On March 31, 2011, a hearing was held on plaintiff AmeriPride Services, Inc.'s ("AmeriPride") motion to compel a wide range of discovery actions. Brian Zagon and Maureen Hodson appeared for plaintiff. Ronald Bushner and Fred Blum appeared for defendant. Upon review of the motions and the documents in support and opposition, upon hearing the arguments of counsel and good cause appearing therefor, THE COURT FINDS AS FOLLOWS:
FACTUAL AND PROCEDURAL BACKGROUND
On January 19, 2000, AmeriPride filed this Comprehensive Environmental Response, Compensation and Liability Act ("CERCLA") action against previous owners and/or operators of property located at 7620 Wilbur Way in Sacramento ("the Facility"). This matter is proceeding on plaintiff's third amended complaint, filed December 13, 2000. On February 23, 2001, Texas Eastern Overseas ("TEO") filed an answer and cross-claims against AmeriPride for contribution under CERCLA Section 113.*fn1 On July 2, 2007, the Honorable Lawrence K. Karlton approved a settlement between AmeriPride and all defendants except for Valley Industrial Services ("VIS") and TEO, its successor.
In September 2008, TEO (with new counsel) filed a motion to dismiss based on lack of capacity to be sued. That motion was granted, but the matter was stayed to allow AmeriPride to petition the Delaware Court of Chancery to appoint a receiver, which would restore TEO's capacity to be sued. The Delaware Court granted AmeriPride's petition for appointment of a receiver and this court lifted the stay. A revised scheduling order was issued on September 29, 2010, with a discovery cut-off of May 1, 2011.
On January 7, 2011, AmeriPride filed a motion for summary judgment ("MSJ") seeking judgment as a matter of law against TEO on AmeriPride's CERCLA Section 107 claim, its claim for declaratory judgment under CERCLA Section 113(g), and each of TEO's counterclaims. Plaintiff contends that because TEO's predecessor, VIS, used and released perchloroethylene ("PCE")*fn2 at the Facility and AmeriPride did not conduct dry cleaning or use PCE, that TEO is 100% liable for the response costs incurred by AmeriPride for cleaning the site. The amount of damages is estimated to be as high as $35,000,000.
On November 29, 2010, TEO filed a third party complaint against Univar, USA, Inc. (VIS's PCE supplier) for cost contribution under CERCLA Section 113, declaratory relief under CERCLA, contribution, equitable indemnity, and state declaratory relief.
1. Rule 30(b)(6) Deposition
Based on representations of counsel, this matter is no longer in dispute.
2. Requests for Admissions
AmeriPride's central argument as to its Requests for Admissions is that TEO's responses are inadequate, evasive and false because TEO has information readily available to it -- as evidenced by their third party complaint and their opposition to plaintiff's motion for summary judgment -- that would allow them to either admit or deny certain facts. TEO argues that because it is an entity revived solely for this litigation, it does not have access to documents and/or information that would allow it either admit or deny, and that because it complied with the basic requirements of Rule 36(a), the court is prohibited from determining the adequacy of their answers.
Generally, Rule 36(a) requires one of three answers: (1) an admission; (2) a denial; or (3) a statement detailing why the answering party is unable to admit or deny the matter. FRCP 36(a)(3); Asea, Inc. v. Southern Pac. Transp. Co., 669 F.2d 1242 (9th Cir. 1981). If good faith requires that a party qualify its answer or deny only a part of the requested matter, it must specify so much of the request as is true and deny only the remainder.
Instead of admitting or denying the request for admission, a party may respond by claiming inability (lack of sufficient information) to admit or deny the matter stated in the request. Fed. R. Civ. P. 36(a). But a party responding in this manner must also state that he or she has made 'reasonable inquiry and that the information known or readily obtainable by the party is insufficient to enable the party to admit or deny.' Fed. R. Civ. P. 36(a); Asea, Inc. v. Southern Pac. Transp. Co., 669 F.2d 1242, 1245-1246 (9th Cir. 1981). The responding party is required to undertake a 'good faith' investigation of sources reasonably available to him or her in formulating answers to request for admissions (similar to the duty owed in responding to interrogatories). Adv. Comm. Notes (1970) to Fed. R. Civ. P. 36(a).
"Reasonable inquiry" is limited to persons and documents within the responding party's control (e.g., its employees, partners, corporate affiliates, etc.). It does not require the responding party to interview or subpoena records from independent third parties in order to admit or deny a Request for admission. T. Rowe Price Small-Cap Fund, Inc. v. Oppenheimer & Co., Inc., 174 F.R.D. 38, 43 (S.D. N.Y. 1997); but see Uniden America Corp. v. Ericsson Inc., 181 F.R.D. 302, 304 (M.D. N.C. 1998) (responding party must make inquiry of a third party "when there is some identity of interest manifested, such as by both being parties to the litigation, a present or prior relationship of mutual concerns, or their active cooperation in the litigation, and when there is no manifest or potential conflict with the third party.") Likewise, a party cannot be forced to admit or deny facts testified to by a third party witness as to which the responding party has no personal knowledge. T. Rowe Price Small-Cap Fund, Inc., 174 F.R.D. at 46 (Request for admission asked party to admit or deny that third party actually held beliefs to which he testified); but see Uniden America Corp., 181 F.R.D. at 304 (if third party has given deposition testimony regarding the matter, responding party "can be compelled via Rule 36 to admit or deny, that is to ...