93 C 6956
United States District Court, N.D. Illinois, Eastern Division
March 20, 1999
MEMORANDUM OPINION AND ORDER
*1 Plaintiffs the Nicholas J. Murlas Living Trust, the Mary Lou Murlas Living Trust, and the George J. Murlas Living Trust (collectively “Murlas” or “plaintiffs”) have moved to compel discovery against Mobil Oil Corporation (“Mobil”). [Docket number 56]. This motion to compel is now fully briefed and ripe for decision. After having reviewed the pleadings, exhibits, and discovery submitted, this court decides as follows.
The complaint arises out of a lease agreement in which Mobil leased real property from plaintiffs and operated a gas station thereon. Plaintiffs subsequently discovered that the property was contaminated with hydrocarbons which had leaked from Mobil's underground storage tanks into the soil and groundwater. Plaintiffs allege violations of the Resource Conservation and Recovery Act (“RCRA”), breach of lease covenant, breach of certain indemnity agreements, breach of the Mobil–Groundwater Technology, Inc. (“GTI”) contract as a third-party beneficiary, intentional misrepresentation, negligent misrepresentation, negligence, restitution, quasi-contract, and unjust enrichment.
Permissible Scope of Discovery
Discovery in federal civil cases is governed by Rule 26 of the Federal Rules of Civil Procedure. Rule 26 allows parties to have discovery regarding
any matter, not privileged, which is relevant to the subject matter involved in the pending action, whether it relates to the claim or defense of the party seeking discovery or to the claim or defense of any other party, including the existence, description, mature, custody, condition, and location of any books, documents, or other tangible things and the identity and location of persons having knowledge of any discoverable matter. The information sought need not be admissible at the trial if the information sought appears reasonably calculated to lead to the discovery of admissible evidence.
Fed.R.Civ.P. 26(b)(1). Discovery may be limited by local rule. Fed.R.Civ.P. 26(b)(2). Discovery will also be limited by the court if it concludes that:
(i) the discovery sought is unreasonably cumulative or duplicative, or is obtainable from some other source that is more convenient, less burdensome, or less expensive; (ii) the party seeking discovery has had ample opportunity by discovery in the action to obtain the information sought; or (iii) the burden or expense of the proposed discovery outweighs its likely benefit, taking into account the needs of the case, the amount in controversy, the parties' resources, the importance of the issues at stake in the litigation, and the importance of the proposed discovery in resolving the issues....
Murlas moves to compel the answer or production to several different potentially discoverable items. The court will address each seriatim.
1. Production of Charles Sutter for Deposition
Plaintiffs allege that Mobil has failed to produce Charles Sutter, an in-house attorney with Mobil, for deposition in Chicago. Judge Plunkett ordered that Sutter and several other Mobil employees be produced for deposition. (See
Response at p. 5). Plaintiffs state that they have already made one trip to Fairfax, Virginia to depose witnesses, and do not wish to travel to Virginia again to depose Mr. Sutter. Sutter was allegedly on the schedule to be deposed during plaintiffs' trip until two or three days before the trip, when plaintiffs were informed that he was going to Japan on business. Plaintiff requests that Sutter now be produced for deposition in Chicago.
*2 Mobil does not contest that Sutter may be deposed. However, Mobil requests that he be deposed in Fairfax instead of Chicago. Mobil points to Fed.R.Civ.P. 30, governing the taking of depositions, and notes that the rule allows a party to take the deposition of any person without leave of the court, and that the attendance of that witness may be compelled by subpoena pursuant to Rule 45. Rule 45(B)(iii) states that a court may quash or modify a subpoena that requires a person who is not a “party or an officer of a party” to incur substantial expense or travel more than 100 miles. However, that rule also states that if the party in whose behalf the subpoena is issued shows a “substantial need” for the testimony that cannot be otherwise met without substantial hardship, and that person assures the potential deponent that he will be reasonably compensated, the court may order appearance of that person. Fed.R.Civ.P. 45(B)(iii).
Neither Murlas nor Mobil has alleged that Sutter is an officer of Mobil. As a non-party deponent to this action, Sutter is not subject to the jurisdiction of this court. In re Corrugated Container Antitrust Litigation, 655 F.2d 748, 750 n. 2,rev'd other grounds,
661 F.2d 1145 (7th Cir.1981). A deponent can be required to appear at a deposition only in the county in which he resides or is employed or transacts business in person. See
Fed.R.Civ.P. 45(3)(A)(ii). Thus, this court cannot compel Sutter to appear at a deposition here in Chicago. Judge Plunkett has ordered Mobil, who is subject to the jurisdiction of this court, to produce Sutter. Mobil has affirmed this duty. The plaintiffs have alleged no undue hardship that could occur by conducting the deposition in Fairfax, except that plaintiffs' counsel is unwilling to make the trip. The court concludes that the plaintiffs should travel to Fairfax to complete Sutter's deposition, or conduct a telephonic deposition pursuant to Fed.R.Civ.P. 30(b)(7). Mobil is cautioned, however, that Sutter is to be available on the date set for the deposition.
2. Production of Documents Used to Refresh Recollection
Plaintiffs next argue that they are entitled to certain documents that were used by Tom Rush, Robert Johnson, and Craig LaBelle to refresh their recollection of events pertaining to this litigation prior to their depositions. Mobil asserts that those documents are protected by the attorney-client privilege and the work-product doctrines, but has agreed to tender the documents. Nonetheless, Mobil does not concede that plaintiffs have a right to reopen the depositions. Plaintiffs contend that they have a right to reopen the depositions and question the deponents on the documents.
Rule 612 of the Federal Rules of Evidence provides that if a writing used to refresh a witness' memory before a hearing, “an adverse party is entitled to have the writing produced at the hearing,
to inspect it, to cross-examine the witness thereon, and to introduce in evidence those portions which relate to the testimony of the witness. [Emphasis added]” Fed.R.Evid. 612. This entitlement is created so the adverse party may search out any discrepancies between the writing and the testimony. Wheeling–Pittsburgh Steel Corp. v. Underwriters Laboratories, Inc. et al., 81 F.R.D. 8, 10 (N.D.Ill.1978). This rule furthers the purpose of the federal discovery rules to ascertain the truth. See id.
*3 The court concludes that the depositions of Rush, Johnson, and LaBelle should be reopened for the limited purpose of cross-examining them on the documents they used to refresh their recollection of this matter. Mobil should have produced those documents at the time of the depositions,
and now gives no reason for not doing so. Further, plaintiffs are entitled to cross-examine the witnesses on the documents and so doing may aid in the ascertainment of the truth.
The case cited by Mobil, U.S. v. Blas, 947 F.2d 1320 (7th Cir.1991), does not counsel to the contrary. In Blas,
the Court of Appeals reviewed a district court's decision to deny access to several documents used to refresh the recollection of a DEA agent. The trial court was concerned with its role as arbiter of what portions of the documents would have to be redacted in order to turn those documents over to the defense, and the resultant delay of the trial. U.S. v. Blas, 947 F.2d at 1326. The appeals court concluded that the denial was not a clear abuse of the trial court's discretion, and therefore declined to reverse the trial court's decision. U.S. v. Blas, 947 F.2d at 1326. Blas
is distinguishable from the case at bar not only because the “clear abuse of discretion” standard does not apply but because here, Mobil has already agreed to turn over the documents intact. This court will not have to use judicial resources in wading through and redacting them.
However, this court will not require Mobil to pay the plaintiffs' expenses with regard to these additional depositions. Plaintiffs must travel to Fairfax in any event to depose Mr. Sutter. Imposition of costs is a drastic measure, and one that this court does not take lightly. Plaintiffs have not alleged, nor does this court surmise, that Mobil acted in bad faith or with wrongful intent in not producing the documents at the time of the depositions. Therefore, the costs of returning to Fairfax will not be imposed on Mobil. However, the court cautions Mobil that it should make every reasonable effort to schedule all
the depositions so that plaintiffs will only have to make one return trip to Fairfax. Given the nature of these disputes and briefs, the court sees that discovery in this litigation has the flavor of two kindergartners arguing over a crayon. Such childish antics will not be tolerated and any future failure to follow the requirements of the discovery rules will result in escalating sanctions.
3. Mobil Documents Not Produced
a. Mobil Design Memo 31
Plaintiff requests production of a document discussed in the depositions of LaBelle and Johnson titled either “Mobil Design Memo 31” or “Mobil's Guidelines for Assessment and Remediation.” Mobil responds that the document has been offered to plaintiffs by a “letter dated November 16.” Plaintiffs report in their reply memorandum that documents titled both “Mobil Design Memo 31” and “Mobil's Guidelines for Assessment and Remediation” have been produced. Thus, this issue is moot.
b. Made Environmental Report
*4 Plaintiffs seek discovery of an environmental consultant's report generated by “Maude Environmental” which one of Mobil's former project engineers Sharon Gallagher testified about in her deposition. Gallagher stated in her deposition that she relied on this report in deciding to apply “passive remediation” to the property at issue. (Plaintiff's exhibit M, Gallagher deposition at 123, 195, 215). Plaintiffs thus contend that the report is relevant and discoverable under Fed.R.Evid. 26.
Mobil disagrees with plaintiffs' characterization of both the deposition testimony and the relevance of the document. Mobil points to plaintiff's exhibit E, a letter from Mobil's counsel to plaintiffs' counsel in which Mobil's counsel states that the document at issue has been located and not only was it prepared after Gallagher left Mobil's employ, but it was prepared by “Hazardous Substance and Waste Management Research, Inc.” (Plaintiffs' exhibit E p. 3). Further, Mobil's counsel states that the document is a “site specific risk assessment” prepared for a location in Wheaton, Illinois. (Id.
Although Mobil correctly states that the statements of Gallagher do not necessarily bind Mobil, Gallagher at least implied that she relied on the “Maude Environmental” report in making decisions regarding the subject property. Thus, the document, whether prepared by Maude or by Waste Management Research, is relevant and discoverable under Rule 26. Of course, this does not mean that the report will ultimately be admitted into evidence. Rule 26 plainly states that documents need only be “reasonably calculated to lead to the discovery of admissible evidence.” Fed.R.Civ.P. 26. That document may lead to such discoverable evidence regarding the subject property. Perhaps, for example, the authors of the document will have relevant information regarding discussions with Mobil employees regarding the subject property.
Plaintiff reports in its reply memorandum that several documents, including documents relating to issues discussed by Gallagher, were produced on December 20, 1994. If those documents contain the documents discussed in Gallagher's deposition, this issue is moot. However, if Mobil holds additional documents which could be the ones Gallagher discussed, Mobil should produce them.
c. Robert Johnson's Refusal to Answer
Plaintiffs request that Robert Johnson be required to divulge information regarding the settlement of other litigation having nothing to do with the subject property. Mobil replies that that settlement is irrelevant to this litigation and could not reasonably lead to the discovery of admissible information. The court agrees with Mobil. Settlement discussions in another, distinct matter are irrelevant to this litigation and need not be produced. Fed.R.Civ.P. 26.
d. Tank Removal Report
During the course of depositions, some deponents referred to “tank pull reports” and plaintiffs have requested that these reports be produced. Mobil responds that they have searched and re-searched for these documents, and they could not be found or no longer exist. The court will require that Mobil search one, final time for these documents before they are declared lost. If they are found they should be produced. Plaintiff should not make further requests for the “tank removal report.”
e. Computer Database Model
*5 Plaintiffs request production of an entire computer database which inventories materials and equipment at all of Mobil's various leaking underground storage tank facilities throughout the country. Mobil responds that they have produced the portions of the database that are relevant to this litigation and that producing the entire database is “outrageous.” The court agrees with Mobil. Producing an entire computer database would indeed be unduly burdensome on Mobil and the court cannot see how information regarding other contaminated sites would be relevant to this litigation. Plaintiffs argue that “the information from other sites may be relevant to show that Mobil failed to follow its own directives at the subject property and that plaintiffs were not the only parties to suffer the ‘bait and switch’ deception.” (Plaintiffs' Sur–Reply at p. 14). This is a recurrent theme in this litigation. Murlas seeks to widen the scope of the action by asserting alternately that Mobil has conspired to dupe an entire universe of people that it was engaged in clean-up activities when only “passive remediation” was contemplated, or that Mobil has violated its own guidelines used to determine when “passive” (as opposed to “active”) remediation was to be used. Murlas has never articulated a coherent theory which would explain how or what Mobil did or did not do at another property has anything to do with the instant action. The fact that “Mobil's use of passive remediation of plaintiffs' property is similar to its use of passive remediation at property sites of other owners” is not an explanation of why this information is relevant. It is irrelevant to this litigation whether other parties “suffered from an [alleged] ‘bait and switch’ deception.” See
Pirela v. Village of North Aurora, 935 F.2d 909, 914 (7th Cir.1991) (citing with approval Reich v. Board of Fire and Police Comm'rs, 13 Ill.App.3d 1031, 301 N.E.2d 501, 505 (1973), which allowed a party to subpoena documents relevant to a hearing, but declared that it was not error to deny subpoena to plaintiff who could not establish relevancy of requested document.). Mobil is hereby directed to re-search the database for all information relevant to the subject property, and if further information is discovered to produce it. However, Mobil is not required to produce the entire database.
4. Plaintiffs' Second Request for Production
Plaintiffs have requested that all Mobil documents stating that the property was not contaminated by hydrocarbons be produced. Plaintiff contends that this request has not been fully completed. Mobil responds that it has produced the requisite documents to the extent that they exist. Again, the court cannot compel disclosure where nothing exists. Mobil has averred, under penalty of Fed.R.Civ.P. 11, that it has produced all the relevant documents. This court can do no more to satisfy the plaintiffs.
Plaintiffs have also requested production of “all documents relating to Mobil's policy, programs, and plans relating to Mobil's response to [hydrocarbon] leaks.” Mobil objects to this request as being overbroad and vexatious. “Read literally,” Mobil asserts, “compliance with this request would be a mammoth undertaking encompassing virtually every document worldwide that deals with underground storage tanks.” (Response p. 11). Further, Mobil states that it has offered certain policy documents related to its “LUST” program in Illinois, and plaintiffs had not availed themselves of the opportunity to discover those documents. (Id.
*6 Judge Plunkett has already once denied this motion without prejudice because the request was overbroad. (Plaintiffs' exhibit K, Transcript of hearing on June 15, 1994 p. 16). Judge Plunkett expressed his concern that the information regarding other sites would not be relevant to these proceedings because each contamination site is very different. Judge Plunkett specifically directed plaintiffs, if they wished to present this motion again, to submit evidence or testimony from their experts showing that the requested production would be relevant to this proceeding. To date, plaintiffs have not done so. This court concurs with the previous ruling and concludes that discovery encompassing all Mobil policy is overbroad and the expense of such production would outweigh the likely benefit of such production. Fed.R.Civ.P. 26(b)(2). Plaintiffs' motion to compel will be denied in this regard. See
Pirela v. Village of North Aurora, 935 F.2d 909, 914 (7th Cir.1991).
5. Response to Plaintiffs' Interrogatories
Plaintiffs next ask that this court examine each and every interrogatory served on Mobil and the responses to each to ascertain their adequacy. To begin with, the parties should have been able to resolve this dispute between themselves. Reasonable and conscientious attorneys routinely deal with these disputes without involving the court; that is what the Federal Rules of Civil Procedure envision. In the future, this court orders both parties to attempt to settle these discovery tantrums without the involvement of this court. As to the instant motion, Mobil is directed to answer interrogatories 1–10 by April 10, 1995. Mobil is not required to answer interrogatories 11–19. The court has made plain in this memorandum opinion that discovery into sites other than the subject property will not be allowed. (See supra). Thus, to the extent that interrogatories 11–19 deal with production of information regarding other contamination sites, they are irrelevant and inappropriate. See
Pirela v. Village of North Aurora, 935 F.2d 909, 914 (7th Cir.1991).
6. Plaintiffs' Motion for Rule 37 Sanctions
Plaintiffs contend that Mobil's “pattern of refusal to comply” merits the imposition of sanctions under Rule 37. Mobil contends that plaintiffs' motion is “impertinent, scandalous, and internally contradicted” and request that the motion be stricken with costs awarded to Mobil.
Neither party have acted with civility or maturity regarding these discovery disagreements. However, pettiness does not necessarily equal bad faith. Fed.R.Civ.P. 37 is flexible and this court has great discretion in deciding whether to impose sanctions. 8 Charles A. Wright and Arthur R. Miller, Federal Practice and Procedure § 2284 (1970). The rule is designed to encourage discovery, and not to simply punish for general misbehavior. Id.;
Dorsey v. Academy Moving & Storage, Inc., 423 F.2d 858, 860–61 (5th Cir.1970). This court is not inclined, therefore, to impose sanctions on either party at this time.
The parties should focus on completing discovery in as effective and efficient manner as possible.
*7 For reasons stated in this memorandum opinion, IT IS HEREBY ORDERED THAT plaintiffs' motion to compel discovery is denied in part and granted in part as follows:
1. Plaintiffs' motion to produce Charles Sutter for deposition is GRANTED, but it is further ordered that such deposition will take place in Fairfax, Virginia within thirty days.
2. Plaintiffs' motion to compel the production of documents used to refresh the recollection of Messrs. Rush, Johnson, and LaBelle is GRANTED. It if further ordered that the depositions of Messrs. Rush, Johnson, and LaBelle be reopened for the limited purpose of cross-examination on the documents used to refresh their individual recollections on the subject property. Plaintiffs' motion for fees and expenses in the taking of these reopened depositions is DENIED with prejudice.
3(a). Plaintiffs' motion to compel production of the “Mobil Design Memo 31” is moot.
3(b). Plaintiffs' motion to compel production of the “Maude Environmental Report” is GRANTED to the extent it has not been made moot by a subsequent production of the document.
3(c). Plaintiffs' motion to compel Robert Johnson to answer questions regarding a separate settlement of wholly different contamination site is DENIED with prejudice.
3(d). Plaintiffs' motion to compel production of a “Tank Removal Report” is GRANTED to the extent that Mobil should search one final time for the document, and if it is not located, the motion is DENIED with prejudice.
3(e). Plaintiffs' motion to compel production of Mobil's entire computer database model is DENIED with prejudice except that Mobil is hereby ordered to search the database one final time for any additional information regarding the subject property, and if any such information is found, to produce it to the plaintiffs.
4. Plaintiffs' motion to compel documents relating to its second request for production is DENIED with prejudice.
5. Plaintiffs' motion to compel more complete answers to its interrogatories is GRANTED in part and DENIED in part. Mobil shall provide complete answers to interrogatories 1–10 by April 3, 1995. Mobil is not required to answer interrogatories 11–19.
As a final note, this court cautions the parties that briefs are to be used with discretion. The parties seem to believe that every paper submitted to the court may argue any part of the case or any legal theory that the parties desire. Such is not the case. Parties should limit their arguments to the issue(s) before the court.
For a more thorough statement of the background facts of this litigation, see Nicholas J. Murlas Living Trust, et al. v. Mobil Oil Corp. et al., 1994 WL 130778 (N.D.Ill. Apr. 13, 1994).
End of Document.