In re Gold King Mine Release in San Juan Cnty.
In re Gold King Mine Release in San Juan Cnty.
2022 WL 5178406 (D.N.M. 2022)
March 30, 2022

Torgerson, Alan C.,  Special Master

Protective Order
Special Master
Third Party Subpoena
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Summary
The Special Master granted the Motion to Quash, finding that the requested ESI was not relevant to any party's claim or defense and was not proportional to the needs of the case. The Special Master noted that any ESI was not relevant to the case and was not proportional to the needs of the case.
Additional Decisions
In re: Gold King Mine Release in San Juan County, Colorado on August 5, 2015
This Document Relates to: All Cases
No. 1:18-md-02824-WJ
United States District Court, D. New Mexico
Filed March 30, 2022
Torgerson, Alan C., Special Master

ORDER GRANTING NON-PARTY BERKELEY RESEARCH GROUP, LLC's MOTION TO QUASH OR MOTION FOR PROTECTIVE ORDER REGARDING SUBPOENA TO TESTIFY AT A DEPOSITION IN A CIVIL ACTION AND FOR THE PRODUCTION OF DOCUMENTS

*1 This matter comes before the Special Master on a Motion by Non-Party Berkeley Research Group, LLC, to Quash or Motion for Protective Order Regarding the Subpoena to Testify at a Deposition and Request for Production of Documents. Docs. 1444 and 1445. Plaintiffs the State of New Mexico and the New Mexico Environment Department (New Mexico) served a subpoena under Federal Rule of Civil Procedure 45 upon Berkeley Research Group, LLC (BRG) on January 18, 2022. Two schedules were attached, Schedule A listing sixteen matters for examination, and Schedule B, containing ten Requests for Production. The matters for examination and the requested documents fell into two broad categories: 1) BRG's conflicts process, and the ethical wall put into place in the Gold King Mine case; and 2) BRG's work for the Trump Campaign and inquiries into how Dr. Cicchetti became involved in that work.
BRG responded to the Subpoena on January 28, 2022, objecting to every listed matter for examination and request for production. On February 2, 2022, BRG and New Mexico held a meet and confer conference at which BRG maintained its objections to the Trump Campaign requests but offered a compromise regarding the Ethical Wall requests. It offered to have Dr. Robin Cantor, a Managing Director of BRG and expert witness for the United States of America, the U.S. Environmental Protection Agency, and its Administrator, Environmental Restoration, LLC (ER), and Weston Solutions, Inc. (Weston) sit for a deposition as a limited Rule 30(b)(6) representative of BRG for one hour and have her testify on topics pertaining to the ethical wall issues, Dr. Cantor's knowledge of Dr. Cicchetti's work both for New Mexico and for the Trump Campaign, and whether Dr. Cantor had been directed by BRG to do any work on the Trump Campaign. New Mexico declined the offer because it failed to address many of the topics contained in the subpoena.
BRG filed its Motion to Quash or for a Protective Order on February 10, 2022. Doc. 1444 and Memorandum in Support of its Motion, Doc. 1445. ER and Weston filed a Partial Joinder in the Motion to Quash as Doc. 1446. New Mexico filed its Response in Opposition as Doc. 1459. BRG filed its Reply as Doc. 1500 and ER and Weston filed their Reply in Support of Partial Joinder as Doc. 1504. The Motion to Quash is fully briefed.
Having reviewed the subpoena, the arguments for and against the Motion to Quash made by the parties, including ER and Weston, the background of this discovery dispute, and the law pertaining to the motion to quash, the Special Master grants the Motion to Quash. BRG does not have to respond to the Subpoena issued to it by New Mexico.
The history of this discovery dispute is recounted in the Special Master's Order Denying New Mexico's Motion to Compel Discovery Related to Berkeley Research Group from Certain Defendants, which was filed as Doc. 1512 on March 23, 2022. The background and timeline of how this discovery dispute became an issue in the Gold King Mine case are related in the Order on pages 2 through 6 and is incorporated into this order.
*2 A motion to quash a subpoena is brought under Fed. R. Civ. P. 45 (d)(3). The Rule lists four reasons why a court may quash or modify a subpoena, only two of which apply in this case.
(A) When Required. On timely motion, the court of the district where compliance is required must quash or modify a subpoena that: ...
(iii) requires discovery of privilege or other protected matter, if no exception or waiver applies: or
(iv) subjects a person to undue burden.
Relevance is not listed under Rule 45 as a reason to quash a subpoena, but courts have incorporated relevance as a factor when considering whether to grant a motion to quash. Goodyear Tire & Rubber Co. v. Kirk's Tire & Auto Servicenter of Haverstraw, Inc., 211 F.R.D. 658, 662 (D. Kan. 2003); In re Vaughan Company, 2014 WL 12787951, at *2 (D. N.M. Sept. 19, 2014). “The Court must determine ‘whether a request contained in a subpoena duces tecum is overly broad or seeks irrelevant information under the same standards as set forth in Rule 26(b) and as applied to Rule 34 requests of production.’ ” XTO Energy, Inc, v. ATD, LLC, 2016 WL 1730171, at *27 (D. N.M. April 1, 2016) (quoting Stewart v. Mitchell Transp. 2002 WL 1558210, at *3 (D. Kan. July 11, 2012). A “subpoena issued to a third party under Rule 45 is subject to the same discovery limitations as those set out in Rule 26.” New Mexico Oncology and Hematology Consultants, Ltd., 2015 WL 13650053, at *2 (D.N.M. June 3, 2015) quoting W. Convenience Stores, Inc v. Suncor Energy (U.S.A.), Inc., 2014 WL 1257762, at *21 (D. Colo. Mar. 27, 2014).
Rule 26 of the Federal Rules of Civil Procedure states that the scope of discovery is any nonprivileged matter that is relevant to any party's claims or defense, and proportional to the needs of the case. As the Special Master discussed in the Order Denying New Mexico's Motion to Compel, the two issues of BRG's conflicts process and the ethical wall put into place in the Gold King Mine case; and BRG's work for the Trump Campaign and inquiries into how Dr. Cicchetti became involved in that work are not relevant to any party's claim or defense and discovery into those issue are not proportional to the needs of the case.
The conflicts process of BRG and the resulting ethical wall put into place between Dr. Cicchetti and his team and Dr. Cantor and her team are not relevant to any party's claim or defense and therefore the subpoena seeking this information is quashed. As explained in the Special Master's Order Denying New Mexico's Motion to Compel Discovery Related to Berkeley Research Group from Certain Defendants, Dr. Cicchetti himself noted the potential conflict if an opposing party engaged BRG to provide expert services on the issue of damages, yet stated he saw no reason to keep BRG from taking the work. He realized the need for an ethical wall, which as the documents demonstrate, was put into place with the knowledge of both Dr. Cantor and Dr. Cicchetti. Docs 1445-5 and 1445-6. The discovery of details of the conflicts process or the ethical wall BRG put into place is not relevant or proportional to the needs of this case because the burden of responding to the subpoena outweighs its likely benefit.
*3 At Dr. Cicchetti's deposition, ER and Weston sought to use his Declaration explaining the voting results in the 2020 Presidential Election and the criticisms published about Dr. Cicchetti's work about the election as evidence that Dr. Cicchetti's work in the Gold King Mine case had been lacking in scientific rigor. Whether this work in statistical analysis involving voting results will be allowed as evidence in the Gold King Mine trial for the purposes of impeaching Dr. Cicchetti will be decided by the trial judge. However, the Special Master finds, as in the Order Denying New Mexico's Motion to Compel Discovery Related to Berkeley Research Group from Certain Defendants, that the parties have sufficient evidence in the form of expert reports, rebuttal reports, and extensive depositions from both Drs. Cicchetti and Cantor to be able to adequately explore whether the experts are qualified and credible, and whether their work is sufficiently rigorous to allow the jury or judge to give due weight to the reports’ conclusions. Further discovery into the circumstances of how BRG became involved in the Trump Campaign requests or why BRG asked Dr. Cicchetti to prepare the Declaration is not warranted because it is not relevant to a party's claim or defense and is not proportional to the needs of the case in resolving the issue of damages.
CONCLUSION
In conclusion, Non-Party Berkeley Research Group, LLC's Motion to Quash or Motion for Protective Order Regarding Subpoena to Testify at a Deposition in a Civil Action and for the Production of Documents is granted for the reasons stated above.
IT IS SO ORDERED.
THE PARTIES ARE NOTIFIED THAT WITHIN 21 DAYS OF SERVICE of a copy of the order, report, or recommendations, they may file written objections with the Clerk of the Court pursuant to Federal Rule of Civil Procedure 53(f)(2). A party must file any objection with the Clerk of the Court within the twenty-one-day period if that party wants the District Judge to hear their objections. If no objections are filed within the twenty-one-day period, the District Judge may adopt the order, report, or recommendations in whole. If filing a document for which a privilege is claimed, check the access limited to filer and the court only box. For questions about filing restricted access documents, please contact the CM/ECF Help Desk by email at cmecf@nmd.uscourts.gov or by phone at 505-348-2075.