Glover v. EQT Corp.
Glover v. EQT Corp.
2023 WL 3922649 (N.D. W. Va. 2023)
April 25, 2023

Mazzone, James P.,  United States Magistrate Judge

Failure to Produce
Form of Production
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Summary
The court granted the plaintiffs' motion to compel and directed the defendants to supplement their answers to the interrogatories and requests for production. The court found that the defendants must provide the documents in the format requested, as the documents and information at issue were complicated and difficult to understand. The defendants were given fourteen days to supplement their answers.
Additional Decisions
WILLIAM D. GLOVER, LINDA K. GLOVER, his wife; RICHARD A GLOVER, CHRISTY L. GLOVER, his wife; and GOSHORN RIDGE, LLC, Individually, and on Behalf of All Others Similarly Situated, Plaintiffs,
v.
EQT CORPORATION, a Pennsylvania corporation; EQT PRODUCTION COMPANY, a Pennsylvania corporation; EQT ENERGY, LLC, a Delaware limited liability company; EQT ENERGY II, LLC, a Pennsylvania limited liability company; EQT GATHERING, LLC, a Delaware limited liability company; and EQT MIDSTREAM PARTNERS, LP, a Delaware limited partnership, Defendants
CIVIL ACTION NO. 5:19CV223
United States District Court, N.D. West Virginia
Signed April 25, 2023

Counsel

Andrew R. Cutright, Roger L. Cutright, Cutright Law PLLC, Morgantown, WV, Clayton J. Fitzsimmons, Mark A. Colantonio, Robert J. Fitzsimmons, Robert P. Fitzsimmons, Fitzsimmons Law Firm, PLLC, Wheeling, WV, Eric M. Gordon, Berry, Kessler, Crutchfield, Taylor & Gordon, Moundsville, WV, Marvin W. Masters, The Masters Law Firm, LC, Charleston, WV, for Plaintiff.
Chelsea Rebecca Heinz, Pittsburgh, PA, David Dehoney, Pro Hac Vice, Jonathan H. Koppell, Pro Hac Vice, Michelman & Robinson LLP, New York, NY, Jennifer Jo Hicks, Timothy M. Miller, Tiffany Marie Arbaugh, Babst, Calland, Clements & Zomnir, P.C., Charleston, WV, Lauren W. Varnado, Pro Hac Vice, Michelman & Robinson LLP, Houston, TX, Mark K. Dausch, Babst Calland Clements & Zomnir, P.C., Pittsburgh, PA, for Defendant.
Mazzone, James P., United States Magistrate Judge

ORDER GRANTING PLAINTIFFS' RENEWED MOTION [319] TO COMPEL DEFENDANTS TO FULLY ANSWER CERTAIN INTERROGATORIES AND PRODUCE DOCUMENTS PURSUANT TO F.R.C.P. 33 and 34

*1 Currently pending before the Court on referral from the District Court is Plaintiffs' Renewed Motion to Compel, filed April 4, 2023. ECF No. 319. This matter is fully briefed. A hearing was held on April 18, 2023. After considering the parties' briefs, the applicable law, and the Court file, and after considering the arguments made during the April 18, 2023, hearing as well as the documents and evidence submitted during the same, the Court would find that Plaintiffs' Motion should be granted.
As the parties well know, this case arises out of a dispute regarding payment of oil and gas royalties under various leases. See ECF Nos. 26 and 319 at p. 2. The following Interrogatories and Requests for Production are at issue: Interrogatory Nos. 2, 13; Requests for Production Nos. 3, 25, 26, and 27. Plaintiffs contend that the discovery at issue can be divided into two categories: (1) requests which relate to Plaintiffs' need to link monthly lease (royalty) payments to individual lease owner(s) and well (RPD No. 3); and (2) requests for documents and/or information which divide the leases at issue into categories based upon lease language (Interrogatory Nos. 2 and 13 and RPD Nos. 25-27). The Court will address preliminary issues first and will then address the parties' substantive arguments as to the discovery at issue.
A. Timeliness
Defendants first argue that Plaintiffs' Renewed Motion to Compel is untimely because it was not filed within thirty days of April 11, 2022, or the date on which Plaintiffs knew or should have known Defendants were standing by their objections and responses to the discovery at issue. Indeed, according to LR Civ P 37.02, “[a] motion to compel...is deemed waived if it is not filed within thirty (30) days after the discovery response or disclosure requirement sought was due, which date is determined in accordance with a rule or by mutual agreement among the parties, unless such failure to file the motion was caused by excusable neglect or by some action of the non-moving party.” Likewise, the Federal Rules of Civil Procedure provide thirty days for responses to interrogatories and requests for production to be provided. Fed. R. Civ. P. 33 and 34. The Court does, however, have “discretion to examine the circumstances surrounding an untimely motion to compel in order to avoid what may constitute overly technical applications of the Rule.” Patrick v. Teays Valley Trustees, LLC, 297 F.R.D. 248, 254 (N.D.W. Va. 2013).
The parties were before this Court on Plaintiffs' previously filed Motion to Compel (ECF No. 122 filed on August 31, 2021), on October 14, 2021. The Court, in its November 5, 2021, Order, directed the parties to meet and confer regarding the many discovery issues raised in Plaintiffs' original Motion. ECF No. 151. Consequently, the Court denied Plaintiffs' Motion without prejudice, allowing Plaintiffs to refile the Motion if necessary and appropriate. Id.
As directed, the parties have met and conferred. These meet and confers have been successful, as only a handful of issues remain. With respect to the remaining discovery issues, Defendants are relying upon documents to answer the discovery requests. Defendants have produced almost one million documents in response to the requests at issue. See ECF No. 325 at p. 3, n. 2-7.[1] As with most if not all cases involving oil and gas leases, the documents themselves are not single-page, simple documents. They are multi-page documents with dense and voluminous information. See e.g. ECF No. 330-1. It is therefore reasonable to conclude that Plaintiffs needed to review and attempt to understand and analyze the information contained within those documents before deciding whether to file the instant Motion. Given the ongoing meet and confers, the rolling document production, and Defendants' reliance upon documents to answer the discovery requests at issue, and given the voluminous number of documents involved, the Court is satisfied that any delay in Plaintiffs' filing this Motion was not unreasonable. Plaintiffs' Motion is therefore not untimely.
B. Relevance
*2 The Court would note that the parties did not contest the relevance of any of the discovery at issue. Accordingly, and inasmuch as there is no dispute as to the relevance of said discovery, the Court will not address the issue of relevance with respect to any of the discovery requests raised in Plaintiffs' Motion.
C. Interrogatory Nos. 2 and 13
To answer these Interrogatories, Defendants have invoked Fed. R. Civ. P. 33(d), which provides in relevant part that
[i]f the answer to an interrogatory may be determined by examining, auditing, compiling, abstracting, or summarizing a party's business records (including electronically stored information), and if the burden of deriving or ascertaining the answer will be substantially the same for either party, the responding party may answer by...specifying the records that must be reviewed, in sufficient detail to enable the interrogating party to locate and identify them as readily as the responding party could.
Defendants argue that they have given Plaintiffs everything they need to answer Interrogatories 2 and 13. Defendants further argue that they have identified the documents in sufficient detail to enable Plaintiffs to locate the requested information, and that the burden of locating and deriving the requested information is the same for both parties.
Plaintiffs argue that Defendants reliance upon R. 33(d) is misplaced because these Interrogatories are contention interrogatories which ask for information concerning Defendants' defenses, and this is information that cannot be gleaned from Plaintiffs' review of documents. Even if it could, the burden of reviewing the documents is much greater for Plaintiffs than it is for Defendants. For the reasons that follow, the Court would agree with Plaintiffs.
Interrogatory Nos. 2 and 13 ask Defendants to identify the bases for certain of Defendants' royalty payment decisions during the relevant time period. There is nothing within the record or the arguments presented that would indicate Plaintiffs could elucidate the bases for Defendants' royalty payment decisions from the documents Defendants have produced in response to these Interrogatories. Indeed, “[f]or a contention interrogatory, simply directing the opposing party to documentation is inadequate.” Bost v. Wexford Health Sources, Inc., 2017 WL 11453961, at *3 (D. Md. Sept. 25, 2017).
Even if Plaintiffs could glean Defendants' rationale for making certain royalty payments in certain ways, the burden of reviewing the documents at issue is far greater for Plaintiffs than for Defendants. Defendants have produced almost one million documents in response to the discovery requests at issue. ECF No. 325 at p. 3. Inasmuch as these documents are Defendants' business records, the Court would conclude that Defendants are more familiar with them than Plaintiffs are or would be under the circumstances. Additionally, these documents do not appear to be simple or easy to understand. Rather, as is the case with a great many oil and gas royalty cases, these documents are dense in nature, and contain a substantial amount of information. See e.g. ECF No. 330-1.
Further support for the Court's burden conclusion can be found in the Affidavit of Patrick Corcoran filed at ECF No. 327. As Mr. Corcoran stated, EQT Production and its land department maintain records identifying who the royalty owners are at any given time. The department also manages the process of obtaining and reviewing information needed to change the payment recipient by inputting changed information into the electronic system that EQT Production uses for land management, Quorum. Id. While the process described in Mr. Corcoran's affidavit does sound time-consuming and labor intensive, the Court is nevertheless satisfied that Defendants are in a better position to conduct these efforts than Plaintiffs.
*3 In his affidavit, Mr. Corcoran outlines Defendants' use of the Quorum system for managing land use records. Defendants' response brief provides a similar description of this system and provides an example of its usefulness in obtaining information requested by Plaintiffs. ECF No. 325 at p. 20 (“Defendants performed a query within its Quorum software...to build a report listing which well is associated with a lease for all leases in the proposed class”). There is no evidence that Plaintiffs have any such corresponding capability.
In making this finding, the Court is mindful that Defendants have not represented that the Quorum system can be used to provide all of the information sought in the format requested. See ECF No. 327 at p. 3 (“determining ownership of a lease over time is a manual process that requires cross-referencing multiple records and conducting independent research). However, the Court is satisfied that the usefulness of this system as described in Mr. Corcoran's affidavit as well as Defendants' response brief, combined with Defendants' knowledge and experience of managing the information within its systems and business operations, and managing the data itself, puts Defendants in a better position to marshal the information into useable answers for these Interrogatories.
With respect to Defendants' argument that it is not required to create new documents to answer Plaintiffs' discovery requests, the Court is not persuaded. It is Defendants' burden to answer interrogatories. See generally Fed. R. Civ. P. 33. Defendants thus are required to take all necessary steps to provide the answer(s) sought. As discussed above, Defendants' reliance upon R. 33(d) is misplaced. Defendants are DIRECTED to supplement its answer, and to provide specific answers to the Interrogatories at issue.
D. Requests for Production Nos. 25-27
Defendants argue that they have provided everything in their possession to Plaintiffs in response to these requests for production, and that they are not required to create new documents to answer these requests for production. Plaintiffs argue that the information requested is relevant to Defendants' contentions, and that Defendants must therefore provide the documents in the format sought.
A review of these requests for production reveals that the documents requested are tied to a contention ascribed to Defendants. See generally Request for Production Nos. 25-27. Moreover, these requests for production are related to Interrogatory No. 2, which can be described as a contention interrogatory. Again, simple provision of documents is not an appropriate manner of responding to a contention-based discovery request. See Bost v. Wexford Health Sources, Inc., 2017 WL 11453961, at *3 (D. Md. Sept. 25, 2017). See also In re Smith & Nephew Birmingham Hip Resurfacing Hip Implant Products Liability Litigation, 2020 WL 3469671, at * 2 (D. Md. June 25, 2020) (compelling answers to “contention interrogatories and related requests for production of documents”). Defendants are therefore DIRECTED to supplement this discovery response by providing the information sought in the format requested.
E. Request for Production No. 3
This Request for Production asks Defendants to provide certain information in a particular format. Defendants have objected and argue that they have provided all information necessary for Plaintiffs to formulate their own reference list or table. Defendants further argue that they are not required under Rule 34 to create a new document to respond to this discovery request. While this may typically be true, this case is not a typical case. The documents and information at issue are complicated and difficult to understand. Inasmuch as these documents are part and parcel of Defendants' business, Defendants are in a better position than Plaintiffs to organize the information into the format requested. While this process is likely to be time consuming, Defendants admit that it can be done. See generally ECF No. 327 (affidavit of Patrick Corcoran). See also discussion, supra. Defendants are therefore DIRECTED to provide the document(s) sought in this discovery request.
F. Conclusion
*4 Accordingly, and for all of the foregoing reasons, Plaintiffs' Renewed Motion [319] to Compel is GRANTED. Defendants are DIRECTED to supplement these discovery answers as set forth hereinabove within fourteen (14) days of the date of this Order.
It is so ORDERED.
Any party may, within FOURTEEN DAYS of this Order, file with the Clerk of the Court written objections identifying the portions of the Order to which objection is made, and the basis for such objection. A copy of such objections should also be submitted to the District Court Judge of Record. Failure to timely file objections to the Order set forth above will result in a waiver of the right to appeal from a judgment of this Court based upon such an Order.
The Court DIRECTS the Clerk of the Court to serve a copy of this Order upon any pro se party by certified mail, return receipt requested, and upon counsel of record herein.

Footnotes

These documents have been produced in a rolling document production over the course of this litigation.