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Enns Pontiac, Buick v. Orelia Flores

July 12, 2011

ENNS PONTIAC, BUICK &
DLB GMC 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 PLAINTIFFS' MOTION TO COMPEL PEARCE'S RESPONSES AND DOCUMENTS RELATED TO ENNS' DISCOVERY REQUESTS PROPOUNDED ON PEARCE ) (Document 188)

Plaintiffs Enns Pontiac, Buick & GMC Truck, Earl L. Enns, Esther J. Enns, Harold J. Enns and Patricia L. Enns ("Plaintiffs) filed the instant motion to compel Defendant John Pearce's answers to interrogatories and production of documents. The motion was heard on July 1, 2011, before the Honorable Dennis L. Beck, United States Magistrate Judge. Jeffery Caufield and Matthew Friedrichs appeared telephonically on behalf of Plaintiffs. Kathleen Clack and Mark Schallert appeared on behalf of Defendant Pearce. Andrew Skanchy appeared on behalf of Defendant Estate of Sieto Yamaguchi.

BACKGROUND

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. 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. 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 includes a federal claim for recovery of costs under the Comprehensive Environmental Response, Compensation, and Liability Act ("CERCLA"), 42 U.S.C. § 9607 et seq., along with other federal and state law claims.

On April 15, 2011, Plaintiffs served Defendant John Pearce ("Pearce") with a Second Set of Requests for Production of Documents ("RFPs"), along with a Request for Admissions. Although Pearce responded to the Request for Admissions, he failed to respond timely to the RFPs. Declaration of Matthew Friedrichs ("Friedrichs Dec.") ¶¶ 15-18. Pearce's response to the RFPs was due on May 18, 2011. Pearce mailed his RFP responses with objections on May 28, 2011. Plaintiffs received the responses on June 2, 2011. Exhibit 15 to Friedrichs Dec. The non-expert discovery deadline expired the next day, June 3, 2011.

Plaintiffs filed the instant motion to compel Pearce's RFP responses and production of documents on June 3, 2011. Although the parties dispute the start of the meet and confer process, they agreed in a teleconference on June 15, 2011, that the meet and confer process was completed. Friedrichs Dec. ¶ 13, Exhibit 12. The parties filed their joint statement of discovery dispute on June 24, 2011.

DISCUSSION

Given the untimely response, Plaintiffs assert that Pearce has waived all objections to the RFPs, including objections based on privilege and work product. See Richmark Corp. v. Timber Falling Consultants, 959 F.2d 1468, 1473 (9th Cir. 1992). In Senat v. City of New York, 255 F.R.D. 338, 339 (E.D.N.Y. 2009), the court stated that "there is consistent authority that a failure to serve timely responses to interrogatories and document requests serves as a waiver of objections." See also Ramirez v. County of Los Angeles, 231 F.R.D. 407, 409-10 (C.D. Cal. 2005). However, courts are not unanimous on whether the failure to timely respond waives privilege objections. Senat, 255 F.R.D. at 339.

Plaintiffs claim that Pearce has waived all objections to the RFPs, including the following:

REQUEST FOR PRODUCTION No. 5: ANY and ALL DOCUMENTS relating to the preparation of the February 25, 2010 "Site Assessment Report Former Dry Cleaners 1340 G Street Reedley, California" prepared by Kleinfelder including but not limited to correspondence between PEARCE and KLEINFELDER and/or notes, drafts of the report.

REQUEST FOR PRODUCTION No. 6: ANY and ALL DOCUMENTS not previously produced relating to the PEARCE's communications with ANY and ALL governmental agencies included but not limited to the California Regional Water Quality Control Board regarding the 1340 G STREET property. REQUEST FOR PRODUCTION No. 7: ANY and ALL pictures related to PEARCE's ownership and operation of the former dry cleaners at 1340 G Street Reedley, CA.

REQUEST FOR PRODUCTION No. 8: ANY and ALL DOCUMENTS relating to Salem Engineering Group, Inc's March 28, 2011 Review of Groundwater Elevation and Flow Direction Data for 1340 G STREET submitted to the California Regional Water Quality Control Board, including but not limited to, communications between Kathleen Clack and Bruce Meyers and/or notes, drafts of the report.

Friedrichs Decl. at ΒΆ 15, Exh. 14. Plaintiffs seek an order compelling responses, without ...


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