U.S. DISTRICT COURT-MIDDLE

ENVIRONMENTAL LAW

Gas Drilling • Water Contamination • Depositions

Fiorentino v. Cabot Oil & Gas Corp., PICS Case No. 12-0701 (M.D. Pa. March 20, 2012) Jones, J. (16 pages).

A special master appointed by the Middle District granted, without prejudice, a third party witness’s motion to quash a subpoena issued by plaintiffs Fiorentino and others because it was not served personally, and it was not served with the requisite mileage fee.

Plaintiffs sued defendants, asserting several claims based on alleged water contamination resulting from gas drilling around Dimock, Pa. Plaintiffs issued a subpoena to Maye, a neighbor who was not included among the plaintiffs, to obtain her appearance at a deposition.

Maye moved to quash the subpoena, because it was not personally delivered to her, it was served after the close of discovery, it was not served with the requisite mileage fee, and the purpose of the deposition is to harass her, rather than discover admissible evidence.

After noting it had extended the time for discovery and invalidated the plaintiffs’ first attempt to subpoena Maye on for invalid service, the special master granted Maye’s motion. However, it granted the motion without prejudice, suggesting that plaintiffs effectuate proper service, and that counsel for Maye and plaintiffs “promptly and professionally communicate” regarding service issues “to avoid wasting time and further resources.”

Moreover, the special master rejected Maye’s contention that the deposition had an improper purpose. According to plaintiffs, Maye’s property was allegedly included among properties involved in a Pennsylvania Department of Environmental Protection proceeding, and she accepted a “whole house gas treatment system” to mitigate her damages, which plaintiffs claim plays a role in the litigation. The special master concluded the proposed deposition met Fed.R.Civ.P. 26 because it sought non-privileged information that was relevant to the parties’ respective claims and defenses, and because Maye possessed information relevant to the subject matter of the litigation.

Maye also requested a protective order to limit discovery, because, she argued, she had a “tense relationship” with her plaintiff neighbors, the information sought was already available from defendants, and she had no expertise to opine on water quality.

The special master disagreed with Maye’s argument. It found no evidentiary basis to “pigeon hole” the deposition in advance, and observed that, under F.R.E. 701, Maye could “clearly” provide lay witness testimony on the quality of her water. It also pointed out that Fed.R.Civ.P. 26(c)(1) required Maye to certify she had conferred or attempted to confer in good faith with the parties before seeking a protective order, and Maye had yet to do so.

The special master ordered that, should plaintiffs properly serve Maye with a valid subpoena, counsel for Maye and plaintiffs will confer in good faith as to any possible limitations on the scope of her deposition, and “promptly report” whether an agreement can be reached. The special master agreed to attend Maye’s deposition if the parties cannot agree to reasonable limitations.