Opinion
Civil Action No. 02-1628 c/w 02-1629
March 28, 2003
HEARING ON MOTION
MOTION: BELLSOUTH'S MOTION FOR PROTECTIVE ORDER AND TO MODIFY DEPOSITION SUBPOENA (Rec. doc. 13)
GRANTED IN PART AND DENIED IN PART
Before the undersigned is the motion of BellSouth Telecommunications, Inc. ("BellSouth") for protective order and to modify deposition subpoena. On May 1, 2002, Williams Land Company, L.L.C. ("Williams"), filed suit against BellSouth in state court. BellSouth removed this petition to federal court. Rec. doc. 1 in C.A. No. 02-1628. On May 1, 2002, Rathborne Land Company, L.L.C. ("Rathborne"), filed suit against BellSouth in state court. BellSouth removed Rathborne's petition to federal court. Rec. doc. 1 in C.A. No. 02-1629. On September 30, 2002, the actions were consolidated. Rec. doc. 9.
Williams seeks a permanent injunction and damages arising out of the installation of cables and fiber optic lines on its lands. Williams alleges that it is the owner of lands lying in Tangipahoa Parish, Louisiana. Williams acknowledges that it granted rights of way for highway purposes to the State of Louisiana but did not grant BellSouth authority to install cables and lines on its lands. Williams alleges that BellSouth was notified of the alleged unlawful trespass but BellSouth refused to respond. Williams alleges that because of BellSouth's "unlawful and continuing trespass" it is entitled to an injunction requiring the removal of the cables and lines, the restoration of its property and damages for the unlawful entry, use and disturbance of its property. Attachment to Rec. doc. 1 in C.A. No. 02-1628. Rathborne makes similar allegations. Attachment to Rec. doc. 1 in C.A. No. 02-1269. Neither Williams nor Rathborne allege fraud or bad faith trespass in their original petitions.
BellSouth raised affirmative defenses, denied Williams' allegations and asserted a counterclaim. BellSouth alleges Williams should have been aware of its equipment because the equipment was in place for more than ten years and was well marked throughout the entire period. BellSouth alleges that its equipment is located totally within the right of way for the highway and the Louisiana Department of Transportation Development ("DOTD") granted BellSouth a permit for placement of the cables and lines. BellSouth alleges it is enhancing the equipment to provide telecommunication service. BellSouth seeks: (1) a declaration that it acquired a servitude that permits it to install additional cables; (2) if it has not acquired a servitude it seeks to expropriate a five foot wide strip along Williams' property. Rec. doc. 3 in C.A. No. 02-1628. BellSouth filed a similar pleading in C.A. No. 02-1269.
Williams filed a first supplement to its petition and alleges that, since the filing of the original petition, BellSouth placed additional cables on its property without its consent. Williams alleges that BellSouth's action constitutes bad faith and malicious trespass. Rec. doc. 12. Rathborne did not file a supplemental petition.
Williams and Rathborne served a notice of deposition on BellSouth, pursuant to Fed.R.Civ.P. 30(b)(6). The notice designates fourteen matters on which examination is sought and makes three requests for production of documents. Exhibit A to Rec. doc. 14. BellSouth's motion for protective order seeks to be relieved from responding to matter nos. 4, 7, 9, 11 and 13 and the three requests for production. Rec. doc. 14. BellSouth contends that these relate to: (1) the profits it derived from the cables and lines; and (2) its actions on land in which Williams and Rathborne have no interest. BellSouth contends that, even assuming all of its claims and defenses are rejected and plaintiffs fully prevail, the plaintiffs cannot recover BellSouth's profits as damages. This is incorrect. In Corbello v. Iowa Production, 806 So.2d 32 (La.App. 3rd Cir. 2001), reversed in part; remanded in part; otherwise affirmed ___ 2d ___, 2003 WL 536727 (La.), Shell Oil Company obtained a surface lease in 1961 and built an oil terminal on a five acre parcel within the leased acreage which it operated until March 1993. The surface lease expired on May 10, 1991. There were negotiations between Shell and the landowner concerning Shell's continued occupancy. Finally, in May, 1992, the landowner filed suit to recover damages for trespass on the leased premises after expiration of Shell's lease. At the trial the landowner presented evidence of Shell's profits from its operations of the oil terminal after the lease expired. Shell presented evidence of the annual rental value of the property. No other evidence was presented. The jury accepted the landowner's evidence and awarded $927,000. On appeal the landowner argued this award should be affirmed because it was entitled to the profits earned by Shell while it remained on the property without a lease. The court of appeal concluded that the jury's award could only be sustained if Shell was a bad faith possessor and found that Shell was a good faith possessor until it was named as a defendant in the landowner's suit. It held:
For the period of time that Shell possessed in bad faith, Plaintiff's damages are Shell's profits from its operations on the premises. While the record contains documentation concerning Shell's earnings and expenses after the termination of the lease until it exited the premises, we are unable to calculate, with the required exactness, its net profit for that period. For these reasons, this issue is remanded to the trial court for further proceedings in accordance with this opinion.
806 So.2d at 39 (emphasis added). This issue was among the issues that Shell appealed to the Louisiana Supreme Court, which held:
We do not find that the court of appeal erred in relying on Rosenthal in deciding that plaintiffs are entitled to profits earned by Shell during the time Shell remained on the property in bad faith, without a lease and over the objection of plaintiffs.
Rosenthal-Brown Fur Co. v. Jones-Frere Fur Co., 110 So. 630 (La. 1926).
2003 WL 536727, *20. Contrary to BellSouth's argument, the damages owed a plaintiff for a bad faith trespass are the profits from the trespasser's operations on the premises. Williams has alleged bad faith trespass on the part of BellSouth since the filing of its original petition on May 1, 2002. At least for the alleged period of bad faith trespass, May 1, 2002 to the present, Williams is entitled to discovery of BellSouth's profits from its operations on Williams' land.
Pursuant to Fed.R.Civ.P. 26(b)(1), the plaintiffs are entitled to discover information that is relevant to the claim or defense of any party. The information that the plaintiffs seek on properties in which the plaintiffs have no interest is not discoverable. BellSouth's motion for a protective order will be granted as to areas of examination nos. 7 and 11. For the period since the filing of Williams' petition, May 1, 2002, through the present, the information regarding BellSouth's profits is discoverable. BellSouth's motion a protective order will be denied as to areas of examination nos. 4, 9 and 13 and document request nos. 1, 2 and 3 for the period since May 1, 2002.
IT IS ORDERED that BellSouth's motion for a protective order (Rec. doc. 13) is GRANTED IN PART AND DENTED IN PART in accord with the terms of this minute entry. BellSouth shall respond to the plaintiffs' discovery within twenty-one (21) calendar days of the entry of this order. In the event of an appeal by BellSouth, the order shall be stayed until the resolution of the appeal.