United States District Court, D. New Mexico
ENVIRONMENTAL DIMENSIONS, INC., A New Mexico Corporation, Plaintiff,
ENERGYSOLUTIONS GOVERNMENT GROUP, INC. n/k/a Atkins Energy Government Group, Inc., a foreign for profit corporation, Defendant.
MEMORANDUM OPINION AND ORDER
H. RITTER U.S. MAGISTRATE JUDGE.
matter comes before the Court on Energy Solutions Government
Group, Inc.'s (“ESGG”) Motion to quash
Environmental Dimension, Inc.'s (“EDi”)
Subpoenas to the Department of Energy (“DOE”) and
National Nuclear Security Administration (“NNSA”)
and for a Protective Order [Doc. 87');">87');">87');">87');">87');">87');">87');">87], filed September 27,
2018. The Court has considered EDi's
Response[1" name="FN1" id=
"FN1">1]and ESGG's Reply briefs, as well as all
pertinent authority. Having done so, the Court concludes that
ESGG's Motion to quash and for a protective order must be
in the business of providing environmental services to the
United States DOE and other governmental agencies. [Doc. 1-1,
p.3]. As such, during the relevant time period it was
competing for contracts with Los Alamos National Laboratory
(“LANL”) which were set aside for small
businesses in New Mexico. [Id.]. Ultimately, EDi was
awarded a contract with Los Alamos National Security
(“LANS”) which provided that EDi would manage,
treat, and package radioactive waste for LANS at the LANL
facility. [Id., p. 4]. Prior to the award of the
LANS contract, EDi contracted with ESGG, the prior prime
contractor to LANS, to “provide expert waste management
personnel experienced in the LANS [Transuranic] Waste Program
and knowledgeable of specific processes and
procedures.” [Id.]. Included among these
duties was “waste treatment and packaging for shipment
to the DOE Waste Isolation Pilot Plaint (hereinafter
‘WIPP').” [Id., p. 5].
WIPP facility is an underground repository for the disposal
of transuranic and other radiological waste. [Doc. 87');">87');">87');">87');">87');">87');">87');">87, p. 4].
Prior to the contract underlying this case, ESGG was the
prime contractor responsible for remediating and repackaging
waste at LANL under LANS' direction. [Id.]. On
February 14, 2014, there was a release of radiological
materials at the WIPP facility “allegedly from” a
drum of transuranic waste that had been repackaged and
shipped to WIPP from LANL by ESGG. [Id., p. 6');">p. 6]. In
the meantime, on April 16, 2014, LANS notified EDi that it
had been awarded the prime contract relating to waste
the parties' relationship soured, EDi sued ESGG in New
Mexico State Court asserting that ESGG engaged in unfair
trade practices by failing to divulge its deficiencies in
managing Transuranic Waste Operations while it was the prime
contractor to LANS. Specifically, EDi alleges that:
28. DEFENDANT ESGG was a major contractor to LANS at the LANL
facility in Los Alamos, New Mexico, prior to the award of the
contract by LANS to PLAINTIFF EDi.
29. DEFENDANT ESGG was grossly negligent in its operations
and contract work at LANL for LANS as described in the
Department of Energy (DOE) Accident Investigation Board (AIB)
Report dated April 16, 2015.
30. DEFENDANT ESGG knew or should have known that its conduct
was grossly deficient and would result in punitive measures
being taken against it by LANS when the DOE AIB Report was
31. Said punitive measures were underscored by the AIB Report
identifying serious findings against ESGG's LANL
Transuranic Waste Operations (TRU waste).
32. DEFENDANT ESGG knew or should have known that its prior
conduct would cause LANS to void or reduce the tasks assigned
thereunder, or alter the contract held by PLAINTIFF EDi in a
manner that would seriously damage the work PLAINTIFF EDi
anticipated receiving under the contract in Paragraphs 3
&. 4 above.
33. DEFENDANT ESGG knew or should have known that its conduct
was going to be an issue in any future deadlines (e.g., those
where PLAINTIFF EDi was engaging DEFENDANT ESGG as a
subcontractor) on LANS contracts whether as a prime or
[See Doc. 1-1, pp. 9-11]. Based on allegations that
are substantively similar, EDi brings a claim for tortious
damage to reputation and contract. [See Doc. 1-1,
pp. 11-12]. ESGG timely removed this matter to federal court
on September 23, 2016. [See generally Doc. 1].
instant dispute pertains to an
“alleged” settlement agreement between ESGG and the
DOE/NNSA resulting from ESGG's actions when it was the
prime contractor to LANS. These allegations have framed two
of the discovery disputes that this Court has decided.
[See Docs. 73, 76]. In the first, EDi sought to
compel production of the alleged settlement agreement from
LANS by virtue of a subpoena. [See Doc. 73]. The
Court denied EDi's motion because it failed to subpoena
LANS the entity, instead subpoenaing a LANS employee who had
neither possession nor control of the alleged agreement.
[Id., p. 2]. In the second, EDi sought to compel
production of the alleged agreement ...