March 24, 2011
Dennis David Altman, Amy Marie Hartford, Amy Jo Leonard, Brett Andrew Kravitz, Elaine Kristen Lutz, Nicholas William Schwandner, D. David Altman Co. LPA, Justin Derek Newman, Cincinnati, OH, Lawrence R. Altman, North Oaks, MN, for Plaintiffs.
Louis E. Tosi, Cheri Ann Budzynski, James H. O'Doherty, Shumaker, Loop & Kendrick, LLP, Toledo, OH, Michael A. Snyder, Shumaker Loop & Kendrick LLP, Columbus, OH, for Defendants.
*1 This matter is before the Court on plaintiffs' motion to compel responses to Interrogatories 7(c) and 7(f) (Doc. 55) and defendants' memorandum in opposition (Doc. 56). In compliance with the Court's Order of December 22, 2010 (Doc. 40), the parties have submitted briefs on whether the information sought by subsections (c) and (f) of Interrogatory 7 is discoverable.
Plaintiffs request an order compelling answers to plaintiffs' Interrogatories 7(c) and 7(f) which seek information about the Flue Gas Desulfurization (“FGD”) system, a type of air pollution control technology at defendants' Facility. Plaintiffs' Interrogatory No. 7 provides:
Interrogatory No. 7: Other than as identified in Interrogatory No. 6,
identify the following: (a) the reason(s) for P901 and P902 Flue Gas Desulfurization (FGD) system Operational Failures or Malfunctions from 2005 to the present (“Other FGD Failure(s)”), including any Malfunction(s) or Operational Failure(s); (b) the Root Cause of each Other FGD Failure; (c) each report, investigation, photograph, presentation, written explanation, email, and document relating to each Other FGD Failure; (d) each corrective action or repair or maintenance performed in response to each FGD Failure; (e) each Other FGD Failure-related incident of (i) bypass venting, (ii) emission release, (iii) CEMS downtime, and (iv) opacity observation; and (f) each Other FGD Failure-related emission calculation or emission estimate.
At issue are subsections (c) and (f) of Interrogatory 7. Subsection (c) seeks each report, investigation, photograph, presentation, written explanation, email, and document relating to each Other FGD failure from 2005 to present. Subsection (f) seeks each Other FGD Failure-related emission calculation or emission estimate from 2005 to present. Defendants object to answering subsections (c) and (f) as unduly burdensome.
Plaintiffs assert that the information sought by Interrogatories 7(c) and 7(f) is relevant. Plaintiffs state that during operational failures of the FGD system, waste gas is “bypassed” through vent stacks which do not have pollution controls. During such failures, emissions are released from the stacks into the air. Because these vents have no air pollution controls, waste gas is emitted directly into the air. Plaintiffs assert that FGD failures result in emissions causing personal and property injuries to plaintiffs and are directly relevant to plaintiffs' federal law and common-law claims. While defendants have produced and referred to the Quarterly Deviation Reports
in response to subsections (a), (b), (d), and (e) of Interrogatory 7, plaintiffs assert they are entitled to the internal information
held by defendants on the Other FGD failures, not just the information contained in the publicly
available Quarterly Deviation Reports. Interrogatory 7(c) is aimed at obtaining this internal information.
Plaintiffs also assert the emission calculations and estimates sought in response to Interrogatory 7(f) are relevant to evaluating the potential and actual impact of the Other FGD failures on the environment and ambient air. Plaintiffs contend that such calculations and estimates are needed to show the chemical composition of emissions from the Facility, the concentrations of the emissions, and the measures being taken (or not taken) to correct and prevent these emissions, as well as the impact of the emissions on plaintiffs and their properties.
*2 Defendants do not question the relevancy of the information sought by Interrogatories 7(c) and 7(f). Therefore, it appears there is no dispute that the information sought under subsections (c) and (f) is relevant or appears reasonably calculated to lead to discoverable evidence under Rule 26(b)(1).
Nevertheless, defendants argue that Interrogatories 7(c) and 7(f) are overbroad and responding to these subsections would be unduly burdensome and expensive. Defendants assert there are several hundred discrete Other FGD failures that have been reported to the regulatory authorities since the Facility opened in 2005. Defendants contend that the burden of identifying documents and emission calculations “relating to” hundreds of discrete FGD events from 2005 to the present would outweigh any benefit to plaintiffs in receiving such information.
The question for the Court is whether “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 discovery in resolving the issues.” Fed.R.Civ.P. 26(b)(2)(C)(iii). If so, the Court must limit the extent of discovery otherwise allowed by the Federal Rules. Id.
Plaintiffs contend the information sought in response to subsections (c) and (f) of Interrogatory 7 is similar to that sought under Interrogatories 5 and 6
and, when ordered to do so by the Court (see
Doc. 40 at 1–3), defendants were readily able to provide such information despite their initial objections of overbreadth and burden. Plaintiffs also argue the burden is minimal on defendants, whose custodians can readily identify the records, in comparison to that on plaintiffs.
Defendants maintain that responding to Interrogatories 7(c) and 7(f) would be unduly burdensome and oppressive. To illustrate the burden, defendants relate their experience in responding to subsections (c) and (f) of Interrogatories 5 and 6. Defendants state they expended 16 hours to review and identify documents in response to Interrogatory 5 (seeking information on the February 2009 stack collapse) and Interrogatory 6 (seeking information on the October 2009 FGD failure) and identified 338 documents associated with the stack collapse and 293 documents associated with the October 2009 failure.
In contrast to Interrogatories 5 and 6, which cover discrete events in time, Interrogatories 7(c) and 7(f) cover the period from 2005 to the present. Defendants state that for this six-year time period, they have reported several hundred malfunction and deviation events to the Portsmouth Local Air Agency in their Quarterly Deviation Reports. To properly answer Interrogatories 7(c) and 7(f), defendants state they would have to cull through almost 129,000 pages of documents (already produced to plaintiffs) to identify each and every document and emission calculation that may be “related to” these hundreds of unique events. Based on the time expended responding to Interrogatories 5 and 6, defendants estimate that responding to Interrogatories 7(c) and 7(f) would take five to eight hours for each
of the individual Other FGD events—events which total in the hundreds.
In other words, defendants estimate it would take approximately 1,000 to 1,600 additional hours (or 25 to 40 weeks working 40 hours per week) to review and identify documents responsive to two subsections of a single interrogatory. (Doc. 56 at 4).
*3 Defendants also maintain that the answers to Interrogatories 7(c) and 7(f) would likely yield little additional relevant information to that already provided in the Quarterly Deviation Reports. They assert that the responses to subsections (a), (b), (d), and (e) of Interrogatory 7 via the Quarterly Deviation Reports have provided plaintiffs with substantial information relating to the hundreds of Other FGD failures that have occurred at the Facility. The Quarterly Deviation Reports identify: (1) the date of the event, (2) the time of the event, (3) the associated equipment involved, (4) a description and cause of the event, and (5) any corrective actions taken for each of the malfunctions and deviations at defendants' Facility since 2005. (Doc. 56, citing PTI Permit No. 07–00511, A.4.C., p. 5–6). Defendants contend that producing bates ranges for every document and emission calculation “relating to” every Other FGD malfunction or deviation event would yield little benefit to plaintiffs in light of the information already provided in response to the four other subsections of Interrogatory 7, and the time and expense involved in compelling defendants' answers to subsections (c) and (f) would outweigh any likely benefit plaintiffs would obtain from the additional information.
Again, defendants relate their experience in responding to Interrogatories 5(c) and 5(f) in this regard. Among the many documents “relating to” the February 2009 stack collapse that defendants produced in response to Interrogatory 5 were an email seeking price quotes for a quality insurance inspector to inspect the replacement stack and a spreadsheet that tracked malfunctions. Defendants assert that while these two documents were, broadly speaking, “related to” the February 2009 stack collapse and therefore identified in response to Interrogatory 5, the likely benefit of this information, in comparison to the 16 hours expended by defendants in identifying all the documents “relating to” the stack collapse, is minimal. (Doc. 56 at 5 and citations therein). Defendants contend that while these documents “relate to” the stack collapse and are responsive to the interrogatory, they provide little more information than that already contained in the Quarterly Deviation Reports. Defendants argue that because plaintiffs have already received the same documents defendants would have to review to accomplish this task, plaintiffs are equally cable of reviewing such documents if plaintiffs deem the information worthy of the time and expense of the search.
The Court is persuaded that the likely benefit to plaintiffs of obtaining all documents and emission calculations which “relate to” every Other FGD malfunction or deviation under Interrogatories 7(c) and 7(f) is outweighed by the expense and burden on defendants of producing such information. This Court has the “discretion to limit the scope of discovery where the information sought is overly broad or would prove unduly burdensome to produce.” Info–Hold, Inc. v. Sound Merchandising, Inc., 538 F.3d 448, 457 (6th Cir.2008) (quotation omitted). Here, defendants have demonstrated that compelling responses to subsection (c) and (f) of Interrogatory 7 would be unduly burdensome and expensive. Defendants have illustrated the time and effort undertaken to identify documents responsive to Interrogatories 5 and 6–interrogatories that were limited in time to discrete events-as previously ordered by this Court. Interrogatories 7(c) and 7(f) are not limited to discrete events in time, but rather cover hundreds of Other FGD malfunctions and deviations over a six year period. Given the amount of time and expense it would take to cull this information from the thousands of documents already produced by defendants and in light of the information already provided in the Quarterly Deviation Reports with respect to these Other FGD events, and without any particular showing by plaintiffs of the benefit to be obtained from such information, the Court exercises its discretion to limit discovery with respect to Interrogatories 7(c) and 7(f). Plaintiffs have not proposed any limitation on the documents or emission calculations they seek for hundreds of events associated with Other FGD failures or malfunctions even though they have received the Quarterly Deviation Reports in response to the other four subsections of Interrogatory 7 for such events. Nor have plaintiffs proposed any alternatives to their original proposal seeking all documents and emission calculations for each of the hundreds of Other FGD events. Plaintiffs assert they are entitled to obtain non-public information “relating to” Other FGD failures or malfunctions, but they do not specify what they hope to obtain in addition to the information already produced by defendants via the Quarterly Deviation Reports. Thus, the Court is unable to conclude that the likely benefit of the requested discovery outweighs the burden associated with obtaining it.
*4 Accordingly, plaintiffs' motion to compel responses to Interrogatories 7(c) and 7(f) (Doc. 55) is DENIED.
Interrogatory 6 sought information on one specific FGD event, i.e.,
the October 2009
Flue Gas Desulfurization system's Operational Failures or Malfunctions. (Doc. 55, Exh. A).
Under the Facility's Permit–to–Install, defendants are required to report both malfunctions and deviations to the Portsmouth Local Air Agency via Quarterly Deviation Reports. (Doc. 56, citing PTI Permit No. 07–00511, A.4.C., p. 5–6).
The Court previously ordered defendants to provide complete responses to subsections (c) and (f) of Interrogatories 5 and 6 by specifically referencing bates stamped page numbers and identifying the specific search terms used to retrieve electronic documents responsive to Interrogatories 5 and 6. (Doc. 40). Interrogatory 5(c) sought each report, investigation, photograph, presentation, written explanation, email, and document relating to the February 2009 Stack Collapse. Subsection (f) sought each Stack Collapse-related emission calculation/emission estimate. Interrogatory 6(c) sought each report, investigation, photograph, presentation, written explanation, email, and document relating to the 10/09 FGD Failure. Subsection (f) sought each 10/09 Failure related emission calculation or emission estimate. Defendants were also ordered to provide supplemental information not contained in the 2009 Fourth Quarter Deviation Report that is responsive to Interrogatory No. 6. (Doc. 40).
Defendants state that while they were able to use search terms to narrow the results for Interrogatories 5 and 6 because each related to discrete events in time, the breadth of the request in Interrogatoris 7(c) and 7(f) would prohibit the use of search terms and require a search of all hard copy documents. (Doc. 56 at 4).
End of Document.