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Enns Pontiac, Buick & Truck, et al v. Orelia Flores

July 11, 2011

ENNS PONTIAC, BUICK & TRUCK, ET AL.,
PLAINTIFFS,
v.
ORELIA FLORES, ET AL.,
DEFENDANTS.



The opinion of the court was delivered by: Dennis L. Beck United States Magistrate Judge

ORDER REGARDING DEFENDANT JOHN PEARCE'S MOTION FOR PROTECTIVE ORDER RE: DEPOSITION OF SALEM ENGINEERING (Documents 170 and 225)

ORDER REGARDING PLAINTIFFS' MOTION TO COMPEL DEPOSITION TESTIMONY AND DOCUMENTS FROM BRUCE MEYERS AND PERSON MOST QUALIFIED ON BEHALF OF SALEM ENGINEERING INC. (Document 186)

Defendant John Pearce ("Defendant Pearce" or "Pearce") filed a motion for protective order to postpone the depositions of Salem Engineering and Bruce Meyers. Plaintiffs Enns Pontiac, Buick & GMC Truck, Earl L. Enns, Esther J. Enns, Harold J. Enns and Patricia L. Enns ("Plaintiffs) filed a related motion to compel deposition testimony and documents from Bruce Meyers and the person most qualified on behalf of Salem Engineering Inc. The motions were heard on July 1, 2011, before the Honorable Dennis L. Beck, United States Magistrate Judge. Kathleen Clack and Mark Schallert appeared on behalf of Defendant Pearce. Jeffery Caufield and Matthew Friedrichs appeared telephonically on behalf of Plaintiffs. Andrew Skanchy appeared on behalf of Defendant Estate of Sieto Yamaguchi.

INTRODUCTION

Plaintiffs filed this environmental contamination action on July 19, 2007. The operative complaint involves claims regarding the source and extent of alleged contamination underlying and/or surrounding properties located on G Street in Reedley, California, including 1307, 1319, and 1340 G Street ("G Street Properties"). Contamination allegedly existed and/or exists beneath the G Street Properties and surrounding areas. Prior businesses at 1319 and 1340 G Street include dry cleaning sites, which are under the jurisdiction of the California Regional Water Quality Control Board ("RWQCB").

Plaintiffs' complaint seeks recovery of costs under the Comprehensive Environmental Response, Compensation, and Liability Act ("CERCLA"), 42 U.S.C. § 9607 et seq., and contains other federal and state law claims. Plaintiffs own real property located at 1319 G. Street, Reedley, California ("Plaintiffs' site"). Plaintiffs allege that properties either currently or previously owned by Defendants caused environmental contamination to Plaintiffs' site.

On April 27, 2011, Plaintiffs issued Federal Rule of Civil Procedure 45 subpoenas on Defendant Pearce's expert Salem Engineering and its employee, Bruce Meyers, to take depositions and obtain documents related to Salem's site assessment and report.

On May 22, 2011, Defendant Pearce filed a motion for protective order postponing the depositions of Salem Engineering and Bruce Meyers until preparation of their expert report.

On June 2, 2011, Plaintiffs filed a motion to compel depositions and documents from Bruce Meyers and Salem Engineering's person most qualified.

The parties filed Joint Statements regarding the motion for protective order and the motion to compel on June 24, 2011. Docs. 214 and 225.

The deadline for expert witness disclosures is November 1, 2011. Expert rebuttal disclosures and supplement expert disclosures are due on December 1, 2011. Expert witness discovery closes on January 3, 2012.

FACTUAL BACKGROUND*fn1

On May 2, 2008, RWQCB ordered current or previous property owners and/or operators of a dry cleaner at the 1340 G Street site, including Pearce to submit a work plan investigating the possible releases of volatile organic compounds ("VOCs") to soil and groundwater from the 1340 G. Street Property. Declaration of Matthew Friedrichs ("Friedrichs Dec.") ¶ 2 and Exhibit 1.

On September 21, 2009, Kleinfelder West, on behalf of Pearce, submitted a Site Assessment Work Plan to RWQCB. The scope of work included sampling soil gas for VOCs. RWQCB found the scope of work appropriate and ordered a ...


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