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IN THE DISTRICT COURT OF WOODWARD COUNTY
STATE OF OKLAHOMA
DOUBLE D RANCH OF WOODWARD, INC.,
Plaintiff,
vs, Case No. CJ-2020-73
DCP MIDSTREAM, LLC,
DCP MIDSTREAM, LP,
DCP MIDSTREAM GP, LLC,
DCP MIDSTREAM GP, LP,
)
)
)
)
) Judge Jill C. Weedon
)
DCP OPERATING COMPANY, LP, )
)
)
)
)
)
)
)
)
)
DANIEL DICK,
LACEY HENRICKS,
GHD SERVICES INC.,
GREG SCHEFFE,
KYLE GREGORY,
GREG BARTON,
J&R TRANSPORT, INC.,
WOODWERD COUNTY,
i
rediek
BY. DEPUTY
Defendants.
DEFENDANT GHD SERVICES, INC.’S REPLY IN SUPPORT OF MOTION TO
COMPEL PROPER RESPONSES AND DOCUMENT PRODUCTION IN RESPONSE
TO ITS FIRST REQUESTS FOR ADMISSIONS, INTERROGATORIES
AND REQUESTS FOR PRODUCTION OF DOCUMENTS TO PLAINTIFF
Defendant, GHD Services, Inc., (“GHD”), hereby submits its Reply to Plaintiffs Response
to its Motion to Compel Proper Responses and Document Production in Response to its First
Requests for Admissions, Interrogatories and Requests for Production of Documents to Plaintiff
(the ‘Motion to Compel”). In further support of its Motion to Compel, GHD will show the Court:
I. DEFICIENT RESPONSES TO GHD’S REQUESTS FOR ADMISSION
In defending its responses to the subject Requests for Admission, Plaintiff's Response
employs a rather transparent play on words in an effort to avoid responding to GHD’s clear and
unambiguous inquiry to discover whether Plaintiff has any factual basis to the claim that Separate
Defendant GHD committed any fraudulent act.
868-001_GHD's First Mot to Compel- Reply Page | of 7Plaintiff's play on words revolves around the word — “clean.” Plaintiff's definition of
“clean” means cleaned up to background levels of constituents; whereas, the clean-up standards
GHD was hired to use in its initial assessment are defined by the Oklahoma Corporation
Commission (“OCC”), and_do not require reaching background concentrations. The subject
Requests for Admissions seek for Plaintiff to admit that that GHD never represented to Plaintiff
that the leak site was “clean,” i¢., that it had been restored to background conditions. In its
Response, Plaintiff submits that GHD did in fact represent that the leak site was “clean” by virtue
of its Report submitted to the OCC. This is patently false. It was never GHD’s charge to sample
the leak site to determine whether DCP’s remedial efforts had restored the site to background
conditions, or in Plaintiff's words, “clean.” GHD was hired to, and in fact did, sample the leak
site after DCP’s excavation to determine whether constituents remain in excess of OCC clean-up
standards. GHD’s Report at Page 5, [Pl. Ex. 1 at Double D 000018] states:
Laboratory analysis of the confirmation samples collected subsequent to extensive
excavation activities and pumping accumulated water did not indicate the presence
of any chemical concentrations remaining that exceeded the Category II screening
levels. The clean-up as implemented meets or exceeds the Category II clean-up
requirements of the OCC Guardian Guidance Document Category Cleanup Table.
In fact, none of the sample analytical results exceed the most stringent Category I
clean-up standards.
Plaintiff acknowledges that this was GHD’s only representation as to the post-excavation
condition of the leak site.! Clearly, GHD did not state in its Report that the site was “clean;” rather,
it reported in both the narrative and the analytical reports that Plaintiff chose to omit from the
! Plaintiff represents to the Court on Pages 2 — 3 of its Response that GHD’s designated
representative testified “that the site had been clean up;” however, the cited testimony from GHD’s witness,
Mr. Scheffe, merely refers to the language of the Report, which does not represent that the site was “clean,”
but rather, that the sample analysis met OCC’s Guardian Standards.
Furthermore, GHD’s Responses to Plaintiffs Request for Admission Nos. 1 through 3 do not admit
that the leak site was “clean” as Plaintiff represents.
868-001_GHD's First Mot to Compel- Reply Page 2 of 7Exhibit, that some samples detected the presence of some hydrocarbon constituents, but that the
levels detected were below the OCC’s clean-up standards.
GHD propounded the subject Requests for Admissions because Plaintiff alleges that GHD
wrongfully represented to Plaintiff that the site was “clean” when the record evidence shows that
GHD only represented that the site met the OCC’s clean-up standards. GHD is entitled to a straight
answer from Plaintiff so GHD can know whether it is accused of committing fraud by its own
conduct, or for the imputed conduct of an alleged co-conspirator. Y
Lastly, just as Plaintiff did in its responses to the subject Requests for Admission, it cites
to statements and testimony from DCP regarding its own purported statements to Plaintiff
regarding the conditions at the leak site. As discussed in the Motion to Compel, whether Plaintiff
may be able to impute any alleged wrongful conduct on the part of DCP to GHD is a question for
a later stage of these proceedings. It does not excuse Plaintiff from answering direct questions as
to the existence of any facts to support that Separate Defendant, GHD committed any fraudulent
act, and accordingly, GHD requests the Court sustain its Motion to Compel proper responses to its
Requests for Admission.
I. PLAINTIFF’S DEFICIENT RESPONSES TO GHD’S REQUESTS FOR
PRODUCTION OF DOCUMENTS
1. Request No. 12?
Contrary to Plaintiffs opening proposition, GHD’s Motion to Compel the sampling data
from Plaintiff's property is far from moot. As the Court may recall from the hearing on September
27, 2021, there was a discussion over Defendants’ concern that Plaintiff had not produced the
2 This Request was erroneously referenced as Request No. 11 in the attached correspondence, but
the context of both counsel’s comments is clear that they both understood that they were discussing
documents associated with environmental sampling, which is the subject of GHD’s Request for Production
No. 12.
868-001_GHD's First Mot to Compel- Reply Page 3 of 7results of its environmental sampling on the property. The Court commented that it did not want
the parties to sit on any data, and that data should be exchanged promptly as time was of the
essence. Plaintiffs counsel responded by stating that they would produce its sampling
documentation forthwith. Plaintiff thereafter produced part of the sampling documentation, but
flatly refused to produce the remaining documentation for the Jerry Black sampling until the time
for expert disclosures, and flatly refused to produce the remaining sampling documentation under
an unsubstantiated claim of work product protection. Plaintiff did not produce the remaining
discoverable documents from the Jerry Black sampling until February 2, 2022, some 130 days
after the Court instructed the documents to be produced, and 5 days after GHD filed its Motion to
Compel. See Plaintiff's e-mail transmittal attached hereto as Ex. “12.” Plaintiff continues to
withhold additional documentation associated with sampling conducted by a purported consultant,
and refuses to produce a Privilege Log to support its claim of work product protection.
Plaintiff's Response fails to overcome the wealth of caselaw that holds that environmental
sampling results are raw factual material, which is discoverable regardless of its source. Mot. at
11-13. Plaintiffs refusal to provide a Privilege Log to support its claim is inexplicable, and its
claim that it is not required to submit a Log to support its decision to withhold the documents is
unsupported by authority.
Furthermore, Plaintiff elected not to address GHD’s proposition that even should the
sampling data qualify as ordinary work product, GHD has satisfied the exception under 12 O.S §
3226(B)(3)(a) based on its substantial need for the materials to prepare its defense coupled with
its inability to replicate the samples.> Mot. to Compel at 13 — 16. Notwithstanding that
; In this regard, Plaintiff's reliance on Meritor, Inc. v. State ex rel. Bd. of Regents of Univ. of Okla.,
2019 OK CIV APP 64, is misplaced. This case illustrates why the discoverability of ordinary work product
requires a case-by-case analysis. Merifor is distinguishable from the case at bar because the substantial
868-001_GHD's First Mot to Compel- Reply Page 4 of 7environmental samples often cannot be replicated, GHD does not even know where the samples
were taken or what was sampled. Plaintiff contends that the withheld samples were not taken from
the leak site suggesting that they are not relevant or useful to GHD. These samples may well be
very relevant. Plaintiff has criticized GHD for not taking background samples as part of its
investigation. See Depo. of G. Scheffe at 83:4 — 84:24, attached as Ex. “13.” Background samples
would be samples collected away from the location of the pipeline leak in an effort show the
uncontaminated condition. Plaintiff describes its withheld samples as collected away from the
leak site to show the “overall character of the land,” including a sample from a pond on the
property, Resp. at 6. If Plaintiff's withheld samples show background levels of constituents or
are probative on the question of such background levels, they are material to the defense, and
therefore, they should be produced.
2. Request No. 17.
Plaintiff responds to GHD’s Motion to Compel proper Initial Disclosures by asserting that
because it is seeking a mandatory injunction for cleanup, not damages for cleanup, it is not required
to provide an Initial Disclosure of its alleged damages. If Plaintiff is stipulating that it is not
seeking damages against the GHD Defendants, GHD accepts its position. Otherwise, Plaintiff is
still required to serve Initial Disclosures that comply with 12 O.S. §3226(A)(2)(a), and in such
case, GHD requests the Court order Plaintiff to do so.
Il. CONCLUSION
For the reasons set forth in its Motion to Compel and above, GHD respectfully requests the
Court sustain its Motion to Compel and Order Plaintiff to comply with its discovery obligations
by supplementing its discovery responses and document production.
need exception was not raised by the plaintiff, and it knew where the subject water well samples had been
collected,
868-001_GIID's First Mot to Compel- Reply Page 5 of 7Respectfully submitted,
McDaniel ACorRD, PLLC
By: .
A. Scott McDaniel, OBA #16460 (smedaniel@ok-counsel.com)
Melissa A. East, OBA #21695 (meast@ok-counsel.com)
9343 East 95" Court
Tulsa, Oklahoma 74133
Telephone: (918) 382-9200
Facsimile: (918) 382-9282
ATTORNEYS FOR DEFENDANTS, GHD SERVICES INC.,
GREG SCHEFFE, KYLE GREGORY AND GREG BARTON
868-001_GHD's First Mot to Compel- Reply Page 6 of 7CERTIFICATE OF SERVICE
I certify that on the 25th day of February, 2022, | e-mailed a true and accurate copy of the
foregoing document to the following:
Allan DeVore allan@devorelawok.com
Jandra Cox jandra@devorelawok.com
DeVore Law Firm, PLC
5709 N.W. 132" Street
Oklahoma City, OK 73142
And
Zachary J. Foster zfoster@mahaffeygore.com
Mahaffey & Gore, P.C.
300 N.E. 1 Street
Oklahoma City, OK 73104
And
Trae Gray tg@landownerfirm.com
Ryan Gray mail@landownerfirm.com
Matthew Irby
LandownerFirm, PLLC
37500 State Hwy 31
Coalgate, OK 74538
Attorneys for Plaintiff
W. Michael Hill wmhill@secresthill.com
Justin L. Hall jhall@secresthill.com
Secrest, Hill, Butler & Secrest
7134 South Yale, Suite 900
Tulsa, OK 74136
and
Richard A. Bruce
richard. bruce@zurichna.com
The Law Office of William Archibald
1299 Zurich Way, Suite 360
Schaumburg, IL 60196
Attorney for Defendant J&R Transport,
Inc.
John H. Tucker jhtucker@rhodesokla.com
Dan S. Folluo dfolluo@rhodesokla.com
Theresa N. Hill thill@rhodesokla.com
Lindsey E. Albers, lalbers@rhodesokla.com
Rhodes, Hieronymus, Jones, Tucker & Gable,
PLLC
P.O. Box 21100
Tulsa, OK 74121-1100
Attorney for DCP Defendants, and for
Defendants Lacey Henricks and Daniel
Dick
A dub WAS
868-001_GHD's First Mot to Compel- Reply
Page 7 of 7From:
Subject: Double D Ranch of Woodward, Inc. v. DCP, et al., CJ-2020-73 (Woodward County, OK)
Date: Friday, February 4, 2022 5:52:16 PM
Attachments: Double D 000921-Double D 001064,nd¢
Double D 001065-Double D-001066.ndf
Double D.001067-Double D 001069.nd¢
Double D001070-Double D 001072.pdt
Double D 001073-Double D 001076.ndt
Double D 001077-Double D 001092.ndt
Theresa:
Good afternoon. See attached.
Per our discussions, attached here are all discoverable laboratory test results, chain of custody
documents for the same, and all QAQC documents that Double D has received to date. While Double D
maintains its objection and asserts that its initial production of the laboratory test data is all the Court
required Double D to produce, Double D does not wish to spend attorney fees litigating whether the COC.
and QAQC documents should also be produced. For that reason, Double D is providing the full packet
with the items discussed in our previous telephone calls. By producing these materials, Double D does
not waive its rights to protect Jerry Black's file from disclosure until Double D must produce it under the
Court's current scheduling order.
The only other laboratory test results in Double D’s possession are those from the non-testifying
consultant expert witness hired by Trae Gray on behalf of Double D. Double D asserts and lodges all
privileges related to that file; Double D is not producing that information unless ordered to do so by the
Court.
This supplemental document production includes the letter agreement between Double D and Black
Hereford Ranch, lease payments from Black Hereford Ranch to Double D, and PID meter documents.
Next week, we will produce Eric Coleman’s native document production. We are searching for a method
to bates-stamp these documents while maintaining access to the metadata. The office is closed because
of the weather, and | don’t have access to all the firm's technological capabilities from my kitchen counter.
Thanks.
Zachary J. “Zac” Foster
Mauarrey & Gore, P.C.
300 N.E. 1st Street
Oklahoma City, Oklahoma 73104 - 4004
Telephone: (405) 236 — 0478; Ext. 106
Direct: (405) 601-9717
Cell: (405) 808 — 0666
Facsimile: (405) 236 — 1520
zfoster@mahaffeygore,com
EXHIBIT 12CONFIDENTIALITY: This email message and any attachments are intended solely for and only for use
by the addressee(s) named herein and may contain legally privileged and confidential information, If
you are not the intended recipient of this email, the dissemination, distribution, or copying of this
email and any attachments is prohibited. If you have received this email in error, please immediately
notify me by telephone and permanently delete this email and its attachments, any copies of this
email and their attachments, and any prints of this email. Notwithstanding the Uniform Electronic
Transactions Act or the applicability of any other law, absent an express statement to the contrary,
this email and its contents and any attachments are not intended to represent an offer or
acceptance of.an offer to enter into a contract.
This email and its contents and any attachments are not intended to bind the sender, Mahaffey and
Gore, P.C., any of its clients, or any other person or entity.
IRS Circular 230 Disclosure: The Internal Revenue Service requires that | inform you that any U.S. tax
advice contained in this communication, including any attachments to it, is not intended to be used
and cannot be used for the purpose of avoiding penalties under the Internal Revenue Code, or
promoting, marketing, or recornmending to another party any transaction or matter addressed in
the email.GREGORY SCHEFFE
1/28/2022
DOUBLE D v. DCP,
et al.
No, CJ-2020-73
Page 1
DOUBLE D RANCH OF WOODWARD,
INC.,
Plaintiff,
-vs-
DCP MIDSTREAM, LLC;
DCP MIDSTREAM, LP;
DCP MIDSTREAM GP, LLC;
DCP MIDSTREAM GP, LP;
DCP OPERATING COMPANY, LP;
DANIEL DICK;
LACEY HENRICKS;
GHD SERVICES INC.;
GREG SCHEFFE;
KYLE GREGORY;
GREG BARTON;
J&R TRANSPORT, INC.,
Defendants.
IN THE DISTRICT COURT OF WOODWARD COUNTY
STATE OF OKLAHOMA
No. CJ-2020-73
DEPOSITION OF GREGORY SCHEFFE
TAKEN ON BEHALF OF THE PLAINTIFF
IN OKLAHOMA CITY, OKLAHOMA
ON JANUARY 28, 2022
EXHIBIT 13
REPORTED BY: ELIZABETH J. CAMPBELL, CSR #162, RPR
ELIZABETH CAMPBELL, CSR, RPR
405-826-2015 oklahomareporter@gmail.comeo YF UV & WY
NN NN NN PP BP BP BP PP PP Be
Qe wn fF C6 @®@AI D7 UB wWwNH HE DO
GREGORY SCHEFFE DOUBLE D v. DCP, et al.
1/28/2022 No. CJ-2020-73
Page 83
pollution on that site, there was no pollution there,
no contaminants that were released from the pipe?
MR. MCDANIEL: Object to the form.
THE WITNESS: So all I can -- all I can
testify to is based on the samples that we collected
and the analytical results that came back and it
showed that it met the regulatory requirements.
Q (BY MR. DEVORE) Okay. And did you test
it -- did you compare that to background samples or
did you even take any background samples?
A No background samples were collected back --
okay.
Q So you cannot compare --~
MR. MCDANIEL: Excuse me.
Did you need to finish your answer?
THE WITNESS: I stopped short of that.
MR. MCDANIEL: Okay. Go ahead. I'm sorry.
Q (BY MR. DEVORE) Did you have anything even
to compare to determine whether the levels had gone
back to the background levels so that all of the
released materials from the pipeline had been removed
from the property?
A The regulatory requirement was stipulated in
the Guardian Guidance document and it stipulated what
the cleanup level was supposed to be. So the
ELIZABETH CAMPBELL, CSR, RPR
405-826-2015 oklahomareporter@gmail.com© ONY A oT B® wWwDN PR
NNN NY NN PPP Be BP PP BP eB
oO 2 WN KF OD O06 OD At HD HO F&F W DH FF OC
GREGORY SCHEFFE DOUBLE D v. DCP, et al.
1/28/2022 No. CJ-2020-73
Page 84
background sample for our particular comparison was
not the metric that we were going to. We were looking
to compare it to the regulatory standard that we were
being ---
Q So what I need you to do is get you to
answer this question. I understand what you're
answering. But I need to ask you a different question
again.
A Okay.
Q Okay. Did everything that got released from
that pipeline get removed from the property? Every
bit of what came out of that pipeline, did it get
removed from that property?
MR. MCDANIEL: Object to the form. It's
been asked and answered.
Go ahead.
THE WITNESS: So again, all I can tell you
is based on the samples that we collected, it shows
what the concentrations were and they met the
regulatory standards.
Q (BY MR. DEVORE) Were the regulatory
standards that they met higher, was there more
contamination there than there was before the release?
A I don't know.
MR. MCDANIEL: Object to the form.
ELIZABETH CAMPBELL, CSR, RPR
405-826-2015 oklahomareporter@gmail.com
Preview
IN THE DISTRICT COURT OF WOODWARD COUNTY STATE OF OKLAHOMA DOUBLE D RANCH OF WOODWARD, INC., Plaintiff, vs, Case No. CJ-2020-73 DCP MIDSTREAM, LLC, DCP MIDSTREAM, LP, DCP MIDSTREAM GP, LLC, DCP MIDSTREAM GP, LP, ) ) ) ) ) Judge Jill C. Weedon ) DCP OPERATING COMPANY, LP, ) ) ) ) ) ) ) ) ) ) DANIEL DICK, LACEY HENRICKS, GHD SERVICES INC., GREG SCHEFFE, KYLE GREGORY, GREG BARTON, J&R TRANSPORT, INC., WOODWERD COUNTY, i rediek BY. DEPUTY Defendants. DEFENDANT GHD SERVICES, INC.’S REPLY IN SUPPORT OF MOTION TO COMPEL PROPER RESPONSES AND DOCUMENT PRODUCTION IN RESPONSE TO ITS FIRST REQUESTS FOR ADMISSIONS, INTERROGATORIES AND REQUESTS FOR PRODUCTION OF DOCUMENTS TO PLAINTIFF Defendant, GHD Services, Inc., (“GHD”), hereby submits its Reply to Plaintiffs Response to its Motion to Compel Proper Responses and Document Production in Response to its First Requests for Admissions, Interrogatories and Requests for Production of Documents to Plaintiff (the ‘Motion to Compel”). In further support of its Motion to Compel, GHD will show the Court: I. DEFICIENT RESPONSES TO GHD’S REQUESTS FOR ADMISSION In defending its responses to the subject Requests for Admission, Plaintiff's Response employs a rather transparent play on words in an effort to avoid responding to GHD’s clear and unambiguous inquiry to discover whether Plaintiff has any factual basis to the claim that Separate Defendant GHD committed any fraudulent act. 868-001_GHD's First Mot to Compel- Reply Page | of 7Plaintiff's play on words revolves around the word — “clean.” Plaintiff's definition of “clean” means cleaned up to background levels of constituents; whereas, the clean-up standards GHD was hired to use in its initial assessment are defined by the Oklahoma Corporation Commission (“OCC”), and_do not require reaching background concentrations. The subject Requests for Admissions seek for Plaintiff to admit that that GHD never represented to Plaintiff that the leak site was “clean,” i¢., that it had been restored to background conditions. In its Response, Plaintiff submits that GHD did in fact represent that the leak site was “clean” by virtue of its Report submitted to the OCC. This is patently false. It was never GHD’s charge to sample the leak site to determine whether DCP’s remedial efforts had restored the site to background conditions, or in Plaintiff's words, “clean.” GHD was hired to, and in fact did, sample the leak site after DCP’s excavation to determine whether constituents remain in excess of OCC clean-up standards. GHD’s Report at Page 5, [Pl. Ex. 1 at Double D 000018] states: Laboratory analysis of the confirmation samples collected subsequent to extensive excavation activities and pumping accumulated water did not indicate the presence of any chemical concentrations remaining that exceeded the Category II screening levels. The clean-up as implemented meets or exceeds the Category II clean-up requirements of the OCC Guardian Guidance Document Category Cleanup Table. In fact, none of the sample analytical results exceed the most stringent Category I clean-up standards. Plaintiff acknowledges that this was GHD’s only representation as to the post-excavation condition of the leak site.! Clearly, GHD did not state in its Report that the site was “clean;” rather, it reported in both the narrative and the analytical reports that Plaintiff chose to omit from the ! Plaintiff represents to the Court on Pages 2 — 3 of its Response that GHD’s designated representative testified “that the site had been clean up;” however, the cited testimony from GHD’s witness, Mr. Scheffe, merely refers to the language of the Report, which does not represent that the site was “clean,” but rather, that the sample analysis met OCC’s Guardian Standards. Furthermore, GHD’s Responses to Plaintiffs Request for Admission Nos. 1 through 3 do not admit that the leak site was “clean” as Plaintiff represents. 868-001_GHD's First Mot to Compel- Reply Page 2 of 7Exhibit, that some samples detected the presence of some hydrocarbon constituents, but that the levels detected were below the OCC’s clean-up standards. GHD propounded the subject Requests for Admissions because Plaintiff alleges that GHD wrongfully represented to Plaintiff that the site was “clean” when the record evidence shows that GHD only represented that the site met the OCC’s clean-up standards. GHD is entitled to a straight answer from Plaintiff so GHD can know whether it is accused of committing fraud by its own conduct, or for the imputed conduct of an alleged co-conspirator. Y Lastly, just as Plaintiff did in its responses to the subject Requests for Admission, it cites to statements and testimony from DCP regarding its own purported statements to Plaintiff regarding the conditions at the leak site. As discussed in the Motion to Compel, whether Plaintiff may be able to impute any alleged wrongful conduct on the part of DCP to GHD is a question for a later stage of these proceedings. It does not excuse Plaintiff from answering direct questions as to the existence of any facts to support that Separate Defendant, GHD committed any fraudulent act, and accordingly, GHD requests the Court sustain its Motion to Compel proper responses to its Requests for Admission. I. PLAINTIFF’S DEFICIENT RESPONSES TO GHD’S REQUESTS FOR PRODUCTION OF DOCUMENTS 1. Request No. 12? Contrary to Plaintiffs opening proposition, GHD’s Motion to Compel the sampling data from Plaintiff's property is far from moot. As the Court may recall from the hearing on September 27, 2021, there was a discussion over Defendants’ concern that Plaintiff had not produced the 2 This Request was erroneously referenced as Request No. 11 in the attached correspondence, but the context of both counsel’s comments is clear that they both understood that they were discussing documents associated with environmental sampling, which is the subject of GHD’s Request for Production No. 12. 868-001_GHD's First Mot to Compel- Reply Page 3 of 7results of its environmental sampling on the property. The Court commented that it did not want the parties to sit on any data, and that data should be exchanged promptly as time was of the essence. Plaintiffs counsel responded by stating that they would produce its sampling documentation forthwith. Plaintiff thereafter produced part of the sampling documentation, but flatly refused to produce the remaining documentation for the Jerry Black sampling until the time for expert disclosures, and flatly refused to produce the remaining sampling documentation under an unsubstantiated claim of work product protection. Plaintiff did not produce the remaining discoverable documents from the Jerry Black sampling until February 2, 2022, some 130 days after the Court instructed the documents to be produced, and 5 days after GHD filed its Motion to Compel. See Plaintiff's e-mail transmittal attached hereto as Ex. “12.” Plaintiff continues to withhold additional documentation associated with sampling conducted by a purported consultant, and refuses to produce a Privilege Log to support its claim of work product protection. Plaintiff's Response fails to overcome the wealth of caselaw that holds that environmental sampling results are raw factual material, which is discoverable regardless of its source. Mot. at 11-13. Plaintiffs refusal to provide a Privilege Log to support its claim is inexplicable, and its claim that it is not required to submit a Log to support its decision to withhold the documents is unsupported by authority. Furthermore, Plaintiff elected not to address GHD’s proposition that even should the sampling data qualify as ordinary work product, GHD has satisfied the exception under 12 O.S § 3226(B)(3)(a) based on its substantial need for the materials to prepare its defense coupled with its inability to replicate the samples.> Mot. to Compel at 13 — 16. Notwithstanding that ; In this regard, Plaintiff's reliance on Meritor, Inc. v. State ex rel. Bd. of Regents of Univ. of Okla., 2019 OK CIV APP 64, is misplaced. This case illustrates why the discoverability of ordinary work product requires a case-by-case analysis. Merifor is distinguishable from the case at bar because the substantial 868-001_GHD's First Mot to Compel- Reply Page 4 of 7environmental samples often cannot be replicated, GHD does not even know where the samples were taken or what was sampled. Plaintiff contends that the withheld samples were not taken from the leak site suggesting that they are not relevant or useful to GHD. These samples may well be very relevant. Plaintiff has criticized GHD for not taking background samples as part of its investigation. See Depo. of G. Scheffe at 83:4 — 84:24, attached as Ex. “13.” Background samples would be samples collected away from the location of the pipeline leak in an effort show the uncontaminated condition. Plaintiff describes its withheld samples as collected away from the leak site to show the “overall character of the land,” including a sample from a pond on the property, Resp. at 6. If Plaintiff's withheld samples show background levels of constituents or are probative on the question of such background levels, they are material to the defense, and therefore, they should be produced. 2. Request No. 17. Plaintiff responds to GHD’s Motion to Compel proper Initial Disclosures by asserting that because it is seeking a mandatory injunction for cleanup, not damages for cleanup, it is not required to provide an Initial Disclosure of its alleged damages. If Plaintiff is stipulating that it is not seeking damages against the GHD Defendants, GHD accepts its position. Otherwise, Plaintiff is still required to serve Initial Disclosures that comply with 12 O.S. §3226(A)(2)(a), and in such case, GHD requests the Court order Plaintiff to do so. Il. CONCLUSION For the reasons set forth in its Motion to Compel and above, GHD respectfully requests the Court sustain its Motion to Compel and Order Plaintiff to comply with its discovery obligations by supplementing its discovery responses and document production. need exception was not raised by the plaintiff, and it knew where the subject water well samples had been collected, 868-001_GIID's First Mot to Compel- Reply Page 5 of 7Respectfully submitted, McDaniel ACorRD, PLLC By: . A. Scott McDaniel, OBA #16460 (smedaniel@ok-counsel.com) Melissa A. East, OBA #21695 (meast@ok-counsel.com) 9343 East 95" Court Tulsa, Oklahoma 74133 Telephone: (918) 382-9200 Facsimile: (918) 382-9282 ATTORNEYS FOR DEFENDANTS, GHD SERVICES INC., GREG SCHEFFE, KYLE GREGORY AND GREG BARTON 868-001_GHD's First Mot to Compel- Reply Page 6 of 7CERTIFICATE OF SERVICE I certify that on the 25th day of February, 2022, | e-mailed a true and accurate copy of the foregoing document to the following: Allan DeVore allan@devorelawok.com Jandra Cox jandra@devorelawok.com DeVore Law Firm, PLC 5709 N.W. 132" Street Oklahoma City, OK 73142 And Zachary J. Foster zfoster@mahaffeygore.com Mahaffey & Gore, P.C. 300 N.E. 1 Street Oklahoma City, OK 73104 And Trae Gray tg@landownerfirm.com Ryan Gray mail@landownerfirm.com Matthew Irby LandownerFirm, PLLC 37500 State Hwy 31 Coalgate, OK 74538 Attorneys for Plaintiff W. Michael Hill wmhill@secresthill.com Justin L. Hall jhall@secresthill.com Secrest, Hill, Butler & Secrest 7134 South Yale, Suite 900 Tulsa, OK 74136 and Richard A. Bruce richard. bruce@zurichna.com The Law Office of William Archibald 1299 Zurich Way, Suite 360 Schaumburg, IL 60196 Attorney for Defendant J&R Transport, Inc. John H. Tucker jhtucker@rhodesokla.com Dan S. Folluo dfolluo@rhodesokla.com Theresa N. Hill thill@rhodesokla.com Lindsey E. Albers, lalbers@rhodesokla.com Rhodes, Hieronymus, Jones, Tucker & Gable, PLLC P.O. Box 21100 Tulsa, OK 74121-1100 Attorney for DCP Defendants, and for Defendants Lacey Henricks and Daniel Dick A dub WAS 868-001_GHD's First Mot to Compel- Reply Page 7 of 7From: Subject: Double D Ranch of Woodward, Inc. v. DCP, et al., CJ-2020-73 (Woodward County, OK) Date: Friday, February 4, 2022 5:52:16 PM Attachments: Double D 000921-Double D 001064,nd¢ Double D 001065-Double D-001066.ndf Double D.001067-Double D 001069.nd¢ Double D001070-Double D 001072.pdt Double D 001073-Double D 001076.ndt Double D 001077-Double D 001092.ndt Theresa: Good afternoon. See attached. Per our discussions, attached here are all discoverable laboratory test results, chain of custody documents for the same, and all QAQC documents that Double D has received to date. While Double D maintains its objection and asserts that its initial production of the laboratory test data is all the Court required Double D to produce, Double D does not wish to spend attorney fees litigating whether the COC. and QAQC documents should also be produced. For that reason, Double D is providing the full packet with the items discussed in our previous telephone calls. By producing these materials, Double D does not waive its rights to protect Jerry Black's file from disclosure until Double D must produce it under the Court's current scheduling order. The only other laboratory test results in Double D’s possession are those from the non-testifying consultant expert witness hired by Trae Gray on behalf of Double D. Double D asserts and lodges all privileges related to that file; Double D is not producing that information unless ordered to do so by the Court. This supplemental document production includes the letter agreement between Double D and Black Hereford Ranch, lease payments from Black Hereford Ranch to Double D, and PID meter documents. Next week, we will produce Eric Coleman’s native document production. We are searching for a method to bates-stamp these documents while maintaining access to the metadata. The office is closed because of the weather, and | don’t have access to all the firm's technological capabilities from my kitchen counter. Thanks. Zachary J. “Zac” Foster Mauarrey & Gore, P.C. 300 N.E. 1st Street Oklahoma City, Oklahoma 73104 - 4004 Telephone: (405) 236 — 0478; Ext. 106 Direct: (405) 601-9717 Cell: (405) 808 — 0666 Facsimile: (405) 236 — 1520 zfoster@mahaffeygore,com EXHIBIT 12CONFIDENTIALITY: This email message and any attachments are intended solely for and only for use by the addressee(s) named herein and may contain legally privileged and confidential information, If you are not the intended recipient of this email, the dissemination, distribution, or copying of this email and any attachments is prohibited. If you have received this email in error, please immediately notify me by telephone and permanently delete this email and its attachments, any copies of this email and their attachments, and any prints of this email. Notwithstanding the Uniform Electronic Transactions Act or the applicability of any other law, absent an express statement to the contrary, this email and its contents and any attachments are not intended to represent an offer or acceptance of.an offer to enter into a contract. This email and its contents and any attachments are not intended to bind the sender, Mahaffey and Gore, P.C., any of its clients, or any other person or entity. IRS Circular 230 Disclosure: The Internal Revenue Service requires that | inform you that any U.S. tax advice contained in this communication, including any attachments to it, is not intended to be used and cannot be used for the purpose of avoiding penalties under the Internal Revenue Code, or promoting, marketing, or recornmending to another party any transaction or matter addressed in the email.GREGORY SCHEFFE 1/28/2022 DOUBLE D v. DCP, et al. No, CJ-2020-73 Page 1 DOUBLE D RANCH OF WOODWARD, INC., Plaintiff, -vs- DCP MIDSTREAM, LLC; DCP MIDSTREAM, LP; DCP MIDSTREAM GP, LLC; DCP MIDSTREAM GP, LP; DCP OPERATING COMPANY, LP; DANIEL DICK; LACEY HENRICKS; GHD SERVICES INC.; GREG SCHEFFE; KYLE GREGORY; GREG BARTON; J&R TRANSPORT, INC., Defendants. IN THE DISTRICT COURT OF WOODWARD COUNTY STATE OF OKLAHOMA No. CJ-2020-73 DEPOSITION OF GREGORY SCHEFFE TAKEN ON BEHALF OF THE PLAINTIFF IN OKLAHOMA CITY, OKLAHOMA ON JANUARY 28, 2022 EXHIBIT 13 REPORTED BY: ELIZABETH J. CAMPBELL, CSR #162, RPR ELIZABETH CAMPBELL, CSR, RPR 405-826-2015 oklahomareporter@gmail.comeo YF UV & WY NN NN NN PP BP BP BP PP PP Be Qe wn fF C6 @®@AI D7 UB wWwNH HE DO GREGORY SCHEFFE DOUBLE D v. DCP, et al. 1/28/2022 No. CJ-2020-73 Page 83 pollution on that site, there was no pollution there, no contaminants that were released from the pipe? MR. MCDANIEL: Object to the form. THE WITNESS: So all I can -- all I can testify to is based on the samples that we collected and the analytical results that came back and it showed that it met the regulatory requirements. Q (BY MR. DEVORE) Okay. And did you test it -- did you compare that to background samples or did you even take any background samples? A No background samples were collected back -- okay. Q So you cannot compare --~ MR. MCDANIEL: Excuse me. Did you need to finish your answer? THE WITNESS: I stopped short of that. MR. MCDANIEL: Okay. Go ahead. I'm sorry. Q (BY MR. DEVORE) Did you have anything even to compare to determine whether the levels had gone back to the background levels so that all of the released materials from the pipeline had been removed from the property? A The regulatory requirement was stipulated in the Guardian Guidance document and it stipulated what the cleanup level was supposed to be. So the ELIZABETH CAMPBELL, CSR, RPR 405-826-2015 oklahomareporter@gmail.com© ONY A oT B® wWwDN PR NNN NY NN PPP Be BP PP BP eB oO 2 WN KF OD O06 OD At HD HO F&F W DH FF OC GREGORY SCHEFFE DOUBLE D v. DCP, et al. 1/28/2022 No. CJ-2020-73 Page 84 background sample for our particular comparison was not the metric that we were going to. We were looking to compare it to the regulatory standard that we were being --- Q So what I need you to do is get you to answer this question. I understand what you're answering. But I need to ask you a different question again. A Okay. Q Okay. Did everything that got released from that pipeline get removed from the property? Every bit of what came out of that pipeline, did it get removed from that property? MR. MCDANIEL: Object to the form. It's been asked and answered. Go ahead. THE WITNESS: So again, all I can tell you is based on the samples that we collected, it shows what the concentrations were and they met the regulatory standards. Q (BY MR. DEVORE) Were the regulatory standards that they met higher, was there more contamination there than there was before the release? A I don't know. MR. MCDANIEL: Object to the form. ELIZABETH CAMPBELL, CSR, RPR 405-826-2015 oklahomareporter@gmail.com