeline has been adverse to Plaintiff and his
predecessors in title to the Ridgewood Subdivision.
In the course of discovery, Plaintiff filed interrogatories and documents requests,
seeking production of the evidence relied upon by Defendants to support their
prescriptive easement claim. In response, Defendants produced 4,447 pages of
documents maintained in a file labeled the C-1004 “pipeline file.” The pipeline file was
represented to contain all documents in Defendants’ possession related to construction,
operation, maintenance, repair, and relocation of the C-1004 pipeline. Upon receiving
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and reviewing the pipeline file, Plaintiff issued notices of 30(b)(6) deposition demanding
that each defendant supply a corporate designee to testify regarding the documents
produced from the pipeline file and explain how those documents were responsive to
Plaintiff’s original discovery requests. A week later, Plaintiff issued a second set of
deposition notices asking that Rule 30(b)(6) representatives also testify regarding the due
diligence that Defendants performed prior to purchasing the C-1004 pipeline, and the
purchase price, costs, terms, and conditions of Defendants’ acquisition of the C-1004
pipeline. In addition, Plaintiff filed a second set of discovery requests asking Defendants
if they had paid any money or provided goods or services in exchange for any right-of-way
or easement for the C-1004 pipeline, and to identify any right-of way agreements or
easements Defendants had obtained for any part of the C-1004 pipeline.
With respect to the first set of deposition notices, Defendants agreed to produce
Rule 30(b)(6) designees to testify regarding the relevance of the documents to their
prescriptive easement claim, but argued that it would be overly burdensome to prepare
witnesses to testify “regarding” the 4,447 pages unless Plaintiff could specify in advance
the particular documents and issues that they expected to raise with the witnesses. In
response, Plaintiff declined to further limit the topics to be covered in the Rule 30(b)(6)
deposition, asserting that (1) the topics were already narrow and (2) the documents had
been produced by Defendants; therefore, they should be familiar enough with them to
easily prepare their witnesses. As to the second set of notices, Defendants refused to
produce any witnesses, claiming that the topics were irrelevant and burdensome, given
that the C-1004 pipeline was purchased more than forty years ago. Moreover, Defendants
argued that Plaintiff was not entitled to information regarding the entire 13 miles of the
C-1004 pipeline, because only the Ridgewood Subdivision portion was at issue. Plaintiff
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replied that Defendants’ due diligence and the circumstances surrounding the acquisition
of the entire C-1004 pipeline were clearly relevant; consequently, Defendants should be
compelled to produce the witnesses as requested. When the parties could not resolve
these disagreements, Defendants filed a motion for protective order related to the Rule
30(b)(6) depositions, and Plaintiff filed a motion to compel the second set of discovery
requests.
II. Relevant Law
Federal Rule of Civil Procedure 26(b) provides that “[p]arties may obtain discovery
regarding any nonprivileged matter that is relevant to any party's claim or defense and
proportional to the needs of the case ….” Fed. R. Civ. P. 26(b)(1). Rule 26(b)(1) does not
exactly define relevancy, although information certainly is relevant if it logically relates to
a party’s claim or defense. Although the rule was recently amended to remove language
permitting the discovery of “any matter relevant to the subject matter involved in the
action” for good cause, and “relevant information … reasonably calculated to lead to the
discovery of admissible evidence,” the rule in its current form still contemplates the
discovery of information relevant to the subject matter involved in the action as well as
relevant information that would be inadmissible at trial. Fed. R. Civ. P. 26(b)(1), advisory
committee notes to 2015 amendment. Accordingly, it remains true that “relevancy in
discovery is broader than relevancy for purposes of admissibility at trial.”1 See Amick v.
Ohio Power Co., No. 2:13-cv-6593, 2013 WL 6670238, at *1 (S.D.W.Va. Dec. 18, 2013).
Moreover, notwithstanding Rule 26(b)(1)’s recent amendment placing an emphasis on

1 Federal Rule of Evidence 401 provides that “evidence is relevant if: (a) it has any tendency to make a fact
more or less probable than it would be without the evidence; and (b) the fact is of consequence in
determining the action.”

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the proportionality of discovery, the discovery rules, including Rule 26, remain subject to
“broad and liberal construction.” Eramo v. Rolling Stone LLC, 314 F.R.D. 205, 209 (W.D.
Va. Jan. 25, 2016); see also CTB, Inc. v. Hog Slat, Inc., No. 7:14-cv-157, 2016 WL 1244998,
at *3 (E.D.N.C. Mar. 23, 2016).
Simply because information is discoverable under Rule 26, however, “does not
mean that discovery must be had.” Schaaf v. SmithKline Beecham Corp., 233 F.R.D. 451,
453 (E.D.N.C. 2005) (citing Nicholas v. Wyndham Int'l, Inc., 373 F.3d 537, 543 (4th Cir.
2004)). For good cause shown under Rule 26(c), the court may issue a protective order,
restricting or prohibiting discovery that seeks relevant information when necessary to
protect a person or party from annoyance, embarrassment, oppression, or undue burden
or expense. Fed. R. Civ. P. 26(c). To succeed under the “good cause” standard of Rule
26(c), a party moving to resist discovery on the grounds of burdensomeness and
oppression must do more to carry its burden than make conclusory and unsubstantiated
allegations. Convertino v. United States Department of Justice, 565 F. Supp.2d 10, 14
(D.D.C. 2008) (the court will only consider an unduly burdensome objection when the
objecting party demonstrates how discovery is overly broad, burdensome, and oppressive
by submitting affidavits or other evidence revealing the nature of the burden); Cory v.
Aztec Steel Building, Inc., 225 F.R.D. 667, 672 (D. Kan. 2005) (the party opposing
discovery on the ground of burdensomeness must submit detailed facts regarding the
anticipated time and expense involved in responding to the discovery which justifies the
objection); Bank of Mongolia v. M & P Global Financial Services, Inc., 258 F.R.D. 514,
519 (S.D. Fla.2009) (“A party objecting must explain the specific and particular way in
which a request is vague, overly broad, or unduly burdensome. In addition, claims of
undue burden should be supported by a statement (generally an affidavit) with specific
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information demonstrating how the request is overly burdensome”). The party resisting
discovery, not the party seeking discovery, bears the burden of persuasion. See Kinetic
Concepts, Inc. v. ConvaTec Inc., 268 F.R.D. 226, 243–44 (M.D.N.C. 2010) (citing
Wagner v. St. Paul Fire & Marine Ins. Co., 238 F.R.D. 418, 424–25 (N.D. W.Va. 2006).
To insure that discovery is sufficient, yet reasonable, district courts have “substantial
latitude to fashion protective orders.” Seattle Times Co. v. Rhinehart, 467 U.S. 20, 36,
104 S.Ct. 2199, 81 L.Ed.2d 17 (1984).
III. Analysis
Defendants seek a protective order limiting the scope of the first Rule 30(b)(6)
notices of deposition. Defendants agree that witnesses should be offered to testify about
the relevancy of the documents produced in discovery, but argue that to prepare witnesses
to speak to the underlying events and circumstances surrounding the documents—some
of which are more than forty years old—would be unduly burdensome. During the
hearing, it became clear to the undersigned that Plaintiff never intended to question the
corporate representatives about the underlying events and circumstances that gave rise
to creation of each document. Instead, Plaintiff intended to explore the reasons why
Defendants believed each document was relevant to the claims and defenses in this case
and how each document supposedly proved Defendants’ alleged prescriptive easement.
In fact, the parties actually agreed on the purpose and scope of the depositions.
Nevertheless, Defendants maintain that a protective order is necessary to ensure
that Defendants are not expected to prepare witnesses beyond the expressed relevance of
the documents. For that reason, and bearing in mind the significant obligation of a party
to properly prepare its Rule 30(b)(6) designees, the undersigned GRANTS the motion
for a protective order. Defendants shall produce designees that are prepared to testify
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regarding the relevancy of the pipeline file documents and the role the documents play in
supporting Defendants’ claims and defenses. Conversely, Defendants are not required to
prepare the witnesses to testify regarding the factual circumstances, events, or details
underlying the documents, or the various reasons for creation of the documents.
Plaintiffs’ motion to compel and Defendants’ motion for protective order
concerning the second set of Rule 30(b)(6) notices can be addressed together. Plaintiffs
seek information pertinent to Defendants’ due diligence and acquisition of the C-1004
pipeline. Specifically, Plaintiffs want to know whether Defendants obtained rights-of-way
or easements on any parcels of property over which the C-1004 pipeline traverses;
whether Defendants purchased the pipeline from Owens Illinois Glass Company subject
to easements and rights-of-way; and what due diligence Defendants performed in
ensuring that the C-1004 pipeline came with written permission to cross land that did not
belong to Defendants or Owens Illinois Glass Company, their predecessors and
successors. Defendants contend that Plaintiff should only be permitted to discover
information related to the portion of the C-1004 pipeline that crosses the Ridgewood
Subdivision. The undersigned disagrees with Defendants. As Plaintiff points out, the steps
that Defendants took to obtain rights-of-way and easements for the entire pipeline may
uncover admissible circumstantial evidence contrary to their claim of a prescriptive
easement. For example, if the evidence demonstrates that Defendants obtained written
easements or rights-of-way from every other property owner in the remaining 12-plusmile length of the C-1004 pipeline, which allowed it to operate over private property, then
even in the absence of similar paperwork for the Ridgewood Subdivision, Plaintiff can
argue that Defendants must have taken the same steps with the prior owners of the land
now identified as the Ridgewood Subdivision. Clearly, the evidence is relevant.
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Defendants contend, however, that the information would be overly burdensome
to collect and provide. Nonetheless, during the hearing, Defendants admitted that they
have documents pertaining to easements, right-of-way agreements, licenses, and other
documentation of written permission for placement of the C-1004 pipeline on each parcel
of land that it traverses located in a “land file,” which have not been produced to Plaintiff.
Defendants also indicated that this land file is likely less voluminous than the pipeline
file. Accordingly, producing a copy of the land file is not unduly burdensome. Thus,
Defendants are ORDERED to produce to Plaintiff within seven (7) days (from the date
of the hearing) a copy of all such documents contained in the land file. Because Plaintiff’s
subsequent review of the land file may significantly limit, or even render unnecessary, the
second notices of Rule 30(b)(6) depositions, the parties are ORDERED to meet and
confer upon completion of Plaintiff’s review and attempt to agree on the scope of any
depositions to be taken pursuant to the second notices. As the parties have agreed that
the Rule 30(b)(6) depositions will be taken at a location convenient for Defendants—most
likely in Pittsburgh where Defendants have their home offices—the court ORDERS the
parties to do so.
The Clerk is instructed to provide a copy of this Order to counsel of record.
ENTERED: September 20, 2016

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