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Roosevelt Irrigation District v. Salt River Project Agricultural Improvement and Power District

United States District Court, D. Arizona

January 14, 2016

ROOSEVELT IRRIGATION DISTRICT, a political subdivision of the State of Arizona, Plaintiff,


Honorable Bruce G. Macdonald United States Magistrate Judge

Currently pending before the Court is Non-Party Errol L. Montgomery & Associates, Inc.’s Objection to Subpoena to Produce Documents, Information, or Objects or to Permit Inspection of Premises in a Civil Action Served by Roosevelt Irrigation District (Doc. 1125) and its supplement thereto (Doc. 1137) (collectively “Montgomery Objections”). Defendant Salt River Project Agricultural Improvement and Power District (“SRP”) filed its objection to the subpoena (Doc. 1120), as did Defendant Freescale Semiconductor, Inc. (“Freescale”) (Doc. 1126). Plaintiff Roosevelt Irrigation District (“RID”) filed its Response to the Montgomery Objections (Doc. 1146), and the Court heard oral argument on December 17, 2015. Minute Entry 12/17/2015 (Doc. 1151).


A. The 2009 Contract

In March 2009, Montgomery and RID, as well as RID’s counsel Gallagher & Kennedy (“G & K”), entered into a contract through which Montgomery was to serve RID and G & K as a technical consultant to implement RID’s response strategy. Montgomery’s Suppl. to Obj. (Doc. 1137), Consulting Services Agreement (Exh. “2”). “The main purpose of the response strategy [was] to systematically characterize the impact of groundwater contamination on the RID well field, distribution system, and water use and determine a plan to optimize water use to RID’s benefit as part of the area-wide cleanup.” Id., Exh. “2, ” Prelim. Scope of Services (Exh. “A”) at 16. “The second phase [was to] consist of a detailed evaluation of all RID wells, control system, distribution system, water demands, and area-wide groundwater data to develop a PRAP to optimize RID pumping and water use for containment of the groundwater containment plume in the West Van Buren WQARF Site and OU-3 CERCLA Site.” Id., Exh. “2, ” Exh. “A” at 17. At the time Montgomery and RID entered into the 2009 agreement, Montgomery disclosed to RID that it had pre-existing client relationships with Salt River Project, Arizona Public Service Corporation, Honeywell, and Motorola. Id., Exh. “2, ” Exh. “A-1.” Each of these entities is now a defendant in the current lawsuit, with the exception of Motorola who is indemnified by Freescale Semiconductor.

B. Montgomery’s Relationship to Synergy

Dennis Shirley was Montgomery’s Project Manager at the time that the March 2009 contract between Montgomery, RID, and G & K was made. In January 2010, Mr. Shirley left Montgomery and formed Synergy, a new hydrogeologic consulting firm. The hydrogeologic representation of RID moved with Mr. Shirley to Synergy. In 2011, Montgomery entered into a contract with Synergy to provide a groundwater model as part of the feasibility study. It is undisputed that the groundwater model Montgomery was contracted to develop was not a contaminate fate-and-transport model. Rather, the model was limited to attempting to quantify changes in the characteristics of the plume if RID altered the pumping volumes at a limited number of wells.

C. Discovery from Montgomery in the Current Litigation

During the course of this litigation, Defendant City of Phoenix issued a subpoena for documents from Montgomery. As a result, Montgomery spent approximately $22, 000.00 and in April 2015 produced its entire file from January 1, 2010 onward, providing it initially to Synergy, who in turn gave the file to Plaintiff RID’s counsel for review. After review, Plaintiff RID’s counsel disclosed those documents that were not confidential or privileged. A subsequent disclosure was made which apparently encompassed primarily e-mails.

Plaintiff RID’s current subpoena seeks additional documents from Montgomery related to its relationships with certain defendants in this case. Plaintiff RID has modified and limited the breadth of documents sought since the initial service of the subpoena on Montgomery. See Pl. RID’s Response (Doc. 1146), Hanson Decl. (Exh. “A”), Exh. “3.”


Non-party Montgomery seeks an order from this Court quashing Plaintiff RID’s subpoena for documents. As an initial matter, Montgomery claims that the requested discovery is not relevant. Montgomery further asserts that even if the requested documents were relevant, Plaintiff’s request is not proportional to the needs of this litigation and poses an undue burden on it as a non-party.

“Parties may obtain discovery regarding any nonprivileged matter that is relevant to any party’s claim or defense and proportional to the needs of the case, considering the issues at stake in the action, the amount in controversy, the parties’ relative access to relevant information, the parties’ resources, the importance of the discovery in resolving the issues, and whether the burden or expense of the proposed discovery outweighs its likely benefit.” Fed.R.Civ.P. 26(b)(1). “On timely motion, the court for the district court where compliance is required must quash or modify a subpoena that: (i) fails to allow a reasonable time to comply; (ii) requires a person to comply beyond the geographical limits specified in Rule 45(c); (iii) requires disclosure of privileged or other protected matter, if no exception or waiver applies; or (iv) subjects a person to undue burden.” Fed.R.Civ.P. 45(d)(3)(A). Although Rule 26(b)(1) allows for broad discovery, a litigant’s right to that discovery is not unlimited. “District courts need not condone the ...

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