eDiscovery Assistant

City of Colton v. Am. Promotional Events, Inc.

2012 WL 13013379 (C.D. Cal. 2012)

March 22, 2012

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Summary

Goodrich Corporation and Pyro Spectaculars, Inc. brought a motion for sanctions against the United States EPA and DoD for inadequate document production and responses to interrogatories. The court found that the United States had violated court orders and caused delays in the production of documents, including ESI, resulting in prejudice to Goodrich. The court ordered a four month extension of the discovery cut-off and a stay on Goodrich's obligations to respond to all discovery propounded by the United States until the United States has demonstrated that it has produced all documents and responded to all other discovery.

Additional Decisions

CITY OF COLTON, Plaintiff,
v.
AMERICAN PROMOTIONAL EVENTS, INC., et al., Defendants.
and Consolidated Actions

Case No. ED CV 09–01864 PSG (SSx)Consolidated Case Nos.: CV 05–01479 JFW (Ex)CV 09–06630 PSG (SSx), CV 09–06632 PSG (SSx), CV 09–07501 PSG (SSx), CV 09–07508 PSG (SSx), CV 10–00824 PSG (SSx)

United States District Court, C.D. California, Western Division

Signed March 21, 2012

Filed March 22, 2012

Counsel

Jeffrey D. Dintzer, Matthew C. Wickersham, Dana Craig, Kimberly A. Nortman, Brett H. Oberst, Gibson, Dunn & Crutcher LLP, 333 South Grand Avenue, Los Angeles, CA 90071–3197, (213) 229–7000 * (213) 229–7520 Fax, jdintzer@gibsondunn.com, mwickersham@gibsondunn.com, dcraig@gibsondunn.com, knortman@gibsondunn.com, boberst@gibsondunn.com, Attorneys for Goodrich Corporation.
Scott A. Sommer, Andrew D. Lanphere, Martin R. Sul, Christine A. Scheuneman, Pillsbury Winthrop Shaw Pittman LLP, 50 Fremont Street, P.O. Box 7880, San Francisco, CA 94120–7880, (415) 983–1000 * (415) 983–1200 Fax, scott.sommer@pillsburylaw.com, andrew.lanphere@pillsburylaw.com, martin.sul @pillsburylaw.com, christine.scheuneman@pillsburylaw.com, Attorneys for City of Rialto and Rialto, Utility Authority.
Sallie Lux, Brouse McDowell, 388 South Main Street, Suite 500, Akron, OH 44311, (330) 535–5711 * (330) 253–8601 Fax, slux@brouse.com, Attorney for Goodrich Corporation.
Mark E. Elliott, Pillsbury Winthrop Shaw Pittman LLP, 725 South Figueroa Street, Suite 2800, Los Angeles, CA 90017–5406, (213) 488–7100 * (213) 629–1033 Fax, mark.elliott@pillsburylaw.com, Attorneys for City of Rialto and Rialto Utility Authority.
Robert D. Wyatt, James L. Meeder, Henry Lerner, Kamran Javandel, Allen Matkins Leck Gamble Mallory & Natsis LLP, Three Embarcadero Center, 12th Floor, San Francisco, CA 94111, (415) 837–1515 * (415) 837–1516 Fax, rwyatt @allenmatkins.com, jmeeder@allenmatkins.com, hlerner@allenmatkins.com, kjavandel@allenmatkins.com, Attorneys for Black & Decker Inc.; Emhart, Industries, Inc., Kwikset Corporation,, Kwikset Locks, Inc.
Joseph W. Hovermill, Joseph L. Beavers, Amanda A. Neidert, Miles & Stockbridge, P.C., 10 Light Street, Baltimore, MD 21202, (410) 385–3442 * (410) 385–3700 Fax, jhovermill@milesstockbridge.com, jbeavers@milesstockbridge.com, aneidert@milesstockbridge.com, Attorneys for Black & Decker Inc.; Emhart Industries, Inc., Kwikset Corporation, Kwikset Locks, Inc.
Michael R. Farrell, Allen Matkins Leck Gamble Mallory & Natsis LLP, 515 S. Figueroa Street, 7th Floor, Los Angeles, CA 90071, (213) 622–5555 * (213) 620–8816 Fax, mfarrell@allenmatkins.com, Attorneys for Black & Decker Inc.; Emhart Industries, Inc., Kwikset Corporation, Kwikset Locks, Inc.
Daniel J. Coyle, Steven H. Goldberg, Jennifer Hartman King, Leslie Fredrickson, DOWNEY BRAND LLP, 621 Capitol Mall, 18th Floor, Sacramento, CA 95814, (916)444–1000 (916) 444–2100 Fax, dcoyle@downeybrand.com, sgoldberg @downeybrand.com, jhking@downeybrand.com, lfredrickson@downeybrand.com, Attorneys for Defendant, Counter–Claimant, Cross–Claimant, and Third Party Claimant, AMERICAN PROMOTIONAL EVENTS, INC.—WEST, for itself and as successor by name change or merger to Defendants AMERICAN PYRODYNE CORPORATION, PYRODYNE AMERICAN CORPORATION, AMERICAN WEST, INC., AMERICAN WEST MARKETING, INC., PYRODYNE AMERICAN CORPORATION, and FREEDOM FIREWORKS, INC.
Timothy V.P. Gallagher, Martin N. Refkin, Thomas A. Bloomfield, Emil Macasinag, Elizabeth Paranhos, Jill H. Van Noord, Megan Meadows, Gallagher & Gallagher, a Professional Corporation, 1925 Century Park East, Suite 950, Los Angeles, CA 90067, (310) 203–2600 * (310) 203–2610 Fax, timg@thegallaghergroup.com, refkin@thegallaghergroup.com, tbloomfield @thegallaghergroup.com, emil@thegallaghergroup.com, eparanhos @thegallaghergroup.com, jvannoord@thegallaghergroup.com, meadows @thegallaghergroup.com, Attorneys for County of San Bernardino; Robertson's Ready Mix, Inc.; Edward Stout; Edward Stout as the Trustee of the Stout–Rodriquez Trust, aka The Schulz Family Trust; Elizabeth Rodriquez; John Callagy as Trustee of the Fredricksen Children's Trust Under Trust Agreement Dated February 20, 1985; John Callagy as Trustee of the E.F. Schulz Trust; Linda Fredricksen; Linda Fredricksen as Trustee of the Walter M. Pointon Trust Dated 11/19/1991; Linda Fredricksen as Trustee of the Michelle Ann Pointon Trust Under Trust Agreement Dated February 15, 1985; Linda Fredricksen as Trustee of the E.F. Schulz Trust; John Callagy; Mary Mitchell; Jeanine Elzie; Stephen Callagy; Michelle Ann Pointon; Anthony Rodriquez; Zambelli Fireworks Manufacturing Company, Inc.; Zambelli Fireworks Company, aka Zambelli Fireworks Internationale; and Zambelli Fireworks Manufacturing Company.
Penelope Alexander–Kelley, Jean–Rene Basle, Office of the County Counsel County of San Bernardino, 385 North Arrowhead Avenue, San Bernardino, CA 92415–0140, (909) 387–5435 * (909) 387–5462 Fax, palexander-kelley@cc.sbcounty.gov, jbasle@cc.sbcounty.gov, Attorneys for County of San Bernardino and Robertson's Ready Mix, Inc.
Allan E. Ceran, Burke Williams & Sorensen, LLP, 444 S. Flower Street, Suite 2400, Los Angeles, CA 90071, (213) 236–0600 * (213) 236–2700 Fax, aceran @bwslaw.com, Amy Hoyt, Burke Williams & Sorensen, LLP, 2280 Market Street, Suite 300, Riverside, CA 92501–2121, (951) 788–0100 * (951) 788–5785 Fax, ahoyt @bwslaw.com, Attorneys for Broco, Inc. and J.S. Brower & Associates.
Thomas N. Jacobson, Attorney at Law, 3750 Santa Fe Avenue, Suite 105, Riverside, CA 92507, (951) 682–7882 * (951) 682–7884 Fax, tom @tomjacobsonlaw.com, Attorney for Robertson's Ready Mix, Inc.
Brian L. Zagon, Marc A. Shapp, Hunsucker Goodstein and Nelson PC, 3717 Mt. Diablo Blvd., Suite 200, Lafayette, CA 94549, (925) 284–0840 * (925) 284–0870 Fax, bzagon@hgnlaw.com, mshapp@hgnlaw.com, Attorneys for Pyro Spectaculars, Inc. and Astro, Pyrotechnics, Inc.
Steven J. Renshaw, Christine A. Renshaw, Renshaw & Associates, APLC, 5700 Ralston Street, Suite 301, Ventura, CA 93003, (805) 289–9447 * (805) 289–9402 Fax, srenshaw@renshawlegal.com, carenshaw@renshawlegal.com, Attorneys for Trojan Fireworks.
John E. Van Vlear Daniel S. Kippen Voss, Cook & Thel LLP 895 Dove Street, Suite 450 Newport Beach, CA 92660–2998 (949) 435–0225 * (949) 435–0226 Fax vv@vctlaw.com dkippen@vctlaw.com, Attorneys for Thomas O. Peters, The 1996 Thomas 0. Peters and Kathleen S. Peters Revocable Trust, Stonehurst Site LLC.
David C. Solinger, Hunsucker Goodstein and Nelson PC, 333 S. Grand Avenue, 25th Floor, Los Angeles, CA 90071, (213) 943–1370 * (213) 402–3939 Fax, dsolinger@hgnlaw.com, Attorneys for Pyro Spectaculars, Inc. and Astro Pyrotechnics, Inc.
Erik S. Mroz, Hunsucker Goodstein and Nelson PC, 1 North Pennsylvania St., Suite 1310, Indianapolis, IN 46204, (317) 633–6780 * (317) 633–6725 Fax, emroz @hgnlaw.com, Attorneys for Pyro Spectaculars, Inc. and Astro Pyrotechnics, Inc.
Brendan W. Brandt, Keith A. Kelly, Varner & Brandt, LLP, 3750 University Avenue, Suite 610, Riverside, CA 92501, (951) 274–7777 * (951) 274–7770 Fax, bwb@varnerbrandt.com, kak@varnerbrandt.com, Attorneys for Ken Thompson, Inc. and Rialto Concrete Products, Inc.
Richard A. Dongell, Matthew Clark Bures, Christopher T. Johnson, Roya Vasseghi, Dongell Lawrence Finney, 707 Wilshire Blvd, 45th Floor, Los Angeles, CA 90017–3609, (213) 943–6100 * (213) 943–6101 Fax, rdongell @dlfiawyers.com, mbures@dlflawyers.com, cjohnson@dlflawyers.com, rvasseghi @dlflawyers.com, Attorneys for Whittaker Corporation.
C. Robert Boldt, Steven Soule, Beth Marie Weinstein, Sierra Elizabeth, Kirkland & Ellis, 333 S. Hope Street, Los Angeles, CA 90017, (213) 680–8400 * (213) 680–8500 Fax, robert.boldt@kirkland.com, steven.soule @kirkland.com, beth.weinstein@kirkland.com, sierra.elizabeth@kirkland.com, Attorneys for General Dynamics Corporation and Raytheon Company.
Bradley P. Boyer, Jad T. Davis, Ropers, Majeski, Kohn & Bentley, 515 South Flower Street, Suite 1100, Los Angeles, CA 90071, (213) 312–2000 * (213) 312–2001 Fax, bboyer@ropers.com, jdavis@ropers.com, Attorneys for Zambelli Fireworks Manufacturing Company, Inc.; Zambelli Fireworks Company, aka Zambelli Fireworks Internationale; and Zambelli Fireworks Manufacturing Company.
David R. Isola, Stephen B. Ardis, Reginald R. Schubert, Isola Law Group LLP, 405 W. Pine Street, Lodi, CA 95240, (209) 367–7055 * (209) 367–7056, disola@isolalaw.com, rschubert@isolalaw.com, Attorneys for Harry Hescox.
Harland L. Burge, Law Offices of Harland L. Burge, 23193 La Cadena Drive, Suite 101, Laguna Hills, CA 92653, (949) 699–4162 * (949) 699–4166, bsdlaw @aol.com, mariabsdlaw@cox.net, Attorneys for Environmental Enterprises, Inc.
William W. Funderburk, Jr., Anna L. Cole, Castellon & Funderburk LLP, 811 Wilshire Boulevard, Suite 1025, Los Angeles, CA 90017–2606, (213) 623–7515 * (213) 532–3984 Fax, wfunderburk@candffirm.com, acole@candffirm.com, Attorneys for Edward Stout; Edward Stout as the Trustee of the Stout–Rodriquez Trust, aka The Schulz Family Trust; Elizabeth Rodriquez; John Callagy as Trustee of the Fredricksen Children's Trust Under Trust Agreement Dated February 20, 1985; John Callagy as Trustee of the E.F. Schulz Trust; Linda Fredricksen; Linda Fredricksen as Trustee of the Walter M. Pointon Trust Dated 11/19/1991; Linda Fredricksen as Trustee of the Michelle Ann Pointon Trust Under Trust Agreement Dated February 15, 1985; Linda Fredricksen as Trustee of the E.F. Schulz Trust; John Callagy; Mary Mitchell; Jeanine Elzie; Stephen Callagy; Michelle Ann Pointon; and Anthony Rodriquez.
Christopher S. Riley, Barnes & Thornburg, 121 West Franklin Street, Suite 200, Elkhart, IN 46516, (574) 293–0681 * (574) 296–2535 Fax, christopher.riley @btlaw.com, Attorneys for American West Explosives, Golden State Explosives, and ETI.
Rochelle L. Russell, Attorney, Environmental Defense Section, U.S. Department of Justice, 301 Howard Street, Suite 1050, San Francisco, CA 94105, (415) 744.6566 * (415) 744–6476 Fax, Rochelle.Russell@usdoj.gov, Attorneys for the United States of America and United States Department of Defense.
Peter H. Weiner, Dennis S. Ellis, Tracy J. Egoscue, Nicholas J. Begakis, Paul Hastings LLP, 515 South Flower Street, Twenty–Fifth Floor, Los Angeles, CA 90071–2228, peterweiner@paulhastings.com, dennisellis @paulhastings.com, tracyegoscue@paulhastings.com, nickbegakis@paulhastings.com, Tel.: (213) 683–6000; Fax: (213) 627–0705, Attorneys for City of Rialto and Rialto Utility Authority.
Daniel J. O'Hanlon, Danielle R. Teeters, Kronick Moskovitz Tiedemann & Girard, 400 Capitol Mall, 27th Floor, Sacramento, CA 95814, (916) 321–4500 * (916) 321–4555, dohanlon@kmtg.com, dteeters@kmtg.com, Attorneys for Fred Skovgard.
Stephen C. Lewis, Donald E. Sobelman, J. Thomas Boer, Estie M. Kus, Barg Coffin Lewis & Trapp, LLP, 350 California Street, 22nd Floor, San Francisco, CA 94104–1435, (415) 228–5400 * (415) 228–5450 Fax, scl@bcltlaw.com, des@bcltlaw.com, tjb@bcltlaw.com, emk@bcltlaw.com, Attorneys for The Ensign–Bickford Company.
Michael C. Augustini, Leslie Hill, Kim Smaczniak, Environment & Natural Resources Division, Environmental Defense Section, U.S. Department of Justice, P O Box 23986, Washington, DC 20026–3986, (202) 616–6519 * (202) 514–8865 Fax, michael.augustini@usdoj.gov, leslie.hill@usdoj.gov, kim.smaczniak @usdoj.gov, Attorneys for the United States of America and United States Department of Defense.
Michele Benson, Of Counsel, United States Environmental Protection, Agency, Region IX, 75 Hawthorne Street, San Francisco, CA 94105, benson.michele @epa.gov, Attorneys for the United States on behalf of the Environmental Protection Agency.
Gene Tanaka, Best Best & Krieger LLP, 2001 N. Main Street, Suite 390, Walnut Creek, CA 94596, (925) 977–3300 * (925) 977–1870 Fax, gene.tanaka @bbklaw.com, Attorneys for Plaintiff City of Colton.
James R. MacAyeal, David Rosskam, Valerie K. Mann, Deborah A. Gitin, Bonnie A. Cosgrove, Environmental Enforcement Section, U.S. Department of Justice, P.O. Box 7611, Washington, DC 20044–7611, (202) 616–8777 * (202) 514–2583 Fax, jamie.macayeal@usdoj.gov, david.rosskam@usdoj.gov, valerie.mann@usdoj.gov, deborah.gitin@usdoj.gov, bonnie.cosgrove@usdoj.gov, Attorneys for the United States on behalf of the Environmental Protection Agency.
Danielle Sakai, Best Best & Krieger LLP, 3750 University Avenue, Suite 400, Riverside, CA 92502, (951) 686–1450 * (951) 686–3083, danielle.sakai @bbklaw.com, Attorneys for Plaintiff City of Colton.

Tassopulos, Venetta S., Special Master

[DISCOVERY MATTER BEFORE SPECIAL MASTER] REPORT OF SPECIAL MASTER; ORDER GRANTING IN PART GOODRICH CORPORATION'S MOTION FOR SANCTIONS AGAINST THE UNITED STATES

*1 Goodrich Corporation's Motion for Sanctions Against the United States is directed to the Special Master in the case, City of Colton v. American Promotional Events, Inc., et al. and Consolidated Actions CV 09–01864 PSG (SSx) in accordance with The Order Re Re–Designation of the Honorable Venetta S. Tassopulos, United States Magistrate Judge (Ret.), as Special Master.

I. Introduction and Background

On January 23, 2012, Goodrich Corporation (“Goodrich”) and Pyro Spectaculars, Inc. (“PSI”)[1] filed a Motion for Sanctions against the United States of America (“United States”). In the Motion, Goodrich asks for several forms of relief, including dismissal of the United Suites' action and all of the United States' claims in their entirety and a ruling that various issues and facts be deemed established for purposes of trial and judgment in the consolidated actions. If the Special Master declines to provide these forms of relief, Goodrich asks for an order extending the discovery cut-off for six months, as between Goodrich and the United States, with Goodrich having the unilateral right to take discovery during this period of time, and the Untied States not having any right to reciprocal discovery. Goodrich also requests a stay on its duty to respond to all existing discovery propounded by the United States before the discovery cut-off until the United States can demonstrate that it has met all of its currently outstanding discovery obligations and is in compliance with all court orders in this case.

The United States filed an Opposition to the Motion. Emhart Industries (“Emhart”) filed a Joinder to the Motion, which was later withdrawn, pursuant to a tentative settlement agreement between Emhart and the United States. The City of Rialto and the City of Colton filed Responses. Whittaker Corporation filed a Response to the City of Rialto's Response. Goodrich filed a Reply. On March 1, 2012, a hearing was held. A court reporter was present to transcribe the proceedings. The appearances of counsel are on the record. The Special Master has considered all of the briefs, declarations, exhibits, cases, and arguments of counsel.

II. Factual Allegations

In its Motion, Goodrich specifically identifies alleged violations of Court orders that “(1) required production of documents in response to Moving Parties First Set of Request for the Production of Documents (“First Set of RFPs”) by August 18, 2011 (July 6, 2011 Special Master Order (Dkt. #824); Aug. 25, 2011 Mag. Judge Segal Order (Dkt. #941)); (2) required complete and accurate responses to interrogatories asking for information regarding the identity of witnesses and documents related to the U.S. Army's operations at the Rialto Ammunition Back–Up Storage Point (“RABSP”) (June 27, 2011 Special Master Order (Dkt. #806); Dec. 12, 2011 Special Master Order (Dkt. #1166)); (3) required that the United States conduct a reasonable search for all responsive documents related to historical operations at the RABSP (Aug. 26, 2011 Special Master Order (Dkt. #949); Sept. 26, 2011 Special Master Order; Nov. 28, 2011 Mag. Judge Segal Order (Dkt. #1109)); (4) ordered the United States to comply with Rule 34 and produce its documents in native format or organized to correspond to the categories in the document requests (Aug. 1, 2011 Special Master Order (Dkt. #877); Oct. 13, 2011 Mag. Judge Segal Order (Dkt. #1021); Dec. 12, 2011 Judge Gutierrez Order (Dkt. #1168); and (5) ordered the production of privilege logs by July 15, 2011 (June 30, 2011 Special Master Order (Dkt. #825); July 13, 2011 Mag. Judge Segal Order (Dkt. #831); Aug, 25, 2011 Mag. Judge Segal Order (Dkt. #941)).

*2 The conduct that forms the subject matter of this Motion and provides the basis of Goodrich's specific allegations regarding the United States EPA's and the United States DoD's alleged failure to comply with discovery obligations, including alleged violations of the five court orders cited above, spans the entire history of discovery between Goodrich and the United States in this case, since the United States EPA filed its CERCLA enforcement action against Goodrich and other parties in February of 2010.

Goodrich and PS1 served their First Request for Production of Documents (First Set of RFPs) in April 2010 so that they could obtain all relevant documents at or near the beginning of the discovery period. Shortly after the First Set of RFPs were served, the Court ordered a discovery stay of approximately nine months so that all of the parties could attempt to reach settlement agreements. Goodrich alleges that from the time the stay was lifted in January of 2011, the United States EPA and the United States DoD have repeatedly failed to produce documents responsive to Goodrich's First Set of RFPs and also Goodrich's Fifth Request for Production of Documents (“Fifth Set of RFPs”) by the deadlines for production set both by the Federal Rules of Civil Procedure and by Orders of the Special Master and have intentionally caused extensive delays relating to the documents that have been produced.

The Special Master will discuss separately the violations of Court Orders and other discovery abuses that Goodrich alleges against the United States EPA and the United States DoD. However, the conduct of both parties will be considered together in determining the prejudice suffered by Goodrich due to any violations of Court Orders or other discovery abuses by the United States in this action.

A. United States EPA Document Production

Once the stay was lifted, on or about February 14, 2011, the United States served a written response to the First Set of RFPs, stating that it would produce documents at a reasonable place and time, but failing to specify a specific time by which the production would be completed. The parties discussed a timetable for production, but because Goodrich felt that the United States seemed to be setting its own timetable for production, Goodrich filed a Motion for Production of Privilege Log.

At the hearing on this Motion, the Special Master treated the Motion for Production of a Privilege Log us a motion to compel production of documents, at least as to the appropriate time frame for the United States EPA to make the production. The Special Master set a timetable for production, which was later modified when the United States filed a motion for reconsideration stating it could not possibly meet the schedule.

The United States began producing documents in late March, but at the same time, in early April, the United States, for the first time, informed Goodrich that it would file a Motion for Protective Order claiming that a large number of the requests, either in their entirety, or as drafted, sought information that was beyond the scope of discovery.

The United States' Motion for Protective Order was heard in June of 2011, and the Special Master's report was filed on July 6, 2011. While the Special Master rejected Goodrich's argument that the United States had waived its objections by not raising them during the hearing that set the timetable for production, the Special Master noted at the time that “counsel for the United States never stated that the United States would be producing documents subject to the objections in the written response. The Special Master believes that such a statement should have been made.” (Report of Special Master Re United States' Motion for a Protective Order Limiting Scope of First Request for Production of Documents of Goodrich and PSI [“July 6 Order”], at 4:23–24). In any event, the manner in which the United States proceeded created an initial delay in resolving the United States' objections to the First Set of RFPs.

*3 In the July 6 Order, the Special Master, in large part, overruled the United States' objections to Goodrich and PST's requests for production of documents, while narrowing certain requests. The Special Master ordered production of documents on a wide variety of subjects, such as the listing of the B.F. Goodrich Site on the National Priorities List (“NPL”), which had previously been withheld due to the United States' objections, as well as allowing other requests, such as those related to perchlorate as a hazardous substance, to remain in their original, broad form. The Special Master also rejected the United States' request that a cut-off date, such as the date the complaint was filed, be placed on the First Set of RFPs. The Special Master set a deadline date for production of all documents responsive to the requests in the possession, custody, or control of the United States by August 18, 2011, a full six weeks after the date of the Order. (Wickersham Decl. Par. 40, Ex. 33 [7/6/11 Order] at 30:18–19)

The United States appealed portions of the Special Master's order, but never requested a stay of the Order or a modification of the deadline date in the Order either from the Special Master or Magistrate Judge Segal. Ultimately, Magistrate Judge Segal upheld the report in its entirety on August 25, 2011.

Throughout the United States' production of documents, Goodrich believed that the United States was not producing all documents responsive to the requests. In September of 2011, Goodrich requested that the United States file a Supplemental Written Response, verifying that it had produced all responsive documents. The United States refused to make such a Response, but on many occasions stated to Goodrich that it had produced all responsive documents. At the same time, the United States continued to produce large numbers of documents responsive to the July 6 Order. Between September 15, 2011 and January 12, 2012, the United States Produced at least 86, 755 pages of documents from the United States EPA that were created before the issuance of the July 6 Order, and were responsive to the Order, but were not produced on or before August 18, 2011. (Sloan Decl. Pars 77–78).

As detailed in the Report of Special Master; Order Granting in Part Goodrich Corporation's and Pyro Spectaculars, Inc.'s Motion to Compel Compliance with the Special Master's July 6, 2011 Order and Goodrich Corporation's Request for Sanctions Against the United States for Failure to Comply with the Special Master's July 6, 2011 Order (“January 20, Order”), which found a clear violation of the July 6 Order, the United States EPA repeatedly failed to search for and produce documents according to the time table set by the Special Master in the July 6, 2011 Order. This failure includes both the failure to search for and produce in a timely fashion documents generated prior to the filing of the complaint on topics clearly responsive to the July 6, 2011 Order, as well as the failure to supplement its production of documents in order to comply with the portion of the July 6, 2011 Order that rejected a cut-off date for the requests, and therefore ordered the production of documents generated after the filing of the complaint through the time the order was issued. (January 20 Order, at pp. 10–15) These multiple failures are summarized again below.

First, after issuance of the July 6 Order, the Justice Department, on behalf of the United States EPA, searched its database of previously collected EPA documents using additional search terms to ensure that all documents covered by the July 6 Order were produced. However, these documents were not produced to Goodrich until October 28, 2011, over two months after the August 18, 2011 date specified in the Order. (January 20 Order, at 11:1–5)

Second, EPA Region 9 searched its collection of documents to ensure that all documents covered by the July 6 Order were produced. However, these documents were not delivered to the Department of Justice for review until October 18, 2011, and not produced to Goodrich until an unspecified later date, again months after the August 18, 2011 date specified in the Order. (January 20 Order. at 11:6–10)

*4 Third, the United Stales EPA waited until August to begin collecting documents from EPA Regions 1 through 8, EPA Region 10, and the EPA's national laboratories responsive to Requests 136 and 146 of the First Set of RFPs relating to perchlorate, that were ordered to be produced by the July 6 Order. The EPA claimed that the documents were not previously collected because of an alleged April 8, 2011 agreement between the parties. These documents were not delivered to the Justice Department until October 24, 2011, and were not produced to Goodrich until November 23, 2011, over three months after the date required in the July 6 Order. (January 20 Order, at 11:11–22).

As to all of the documents responsive to the perchlorate requests, essentially, the United States waited until Magistrate Judge Segal upheld the Special Master's ruling to begin searching for these documents, However, at no time, did the United States EPA request a stay of the Special Master's Order or the deadline set by the Order, either from the Special Master or from Magistrate Judge Segal.

Further, as stated above, the United States EPA delayed the supplemental production of documents after the July 6 Order rejected the United States EPA's argument that there should be a cut off date, specifically the date the complaint was filed in January of 2010, as to the documents responsive to the First Set of RFPs. The July 6 Order required the EPA to produce all documents in its possession, custody or control as of the required date of production, August 18, 2011. While the Special Master realized that to produce all documents generated by this date would have been impossible, the EPA should have been aware that since the order rejected the United States EPA's argument concerning a cut off date, the EPA had a responsibility to supplement by August 18, 2011 its original document production, specifically to produce all documents generated after the filing of the complaint through a reasonable date, say, June 30, 2011.

Instead, the EPA waited until late in 2011 and early in 2012 to search, collect, review, and produce any documents that had been generated after the first searches for documents were complete. (January 20 Order, at pp. 12–13).

For example, the United States EPA claimed to produce documents from Region 9 that were in its possession, custody, or control only as of April 22, 2011, did not complete its supplemental collection of documents until November 1, 2011, and did not deliver these documents to the Justice Department for review until December 21, 2011. These documents were not produced until January of 2012 (January 20 Order, at 13:1–4). Further, in the initial production, documents from EPA Headquarters were produced only through December of 2010. The EPA did not begin collecting documents generated after December of 2010 until November of 2011, did not deliver these documents to the Justice Department for review until the end of December 2011, and did not produce these documents until January of 2012. (January 20 Order, at 13:5–11).

While it is impossible to isolate, in pure terms of cause and effect, all of the delays in the United States EPA's document production, one thing is clear. The United States EPA has produced tens of thousands of pages of documents late in 2011 and early in 2012, many of them after the Special Master's Order of January 20, 2012 that found a clear violation of the July 6, 2011 Order, that should have been produced in response to that Order by the August 18, 2011 deadline date set in the Order. Again, only by example, between December 29, 2011 and January 30, 2012, according to its own declaration, the United States EPA produced approximately 11,000 documents totaling close to 100,000 pages. (United States' Supplemental Report on EPA Compliance with Special Master's July 6 Order and January 19 Order, at 2:1826, 3:1–2).

*5 This pervasive late production of documents prevented Goodrich from using many of these documents during several crucial depositions in this case, and even as to the depositions that occurred toward the end of the discovery period, this pervasive late production prevented Goodrich from being able to take the time to review and assimilate all of these documents in preparation for depositions.

While some of these documents, including those produced in February 2012, at or near the discovery cut-off reflected the United States EPA's supplementation of production required by the absence of a cut-off date related to the discovery requests, there is no question that the vast majority of these documents were generated either before the complaint in this case was filed in 2010, or were generated before the issuance of the July 6 Order, and so were clearly subject to production by August 18, 2011.

In addition to the above inadequacies, the United States EPA failed to produce a specific set of crucial documents, Preliminary Assessment and Site Investigation Reports about Rialto–Colton, located in the Superfund Records Center in Region 9 Regional Headquarters, even though all of these documents were responsive to the First Set of RFPs, and specifically to the Special Master's July 6 Order rejecting the United States' contention that certain requests in the First Set of RFPs should be narrowed. On the first day of the deposition of Wayne Praskins as the United States' designated witness under Federal Rule of Civil Procedure 30(b)(6), the witness brought partial copies of Preliminary Assessment and Site Investigations Reports. (Wickersham Decl. Pars 95–96, 99, Ex. 86 [12/12111 Praskins Dep. Tr.] at 45:23–47:7; Ex, 89 [12/15/11 Praskins Dep. Tr.] at 84:21.87:7 [ROUGH.] ) The Preliminary Assessment and Site Investigation Reports calculated a preliminary Hazardous Ranking Score, similar to the score calculated in 2008 by the United States EPA as a necessary precursor to listing the Site on the NPL. Mr. Praskins had collected these documents himself from the Superfund Records Center at EPA Region 9 Headquarters. At first, the United States EPA could not provide an explanation for this failure of the production of crucial documents, located a few floors below where the Regional Administrator of Region 9, the attorneys for Region 9, and the Site Manager for the Rialto–Colton Basin had their offices. Ultimately, the United States EPA blamed the failure to produce these documents because of the fact that the Rialto–Colton Basin does not have a specific ID number, and that for this reason certain documents relating to the Rialto–Colton Basin, which existed only as hard copies, were not scanned into the electronic data base. This problem was compounded by certain documents related to Rialto–Colton being mistaken as pertaining to a Site in Sherman Oaks, because the company that prepared the report, Weston Solutions, is located there. (Transcript of Oral Argument, March 1, 2012, at pp. 122–123).

The United States produced some of these documents on December 29, 2011 and January 6, 2012. (Wickersham Decl. Pars 95–96, 121, 138; Zagon Decl. Pars. 21–22; Dintzer Deck Pars 21–24.) However, a particular report that Mr. Praskins brought to his deposition and subsequently was requested by Goodrich was not produced until January 12, 2012, (Dintzer Decl. Par, 25). Other related documents were produced through January 17, 2012. (Dintzer Decl. Par. 26)

*6 While some of the inadequacies related to the United States EPA's production, including the crucial omissions discussed above may well have been created by human error, this fact does not lessen the prejudice to Goodrich of receiving crucial documents near the end of the discovery period. Nor does human error excuse the simple fact that tens of thousands of pages of documents that should have been produced by August 18, 2011, specifically all documents that were in the possession, custody, or control of the United States EPA by June 30, 2011, were instead produced in October, November, and December of 2011, and in January of 2012. These productions came only after Goodrich refused to take the United States EPA's word in September of 2011 that all documents responsive to the July 6 Order had been produced, and filed a motion which resulted in the Special Master's request at the December 17, 2011 hearing on Goodrich's Motion, that both the EPA and DoD file reports regarding the status of document production.

B. United States DoD Discovery Responses Relating to the RABSP

The United States DoD has also caused significant delays in discovery. Unlike the seemingly cavalier attitude of the United States EPA toward discovery, the DoD seemed to have a particular strategy, knowing that there were significant, pre-existent obstacles to discovery of pertinent information dating back some seventy years. Again, at every turn, Goodrich had to bring motions to enforce basic discovery obligations and gather basic information relevant to these consolidated actions.

The United States DoD attempts to argue that the Special Master has not found a clear violation of any Order related to the United States DoD, and until recently, the Special Master has not granted Goodrich's costs in relation to any motion, thereby implying that the positions taken by the United States DoD during the constant motion practice of this case were substantially justified. However, this failure to grant costs was out of an abundance of caution and restraint. As discussed below, taken as a whole, the positions taken by the United States DoD in discovery, and the responses of the United States DoD to the Special Master's Orders, were as inadequate as that of the United States EPA.

Unlike the position taken by the United States EPA, the United States DoD acknowledged that the delays in discovery, culminating in the production of a large number of documents, at least 100,000 pages since January 20, 2012, (Transcript of March 1, 2012 Oral Argument, at 253:2–4), including important documents dealing with the ownership of and operations at the RABSP during the critical time period of this case when Goodrich was employed by the United States DoD, only a few days before the discovery cut-off, warranted at least a portion of the relief asked for by Goodrich, an extension of the discovery cut-off so that Goodrich could properly review all of the late produced documents and conduct follow-up discovery. (Transcript of March 1, 2012 Oral Argument, at 249:19–250:6)

1. The United States DoD's Responses to Interrogatories

Goodrich argues at length about how the DoD handled its response to Goodrich's interrogatories concerning Army personnel at the RABSP between 1941 and 1946 and concerning the Army's use of TCE at the RABSP. [Goodrich Corporation's and Pyro Spectaculars, Inc.'s Joint Notice of Motion and Motion for Sanctions Against the United States (“Motion for Sanctions”), at pp. 14–191 Goodrich is correct in stating that it was inappropriate for the United States DoD to use two attorneys, Joshua Holmes and Carrie Greco, to verify its responses to interrogatories. In fact, from the perspective of hindsight, the verification of the interrogatory responses by attorneys was an early signal that the United States DoD had no intention of providing substantive responses as to information in its possession, custody, or control concerning the means to identify and the actual identification of Army personnel who were stationed at the RABSP from 1941 to 1946.

*7 When Goodrich suspected that the responses were incomplete, and requested to depose the attorneys that verified the responses, the United States Department of Defense gave Goodrich the names of three other people—Dean Hiza, Gerald Vincent, and Stanley Bauer—who, the DoD claimed, could give Goodrich the information sought concerning the subject matter of the interrogatories. Goodrich deposed Hiza, Vincent, and Bauer, and in the course of these depositions, received certain information on the topics addressed by the interrogatories. However, much of this information had not been provided in the interrogatory responses. In fact, neither Mr. Hiza, who was a leading expert in identifying and locating Army personnel who served during World War II, the subject matter of two interrogatories, and Mr. Bauer, who was the leading expert on the Army's use of TCE, had been consulted by the attorneys who investigated the subject matters of the interrogatories, and prepared and verified the responses. (Motion for Sanctions, at 17:10–20).

For example, on the issue of Army personnel who served at the RABSP, Dean Hiza testified that Unit Reports and Morning Rosters could be effective sources in attempts to identify and locate personnel who served at the RABSP. The United States DoD did not provide this information in its verified responses to the interrogatories. Undoubtedly, this was because the United States DoD was planning to take the position that it had no duty to search for, collect, and produce the Unit Reports and Morning Rosters, all of which were located in NARA, and further, had no duty to analyze these documents in order to obtain personnel records and thereby identify and locate Army personnel who served at the RABSP. However, even if, at this point in time, the United States DoD believed that this position was justified, it still had a duty to explain in the interrogatory responses that those who served at the RABSP could be identified by using Unit Reports and Morning Rosters, but that the DoD had no duty to search for and collect these documents. Instead, the United States DoD intentionally refused to provide crucial information within its knowledge and possession responsive to the interrogatories.

The information provided by Dean Hiza concerning Morning Reports, Unit Rosters, and personnel records, and the information provided by Stanley Bauer concerning possible TCE by the United States DoD during World War II, in general, and at the RADSP, in particular, raised significant doubts that the DoD had conducted an adequate investigation and collected all information readily available to it in preparing its response to Goodrich's interrogatories before providing the answers verified by Mr. Holmes and Ms. Greco.

Subsequently, Goodrich sought to convince the United States DoD to supplement its responses and to find non-attorneys to verify the responses. When the United States refused, Goodrich sought to depose the attorneys to ask them about the adequacy of their investigation and about their verification of the responses. The DoD filed a Motion for Protective Order to block the depositions. The Special Master denied this Motion, finding that there was clear evidence that the investigation made by the attorneys may have been inadequate, given the fact that Mr. Hiza and Mr. Bauer, experts in their respective fields, were not consulted during the investigation. However, when Goodrich deposed the attorneys, it received little or no information about what the attorneys did to investigate and gather information responsive to Goodrich's interrogatories, nor did it receive information about how the attorneys subsequently had obtained certain identifying information about nine individuals who had served at the RABSP during World War 11. The attorneys claimed privilege as to the source of this information, even though the purpose of Goodrich's interrogatories and the Special Master's order regarding the depositions was, in part, to determine ways in which this personnel could be identified and located. While Goodrich did not bring a motion challenging the DoD's assertion of privilege, and the Special Master makes no specific finding about the. appropriateness of the privilege objections, the Special Master does find that the DoD had the responsibility, in the context of its interrogatory responses to divulge to Goodrich any and all methods of identifying and locating Army personnel who had served at the RABSP.

*8 At a minimum, the method to find Army personnel who served at the RABSP through Morning Reports and Unit Rosters, the locations of these documents, and the process by which this information could be used to locate the personnel should have been provided to Goodrich in the United States DoD's original response to the interrogatories, which should have been verified by non-attorneys who could have immediately answered questions about the United States DoD's investigation relating to the interrogatories. The interrogatories relating to alleged TCE use at the RABSP should likewise have been verified by a non-attorney, who could have immediately answered questions about the sufficiency of the United States DoD's investigation into potential use of TCE at the RABSP.[2] The failure to properly verify these interrogatories caused significant delays and deprived Goodrich of its right to do proper follow-up discovery on the subject of the improperly verified interrogatories.

2. United States DoD's Document Production Relating to Operations at the RABSP

Like the United States EPA, the United States DoD set its own timeline for production of documents responsive to Goodrich's Requests for Production, stating that subject to certain objections, it would produce all documents responsive to Goodrich's Fifth Request for Productions of Documents (“Fifth Set of RFPS”) by May 31. Goodrich filed a motion to compel an earlier production date. The Special Master concluded that the DoD was unreasonable in setting its own date for production. However, as the motion was heard only a few days before the DoD's self-chosen production date, the Special Master simply ordered documents to be produced by that date. The DoD produced a certain number of documents on May 31, 2011. However, it soon became clear to Goodrich that this production was incomplete.

a. Documents Relating to Army Personnel Who Served at the RABSP

The United States produced no documents relating to the identities of Army personnel who served at the RABSP. Through depositions related to the DoD's interrogatory responses, Goodrich learned that the National Personnel Records Center (“NPRC”), maintained Unit Rosters and Morning Reports for each unit of the U.S. Army that served at the RABSP. (Dennis Decl., Par 19.) Goodrich specifically requested these Unit Rosters and Morning Reports, which were housed in NARA. However, the United States DoD fought at each step Goodrich's attempt to have the United States DoD produce these records which Goodrich could analyze so that the individuals who were identified as being stationed at the RABSP could be located. This was true even though, since these documents could be searched for by Army unit, the burden of such a search would be minimized.

The United States DoD argued that since these documents were a part of the (“NPRC”) and the NPRC was a part of the National Archives and Records Administration (“NARA”), the documents were publicly available and equally accessible to Goodrich. The United States argued this in spite of the fact that the documents were transferred to NARA exactly as they are maintained by the United States DoD, using the DoD's own filing system and Finding Aids, (Nortman Decl. Par. 34, Ex. FF [5/6/11 Hill Ltd. at 3: Par. 82, Ex. BBBB [Nelson Dep. Tr.] at 29; 13–32:9).

As was stated above in relation to the DoD's interrogatory responses, the existence and location of the documents that would have aided in identifying the Army personnel who served at the RABSP, and the process by which this information could be used to locate this personnel should have been immediately provided to Goodrich, even if the United States DoD wished to argue that it did not have to search for, collect and analyze these documents. Instead, essentially, the United States DoD used its questionable, if not insupportable contention that all of these records were publicly available and that Goodrich had both equal knowledge of and access to these records, located in NARA, to withhold crucial information from Goodrich.

*9 Later, it became clear that the United States DoD had superior knowledge concerning the existence of these documents, the location of these documents, and the organization of these documents within that location. Given these facts, the conclusion that the United States deliberately hid from Goodrich crucial information responsive to its interrogatories and document requests regarding Army personnel stationed at the RABSP is unavoidable. Whether any Army personnel identified sooner could have or would have given relevant testimony about possible use of perchlorate or TCE at the Rialto–Colton Basin cannot be known. However, the conduct of the United States DoD throughout Goodrich's efforts to locate this personnel borders on, if not constitutes, intentional obstruction of discovery, and is perhaps the clearest action supporting sanctions as to the United States DoD beyond a mere discovery extension, specifically regarding the issue of preclusion requested by Goodrich on the subject of the United States DoD's alleged release of perchlorate and TCE at the RABSP between 1941 and 1946.

This, along with all other remedies, will be discussed in Section III below.

b. Documents Relating to Historical Operations at the RABSP

While the United States produced some documents responsive to Goodrich's Fifth Request for Production of Document (Fifth Set of RFP's) having to do with a wide variety of topics relating to the United States DoD's operations at the RABSP between 1941 and 1946, and also with the DoD's role in Goodrich's operations at the 160 Acre Parcel in the late 1950's and early 1960's, it preserved objections to all of the requests. What ensued was a lengthy meet and confer process where repeatedly the DoD failed to specify the exact nature of its objections, and to the extent those objections were based on burden, the exact nature of the burden, including the locations that the DoD had not searched, but which it believed might possess responsive documents, and why searching those locations would be burdensome. Essentially, the DoD was attempting to set its own standard for what production was appropriate and what production was not.

Starting in August, Goodrich filed a series of Motions to Compel, which narrowed some of the issues related to the production of documents. First, on August 26, 2011, the Special Master ordered the DoD to search for records, which existed within NARA, that could be used to identify Army personnel who served at the RABSP during World War II. The Special Master also ordered the production of a report concerning the presence of perchlorate in World War II munitions, which is referenced as a future project of the DoD in the January 2004 SAIC report which concluded that, as of that date, the authors of the report were unaware of any source for identifying the perchlorate content of munitions used during World War II that could be used to determine the amount of perchlorate that had been shipped through the RABSP. The SAIC Report went on to state that the DoD had undertaken a research project to further the information regarding perchlorate content of munitions and upon completion that information would be “applicable to any site where there is a potential perchlorate release from military munitions.” (Dennis Decl. Par. 43). Gerald Vincent testified about reviewing a report that resulted from this project, along with spreadsheets. However, in response to Goodrich's request for documents concerning the chemical composition of ordnance shipped through the RABSP, the United States claimed that the report either never existed or could not be found. The Special Master also ordered the United States to identify the locations it had searched in response to the Fifth Set of RFPs, to specify what further locations were likely to possess responsive documents, and to explain why it would be burdensome to search such locations.

The DoD partially complied with this Order, beginning to collect documents, specifically Unit Rosters and Morning Reports, which could be used to identify those who were stationed at the RABSP. Further, the United States produced certain documents and spreadsheets that the United States claimed were related to the report referred to by Gerald Vincent concerning the perchlorate content of munitions used during World War 11, but the DoD continued to maintain that either a report never existed or could not be found.[3]

*10 Next, on September 19, 2011, the Special Master ordered the DoD to search NARA and other locations for documents responsive to all the requests, or, in the alternative to state all of the locations where responsive documents might be found, what the DoD) knew about the organization of the documents at these locations, and if the DoD was claiming burden as to searching and collecting these documents, the exact nature and extent of that burden. The DoD appealed this Order, specifically the portion that found that documents held by NARA were under the DoD's possession, custody, or control. Further, in the declarations submitted by the DoD in response to the Special Master's requirement of specifying the locations in NARA where responsive documents may exist, the declarants repeatedly state that they did not review the Master Location Registers and Finding Aids created by the DoD before declaring where responsive document might be found. (Dennis Deck, Par 36; see also, e.g., Nortman Deck Par. 61, Ex. GGG [10/24/11 Curtis Deck Ex. b] at 1).

It was not until Magistrate Judge Segal upheld the Special Master's Order in late November that the DoD began to search NARA for certain responsive documents, while continuing to assert burden objections as to which locations it had to search and which locations it did not. In January of 2012, many of these burden objections were withdrawn. The DoD produced a significant number of documents responsive to the Fifth Set of RFPs in January and February of 2012. These include documents such as contracts relating to ownership of equipment and materials, including perchlorate, between Goodrich and the United States DoD during Goodrich's operations in the Rialto–Colton Basin in the late 1950's and early 1960's. One of the reasons given for the delay in producing the contracts, which were housed in NARA, was that the documents were housed in an area that contained mainly classified documents, and therefore, had to go through a process of declassification. This final twist brought the story of Goodrich's struggles to get the DoD to produce responsive documents full circle. From the start, the United States DoD had claimed that documents housed in NARA were publicly available, and equally available to a party such as Goodrich as they were to the United States DoD. It soon became clear that the United States DoD clearly had superior knowledge as to the organization of the documents in NARA. The fact that certain crucial documents had to be declassified before they were produced to Goodrich was a final rebuke to the United States DoD's argument that the documents were publicly available, and equally available to both sides in this case.

While the special Master, until now, has never found that the United States DoD violated specific court Orders in this case, in hindsight, the DoD's unwillingness to meet discovery obligations required Goodrich to request repeatedly that the Court order the DoD to meet these obligations. Further, it is clear, again in hindsight, that the United States DoD's production of documents did not comply with at least four court Orders. In fact, according to the uncontradicted statements of counsel for Goodrich at the March 1, 2012 oral argument, the United States DoD has produced a significant number of documents as late as the final week before discovery cut-off, which, even allowing for all of the legal positions taken by the United States DoD attempting to limit its discovery obligations, should have been produced by the May 31, 2011 deadline. (Transcript of March 1, 2012 Oral Argument, at 261:9–262:24

Obviously, many of these documents, including the contracts, which all parties agree are crucial to central issues in this case, that have been produced in January and February 2012, a full seven to eight months after the original May 31, 2011 date for production, require follow-up discovery. To give just one example, the contracts produced in the final days before the discovery cut-off are central to Goodrich's deposition of the United States DoD's 30(b)(6) witness. (Transcript of March 1, 2012 Oral Argument, at 254:15–255:4). Simply put, all by themselves, without regard to the United States EPA's late productions of documents, the documents produced so close to the discovery cut-off by the DoD would support a significant extension of discovery in this case.

C. United States Document Production as Required by Rule 34

*11 Goodrich asserts that the United States EPA failed to produce documents us required by Rule 34, either labeled by the category of the request, or as the documents were maintained in the ordinary course of business, and that it did not even come close to such a production, until late 2011, even though the Special Master, Magistrate Judge Segal, and Judge Gutierrez ordered that the production of Electronically Stored Information had to be produced, either labeled by the categories in the request or as the information was maintained in the ordinary course of business, The delays in the production in a proper format revolve around an agreement that native files could be produced, in lieu of labeling the responses according to the categories in the request. This dispute over the production of ESI in its native format went on for months without the Special Master's involvement.

Even after reading the arguments of counsel and certain declarations filed by the United States, the Special Master cannot accurately determine the extent to which the United States EPA provided “native files” to Goodrich, which would have met the requirement of producing records as they were kept in the ordinary course of business. Once the “native files” agreement was made, it seems that the ongoing dispute between the parties and the declarations provided by the United States EPA justifying their production collapsed the standards of Rule 34 that address the requirement of organization of documents, either labeled by request or provided as they are kept in the ordinary course of business with the requirement that ESI be provided in a reasonably usable form. The United States EPA was required to produce “native files”, not in a reasonably usable form, but corresponding to the exact manner that the files were kept in the ordinary course of business. If the United States EPA could not produce files that met this standard, then, it was required to label the documents according to the categories in the request to which they were responsive.

By continuing to negotiate for truly “native files” that would satisfy the “ordinary course of business requirement” Goodrich acquiesced to the United States EPA's effort to produce documents as they were kept in the ordinary course of business, rather than labeling the production to correspond to the categories in the request, While the United States EPA has submitted declarations that explain and attempt to excuse these inadequacies, the Special Master concludes that the fact that the EPA ultimately produced documents in a native format that more closely resembled how the documents were kept in the ordinary course of business, after claiming for months that it could not produce the documents in this manner without compromising its ability to withhold privileged and non-responsive documents, is another factor requiring that Goodrich be allowed an extension of the discovery period.

In reviewing the totality of this case, the Special Master has taken into consideration whatever inadequacies there may have been in the form of the United States EPA's production. Specifically, the Special Master has taken into consideration the fact that the United States EPA never truly satisfied the requirements of Rule 34, which is to say that United States EPA never produced documents in the precise way that they were kept in the ordinary course or business, and the United States EPA never labeled their productions to correspond to the categories in the document requests. This failure by itself would not, in any way, warrant the extreme sanctions asked for by Goodrich; however, it is an added reason supporting Goodrich's contention that there must he an extension of discovery in this case.

D. Privilege Log Issues

The United States EPA failed to meet the Special Master's deadline for submitting a privilege log by July 15, 2011. Instead, the EPA submitted a clearly inadequate and incomplete log on that date. Eventually, the United States EPA submitted a corrected log. While this delay, in itself, does not possess the importance of the late document productions discussed above, it must be noted that, to this date, the issues surrounding the appropriateness of the privileges claimed by the United States of the approximately 13,000 documents listed on its log, continue to be litigated.

*12 The Special Master is currently conducting a review of 250 documents to determine if the United States EPA's claim of privilege on the documents is valid. The Special Master anticipates than it will be determined that anywhere between 10 and 25% of these documents are not privileged. Further, as an adjunct to this review, the United States, on its own, has reviewed 500 documents listed on the EPA's privilege log which Goodrich had questioned. Upon completion of this review, on February 27, 2012, one day before discovery cut-off, the United States produced 105 of the 500 documents, or slightly more than 20% of the documents for which attorney client privilege was claimed. Based on these figures, the Special Master expects to order further review of privileged documents by the United States EPA.

The Special Master does not believe that the fact that the EPA did not complete its privilege logs by the deadline ordered by the Special Master or the fact that a relatively high percentage of documents listed on the EPA's privilege log arc, in fact, not privileged, would, by itself, demand or even suggest any of the sanctions asked for by Goodrich. But the Special Master does believe that the fact that such a significant percentage of documents, which were erroneously withheld on the basis of privilege, even within the small sample of documents reviewed thus far, is an added factor requiring that discovery be extended in order to allow Goodrich to make certain that all responsive documents that should have been produced will be produced, and that Goodrich has the opportunity to do follow up discovery on the information in these documents in order to prepare its defense in this case.

III. Discussion of Remedies

What magnifies the shortcomings of the United States' response to discovery requests in this case is that the United States has a unique role in the case. On behalf of the EPA, the United States is a plaintiff, bringing an enforcement action under CERCLA and RCRA against private parties for alleged perchlorate and TCE contamination in the Rialto–Colton basin. On behalf of the DoD, it is a defendant, a Potentially Responsible Party (“PRP”), in relation to that contamination because of its operations at the RABSP from 1941 to 1946, and also, because it employed both Goodrich and Emhart during Emhart's and Goodrich's operations in the 1950's and early 1960's. This situation is unavoidable, and perhaps even necessary, given the duties and responsibilities of the United States EPA and the United States DoD. But within the context of this litigation, it has repeatedly raised complex issues of fairness that have been difficult to resolve.

Now, these issues of fairness must be examined in relation to the numerous, but separate and distinct inadequacies, in the responses of, on the one hand, the United States EPA, and, on the other hand, the United States DoD to Goodrich's discovery requests.

A. Dismissal of Action

Goodrich has asked that the Special Master dismiss, with prejudice, the United States Complaint in its entirety for its discovery abuses and violations of Court Order. Federal Rule of Civil Procedure 37(b)(2)(A)(v)grants the Court the power to dismiss an action as the most extreme sanction for violation of a Court Order. However, case law makes clear that the violations must have been willful. Computer Task Group, Inc. V. Brotby,364 F. 3d 1112 ((9th Cir. 2004), Further, even if there has been a willful violation of an Order, the Court must weigh the following five factors: “1) the public's interest in expeditious resolution of litigation; (2) the court's need to manage its dockets; (3) the risk of prejudice to the party seeking sanctions; (3) the public policy favoring disposition of cases on their merits; and (5) the availability of less drastic sanctions.” Connecticut General Life Ins. Co. v. New Images of Beverly Hills, 482 F. 3d 1091, 1096 (9th Cir. 2007)

*13 Though the conduct of both the United States EPA and the United States DoD has been far below what one should expect from any party in discovery, let alone two separate representatives of the United States, the Special Master does not believe that Goodrich has met the standard of willfulness necessary to consider seriously the dismissal of this action. Therefore, the Special Master will consider the lesser sanctions which Goodrich has asked to be imposed.

B. Issue Sanctions

Goodrich has requested that pursuant to Federal Rule of Civil Procedure 37(b)(2)(A)(i) that the Special Master rule that the following issues be deemed established for purposes of trial and the Judgment in these consolidated actions:

1. That neither Trichloroethylene (“TCE”) nor perchlorate released from Goodrich's operations (to the extent there was any) has reached the groundwater.

2. That an imminent and substantial endangerment does not exist at the B.F. Goodrich Superfund Site.

3. That a representative sample of “solid waste” generated by Goodrich at the 160–Acre Site (“Site”) does not constitute a “hazardous substance” under CERCLA.

4. That the United States falsified information in order to list the Site on the National Priorities List (“NPL”) and that without such false information the Site would not have met the scoring requirements to be listed on the NPL.

5. That the United States DoD used and released TCE and perchlorate into the soil at the RABSP.

6. That TCE and perchlorate disposed of by DoD at the RABSP have contaminated the groundwater beneath the Rialto–Colton Groundwater Basin.

7. That the United States DoD owned the equipment and material utilized in the Goodrich operations at the Site between 1957 and 1963 and authorized the waste disposal procedures at the Site.

Under Federal Rule of Civil Procedure 37(b)(2)(A)(ii), once a Court Order is violated, the Court has the authority to prohibit the disobedient party from supporting or opposing designated claims or defenses, or from introducing designated matters in evidence. Further, under Rule 37(b)(2)(A)(i), the court may direct that the matters embraced in the order or other designated facts be taken as established for purposes of the action, as the prevailing party claims.

Both of these remedies are sanctions for violation of a Court Order. They do not involve or require any weighing of the actual facts related to the issues to be deemed established. Rather, they are based on “the reasonable assumption that the party resisting discovery is doing so because the information sought is unfavorable to its interest.” Gibson v. Chrysler Corp., 261 F. 2d 927, 948 (9th Cir. 2001). “In such a case, the sanction merely serves as a mechanism for establishing facts that arc being hidden by the party resisting discovery.” Id.

The Special Master does not believe that deeming that certain issues be established is appropriate at this time, as long as other, lesser remedies, specifically granting Goodrich the right to take further discovery based on documents produced in the days leading up to and following the current discovery cut-off, including crucial documents about the contractual relationship of Goodrich and the United States DoD at the time of Goodrich's operations at the 160 Acre parcel, are available to cure the prejudice suffered by Goodrich by the conduct of the United States in discovery.

C. Extension of Discovery

Goodrich has requested a stay of all discovery deadlines set forth in Case Management Order No. 1, including the deadline to exchange expert witness information, for six months so that Goodrich may proceed with additional percipient discovery against the United States with the United States having no reciprocal discovery rights during that period.

*14 Short of the issue preclusion sanctions discussed above, this is the only possible remedy that would cure the prejudice Goodrich has suffered from the United States' inadequate discovery responses, including the violations of the Court Orders discussed above. An extension of discovery would allow Goodrich to review the avalanche of documents produced by the United States EPA and DoD during the last few weeks immediately before and extending through the existing discovery cut-off, months after they were ordered to be produced, and to conduct proper and necessary follow-up discovery.

The Special Master further believes that this remedy is a called for and mandatory available lesser sanction provided for by Federal Rule of Civil Procedure 37(b)(2)(A)(iv). This section allows the Court, in cases where a party has violated a Court Order, to stay “further proceedings until the order is obeyed.” In this case, for the remedy of this lesser sanction to be effective, both the discovery cut-off and the exchanging of witness reports must be extended. Simply put, short of dismissal, which is clearly not called for in this case, or issue preclusion, which, given the facts of this case, would likely be as extreme a sanction as dismissal, this is the only possible lesser sanction to cure the prejudice to a party such as Goodrich where an opposing party, such as the United States which is both a plaintiff and defendant, does not comply with discovery orders in a timely fashion.

Therefore, the Special Master finds that implicit in the power to stay proceedings granted by Federal Rule of Civil Procedure 37 is an acknowledgment that the opposing party must be given a right to complete proper and necessary discovery once the offending party comes into compliance with all court orders regarding its discovery obligations. Therefore, the Special Master finds that Goodrich's request for an additional six months to pursue further discovery against the United States is reasonable, and at a minimum Goodrich must be given an additional four to six months to pursue further discovery against the United States, and that during this period the United States should be barred from any reciprocal discovery rights, barring extraordinary circumstances.

If this extension of discovery is denied, for reasons of practicality or expediency, The Special Master believes the only alternative would he either to dismiss the United States' action in its entirety, a remedy that the Special Master believes is neither reasonable, nor supportable under applicable case law, or for the Court to examine closely and fully, each of the issues Goodrich requests be deemed as established for trial to determine the precise extent that the delays in the discovery responses relating to each of these issues prejudiced Goodrich's ability to prepare its defense for trial and to determine whether these issues should be decided for Goodrich. However, the Special Master believes that at this time, this is not an appropriate sanction because Rule 37(b)(2)(A)(iv) allows for the appropriate lesser sanction of extending the discovery cut-off.

If the Court finds that the extension of discovery under Rule 37 is not a lesser sanction which must be considered, the Special Master concludes that each of the issues that Goodrich has requested to be deemed established must he considered in detail. Because the Special Master believes that the discovery extension is the only appropriate and reasonable lesser sanction given all of the facts and circumstances of this case, and that this available lesser sanction makes consideration of issue preclusion premature at this time, the Special Master will not engage in the detailed analysis of each issue for which Goodrich requests issue preclusion and the specific prejudice which Goodrich has suffered by not having access to documents regarding the particular issue. However, the Special Master wishes to make clear that if no extension of the discovery period is granted, the request for issue preclusion must be revisited, and each of the issues for which Goodrich asks for preclusion must be analyzed in relation to the inadequacy of the United States' discovery responses, including those inadequacies that constituted clear violations of the Special Master's Orders, relating to each subject matter for which Goodrich has requested issue preclusion.

*15 The Special Master feels compelled to add that if, for any reason, the Court disagrees with the Special Master's conclusion that Rule 37(b)(2)(A)(iv) includes within the lesser sanction of the staying of proceedings until a Court Order is obeyed, the related relief of an extension of the discovery cut-off, thereby allowing the aggrieved party a right to complete the discovery required to prepare its case, as it would have if not for the violations of Court Orders, the Special Master, in the alternative, recommends that on its own authority, the Court extend discovery as between Goodrich and the United States for the same period of six months, after six months, or at a minimum of four months for all of the reasons discussed above. The Special Master further recommends that the rights and obligations relating to discovery during this period be as the Special Master has described them above.

Again, if the Court declines to take this recommendation, and decides that the existent discovery cut-off must be maintained, the Special Master reiterates her belief that the issue preclusion sanctions requested by Goodrich must be given full consideration. Simply put, if there is no discovery extension, the United States' failures to comply in a timely fashion with the discovery orders in this case would severely compromise Goodrich's ability to prepare for and present a complete defense at trial. See Chilcutt v. United States, 4 F. 3d 1313 (5th Cir. 1993).[4]

D. Stay on Discovery Propounded by the United States

The Special Master also has concluded that Goodrich's request of a stay on all outstanding discovery propounded by the United States must be granted. As discussed above, Federal Rule of Civil Procedure 37(b)(2)(A)(iv) allows a Court to stay further proceedings until a disobeying party comes into compliance with all Court Orders. This does not relieve Goodrich from responding to the discovery properly propounded by the United States before the discovery cut-off once there has been a clear determination that the United States is in full compliance with all Orders of the Court. In fact, the United States can, at any time, attempt to demonstrate that it has responded fully to all discovery propounded by Goodrich that is the subject of a Court Order, including but not limited to demonstrating that it has produced all documents responsive to all discovery orders, except for any future supplementations under Rule 26 of newly generated documents. This means that both the EPA and the DoD would have to demonstrate that they have produced all documents responsive to the First and Fifth Set of RFPs, as well as all other document requests and interrogatories subject to orders of this court. The United States may believe that it is already in full compliance. However, both the EPA and the DoD have failed to comply with existing Court Orders for a significant period of time. For instance, the DoD has stated that it is still producing documents at this time. Therefore, the Special Master finds that both the EPA and the DoD must make clear, convincing showings that they have produced all responsive documents.

Once the stay is lifted, Goodrich will have to respond to all discovery propounded by the United States that could have been completed before discovery cut-off in the absence of any disputes, regardless of whether the Special Master's Order extending discovery is upheld, modified, or overruled.

IV. Conclusions

*16 This has been an aggressively litigated case, but also a case where the party resisting that aggressiveness has, in itself (divided in two), used highly aggressive tactics. There is no question that the essential difficulties in this case have originated, albeit in very different ways, from two opposite, one is tempted to say, opposed, sides of one party, the United States of America. It is clear to the Special Master that the United States EPA and the United States DoD are, in some ways, in an adversarial position regarding the status of perchlorate as a hazardous substance potentially polluting land at sites all over the United States, and even as to the potential culpability of the United States DoD in relation to the contamination of the Rialto–Colton Basin. Wayne Praskins, EPA Region 9 Remedial Project manager for the clean-up of the RABSP stated, back in 2004 that a draft perchlorate report submitted to Congress that included a summary of the DoD's potential liability due to spills or releases of perchlorate at the RABSP during WWII, presented a “deceptively negative” picture of the possibility that releases of perchlorate occurred at the RABSP. (Dennis Decl., Par. 44, Ex. LLL to Nortman Decl.) However, these two representatives of the United States have, at no time, been in an adversarial position in this case. The United States EPA has relieved itself of the responsibility of pursuing information that would reveal to what extent the United States DoD was responsible for the contamination in the Rialto–Colton Basin. Instead, the United States EPA has attempted to recover the costs of the necessary clean-up from private parties, including Goodrich. As best as the Special Master can determine, the way this case is being prosecuted is within the rights of the EPA, as defined by CERCLA and RCRA, and in itself, the fact that the EPA is bringing an action against certain parties, where another part of the United States is a potential PRP in the action, would not have created the problem that we are now addressing.[5] The Special Master has been willing to accept from the start of this case that the United States EPA and the United States DoD are separate parties for purposes of all matters relating to procedural and substantive issues relating to discovery. However, in terms of the ultimate liability of parties in this case, and in terms of issues of fairness relating to the prosecution of this case, the United States, on behalf of the EPA, and the United States, on behalf of the DoD, is one party. Even this would not be a problem if both the United States EPA and the United States DoD, as separate entities, with separate interests, but as one party with regard to issues of liability and fairness, had attempted to be transparent and forthcoming in relation to discovery in this case. Instead, both, as separate entities, and one, as a unified entity, has (have) failed repeatedly in meeting its (their) responsibilities of answering discovery, including producing documents, in a timely manner. At best, the United States, both on behalf of the EPA and on behalf of the DoD, has consistently attempted to delay the production of documents and other discovery, and at worst, the United States, on behalf of the EPA and especially on behalf of the DoD, has attempted to block what in hindsight, even more than during the time each dispute was being resolved, were reasonable requests for discovery in this case.

Simply put, both the United States EPA and the United States DoD have taken questionable positions concerning their discovery responsibilities on numerous occasions throughout this case, and through these positions have appeared to be the positions of separate and distinct parties, ultimately, they must be viewed together. The United States EPA wishes to argue that it has done the best it can do to accomplish a massive, daunting, task of collecting and reviewing millions of pages of documents with well meaning, underpaid lawyers who are only attempting to serve the public interest to the best of their abilities. At the same time, the United States DoD has taken a very different view, arguing that its responsibility to respond to discovery does not stretch across space and back in time as far as Goodrich has demanded. However, none of Goodrich's discovery requests have been unreasonable, and to the extent that the demands of the discovery were too great, the requests were narrowed and extensions were granted. Still, the United States EPA, perhaps because it was not capable of accurately and completely complying with the demands of producing all responsive documents, perhaps because it felt from the beginning that it should be able to set its own standard for what is relevant in a CERCLA action and/or its own timetable for production, produced crucial documents only after Goodrich, other parties, and the Special Master questioned the EPA's representations that it had produced all responsive documents. And the DoD, perhaps because it could not accept that it was being forced to provide all information available to it and to search so many locations for documents from so long ago, delayed in locating and producing crucial information in this case about Army personnel, about operations at the RABSP and about perchlorate, and ultimately failed to produce crucial documents about its contractual relationships with Goodrich and other defendants until literally days before the discovery cut-off.

*17 As stated above, I believe that the only correct and just resolution to what has transpired during the course of discovery in this case over the past year is to find that under Rule 37(b)(2)(A)(iv) of the Federal Rules of Civil Procedure, a four month extension of discovery cut-off be granted in this case, not as what is optional or within the Court's discretionary authority, but as what is mandated by Rule 37. The proceedings, in this instance, discovery cutoff and the exchange of expert reports, are being stayed only for that period of time required to make up for the prejudice suffered by Goodrich because of the egregiously late production of documents by both the United States EPA and the United States DoD, and to restore to Goodrich the position in relation to preparing its case for trial that it would have had if the Untied States had complied with the Orders of the Special Master, and this Court.

IT IS ORDERED:

1. Goodrich Corporation's Motion For Sanctions is granted in part and denied in part.

2. The Special Master orders that the Discovery Cut–Off, as that Cut–Off applies to Goodrich Corporation and the United States, is extended four months, from February 29, 2012 to June 29, 2012, with the rights and obligations of the parties relating to this discovery being as set forth in this report.

3. The Special Master further orders that the deadline for the exchange of expert reports between Goodrich and the United States is extended from April 13, 2012 to August 10, 2012.

4. The Special Master orders that there be a stay on Goodrich's obligations to respond to all discovery propounded by the United States until the United States has demonstrated that it has produced ell documents and responded to all other discovery that has been the subject of Court Orders in this case.

5. Pursuant to the provisions of the Order Re Redesignation of Venetta S. Tassopulos, United States Magistrate Judge (Ret) as Special Master and Rule 53 (e) of the Federal Rules of Civil Procedure, the “REPORT AND ORDER” shall be filed with the clerk and a copy provided for the Honorable Suzanne Segal and served on each party by First Resolution Services, Inc.

Footnotes

[1]

Pyro Spectaculars, Inc. withdrew from the Motion for Sanctions upon reaching a tentative settlement with the United States.

[2]

In December of 2011, after Goodrich filed another Motion to Compel supplemental responses to the interrogatories, the United States DoD agreed to have non-attorneys verify all of the interrogatories at issue, both those having to do with the identification of Army personnel and those having to do with alleged TCE use at the RABSP.

[3]

Mr. Vincent recently testified at deposition that the spreadsheets produced to Goodrich by the United States DoD were not the same as the ones he had reviewed in relation to the report of the perchlorate content in World War II munitions. Therefore, as of now, neither the report nor the spreadsheet referred to by Mr. Vincent at his first deposition have been produced.

[4]

This is especially true in relation to the United States DoD. Without a discovery extension, the Special Master has stated that the Court would have to seriously consider deeming certain issues as established, and the first of these issues that would have to be examined in relation to the DoD's discovery practices in this case would be the issue of whether the DoD released perchlorate and TCE into the ground and water at the RABSP between 1941 and 1946.

[5]

Early on in this case, the Special Master recalls an exchange between a private party in this case and a representative of the United States, most likely a lawyer for the Department of Justice, though the specifics have been forgotten. The discussion centered on the potential liability of the DoD in this case, and the fact that the DoD was not a defendant in the EPA's enforcement action, and the response of the lawyer for the Department of Justice was, “The United States can't sue itself.” Given the discovery strategies of the DoD, on the one hand, and the EPA, on the other hand, the question that must be asked, but cannot be clearly answered, is, What can the United States do to itself when faced with the situation presented in this case, and more importantly, what responsibility does the United States have to address its own culpability for potential contamination and clean up costs in a CERCLA action, where it is aggressively pursuing these costs from private parties? It is not the Special Master's role to decide these issues, under CERCLA. However, the Special Master has made clear throughout this case that both representatives of the United States must be held to a strict standard of transparency in relation to their discovery obligations.