United States District Court, D. Colorado
JACK J. GRYNBERG, GRYNBERG PRODUCTION CORPORATION and its successors, and GRYNBERG PETROLEUM COMPANY and its successors, Plaintiffs,
TOTAL S.A., Defendant.
For Jack J. Grynberg, Grynberg Production Corporation, and its successors, Grynberg Petroleum Company, and its successors, Plaintiffs: Linda Ann Battalora, Roger Allan Jatko, Hona Lat Dotterrer, Grynberg Petroleum Company-Greenwood Village, Greenwood Village, CO; Michael S. Porter, Michael S. Porter, Atty at Law, Wheat Ridge, CO.
For Total S.A., Defendant: Christopher R. Hart Fulbright & Jaworski, LLP-Houston Texas, Houston, TX; Jennifer Lee Price, John Preston Bowman, William D. Wood, Fulbright & Jaworski, LLP-Houston Texas, Houston, TX; Robert Paul Thibault, Patton Boggs, LLP-Denver Colorado, Denver, CO.
Boyd N. Boland, United States Magistrate Judge.
This matter is before me on Plaintiffs' Motion to Compel Responses to Plaintiffs' Second Set of Requests for Production and Second Set of Interrogatories [Doc. # 251, filed 11/28/05] (the "Motion to Compel"). The Motion to Compel is GRANTED IN PART and DENIED IN PART.
The Motion to Compel seeks relief with respect to eight discovery requests: Requests for Production Nos. 1, 2, 3, 4, 6, 7, and 8, and Interrogatory No. 2. After the Motion to Compel was filed, the defendant made a second supplemental response to the plaintiffs' second set of requests for production. As a result, the disputes concerning Production Requests Nos. 3, 4, and 6 have been resolved. Plaintiffs' Reply Brief In Support of Their Motion to Compel Responses to Plaintiffs' Second Set of Requests for Production and Second Set of Interrogatories [Doc. # 277, filed 1/13/06] (the "Reply"), at p.1. The only matters now at issue concern Production Requests Nos.1, 2, 7, and 8, and Interrogatory No. 2.
Production Requests Nos. 1 and 2
Production Request No. 1 seeks the following materials:
Please produce complete and legible copies of all well logs and test results, open hole or cased hole, for every well drilled in the greater Kashagan area, including the areas known as Kashagan, Kairan, Aktota, Kalamkas and Kashagan Southwest, including, but not by limitation the wells known as the Kashagan East Well # 1 (KE-1), the Kashagan East Well # 2 (KE-2), the Kashagan West Well # 1 (KW-1), the Kalamkas Well # 1, the SW Kashagan Discovery Well, the Aktota Discover Well and the Kairan Discovery Well.
Motion to Compel, Exh.1 at p.5.
Production Request No. 2 seeks the following materials:
Please produce complete and legible copies of every evaluation report by both outside and inside technical people including Ryder Scott Reports, and reports given to governmental entities in Kazakhstan as well as those Total and other consortium members prepared for its internal use, including evaluation reports prepared by other members of the consortium, regarding the exploration, development, production, marketing and/or pipelining of natural resources, including hydrocarbon oil, natural gas and sulfur, within the Kazakhstan portion of the offshore region of the northeast Caspian Sea.
Motion to Compel, Exh.1 at p.6.
Total objected to these requests asserting that they seek confidential, proprietary information that constitute trade secrets; that disclosure of the materials "would or may contravene Total's contractual confidentiality obligations owed to the Republic of Kazakhstan and to others"; and that I previously entered a protective order which encompasses the requested materials.
Id. at pp.5-6.
The materials requested are relevant to the calculation of the amount of recoverable oil reserves which are the subject of the lawsuit. This, in turn, is relevant to the plaintiffs' damages claims.
In Centurion Industries, Inc. v. Warren Steurer and Associates,
665 F.2d 323 (10th Cir. 1981), the Tenth Circuit Court of Appeals established the test to be applied in deciding whether to require the disclosure of trade secrets:
There is no absolute privilege for trade secrets and similar confidential information. To resist discovery under Rule 26(c)(7), a person must first establish that the information sought is a trade secret and then demonstrate that its disclosure might be harmful. If these requirements are met, the burden shifts to the party seeking discovery to establish that the disclosure of trade secrets is relevant and necessary to the action. The district court must balance the need for the trade secrets against the claim of injury resulting from disclosure. If proof of relevancy or need is not established, discovery should be denied. On the other hand, if relevancy and need are shown, the trade secrets should be disclosed, unless they are privileged or the subpoenas are unreasonable, oppressive, annoying, or embarrassing.
Id. at pp.325-26 (internal quotations and citations omitted).
I am not persuaded by Total's argument that the well logs, test results, and evaluation reports are immune from discovery because they are confidential. First, Total's objections based on confidentiality are carefully worded, stating only that disclosure of the well logs, test results, and evaluation reports "would or may contravene" certain contractual confidentiality obligations. Motion to Compel, Exh.1 at pp.5-6 (emphasis added). There is no outright statement that the responsive materials are subject to the confidentiality provisions.
In further support of their claim of confidentiality, Total relies on the declaration of Martha J. ...