The opinion
UNITED STATES DISTRICT COURT
NORTHERN DISTRICT OF NEW YORK
RIVERKEEPER, INC.,
Plaintiff, 1:20-CV-01025
Vv. (GTS/CFH)
COEYMANS RECYCLING CENTER LLC,
COEYMANS RECYCLING CENTER II, LLC,
CARVER LARAWAY,
Defendants.
APPEARANCES: OF COUNSEL:
Super Law Group, LLC EDAN ROTENBERG, ESQ.
222 Broadway, 22"¢ Floor JULIA KATHRYN MUENCH, ESQ.
m| New York, New York 10038
Attorneys for plaintiff
Young, Sommer Law Firm JOSEPH F. CASTIGLIONE, ESQ.
Executive Woods DEAN S. SOMMER, ESQ.
5 Palisades Drive
Albany, New York 12205
Attorneys for defendants
MEMORANDUM-DECISION & ORDER
Presently before the Court is plaintiff Riverkeeper’s motion to compel discovery,
pursuant to Federal Rule of Civil Procedure (“Fed. R. Civ. P.”) 37(a) and Northern
District of New York Local Rules 7.1, 26.2, and 37.1. See Dkt. No. 98. Defendants
Coeymans Recycling Center LLC, and Coeymans Recycling Center II, LLC (collectively
“CRC” or “defendants”) opposed. See Dkt. No. 106. Plaintiff replied. See Dkt. No. 113.
For the reasons that follow, plaintiff's motion to compel is granted in part and denied in
part.
|. Legal Standard
A. Motion to Compel Discovery
Federal Rule of Civil Procedure (“Fed. R. Civ. P.”) Rule 26(b)(1) states, “[p]arties
may obtain discovery regarding any nonprivileged matter that is relevant to any party’s
claim or defense and proportional to the needs of the case... . Information within this
o scope of discovery need not be admissible in evidence in order to be discoverable.”
FeD. R. Civ. P. 26(b)(1). “Under Rule 37, following a good-faith effort to meet and confer,
upon to all parties notice,” “a party may move for an order compelling disclosure or
discovery.” FED. R. Civ. P. 37(a).
A district court has broad latitude to determine the scope of discovery and to
manage the discovery process.” Tromblee v. The State of New York, et al., No. 1:19-
m| CV-638 (BKS/CFH), 2022 WL 2818222, at *2 (N.D.N.Y. July 19, 2022) (quoting EM Ltd.
v. Republic of Argentina, 695 F.3d 201, 207 (2d Cir. 2012) (additional citation omitted)).
This discretion includes imposition of “limitations or conditions on discovery . . . [and]
extends to granting or denying motions to compel or for protective orders on just terms.”
Jenny Yoo Collection, Inc. v. David's Bridal, Inc., No. 18-CV-9926 (PGG/BCM), 2019
WL 6841966, at *2 (S.D.N.Y. Dec. 16, 2019) (internal citation and quotation marks
| omitted); Russell v. Scott, No. 5:20-CV-184-GWC-KJD, 2022 WL 3084339, at *3 (D. Vt.
Aug. 3, 2022) (quoting Jenkins v. Miller, No. 2:12-cv-184, 2021 WL 1115928, at *1 (D.
Vt. Mar. 24, 2021) (“the district court has broad discretion to limit [the requested]
discovery in a prudential and proportionate way.”’)).
“[I]t is the discovering party who ‘has the burden of demonstrating that the
information sought is relevant to the subject matter of the pending action.” Russell,
2022 WL 3084339, at *3 (quoting United States v. Int'l Bus. Machines Corp., 66 F.R.D.
215, 218 (S.D.N.Y. 1974) and citing Citizens Union of City of New York v. Att'y Gen. of
New York, 269 F. Supp. 3d 124, 139 (S.D.N.Y. 2017). “The party opposing discovery on
the grounds of relevancy also has a burden: to demonstrate that ‘the requested
documents either do not come within the broad scope of relevance defined pursuant to
[Rule] 26(b)(1) or else are of such marginal relevance that the potential harm
occasioned by disclosure would outweigh the ordinary presumption in favor of broad
disclosure.” Id. (quoting Du Grenier v. Encompass Ins. Co., 2:16-cv-281 2018 WL
4692354, at “4 (quoting Go v. Rockefeller Univ., 280 F.R.D. 165, 176 (S.D.N.Y. 2012)).
“Motions to compel made pursuant to Rule 37 are ‘entrusted to the sound discretion of
the district court.” Id. (quoting Harris v. Bronx Parent Hous. Network, Inc., No. 18-CV-
m| 11681, 2020 WL 763740, at *1 (S.D.N.Y. Feb. 14, 2020) (additional citation omitted)).
Il. Arguments
A. Plaintiff's Arguments
As a threshold issue, plaintiff contends that its first set of interrogatories contains
four interrogatories; thus, the Court must reject defendants’ objection to the total
number of interrogatories and compel defendants to respond. See Dkt. No. 98-1 at 24.
Next, plaintiff seeks the Court to compel defendants to produce (1) documents created
prior to 2018 relating to Clean Water Act and MSGP compliance, and construction
permit compliance documents prior to 2020; (2) information relating to defendants’
tenants; (3) information relating to defendants’ finances and costs relating to calculating
civil penalties; (4) documents relating to the physical condition of the industrial park,
stormwater controls, and non-stormwater liquids; (5) documents relating to compliance
with the construction permit, New York State Department of Environmental
Conservation (“NYSDEC”) State Pollutant Discharge Elimination System (“SPDES”)
Multi Sector General Permit for Stormwater Discharges Associated with Industrial
Activity (“MSGP”), water quality standards, and salt management; and (6) documents
| related to communications with government agencies. See generally Dkt. No. 98-1.
Next, plaintiff argues that defendants must be compelled to provide information about
their search tactics and methodologies due to gaps in production. See id. Plaintiff also
seeks costs and expenses associated with filing this motion. See id. at 26-27.
More specifically, plaintiff argues that the discovery it seeks is relevant to prove
its “causes of action and/or remedies.” Dkt. No. 98-1 at 10. Plaintiff opines that it must
| prove the number of violations it alleges defendants to have committed as well as “the
number of days during which each violation persisted.” Id. Addressing first its requests
relating to evidence about defendants’ financial condition, plaintiff argues that such
information is necessary because the Court must consider, pursuant to the Clean Water
Act, the economic benefit — if any — that defendants derived from the alleged violation.
See id. at 10, 18. Plaintiff contends that courts have “consistently ruled that a
| defendant’s financial condition is relevant to the issue of civil penalties under the Act
and have granted motions to compel tax returns and other financial information[.]’ Id. at
18. Plaintiff contends that it consulted with an economist to “identify appropriate
discovery requests.” Id.
Addressing its requests for materials from before 2018, plaintiff argues that
“[a]lside from two MSGP SWPPPs’, Defendants have refused to produce any MSGP
compliance documentation prior to 2018” and “any construction Permit compliance
documentation (including Construction SWPPPs) prior to 2020.” Dkt. No. 98-1 at 11.
Plaintiff contends that defendants improperly object by arguing that plaintiff must first
“offer ‘proof of violations’ before Defendants are obligated to respond to Riverkeeper’s
discovery requests.” Id. Plaintiff asserts that because it commenced this action on
September 1, 2020, and the Clean Water Act’s statute of limitations is “at least five-
years plus sixty-days prior to the filing of the complaint,” it may seek “documents and
information relevant to Defendants’ compliance (or lack of compliance) with the Clean
Water Act dating back to at least July 3, 2015.” Id. at 12. Plaintiff further contends that
m| “documents created prior to July 3, 2015, may be relevant to proving violations that
occurred after that date.” Id.?
Plaintiff next argues that it requires discovery about defendants’ history of
noncompliance because, in determining an appropriate penalty, “conduct that occurred
prior to 2015, i.e.[,] conduct too old to be prosecuted in this action, may nonetheless be
relevant and competent evidence necessary establish [sic] Defendants’ history of
Violations.” Dkt. No. 98-1 at 14. Thus, plaintiff provides that its second request for
documents “was not categorically temporally limited by a general instruction,” as was its
first request for production, but its second request for production was limited “by more
narrowly tailoring the specific requests themselves to identify specific documents
1 SWPPP stands for Industrial Stormwater Pollution Prevention Plans.
2 Plaintiff provides that its First Request for Production, “Instruction M, thus limited the scope of those
requests (unless otherwise stated) to the period beginning May 8, 2015 — narrowly requesting documents
created up to two months prior to the statute of limitations period.” Dkt. No. 98-1 at 12.
requested.” Id. at 15. Plaintiff proffers, even if this Court rejects its argument that
documents created prior to the statute of limitations are not relevant to assessing
penalties, “such documents are also required to understand present conditions at the
Industrial Park.” Id. Plaintiff provides that its expert witness requires review of “all
Construction SWPPPs ever implemented at the Industrial Park, so that she might piece
o together the history and fate of stormwater at the Park” because there is “the absence
of critical pieces of information (particularly regarding subsurface conveyance of
stormwater).” Id.
Next, plaintiff contends that defendants have improperly refused to produce
documents and information relating to its tenants at the industrial park. See Dkt. No.
98-1 at 16. Plaintiff contends that defendants may be liable for their tenants’ violations
m| Of the Clean Water Act because defendants are legally responsible for the tenants’
stormwater discharges that “commingle and are discharged in ways that violate
defendants’ coverage under the MSGP.” Id. Plaintiff further argues that information
about “tenant operations at the Park, tenant leases, and the identity of and contact
information for tenant operators and managers’ is relevant and proportionate to
plaintiff's claims. Id. at 17. Plaintiff provides further that defendants’ response of
‘point[ing] to information available in Defendants’ MSGP and SWPPPs’ is “wholly
inadequate, as it is incomplete (failing to identify all tenants) and inconsistent with
observations made at the Industrial Park during site visits.” Id.
On the interrogatory number issue, plaintiff argues that defendants “wholly
objected to responding to the Second Interrogatories” based on its argument that the
“four numbered interrogatories [contained in the first set of interrogatories] constituted
more than 25 interrogatories when counting sub-parts.” Dkt. No. 98-2 at 12; Dkt. No.
98-1 at 23. Plaintiff argues that defendants never identified the number of
interrogatories they believe the first set of interrogatories contains. See Dkt. No. 98-1 at
23. Regarding interrogatory number 1, plaintiff contends that it “could not clearly inquire
as to the persons with knowledge of subject matter without listing the subject matter at
°/issue, nor could the list of subject matters have any context without the primary
question.” Id. at 24. Plaintiff further argues that, although the subject matter of
interrogatory number 1 “is set forth as a list of closely related issues, these are singular
interrogatories.” Id. Plaintiff also provides, “[t]he same is true as to First Interrogatory
No. 2, regarding the custodiams of documents.” Id. “As for First Interrogatory Nos. 3
and 4, there can be no doubt that these are singular interrogatories” because
m|interrogatory number 3 “is completely confined to identifying tenants” and interrogatory
number 4 “is a nine-word sentence that contains no commas, parentheses, semi-
colons, or other indications of sub-clauses, let alone any subparts.” Id. at 24.
Plaintiff further requests this Court compel defendants to respond to the second
set of interrogatories, but that if the Court does find that plaintiff included greater than 25
interrogatories in its first set of interrogatories, it be granted leave to “serve 21 additional
| interrogatories (inclusive of the Second Interrogatories)” and for an order directing
defendants to respond to the second set of interrogatories. Dkt. No. 98-1 at 24-25
As for plaintiffs request regarding defendants’ search methodology, it contends
that it “believes that relevant and responsive documents exist in Defendant's [sic]
possession, custody, or control, and have not been produced.” Dkt. No. 98-1 at 25.
It alleges that there are significant omissions and other gaps in defendants’ production
that defendants have not explained. See id. Plaintiff further argues that defendants’
production omits certain documents Riverkeeper received from various agencies in
response to FOIL/FOIA requests, which it contends “suggests that Defendants have not
conducted adequate searches for relevant documents. See id. Finally, it argues that
o knowledge of defendants’ search methodology is warranted because plaintiff located
within defendants’ production specific records that defendants initially argued were
unable to be located. See id.
B. Defendants’ Arguments
1. Attorney Affirmation
As a threshold issue, defendants’ submissions are both violative of this Court’s
rules and difficult to follow. Unlike the typical attorney affirmation or declaration,
“which simply attaches and identifies exhibits for the Court,” [defense counsel’s
declaration] consists of factual assertions and legal arguments regarding Defendants’
proffered arguments.” Altman v. Inc. Vill. of Lynbrook, No. CV-184984 (SJF/AKT), 2020
WL 4587751, at *7 (E.D.N.Y. Mar. 31, 2020), report and recommendation adopted, No.
18-CV-4984 (SJF/AKT), 2020 WL 2507368 (E.D.N.Y. May 15, 2020). In Altman, the
Eastern District of New York rejected the declaration from counsel for plaintiff after
concluding it was:
entirely argumentative and even contains cross citations to Plaintiff's own
memorandum of law to elaborate on the positions taken. Plaintiffs’
memorandum likewise refers the Court back to the Snead Declaration. In
addition, neither the [attorney for plaintiff's] Declaration nor Plaintiffs’
memorandum contain a background section and refer the Court to the
Altman Affidavit attached as a counterstatement to Defendants’ recitation
of the facts. Thus, Plaintiffs’ counsel would have the Court flip-flop between
the [attorney for the plaintiff's] Declaration, Plaintiffs’ memorandum, and the
Altman Affidavit to understand the full picture of Plaintiffs’ argument. This
type of declaration is improper and inadmissible.
Altman, 2020 WL 4587751, at *7.
Defendants’ attorney affirmation is clearly violative of Local Rule 7.1(b) and Fed.
R. Evid. 602. See Dkt. No. 106-1 at J 73, 96-100, 123-28; Ellsworth v. Wachtel, 1:11-
CV-0381 (LEK/CFH), 2013 WL 130342, at *1 n.1 (N.D.N.Y. Jan. 11, 2013) (citing
Oneida Indian Nation v. Cnty. of Oneida, 802 F.Supp.2d 395, 425 n.24 (N.D.N.Y.2011)).
Defendants include legal argument within their attorney's affirmation, much of this legal
argument is either absent from the memorandum of law or discussed within the
memorandum of law in a truncated fashion, with references to the affirmation. See DKt.
Nos. 106, 106-1.
In addition to the clear violations of the Local Rules, the Court finds similar
. deficiencies in Mr. Castiglione’s declaration and memorandum of law to that discussed
in Altman. See Altman 2020 WL 4587752, at *7. Much like in Altman, the organization
of these documents places a significant burden on the Court insofar as defendants
expect the Court to flip-flop between the memorandum of law and attorney affirmation in
attempt to cobble together defendants’ legal arguments. See Dkt. No. 106 at 27 (“As
explained in the JFC Aff. . .”), 28 (directing the Court to [63-73 of JFC affidavit “for the
facts of that issue [search methodology]; directing the Court to J] 30-33, 74-166 and
exhibits D and E “for a “factual history” of the discovery defendants which defendants
argue “demonstrates Plaintiff's failure to articulate a factual basis for ignoring the
documents” defendants produced; directing the Court to 74-116 of JFC affidavit in
arguing that plaintiff is “either speculating about the existence of documents,” requesting
documents that defendants are not required to create or maintain, or documents that
are not “required to be generated . . . in terms of [defendants’] coverage under the
MSGP or GP-Construction.”; Dkt. No. 106 at 20 (“. . . as documented in the JFC Aff.
9117-121 ....”, “As explained in the JFC Aff. . . .” [citing §120]); Dkt. No. 106-1 at 28
(“As reflected in the JFC Aff. {J 74-116 . . . .); dkt. no. 106-1 at 17 942 (“. . . as further
explained in the CRC’s accompanying memorandum of law.”); id. at 24 67 (same), id.
at 26 972, id. at 27 78, id. at 30 89, id. at 31991; id. at 32 ]796, 100. The Court,
therefore, rejects the Castiglione affirmation in its entirety and declines to consider it.
See Altman, 2020 WL 4587751, at *7 (declining to consider attorney affirmation in its
entirety as violative of the Court’s Local Rules about including legal argument and
containing cross-referencing between the two documents); see also Duttweiller v. Eagle
Janitorial, Inc., 05-CV-0886 (GTS/GHL), 2009 WL 5171834, at *3 (N.D.N.Y. Dec. 22,
m| 2009) (striking attorney affidavit counsel because it was not based on personal
knowledge and contained legal argument) aff'd Dutweiller v. Upstate Bldg. Maintenance
Companies, Inc., 407 F. App’x 552 (2d Cir. 2011)).
As plaintiff points out, the Court has already cautioned defense counsel against
this practice. See Dkt. No. 60 at 72; see also Dkt. No. 113 at 12 n.3. Defense counsel
chose to include in defendants’ memorandum of law an extensive recitation of the
complaint, procedural history of the case, and arguments that were before the Court on
the motion to dismiss. In the undersigned’s opinion, this may not have been the wisest
use of the page limits;? indeed, the argument section of the memorandum of law does
3 Defendants provide that the “Recitation concerning the allegations in the Complaint, the Park’s July
2020 SWPPP and related SWPPPs, the CWA standards for MSGP and GP-Construction, and the legal
scope of permissible issues in a CWA Citizen’s Suit, are all directly relevant to Plaintiff's Motion to
Compel as they collectively establish the scope of legal issues that govern the Park’s MSGP and GP-
Construction operations and compliance, and the legal standards that must be met by the Plaintiff in their
CWA Citizen's Suit, for purposes of determining what is relevant and appropriate discovery at issue in this
lawsuit.” Dkt. No. 106 at 21-22.
10
not begin until page 24 of 30. See Dkt. No. 106 at 24. Regardless, defendants made
this choice, and the Local and Federal Rules cannot be subverted by submitting a 42-
page attorney affirmation containing the legal arguments — or expansion of legal
arguments — that could not fit into the 25 pages allowed in the memorandum of law.
See N.D.N.Y. L.R. 7.1(b); FED. R. Evib. 602. Should defense counsel repeat this
| conduct of including legal arguments within the attorney affirmation, the undersigned will
consider the application or recommendation of sanctions. The Court expects, as it does
of all practitioners who come before it, that parties will maintain strict compliance with all
applicable Local and Federal rules.
2. Merits
Addressing plaintiff's requests for tenant information, defendants contend that it
Objected because it already “provided a number of documents concerning information
regarding its tenants and operations over time, through the various SWPPP’s [sic]
provided from 2015 to May 2013.” Dkt. No. 106 at 27. Defendants urge the Court to
deny these requests as “duplicative information in an apparent effort to contact and
confirm CRC’s information directly with the tenants, apparently because they do not
trust CRC and information provided.” Id. at 23, 27. Defendants further argue that
| Plaintiff has not shown that the information they provided “is not correct.” Id. at 27.
Further, defendants reiterate their original objection that providing the tenant information
“would unnecessarily interfere with its business relations with tenants and otherwise
was not relevant as the allegations in the Complaint (and 60-day notice) focused on
CRC’s control and operations at the Park, [versus] separately identifying operations by
tenants as alleged violations of the CWA or any SWPPP.” Id.
11
Next, defendants state that the MSGP and “GP-Construction” both have a five-
year retention policy. See Dkt. No. 106 at 17-19. Thus, it appears that CRC contends
that it is not required to retain these documents; though, defendants do not explicitly
argue that they do not have access to these documents. See Dkt. Nos. 106.
With regard to the search methodology, defendants contend that “[t]he
information requested is clearly irrelevant and CRC has engaged in good faith discovery
production, and the examples raised by Plaintiff are remote and irrelevant and otherwise
fail to show any harm to Plaintiff.”. Dkt. No. 106 at 28.
Regarding the requests for defendants’ financial information, defendants contend
that the analysis the Court requires in assessing penalties “is based upon each
individual, specific violation demonstrated by a plaintiff.” Dkt. No. 106 at 29.
Defendants contend that plaintiff's broad requests have assumed essentially all
violations alleged and all allegations are true and justify basically all of CRC’s financial
records.” Id. Defendants argue that plaintiff's requests have “not been narrowly
tailored for individual actual violations in accordance with what is required for a Court to
consider for penalties for individual violations at issue under the CWA.” Id. at 23.
Defendants also assert that “Plaintiff should narrow its requests by identifying specific
| Violations, so CRC can inquire as to impacts related to each specific individual violation
demonstrated [sic] Plaintiff.” Id. at 29. Defendants opine that plaintiff “is ignoring its
burden that it’s required to show the violation, for the Court then [sic] consider economic
information specifically tailored to each singular violation.” Id. Defendants accuse
plaintiff of a “significantly overbroad fishing expedition tasked to Ms. Falk” because it
contends that Ms. Falk “admitted that the task assigned to her by Riverkeeper was to
12
conduct a comprehensive review and analysis about the Park’s compliance with
stormwater issues over time, starting from 2013 to present, to determine in her opinion
when there was compliance and when there were violations.” Id. at 23. Defendants
further contend that plaintiff's requests relating to its finances are “more broad than what
is provided for under 33 USC § 1319(d)[.]” Id. at 24.
° As for the number of interrogatories, defendants do not include specific
arguments in their memorandum of law‘ about the number of interrogatories they
believe plaintiff includes. However, it is clear that defendants believe plaintiff has
served greater than 25 interrogatories in total. See Dkt. Nos. 98-1 at 23, 98-2 at 12956;
98-4 at 3 8.
Addressing “[p]laintiff's request for more CRC compliance or violation records,”
defendants point to its attorney affirmation and exhibits — defendants’ responses to
plaintiff's requests for the production of documents and a document entitled “Documents
provided by CRC to Plaintiff through Discovery” — for “the factual history of the
significant amount of information provided by CRC relevant to the request and
otherwise demonstrates Plaintiff's failure to articulate a factual basis for ignoring the
documents actually provided by CRC that are related to those issues.” Dkt. No. 106 at
m| 28.
Defendants further contend that “a citizen like Plaintiff in a CWA Citizen’s Suit
cannot pursue claims for alleged violations that were previously identified and subject to
enforcement by the DEC, as the state agency charged with enforcing the CWA and
NPDES program in New York State.” Dkt. No. 106 at 20. Defendants also contend that
4 As stated, the Court will not be considering the defendants’ attorney affirmation due to its failure to
abide by the Local and Federal Rules, despite defense counsel being cautioned previously.
13
discovery matters relating to prior orders on consent with the DEC are not relevant
because such matters are “not actionable” because administrative enforcement
proceedings are “excluded from a CWA Citizen’s Suit under 33 USC 1913(g)(6)(A).” Id.
at 23-24.
Defendants appear to contend that plaintiff must prove violations of the CWA
o prior to obtaining discovery on matters that would have occurred prior to the filing of the
complaint or prior to the five-year plus sixty-day statute of limitations, and state that
CWA citizen’s suits are prospective. Dkt. No. 106 at 19-20. Defendants provides
further that the statute of limitations on such claims are five years plus sixty days from
the “date of the event at issue.” Id. at 20. Defendants contend that plaintiff “must show
specific violations existing as of September 1, 2020, that are continuous, before prior
Violations are relevant for the prior 5-year limitations period.” Id. Thus, it appears
thatdefendants are arguing that the Court reject plaintiff's request for documents as
early as 2013 because (1) documents outside of the 5-year and 60-day statute of
limitations are not relevant and not addressing violations existing at the time of the filing
of the complaint, and (2) such documents are not relevant to prospective relief. See id.
Defendants argue that plaintiff must be able to prove that continuous violations of the
CWA existed as of September 1, 2020, “before prior violations are relevant for the prior
5-year limitations period.” Id. Thus, it appears that defendants contend that for plaintiff
to be able to access discovery relating to potential violations occurring before
September 1, 2020, it first must prove the existence of continuous violations as of
September 1, 2020. See id.
14
Defendants also appear to argue that this Court’s denial of defendants’ motion to
dismiss does not entitle plaintiff to discovery because this Court “acknowledged that
CRC’s motion to dismiss was based on lack of standing, therefore implicating lack of
subject matter jurisdiction, as well as due to Plaintiff's allegations in the Complaint
failing to consider the July 2020 SWPPP.” Dkt. No. 106 at 20. Thus, defendants
° appear to contend that the Court did not deny its claims regarding standing, but
concluded only that “the ultimate question as premature at the pleadings stage.” Id.
Defendants contend, “as to discovery, there is a burden for Plaintiff to establish a factual
basis for its discovery requests versus seeking evidence to determine if it has a claim or
not.” Id.
C. Plaintiff's Reply
In reply, plaintiff first addresses defendants’ arguments that plaintiff “can only
seek discovery on some issues after first proving liability on others.” Dkt. No. 113 at 5.
Plaintiff contends, because “[t]his Court did not phase or bifurcate discovery,” it is
entitled to discovery of “all of the evidence needed to carry its burden of proof — for
liability, remedy, and penalties, on all of its claims — now.” Id. at 6. Plaintiff contends
that this Court already “determined that Riverkeeper’s claims survive Defendants’
| motions for judgment on the pleadings and to dismiss for lack of subject matter
jurisdiction,” which are standards “identical to that of a Rule 12(b)(6) motion or failure to
state aclaim.” Id. Plaintiff argues, “[c]laims that survive a Rule 12(b)(5) motion are
sufficiently plausible, on their face, to allow the plaintiff full use of discovery to obtain
relevant information.” Id.
15
Responding to defendants’ arguments on the tenants issue, plaintiff contends
that defendants conceded that they are responsible for tenants’ operations where those
tenants do not have separate permit coverage. See Dkt. No. 113 at 7. Plaintiff
contends that its claims allege that defendants’ “discharge polluted stormwater from the
Industrial Park — “including tenanted portions — in violation of that permit and the Clean
Water Act.” Id. Plaintiff reiterates its argument that stormwater from defendants’
operations commingles with its tenants’ and is discharged in violation of defendants’
permit “and that some tenant activities are not permitted at all.” Id. Thus, discovery
regarding the tenants, plaintiff argues, is relevant for such claims. See id.
Addressing defendants’ proportionality arguments as to the tenant requests,
plaintiff contends that the only discovery defendants produced relating to tenants “is
merely a box in the corner of a one-page map that includes the names of some tenants
and what Defendants believe to be their industrial activities.” Dkt. No. 113 at 7. Plaintiff
asserts that the document fails to “identify all tenants and is inconsistent with
observations that Riverkeeper made during its site visits at the Park.” Id. at 8. Plaintiff
provides further that defendants did not provide any “information in response to
requests for tenants’ compliance documents (if in Defendants’ possession), tenant
leases, the identify and contact information of tenant operators and managers, or when
tenants began their respective industrial activities at the Industrial Park.” Id. Plaintiff
also contends that the requests for tenant information would not interfere with tenant
relations; rather, “[t]he alternative — obtaining this information directly from tenants by
serving non-party subpoenas — would burden the tenants, impose costs on the parties,
and could lead to motion practice by non-party tenants.” Id.
16
Addressing “MSGP compliance records prior to 2018 or documents related to the
Construction Permit prior to 2020[,]” plaintiff argues that defendants “admit the
relevance of these documents or, at least, that they immediately become relevant once
Riverkeeper proves liability.”. Dkt. No. 113 at 8. Because, plaintiff argues, it need not
prove liability prior to obtaining discovery, defendants provide no valid objection to
o producing these documents. See id. at 8-9. Plaintiff repeats its argument that its
requests are proportionate because defendants’ production thus far is inadequate. See
id. at 9. Plaintiff provides, as an example, that in response to its requests of diagrams
of the industrial park’s internal sanitary and storm swearers, defendants produced a site
map, but contend that this document “cannot be used for this purpose as the single-
page map is impossibly overcrowded.” Id. Plaintiff asserts that the site map was
m| “Clearly assembled from separate electronic map ‘layers.” Id. Thus, plaintiff opines,
defendants “would face almost no burden to produce the requested records[.]’ Id.
Addressing defendants’ contention that the industrial park is “on public sewer and
water,” plaintiff argues that defendants “can and should provide diagrams of the pipes
they built to connect those public sewers so that Riverkeeper can understand where
water flows to a sewer and where it flows to local waters.” Id. To the extent
defendants are contending “that such diagrams and other documents don't exist,”
plaintiff argues that this claim belies the belief and suggests that defendant “have not
conducted an adequate search” or amounts to “spoliation of evidence.” Id. at 10.
Addressing defendants’ arguments about discovery relating to its finances,
plaintiff reiterates that defendants incorrectly contend that plaintiff must prove its claims
before obtaining discovery. See Dkt. No. 113 at 10. Plaintiff argues that defendants
17
make no legitimate arguments against producing the requested financial information as
its argument that the requests are “overly broad” as they “make no specific argument
that the requests .. . are not proportionate.” Id.
Addressing the number of interrogatories, plaintiff argues that defendants
improperly divide the interrogators into subparts. See Dkt. No. 113 at 11. Plaintiff
o argues “subparts are counted as separate interrogatories only if they cannot be
‘subsumed’ into the primary question[,]” and plaintiff contends that its subparts can be
so subsumed. Id. Plaintiff seeks the Court to order defendants “to answer
Riverkeeper’s two pending interrogatories and find that Riverkeeper served a total of six
interrogatories.” Id. at 12.
Regarding the search methodology, plaintiff contends that defendants’ argument
| that they have already produced voluminous records in discovery does not demonstrate
that their searches have been adequate. See Dkt. No. 113 at 12. Plaintiff further urges
the Court to reject defendants’ “unspecified” claims of privilege. Id. at 12.
Lastly, plaintiff seeks expenses associated with this motion. See Dkt. No. 113 at
13. Plaintiff accuses defendants of “spending half their brief repeating their motion to
dismiss — verbatim.” Dkt. No. 113 at 13. Plaintiff states that defendants’ only legal
| argument is that plaintiff must prove its case before it can obtain discovery is
“sanctionable conduct.” Id. (quoting Cal. Open Lands v. Butte Cty. Dep’t of Pub.
Works, No. 2:20-CV-0123, 2021 WL 4992907, at *5, 2021 U.S. Dist. Lexis 207821, at
“14 (E.D. Cal. Oct. 27, 2021)).
Ill. Discussion
18
A. Number of Interrogatories
As noted, plaintiff argues that its first set of interrogatories contains only four
interrogatories because “any subclauses that could plausibly be construed as subparts
are closely related to the primary question.” Dkt. No. 98-1 at 24. The Court has closely
reviewed plaintiff's first set of interrogatories, along with parties’ arguments, and the
| Court finds plaintiff's argument that its first set of interrogatories contains a total of only
four interrogatories to be disingenuous. However, as will be discussed below, it
declines to conclude that plaintiff served greater than 25 total interrogatories. See Dkt.
No. 98-4.
This Court has recognized that determining whether interrogatories and their
subparts are “discrete separate subjects” “can be a rather complicated and contorted
maze.” Bartnick v. CSX Transp., Inc., No. 1:11-CV-1120 (GLS/RFT),° 2012 WL
1565057, at *2 (N.D.N.Y. Apr. 27, 2012) (quoting Feb. R. Civ. P. 33(a)). “Of the courts
that have confronted this issue, there has developed a common denominator on how to
weigh an interrogatory's subparts as independent and discrete. An interrogatory's
5 The undersigned is in agreement with Magistrate Judge Treece’s expressions of frustration at parties’
handling of the discovery process, which he expresses at the beginning of this decision:
It never ceases to amaze this Court how discovery disputes have become the primary
staple of federal litigation, rather than the substantive merits of the claims and the
defenses, and how expected civil discourse can quickly, and unwittingly, devolve into a
bountiful display of rhetorical recriminations. Unfortunately, this case is no exception, and
is being consumed by the parties' fiercely held positions “over the ever-so-critical issue”
as to what may constitute the permissible number of interrogatories. But for the Court's
previous experiences with issues such as this, it would be unfathomable as to how, in no
less than a half-dozen Letter—Briefs, the tone over this “vital” and “consequential”
procedural issue could be cloaked in indelicate idioms about the boorish behavior of
one's adversary while attempting to resolve a discovery disagreement. See Dkt. Nos. 20,
& 22-27. It has become all too common and, yet, it serves no purpose for the Court to
endure the pull and tug of the parties' inculpations and exculpations.
Bartnick v. CSX Transp., Inc., No. 1:11-CV-1120 (GLS/TRF), 2012 WL 1565057, at *1 (N.D.N.Y. Apr. 27,
2012).
19
subparts are to be counted as separate and discrete subparts ‘if they are not logically or
factually subsumed within and necessarily related to the primary question.” Id. (quoting
Madison v. Nesmith, 9:06-CV-1488 (NAM/DEP), 2008 WL 619171, at *3 (N.D.N.Y.
Mar.3, 2008) (additional citations omitted). “That is, if the first question can be
answered fully and completely without answering the second question, then the second
question is totally independent of the first question and not factually subsumed within
and necessarily related to the primary question.” Id. (citing Madison, 2008 WL 619171,
at *3).
Indeed, for example, if a response to the first part of a two-part interrogatory
is “implicit in a response to the [second] [pJart []. . . [then] a complete
answer to the latter [part] requires an answer to the former [part]. The two
subparts are not discrete and may not be characterized as [independent
interrogatories].”
m| ld. at *2 (quoting Sec. Ins. Co. of Hartford v. Trustmark Ins. Co., No. Civ. 3:01-CV-2198
(PCD), 2003 WL 22326563, at * 1 (D. Conn. Mar. 7, 2003) and citing Thompson v.
Lantz, No. 3:04-CV-2084 (AWT), 2009 WL 3157563, at *1 (D. Conn. Sept. 25, 2009) (“A
subpart is discrete and therefore regarded as a separate interrogatory when it is
logically or factually independent of the questions posed by the basic interrogatory.”)
(additional internal citation omitted).
1. Interrogatory 1
The Court agrees with defendants insofar as they argue that interrogatory 1 in
plaintiff's first set of interrogatories contains more than one interrogatory. Although all of
the questions within interrogatory 1 are seeking information on “persons
knowledgeable,” plaintiffs are seeking persons knowledgeable about several distinct
and “factually independent” subject matters. Thompson, 2009 WL 3157563, at *1.
20
Interrogatory 1 is inquiring about persons knowledgably about 9 discrete subjects: (a)
persons knowledgeable about defendants’ compliance with the General Permit;(b)
persons knowledgeable about defendants’ SWPP and related documents; (c) persons
knowledgeable about any inspections, sampling, and other monitoring stormwater and
stormwater pollution controls performed by defendants; (d) persons knowledgeable
| about defendants’ lease agreement with each tenant; (e) persons knowledgeable about
salt handling and salt storage at the facility; (f) persons knowledgeable about
communications with the community about stormwater, dust, and salt; (g) persons
knowledgeable about defendants’ corporate structure; (h) persons knowledgeable about
defendants’ financial condition; and (i) persons Knowledgeable about defendants’
history of noncompliance and economic benefit derived from noncompliance. See DKt.
m| No. 98-4 at 4-5. Each question can be answered fully and completely without
answering the other questions. See Bartnick, 2012 WL 1565057, at *2. Thus, the Court
finds that interrogatory 1 is made up of 9 separate interrogatories.®
2. Interrogatory 2
The Court finds similarly with respect to interrogatory 2. Although the inquiries
within interrogatory 2 seek to learn of the custodian, location, and description of various
documents, they are seeking this information regarding several plainly distinct issues.
Interrogatory 2 is made up of 9 interrogatories: (a) the existence, custodian location,
and general description of all documents relating to defendants’ compliance with the
General Permit; (b) the existence, custodian location, and general description of all
8 The Court concludes that although the questions the Court above-designated as 9(f) and 9(i) contain
subparts, the various subparts of questions 9(f) and 9(i) above are sufficiently subsumed within and
related to each other that they qualify as one question each.
21
documents relating to defendants’ SWPPP and related documents; (c) the existence,
custodian location, and general description of all documents relating to inspections,
sampling, and other monitoring stormwater and stormwater pollution controls performed
by defendants; (d) the existence, custodian location, and general description of all
documents relating to defendants’ lease agreement with each tenant; (e) the existence,
| custodian location, and general description of all documents relating to salt handling
and salt storage at the facility; (f) the existence, custodian location, and general
description of all documents relating to communications with the community about
stormwater, dust, and salt; (g) the existence, custodian location, and general description
of all documents relating to defendants’ corporate structure; (h) the existence, custodian
location, and general description of all documents relating to defendants’ financial
Condition; and (i) the existence, custodian location, and general description of all
documents relating to defendants’ history of noncompliance and economic benefit
derived from noncompliance. See Dkt. No. 98-4 at 6.
3. Interrogatory 3
The Court concludes that interrogatory number 3 is one interrogatory. Although
interrogatory 3 contains subparts, these subparts all seek information relating to
defendants’ tenants and tenant relationships. See Dkt. No. 98-4 at 7. The subparts
within interrogatory 3 are closely factually and logically related to each other. See
Thompson, 2009 WL 3157563, at *1.
4. Interrogatory 4
Interrogatory 4 is one interrogatory. Although it is made of two subparts —
information about defendants’ corporate structure and the identity of “affiliated persons,”
22
dkt. no. 98-4 at 8 — are “logically related” to each other. Bartnick, 2012 WL 1565057, at
*2.
5. Plaintiff's Second Set of Interrogatories
For the reasons discussed, supra, plaintiff's first set of interrogatories totals 20
interrogatories. Defendants are required to respond to all interrogatories in plaintiff's
first set of interrogatories. Plaintiff seeks to compel defendants to respond to
interrogatories 5 and 6 from its second set of interrogatories. The Court has reviewed
interrogatory 5 and concludes that it contains one interrogatory as the information it
seeks all relate to “retain[ing] volumes of Stormwater correlating to rainstorms of various
sizes.” Dkt. No. 98-6 at 4. It is clear on the face of interrogatory number 6 that it is one
interrogatory. See Dkt. No. 98-6 at 5. Accordingly, as plaintiff's first set of
m| interrogatories contained 20 interrogatories, and the second set of interrogatories, to the
extent plaintiff provides, contains two interrogatories, the total interrogatories is 22, and
within the limits of the Fed. R. Civ. P. Accordingly, to the extent defendants refused to
respond to these interrogatories based solely on its objection that the interrogatories
violate Fed. R. Civ. P. 33(a)(1), the Court rejects that claim as the interrogatories do not
total greater than 25 in number.
tri
B. Requests Relating to Defendants’ Alleged Violations and/or
efforts to comply with the Clean Water Act’
Plaintiff provides, “[a]side from two MSGP SWPPPs, Defendants have refused to
produce any MSGP compliance documentation prior to 2018” or “any Construction
Permit compliance documentation (including any Construction SWPPPs) prior to 2020.”
23
Dkt. Nos. 98-1 at 11; 98-2 at 10. As plaintiffs note, defendants objected to such
discovery, contending that plaintiffs must first demonstrate the viability of their claims of
CWA violations prior to entitlement of discovery. Plaintiff contends that limiting its
production to MSGP compliance since 2018 and Construction Permit compliance since
2020 shows defendants’ inability or unwillingness “to understand the scope of
o Riverkeeper’s allegations” because Riverkeeper “also alleged violations of the
Construction Permit and New York State water quality standards.” Id. at 21.
Plaintiff also seeks production of documents “related to the physical conditions at
the Industrial Park, structural stormwater controls, and controls of non-stormwater
liquids [Jsuch as sanitary and industrial wastewaters, floodwaters, and fluid materials
stored at the industrial park.” Dkt. No. 98-1. Defendants objected to the request as
overbroad. See Dkt. No. 98-3 at 8-12; Dkt. No. 98-5 at 5-9. They also contended that
some of the documents requested did not exist (RFP 42). See id.
Next, plaintiff seeks records relating to salt management, which plaintiff argues is
relevant to defendants’ history of noncompliance, as is required to be assessed under
the CWA. See Dkt. No. 98-1 at 21. Plaintiff further seeks “documents and
correspondence related to the applicable regulatory agencies.” Id. at 22. Plaintiff
| contends that it is unclear whether defendants are “withholding any documents on the
basis of their objections” to the requests relating to communications with regulatory
agencies because, although defendants produced some documents, there have been
gaps in the production. See id. at 22-23.
Defendants appear to object to providing all of this discovery based on its
argument that CWA citizen suits must be prospective in nature. Thus, it argues that
24
past violations are not relevant until a plaintiff demonstrates the existence of violations
at the time the action is commenced. See Dkt. No. 106; Dkt. No. 106-12 at 1-2
(“Riverkeeper’s failure to articulate an actual existing violation as of 9/1/20 based upon
the information provided by CRC in discovery demonstrates that there is no need for
prior information because prior information is only relevant to ongoing violations as of
9/1/20. No violation as of 9/1/20 means prior operations are not relevant under the
above CWA Citizen Suit standards.”); see also dkt. no. 98-3. As noted, defendants also
objected, in their response to the requests for production, that the majority of these
requests were overbroad. See Dkt. No. 98-3 at 8-12; Dkt. No. 98-5 at 5-9.
Defendants do not have the authority to unilaterally determine that plaintiff has
failed to demonstrate the existence of ongoing violations of the CWA as of September
m|1, 2020. At the time of the filing of this decision, the Court has not determined, as a
matter of law, that no such violations exist. Further, defendants have produced no
support for its argument that plaintiffs must establish the existence of ongoing violations
to obtain such discovery or that in CWA citizen suits, a court must bifurcate discovery as
to damages. Regardless of this Court’s ruling on the motion to dismiss, the Court
agrees with plaintiff that defendant has not shown that bifurcation is required and this
Court it has not bifurcated discovery. Accordingly, to the extent defendants have
objected to providing “MSGP compliance documentation prior to 2018” or “any
Construction Permit compliance documentation (including any Construction SWPPPs)
prior to 2020,” their objection is without force.
Defendants also argue, generally, that plaintiff “ignores” information defendants
have already produced, requests duplicative information, or information that could be
25
obtained from other sources. Dkt. No. 106 at 28-29. Defendants have failed to argue
these claims with specificity; thus, they have not demonstrated that plaintiff's requests
are not relevant and proportional to the claims or defenses in this action.
Plaintiff has demonstrated that such documents are relevant and proportional to
its claims in this case. Defendants’ opposition that plaintiff must first prove the
existence of current/ongoing violations at the time plaintiff filed the complaint before
plaintiff can obtain discovery about earlier potential violations is rejected. Plaintiff's
motion to compel, insofar as it seeks information relating to defendants’ stormwater
controls at the industrial part, including: CWA compliance MSGP compliance
documentation prior to 2018” or “any Construction Permit compliance documentation
(including any Construction SWPPPs) prior to 2020”; documents relating to
Communications with government agencies as it relates to CWA compliance and
alleged noncompliance; documents relating to “compliance with New York water quality
standards, and documents pertaining to salt management at the Industrial Park,” is
granted. Dkt. No. 98-1 at 11, 22; 98-2 at 10. To the extent defendants may contend
that no further documents exist, beyond what was already produced, defendants are to
submit an affidavit/declaration from defense counsel and/or a person(s) with knowledge
| to explain the search made and/or documents produced and explain why no further
relevant documents exist. Although defendants state that they are required, under the
MSGP and GP-Construction, to retain documents for only five years, defendants have
not explicitly stated that they do not have access to the documents — only that they are
not required to maintain them. See, e.g., Dkt. No. 106 at 28. To the extent defendants
no longer have relevant documents due to the five-year retention policy, defendants are
26
to separately submit an affirmation signed by defendants’ counsel and/or from a
person(s) with knowledge, as to the search efforts made, when such documents were
disposed of, and other relevant information relating to that fact.
C. Tenant Information
As to the request for tenant information: tenant compliance documents, tenant
leases, the identity and contact information of tenant operators and managers, the Court
finds that plaintiffs have demonstrated that this information, generally, is relevant to
plaintiff's claims. Plaintiffs have alleged that (1) stormwater discharges from
defendants’ industrial activities, its tenants’ industrial activities and from “common
areas” of the industrial park commingle, and are discharged in ways that violate
m| defendants’ coverage under their General Permit; (2) defendants maintain control of
their tenants’ industrial activities, including any stormwater runoff. See Am. Compl. (dkt.
no. 135) J 103-107.
Although defendants provide that they produced a list of tenants contained within
their SWPPPs, they did not respond to plaintiff's claims: that it was unclear whether the
list included all tenants who are operating in the industrial park and when the tenants
| began their operations, and that site visits revealed that defendants did not disclose all
of their industrial activities in their MSGP and SWPPPs. See DKt. No. 98-2 at 9 745,
Dkt. No. 106.
The Court concludes that information regarding defendants’ tenants, their
industrial operations, the contractual obligation — if any — of tenants to implement certain
stormwater controls, is relevant. The Court, however, concludes that the full leases are
27
not proportionate and relevant to plaintiff's claims. Accordingly, the tenant issue is
decided as follows: defendant is to provide to plaintiff a complete least of all tenants
operating at the industrial park during the relevant time periods, a list of the
industry/industries the tenants are engaged in, when the tenants began their industrial
activities, where in the industrial park the tenants are located, and portions of the
° leases, if any, that address any stormwater compliance requirements of the tenants. If
the tenants’ leases contain any stormwater compliance requirements, defendants are to
produce those portions of the leases, and may redact any information within those
leases not relevant to the issues of stormwater compliance. If there exist any
documents outside of the leases that obligates tenants to engage in, or requests
tenants to engage in, any degree of stormwater compliance, those documents are to be
produced. If the list defendants have already provided through the SWPPPs is a full list
of all tenants, and all of their current activities, defendants are to submit an affirmation
from defense counsel and/or a person or persons with knowledge that states that the list
already provided is a full and complete list of all tenants and all of their current industrial
activities. However, even if defendants submit such affirmation, they still will be
required to produce the remainder of the tenant-related discovery this Court has
| ordered to provide. The Court finds that, with the provision of this information, plaintiff
has failed to demonstrate the relevance of the names of the tenant operators and
managers and their contact information. Accordingly, plaintiff's motion to compel with
respect to defendants’ tenant information is granted in part and denied in part as
enumerated above.
28
D. Financial Information
At issue in this motion, plaintiff requests:
All Documents evidencing Your financial ability to pay penalties or
compliance costs. This includes both Documents relating to Your assets,
liabilities, and net worth, and Documents relating to Your income. This
includes but is not limited to: Federal income tax returns, Form 1099s, and
Schedule K-1s (Form 1065); annual revenue data; statements of annual
gross income and annual net income, or annual profit and loss, with any
° schedules; balance sheets; Documents related to any decreased or
cancelled services, financial consequences, or loss of revenue to You
from the coronavirus pandemic; and Documents related to money or loans
received through governmental aid or relief programs during the
coronavirus pandemic, including but not limited to the Paycheck Protection
Program.
Dkt. No. 98-3 at 13-14 (R.F.P. no. 22).
Defendants argue that plaintiff must “narrowly tailor’ its request by “identifying
specific violations, so CRC can inquire as to impacts related to each specific individual
I
violation demonstrated [sic] Plaintiff. Plaintiff is ignoring its burden that it’s required to
show the violation, for the Court to then consider economic information specifically
tailored to each singular violation.” Dkt. No. 106 at 29.
As discussed above, the Court rejects defendants’ arguments that plaintiff must
first prove violations of the CWA before being entitled to discovery on defendants’
finances for purposes of assessing potential civil penalties. Plaintiff has presented
evidence of a potential economic benefit defendants received relating to alleged CWA
violations. See Dkt. No. 98-10. Plaintiff has contended that it has consulted with an
economic consultant who advised that it required the financial information requested.
See Dkt. No. 98-1 at 18; Dkt. No. 98-2 at 11 951-55. Plaintiff further provides a
declaration from its expert witness Christina Falk which provides that the expert requires
“invoices or estimates regarding the cost of BMPs implemented at the Industrial Part to
29
date” which she needs to offer her opinion with accuracy “regarding the cost of
remedies implemented in the past[.]” Dkt. No. 98-12 at 12; Dkt. No. 98-2 at 11 951-55.
However, plaintiff did not submit anything from the economist explaining his/her
rationale for why the documents requested are required in order for them to offer
testimony regarding a civil penalty under the Clean Water Act.
o As stated above, the Court agrees that plaintiff is not required to first prove the
existence of violations by defeating summary judgment or at trial in order to be entitled
to discovery on penalties. “It is well settled that a defendant's financial condition is
relevant to the issue of civil penalties under the Clean Water Act.” Friends of
Maha’ulepu, Inc. v. Hawai'i Dairy Farms, LLC, No. CV 15-00205 (LEK-KJM), 2016 WL
6917283, at *4 (D. Haw. Sept. 2, 2016) (granting discovery request for some evidence
m| regarding the defendant’s financial condition in considering economic penalties even
while there was a pending motion to bifurcate) (citing 33 U.S.C. § 1319(d); see also
California Sportfishing Prot. All. v. Chico Scrap Metal, Inc., No. 2:10-CV-1207-GEB-AC,
2014 WL 5093398, at *6 (E.D. Cal. Oct. 9, 2014), United States v. Smithfield Foods,
Inc., 972 F. Supp. 338, 353 (E.D. Va. 1997), United States v. Municipal. Auth. Of Union
Township, 929 F. Supp. 800, 805 (M.D. Pa. 1996)).
Defendants state — without clarification or further argument beyond contending
that it is premature — that plaintiff's request for financial information is “broad.” Dkt. No.
106 at 29. Such objection is “broad and nonspecific and fails to establish any discrete
reason why the requests should be prohibited. . . . Defendants fail to meet their burden
to clarify, explain or support such objection[] on this basis. As such, Defendants fail to
meet their burden to establish that these requests should be denied based on th[is]
30
ground[].” Inland Empire Waterkeeper, et al. v. Columbia Steel, Inc., et al., No.
82001062FLAADSX, 2021 WL 4295138, at *3 (C.D. Cal. May 6, 2021).
After reviewing plaintiff's request and arguments, the Court finds that plaintiff has
failed to demonstrate that the full breadth of requested financial information is needed to
assess civil penalties; however, it has demonstrated that some discovery regarding
defendants’ finances/financial condition is warranted for this purpose. Accordingly, as is
within its discretion, the Court limits the request as such: defendants are to produce to
plaintiff defendants’ federal and state tax returns for the years 2015 to 20238:
documentation regarding money or loans received through the government aid or relief
programs, including the Paycheck Protection Program; and documentation related to
decreased or cancelled services or loss of revenue relating to the COVID-19 pandemic.
m| See Friends of Maha'ulepu, Inc. v. Hawai'i Dairy Farms, 2016 WL 6917283, at *4
(limiting request of financial information relevant to assessing penalties under the CWA
to federal and state tax returns).° Accordingly, plaintiff's motion to compel, as it relates
to plaintiff's request relating to defendants’ finances/ financial condition is granted in part
and denied in part as detailed above.
G. Search Methodology
8 The year in which the motion to compel was filed.
® The Court notes that defendants did not express concern in their memorandum of law about the
sensitivity of the financial information. As the question is not before the Court, the Court makes no
assessment whether a protective order is necessary or proper. However, to the extent defendants seek a
protective order in connection with its financial information, it is noted that “[t]his protective order shall be
mutually agreeable and be consistent with [Second] Circuit law, reflecting the strong presumption in favor
of maintaining public access to judicial records that are not of a type traditionally kept secret for important
policy reasons.” Friends of Maha'ulepu, Inc. v. Hawai'i Dairy Farms, 2016 WL 6917283, at *4. Should
plaintiff seek such protective order, parties are strongly directed take every effort mutually agree to such
language.
31
Defendants contend that information regarding its search methodology is
irrelevant because defendants have “engaged in good faith discovery,” the information
requested is irrelevant, and plaintiff has not suffered harm. Dkt. No. 106 at 28.
However, plaintiff has provided some evidence that there exist gaps in defendants’
production. See, e.g., OnActuate Consulting Inc. v. Aeon Nexus Corp., No. 1:20-CV-
508 (LEK/CFH), 2022 WL 866418, at *9 (N.D.N.Y. Mar. 23, 2022) (citing Ford v.
Rensselaer Polytechnic Inst., No. 1:20-CV-470 (DNH/CFH), 2022 WL 715779, at *17
(N.D.N.Y. Mar. 10, 2022) (noting that the “appropriate remedy” would have been for the
nonmoving party to “provide greater information or detail about the searches it made
through deposition or declaration,” but that the potential gaps in the production could be
“fairly remedied by having [the nonmoving party] supplement its response to [document
demands], providing details about the steps it took to search its records for responsive
documents.”). Defendants’ generic objection, unsupported by details about the steps
they took in responding to the requests for production, does not suffice to demonstrate
that plaintiffs concerns and this Court’s, and are without merit. Accordingly, plaintiff's
request for this Court to compel defendants to provide their search methodology is
granted.
tri
F. Expenses in Making Motion
Plaintiff's request for reasonable expenses incurred in making the motion to
compel discovery, including attorney's fees, pursuant to Fed. R. Civ. P. 37(a)(5)(A), is
denied. See Dkt. No. 98-1 at 27. First, plaintiff fails to provide the necessary legal
argument or evidence required to obtain an order for fees. Second, the Court has
32
considered that plaintiff, along with defendants, has equally refused to engage in good-
faith negotiations, despite the Court’s efforts, to resolve their many discovery issues.
The Court further determined that plaintiff's arguments that its first set of interrogatories
contained just four interrogatories to be without force, as well as disingenuous. Finally,
plaintiff was not fully successful in its motion to compel, as they Court has denied its
° requests on certain, albeit limited,’° grounds.
IV. Conclusion
Wherefore, for the reasons set forth above, it is hereby
ORDERED, that plaintiff's motion to compel (Dkt. No. 98) is DENIED in part
insofar as it seeks: (1) unredacted copies of tenant leases and the names and contact
information of the tenant operators/managers, and (2) costs and fees associated with
this motion"; and (3) defendants’ financial information beyond the federal and state tax
returns for the years 2015 to 202317; documentation regarding money or loans received
through the government aid or relief programs, including the Paycheck Protection
Program; and documentation related to decreased or cancelled services or loss of
revenue relating to the COVID-19 pandemic; and the motion to compel is otherwise
GRANTED, as discussed herein; and it is further
10 The Court observes that had defendants filed a memorandum of law that complied with the local rules,
was fully and properly-supported with argument and relevant case law, and which met their burden of
proof in response to plaintiff's demonstrated arguments relating to relevance and proportionality, it is
possible that the discovery granted pursuant to this Motion to Compel would have been more limited.
1 As noted, the request for cost and fees is denied without prejudice.
12 The year in which the motion to compel was filed.
33
ORDERED, that defendants are to produce the discovery materials discussed
within and/or the relevant affirmations, to plaintiff within fourteen (14) days of the filing
date of this Memorandum-Decision & Order.
IT 1S SO ORDERED.
Dated: March 26, 2024 C "L , Ff ike p
Albany, New York Christian F. Hummel *
° U.S. Magistrate Judge
34