United States District Court, E.D. California
VIOLA COPPOLA, GARY COPPOLA, and THE TRUST OF ANTHONY M. COPPOLA, Plaintiff,
GREGORY SMITH, an individual; RICHARD LASTER, an individual; and THE JANE HIGGINS NASH TRUST; JANE NASH AS EXECUTOR OF THE ESTATE OF DECATUR HIGGINS, HARLEY MILLER, an individual; CHERYL MILLER, an individual; MARTIN AND MARTIN PROPERTIES, BENART MAIN STREET PROPERTIES, CAL WATER SERVICE COMPANY, the CITY OF VISALIA and DOES 1-20, inclusive, Defendants. RELATED CROSS AND COUNTER-CLAIMS
ORDER ON THE PARTIES' CROSS MOTIONS TO COMPEL (Doc. 256)
BARBARA A. McAULIFFE, Magistrate Judge.
Plaintiffs Gary Coppola, the Trust of Anthony M. Coppola, and the Viola M. Coppola Irrevocable Trust (collectively "Coppola") and Defendant Cal Water bring cross motions to compel in this CERCLA groundwater contamination action. The Motions were heard on March 20, 2015, at 2:00 PM, before United States Magistrate Judge Barbara A. McAuliffe. Counsel Jan Greben and Brett Boon appeared in person on behalf of Plaintiffs. Counsel Patrick Schoenberg appeared in person and Counsel Noah Perch-Ahern appeared by telephone on behalf of Defendant Cal-Water. Having considered the joint statement of the parties, argument presented at the hearing, as well as the Court's file, Plaintiffs' Motion to Compel is DENIED in PART and GRANTED in PART. Cal-Water's Motion to Compel is DENIED.
A. Factual Background
The underlying CERCLA action arises from the chemical contamination of property surrounding a dry cleaning business in Visalia, California. Plaintiffs are owners and operators of a dry cleaning facility, commonly known as One Hour Martinizing, located at 717 West Main Street, Visalia, California 93291. The United States Environmental Protection Agency (EPA) and California Department of Toxic Substances Control (DTSC) found that Plaintiffs "are a responsible party" for the release of Tetrachloroethylene ("PCE") from Plaintiffs' Property to surrounding soil and groundwater because Plaintiffs have "been using PCE since at least 1994" and "are the current owners and operator of a facility that overlies a plume of PCE contamination." (DTSC Order, p. 2). DTSC ordered Plaintiffs to investigate and remediate the contamination caused by their dry cleaning operations.
Defendant Cal Water owns and operates public drinking water systems throughout California and the City of Visalia. At the time relevant to this action, Cal Water owned and operated well CWS 02-03 ("CWS 02-03"), a well located 20 feet east of Plaintiffs' Property. In 2000, Cal Water stopped operating CWS 02-03 because of increasing levels of PCE contamination.
In the operative sixth amended complaint, Coppola alleges that Cal Water's operation of CWS 02-03 led to the increased release and spread of PCE contamination. Coppola seeks damages from all Defendants, including contribution and indemnification, associated with soil and groundwater contamination.
B. Procedural Background
As stated above, Plaintiffs are alleged to be partly responsible for a PCE plume in the vicinity of their property. Plaintiffs brought suit against Cal Water alleging that Cal Water contributed to the spread of PCE contamination through the operation of CWS 02-03. See Sixth Amended Complaint, p. 10:23. That claim was subject to several motions to dismiss which narrowed the actionable legal theory upon which Plaintiffs may proceed against Cal-Water. District Judge Anthony W. Ishii issued an Order on Cal Water's Motion to Dismiss the Fifth Amended Complaint on May 14, 2014. (Doc. 214). That Order dismissed Plaintiffs' CERCLA "transporter claim" under Section 9607(a)(4) and its "pumping theory" claim under Section 9607(a)(2). The District Court however refused to dismiss Plaintiff's claim subjecting Cal Water to liability as a "prior owner or operator" as follows:
With this reading of Paragraph 69, and construing the factual allegations in the light most favorable to Coppola, the Court is satisfied that Coppola has alleged a violation of § 9607(a)(2). The allegations show that PCE contaminated water entered the Well during the pumping process. When the pumps stopped, PCE-contaminated water then exited through the Well openings. It is not entirely clear how the PCE-contaminated water exited the Well. However, given the definition of the term "disposal, " it is reasonably inferred that the PCE-contaminated water either "leaked" out of the Well openings or was "discharged" out of the Well openings. See 42 U.S.C. § 9601(29); cf. Carson Harbor, 270 F.3d at 879. Therefore, the allegations indicate that a "disposal" occurred "at the Well." (Doc. 214, p. 14:16-24) (internal citations omitted)
Based on this ruling, the primary remaining claim against Cal Water is related to water that entered and exited CWS 02-04.
Formal discovery is not yet open in this case as the parties have not participated in a Rule 26 Scheduling Conference. In an informal discovery conference on November 20, 2013, Plaintiffs expressed a need to conduct limited early discovery prior to the parties' Rule 26 (f) discovery conference. The Court agreed to allow early discovery if the parties stipulated to an agreed discovery plan. On January 3, 2014, the Court issued a Modified Stipulated Scheduling Order between Plaintiffs, Cal-Water, and the other defendants setting forth the parameters of early discovery in this case including written discovery, depositions, and investigatory field work. (Doc. 192).
The parties filed their joint discovery dispute on January 30, 2015. (Doc. 256). The Court continued the hearing to allow the resolution of a related state court motion and oral argument occurred on March 20, 2015. (Doc 259). Primarily at issue in Plaintiffs' Motion to Compel is the appropriate geographic scope of discovery in this matter. Plaintiffs' seek information pertaining to Cal Water's patterns and practices relative to its groundwater wells throughout the City of Visalia and at surface property surrounding CWS 02-03. Cal Water's competing Motion to Compel seeks responses to several interrogatories regarding the amount of PCE that entered into and was released from CWS 02-03, as well as requests for admissions related to whether Plaintiffs are a source of PCE contamination with a legal right to control tenant dry cleaning operations on their property.
III. LEGAL STANDARDS
The scope of discovery under Federal Rule of Civil Procedure 26(b) is broad: "Parties may obtain discovery regarding any nonprivileged matter that is relevant to any party's claim or defense." Fed.R.Civ.P. 26(b)(1). "Relevant information need not be admissible at trial if the discovery appears reasonably calculated to lead to the discovery of admissible evidence." Id. As the Supreme Court reiterated in Oppenheimer Fund, Inc. v. Sanders, 437 U.S. 340 (1978), relevance "has been construed broadly to encompass any matter that bears on, or that reasonably could lead to other matter that could bear on, any issue that is or may be in the case." 437 U.S. at 351 (citing Hickman v. Taylor, 329 U.S. 495, 501 (1947)).
The party seeking to compel discovery has the initial burden of establishing that its request satisfies the relevance requirements of Rule 26(b)(1). Reece v. Basi, 2014 U.S. Dist. LEXIS 78307, 2014 WL 2565986, at *2 (E.D. Cal. 2014) (Claire, M.J.). Following that showing (or if relevance is plain from the face of the request), the party who resists discovery then has the burden to show that discovery should not be allowed, and carries the "heavy burden of ...