US v. Montrose Chemical Corp. of California, CV 90-3122-AAH.

• Decision Date: 06 October 1997
• Docket Number: No. CV 90-3122-AAH.,CV 90-3122-AAH.
• Citation: 980 F.Supp. 1112
• Court: U.S. District Court — Central District of California
• Parties: UNITED STATES of America, et al., Plaintiffs, v. MONTROSE CHEMICAL CORPORATION OF CALIFORNIA, et al., Defendants.

980 F.Supp. 1112

UNITED STATES of America, et al., Plaintiffs, v. MONTROSE CHEMICAL CORPORATION OF CALIFORNIA, et al., Defendants.

No. CV 90-3122-AAH.

United States District Court, C.D. California.

October 6, 1997.

Lois Schifer, Adam M. Kushner, Steven O'Rourke, Environment and Natural Resources Div., U.S. Dept. of Justice, Washington, DC, Nora M. Manella, U.S. Attorney, Leon W. Weidman, Chief, Civil Div., John Rubiner, Asst. U.S. Atty., U.S. Attorney's Office, Los Angeles, CA, for U.S.

Daniel E. Lungren, Atty. Gen. of the State of Cal., Richard M. Frank, Charles Getz, Asst. Atty. Gen., John A. Saurenman, Clara L. Slifkin, Brian W. Hembacher, Deputy Atty. Gen., Los Angeles, CA, for State of Cal.

Frank Rothman, Jose R. Allen, Peter Simshauser, Skadden, Arps, Slate, Meagher & Flom, Los Angeles, CA, for Chris-Craft Indus., Inc., on Behalf of Montrose Chemical Corp. of Cal., Rhone-Poulenc, Inc., Atkemix Thirty-Seven Inc., Stauffer Management Co., Zeneca, Inc., Westinghouse Electric Corp.

Moses Lasky, Charles B. Cohler, Kevin C. McCann, Jeffrey F. Silverman, Christopher S. Yates, Lasky, Haas & Cohler, P.C., San Francisco, CA, for Defendant Counterclaimant, Cross-Claimant and Third-Party Plaintiff, Westinghouse Electric Corp.

ORDER RE: DEFENDANTS' APPLICATION FOR INDEPENDENT REVIEW OF THE SPECIAL MASTERS'S MAY 27 AND MAY 28 MINUTE ORDERS

HAUK, Senior District Judge, Chief Judge Emeritus.

On September 22, 1997, this Court heard oral argument on the application of Defendants¹ seeking the Court's independent review of the Special Master's May 27, 1997 minute order and the Special Master's May 28, 1997 minute order, as amended June 3, 1997.

After consideration of the parties' respective briefs, exhibits, oral arguments and proposed and revised proposed orders, the Court concludes and hereby orders as follows:

1. The Special Master's May 27, 1997 minute order, concerning discovery of the activities of the United States Environmental Protection Agency (EPA) is vacated. Defendants are entitled to conduct discovery of all matters relevant to the subject matter of this action. Fed.R.Civ.P. 26(b)(1). Such discoverable matters include those relating to EPA's activities respecting the Palos Verdes Shelf. The Court does not need to determine at this time what the scope of judicial review of any action yet to be taken by EPA would be. Defendants are entitled, among other things, to conduct discovery reasonably calculated to obtain evidence which the Court may use to supplement any administrative record compiled or to be compiled by the EPA. In this connection, Defendants may conduct discovery reasonably calculated, among other things, to obtain evidence to substantiate their allegations of misconduct by Plaintiffs or their experts, including deposing all persons designated by Plaintiffs as experts, including withdrawn experts.

2. The Special Master's May 28, 1997 order, concerning deposition discovery of the Amended Consent Decree between Plaintiff and LACSD et al., is vacated to the extent it prohibits depositions on factual matters listed in categories nos. 1, 6, 7, and 9-13 in the Notices of Deposition dated April 15, 1997 served by Chris-Craft Industries, Inc. Defendants are entitled to discovery of factual matters underlying the Amended Consent Decree, but may not inquire into the settlement discussions leading up to the proposed Amended Consent Decree (i.e., discussions that are protected from disclosure by the Special Master's September 18, 1992 Order Re: Confidentiality of Settlement Conferences). Nothing in this paragraph constitutes a waiver of the attorney-client privilege, attorney work product doctrine, the deliberative and mental process privilege, or any other applicable privilege.

3. Any issues that might arise during the discovery taken pursuant to paragraphs 1 and 2 above shall be presented to and resolved by Hon. Harry V. Peetris, who is hereby appointed to act as Discovery Referee.² The Special Master has indicated to this Court his availability to be personally present as Discovery Referee, if necessary, at the depositions in order to rule on any objections made by the parties.

4. The Court refers all counsel to this Court's PRETRIAL ORDER NO. 1 AND REFERENCE TO SPECIAL MASTER TO SUPERVISE AND SUPERINTEND DISCOVERY AND ALL PRETRIAL MATTERS. In Pretrial Order No. 1, this Court charged Special Master Peetris with the duty and authority to supervise and issue recommendations and orders regarding all...