United States District Court, M.D. Louisiana
WASHINGTON-ST. TAMMANY ELECTRIC COOPERATIVE, INC., ET AL.
LOUISIANA GENERATING, L.L.C.
RICHARD L. BOURGEOIS, JR., UNITED STATES MAGISTRATE JUDGE
the Court is Defendants' Motion to Extend Deadline for
Completion of Fact Witness Depositions for Limited Purposes,
Consented In Part and Disputed In Part. (R. Doc. 79). The
motion is opposed in part. (R. Doc. 92).
before the Court is Defendant's First Motion to Compel.
(R. Doc. 63). The motion is opposed. (R. Doc. 87).
before the Court is Defendant's Second Motion to Compel.
(R. Doc. 85). The motion is opposed. (R. Doc. 102).
before the Court is Plaintiff's Motion for a Protective
Order Concerning Certain Rule 30(b)(6) Deposition Topics. (R.
Doc. 52) The motion is opposed. (R. Doc. 62).
Court considers the foregoing interrelated motions together.
28, 2017, Washington-St. Tammany Electric Cooperative, Inc.
(“WST”) and Claiborne Electric Cooperative, Inc.
“Plaintiffs” or the “Customer
Cooperatives”), filed this breach of contract action
against Louisiana Generating, L.L.C. (“Defendant”
or “LaGen”). (R. Doc. 1, “Compl.”).
The Customer Cooperatives allege that they are non-profit
electric cooperative corporations who obtain electric power
from LaGen. (Compl. ¶¶ 1-4). The Customer
Cooperatives seek a finding that LaGen breached certain Power
Supply and Service Agreements
(“Contracts”) by charging them for costs associated
with LaGen's remediation of environmental conditions
existing at the Big Cajun II power generating plant before
the execution of the Contracts, as well as a declaration that
LaGen may not assess such costs in the future. (Compl.
¶¶ 4-5). The Customer Cooperatives assert that in
light of certain Environmental Law Clauses in the Contracts,
LaGen “has exclusive responsibility for the costs of
complying with Environmental Laws existing prior to June 24,
2002, and also the costs of remediating environmental
conditions that existed at the Big Cajun II power generating
plant prior to June 24, 2002.” (Compl. ¶¶
Customer Cooperatives assert that LaGen has improperly
assessed them with certain remediation costs incurred
pursuant to a Consent Decree between LaGen and the
Environmental Protection Agency (“EPA”) and
Louisiana Department of Environmental Quality
(“LDEQ”). (Compl. ¶¶ 11-22). The
federal action in which the Consent Decree was entered was
brought by the EPA against LaGen on February 18, 2009
“pursuant to Sections 113(b) and 167 of the Clean Air
Act (‘the Act'), 42 U.S.C. § 7413(b) and 7477,
for injunctive relief and the assessment of civil penalties
for violations of the Prevention of Significant Deterioration
(‘PSD') provisions of the Act, 42 U.S.C.
§§ 7470-92; the federally approved Louisiana PSD
regulations of the Louisiana State Implementation Plan
(‘SIP'); Title V of the Act, 42 U.S.C. §§
7661-7661f, and the federally approved Louisiana Title V
program, or any rule or permit issued thereunder.”
EPA v. Louisiana Generating, Civil Action No.
09-100-JJB-RLB, ECF No. 1 at 1 (M.D. La. Feb. 18,
2009). On March 5, 2013, the Court entered a
Consent Decree providing, in pertinent part, the following:
WHEREAS, the Settling Defendant affirms that a portion of the
emissions technology, including related to PM emissions and
refueling, under this consent decree, will allow it to comply
with the Mercury [and] Air Toxics Rule, a change in
environmental law promulgated after the filing of the
Louisiana Generating, ECF No. 427 at
The Customer Cooperatives allege that “on the basis of
this self-serving statement, ” LaGen has wrongly
characterized remediation costs of past excess emissions of
nitrous oxides (“NOx”), sulfur dioxide
(“SO2”), and particulate matter
(“PM”) as related to the 2011 Mercury and Air
Toxics Standards (“MATS”) Rule, as opposed to
environmental laws in effect prior to the execution of the
Contracts. (See Compl. ¶¶
Customer Cooperatives specifically contend that the following
five categories of costs have been wrongly assessed by LaGen:
(i) the boiler conversion of Unit 2 at LaGen's Big Cajun
II power plan from coal to natural gas (including natural gas
pipeline costs); (ii) the installation of PM continuous
emission monitoring systems (“CEMS”) on Units 1
and 3; (iii) “certain costs” associated with the
ash handling collection systems; (iv) “certain
costs” of electrostatic precipitator
(“ESP”) upgrades; and (v) “certain
costs” that LaGen has identified as MATS chemical
costs. (Compl. ¶¶ 27, 30, 34, 37).
Customer Cooperatives assert that LaGen has wrongly assessed
them with approximately $38.1 million between 2016 and 2025
in remediation costs. (Compl. ¶ 28). The Customer
Cooperatives allege that “[o]f the approximately $38.1
million in costs that [they] dispute, approximately $10.4
million are capital costs, approximately $16.2 million are
interest expenses, and approximately $11.5 million are
operations and maintenance expenses.” (Compl. ¶
28). The Customer Cooperatives challenge LaGen's position
that it “has appropriately allocated chemical costs
between the Activated Carbon Injection system (a mercury
control) and the dry sorbent injection (‘DSI') and
SNCR [Selective Non-Catalytic Reduction system] required by
the Consent Decree.” (Compl. ¶ 29). The Customer
Cooperatives assert that they have “already suffered
significant harm, paying more than $7.6 million in
unjustified charges from July 2015 through May 2017.”
(Compl. ¶ 31).
Law and Analysis A.LaGen's Motion to
Extend Deadline for Completion of Fact Witness
Depositions for Limited Purposes (R. Doc.
16(b)(4) of the Federal Rules of Civil Procedure allows for
the modification of a scheduling order deadline upon a
showing of good cause and with the judge's consent. The
Fifth Circuit has explained that a party is required
“to show that the deadlines cannot reasonably be met
despite the diligence of the party needing the
extension.” Marathon Fin. Ins. Inc., RRG v. Ford
Motor Co., 591 F.3d 458, 470 (5th Cir. 2009) (quoting
S&W Enters., LLC v. Southtrust Bank of Ala., NA,
315 F.3d 533, 535 (5th Cir. 2003)). In determining whether
the movant has established “good cause” for an
extension of deadlines, the Court considers four factors: (1)
the party's explanation for the requested extension; (2)
the importance of the requested extension; (3) the potential
prejudice in granting the extension; and (4) the availability
of a continuance to cure such prejudice. See Leza v. City
of Laredo, 496 Fed. App'x 375, 377 (5th Cir. 2012)
(citing Reliance Ins. Co. v. Louisiana Land &
Exploration Co., 110 F.3d 253, 257 (5th Cir. 1997)).
seeks a limited extension of the deadline to conduct fact
witness depositions, which expired on November 2, 2018, for
the purpose of conducting or continuing certain depositions.
LaGen first seeks an order providing that the Rule 30(b)(6)
depositions of WST and Claiborne, to the extent allowed,
well as any other depositions permitted by the Court in
connection with timely filed discovery motions, take place
within fifteen days of the Court's ruling on the
underlying motions. (R. Doc. 79 at 1-2). The Customer
Cooperatives consent to this portion of the motion. (R. Doc.
92 at 1). The Court finds good cause to grant the instant
motion with respect to this relief.
also seeks an order providing for the continuation of the
deposition of Mark Brown (Claiborne's General Manager)
taken on October 18, 2018, the deposition of Charles Hill
(WST's General Manager) taken on October 26, 2018, and
the deposition of Walt Sylvest (WST's Manager of Finance
and Administration) taken on October 26, 2018. (R. Doc. 79 at
2-3). LaGen seeks the continuation of these depositions in
light of document productions made on October 11, 2018,
October 16, 2018, and October 23, 2018, as well as the
identification of certain documents at the depositions of
Messrs. Hill and Sylvest that were not previously produced.
(R. Doc. 79-1 at 4-10).
Customer Cooperatives argue that the instant motion is
unnecessary with respect to the continuation of the
deposition of Mr. Brown because counsel for the parties
agreed at the conclusion of his deposition to reopen it for
the purposes of addressing documents produced during the week
of his deposition. (R. Doc. 92 at 1-3). With respect to the
depositions of Messrs. Hill and Sylvest, the Customer
Cooperatives argue that the October 11, 2018 production was
delayed in light of LaGen's own delay in agreeing upon
ESI search terms. (R. Doc. 92 at 3; see R. Doc. 87
at 1-3). The Customer Cooperatives further note that LaGen
sought to move the depositions forward one day after receipt
of the October 11, 2018 production, and that the October 23,
2018 production “was a small, supplemental production
containing only 220 pages” pertaining to regulatory
proceedings before the Louisiana Public Service Commission
(“LPSC”) that LaGen may already have had in its
possession. (R. Doc. 92 at 3-5). Finally, the Customer
Cooperatives assert that LaGen did not identify all documents
that were “discovered” during the foregoing
depositions, and otherwise assert that the specific documents
addressed in LaGen's motion are outside the scope of
discovery. (R. Doc. 92 at 5-7).
Court finds good cause to extend the fact witness deposition
deadline for the purpose of continuing the October 18, 2018
deposition of Mr. Brown in light of the parties'
agreement on the record to reopen the deposition to address
documents produced during the week of his deposition. The
Court will limit the continued deposition to 2.5 hours. The
subject matter of the deposition is limited to the documents
produced on October 11, 2018, October 16, 2018, and October
Court does not, however, find good cause to extend the fact
witness deposition deadline for the purposes of continuing
the October 26, 2018 depositions of Messrs. Hill and Sylvest.
All of the document productions at issue were made prior to
these depositions, and the bulk of the documents appear to
have been produced more than two weeks prior to these
depositions. The record does not indicate that LaGen sought a
continuation of these deposition dates in light of the
document productions. LaGen has not otherwise demonstrated
how it did not have sufficient time to review the produced
documents prior to the depositions.
Court will also not reopen these depositions in light of the
identification of documents during the depositions that were
not previously produced. If these documents are responsive to
previous written discovery requests, then they are properly
sought through LaGen's motions to compel (R. Docs. 63,
85). In ruling upon LaGen's Second Motion to Compel, the
Court will consider whether LaGen should be allowed to
conduct additional discovery with respect to the previously
unidentified documents. (See R. Doc. 85-2 at 12-18).
Motions to Compel and Motion for Protective Order
otherwise limited by court order, the scope of discovery is
as follows: Parties 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,
considering the importance of the issues at stake in the
action, the amount in controversy, the parties' relative
access to relevant information, the parties' resources,
the importance of the discovery in resolving the issues, and
whether the burden or expense of the proposed discovery
outweighs its likely benefit. Information within this scope
of discovery need not be admissible in evidence to be
discoverable.” Fed.R.Civ.P. 26(b)(1). The court must
limit the frequency or extent of discovery if it determines
that: “(i) the discovery sought is unreasonably
cumulative or duplicative, or can be obtained from some other
source that is more convenient, less burdensome, or less
expensive; (ii) the party seeking discovery has had ample
opportunity to obtain the information by discovery in the
action; or (iii) the proposed discovery is outside the scope
permitted by Rule 26(b)(1).” Fed.R.Civ.P. 26(b)(2)(C).
26(c) of the Federal Rules of Civil Procedure allows the
court to issue a protective order after a showing of good
cause “to protect a party or person from annoyance,
embarrassment, oppression, or undue burden or expense.”
Fed.R.Civ.P. 26(c)(1). Rule 26(c)'s “good
cause” requirement indicates that the party seeking a
protective order has the burden “to show the necessity
of its issuance, which contemplates a particular and specific
demonstration of fact as distinguished from stereotyped and
conclusory statements.” In re Terra Int'l,
Inc., 134 F.3d 302, 306 (5th Cir. 1998) (quoting
United States v. Garrett, 571 F.2d 1323, 1326 n.3
(5th Cir. 1978)).
to compel discovery responses are governed by Rule 37(a) of
the Federal Rules of Civil Procedure.
LaGen's First Motion to Compel (R. Doc. 63)
seeks an order requiring the Customer Cooperatives to produce
documents responsive to Request for Production Nos. 1-5, 7,
11, 14, 16, 17, 20, , 25, and 26, to which the Customer
Cooperatives responded on February 20, 2018. LaGen represents
that the parties negotiated an Electronically Stored
Information Protocol and Protective Order (“ESI
Agreement”) that was fully executed on June 21, 2018.
(R. Doc 63-1 at 2). While LaGen asserts that the parties
“engaged in extensive negotiations regarding the ESI
Agreement”, it does not identify whether any specific
custodians or search terms were identified and agreed upon
pursuant to the ESI Agreement. (R. Doc. 63-1 at 3).
LaGen's arguments are based on assertions that the
Customer Cooperatives have not produced any responsive
documents for specific requests or otherwise have withheld
documents on the basis that they are publicly available or
belong to third parties. (R. Doc. 63-1 at 6-11).
opposition, the Customer Cooperatives assert that they have
produced more than 20, 000 pages of documents, including ESI
collected pursuant to “agreed-upon search terms”
and “agreed-upon custodians” following the
parties' September 18, 2018 discovery conference. (R.
Doc. 87 at 1-3). The Customer Cooperatives represent that the
parties agreed upon the search terms, custodians, and dates
ranges for Request for Production Nos. 1, 4, 5, 7, 11, 14,
16, 17, and 26. (R. Doc. 87 at 4-7). These search terms,
custodians, and date ranges are found in a spreadsheet
attached to the Customer Cooperative's Opposition as
Exhibit 1. (R. Doc. 87-1) (“the ESI
Spreadsheet”). LaGen has not sought leave to file any
additional argument or otherwise challenged the Customer
Cooperative's assertion that the ESI Spreadsheet consists
of agreed-upon search terms and custodians.
Customer Cooperatives raise separate arguments with respect
to Request for Production Nos. 2, 3, 20, 21, 25, which are
not subject to the ESI Agreement or ESI Spreadsheet. (R. Doc.
87 at 4-7).
Request for Production Nos. 4, 11, and 21
asserts that the Customer Cooperatives have failed to produce
specific documents responsive to Request for Production Nos.
4, 11, and 21, which the Customer Cooperatives only objected
to on the basis of privilege. (R. Doc. 63-1 at 6-7).
Customer Cooperatives represent that it conducted the proper
agreed-upon ESI search protocols with respect to Request for
Production Nos. 4 and 11. (R. Doc. 87 at 5). Given this
representation, the Court will not require the Customer
Cooperatives to produce any additional ESI responsive to
these requests based upon the arguments raised in the instant
motion. The Court will further address Request for Production
No. 4 below in the context of resolving LaGen's Second
Motion to Compel, which raises somewhat more detailed
arguments with respect to this document request.
the Customer Cooperatives assert that they have satisfied
their duty to provide ESI in light of the parties'
agreements, they have not represented whether they have
searched for and produced hard copy documents responsive to
Request for Production Nos. 4 and 11. The Customer
Cooperatives have raised no objections to such a production.
Unless the parties have entered into a separate agreement
regarding the search and production of hard copy documents,
the Customer Cooperatives must produce all non-privileged
hard copy documents in their possession, custody, or control
responsive to Request for Production Nos. 4 and 11, or
otherwise certify that no such documents have been located
after a reasonable search.
for Production No. 21 seeks the production of “all
documents and information” posted to the Customer
Cooperatives' social media sites from 2010 to the
present. (R. Doc. 63-2 at 69). The Customer Cooperatives
responded by stating that their social media pages are
publicly available and by providing the relevant internet
addresses for their Facebook and Twitter accounts, as well as