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United States District Court, Northern District of California

April 29, 2003


The opinion of the court was delivered by: Susan Illston, United States District Judge

The Cargill defendants filed a letter brief seeking relief for alleged incomplete discovery responses by plaintiffs, San Francisco BayKeeper ("BayKeeper"). In particular, Cargill seeks an order deeming certain Requests For Admission admitted by plaintiffs, or alternatively, compelling plaintiffs to provide further responses to Cargill's Requests For Admissions, Requests For Production of Documents, and Interrogatories. Defendants' Motion to Compel Discovery ("Defendants' Motion") p. 1. In addition, Cargill requests that the Court award it the costs incurred in preparing this motion. Defendants' Motion p. 1.

Discovery in this case had closed before the case was appealed to the Ninth Circuit. After remand, the parties stipulated to an Amended Scheduling Order, to re-open discovery for a limited purpose. The Amended Scheduling Order (July 5, 2002), at p. 2, provided in part:

Baykeeper and Cargill stipulate that limited additional discovery may be done for purposes of preparing this case for trial on remand. Specifically, the parties agree that contention interrogatories, document requests, and requests for admission specifically relating to the activities and conditions at the subject site since August 29, 1997 may be propounded by the parties. Additionally, although expert discovery too had been completed prior to appeal, the parties agree that supplemental expert testimony, by those experts previously identified by the parties in this action, may be exchanged. No additional experts are to be identified absent a specific request and a order of the Court upon a showing of good cause, or with consent of the opposing party. The parties agree to meet and confer in good faith in an effort to resolve any disputes related to this additional discovery.
For the reasons set forth below, the Court DENIES defendants' motions for discovery relief.


A. Requests for Admission

Defendants request the Court's assistance in resolving an ongoing discovery dispute concerning plaintiffs' responses to various of defendants' Requests For Admission ("RFA").

1. Request For Admission Nos. 96-112, and 115*fn1

Defendants sought admissions of fact relating to jurisdiction over the "Pond" under the Clean Water Act ("CWA"), and as to the Pond's condition "prior to 1908," "in 1908," "by 1908," "in 1925," "before 1960," "as 1963," "since 1972," and "at 1972." Plaintiffs objected that these RFA's refer to jurisdictional issues, that substantial numbers are irrelevant, and that they are outside the scope of discovery contemplated by the Amended Scheduling Order. In any event, the jurisdictional questions have been resolved by way of summary judgment and the RFA's, whatever their original utility, have none now. Cargill's motion to compel answers to the Requests For Admissions Nos. 96-112, and 115 is DENIED.

2. Request For Admission Nos. 113-114, 116 118-125, 128-130,135-138*fn2
Defendants request admissions regarding harm to the "Pond," what Cargill discharged into the "Pond," and how any alleged discharges affected local wildlife or allowed Cargill to receive an economic benefit. Defendants' Motion p. 8-9. Plaintiffs objected, claiming that the information sought is outside the scope of Plaintiffs' knowledge. After reviewing the parties arguments, this Court finds nothing evasive about plaintiffs' responses hereby DENIES Cargill's request to compel further responses to Requests For Admission Nos. 113-114, 116, 118-125, 128-130, and 135-138.

3. Request For Admission Nos. 140-145

Defendants' RFA's Nos. 140-145 ask plaintiffs to admit the authenticity of six different documents. Defendants' Motion p. 11. Plaintiffs object that this information is beyond the scope of the discovery order, and further argues that they are in no position to admit or deny if a particular document produced by the defendants are authentic, Plaintiffs' Response p. 6. This Court agrees that plaintiffs are not in the position to assess the authenticity of defendants' documents, and Cargill's motion to compel further responses to Requests Nos. 140-145 is hereby DENIED.

B. Document Requests

1. Document Request Nos, 65-71, 78-84, 86-88

As to Document Requests Nos. 65-71, 78-84 and 86-88, Cargill claims that BayKeeper has neither produced documents responsive to the requests nor stated that it conducted a diligent search for documents before responding. Defendants' Motion p. 12. Specifically, these are documents that refer, relate or pertain to the site, including the "Pond," that show communication between plaintiffs and the Department of Justice ("DOJ") and the Environmental Protection Agency ("EPA"). BayKeeper responds that it has produced all responsive documents and promises to give any other documents as they come to BayKeeper's attention. Plaintiffs' Response p. 7. This is sufficient for present purposes, and Cargill's motion to compel further response to Document Request Nos. 65-71, 78-84, and 86-88 is DENIED.*fn3

2. Document Request No. 85

In Cargill's Document Request No. 85, Cargill sought documents that support the plaintiffs' claim that the "Pond" is used in interstate commerce. Defendants' Motion p. 16-17. Cargill argues that the interstate commerce connection for the "Pond" was under the Migratory Bird Rule, which was rejected in Solid Waste Agency of Northern Cook County v. U.S. Army Corps of Engineers ("SWANCC") 531 U.S. 159 (2001). Plaintiffs respond that defendants' counsel admitted that the "Pond" was within interstate commerce in its opposition to BayKeeper's Motion for Partial Summary Judgment (that "the solids and liquids in the pond implicate interstate commerce; [the Pond] is used for industrial purposes by Cargill, an industry in interstate commerce. On that basis, the liquid in the containment pond could be regulated by Congress under the Commerce Clause." Plaintiffs' Response p. 8; See Exh. F at 1; see also Exh. G at 18-19).

Given the Court's finding that a pond adjacent to a navigable water is encompassed within the Clean Water Act's protections, the Court need not and does not make any finding concerning the preclusive effect of any prior admissions by counsel. The Motion to Compel BayKeeper to produce the documents described in Cargill's Document Request No. 85. is DENIED.

C. Interrogatories

1. Interrogatories Nos. 115-117*fn4

Defendants have requested plaintiffs to set forth theory and facts that plaintiffs contend supports the fact that the "Pond" is a "water of the U.S.," or any theory not previously stated in plaintiffs' responses to defendants' prior discovery requests in this lawsuit. Defendants' Motion p. 17. Plaintiffs claim, among other things, that this interrogatory is outside the scope of the Amended Scheduling Order. The Court agrees and DENIES Cargill's motion to compel answers to Interrogatories Nos. 115-117.

2. Interrogatories Nos. 140, 142, 144*fn5

Here, defendants request communications with the Regional Water Quality Control Board, US Army Corp. of Engineers, the United States, and the EPA regarding the site since August 29, 1997. Defendants' Motion p. 18. Plaintiffs object, claiming that this interrogatory calls for hearsay and that, in any event, plaintiffs have already provided all supplemental information they have to the defendants. Plaintiffs' Response p. 10. Accordingly, this Court DENIES Cargill's motion to compel Baykeeper to make any further responses to Interrogatories Nos. 140, 142, and 144.

D. Violation of Discovery Orders

Cargill seeks sanctions against Baykeeper for allegedly providing evasive, non-responsive, and incomplete discovery responses despite three "meet and confer" calls between the parties counsel. Defendants' Motion p. 18-19. This Court finds nothing evasive or in bad faith about BayKeeper's responses, and hereby DENIES the request.


For the foregoing reasons, the Court DENIES the discovery motions.


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