E & J GALLO WINERY, Plaintiff, v. ENCANA ENERGY SERVICES, INC., et al., Defendants CASE NO. CV-F-03-5412 AWILJO United States District Court, E.D. California Filed September 16, 2004 Counsel D. Greg Durbin, McCormick Barstow LLP, William H. Littlewood, Dowling Aaron Inc., Timothy John Buchanan, McCormick Barstow Sheppard Wayte & Carruth, LLP, Fresno, CA, G. Kip Edwards, Law Offices of G. Kip Edwards, Kings Beach, CA, Joseph W. Cotchett, Cotchett, Pitre & McCarthy, LLP, Burlingame, CA, Steven N. Williams, Joseph Saveri Law Firm, Inc., San Francisco, CA, David A. Battaglia, J. Christopher Jennings, Gibson Dunn and Crutcher LLP, Los Angeles, CA, for Plaintiff. David A. Battaglia, Jason C. Lo, Heather L. Richardson, J. Christopher Jennings, Matthew A. Hoffman, James P. Fogelman, Richard P. Levy, Gibson, Dunn & Crutcher LLP, Duane R. Lyons, Quinn Emanuel Urquhart Oliver and Hedges, LLP, Los Angeles, CA, Louis E. Shoch, III, Maier Shoch LLP, Hermosa Beach, CA, Stephen R. Cornwell, Cornwell & Sample, LLP, William C. Hahesy, Law Offices of William C. Hahesy, Fresno, CA, for Defendants O'Neill, Lawrence J., United States Magistrate Judge ORDER ON DEFENDANTS' MOTIONS TO COMPEL (Docs. 154-161, 164.) INTRODUCTION *1 In this action alleging natural gas price fixing, defendants Encana Corporation (“Encana Corp.”) and WD Energy Services, Inc. (“WD Energy”) seek further documents, depositions and other discovery from plaintiff E. & J. Gallo Winery (“Gallo”). Gallo seeks to impose a $13,252.50 on Encana Corp. and WD Energy (collectively “defendants”) and their counsel and to strike defense counsel's declarations and supporting documents. Based on the record and without oral argument, this Court issues the following orders on defendants' motions to compel. See Local Rule 78-230(c) and (h). BACKGROUND Gallo and Gallo Glass Company (“Gallo Glass”) produce wine and wine bottles using natural gas. Gallo is one of California's largest consumers of natural gas used to operate its furnaces. Encana Corp., a Canadian company, is North America's largest independent natural gas producer and seller and does business in California through its subsidiaries. Encana Energy Services, Inc. (“EES”) was Encana Corp.'s indirect subsidiary and sales and marketing arm in the United States. Encana Corp. used EES to trade, hedge and speculate in natural gas, natural gas transportation contracts and natural gas market-based derivatives. EES changed its name to WD Energy Services Inc.[1] in early 2003. During April 2001 to June 2003, EES was Gallo's sole marketer.[2] Gallo claims that when EES “ostensibly” worked with Gallo, EES conspired with natural gas marketers to artificially inflate natural gas prices and related commodities contracts. On April 9, 2003, Gallo filed this action to pursue against defendants price fixing claims under the Sherman Act, 15 U.S.C. § 1, and the Cartwright Act, Cal. Bus. & Prof. Code, §§ 16700, et seq., and claims for unfair business practices (Cal. Bus. & Prof. Code, §§ 17200 et seq.), and unjust enrichment, constructive trust and fraudulent transfer under California Civil Code, §§ 3439, et seq. Gallo alleges defendants manipulated and grossly inflated California natural gas prices and derivative markets. The parties have engaged in extensive discovery, and numerous discovery disputes have arisen. In August, defendants filed their notices of motions to compel: 1. Production of John Gallo's electronic documents; 2. Gallo's updated, revised privilege log; 3. Attachments to electronic documents; 4. Unredacted documents; 5. Documents from other energy litigation; 6. Organizational documents of Gallo and related entities; and 7. Three additional days deposition of Gallo's F.R.Civ.P. 30(b)(6) designated witness. DEFENDANTS' MOTION TO COMPEL JOHN GALLO'S ELECTRONIC RECORDS Background At his August 17, 2004 deposition, John Gallo (“Mr. Gallo”), Vice President of Gallo Glass, testified that he used his home computer for work and that he was unaware of a search of his home or office computers in response to defendants' document requests. On August 18, 2004, Anthony Youga (“Mr. Youga”), Gallo's chief financial officer, testified that his computer system had not been searched recently, that e-mails are automatically deleted after 60 days, and that he is unaware of attempts to preserve e-mail or other electronic data. The August 31, 2004 letter of Gallo's counsel noted Mr. Gallo had searched his home and office computers and will produce responsive, non-privileged documents within three weeks. *2 Defendants contend Gallo should produce, within two weeks, all responsive electronic documents on Mr. Gallo's home and office computers and all responsive electronic information on computers of all other Gallo personnel. Gallo contends there is no bona fide discovery dispute because Gallo is committed to produce Mr. Gallo's electronic documents. Discussion This motion appears to be a non-issue. Gallo has committed to produce Mr. Gallo's electronic documents. Production of electronic records of all Gallo personnel is beyond the scope of this motion. Production of Mr. Gallo's responsive electronic documents is in order. Order This Court ORDERS Gallo, no later than October 1, 2004, to: 1. Produce all of Mr. Gallo's responsive non-privileged, non-protected documents from his home and office computers; 2. SERVE a privilege log for responsive documents withheld under a privilege or protection; and 3. INCLUDE in a privilege log no less than the following for each withheld document: a. The document's general nature and description; b. Identity and position/title of its author or preparer; c. Date it was prepared or written; d. Identity and position/title of all addressees and recipients; e. The document's present location; and f. Specific reasons it is withheld, that is, privilege or protection invoked and grounds thereof. DEFENDANTS' MOTION TO COMPEL GALLO'S UPDATED. REVISED PRIVILEGE LOG Background On June 18, 2004, Gallo served its 19-page privilege log to respond in part to defendants' document requests. Defendants' July 2, 2004 letter inquired whether Gallo asserted privileges/protections to certain documents. In an August 2, 2004 letter, Gallo indicated it would produce an updated privilege log. In its August 31, 2003 letter, Gallo indicated an updated privilege log would be produced no later than September 3, 2004. Defendants contend Gallo should immediately produce an updated, revised privilege log and respond to defendants' inquiries regarding whether Gallo asserts privileges/protections to certain documents. Gallo contends that it has committed to produce an updated privilege log and to respond to a handful of minor questions about its initial privilege log. Discussion Again, this motion appears to be a non-issue. Gallo has committed to produce its updated privilege log and to respond to defendants' inquiries about its initial privilege log. An updated privilege log appears in order. Order This Court ORDERS Gallo, no later than October 1, 2004, to serve its updated, revised privilege log and responses to defendants' inquiries regarding Gallo's initial privilege log. DEFENDANTS' MOTION TO COMPEL ATTACHMENTS TO ELECTRONIC DOCUMENTS Background Gallo produced electronic mail messages without printing accompanying attachments. Defendants prepared a chart of electronic mail messages with 87 missing attachments and provided Gallo the chart with its August 25, 2004 correspondence. With its August 31, 2004 letter, Gallo committed to review its records regarding the 87 attachments and to produce non-privileged documents within three weeks. Defendants contend that Gallo should have printed out the attachments at the time of production of the electronic mail messages and should produce the 87 missing attachments or explain the status of missing attachments which cannot be produced. Gallo notes that its August 31, 2004 letter confirmed it will review the electronic documents noted by defense counsel and will produce non-privileged documents in three weeks. Discussion *3 Again, this motion appears to be a non-issue. Gallo has committed to produce the missing non-privileged attachments and to otherwise appropriately address privileged attachments. Such production and a privilege log, if necessary, are proper. Order This Court ORDERS Gallo, no later than October 1, 2004, to: 1. PRODUCE all available and retrievable non-privileged, non-protected attachments identified on defendants' chart; 2. SERVE a privilege log for attachments withheld under a privilege or protection and INCLUDE in such privilege log no less than the following for each withheld attachment: a. The attachment's general nature and description; b. Identity and position/title of its author or preparer; c. Date it was prepared or written; d. Identity and position/title of all addressees and recipients; e. The attachment's present location; and f. Specific reasons it is withheld, that is, privilege or protection invoked and grounds thereof; and/or 3. SERVE, as to attachments it could not locate or retrieve, its declaration under penalty of perjury by the person in the best position to do so and STATE in the declaration who attempted to locate and retrieve the attachments, efforts to locate and retrieve the attachments, and why Gallo is unable to locate, retrieve and/or produce attachments. DEFENDANTS' MOTION TO COMPEL UNREDACTED DOCUMENTS Background On August 10, 2004, defendants reviewed Gallo's document production and claim numerous documents “were heavily redacted to the point of being incomprehensible.” According to defendants, Gallo redacted almost all words but “energy” and redacted surrounding words, sentences and paragraphs. On August 25, 2004, defendants provided Gallo a five-page chart listing specific redacted documents and issues as to redactions. In its August 27, 2004 letter, Gallo agreed to review the redacted documents on the chart. In its August 30, 2004 letter, Gallo committed to complete the review within three weeks and to provide “a further response as appropriate.” Defendants contend “a number of documents appear to have questionable redactions, making it difficult to comprehend what is being discussed.” Defendants want Gallo to review the originals of redacted documents, produce unredacted copies of relevant portions of the documents, and explain why documents should remain redacted. Gallo notes its in-house and litigation attorneys reviewed Gallo's documents for redaction. Discussion Defendants have raised legitimate concerns of heavy redacting. Gallo has failed to address the merits of defendants' concerns although it has agreed to again review the redacted documents. Such agreement demonstrates credence of defendants' points. Order This Court ORDERS Gallo, no later than October 1, 2004, to: 1. REVIEW the original documents listed on defendants' chart and REASSESS redaction; and 2. PRODUCE unredacted portions of the documents or SERVE a declaration under penalty of perjury by the person in the best position to do so and STATE in the declaration an explanation for the redactions to address defendants' concerns noted on their chart. DEFENDANTS' MOTION TO COMPEL DOCUMENTS FROM OTHER ENERGY LITIGATION Background On December 10, 2001, Dry Creek Corporation (“Dry Creek”) brought its action entitled Dry Creek Corporation v. El Paso Natural Gas Company, et al. (“El Paso action”), in Alameda County Superior Court to allege several gas utilities caused damages for increased natural gas costs. On January 16, 2004, Dry Creek brought its action entitled Dry Creek Corporation v. Williams Energy Marketing & Trading Company, et al. (“ Williams action”), in Alameda County Superior Court to allege damages for increased electricity costs. Settlement was reached in the El Paso action, and Gallo has produced the settlement agreement and nonprivileged attorney communications for the El Paso action. *4 Defendants seek from Gallo all discovery, correspondence and pleadings from the El Paso action and all discovery and pleadings from the Williams action. Defendants claim that Gallo has produced only limited documents from the El Paso and Williams actions and that requested documents are reasonably calculated to lead to admissible evidence regarding, among other thing, Gallo's alleged damages. Gallo contends that defendants should have El Paso and Williams actions documents in that defense counsel is counsel of record in the El Paso and Williams actions. Discussion Defendants fail to demonstrate they propounded specific requests for El Paso and Williams actions documents sought here. In the absence of such requests, there is nothing for this Court to compel. More troubling, defense counsel is counsel of record in the El Paso and Williams actions and has access to papers and discovery in the actions. Order This Court DENIES defendants' motion to compel documents from the El Paso and Williams actions. DEFENDANTS' MOTION TO COMPEL ORGANIZATIONAL DOCUMENTS OF GALLO AND RELATED ENTITIES Background On June 10, 2004, Gallo Gas executed an assignment to Gallo of claims relating to this action. At its June 11, 2004 F.R.Civ.P. 30(b)(6) deposition, Gallo produced what defendants characterize as a “created-for-litigation” organizational chart to reflect the relationships among Gallo, Gallo Glass, Dry Creek and San Joaquin Valley Concentrate (“SJVC”). The chart reflects a subsidiary relationship between Gallo and Gallo Glass. Gallo has produced a multi-page chart reflecting substantial damages sought on Gallo Glass and SJVC's behalf. Defendants points to Gallo's papers in other actions stating that Gallo Glass is Dry Creek's wholly-owned subsidiary and that Dry Creek is the parent corporation of Gallo, Gallo Glass, GVI-Gallo Vineyards and Gallo Sales Company, Inc. Defendants reference a declaration of a senior Dry Creek officer that Dry Creek's wholly owned subsidiaries include Gallo, Gallo Glass, Gallo Vineyards, Inc. and Gallo Sales Company, Inc. Defendants also point to inconsistent testimony of executives regarding the relationship among Gallo, Gallo Glass and Dry Creek. This Court's August 6, 2004 order addressed Gallo's production of documents at issue here. WD Energy's Document Request No. 28 seeks all documents relating to the articles or certificates of incorporation, bylaws, minutes of meetings of directors, actions by directors, minutes of meetings of shareholders, or actions by shareholders of Gallo, Gallo Glass, Dry Creek, and their predecessors since January 1, 1995. In ruling on WD Energy's motion to compel, this Court ordered Gallo, no later than August 30, 2004, to produce: (1) a listing of directors and officers since 1999 for Gallo, Dry Creek and Gallo Glass; and (2) minutes of board of directors' meetings referencing discussions of natural gas pricing (with irrelevant or nonresponsive matters redacted). WD Energy's Document Request Nos. 31 and 32 seek Gallo's organizational charts and all documents to explain or define Gallo's relationship between Gallo, Dry Creek and Gallo Glass. In response to WD Energy's motion to compel as to these requests, this Court issued its August 6, 2004 order to require Gallo, no later than August 30, 2004, to produce all documents, if any, regarding assignments of rights or claims for this action. Defendants contend that the chart reflecting the relationships among Gallo entities is inconsistent with claims in other actions that Dry Creek wholly owns Gallo Glass. According to defendants, documents to evidence the Gallo entities' organization and allocation of costs among them are critical to determine whether Gallo, as the sole plaintiff in this action, has suffered losses from defendants' alleged wrongdoing. Defendants claim they need documents to reflect: (1) ownership of Gallo, Gallo Glass, Dry Creek, SJVC, Gallo Vineyards and any other Gallo entity claiming damages since 1999, including documents reflecting a change in ownership; (2) agreements between or among them regarding allocation and transfer of costs, including energy costs; and (3) assignment of claims and consideration for assignments. *5 Gallo contends that this Court's August 6, 2004 order addresses the documents sought by defendants to require no further action. Discussion Gallo and Dry Creek have created confusion regarding the ownership of Gallo Glass for whom Gallo seeks damages. The organizational chart produced by Gallo adds to the confusion. Defendants are entitled to unwind the ownership of entities for whom Gallo seeks damages to test the merits of Gallo's damages claims. As such, production of documents regarding the Gallo entities' ownership is in order and subject to WD Energy's Request No. 33. This Court has already ordered production of documents regarding assignments of claims for this action. Defendants point to no document requests seeking agreements between or among Gallo entities regarding allocation and transfer of costs, including energy costs. In the absence of such request, this Court is not in a position to compel production of such documents. Order This Court ORDERS Gallo, no later than October 1, 2004, to produce or make available for photocopying all documents reflecting the ownership of Gallo, Gallo Glass, Dry Creek and any other Gallo entity seeking damages or on whose behalf damages are sought in this action. DEFENDANTS' MOTION TO COMPEL THREE ADDITIONAL DAYS DEPOSITION OF GALLO'S F.R.CIV.P. 30(B)(6) DESIGNATED WITNESS Background WD Energy served its F.R.Civ.P. 30(b)(6) notice to depose Gallo's designated witness on 15 categories, including Gallo's natural gas purchases, communications or transactions between Gallo and defendants, increased natural gas prices, conspiracy to increase natural gas prices, Gallo's alleged damages, Gallo entities' organizational structure, business relationship among Gallo entities, and settlement of the El Paso action and other litigation. For all categories, Gallo designated Bruce C. Hungate (“Mr. Hungate”), whom defendants deposed for seven hours on June 11, 2004. Gallo refused defendants' requested for more time to depose Mr. Hungate given the complexity of issues and documents produced. On July 19, 2004, Gallo produced seven boxes of documents containing what defendants characterize as thousands of pages of new information. Later, Gallo produced another box of documents. Gallo has offered to provide Mr. Hungate for an additional day of deposition if defendants do not depose him in his individual capacity. Defendants agreed to forego Mr. Hungate's deposition in his individual capacity but seek three additional F.R.Civ.P. 30(b)(6) deposition days. Defendants note they were unable to depose Mr. Hungate regarding thousands of pages of new documents Gallo produced after his June 11, 2004 deposition. Defendants contend the complexity of the F.R.Civ.P. 30(b)(6) deposition categories requires more than a seven-hour deposition and an additional day to depose Mr. Hungate is insufficient to address Gallo's serious allegations and alleged damages. Gallo contends the documents it produced after Mr. Hungate's deposition are “cumulative” of those it produced before the deposition. Gallo notes defendants have deposed other Gallo witnesses on topics covered in Mr. Hungate's deposition and the categories of the F.R.Civ.P. 30(b)(6) deposition. According to Gallo, defendants counsel have wasted time in depositions of Gallo witnesses. Discussion *6 F.R.Civ.P. 30(d)(2) places a seven-hour limit on depositions: Unless otherwise authorized by the court or stipulated by the parties, a deposition is limited to one day of seven hours. The court must allow additional time consistent with Rule 26(b)(2) if needed for a fair examination of the deponent or if the deponent or another person, or other circumstance, impedes or delays examination. (Bold added.) F.R.Civ.P. 26(b)(2) empowers this Court to “alter” the limits of discovery rules and “the length of depositions.” The Advisory Committee Notes for the 2000 Amendment to F.R.Civ.P. 30(d)(2) address extending the seven-hour limitation: For purposes of this durational limit, the deposition of each person designated under Rule 30(b)(6) should be considered a separate deposition. The presumptive duration may be extended, or otherwise altered, by agreement. Absent agreement, a court order is needed. The party seeking a court order to extend the examination, or otherwise alter the limitations, is expected to show good cause to justify such an order. Parties considering the time for a deposition – and courts asked to order an extension – might consider a variety of factors.... If the examination will cover events occurring over a long period of time, that may justify allowing additional time. In cases in which the witness will be questioned about numerous or lengthy documents, it is often desirable for the interrogating party to send copies of the documents to the witness sufficiently in advance of the deposition so that the witness can become familiar with them. Should the witness nevertheless not read the documents in advance, thereby prolonging the deposition, a court could consider that a reason for extending the time limit. If the examination reveals that documents have been requested but not produced, that may justify further examination once production has occurred. Gallo has offered an additional seven-hour deposition of Mr. Hungate on the condition that defendants forego Mr. Hungate's deposition in his individual capacity. The Court surmises Gallo made such offer in recognition of its production of documents after Mr. Hungate's deposition. Although defendants claim they were unable to question Mr. Hungate on documents produced after his deposition, defendants fail to identify specific documents or targets of inquiry which they seek to address in an additional deposition. Gallo raises legitimate concerns regarding waste of deposition time and potential cumulative questioning. Defendants have failed to substantiate the need for 21 additional hours of Mr. Hungate's deposition but are entitled to further time to address matters not covered in his June 11, 2004 deposition. Order This Court: 1. ORDERS Gallo to produce Mr. Hungate for: (a) a one-day seven-hour F.R.Civ.P. 30(b)(6) deposition; and (b) a second-day three-hour F.R.Civ.P. 30(b)(6) deposition (for 10 hours total) at times mutually convenient to Mr. Hungate and the parties' counsel; 2. PRECLUDES defendants to depose Mr. Hungate in his individual capacity; and *7 3. LIMITS the scope of Mr. Hungate's F.R.Civ.P. 30(b)(6) deposition to matters not addressed in his June 11, 2004 deposition except to the the extent of natural, ordinary overlap of matters. GALLO'S SANCTIONS REQUEST To respond to defendants' motions to compel, Gallo seeks to impose a $13,252.50 sanction, comprising: 1. $5,365 (14.5 hours multiplied by $370 partner hourly billing rate for meeting and conferring and preparing Gallo's papers); 2. $6,687.5 (26.75 hours multiplied by $250 associate hourly billing rate for meeting and conferring and preparing Gallo's papers); and 3. $ 1,200 for additional unexplained attorney fees. Gallo contends defendants engage in bad faith tactics of filing a notice of motion, delaying to prepare a joint stipulation regarding discovery disputes, and demanding, at the last-minute, immediate compliance with discovery demands. According to Gallo, defendants have repeatedly used notices of motions to compel as an improper surrogate for good faith meeting and conferring and have held the pendency of a motion to attempt to coerce Gallo's compliance with unreasonable demands. Defendants accuse Gallo of refusing to meaningfully meet and confer and engaging in take it or leave it negotiations. If a motion to compel is denied, the court “shall, after affording an opportunity to be heard, require the moving party or the attorney filing the motion or both of them to pay to the party ... who opposed the motion the reasonable expenses incurred in opposing the motion, including attorney's fees, unless the court finds that the making of the motion was substantially justified or that other circumstances make an award of expenses unjust.” F.R.Civ.P. 37(a)(4)(B). F.R.Civ.P. 37(a) “was designed to protect courts and opposing parties from delaying or harassing tactics during the discovery process.” Cunningham v. Hamilton County, 527 U.S. 198, 208, 119 S.Ct. 1915 (1999). The standard for an award of expenses is whether there was substantial justification for the losing party's conduct. Reygo Pac. Corp. v. Johnston Pump. Co., 680 F.2d 647, 649 (9th Cir. 1982). The rationale for fee-shifting statutes, such as F.R.Civ.P. 37(a)(4) “is that the victor should be made whole – should be as well off as if the opponent had respected his legal rights in the first place.” Rickels v. City of South Bend, Indiana, 33 F.3d 785, 787 (7th Cir. 1994). A court “is afforded great latitude in imposing sanctions under Rule 37” and sanctions are reviewed “only for abuse of discretion.” Reygo, 680 F.2d at 649; David v. Hooker, Ltd., 560 F.2d 412, 428-429 (9th Cir. 1977). Here, this Court grants defendants relief on nearly all of its motions to compel to mitigate necessity of sanctions against defendants. This Court was required to address the motions based on the parties' stalemates on the discovery disputes. Gallo raises legitimate concerns that defendants attempt to overreach in their demands and heavy-handedly file notices of motions to extract discovery from Gallo. Defendants raise equally legitimate concerns of Gallo's limited flexibility in responding to defendants' requests. Based on the parties' failure to cooperate and to attempt to resolve matters, this Court is required to intervene and as to pending and future discovery motions, to intervene early, and if necessary, often in the motion process. Order *8 This Court: 1. DENIES Gallo's sanction request; and 2. As to pending and future discovery motions, ORDERS the parties, after exhausting meeting and conferring and prior to filing papers on the merits or substance of the discovery dispute, to arrange a conference call with the Court to discuss: a. Attempts to resolve the discovery dispute; b. The parties' respective positions on the dispute and proposals to resolve the dispute; and c. Dates for exchanging and filing papers. GALLO'S MOTION TO STRIKE DEFENDANTS' EXHIBITS AND LETTERS On September 10, 2004, after the parties filed their papers on defendants' motions, Gallo filed its motion to strike defense counsel's declarations with exhibits, exhibits which defense counsel attached to the parties' joint papers, and defense counsel's September 8, 2004 cover letter to enclose papers. Gallo claims that defense counsel refused to provide their declarations and copies of exhibits during the joint drafting process and that a 32-page declaration of defense counsel is “thinly disguised briefing” outside that permitted by this Court's Local Rule 37-251 (c)(3). Gallo claims it signed joint papers with the understanding defendants would submit no further papers, such as declarations and exhibits. Gallo seeks to impose a $750 sanction against defendants and their counsel to respond to defense counsel's misconduct in the preparation of joint motion papers. Defendants argue there was no doubt that defendants would file declarations and exhibits as its papers included blanks to identify declaration paragraphs and exhibit numbers. Defendants claim they needed to await the outcome of meeting and conferring prior to submitting their declarations. Defendants note Gallo's counsel filed three declarations with attached voluminous exhibits not previously shown to defense counsel prior to filing. Gallo's motion to strike is petty and heightens the need for this Court's proactive involvement in discovery motions. This Court's August 18, 2004 order on defendants' motions contemplated declarations and exhibits to assist this Court. Defendants' exhibits are no surprise to Gallo as they comprise pleadings, correspondence, and discovery of which Gallo is familiar. In a perfect world, the parties' papers would have been mutually exchanged. However, the papers are voluminous, and Gallo demonstrates no prejudice in its “cry wolf” papers. In sum, Gallo's motion to strike and defendants' response justify this Court's upfront intervention in discovery motions to better focus the efforts of counsel and to minimize further waste of resources, in particular, unnecessary legal fees for the parties. Order This Court DENIES Gallo's motions to strike defendants' papers and to impose a sanction on defendants. IT IS SO ORDERED. * * CERTIFICATE OF SERVICE * * September 17, 2004 I, the undersigned, hereby certify that I am an employee in the Office of the Clerk, U.S. District Court, Eastern District of California. That on September 17, 2004, I SERVED a true and correct copy(ies) of the attached, by placing said copy(ies) in a postage paid envelope addressed to the person(s) hereinafter listed, by depositing said envelope in the U.S. Mail, by placing said copy(ies) into an inter-office delivery receptacle located in the Clerk's office, or, pursuant to prior authorization by counsel, via facsimile. *9 AWI LJO Joseph W Cotchett Cotchett Pitre Simon and McCarthy San Francisco Airport Office Center 840 Malcolm Road Suite 200 Burlingame, CA 94010 G Kip Edwards Law Offices of G Kip Edwards PO Box 1979 Kings Beach, CA 96143 D Gregory Durbin McCormick Barstow Sheppard Wayte and Carruth PO Box 28912 Five River Park Place East Fresno, CA 93729-8912 Louis Elwood Shoch III Gibson Dunn and Crutcher 333 South Grand Avenue Suite 5000 Los Angeles, CA 90071-3197 Richard P Levy Gibson Dunn and Crutcher 333 South Grand Avenue Suite 5000 Los Angeles, CA 90071-3197 Charles Joseph Stevens Stevens and O'Connell 400 Capitol Mall Suite 2100 Sacramento, CA 95814 William C Hahesy Jr Sagaser Franson and Jones P O Box 1632 2445 Capitol Street Second Floor Fresno, CA 93717-1632 Jack L. Wagnar, Clerk By: Deputy Clerk Footnotes [1] WD Energy was sued in this action as EnCana Energy Services Inc. [2] Gallo entered into an April 26, 2001 natural gas sale and purchase agreement with Encana Corp.'s predecessor.