Resource Strategies, LLC v. Escambia Operating Co.
Resource Strategies, LLC v. Escambia Operating Co.
2023 WL 3142308 (S.D. Ala. 2023)
March 23, 2023
Nelson, Katherine P., United States Magistrate Judge
Summary
The court granted the Plaintiffs' motion to compel the Defendants to produce documents related to their operations of certain wells and a plant, but deferred ruling on two requests for production (RFP Nos. 27 and 28) until the parties can reach a compromise on the list of search terms to be used in producing the ESI. The court ordered the Defendants to determine or approximate how much ESI responsive to RFP Nos. 27 and 28 will be produced using the Plaintiffs' current proposed list of search terms.
RESOURCE STRATEGIES, LLC, on behalf of itself and others similarly situated, et al., Plaintiffs,
v.
ESCAMBIA OPERATING CO., LLC, et al., Defendants
v.
ESCAMBIA OPERATING CO., LLC, et al., Defendants
CIVIL ACTION NO. 1:22-00126-TFM-N
United States District Court, S.D. Alabama, Southern Division
Filed March 23, 2023
Nelson, Katherine P., United States Magistrate Judge
ORDER
*1 This civil action is before the Court on the Plaintiffs' “Motion to Compel” filed January 20, 2023 (Doc. 76), which has been fully briefed (see Docs. 88, 97) under the Court's briefing schedule (Doc. 77), and supplemented by the Plaintiffs on February 27, 2023 (Doc. 111). The matter came before the undersigned for hearing on the record on February 28, 2023, with counsel for all parties participating.[1]
The present motion to compel concerns the Plaintiffs' First Set of Requests for Production (“RFPs”), which consists of 28 such requests. (See Doc. 76-1, PageID.944-952). The Defendants served responses to said requests on December 30, 2022. (See Doc. 88-1, PageID.1057-1064). The Plaintiffs have asserted various reasons why the responses are deficient. The parties' positions were thoroughly explained on the record at the hearing, and at this stage the Court is required to accept the well-pleaded allegations in the Plaintiffs' operative complaint, currently the Second Amended Complaint (Doc. 118), as true. Therefore, a detailed recitation of the facts and the parties' position is unnecessary, and the undersigned states only what is necessary to resolve the present motion.
I. Failure to State When Production Will Occur
The Defendants' responses to RFPs 1—17, 19, 20, 22, 23, and 25 each state that they will “produce responsive documents” without specifying when this production will occur.[2] The Plaintiffs argue that such responses should be deemed “evasive or incomplete,” and therefore “treated as a failure to disclose, answer, or respond” under Federal Rule of Civil Procedure 37(a)(4), because they do not specify when such production will take place. The undersigned agrees.
Under Federal Rule of Civil Procedure 34, when a party served with an RFP responds that “it will produce copies of documents or of electronically stored information instead of permitting inspection[, t]he production must ... be completed no later than the time for inspection specified in the request or another reasonable time specified in the response.” Fed. R. Civ. P. 34(b)(2)(B) (emphasis added).[3] As the Plaintiffs did not specify a time for inspection in their First Set of RFPs,[4] it was incumbent upon the Defendants to specify a “reasonable time” in which the requested materials would be produced.
*2 In their brief in response to the motion to compel, the Defendants asserted that production of documents should await the work of a Special Master and Working Committee appointed by the Alabama Oil and Gas Board in a state regulatory proceeding involving Defendant Escambia Operating Co., LLC to oversee the collection, organization, and reconciliation of records and date from the facility at issue in this case. However, as pointed out in the Plaintiffs' reply brief, and as appears to have been uncontested at the motion hearing, whatever the merits vel non of that argument at the time it was made, it is no longer relevant because the Oil and Gas Board has since changed course by indefinitely postponing the Working Committee and instead opting to impose a fine on Escambia Operating.
The Defendants also argue that “forming a comprehensive and accurate picture of the operation of the subject refinery and oil and gas wells will require Escambia Operating to obtain documents that are not in Defendants' possession.” (Doc. 88, PageID.1030). However, the fact that certain relevant documents may not presently be in the Defendants' possession does not relieve them from the responsibility to produce those that are, since a party is only required to produce items in its “possession, custody, or control” when responding to an RFP. Fed. R. Civ. P. 34(a)(1). If additional responsive information subsequently comes into the Defendants' “possession, custody, or control,” they may then supplement their responses as required by Federal Rule of Civil Procedure 26(e).
Accordingly, the Plaintiffs' motion to compel is GRANTED to the extent it argues the Defendants' responses to RFPs 1—17, 19, 20, 22, 23, and 25 are insufficient. However, the motion is DENIED to the extent it requests the Defendants be ordered to produce all responsive materials within a week. Rather, no later than APRIL 7, 2023, the Defendants must serve amended responses to RFPs 1—17, 19, 20, 22, 23, and 25, with each amended response stating a “reasonable time” in which production will occur.[5]
II. Discovery as to Unnamed Class Members
The Defendants' responses to RFP Nos. 1—3 each state they will produce responsive documents “relating to...any well in which named Plaintiff has an interest,” and their responses to RFP Nos. 4—12, 14, 16, 17, 19, 20, 22, 23, and 25 each state they will produce responsive documents “relevant to the named Plaintiffs' claims.” The Defendants argue that pursuing discovery relevant only to the claims of absent class members should not be permitted until a class has actually been certified under Federal Rule of Civil Procedure 23.
Federal Rule of Civil Procedure 26 sets the general scope of discovery in a civil action as follows:
Unless otherwise limited by court order, the scope of discovery is as follows: Parties may obtain discovery regarding any nonprivileged matter that is relevant to any party's claim or defense and proportional to the needs of the case, considering the importance of the issues at stake in the action, the amount in controversy, the parties' relative access to relevant information, the parties' resources, the importance of the discovery in resolving the issues, and whether the burden or expense of the proposed discovery outweighs its likely benefit. Information within this scope of discovery need not be admissible in evidence to be discoverable.
*3 Fed. R. Civ. P. 26(b)(1).
Assuming without deciding that absent class members are “parties” for purposes of Rule 26(b)(1),[6] the undersigned agrees with the Defendants that undertaking substantial discovery regarding the claims of absent class members—at least where, as here, such discovery is likely to be voluminous—is generally not “proportional to the needs of the case” until a class has actually been certified. Given the high bar for class certification set by Federal Rule of Civil Procedure 23, and the possibility that the issue of certification may be rendered moot if some or all of the named Plaintiffs' claims are dismissed on dispositive motion, the certification of a class is far from guaranteed in any particular case. Therefore, the substantial possibility that discovery regarding absent class members' claims might ultimately be unnecessary cannot be disregarded. Moreover, up-front demands for large amounts of information concerning absent class members runs the risk of putting undue pressure on a defendant to capitulate early simply to avoid the cost of compliance, without giving it a reasonable opportunity to first explore the validity and strength of a named plaintiff's claims and its own defenses.
Accordingly, the Court hereby limits discovery in this action to that relevant to the named Plaintiffs' claims, and to the issue of class certification, unless the parties agree or stipulate otherwise. See Fed. R. Civ. P. 26(b)(1) (allowing “the scope of discovery” to be “limited by court order”); Fed. R. Civ. P. 26(c)(1)(D) & 37(a)(5)(B) (permitting court to, inter alia, “issue any protective order authorized under Rule 26(c)” if a motion to compel is denied, which includes an order “limiting the scope of disclosure or discovery to certain matters”). Upon entry of a court order certifying a class(es) under Federal Rule of Civil Procedure 23, the scope of discovery shall automatically expand to include matters relevant to the claims of the absent members of the certified class(es).[7] Accordingly, the present motion to compel is DENIED to the extent it seeks discovery not relevant to either the named Plaintiffs' claims or the issue of class certification.
However, the undersigned acknowledges the Plaintiffs' arguments that it will be difficult to separate information relevant only to absent class members' claims from that which is also relevant to the Plaintiffs' claims or to class certification, given how product and revenue from the subject oil and gas operation are allocated and distributed among the various stakeholders, and given the Plaintiffs' accusations that the Defendants have misapplied revenues to unauthorized expenses and improperly transferred money among themselves and other entities. Therefore, the Defendants should take a liberal view in deciding what discovery is relevant to the named Plaintiffs' claims and/or the issue of class certification, especially with regard to financial and product allocation information. That is, if the Plaintiffs can articulate a rational reason for why material is relevant to their claims, the Defendants should err on the side of relevance.
III. Objections to Specific RFPs
a. RFP No. 18
*4 RFP No. 18 requests “[a]ll documents concerning transfers or payments made between Escambia Operating, Escambia Asset, Blue Diamond, Swarek, El Dorado Oil & Gas, Inc. and/or any other person or entity affiliated with them.” (Doc. 81, PageID.1062). The Defendants responded that they “object to Request No. 18 on the ground that it seeks production of material that is irrelevant and immaterial.” (Id.).[8] In their response to the present motion to compel, the Defendants assert:
The patently excessive breath [sic] of RFP 18 becomes apparent when one considers that it would include within its scope, for example, a payment made 30 or 40 years ago by one unnamed “affiliate” of any one of the Defendants to another unnamed “person or entity affiliated” with one of the Defendants. It would reach capital paid into a company in some other industry by Defendant Thomas Swarek, who has been a successful businessman for decades and has had interests in many different companies in different industries. Indeed, it would include allowance money paid by Mr. Swarek to some young relative for washing his car. Such matters are irrelevant and immaterial and Plaintiffs have no basis to claim otherwise.
(Doc. 88, PageID.1044). However, the Defendants also admit that at least some responsive material is relevant—specifically, “transfers or payments...relating to Escambia Operating and its production and processing of the full well stream in Escambia County.” (Id.).
The Defendants' objection to RFP No. 18 was “evasive” or “incomplete” for purposes of Rule 37(a)(4) because it failed to clearly “state whether any responsive materials are being withheld on the basis of that objection.” Fed. R. Civ. P. 34(b)(2)(C). The Defendants' belated acknowledgment that at least certain responsive material is unobjectionable further shows its response to have been “evasive” or “incomplete,” as “[a]n objection to part of a request must specify the part and permit inspection of the rest.” Id.
In their reply, the Plaintiffs “agree that transfers among Swarek affiliates not involving the wells or plant [at issue] are not now relevant and may never be.” (Doc. 97, PageID.1230). The Plaintiffs further clarify that, since “Swarek only became involved with Escambia Operating and Escambia Asset beginning on January 1, 2021[,]” and since “Blue Diamond Energy, Inc. ... was formed in 2021, [ ] the request is not as broad as Defendants argue.” (Id.). With the scope of RFP No. 18 so clarified, the undersigned finds that the Defendants' objections to RFP No. 18 are due to be overruled, as the Plaintiffs have persuasively argued that the requested material is relevant to their claims that the Defendants have improperly transferred money amongst themselves and with other entities. Accordingly, the present motion is GRANTED as to RFP No. 18, in that, no later than APRIL 7, 2023, the Defendants must serve an amended response to RFP No. 18, as clarified by the Plaintiffs' reply, see supra, stating a “reasonable time” in which production will occur.
b. RFP No. 21
Request for Production No. 21 requests “[m]onthly statements and records for all bank accounts used by Escambia Operating since January 1, 2020.” (Doc. 88-1, PageID.1062). The Defendants responded that they “object to Request No. 21 on the ground that it is overly broad and unduly burdensome, and seeks production of material that is irrelevant and immaterial.” (Id.).
*5 The Defendants' objection to RFP No. 21 was “evasive” or “incomplete” for purposes of Rule 37(a)(4) because it failed to clearly “state whether any responsive materials are being withheld on the basis of that objection.” Fed. R. Civ. P. 34(b)(2)(C). However, the parties' briefing indicates that the Defendants have since partially withdrawn their objection to RFP No. 21 after the Court denied the Defendants' motion to quash the Plaintiffs' subpoena duces tecum to non-party First Service Bank (see Docs. 55, 61). The Defendants' response to the present motion states that they “have produced 558 pages of responsive banking records[,]” but argues that the “additional documents Plaintiffs seek go beyond what Plaintiffs need to prosecute their claims.” (Doc. 88, PageID.1045). This objection is conclusory and unconvincing, and it is overruled.[9]
Accordingly, the present motion is GRANTED as to RFP No. 21, in that, no later than APRIL 7, 2023, the Defendants must serve an amended response to RFP No. 21 stating a “reasonable time” in which production will occur.
c. RFP No. 24
Request for Production No. 24 requests “[a]ll current insurance policies and certificates of insurance covering the Subject Wells and BEC Plant.” (Doc. 88-1, PageID.1063). The Defendants responded that they “object to Request No. 21 [sic] on the ground that it seeks production of documents that are irrelevant and immaterial.” (Id.).[10]
In support of RFC No. 24's relevance, the Plaintiffs argue:
[T]he Complaint alleges that Escambia Operating has breached the terms of the C&O Agreement. (Doc. 29, ¶¶ 55-61). That agreement requires that the Operator properly insure the BEC Plant and its operations at the Plant for the protection of the working interest owners. (Doc. 40-4, Art. 16.1). Plaintiffs need to see the policy to determine whether Escambia Operating is in compliance with its insurance obligations.
(Doc. 76, PageID.940).
The cited paragraphs in the Plaintiffs' complaint, paragraphs 55-61, correspond to their “First Cause of Action” for “Breach of Contract.”[11] That cause of action alleges, inter alia:
[ ]The C&O Agreement further requires that Escambia Operating conduct operations in a good and workmanlike manner and keep each Working Interest Owner fully informed as to all matters of importance concerning operations, keep plant property and equipment free and clear of all liens and encumbrances and pay all relevant taxes related thereto, make all severance tax filings and pay severance taxes on production that it markets, and to not incur litigation expenses and settlement payments unless authorized by the Working Interest Owners.
...
[ ]Escambia Operating and its alter-ego Swarek have breached the Well JOAs and C&O Agreement in several ways, including: by refusing to distribute to Plaintiffs and all members of the Classes revenues from production sold by Escambia Operating; by misusing and misappropriating revenues owned by the Plaintiffs and members of the Classes; by operating the Subject Wells and BEC Plant in a manner that is completely contrary to industry accepted good and workmanlike standards; by allowing mechanics and materialmens' liens and ad valorem tax liens to encumber the BEC Plant property and equipment; by incurring unauthorized litigation expenses and settlements on behalf of the joint account; by failing to make severance tax returns and pay severance taxes; and by failing to properly maintain the BEC Plant.
*6 (Doc. 118, PageID.1691-1692).
While the Defendants are correct that the complaint does not specifically allege that they have “failed to comply with any ‘insurance obligations[,]’ ” (Doc. 88, PageID.1046 (alteration added)), the undersigned nevertheless finds the material sought by RFP No. 24 to be sufficiently relevant to the above-quoted allegations such that it is discoverable.[12] Therefore, the Defendants' objection to RFP No. 24 is overruled.
Accordingly, the present motion is GRANTED as to RFP No. 24, in that, no later than APRIL 7, 2023, the Defendants must serve an amended response to RFP No. 24 stating a “reasonable time” in which production will occur.
d. RFP No. 26
Request for Production No. 26 requests “[a]ll documents concerning inquiries, claims or investigations by county, state, or federal authorities regarding the operations of El Dorado Oil & Gas, Inc.” (Doc. 88-1, PageID.1063). The Defendants responded that they “object to Request No. 26 on the ground that it seeks production of documents that are irrelevant and immaterial.” (Id.).[13]
The Plaintiffs' motion to compel argues:
El Dorado Oil & Gas, Inc. (“El Dorado”) is an entity owned and/or controlled by Defendant Swarek that Plaintiffs believe is doing business and paying vendors in Alabama. However, El Dorado is not the operator and has no right to use revenues belonging to Plaintiffs. In addition, Plaintiffs believe that El Dorado may be providing services to the Subject Wells and BEC Plant without approval by working interest owners. Plaintiffs need to understand the full scope of El Dorado's involvement with the Subject Wells and BEC Plant. Finally, El Dorado is Defendant Swarek's principal entity operating in the State of Texas. Plaintiffs believe that El Dorado and/or additional affiliates are similarly not properly paying revenues to owners in Texas. Thus, information regarding such matters would be relevant in this action as well.
(Doc. 76, PageID.940-941).
El Dorado is not a party to this action, or even mentioned in the operative complaint. The undersigned is not convinced that the purported need to understand “the full scope of El Dorado's involvement with the Subject Wells and BEC Plant” justifies requiring the Defendants to produce material “concerning inquiries, claims or investigations by county, state, or federal authorities regarding the operations of El Dorado,” particularly with regard to material unrelated to the wells and plant at issue. The arguments raised in the Plaintiffs' reply brief[14]—which largely seek to rebut passing representations of fact made in the Defendants' response brief—similarly fail to convince the undersigned that the material sought by RFP No. 26 is relevant to a claim or defense in this action, or proportional to the needs of this case. Accordingly, the Defendants' objection to RFP No. 26 is sustained, and the present motion is DENIED as to RFP No. 26.
e. RFP Nos. 27 & 28
*7 RFP Nos. 27 and 28 request, respectively, “[a]ll documents concerning the shutdown, maintenance, and repair of the BEC Plant and the replacement of BEC Plant equipment[,]” and “[a]ll emails, written correspondence, notes, texts, or other communications concerning the Subject Wells and BEC Plant since January 1, 2020.” (Doc. 88-1, PageID.1063). The Defendants responded that they would “produce responsive documents” as to RFP No. 27, but “object[ed] to Request No. 28 on the ground that it is overly broad and unduly burdensome, and seeks production of documents that are irrelevant and immaterial.” (Id.). At a subsequent “meet and confer” regarding the Defendants' responses, the Plaintiffs agreed to push the start of the time-frame for RFP Nos. 27 and 28 to January 1, 2021, and proposed a list of terms to be used in searching the Defendants' electronic records. (See Doc. 76-7, PageID.972-976). The motion to compel asserts that the Defendants never advised whether the Plaintiffs' narrowing of the time frame and search terms satisfactorily addressed their concerns. (See Doc. 76, PageID.941). The Defendants responded that they were in the process of consulting with IT professionals to determine if the Plaintiffs' proposed list of search terms was feasible when the present motion was filed. (See Doc. 88, PageID.1053-1054).
The Defendants argue that, even with the narrowed timeframe, the list of search terms proposed by the Plaintiffs would generate an “unworkable” number of documents, likely with “many irrelevant” ones. (Doc. 88, PageID.1053). While the undersigned agrees that the Plaintiffs' list, both in the sheer number of terms and the broad, general nature of some, could potentially capture a disproportionate number of documents, that potential is too speculative at present to outright deny RFP No. 27 and 28, especially since the Defendants have not proposed an alternative list that they believe is more workable, nor do they appear to have made any further efforts since the filing of the present motion to compel to determine how many hits the Plaintiffs' search terms would actually return. As the filing of the present motion appears to have short-circuited genuine efforts to compromise on this issue, the following is ORDERED:
1. No later than APRIL 7, 2023, the Defendants are to determine, or at least approximate, how much electronically stored information responsive to RFP Nos. 27 and 28 will be produced using the Plaintiffs' current proposed list of search terms, with the relevant timeframe being from January 1, 2021, through the date of the search.
2. If the Defendants still believe that the amount of information produced, or estimated to be produced under the terms of the preceding paragraph is unduly burdensome, unworkable, etc., counsel for the Defendants must promptly, but no later than APRIL 21, 2023, engage, or attempt to engage, in a good-faith, two-way conversation with counsel for the Plaintiffs (in person, or by telephone or videoconference) to negotiate a compromise as to the list of terms used to produce material responsive to RFP Nos. 27 and 28. If a comprise is successfully reached, the present motion shall be deemed DENIED as MOOT as to RFP Nos. 27 and 28 without further order.
3. If the parties are unable to reach a compromise as to RFP Nos. 27 and 28, the Defendants must, no later than APRIL 28, 2023, file a supplemental brief in response to the present motion setting out their own list of proposed search terms for RFP Nos. 27 and 28, along with any argument in support of that list. Said supplemental brief must not exceed 10 pages, excluding the actual list of proposed search terms, as well as any caption, cover page, table of contents, table of authorities, and signature block. The Plaintiffs will be given an opportunity to file a brief in reply to the supplemental response should one be filed.
4. If the parties are unable to reach a compromise as to RFP Nos. 27 and 28, and if the Defendants fail to timely file a supplemental response brief as set forth in the preceding paragraph, the present motion shall be deemed GRANTED as to RFP Nos. 27 and 28 without further order, such that the Defendants must, no later than MAY 5, 2023, serve amended responses to RFP Nos. 27 and 28 stating a “reasonable time” in which production will occur under the parameters and terms dictated in the Plaintiffs' January 6, 2023 compromise letter (Doc. 76-7, PageID.972-976).
IV. Conclusion
*8 In accordance with the foregoing analysis, the Plaintiffs' “Motion to Compel” filed January 20, 2023 (Doc. 76), is GRANTED in part and DENIED in part as to Plaintiffs' RFP Nos. 1 through 26. The Court presently DEFERS RULING on the motion as to RFP Nos. 27 and 28, which shall be addressed in accordance with the schedule set out in section III(e) above.
The Court also hereby STAYS consideration of whether any party is entitled to reasonable expenses or other relief under Federal Rule of Civil Procedure 37(a)(5) in connection with the present motion to compel until RFP Nos. 27 and 28 can be addressed in accordance with the schedule set out in section III(e) above.
DONE and ORDERED this the 23rd day of March 2023.
Footnotes
The assigned District Judge has referred said motion to the undersigned Magistrate Judge for appropriate action under 28 U.S.C. § 636(a)-(b), Federal Rule of Civil Procedure 72, and S.D. Ala. GenLR 72(a). See S.D. Ala. GenLR 72(b); (1/23/2023 electronic reference notation).
While the Defendants similarly responded to RFP No. 27 by stating they would “produce responsive documents,” without lodging any specific objection to that request (Doc. 88-1, PageID.1063), both sides have litigated the present motion as though RFP No. 27 was in dispute. Accordingly, it is addressed later in this order. See infra.
“When it is necessary to make the production in stages the response should specify the beginning and end dates of the production.” Fed. R. Civ. P. 34(b)(2)(B) advisory committee's note to 2015 amendment.
Generally, a Rule 34 request “must specify a reasonable time, place, and manner for the inspection and for performing the related acts[.]” Fed. R. Civ. P. 34(b)(1)(B). However, the Defendants have not argued that this omission rendered the Plaintiffs' Rule 34 requests defective.
The denial of the Plaintiffs' requested remedy—that the Defendants be ordered to produce all responsive material within 7 days of the Court's ruling on the present motion—applies globally to all other instances in this order in which the present motion is granted. Instead, in those instances, the Court will similarly order the Defendants to state a “reasonable time” in which production will occur.
See Devlin v. Scardelletti, 536 U.S. 1, 9-10, 122 S. Ct. 2005, 153 L. Ed. 2d 27 (2002) (“Nonnamed class members...may be parties for some purposes and not for others. The label ‘party’ does not indicate an absolute characteristic, but rather a conclusion about the applicability of various procedural rules that may differ based on context.”).
The undersigned recognizes that the Federal Rule of Civil Procedure 16(b) scheduling order (Doc. 72) sets the deadline to complete discovery prior to the deadline for motions for class certification. However, it is reasonably apparent that the certification of any class will necessitate modifying the schedule under Rule 16(b)(4), including allowing additional discovery regarding absent class members.
The Defendants also prefaced their specific responses with various generally “global objections” that were purportedly incorporated into every one of their responses. The undersigned does not consider those “global objections,” however, as objections to requests for production must be stated “with specificity” “[f]or each item or category.” Fed. R. Civ. P. 34(b)(2)(B) (emphasis added).
The Defendants have also argued that production related to RFP No. 21 should await the conclusion of the proceedings by the Special Master appointed by the Alabama Oil and Gas Board. However, as noted previously, those proceedings have since been put on hold indefinitely. Accordingly, this objection is also overruled, as moot.
The Defendants' objection to RFP No. 24 was “evasive” or “incomplete” for purposes of Rule 37(a)(4) because it failed to clearly “state whether any responsive materials are being withheld on the basis of that objection.” Fed. R. Civ. P. 34(b)(2)(C).
After briefing on the motion to compel closed, the Plaintiffs filed their Second Amended Complaint (Doc. 118), the current operative complaint in this action. However, paragraphs 55-61 of the Second Amended Complaint did not change from those in the predecessor complaint (Doc. 29, PageID.215-217).
Therefore, the undersigned declines to address the Plaintiffs' alternative argument for why RFP No. 24 is proper. (See Doc. 76, PageID.940 (“Also, presumably at some point Defendants will claim the premium from Plaintiffs (and have probably already paid it from Plaintiffs' share). This insurance (if purchased) should cover Plaintiffs' interests.”)).
The Defendants' objection to RFP No. 26 was “evasive” or “incomplete” for purposes of Rule 37(a)(4) because it failed to clearly “state whether any responsive materials are being withheld on the basis of that objection.” Fed. R. Civ. P. 34(b)(2)(C).
(See Doc. 97, PageID.1232 (“With regard to investigation of El Dorado, Defendants tout Mr. Swarek as a ‘successful businessman for decades ...,’ (Doc. 88, p. 19), with ‘decades of experience in the oil and gas business.’ (Doc. 88, p. 8). Defendants have also attempted to sell the notion that Defendants know what they are doing in financial matters related to the field and plant. (See Ex. 3, p. 91) (‘Escambia Operating is not new to this business. Ms. Chapman [CFO] has been involved in 5 different field acquisitions. They operate 2000 wells in Texas, [apparently referring to El Dorado and its operating entity Hugonton Operating Co., Inc.].’) Certainly it is potentially relevant to this matter if Mr. Swarek's El Dorado, which Defendants told the OGB is working with the subject wells and plant, has been in trouble.”)).