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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' ...

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