-DLB Abarca, et. al. vs. Merck & Co., et.al., No. 1:2007cv00388 - Document 1459 (E.D. Cal. 2011)
Court Description: ORDER DENYING Defendant Merced Irrigation District's 1397 Motion to Compel Interrogatory Responses from Plaintiffs and ORDER Issuing Protective Order and GRANTING IN PART Plaintiffs' Request for Expenses signed by Magistrate Judge Dennis L. Beck on 8/22/2011. (Figueroa, O)
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-DLB Abarca, et. al. vs. Merck & Co., et.al. Doc. 1459 1 2 3 4 5 6 7 IN THE UNITED STATES DISTRICT COURT FOR THE 8 EASTERN DISTRICT OF CALIFORNIA 9 RAUL VALENCIA ABARCA, et al., 10 11 12 13 14 15 ) ) ) Plaintiffs, ) ) ) vs. ) ) MERCK & CO., INC., et al., ) ) Defendants. ) ____________________________________) 1:07cv0388 OWW DLB ORDER DENYING DEFENDANT MERCED IRRIGATION DISTRICT’S MOTION TO COMPEL INTERROGATORY RESPONSES FROM PLAINTIFFS (Doc. 1397) ORDER ISSUING PROTECTIVE ORDER AND GRANTING IN PART PLAINTIFFS’ REQUEST FOR EXPENSES 16 17 Defendant Merced Irrigation District (“MID”) filed the instant motion to compel plaintiffs to 18 respond to interrogatories on July 20, 2011. The motion was heard on August 12, 2011, before the 19 Honorable Dennis L. Beck, United States Magistrate Judge. Eric Steinle appeared on behalf of 20 Defendant MID. Michael Marderosian, Brett Runyon and Heather Cohen appeared personally and 21 John McCann appeared telephonically on behalf of Plaintiffs. Additionally, Stephen Lewis appeared 22 telephonically on behalf of Defendant Merck & Co., Inc., and Danielle DeSmeth appeared 23 telephonically on behalf of Defendant County of Merced. 24 BACKGROUND 25 The instant case involves the alleged discharge of pollutants from various public and private 26 wastewater treatment, refuse, and disposal facilities, irrigation canals, and other facilities in Merced 27 County. On March 26, 2010, Plaintiffs filed an Eighth Amended Complaint against multiple 28 1 Dockets.Justia.com 1 defendants, including Defendants MID and Merced Drainage District No. 1 (“MDD#1"). Plaintiffs 2 asserted causes of action against MID and public entities for inverse condemnation, dangerous 3 condition of public property, and nuisance. 4 5 6 7 On July 25, 2007, the court issued a Scheduling Conference Order addressing the initial discovery plan and proposed discovery limits. The court stated as follows: Given the complex nature of this litigation, the parties anticipate that statutory provisions relating to the sequence, timing, limitations and other procedural issues related to discovery will have to be modified. Specific issues will be addressed by the parties as this litigation progresses. 8 Doc. 31, p. 52. 9 On February 11, 2008, MID served a set of 25 special interrogatories addressed to all 10 plaintiffs. Declaration of Michael G. Marderosian (“Marderosian Dec.”) ¶ 2, Exhibit A. Plaintiffs 11 responded to the interrogatories and also provided supplemental responses. Marderosian Dec. ¶ 2. 12 On January 7, 2009, the court set a discovery cut off date of June 30, 2010. The court did not 13 address discovery limits. Doc. 238. 14 On August 12, 2009, the court issued an amended scheduling order, which phased discovery. 15 Phase 1's focus was the issue of general exposure; that is whether contaminants had ever reached any 16 location where plaintiffs could have been exposed, when and how such contaminants arrived at the 17 location, how long they were present and at what levels. Phase 2's focus was the issue of general 18 causation; that is, whether any of the contaminants to have reached a location where plaintiffs could 19 have been exposed are capable of causing the types of injuries alleged by plaintiffs. Phase 3's focus 20 was plaintiff-specific exposure and causation, and included remaining percipient witnesses. During 21 Phase 1, the court stayed all discovery not relevant to general exposure, with the exception of written 22 discovery propounded prior to July 31, 2009. All discovery related to Phase 1 was to be completed 23 by April 16, 2010. Doc. 540. 24 On December 24, 2009, the court extended Phase 1 discovery to May 6, 2010. Doc. 604. 25 On July 20, 2010, the court confirmed the Phase 1 jury trial for November 23, 2010. Doc. 26 819. Subsequently, the jury trial was continued to February 1, 2011. Doc. 987. 27 28 2 1 On January 12, 2011, MID and MDD#1 reached a settlement agreement with Plaintiffs 2 regarding the contamination claims. Based on the settlement, MID and MDD#1 sought to be 3 excused from the Phase 1 trial. Doc. 993. 4 On January 25, 2011, the court issued a scheduling conference order regarding the trial of 5 claims against MID and the public entities for inverse condemnation, dangerous condition of public 6 property and nuisance. The court ordered the parties to complete all fact witness discovery by 7 August 1, 2011. There was no order regarding discovery limits. The court also ordered Plaintiffs to 8 disclose expert witnesses by September 2, 2011, and scheduled trial for June 19, 2012. Doc. 1075. 9 The Phase 1 jury trial began on February 2, 2011. The jury reached a verdict on March 31, 10 11 2011. Doc. 1226. On February 18, 2011, during the Phase 1 trial, MID served a second set of interrogatories to 12 four identified “groups” of plaintiffs: (1) Beachwood plaintiffs (interrogatories nos. 26-167); (2) 13 Dairy plaintiffs (interrogatories nos. 26-173); (3) Thornton-Lopes plaintiffs (nos. 26-173); and (4) 14 Yosemite plaintiffs (interrogatories nos. 26-182). Marderosian Dec. ¶ 3. Plaintiffs formally objected 15 to the interrogatories on March 23, 2011, claiming that they exceeded the discovery limits of Federal 16 Rule of Civil Procedure 33 because Plaintiffs had already provided responses to MID’s first set of 17 interrogatories. Marderosian Dec. ¶ 5. 18 On May 3, 2011, the court appointed Judge John K. Trotter to act as special master for the 19 purpose of assisting MID in certain aspects of the settlement agreement and release relating to Phase 20 1. Doc. 1266. The court found that MID and MDD#1 had reached a good faith settlement 21 agreement with Plaintiffs regarding claims for contamination. Doc. 1376. 22 On June 28, 2011, MDD#1, which is represented by MID’s counsel, served interrogatories 23 substantially similar to MID’s interrogatories at issue here, but directed the interrogatories to specific 24 plaintiffs. Marderosian Dec. ¶ 14. Plaintiffs expressed their intent to respond to the MDD#1 25 interrogatories. Marderosian Dec. ¶¶ 16, 18. 26 27 28 On July 20, 2011, MID filed the instant motion to compel responses to its February 18, 2011 interrogatories. Doc. 1397. 3 1 2 On August 3, 2011, MID and MDD#1 reached a settlement of all claims brought by some, but not all, plaintiffs. Doc. 1425. 3 On August 5, 2011, the parties filed a joint statement of discovery dispute. Doc. 1433. 4 DISCUSSION 5 MID seeks an order compelling a response to its second set of interrogatories, which were 6 served in February 2011. MID contends that the second set of interrogatories are appropriate and do 7 not exceed the discovery limits imposed by Fed. R. Civ. P. 33. MID explains that its second set of 8 interrogatories includes the following: (1) contention interrogatories addressing the allegations of 9 inverse condemnation; (2) interrogatories seeking evidence of each specific harm alleged; and (3) 10 contention interrogatories addressing allegations of a dangerous condition of public property. Joint 11 Statement, p. 9. 12 Plaintiffs counter that MID’s second set of interrogatories exceed the Rule 33 numerical 13 limits because MID previously propounded 25 interrogatories on all plaintiffs. Plaintiffs argue that 14 MID failed to seek a court order to exceed the discovery limits and thus Plaintiffs are not required to 15 respond. 16 Plaintiffs further contend that there is no basis to require them to respond to MID’s 17 interrogatories because MDD#1, an affiliated agency of MID that also is represented by MID’s 18 defense counsel, served the same interrogatories as those at issue here. Plaintiffs report that they are 19 in the process of responding to those interrogatories. 20 21 22 Plaintiffs request a protective order and an award of attorney fees because MID delayed in bringing the instant motion and MDD#1 propounded the same interrogatories. Pursuant to Rule 33, each party is allowed to serve 25 interrogatories on any other party 23 unless otherwise stipulated or ordered by the court. Fed. R. Civ. P. 33(a)(1). Here, there is no 24 indication that the court issued any orders expanding the Rule 33 numerical limits on interrogatories. 25 The parties also did not stipulate to extend the limits. Although MID contends that it was entitled to 26 serve a set of 25 interrogatories on each individual plaintiff, which amounts to a total of 51,675 27 28 4 1 2 interrogatories (2,067 plaintiffs1 x 25), the Court finds it unnecessary to reach this issue. MID’s position is undermined by the nearly identical interrogatories propounded by MDD#1 3 and Plaintiffs’ agreement to provide corresponding responses. MID has been unable to dispute the 4 Plaintiffs’ contention that the two sets of interrogatories are substantially, if not entirely, similar. 5 Indeed, MID has admitted that the discovery sent by MDD#1 “included most but not all of the 6 interrogatories in dispute here.” Declaration of Jeffrey F. Oneal (“Oneal Dec.”) ¶ 6. Although MID 7 indicated that certain interrogatories seeking identification of documents supporting various 8 contentions were omitted and some “additional interrogatories” were added, they did not identify any 9 of the “additional interrogatories.” Oneal Dec. ¶ 6. 10 At the hearing, defense counsel was still unable to identify any differences between the 11 interrogatories. Defense counsel noted that the MDD#1 set did not ask for the identification of 12 documents, but also admitted that MID propounded at least one set of document requests and that 13 Plaintiffs produced responsive documents. After considering the joint statement and the arguments 14 presented at hearing, the Court finds no basis for requiring Plaintiffs to provide responses to 15 essentially duplicative sets of interrogatories. It is apparent that MID brought this motion in the 16 spirit of discovery “gotcha” and solely because it contends that Plaintiffs’ have waived any 17 objections save the numerical limit on interrogatories. 18 Accordingly, MID’s motion to compel is DENIED. 19 Pursuant to Fed. R. Civ. P. 37(a)(5)(B), if a motion to compel is denied, a court may issue 20 any protective order authorized under Rule 26(c). Fed. R. Civ. P. 26(c) provides that a “court may, 21 for good cause, issue an order to protect a party or person from annoyance, embarrassment, 22 oppression, or undue burden or expense.” Protective orders provide a safeguard for parties and other 23 persons in light of the otherwise broad reach of discovery. Fed. R. Civ. P. 26(c), Advisory Comm. 24 Notes (1970); United States v. Columbia Broadcasting System, Inc., 666 F.2d 364, 368-369 (9th Cir. 25 1982). In determining whether good cause exists for the protective order, the court must balance the 26 interests in allowing discovery against the relative burdens to the parties. In re Coordinated Pretrial 27 1 28 Plaintiffs point out that only 878 of them are asserting claims against MID. 5 1 Proceedings, 669 F.2d 620, 623 (10th Cir. 1982); see also Wood v. McEwen, 644 F.2d 797, 801-802 2 (9th Cir. 1981). Here, the Court finds that MID’s interrogatories are unduly burdensome in light of 3 the substantially similar interrogatories propounded by MDD#1. There is no indication that 4 Plaintiffs’ responses to the MDD#1 interrogatories will not sufficiently address MID’s 5 interrogatories. Therefore, it appears the burden of responding outweighs any likely benefits to MID. 6 For these reasons, a protective order is warranted. Plaintiffs are not required to provide responses to 7 MID’s February 2011 interrogatories unless MID can demonstrate that it is unable to obtain the 8 requested information by other means. Plaintiffs also request an award of attorney fees and sanctions for having to respond to the 9 10 instant motion. If, as here, a motion to compel discovery is denied, the court “must, after giving an 11 opportunity to be heard, require the movant, the attorney filing the motion, or both to pay the party . . 12 . who opposed the motion its reasonable expenses incurred in opposing the motion, including 13 attorney’s fees.” Fed. R. Civ. P. 37(a)(5)(B). The court “must not order this payment if the motion 14 was substantially justified or other circumstances make an award of expenses unjust.” Id. In the 15 instant case, MID’s motion was not substantially justified given the substantially similar 16 interrogatories propounded by MDD#1, along with Plaintiffs’ agreement to provide responses to the 17 MDD#1 interrogatories. After allowing MID an opportunity to be heard, the Court finds that an 18 award of expenses is justified. 19 Plaintiffs’ counsel, Mr. Marderosian, declares that his hourly rate is $650.00. He spent 15.5 20 hours to prepare the response and anticipated an additional 4.5 hours to review the reply and attend 21 oral argument. Marderosian Dec. ¶ 20. Therefore, Plaintiffs seek attorney fees in the total amount of 22 $13,000.00 ($650.00 x 20). Although Mr. Marderosian has considerable experience and 23 background, the Court considers his rate too high for the type of motion at issue and reduces his 24 hourly rate to $200.00. Pursuant to Fed. R. Civ. P. 37(a)(5)(B), the Court, in its discretion, finds it 25 appropriate to award Plaintiffs attorney fees totaling $4,000.00. 26 // 27 // 28 6 1 2 CONCLUSION As outlined above, MID’s motion to compel is DENIED. Plaintiffs’ request for a protective 3 order is GRANTED. Plaintiffs are not required to respond to the interrogatories propounded by MID 4 on February 18, 2011, unless, and until, MID can demonstrate an inability to obtain the requested 5 information by other means. 6 In addition, the Court AWARDS Plaintiffs the expenses incurred in responding to the 7 motion in the amount of $4,000.00. Defendant MID and its counsel shall pay this amount to 8 Plaintiffs within fourteen (14) days of the date of service of this order. 9 10 11 IT IS SO ORDERED. Dated: August 22, 2011 /s/ Dennis L. Beck UNITED STATES MAGISTRATE JUDGE 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 7
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