Opinion
STIPULATION AND ORDER TO LITIGATE ENFORCMENT COSTS AFTER THE CONCLUSION OF THE PHASE II TRIAL ON OTHER RESPONSE COSTS
MORRISON C. ENGLAND, Jr., Chief District Judge.
PATRICIA L. HURST, Senior Counsel, GABRIEL ALLEN, Trial Attorney, PETER KRZYWICKI, Trial Attorney, Environmental Enforcement Section PAUL CIRINO, Trial Attorney, Environmental Defense Section Environment & Natural Resources Division U.S. Department of Justice, Washington, DC Attorneys for Plaintiff United States of America.
KAMALA D. HARRIS Attorney general of California SUSAN FIERING Supervising Deputy Attorney General TIMOTHY E. SULLIVAN Deputy Attorney General California Department of Justice Office of the Attorney General Oakland, CA Attorneys for Plaintiff California Department of Toxic Substances Control.
Gary J. Smith, Andrew C. Mayer, BEVERIDGE & DIAMOND, P.C. San Francisco, CA Attorneys for Defendant Sterling Centrecorp, Inc.
WHEREAS, on March 25, 2009, the Court entered the Bifurcation Order (ECF No. 26) separating the discovery and trial for defendants' liability ("Phase I") from the discovery and trial on plaintiffs' entitlement to response costs ("Phase II"), and;
WHEREAS, on September 29, 2014, the Court entered the Phase II Pretrial Scheduling Order (ECF No. 229) setting the deadline for Phase II discovery, except expert discovery, for September 18, 2015 and setting Phase II trial for July 18, 2016; and
WHEREAS, on August 19, 2015, the Court entered an Order (ECF No. 241) setting the designation of experts and exchange of expert reports for October 2, 2015; and
WHEREAS, Plaintiffs United States of America, on behalf of the Environmental Protection Agency ("EPA"), and the California Department of Toxic Substances Control ("DTSC") (collectively "Plaintiffs") seek their response costs, including enforcement costs, through dates certain, in Phase II; and
WHEREAS, enforcement costs refer to all costs incurred by the United States Department of Justice, the costs of EPA attorneys' direct labor on this litigation, all costs incurred by the California Attorney General's Office representing DTSC in this matter, the cost of DTSC attorneys' direct labor on this litigation, EPA and DTSC attorneys' travel expenses related to this litigation, and Plaintiffs' indirect costs associated with all of this direct labor; and
The Department of Justice intends to seek all enforcement costs it incurred through the close of Phase II trial. EPA plans to seek all enforcement costs it incurred through November 30, 2012. DTSC plans to seek all enforcement costs attributable to DTSC attorneys through November 4, 2014. In addition, DTSC intends to seek all enforcement costs attributable to the representation of DTSC in this matter by the California Attorney General's Office that are incurred through the close of Phase II trial. The Department of Justice, EPA, the California Attorney General's Office, and DTSC will seek the costs incurred after those dates in a subsequent proceeding as provided for by 42 U.S.C. § 9613(g)(2).
WHEREAS, enforcement costs do not refer to any work by non-legal staff of EPA, DTSC, or their contractors related to this litigation; and
WHEREAS, enforcement costs are a subset of the response costs currently scheduled to be litigated in Phase II; and
WHEREAS, the exercise of proving the enforcement costs might disrupt Phase II because it may necessitate discovery of the actions of the attorneys who are litigating Phase II on behalf of Plaintiffs; and
WHEREAS, Plaintiffs and Sterling Centrecorp, Inc. ("Sterling") (collectively "the Parties") agree that the most efficient means of resolving issues related to Plaintiffs' claims for enforcement costs is to litigate those claims through motions practice after the Phase II trial has concluded; and
WHEREAS, on August 24, 2015, counsel for the United States of America, Patricia Hurst, contacted Stephen P. Elder, and explained to him what Plaintiffs seek with this Stipulation, and Mr. Elder, on behalf of himself and Elder Development, Inc., stated that he did not oppose the relief sought through this Stipulation and Proposed Order, but Mr. Elder has not seen a copy of the Stipulation and Proposed Order and claims he has no means to review the Stipulation and Proposed Order.
NOW THEREFORE, the Parties hereby jointly stipulate and respectfully request that the Court order that the Parties shall not put on evidence of, or otherwise dispute, enforcement costs during Phase II trial or pre-trial preparations, and shall not seek or be required to respond to discovery on enforcement costs during Phase II proceedings; instead, all issues relating to enforcement costs shall be addressed by motions practice after the Phase II trial has concluded, and according to the schedule that follows:
On or before sixty days after the conclusion of the Phase II trial, Plaintiffs shall jointly file a motion seeking enforcement costs;
On or before sixty days after Plaintiffs' deadline to file a motion seeking enforcement costs, if Sterling decides a response is necessary, Sterling shall file a response in opposition to Plaintiffs' motion for enforcement costs;
Sterling will have an opportunity to take discovery on Plaintiffs' enforcement costs following the Phase II trial until sixty days after Plaintiffs' deadline to file a motion seeking enforcement costs, however, Plaintiffs do not waive their right to assert any privilege or any objection that could apply to any part of Sterling's discovery request;
Plaintiffs do not agree to submit their attorneys for depositions in this matter and do not waive their right to seek a protective order barring any depositions they deem objectionable;
On or before twenty-one days after Sterling's deadline to file its response, if Plaintiffs decide a reply is necessary, Plaintiffs shall jointly file a reply to any response in opposition filed by Sterling; and
If the Court does not enter the proposed order, the Parties agree that Plaintiffs will have the right to disclose documentation of their enforcement costs after the September 18, 2015 close of fact discovery deadline and Plaintiffs' experts will have the opportunity to supplement their reports on enforcement costs after the October 2, 2015 deadline for exchange of reports.
SO STIPULATED. ORDER
In view of this Stipulation, the Court finds that good cause exists for issuance of an Order that the Parties shall not put on evidence of, or otherwise dispute, enforcement costs during Phase II trial and pre-trial preparation, and shall not seek or be required to respond to discovery on enforcement costs during Phase II proceedings; and instead, all issues relating to enforcement costs shall be addressed by motions practice after the Phase II trial has concluded, and according to the schedule that follows:
On or before sixty days after the conclusion of the Phase II trial, Plaintiffs shall jointly file a motion seeking enforcement costs;
On or before sixty days after Plaintiffs' deadline to file a motion seeking enforcement costs, if Sterling decides a response is necessary, Sterling shall file a response in opposition to Plaintiffs' motion for enforcement costs;
Sterling will have an opportunity to take discovery on Plaintiffs' enforcement costs following the Phase II trial until sixty days after Plaintiffs' deadline to file a motion seeking enforcement costs, however, Plaintiffs do not waive their right to assert any privilege or any objection that could apply to any part of Sterling's discovery request;
Plaintiffs do not agree to submit their attorneys for depositions in this matter and do not waive their right to seek a protective order barring any depositions they deem objectionable; and
On or before twenty-one days after Sterling's deadline to file its response, if Plaintiffs decide a reply is necessary, Plaintiffs shall jointly file a reply to any response in opposition filed by Sterling.
IT IS SO ORDERED.