Cook v. Rockwell Intern. Corp., Civ.A. No. 90-K-181.

• Decision Date: 13 November 1995
• Docket Number: Civ.A. No. 90-K-181.
• Citation: 907 F. Supp. 1460
• Parties: Merilyn COOK, et al., Plaintiff, v. ROCKWELL INTERNATIONAL CORPORATION, a Delaware Corporation, and The Dow Chemical Company, a Delaware Corporation, Defendant.
• Court: U.S. District Court — District of Colorado

907 F. Supp. 1460

Merilyn COOK, et al., Plaintiff, v. ROCKWELL INTERNATIONAL CORPORATION, a Delaware Corporation, and The Dow Chemical Company, a Delaware Corporation, Defendant.

Civ.A. No. 90-K-181.

United States District Court, D. Colorado.

November 13, 1995.

COPYRIGHT MATERIAL OMITTED

Merrill G. Davidoff, Daniel Berger, Peter Nordberg, David F. Sorensen, and Jonathan Auerbach, Berger & Montague, P.C., Philadelphia, PA, and Bruce H. DeBoskey, Steven W. Kelley, Silver & DeBoskey, P.C., Denver, CO, for plaintiffs.

Richard C. Kaufman, Asst. U.S. Attorney, Denver, CO, and Carlotta Wells, United States Department of Justice, Washington, D.C., for Department of Energy.

MEMORANDUM OPINION AND ORDER RE CONTEMPT

KANE, Senior District Judge.

The United States Department of Energy ("DOE") is the owner of the Rocky Flats nuclear weapons production facility located northwest of Denver, Colorado. DOE contracted with Defendants Dow Chemical Company and Rockwell International Corporation to operate Rocky Flats. Plaintiffs allege during operation of Rocky Flats, Dow and Rockwell released hazardous substances into the surrounding area damaging Plaintiffs' property and increasing their risk of adverse health consequences.

During the course of pretrial discovery in 1993, Plaintiffs served subpoenas duces tecum upon DOE requesting production of documents related to the Rocky Flats weapons plant. DOE did not file objections to the subpoenas, nor motions to quash or for protective orders.

In January 1994 Plaintiffs moved to compel compliance. In March 1994 Magistrate Judge Borchers ruled because DOE is not a party to the litigation, Plaintiffs exclusive remedy was to seek an order of contempt pursuant to Fed.R.Civ.P. 45. Plaintiffs therefore moved in April 1994 to hold DOE in contempt. On July 8, 1994, in order to resolve the contempt motion, DOE entered into a proposed Stipulated Order ("Order") which was made a court order by Magistrate Judge Borchers on September 13, 1994.

Plaintiffs move to hold DOE in contempt for alleged failure to produce documents pursuant to the Order. They also seek a cure of the alleged violations of the Order as well as an award of their attorney fees, costs, and expenses.

Failure to produce a pertinent document in a proceeding before a magistrate, after having been ordered to do so, constitutes a contempt of the district court for the district wherein the magistrate is sitting. 28 U.S.C. § 636(e). Under § 636(e), a magistrate does not have power to hold anyone in contempt and, therefore, must certify an act of contempt to a judge of the district court.

On May 30, 1995, Magistrate Judge Borchers certified the contempt motions to this court. In his certification, he stated he was satisfied DOE did not comply fully with the Order. Under § 636(e), I must hear the evidence and determine if there has been an act of contempt. I have heard the evidence and find DOE has violated the Order and is in contempt of this court.

I. Standards for Contempt.

The Order provides:

Any deviation by DOE from compliance with any provision of this order shall constitute a basis for Contempt of Court within the meaning of Rule 45(e) Fed.R.Civ.P. and subject DOE to the entry, upon application, of a Citation of Civil Contempt and such additional sanctions as may be just.

(Order, ¶ 25 at 14.) Rule 45(e) states "failure by any person without adequate excuse to obey a subpoena served upon that person may be deemed a contempt of the court from which the subpoena issued."

A district court has broad discretion in using its contempt powers to require adherence to court orders and a review of a district court's finding of contempt is limited to determining whether the court abused its discretion. O'Connor v. Midwest Pipe Fabrications, Inc., 972 F.2d 1204, 1209 (10th Cir.1992); United States v. Riewe, 676 F.2d 418, 420-21 (10th Cir.1982).

In civil contempt cases the proof of contempt must be clear and convincing. Heinold Hog Market, Inc. v. McCoy, 700 F.2d 611, 614 (10th Cir.1983); United States v. Professional Air Traffic Controllers Organization, Local 504, 703 F.2d 443, 445 (10th Cir.1983). To make a prima facie showing of contempt, however, the party seeking a finding of contempt bears the burden of persuading the court of defendant's failure to comply, and need not prove ability to comply. Heinold at 615. The defendant then bears the burden of producing sufficient detailed evidence of inability to comply. Id. The party seeking a finding of contempt would then have the additional burden of persuading the court the defendant is able to comply. Id.

II. Merits.

The Order requires DOE to provide unclassified documents within thirty days. (Order ¶ 21 at 13.) As to Plaintiffs' requests for classified documents, the Order requires DOE to make a written request for expedited classification review within seven days and promptly provide a copy of such request to Plaintiffs. (Order ¶ 20 at 12-13.) The Order further requires DOE to complete the review within thirty days or show good cause for an exception. Id.

1. Requests for Documents Relating to Missing Materials.

Plaintiffs contend DOE violated the Order because it failed to provide documents, requested in December 1994, relating to missing quantities of nuclear materials at Rocky Flats.

In June 1994, DOE revealed to the public large quantities of plutonium and uranium were missing from Rocky Flats. Plaintiffs sent DOE a letter in December 1994 requesting documents pertaining to the missing substances and requesting any classified documents be reviewed and declassified pursuant to the Order. Plaintiffs have made repeated follow-up requests for the documents and/or evidence of the initiation of a classification review. DOE has failed to initiate a classification review or provide any writing, regardless of date, initiating such a review.

DOE contends it would be impossible or impracticable for its personnel to complete a classification review because it asserts such a review would entail 4000 personnel hours and expenditure of $100,000. In the more than seven months between the time of Plaintiffs' requests and the contempt hearing, however, DOE has not even attempted to begin a classification review. Also, any alleged impossibility or impracticability existed at the time DOE voluntarily entered into the Order in July 1994 and DOE did not file a motion for protective order asking to be relieved of its obligations under the Order.

DOE violated ¶ 20 of the Stipulated Order by failing to make a written request for classification review; failing to provide a copy of any such writing to Plaintiffs; and failing to initiate a classification review of the requested documents. DOE has not provided the requested documents or filed objections to the request.

I find DOE has failed substantially to comply with the Order in this regard.

2. Plaintiffs' November 7, 1994 Request.

Plaintiffs contend DOE violated the Order because it failed to provide documents requested on November 7, 1994.

On November 7, 1994, Plaintiffs made a request for documents and posed a number of questions concerning indices provided by DOE. DOE did not respond. Plaintiffs sent a follow up letter on November 29, 1994. Some requested documents were produced but others were withheld.

On March 3, 1995, Plaintiffs wrote DOE and stated they were prepared to send document reviewers immediately to inspect the documents requested on November 7, 1994. In April, 1995 Plaintiffs filed these motions to hold DOE in contempt. On May 17, 1995, DOE informed Plaintiffs some of the requested documents were ready for inspection. On May 26, 1995, DOE informed Plaintiffs some documents could not be produced and failed to identify which documents could not be produced or state the reasons therefor. Plaintiffs have repeatedly asked for an identification of the documents withheld and the reasons for the nonproduction. To date, DOE has not responded with this information.

DOE does not claim it has begun a classification review. DOE failed to produce requested unclassified documents within thirty days of the request; failed to initiate a classification review of classified documents in writing within seven days of the request; and failed to complete its classification review within thirty days or show good cause why it could not do so. I find DOE has failed substantially to comply with the Order in this regard.

3. Plaintiffs' November 23, 1994 Request.

Plaintiffs contend DOE violated the Order because it failed to provide documents requested on November 23, 1994.

On November 23, 1994 Plaintiffs submitted a list of ninety-eight documents to be produced. DOE has not provided Plaintiffs with a written request for expedited classification review.

DOE asserts it was impossible to provide Plaintiffs with a request for expedited classification review within seven days because Plaintiffs' document list was not from a DOE index but, rather, from an index provided by a consultant to the Colorado Department of Health; DOE did not know within seven days whether any of the documents were classified; and, many of the documents were improperly identified and could not be found because the titles, names and dates did not match those at Rocky Flats.

While it may have been "impossible" to provide a written request for classification review within seven days, DOE does not explain why it has not yet produced such a writing. DOE seems to be contending if it cannot comply with the specific deadlines provided in the Order it may disregard the Order altogether. This argument is hardly persuasive.

DOE has not completed the classification review within thirty days of the Order and asserts it was impossible to do so. On December 15, 1994, Plaintiffs received unclassified and declassified documents and a status report indicating many documents could not be located. At a January 5, 1995 meeting, Plaintiffs were given another update and agreed that,...