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Arkansas River Power Authority v. Babcock & Wilcox Power Generation Group, Inc.

United States District Court, D. Colorado

June 30, 2015



Nina Y. Wang United States Magistrate Judge

Magistrate Judge Nina Y. Wang This matter is before the court on Plaintiff Arkansas River Power Authority’s (“ARPA”) Motion to Quash Defendant’s Fed.R.Civ.P. 30(b)(6) Notice of Deposition and for Protective Order (“ARPA’s Motion to Quash”) [#60, filed January 30, 2015] and the Motion to Compel Deposition Testimony and Production of Documents (“B&W’s Motion to Compel”) filed by Defendant Babcock & Wilcox Power Generation Group, Inc. (“B&W”) [#87, filed April 15, 2015]. These matters were referred to this Magistrate Judge pursuant to the Order Referring Case dated May 13, 2014 [#19], the Reassignment of the action dated February 9, 2014 [#63], and memoranda dated February 2, 2015 [#61] and April 16, 2015 [#88]. This court has carefully considered the Motions and related briefing, the entire case file, the arguments offered by the Parties during the March 18, 2015 and May 27, 2015 Motions Hearings, as well as applicable case law. For the following reasons, ARPA’s Motion to Quash is GRANTED IN PART, and DENIED IN PART and B&W Motion to Compel is GRANTED IN PART, and DENIED IN PART.


A significant portion of the background and procedural history of this case was set forth in detail in the court’s prior order [#94] and will not be repeated here. At the heart of these Motions are ARPA’s claims that “ARPA has further incurred …defense and settlement costs from environmental litigation resulting from the boiler’s failure to meet its emissions guarantees.” [#80 at ¶ 1]. Specifically, ARPA asserts that:

In June 2013, ARPA settled the pending lawsuit with WildEarth Guardians, which arose from B&W’s failure to meet the flue gas emissions guarantees. Pursuant to that settlement, ARPA will be required to pay WildEarth Guardians $325, 000 in attorneys’ fees, and will be required to fund a “supplemental environmental project” to be determined at a cost of an additional $125, 000. This is in addition to the over $265, 000 ARPA paid in legal fees to defend that lawsuit. None of these costs would have been incurred but for B&W’s failure to meet its [sic].

[#80 at ¶ 92]. ARPA claims “[d]amages for settlement and defense costs of environmental litigation resulting from B&W’s failure to meet its emissions guarantees.” [Id. at 37 ¶ e]. It also claims “[d]amages for the loss of use of ARPA’s $170 million Lamar Repowering Project [“LRP”] due to the failure of the boiler supplied by B&W.” [Id. at ¶ g]. Essentially, ARPA alleges that “[w]ithout a functioning boiler, the plant cannot generate electricity, ” and that B&W is liable for all the consequences arising from the boiler’s inability to meet the emissions guarantees, including the shuttering of the LRP. ARPA, however, is not claiming damages related to either its lawsuit with the city of Trinidad, Colorado or with Forerunner, the firm that ARPA engaged to prepare feasibility studies for the LRP and to assist with the design and selection of contractors for the facility. [#95 at 7].

B&W served a Rule 30(b)(6) deposition notice on ARPA, seeking testimony from a corporate representative about a variety of topics, including issues related to ARPA’s permit applications and related communications with permitting authorities; issues related to problems with the design and construction of the LRP; and the legal advice received by ARPA in conjunction with the settlement of the litigation with Wild Earth Guardians. [#60-1]. While ARPA sought to quash the Rule 30(b)(6) Notice altogether and limit the time period of any Rule 30(b)(6) deposition to one day of seven hours, ARPA subsequently stated during oral argument at the March 18 hearing that it did not have an objection to a more tailored Rule 30(b)(6) deposition, but it did not want to subject its witnesses, who had already testified in their individual capacities, to further testimony on topics that had already been covered in prior depositions. B&W argued, however, that it should be permitted to bind ARPA through a Rule 30(b)(6) deposition and avoid a circumstance in which ARPA could change its theory throughout the action because individuals, rather than the corporation, had provided key testimony (or had been unable to answer the question).

Based on the concerns raised during the motions hearing, the court directed the Parties to discuss which individuals could bind ARPA, what topics had been covered by previous testimony and which of that testimony is binding on ARPA, and whether ARPA would be bound by previous testimony of an individual stating he or she “does not know.” [#77]. The court further instructed the Parties to indicate in their status report whether issues remain as to the two additional fact depositions B&W sought to take. Id.

On April 13, 2015, the Parties filed a Joint Status Report, indicating that they had agreed to narrow the scope of certain topics in the B&W Rule 30(b)(6) Notice, but certain issues remained. Specifically, ARPA continued to object to topics 19, 21, and 22, based on the attorney-client and/or government deliberative process privileges. [#86 at 2]. In addition to objecting to providing information about the settlement of the Wild Earth Guardian lawsuit, ARPA also objected to providing information about a settlement it reached with Trinidad, Colorado and dismissal of claims against ForeRunner. [#80 at ¶ 17; #86 at 2]. B&W contends that any privilege that attaches to this information was waived by ARPA when it put at issue the amounts paid to settle various litigations and the legal advice it received in connection therewith. [#86 at 4]. The Parties further indicated that they had a continued dispute over the length of any Rule 30(b)(6) deposition or whether B&W would be permitted to take the deposition of one additional fact witness, John Krajewski. [#86 at 3].

Consistent with its representations reflected in the Joint Status Report, B&W filed a Motion to Compel Deposition Testimony and Production of Documents, seeking testimony and documents regarding disputes and settlements with third parties that ARPA had previously withheld based on privilege objections. [#87]. ARPA argued that the Motion to Compel should be denied because B&W failed to adequately meet and confer prior to the filing of the Motion and because the Motion is untimely. [#95]. ARPA also substantively opposes the Motion, arguing that it did not put the issue of advice of counsel in dispute because it did not rely upon advice of counsel to come to its settlements. [Id. at 2]. At the hearing on May 27, 2015, the Parties indicated that the only outstanding discovery matters in the case relate to whether B&W can discover information related to advice of counsel provided with respect to the settlements and/or resolutions it reached with Wild Earth Guardians, Trinidad, and ForeRunner; the length of a Rule 30(b)(6) deposition of ARPA; and the deposition of Mr. Krajewski. The court addresses each of these issues below.


I. Meet and Confer Obligations

Before turning to the Parties’ substantive arguments regarding the scope of permissible discovery, the court will first address ARPA’s concern regarding B&W’s efforts to meet and confer. ARPA argues:

contrary to the representation its Certification Pursuant to D.C. Colo. L. Civ. R 7.1(a) [sic], counsel for Defendant failed to confer in good faith regarding their motion. There was no prior conferral or discussion of the sufficiency of ARPA’s responses to Defendant’s document requests, and counsel for ARPA was unaware of any specific issue with its document production until it received a copy of this motion. For this reason alone, the Motion should be denied.

[#95 at 2].

B&W disputed that its efforts to confer were deficient, pointing to the efforts of the Parties prior to the filing of ARPA’s Motion to Quash, that continued upon court order, and that culminated with B&W sending ARPA a letter demanding supplementation of its discovery demands. [#99 at 11-12].

Rule 37(a)(1) of the Federal Rules of Civil Procedure require the movant to confer or attempt to confer with the person or party failing to make disclosure or discovery in an effort to obtain it without court action. Fed.R.Civ.P. 37(a)(1). In addition, the Local Rules of this District require parties to meet and confer prior to the filing of any motion, except those motions filed in a case of an unrepresented prisoner, motions to dismiss pursuant to Rule 12 of the Federal Rules of Civil Procedure, motions for summary judgment pursuant to Rule 56 of the Federal Rules of Civil Procedure, and motions to withdraw by counsel pursuant to D.C.COLO.LAttyR 5(b). D.C.COLO.LCivR 7.1(a). The Rule specifically directs the attorney for the moving party to “confer or make reasonable good faith efforts to confer with any opposing counsel or unrepresented party to resolve any disputed matter.” Id. A violation of Local Rule 7.1(a) is an independent basis for denial of a motion. See Predator Int’l, Inc. v. Gamo Outdoor USA, Inc., Case No. 09-cv-00970-PAB-KMT, 2014 WL 4056578, at *2 (D. Colo. Aug. 14, 2014) (J. Brimmer).

To satisfy the requirements of Local Rule 7.1(a), and Rule 37 of the Federal Rules of Civil Procedure, “the parties must hold a conference, possibly through the exchange of correspondence but preferably through person-to-person telephone calls or face-to-face meetings, and must compare views and attempt to reach an agreement, including by compromise if appropriate.” See Hoelzel v. First Select Corp., 214 F.R.D. 634, 636 (D. Colo. 2003). Counsel must confer about the specifics of a forthcoming motion, and not simply rely upon months-old prior conferences regarding discovery deficiencies to satisfy this obligation.

While it is clear that B&W’s long-standing position was that it was entitled to discover information related to the settlement agreements, it is not clear to the court that it told ARPA that it thought any applicable privileges were waived prior to the Motion to Quash. In its Opposition to the Motion to Quash, B&W uneq uivocally stated that it did not seek attorney-client communications. [#66 at 10]. Absent any evidence to the contrary, it seems unlikely that any efforts to meet and confer prior to the Motion to Quash were directed at the issue before the court now. At some point after the oral argument in March and before the Motion to Compel was filed, B&W determined that ARPA put its communications with counsel at issue based on its claim to be reimbursed for all settlement costs. While the court is concerned whether the efforts made were sufficiently robust or transparent, the court finds for the purposes of the instant Motion to Compel that they were sufficient. Specifically, the court notes that the Joint Status Report, filed two days prior to B&W’s Motion to Compel and signed by both Parties’ counsel, states:

The parties have NOT reached agreement as to certain topics in the revised notice. Specifically, ARPA maintains its objections to topics 19, 21 and 22 to the extent they seek testimony on subjects that are protected by the attorney-client and/or government deliberative process privileges. These topics seek testimony regarding ARPA’s rationale for entering into settlement agreements of litigation with WildEarth Guardians and the City of Trinidad, as well as ARPA’s assessment valuation and, ultimately, dismissal of claims against ForeRunner. B&W contends that ARPA has waived any applicable privilege by putting at issue the amounts paid to settle various litigations and the legal advice it received in connection therewith. Further, even if ARPA has not waived any applicable privileges, most of the information sought in topics 19, 21, and 22 is not privileged.

[#86 at 2]. At that point, ARPA was aware of the contours of B&W’s argument, and its intent to file a motion to compel on April 15, 2015 to address the matter. [Id. at 1.]

In making this finding, the court reminds the Parties and their counsel that the meet and confer process has at least two objectives. The first is to define the scope of the actual dispute and engage in substantive efforts to resolve such dispute without court intervention, which may include compromising on the part of all parties. The second is to promote civility among the members of the bar. The court is aware that it may not be convenient, or pleasant, for counsel ...

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