Opinion
EHB 2020-014-R
04-19-2022
RANGE RESOURCES - APPALACHIA, LLC v. COMMONWEALTH OF PENNSYLVANIA, DEPARTMENT OF ENVIRONMENTAL PROTECTION
For the Commonwealth of PA, DEP: Michael A. Braymer, Esquire, Douglas G. Moorhead, Esquire, Kayla A. Despenes, Esquire Angela N. Erde, Esquire Dearald Shuffstall, Esquire (via electronic filing system) For Appellant: Kimberly A. Brown, Esquire Benjamin T. Verney, Esquire Leon DeJulius, Esquire Roy A. Powell, Esquire (via electronic filing system)
For the Commonwealth of PA, DEP: Michael A. Braymer, Esquire, Douglas G. Moorhead, Esquire, Kayla A. Despenes, Esquire Angela N. Erde, Esquire Dearald Shuffstall, Esquire (via electronic filing system)
For Appellant: Kimberly A. Brown, Esquire Benjamin T. Verney, Esquire Leon DeJulius, Esquire Roy A. Powell, Esquire (via electronic filing system)
OPINION AND ORDER ON DEPARTMENT'S MOTION IN LIMINE TO EXCLUDE IRRELEVANT AND/OR PREVIOUSLY UNIDENTIFIED FACT WITNESSES
THOMAS W. RENWAND, CHIEF JUDGE.
Synopsis
The Board grants the Department's Motion in Limine. Range failed to comply with the witness disclosure requirements of the Pennsylvania Rules of Civil Procedure. When asked in discovery to identify the fact witnesses it expects to call at a hearing, the answering party is required to answer the interrogatory in good faith. When this information is requested in discovery, it is not acceptable for a party to wait until the filing of its Prehearing Memorandum to list for the first time witnesses that it may call at the hearing.
OPINION
Introduction
This matter involves an appeal filed by Range Resources - Appalachia, LLC (Range) challenging an order issued by the Pennsylvania Department of Environmental Protection (Department) contending that natural gas leaked from Range's Harman - Lewis Unit 1H gas well and affected ground water and surface water in Lycoming County, Pennsylvania. The order directs Range to take a number of actions, including the restoration and replacement of affected water supplies, investigation of the migration of natural gas from the gas well, and submission of a remedial investigation plan and well plugging plan. A hearing has been scheduled in this matter from May 2, 2022 through June 3, 2022 before the Pennsylvania Environmental Hearing Board (Board). Range has filed nine motions in limine, and the Department has filed one.
This Opinion addresses the Department's Motion in Limine to Exclude fact witnesses.Range has filed a response in opposition to the motion. Both parties have filed supporting Memoranda of Law.
Range filed motions in limine seeking to exclude fact and opinion testimony by the Department's expert witnesses. Those motions have been addressed in two Opinions issued by the Board at Range Resources - Appalachia, LLC v. DEP, EHB Docket No. 2020-014-R (Opinion and Order on Range's Motion in Limine to Exclude Fact Testimony from Non-Produced Witnesses issued March 17, 2022) and Range Resources - Appalachia, LLC v. DEP, EHB Docket No. 2020-014-R (Opinion and Order on Range's Motions in Limine to Exclude Testimony and Opinions of the Department's Expert Witnesses issued March 18, 2022). Range also sought to exclude all sampling results and data of the Department. That motion was addressed at Range Resources - Appalachia, LLC v. DEP, EHB Docket No. 2020-014-R (Opinion and Order on Range's Motion in Limine to Exclude All Sampling Results and Data issued March 25, 2022). Finally, Range sought to preclude facts and issues not raised in the Department's prehearing memorandum. That motion was addressed at Range Resources - Appalachia, LLC v. DEP, EHB Docket No. 2020-014-R (Opinion and Order on Range's Motion in Limine to Preclude Facts and Issues Not Raised in the Department's Prehearing Memorandum issued April 18, 2022).
Motion in Limine
A motion in limine is the proper vehicle for addressing evidentiary matters in advance of trial. The Delaware Riverkeeper Network v. DEP, 2016 EHB 159, 161. The purpose of a motion in limine is to provide the Board an opportunity to consider potentially prejudicial and harmful evidence and preclude such evidence before it is referenced or offered at trial. Commonwealth of Pennsylvania v. Padilla, 923 A.2d 1189, 1194 (Pa. Super. 2007) (cited in Kiskadden v. DEP and Range Resources - Appalachia, LLC, 2014 EHB 634, 635). See also Angela Cres Trust v. DEP, 2007 EHB 595, 596 and RESCUE Wyoming v. DER, 1994 EHB 1324, 1325-26. Motions in limine are better suited to address specific and narrow evidentiary matters that focus on particular exhibits or testimony. See Dauphin Meadows, Inc. v. DEP, 2002 EHB 235, 237 ("One clue to determining whether a motion [in limine] is properly limited is whether it cites to specific pieces of evidence and asks that they be excluded.")
Discussion
The Department seeks to preclude four fact witnesses that Range listed in its Prehearing Memorandum. These individuals are Mr. Travis Bennett (Vice President, former Operations Manager, Moody and Associates, Inc.); Mr. Barry Hill (Hill Well Drilling); Mr. Bryan Luden (Representative Tri-County Water, Inc.): and Mr. William Shaner (Local Resident) (Four Fact Witnesses). The Department served Range with its First Set of Interrogatories not quite two years ago on May 7, 2020. Range timely served its answers and objections to the Department's Interrogatories on June 8, 2020.
In response to the Department's first interrogatory requesting the identity of "any and all persons who have knowledge concerning the matters set forth by Range," Range filed numerous objections but did provide the Department with the identity of various individuals. It incorporated the Department's answers identifying individuals filed in response to Range's interrogatories and then specifically listed forty individuals. Except for approximately four individuals in this listing all were current or former employees of Range.
The third interrogatory requested Range to identify any and all persons known to have any knowledge concerning the Department's 2020 Order that Range appealed. Range raised numerous objections and then incorporated its answer to the first interrogatory.
The fifth interrogatory sought the "identity of all fact witnesses that Range expects to or may call at the hearing…." The fifth interrogatory requested further information regarding each witness such as their knowledge of the facts in the matter. Range did not identify a single fact witness. It filed the following answer:
In addition to its General Objections, which are specifically incorporated by reference, Range objects to this Interrogatory on the grounds that it is premature and that the Department, the party with the burden of proof, has failed to identify any fact witnesses it intends to call at trial. Range further objects to this Interrogatory as it seeks information that is protected by the attorney-client privilege and work-product doctrine. Range also objects to this Interrogatory on the grounds that it seeks the knowledge of witnesses, which is more appropriately obtained in depositions. Subject to, and without waiving its foregoing objections, Range has not determined which fact witnesses it will call at trial.(Exhibit A to Department's Motion to Exclude.)
Range never supplemented its answers to interrogatories 1, 3, and 5. When Range filed its Prehearing Memorandum on December 8, 2021 it specifically listed the Four Fact Witnesses for the first time. Following the filing of its Prehearing Memorandum the Department contacted Range and asked for an offer of proof for the Four Fact Witnesses. Range refused the Department's request.
The Department then filed its Motion to Exclude the Four Fact Witnesses from testifying based on "Range's failure to identify the Fact Witnesses in discovery and Range's refusal to provide any offers of proof" in response to the Department's request. (Paragraph 18, Department's Motion to Exclude.) The Department contends that it has no knowledge of the subject matter or substance of the Four Fact Witnesses' testimony and that it would be prejudiced if they were permitted to testify at the hearing.
Range contends that its discovery responses are accurate and complete. It further contends that it identified the companies or organizations employing some of the Four Fact Witnesses and their names appear in some of the voluminous documents produced in the case. Therefore, Range contends that the Department should have been aware of these individuals. In addition, Range argues that if the Department was not satisfied with Range's discovery responses it should have filed a Motion to Compel.
The question presented is the following: Where Range failed to specifically identify four fact witnesses in response to at least three Interrogatories, and filed no supplemental answers identifying such witnesses, should they be precluded from testifying at the hearing when they were first identified in Range's Prehearing Memorandum?
The Board's case law details a long history of providing a full, fair, and vigorous discovery process. Underlying this discovery process, and one that we have emphasized and explained on numerous occasions, is the requirement that parties must fully respond to discovery requests that seek discoverable information. Indeed, we would be hard pressed to excuse a party from identifying factual witnesses in a case when that information is requested in discovery. Pa. R.C.P. No. 4003.1(a). As the Department argues, and we agree, an interrogatory seeking the names of fact witnesses is the most basic and fundamental interrogatory a party can expect to receive in a case before the Board. Maybe even more important is an interrogatory asking a party to identify those witnesses a party "intends or may call" to testify at the hearing. As we have stated before and we will repeat here, some of the purposes of discovery are so both sides can gather information and evidence, plan trial strategy, and discover the strengths and weaknesses of their respective positions. PDG Land Development, Inc. v. DEP & Citizens for Pennsylvania's Future, 2008 EHB 254, 256. Full disclosure of a party's case underlies the discovery process. Cecil Township Municipal Authority v. DEP, 2010 EHB 551, 552. As Judge Miller stated in Richmond Township v. DEP & Grande Land, L.P., 2008 EHB 262, 264, "the integrity of the discovery process is integral to the proper functioning of the Board."
Parties are entitled to discover the identity of fact witnesses including those that a party intends to call or may call at the hearing of the matter before the Board. A long list of Board cases affirms this principle: See, e.g., McGinnis v. DEP, 2010 EHB 489, 493-94 (Board struck fact witnesses not identified until Appellants' prehearing memorandum); American Iron Oxide Co. v. DEP, 2005 EHB 779, 784 ("One of the purposes of discovery is so that witnesses can be identified.")
The Board's 2016 decision in DEP v. EQT Production Company, 2016 EHB 489, is most instructive. EQT served interrogatories on the Department in which it requested the identity of all persons with knowledge of the facts alleged in the Department's Complaint; it further requested the names of all witnesses the Department expected to call at the hearing and the subject matter on which they would testify. The Department listed sixty people but omitted one fact witness that it identified when it filed its Prehearing Memorandum.
The Board found that "[t]here is no question that the Department was obligated to identify Brown [the fact witness] in response to EQT's interrogatories as a person possessing relevant knowledge who will testify at the hearing." 2016 EHB at 492 (citing McGinnis v. DEP, 2010 EHB at 493-94; Rhodes v. DEP, 2009 EHB 237, 244). Most importantly, the Board went on to hold:
There is also no question that the Department had an obligation to timely supplement its response to EQT's interrogatories to add Brown in the event he was not known when the Department first responded in May 2015. While it may be difficult to foresee everyone who will be called to testify when interrogatories are served early in the discovery process, it does not excuse the obligation to promptly identify persons when they become known. Including new information in one's prehearing memorandum is not a proper way to supplement discovery responses. Envtl. & Recycling Servs., Inc. v. DEP, 2001 EHB 824, 829. The Department's supplemental response on July 1, 2016 [three weeks after filing its Prehearing Memorandum] was not seasonable.2016 EHB at 492.
In its Memorandum of Law in Opposition to the Motion in Limine, Range advised the Board:
Indeed, the Department itself objected to Range's interrogatory that sought a list of the Department's anticipated fact witnesses, explaining that the Department had "not yet determined who it will call at the hearing," and stated that "[a] list of witnesses that the Department intends to call will be provided in the Department's Pre-Hearing Memorandum in accordance with 25 Pa. Code Section 1021.104." Ex. C, Department Response to Range Interrogatory 53. The Department maintained that objection through its supplemental Responses to Range's interrogatories. The Department thus cannot complain that Range's response to this interrogatory was improper when it asserted the same objection.(Range's Memorandum of Law, page 6, footnote 2) (emphasis by Board).
The Department served its Answers to Range's first set of interrogatories on April 24, 2020. Three weeks later, on May 14, 2020, approximately three weeks before Range served its Answers to the Department's first set of Interrogatories, the Department served Supplemental Responses to Range's first set of Interrogatories, including Interrogatory 53. Although the Department "incorporated its objections and responses to this interrogatory provided on April 24, 2020," it supplemented its original answer in a substantive and meaningful way. First, it incorporated its response to Range's first interrogatory where it specifically identified numerous individuals. It then identified fourteen current Department employees, five former Department employees, and seventeen current or former Range employees who it might call as trial witnesses.
In comparison, Range never supplemented its answers. It listed no fact witnesses it intended to call at the hearing until it filed its Prehearing Memorandum. The Department claims prejudice and we agree. The Four Fact Witnesses should have been specifically identified during discovery. We also agree with the Department that they were not aware that Range had not identified all its fact witnesses until it filed its Prehearing Memorandum. Therefore, they had no reason to believe that they needed to file a Motion to Compel in discovery.
A party should not have to take its attention and resources away from preparing for the hearing because the opposing party has failed to adequately disclose and list its fact witnesses when specifically asked. Although it may be difficult to provide a complete list early in discovery, the interrogatories requesting this information were not served until the fourth month of discovery (normally discovery is for a six-month period but may be longer as it was in this case). A party is under a duty to answer interrogatories requesting the identity of fact witnesses and those fact witnesses it intends to call or may call at hearing. It is also under a duty to supplement its answers if it becomes aware of additional fact witnesses. Waiting until the filing of its Prehearing Memorandum to identify these fact witnesses is waiting too long in most cases.
ORDER
AND NOW, this 19th day of April, 2022, following review of the Department's Motion in Limine to Exclude Four Fact Witnesses (Motion to Exclude), Range's Response, and the supporting Memoranda of Law, it is ordered as follows:
1) The Motion to Exclude is granted.
2) Those individuals named in the Department's Motion will not testify at the hearing.