Chem-Nuclear Systems v. Arivec Chemicals

• Decision Date: 10 February 1997
• Docket Number: Civil Action No. 1:95-CV-1809-JTC.
• Citation: 978 F.Supp. 1105
• Parties: CHEM-NUCLEAR SYSTEMS, INC., Plaintiff, v. ARIVEC CHEMICALS, INC., Lockheed Corp., the United States of America, and the U.S. Dept. of the Air force, Defendants.
• Court: U.S. District Court — Northern District of Georgia

978 F.Supp. 1105

CHEM-NUCLEAR SYSTEMS, INC., Plaintiff, v. ARIVEC CHEMICALS, INC., Lockheed Corp., the United States of America, and the U.S. Dept. of the Air force, Defendants.

Civil Action No. 1:95-CV-1809-JTC.

United States District Court, N.D. Georgia, Atlanta Division.

February 10, 1997.

Frank A. Lightmas, Jr., Atlanta, GA, John F. Stoviak, Philadelphia, PA, for Plaintiff.

Leonard Harry Queen, Sr., Douglasville, GA, Richard Allen Horder, Atlanta, GA, Newton G. Quantz, III, Atlanta, GA, Thomas K. Bick, Washington, DC, James R. Schulz, Asst. U.S. Atty., Atlanta, GA, John C. Spinard, Atlanta, GA, Katherine A. Dreyfus, U.S.D.J., Washington, DC, for Defendants.

ORDER

CAMP, District Judge.

This case is before the Court on Defendant Lockheed's Motion for Summary Judgment [# 52-1]; Plaintiff's Motion for Partial Summary Judgment [# 54-1]; the Motion for Summary Judgment by Defendants United States of America and the United States Department of the Air Force (collectively "the United States") [# 55-1]; Defendant Lockheed's Second Motion to Compel [# 57-2]; the United States' Motion to Extend Time to File a Motion to Compel [# 58-1]; and Defendant Lockheed's Motion to Exclude [# 70-1].

Prior to this Order, Defendant Lockheed withdrew its first Motion to Compel [# 44-1], its first Motion for Summary Judgment [# 48-1], and its Motion to Take Additional Discovery [# 57-1]. In addition, a joint motion to reopen discovery [# 73-1] was rendered moot when this Court signed a consent order that provided for additional discovery following the disposition of the various motions for summary judgment. Accordingly, the clerk is DIRECTED to terminate these motions.

Plaintiff has indicated that it does not oppose the United States' Motion to Extend Time to File a Motion to Compel [# 58-1]. Accordingly, this motion is GRANTED.

I. Factual Summary

This case arose from the remediation, or clean up, of a site located on Basket Creek Road in Douglas County, Georgia ("the BC site"). Plaintiff Chem-Nuclear Systems remediated this site and filed this suit in order to recover the costs of this clean-up from Defendants Lockheed, the United States, Arivec Chemicals, Inc. ("Arivec"), and Young Refining Corporation. Young Refining and Plaintiff have reached a settlement, and therefore, Young Refining has been dismissed from this case.

In April 1991, the United States Environmental Protection Agency ("EPA") issued an Administrative Order that required Plaintiff to remediate the BC site. This order, which was made pursuant to the Comprehensive Environmental Response, Compensation, and Liability Act ("CERCLA"), also required Young Refining, Continental Trading Company, and Mr. B.B. Husley to participated in the remediation. In response to this order, Plaintiff alone paid to remove a significant amount of drums, tires, and contaminated soil from the site. Plaintiff spent $7.5 million on this remediation. Plaintiff has sought reimbursement for these costs from the Superfund, and the EPA has denied this application.

In this action, Plaintiff asserts three Counts against the various defendants. In Count I, Plaintiff seeks to recover, pursuant to CERCLA § 107(a), which is codified at 42 U.S.C. § 9607(a), the full amount of the costs incurred in remediating the BC site. In Count II, Plaintiff seeks contribution from each Defendant under CERCLA § 113(f), 42 U.S.C. § 9613(f)(1), for each Defendant's proportionate share of the remediation costs. In Count III, Plaintiff asserts a claim of unjust enrichment under state law. Finally, with respect to all of these claims, Plaintiff seeks a declaration of rights.

II. Lockheed's Motion to Compel

In its Second Motion to Compel [# 57-2], Lockheed seeks the production of two reports that private investigation firms prepared for Plaintiff. Lockheed argues that these reports contain information which is relevant to Plaintiff's claims against Lockheed.

In response, Plaintiff argues that these reports are protected as work product and that Lockheed has failed to establish the requirements for the exceptions to the work-product doctrine. Specifically, Plaintiff argues that Lockheed cannot demonstrate the lack of an alternate source for the information sought because Plaintiff has already produced the underlying facts which are contained in these reports.

A party can discover "documents and tangible things" that "were prepared in anticipation of litigation" only by showing a substantial need for the material and the inability to obtain the material from another source without "undue hardship." Fed. R. Civ. Pro. 26(b)(3). This standard applies even if an attorney did not prepare the material, and even if the material was prepared in anticipation of previous litigation. Federal Trade Comm'n v. Grolier, Inc., 462 U.S. 19, 25, 103 S.Ct. 2209, 2213, 76 L.Ed.2d 387 (1983).

In this case, the reports are protected under the work-product doctrine. Although Lockheed arguably possesses a "substantial need" for these reports, Lockheed has not demonstrated the inability to obtain this information from another source. Therefore, Plaintiff is not required to produce these documents.

The reports at issue are protected as work product under Rule 26(b)(3). Lockheed does not dispute Plaintiff's claim that these reports, which are certainly "documents", were prepared in anticipation of prior litigation. As Grolier establishes, to qualify as work product, the documents need not be prepared in anticipation of the present litigation.

Second, Lockheed presents a dubious "substantial need" for these reports. Lockheed alleges that Plaintiff's other responses to discovery requests have been incomplete and/or misleading. Therefore, Lockheed concludes that these reports are necessary to verify the facts that Plaintiff has disclosed. As Plaintiff argues, the need to verify already discovered information is a novel, and as far as this Court can determine, unprecedented example of a "substantial need." However, this Court will assume, without deciding, that Lockheed has articulated a "substantial need" for the reports.

Even if Lockheed possess a "substantial need" for these documents, however, Lockheed has not demonstrated an inability to obtain the material from another source. Plaintiff asserts that, based on the information which Plaintiff has provided, Lockheed could conduct its own investigation of the underlying facts in order to verify the information provided by Plaintiff. In support of this argument, Plaintiff notes that the United States has already attempted to contact one of the witnesses whose statements are contained in the report. Lockheed has not responded to this particular argument.

For the foregoing reasons, Lockheed's Second Motion to Compel, which includes Lockheed's motion for sanctions, [# 57-2] is DENIED.

III. Lockheed's Motion to Exclude Evidence

Lockheed moves to exclude the following five categories of evidence that Plaintiff has offered in support of its Motion for Partial Summary Judgment: (1) the deposition testimony of B.B. Husley, (2) the deposition testimony of C.B.F. Young, (3) Documents listed in Chem-Nuclear's Appendix as "Exhibit P", (4) testimony from a previous toxic tort action, and (5) the expert report and testimony of Anthony Marques, who is Plaintiff's expert.

Resolving Lockheed's evidentiary objections is unnecessary at this point. First, in ruling on the various motions for summary judgment, this Court did not rely on the depositions of Mr. Hulsey or Mr. Young; the documents in Plaintiff's "Exhibit P"; or testimony from the previous action. In addition, although this Court considered Mr. Marques' report, this Court did not rely on Mr. Marques' conclusion, which is the focus of Lockheed's motion to exclude, that the waste "handled" by Lockheed was similar to the waste discovered in the BC site.

Accordingly, Lockheed's Motion to Exclude [# 70-1] is DENIED. Of course, when this case goes to trial, Lockheed may renew the objections raised in this motion.

IV. Motions for Summary Judgment

A. Summary Judgment Standard

Rule 56(c) of the Federal Rules of Civil Procedure defines the standard for summary judgment: Courts should grant summary judgment when "there is no genuine issue as to any material fact ... and the moving party is entitled to judgment as a matter of law." The substantive law applicable to the case determines which facts are material. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248, 106 S.Ct. 2505, 2510, 91 L.Ed.2d 202 (1986). "The district court should `resolve all reasonable doubts about the facts in favor of the non-movant,' ... and draw `all justifiable inferences ... in his favor....'" United States v. Four Parcels of Real Property, 941 F.2d 1428, 1437 (11th Cir.1991). The court may not weigh conflicting evidence nor make credibility determinations. Hairston v. Gainesville Sun Publ. Co., 9 F.3d 913, 919 (11th Cir.1993), rh'g denied, 16 F.3d 1233 (1994) (en banc).

As a general rule, "[the] party seeking summary judgment always bears the initial responsibility of informing the district court of the basis for its motion, and identifying those portions of `the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any,' which it believes demonstrate the absence of a genuine issue of material fact." Celotex Corp. v. Catrett, 477 U.S. 317, 323, 106 S.Ct. 2548, 2553, 91 L.Ed.2d 265 (1986). However, the moving party's responsibility varies depending upon which party bears the burden of proof at trial on the issue in question.

For issues upon which the moving party bears the burden of proof at trial, the moving party must affirmatively demonstrate the absence of a genuine issue of material fact as to each element of its claim on that legal issue. It must support its motion with credible evidence that would entitle it to a directed verdict if not controverted at trial. If the moving party makes such a showing, it...