United States District Court, D. North Dakota, Southwestern Division
ORDER RE MOTION FOR A PROTECTIVE ORDER QUASHING A SUBPOENA
CHARLES S. MILLER, Jr., Magistrate Judge.
Before the court is a motion by Ms. Cassandra Stevahn ("Stevahn") and her employer EMC Insurance Companies ("EMC"), both nonparties, seeking relief pursuant to Fed.R.Civ.P. 26(c)(1) & 45(d)(3) from a subpoena that plaintiff Continental Resources, Inc. ("Continental") caused to be issued for the taking of Stevahn's deposition and for production of EMC's claim file for the above case. Defendant C&D Oilfield Services, Inc. ("C&D") filed a response joining in the motion. A hearing on the motion was held on July 8, 2015.
Continental retained C&D to do work on one of its oil and gas wells in North Dakota. On or about January 28, 2012, there was a spill of contaminated fluid and a fire in an area adjacent to the well that resulted in Continental incurring costs for the response by the local fire department, the rebuilding of a fence, and the remediation of the contaminated soils. Continental alleges that the spill and fire were C&D's fault.
Continental did not make a demand upon C&D for reimbursement of the costs it incurred until on or about February 5, 2013, when it forwarded a demand letter authored by one of its senior litigation attorneys. While the record is unclear, it appears the letter may have been sent directly to both C&D and EMC, but, even if it was not, C&D forwarded a copy to EMC within a matter of days.
Upon EMC's receipt of the letter, Stevahn (EMC's assigned adjustor) obtained the fire report prepared by local authorities. Also, on February 13, 2013, she took a recorded statement from C&D's two principals.
Sometime soon thereafter, Stevahn hired expert Peter Smith and the company with whom he is employed (ECC Horizon) to conduct an investigation. Before Smith did any substantive work, Stevahn also retained attorney Paul Sanderson to represent C&D. Sanderson, in turn, formally engaged Smith as well. Smith then proceeded with his investigation, which included a site visit where he was accompanied by Sanderson. Eventually, Smith prepared a report that was directed to both Sanderson and EMC.
When C&D/EMC took the position that Continental's demands were without merit, Continental instituted this action on December 16, 2013. In its complaint, Continental contends it is entitled to recover the amounts it expended on account of the fire and spill, alleging negligence, breach of the Master Service Contract between the parties, and breach of warranty.
Smith has been disclosed as a testifying expert by C&D and Continental has deposed him at length. Following Smith's deposition, Continental sent an e-mail to Sanderson on April 16, 2015, requesting that he make Stevahn available for a deposition on May 26, 2015, and inquiring whether he would accept service on her behalf. Sanderson responded the next day, April 17, 2015, stating that Stevahn would be available on that date and that he would accept service.
Continental forwarded the actual subpoena and notice to take Stevahn's deposition to Sanderson on May 8, 2015. On May 14, 2015, Sanderson emailed Continental's attorney back stating he was not authorized to accept service on Stevahn's behalf and providing the information where Stevahn could be served. Continental then had Stevahn served with a subpoena requiring that she give testimony and produce the following documents:
Your entire file in reference to the above matter including; any analysis of the claim; all claim notes' all correspondence with Paul Sanderson; all correspondence with Peter Smith, and all correspondence with C&D Oilfield Services; all correspondence with Continental Resources, Inc.; all correspondence with ECC Horizon; all materials provided to you by ECC Horizon and/or Peter Smith; all documents providing guidance to you in regard to claims handling and/or environmental remediation.
(Doc. No. 29-1, p. 4). Service was effectuated on May 18, 2015.
EMC retained separate counsel to respond to the subpoena. EMC and Stevahn served Continental with their joint response and objections on May 19, 2015. The next day they filed the present motion for a protective order seeking to quash the subpoena on the grounds that the information being sought is, for the most part, work-product and/or attorney-client privileged and, to the extent not, irrelevant.
C&D filed a response/joinder to EMC's motion on June 3, 2015. As discussed later, Continental claims that C&D waived any objections by not asserting them until after the time specified in the subpoena for compliance.
In an affidavit filed in support of the motion, Stevahn states that the only information she provided expert Smith is the fire report, the statement taken from the two C&D principals, and Continental's demand letter. Smith's deposition testimony is consistent with that account. Nevertheless, Continental is suspicious, arguing that Stevahn likely provided more. In fact, Continental believes that expert Smith was directed to "gin up" a basis for denying Continental's claim and that it will be able to uncover proof of this if it is able to depose Stevahn. This is belied, however, by what Smith testified to in his deposition, and Continental has offered nothing but rank speculation to the contrary.
In order to provide some perspective, it is helpful first to consider what ultimately is at issue in this case. So far as the court can determine it is: (1) whether some act or acts on the part of C&D caused the event that Continental claims resulted in the damages it suffered; (2) whether the contaminated soil (the remediation of which is where the big dollars are in this case) was the result of the event at issue or whether it was the result of some earlier spill or migration of contaminants ...