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
matter comes before the Court on EnergySolutions Government
Group's (“ESGG's”) Objections to
Memorandum Opinion and Order Denying ESGG's Motion to
Quash Environmental Dimension's (“EDi's”)
Subpoenas to the Department of Energy (“DOE”) and
National Nuclear Security Administration (“NNSA”)
and for a Protective Order (Doc. 126), filed April
11, 2019. The Court, having reviewed Magistrate Judge Jerry
H. Ritter's Memorandum Opinion and Order of March 28,
2019 (Doc. 123), as well as EDi's Response in
Opposition to ESGG's Objections (Doc. 129),
filed April 25, 2019, and ESGG's Reply in Support of its
Objections (Doc. 136), filed May 17, 2019, hereby
overrules the objections and
adopts Magistrate Judge Ritter's
Memorandum Opinion and Order. ESGG's Motion to Stay
Compliance with Magistrate Judge Ritter's Order (Doc.
127), filed April 11, 2019, and fully briefed on May 17,
2019 (Doc. 137), is, accordingly, denied as
to statute, this Court must review a magistrate judge's
ruling when a party timely files written objections.
Objections to non-dispositive rulings are reviewed under 28
U.S.C. § 636(b)(1)(A) and Fed.R.Civ.P. 72(a). Discovery
is a nondispositive matter, and magistrate judges have the
authority to issue discovery-related orders. Hutchinson
v. Pfeil, 105 F.3d 562, 566 (10th Cir. 1997) (citing 28
U.S.C. § 636(b)(1)(A); Ocelot Oil Corp. v. Sparrow
Industries, 847 F.2d 1458, 1462 (10th Cir. 1988)).
Section 363(b)(1)(A) and Rule 72(a), this Court must defer to
the magistrate judge's ruling unless it was clearly
erroneous or contrary to law. Allen v. Sybase, 468
F.3d 642, 658 (10th Cir. 2006) (citing Hutchinson v.
Pfeil, 105 F.3d 562, 566 (10th Cir. 1997); 28 U.S.C.
§ 636(b)(1)(A); Fed.R.Civ.P. 72(a)). “The clearly
erroneous standard … requires the reviewing court
affirm unless it ‘on the entire evidence is left with
the definite and firm conviction that a mistake has been
committed.'” Ocelot Oil Corp., 847 F.2d at
1464 (quoting United States v. United Staes Gypsum
Co., 333 U.S. 364, 395 (1948)). Thus, “[t]he clearly
erroneous standard is intended to give the magistrate [judge]
a free hand in managing discovery issues.” New
Mexico v. Volkswagen Group of America, Inc., CV 16-0147
MCA/LF, 2016 WL 4072342, at * 1 (D.N.M. 2016) (citation
omitted). “Under the ‘contrary to law'
standard, the district judge conducts a plenary review of the
magistrate judge's legal determinations, setting aside
the magistrate judge's order only if it applied an
incorrect legal standard.” Coll v. Stryker
Corp., CV 14-1089 KG/SMV, 2017 WL 3190658, at *7 (D.N.M.
2017) (cited authority omitted). “In sum, it is
extremely difficult to justify alteration of the magistrate
judge's non-dispositive actions by the district
judge.” Id. “Finally, ‘theories
raised for the fist time in objections to the magistrate
judge's order are deemed waived.'” Id.
(quoting United States v. Garfinkle, 261 F.3d 1030,
1031 (10th Cir. 2001)).
stated by ESGG, “[o]n May 29, 2018, EDi served
subpoenas on DOE and NNSA, requesting documents relating to a
radiological release event at the Waste Isolation Pilot Plant
(‘WIPP Incident'), including an alleged settlement
agreement between ESGG and the government contractor (Los
Alamos National Security (‘LANS')) charged with
operating remediation activities at Los Alamos National
Laboratory (‘LANL').” Doc. 126, p.
2. ESGG objected to the subpoenas and filed its Motion to
Quash on September 27, 2019. Doc. 87. In its Motion,
ESGG took the position that EDi's subpoenas should be
quashed because they sought irrelevant information to
EDi's claims in this litigation. See generally
Id. Additionally, ESGG argued that EDi was seeking
discovery that it was previously denied by Magistrate Judge
Ritter. See id., p. 16. In conclusion, ESGG argued
that “EDi is not entitled to discovery into liability
for the WIPP Incident as a whole, including any alleged
settlement agreement between ESGG and LANS.”
Id., p. 16.
the Department of Justice (on behalf of DOE and NNSA)
conferred with counsel for EDi, and the parties ultimately
reached an agreement as to what would be produced in the
event that the Court denied ESGG's motion to quash.
See Doc. 126-1. Of note, the Department has not
sought to intervene in this action or otherwise challenged
the validity of EDi's subpoenas. Id. On the
contrary, the Department has “located a requested
settlement agreement” and indicated that, if the motion
to quash is denied, then it will be producing the same to EDi
subject to “the terms of the existing protective
ESGG litigated its Motion to Quash to fruition, arguing in
its Reply Brief that: (1) EDi's Response had been served
one day late, and that the Motion to Quash should therefore
be granted under this Court's Local Rules; (2) the
discovery sought by EDi is irrelevant to its claims; (3)
EDi's subpoenas are overly burdensome; and, (4) the
alleged settlement agreement is confidential. See Doc.
95. Magistrate Judge Ritter rejected these arguments.
See Doc. 123. First, Magistrate Judge Ritter
concluded that EDi's Response was timely. Id.,
p. 1. Second, he determined that ESGG lacked standing to
challenge the subpoenas because it refused to admit to the
existence of the “alleged” settlement agreement.
Id., p. 6 (reasoning that ESGG would have
demonstrated standing had it admitted to the existence of the
agreement, but that its assertions of confidentiality were
“conclusory, at best, and insufficient to establish
standing to challenge the subpoenas.”). Alternatively,
Magistrate Judge Ritter determined that ESGG's Motion
should be denied on its merits. Id., p. 6.
Magistrate Judge Ritter reasoned that there was no absolute
rule precluding EDi from subpoenaing third parties where its
previous efforts to compel production of the alleged
agreement failed. Id., pp. 6-7. Moreover, Magistrate
Judge Ritter reasoned that the alleged agreement would be
relevant to EDi's claims for unfair trade practices and
tortious damage to reputation and contract. Id., p.
7. Finally, Magistrate Judge Ritter found that ESGG lacked
standing to object to the subpoenas as unduly burdensome, and
rejected its position that the confidential nature of the
alleged agreement should preclude its disclosure to EDi,
given that the parties could easily enter into a stipulated
protective order in this case. Id., pp. 8-9.
now objects to Magistrate Judge Ritter's Order. First,
ESGG argues that Magistrate Judge Ritter incorrectly
calculated EDi's response deadline and that, because it
was filed one day late, ESGG's Motion to Quash should
have been granted regardless of its merit as a matter of this
Court's Local Rules. Doc. 126, p. 5. Next, ESGG
argues that it has standing to move to quash because it has a
privacy interest in the alleged settlement agreement.
Id., p. 7. ESGG then explains that its failure to
admit to the existence of the agreement was a matter of
technical truth; it knew which agreement EDi was referring to
but “could not” admit to its existence because
EDi did not name the correct agreement. Id., p. 8.
Alternatively, ESGG argues that EDi cannot burden non-parties
for discovery that should have been sought from ESGG, and
that EDi should not be able to receive from a non-party the
settlement agreement that Judge Ritter previously denied it.
Id., pp. 9-11. Finally, ESGG objects that the
subpoenas seek irrelevant discovery. Id. at 12.
Timeliness of EDi's Response to the Motion to
Court agrees with ESGG that it is technically right, insofar
as it appears that Magistrate Judge Ritter may have
miscalculated EDi's Response deadline, and that it was,
in fact, filed one day late under this Court's Local
Rules. See D.N.M.LR-Civ.7.4(a) (“A response
must be served and filed within fourteen (14) calendar days
after service of the motion…. These time periods are
computed in accordance with FED. R. CIV. P. 6(a) and
(d).”). It is also true that under this Court's
Local Rules “[t]he failure of a party to file and serve
a response in opposition to a motion within the time
prescribed for doing so constitutes consent to grant the
motion.” D.N.M.LR-Civ.7.1(b). As such, ESGG is
technically correct, Magistrate Judge Ritter could
have granted its Motion as a matter of procedure under this
Court's Local Rules.
the Court is not here dealing with a substantial delay, it is
dealing with a response brief that was filed one day
late. In such circumstances, the Court prefers to rule
on the merits of the Motion, and it does not fault Magistrate
Judge Ritter for turning to the Motion's substance rather
than dwelling on this procedural technicality. Moreover, the
Local Rules “may be waived by a Judge to avoid
injustice[, ]” D.N.M.LR-Civ.1.7, and the Court notes
that they should “be construed consistently with the
Federal Rules of Civil Procedure[, ]” D.N.M.LR-Civ.1.4,
which are to be “construed, administered, and employed
by the Court and the parties to secure the just, speedy, and
inexpensive determination of every action and
proceeding.” Fed.R.Civ.P. 1. When read together, the
Court is confident that these provisions support analysis of
the merits of ESGG's Motion rather than granting it a
technical win especially where, as here, the Court agrees its
Motion should be denied.