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IN THE DISTRICT COURT OF OKMULGEE COUNTY
STATE OF OKLAHOMA
JOSHUA VOGLER and )
TIFFANY VOGLER, husband and wife, )
)
Plaintiffs, )
J
v. ) Case No, CJ-2018-208
)
ADVANCE OIL CORPORATION, )
an Oklahoma domestic business ) IN mS D
corporation, ) T COORT
) oKM| EP 22 2020
Defendant. ) CHaRce Coy
Defendant, Advance Oil Corporation (“Advance”), by and through its undersigned
counsel of record, respectfully requests that the Court enter a protective order pursuant to
Okla. Stat. tit. 12, § 3226(C)(1)(b), governing the timing and cost allocation for certain
discovery to be had in this case.
Specifically, Advance seeks to avoid further discovery disputes with Plaintiffs by an
order that provides:
a) Plaintiffs must testify in deposition before further discovery in this case may
occur;
b) Within three weeks after Plaintiffs’ depositions are completed, pursuant to Okla.
Stat. tit. 12, § 3226(B)(4)(a)(1), Plaintiffs must disclose any expert who will
testify in this matter on behalf of Plaintiffs and supplement their responses to
Advance’s Interrogatory No. 16;
c) Within six weeks after Plaintiffs’ depositions are completed, pursuant to Okla.
Stat. tit. 12, § 3226(B) (4)(a)(1), Defendant must disclose any expert who will
testify in this matter of behalf of Defendant and supplement its response to
Plaintiffs’ Interrogatory No. 5; andd) Within one week after Plaintiffs’ depositions are completed, provided that
Plaintiffs have paid Defendant one-half of the cost for the sampling, testing and
analysis of samples taken from Plaintiffs’ property, Defendant shall provide to
Plaintiffs a copy of the results of said testing.
L equir ificatio’
Advance’s counsel has in good faith conferred or attempted to confer, either in
person or by telephone, with counsel for Plaintiffs in an effort to resolve this dispute
without court action. However, such efforts were unavailing, and Advance must look to the
Court to resolve this dispute through an appropriate order.
I. Applicable Legal Standard
In general, “a party may not discover documents and tangible things that are
prepared in anticipation of litigation or for trial by or for another party or its
representative, including the other party's attorney, consultant, surety, indemnitor, insurer
or agent” unless “the party shows that it has substantial need for the materials to prepare
its case and cannot, without undue hardship, obtain their substantial equivalent by other
means”. See Okla. Stat. tit. 12, § 3226(B)(3)(a). Even when a court orders discovery of such
materials, “the court shall protect against disclosure of the mental impressions,
conclusions, opinions or legal theories of a party's attorney or other representative
concerning the litigation”.
A special rule applies to such materials once a party discloses its testifying expert
witness(es). Once a party has disclosed such expert(s) in accordance with Okla, Stat. tit. 12,
§ 3226(B) (4)(a)(1), the adverse party may seek to discover certain facts known and
opinions held by such expert(s), even though they were acquired or developed in
anticipation of litigation or for trial. See id. at § 3226(B)(4)(a). Among the categories of
discoverable information available under this Section are communications between a
2party's attorney and an expert retained or specially employed to provide expert testimony
in the case when such communications “identify facts or data that the party's attorney
provided and that the expert considered in forming the opinions to be expressed”. See id. at
§ 3226(B)(4)(b)(2).
The Oklahoma Discovery Code recognizes that, in certain circumstances, justice may
require the entry of a protective order “to protect a party or person from annoyance,
harassment, embarrassment, oppression or undue delay, burden or expense”. See id. at
§ 3226(C)(1). Upon motion, and for good cause shown, the Court may order “that the
discovery may be had only on specified terms and conditions, including a designation of the
time, place or the allocation of expenses”. See id. at § 3226(C)(1)(b).
II. licable Fact
On July 3, 2020, the parties cooperatively performed sampling upon the Plaintiffs’
Property. Advance paid all costs associated with the sampling, even though Plaintiffs
insisted that each of the samples be split so that they could be independently tested. See
Gray emails dated April 30, 2019, and August 26, 2020, attached respectively hereto as
“Exhibit A” and “Exhibit B”.
Dr. Bert Fisher was present for the sampling on behalf of Plaintiffs and oversaw the
Proper splitting of the samples. Jerry Wollaston was present for sampling on behalf of
Advance, determined the locations on the property from which each of the samples would
be taken, obtained the necessary personnel and equipment to conduct the sampling and,
afterwards, arranged for the testing of the samples and received the results. Advance
incurred costs of $4,424.00 directly attributable to the sampling and analysis of the
samples, See Invoices, attached hereto as “Exhibit C’”.Neither Dr. Fisher nor Mr. Wollaston has been endorsed in this litigation as a
testifying expert. In their February 7, 2019, answers to Advance’s expert interrogatory,
Plaintiffs each responded:
Plaintiff objects that this Interrogatory calls for an improper marshalling of
evidence or proof and is premature. Subject to and without waiving the
foregoing objections: Plaintiff will designate and disclose its expert witnesses
in accordance with any scheduling or pretrial order, the applicable local
rules, and the Oklahoma Rules of Civil Procedure.
See “Plaintiff, Joshua Vogler’s Verified Response to Defendant's First Set of Discovery
Request to Plaintiff Joshua Vogler”, pp. 12-13 (Interrogatory No. 16 and Response), and
“Plaintiff, Tiffany Vogler’s Verified Response to Defendant's First Set of Discovery Request
to Plaintiff Tiffany Vogler”, pp. 12 (Interrogatory No. 16 and Response), attached
respectively hereto as “Exhibit D” and “Exhibit E”,
In its March 21, 2019, answer to Plaintiff's expert interrogatory, Advance
responded:
This interrogatory seeks information protected from disclosure under Okla.
Stat. tit. 12, § 3226(B)(3) and (B) (4). Without waiving the foregoing
objection, and in a good faith effort to respond, Advance states that it has not
determined at this time which experts, if any, it will call as experts at trial,
but Advance states that it will disclose all such witnesses in accordance with
any order of the Court.
See “Defendant Advance Oil Corporation’s Responses to Plaintiffs’ First Set of
Interrogatories”, p. 3 (Interrogatory No. 5 and Answer to Interrogatory No. 5), attached
hereto as “Exhibit F”, To date, no scheduling order has been entered in the case and neither
Plaintiffs nor Advance have endorsed an expert for trial.
On August 25, 2020, Plaintiffs’ counsel asked Advance to provide the testing results
4from the analysis Mr. Wollaston facilitated on the samples from the Plaintiffs’ property. See
Gray and McDaniel email exchange of August 25, 2020, attached hereto as “Exhibit G”.
Advance’s counsel responded by Proposing an exchange of Advance'’s testing results with
Plaintiffs’ testing results and by requesting dates for the depositions of the Plaintiffs. See id.
On August 26, 2020, Plaintiffs’ counsel informed Advance, “We took splits but
decided not to send ours to the lab.” See Gray email of August 26, 2020, attached hereto as
“Exhibit H”. He also stated, “I am fairly flexible to do the depo. We can do it in my Tulsa
office—preferably on a Monday ora Tuesday”. See id.
On September 1, 2020, Advance’s counsel proposed completing the Plaintiffs’
depositions on Tuesday, September 8th, See McDaniel and Gray email exchange of
September 1, 2020, attached hereto as “Exhibit I”. Plaintiffs’ counsel responded that he had
not yet spoken with his clients about the depositions and informed Advance, “I can’t do
next Tuesday.” See id.
The same day, Advance’s counsel informed Plaintiff's counsel that Advance was
willing to provide its analysis of the samples after the depositions of the Plaintiffs were
completed. See id. When Plaintiffs’ counsel objected to this, Advance’s counsel explained
that Plaintiffs did not need the benefit of samples analyzed by experts in order to provide
“the facts they know on which they base their claims against my client or about the
damages they have sustained”. See id. Plaintiffs’ counsel responded by threatening to
prevent his clients from answering “any questions about pollution” during their upcoming
depositions. See id.
Advance’s counsel requested dates once again so that Advance could notice the
Plaintiffs’ depositions for a date that would not inconvenience Plaintiffs or their counsel.See McDaniel and Gray email exchange of September 2, 2020, attached hereto as “Exhibit J”.
Plaintiffs’ counsel responded that he would be available to present his clients at his law
office on September 15, 2020, but he stated that he would not agree to any date for the
depositions before receiving Advance’s analysis of the samples. See id.
On September 2, 2020, Plaintiffs’ counsel delivered to Advance a subpoena duces
tecum and notice for the deposition of “Expert Jerry Wallaston”. See Notice of Deposition,
attached hereto as “Exhibit K”. Inan email of the same date, Plaintiffs’ counsel stated, “get
me the test results and we can postpone the depo and I'll also get you dates to do my folks.”
See Gray email of September 2, 2020, attached hereto as “Exhibit L”. The following day,
Plaintiff's counsel advised “We were not able to get Mr. Wallaston [sic] served so you can
disregard the notice provided to you earlier in the week”. See Gray email of September 3,
2020, attached hereto as “Exhibit M”.
On September 3, 2020, Advance provided a notice of deposition for each of the
Plaintiffs. See Deposition Notices, attached hereto as “Exhibit N”. The depositions were
scheduled to take place on September 15, 2020, at Plaintiffs’ counsel's office. See id. The
same day, Plaintiff's counsel advised that he would be filing a motion to quash the
depositions unless he received Advance’s testing results. See Exh, M. On September 9,
2020, Plaintiffs filed their “Motion to Quash Deposition Notice and Motion for Protective
Order and Request for Expedited Hearing” and their “Motion to Compel Defendant to
Respond to Plaintiffs’ Requests for Production of Documents”. The latter motion seeks an
order requiring production of Advance’s analysis of the samples.
IV. Argument
A. The parties have not yet disclosed their testifying expert witnesses.In Oklahoma, disclosure of expert witnesses is governed by Okla. Stat. tit. 12,
§ 3226(B)(4)(a)(1): “a party may, through interrogatories, require any other party to
identify each person whom that other party expects to call as an expert witness at trial and
give the address at which that expert witness may be located.” In practice, a party may be
unable to identify its expert witnesses until sometime after the deadline for responding to
an expert interrogatory has passed, and the parties often look to the Court to include a
deadline for disclosure of expert witnesses in a scheduling order or other order.
No scheduling order has been entered in this case, and both Plaintiffs and Advance
responded to expert interrogatories by agreeing to disclose expert witnesses in compliance
with an order of the court.
It is not uncommon for courts to stagger expert disclosures so that the plaintiff, who
bears the burden of proof, discloses its experts before the defendant. Indeed, such a
disclosure schedule furthers the interests of justice by allowing the defendant to identify as
testifying experts only those experts who possess the necessary education, training and or
expertise to critically evaluate the expertise and opinions of the plaintiff's testifying
experts, if any.
In the present case, Plaintiffs claim that Advance has polluted their property, and
they bear the burden of proof on this claim. To the extent they intend to rely upon expert
opinion to meet this burden, the Court should set a deadline for Plaintiffs’ expert
disclosures that precedes the deadline for Advance’s expert disclosures.
B. The documents sought by Plaintiff receive protection as work product.
A document “prepared in anticipation of litigation or for trial by or for another party
or its representative, including the other Party's attorney, consultant, surety, indemnitor,insurer or agent” is not subject to disclosure except as provided under Section 3226(B)(3)
and (4). This protection extends to “communications between the party's attorney and any
expert witness retained or specially employed to provide expert testimony in the case”
except in limited circumstances not presently at issue.
Subsection (B)(4) provides for discovery of facts known and opinions held bya
testifying expert even though developed in anticipation of litigation or for trial, but only
after disclosure of the expert pursuant to subsection (B)(4)(a)(1). See Okla. Stat. tit, 12, §
3226(B)(4)(a)(2) and (3). Until disclosed as a testifying expert, the expert is merely a
consultant and should receive the same protections as a non-testifying expert under
subsection (B)(4)(c). A party may not, by interrogatories or deposition, discover facts
known or opinions held by such an expert absent a showing of exceptional circumstances
under which it is impracticable for the party to obtain facts or opinions on the same subject
by other means. See Okla. Stat. tit. 12, § 3226(B)(4)(c).
Plaintiffs seek to discover the analysis of the samples taken from their property.
This analysis was necessarily prepared for trial by Advance’s consultant for Purposes of the
litigation. Accordingly, it is entitled to protection as work product.
Plaintiffs possess the split samples that they required Advance to provide for them
as a condition of taking samples from their property. They have elected not to test these
samples. No exceptional circumstances exist that would make it impracticable for Plaintiffs
to obtain their own analysis of these samples,
C. Plaintiffs are not entitled to the benefit of Advance’s protected work product
before providing their depositions in this case.
Because Plaintiffs have alleged that Advance polluted their property, Advance is
8entitled to discover the facts known to Plaintiffs. Fact witnesses such as the Plaintiffs are
competent to testify as to their perceptions and observations—what they have seen, tasted,
smelled, heard or felt. Advance is entitled to such testimony to understand the facts upon
which Plaintiffs base their claims and what resulting damages Plaintiffs believe they have
sustained. The expert analysis of samples taken from the Plaintiffs’ property should not
influence such testimony one way or another.
D. Plaintiffs should be required to disclose their testifying expert witness(es) and
supplement their responses to Advance’s expert interrogatories before Advance
is required to disclose its testifying expert witness(es) and supplement its
response to Plaintiffs’ expert interrogatory.
It is not uncommon for courts to stagger expert disclosures so that the plaintiff, who
bears the burden of proof, discloses its experts before the defendant. In the present case,
Plaintiffs claim that Advance has polluted their property, and they bear the burden of proof
on this claim. To the extent they intend to rely upon expert opinion to meet this burden,
the Court should set a deadline for Plaintiffs’ expert disclosures that precedes the deadline
for Advance’s expert disclosures.
E. Plaintiffs should bear one-half of the cost of the sampling and analysis that led to
the creation of the documents they seek.
In the limited circumstances in which Oklahoma courts are permitted to allow
discovery of facts known or opinions held by an expert who has not been disclosed asa
testifying expert, the Discovery Code provides for the party seeking discovery to “pay the
other party a fair portion of the fees and expenses reasonably incurred by the latter party
in obtaining facts and opinions from the expert.” See Okla. Stat. tit. 12, § 3226(B) (4)(d)(2).
In order to appropriately compensate Advance for waiving its work product
protection in connection with the analysis sought by Plaintiffs, the Court should order thatPlaintiffs pay half of the costs Advance incurred in collecting, testing and analyzing the
samples. The total amount of these costs is $4,424.00.
F. The protective order sought herein is an appropriate tool for the Court to use to
resolve the parties’ discovery dispute.
Upon motion, and for good cause shown, the Court may order “that the discovery
may be had only on specified terms and conditions, including a designation of the time,
place or the allocation of expenses”. See Okla. Stat. tit. 12, § 3226(C)(1)(b). Advance has
shown that it is entitled to take Plaintiffs’ depositions free from the influence of the analysis
its consultant prepared for it. Advance has shown that a staggered disclosure of experts
pursuant to Section 3226(B)(4)(a)(1) would further the interests of justice. Finally,
Advance has justified the entry of an order that would require payment of one-half of the
expenses it incurred in procuring, testing and analyzing the samples taken from the
Plaintiffs’ property in exchange for Advance’s waiver of work product protections for the
analysis provided to Advance by its consultant, Jerry Wollaston.
For the foregoing reasons, Advance seeks an order of the Court that provides:
a) Plaintiffs must testify in deposition before further discovery in this case may
occur;
b) Within three weeks after Plaintiffs’ depositions are completed, pursuant to Okla.
Stat. tit. 12, § 3226(B)(4)(a)(1), Plaintiffs must disclose any expert who will
testify in this matter on behalf of Plaintiffs and supplement their responses to
Advance’s Interrogatory No. 16;
c) Within six weeks after Plaintiffs’ depositions are completed, pursuant to Okla.
Stat. tit. 12, § 3226(B)(4)(a)(1), Defendant must disclose any expert who will
testify in this matter of behalf of Defendant and supplement its response to
Plaintiffs’ Interrogatory No. 5; and
d) Within one week after Plaintiffs’ depositions are completed, provided that
Plaintiffs have paid Defendant one-half of the cost for the sampling, testing and
analysis of samples taken from Plaintiffs’ property, Defendant shall provide to
Plaintiffs a copy of the results of said testing.
10Respe. submitted,
Michael J.JAcDaniel, OBA #18419
McDaniel Law
7107 South Yale Ave, #424
Tulsa, OK 74136-6308
918-695-5855
Michael@mcdaniel-law.com
Counsel for Advance Oil
Corporation
CERTIFICATE OF SERVICE
This is to certify that on the 10th day of September, 2020, a true, correct and exact
copy of the above and foregoing instrument was sent via U.S. Mail to:
Trae Gray
Austin Meyer
Landowner Firm, PLLC
37500 State Highway 31
Coalgate, Oklahoma 74538
Il
. McDanielFrom: Trae Gray
Sent: Tuesday, April 30, 2019 4:05 PM
To: Michael McDaniel
Ce: Austin Meyer
Subject: Vogler
Mr. McDaniel,
As I think Austin told you, he is leaving our firm. I have prior commitments in
another case on the 6th through the 8t (a site visit in Love County) with experts
and opposing counsel that has been scheduled for months. If opposing counsel (or
experts) visit my clients properties, I always reciprocate. For the reasons outlined
above, I cannot meet your request to do the site visit on the 6".
If you will get with your expert and get me the testing protocol that they want to
conduct on the property, I will forward the same to our expert, then provide dates
when we can get done all that you need to do on the property. I need the materials
from your expert so we know the testing protocol and have the appropriate
information to conduct split sampling.
Thanks,
TG
Exhibit AFrom: Trae Gray
Sent: Wednesday, August 26, 2020 12:41 PM
To: Michael McDaniel
Subject: Re: Vogler v. Advance Oil
We took splits but decided not to send ours to the lab. You already have all of the
other testing results from us related to previous testing so I don’t have anything to
give you that you don’t already have. If you could have Gerry send that to Dr.
Fisher when he can it would be appreciated.
Lam fairly flexible to do the depo. We can do it in my Tulsa office — preferably on
a Monday or Tuesday.
TG
From: Michael McDaniel
Date: Tuesday, August 25, 2020 at 4:34 PM
To: Trae Gray
Ce: Matt Irby , Trisha Elliott , Gerald
Wollaston
Subject: Vogler v. Advance Oil
Hey, Trae. I would be glad to do so. Since the samples were split and tested by Plaintiffs’ expert as well, let's
arrange for an exchange. I'll get back to you as soon as | learn how quickly I will be able to make them
available.
I hope you and your clients are staying well during this difficult season. Recognizing the need for appropriate
Social distancing, I would like to arrange their depositions to take place in a fairly large conference room, but I
will need to reserve it ahead of time. Would you please visit with them to check on their availability and get
back to me with some possible dates?
! look forward to hearing from you. Please note that I am no longer with Coffey Senger McDaniel, as that firm
is now operating under a different name. My new contact information is below.
Yours very truly,
Michael J. McDaniel, Attorney
MED
McDaniel Law
7107 S. Yale Ave., #424 - Tulsa, OK 74136
918.695.5855 - michael @mcdaniel-law.com
lls message and any documents accompanying this transmission may contain Privileged and/or confidential information and are intended solely
for the addressee(s) named above. Please reply to the sender advising of any error in transmission and immediately delete /destroy the message
and any accompanying documents, Thank you.
Exhibit Bsree Original Message-----
From: Trae Gray
‘uesday, August 25, 2020 2:47 PM
like McDaniel
Cc: Matt Irby
Subject: Test results from Jerry Walaston
Can you get me the test results from Walaston’s testing on the Vogler case?
Exhibit BInvoice
Soil, Water Forage Analytical Laboratory Invoice # 330331
Oklahoma State University Date 07/24/2020
048 Agricultural Hall Account No 10928521
Stillwater, OK 74078 CustCode 195
405-744-6630
Page 1 of 2
GERALD WOLLASTON
Fox Hollow Consultants Inc. Fox Hollow Consultants Inc,
5354 Brock Rd. 5354 Brack Rd.
ARDMORE OK 73401 ARDMORE OK 73401
Please Note : Send your payments to the OSU Bursar's Office, NOT SWFAL - T] hank You
Sample Lab ID Login Date Description Sub Total
301 959597 07/08/2020 Soil - Comprehensive Salinity 55.00
302 959598 07/08/2020 Soil - Comprehensive Salinity 55.00
303 959600 07/08/2020 Soil - Comprehensive Salinity 55.00
304 959601 07/08/2020 Soil - Comprehensive Salinity 55.00
305 959602 07/08/2020 Soil - Comprehensive Salinity 55.00
306 959603 07/08/2020 Soil - Comprehensive Salinity 55.00
307 959604 07/08/2020 Soil - Comprehensive Salinity 55.00
308 959605 07/08/2020 Soil - Comprehensive Salinity 55.00
309 959606 07/08/2020 Soil - Comprehensive Salinity 55.00
310 959607 07/08/2020 Soil - Comprehensive Salinity 55.00
311 959608 07/08/2020 Soil - Comprehensive Salinity 55.00
312 959610 07/08/2020 Soil - Comprehensive Salinity 55.00
313 959611 07/08/2020 Soil - Comprehensive Salinity 55.00
314 959612 07/08/2020 Soil - Comprehensive Salinity 55.00
315 959613 07/08/2020 Soil - Comprehensive Salinity 55.00
316 959614 07/08/2020 Soil - Comprehensive Salinity 55.00
317 959615 07/08/2020 Soil - Comprehensive Salinity 55.00
318 959616 07/08/2020 Soil - Comprehensive Salinity 55.00
319 959617 07/08/2020 Soil - Comprehensive Salinity 55.00
320 959618 07/08/2020 Soil - Comprehensive Salinity 55.00
321 959620 07/08/2020 Soil - Comprehensive Salinity 55.00
322 959621 07/08/2020 Soil - Comprehensive Salinity 55.00
323 959685 07/08/2020 Water - Irrigation 15.00
324 959686 07/08/2020 Water - Irrigation 15.00
325 959687 07/08/2020 Water - Irrigation 15.00
326 959688 07/08/2020 Water - Irrigation 15.00
327 959622 07/08/2020 Soil - Comprehensive Salinity 55.00
328 959623 07/08/2020 Soil - Comprehensive Salinity 55.00
329 959624 07/08/2020 Soil - Comprehensive Salinity 55.00
330 959625 07/08/2020 Soil - Comprehensive Salinity 55.00
330,331 10928521 67530 C 1,490.00imple Lab ID Login Date Description Sub Total
Total Amount Due $1490.00
Oklahoma State University
The Office of the Bursar
113 Student Union
Stillwater OK 74078
Remember to put your account number on your check.
This Invoice will appear on your next Billing Statement from OSU Bursar’s Office.
SUS 330,331
10928521 67530 C
Exhibit C
1,490.00Direct Push Environmental Drilling
Louis Novotny Phone (405) 245-3258
335753 E. 998 Road gppsnumber7@aol.com
Meeker, OK 74855-5744
Bitco Insurance July 03, 2020
clo Fox Hollow Consultants, Inc. Claim # 647648
Jerry Wollaston Advanced Oil
Ardmore, OK (GP-1 thru 7) OWRB # 201083
Mobile (580) 221-4546 (GP-8 thru 13; 8A) OWRB # 201084
Invoice # 202035
Advanced Oil Saltwater Release, Vogler Property
35.676444, -96.1241 58; 12435 Dentonville Rd., Okmulgee, OK 74447
(13) Soil Borings to 4 Feet TD; (1) Soil Boring to 8 Feet TD
$1600.00 (1) Regular OSHA Level “D” Day Rate @ $1600.00 Per Day
$ 272.00 Mob/Mileage/Demob Charge (170 Miles @ $1.60 Per Mile)
150.00 4) Rig, Tool & Equipment Decontamination 150.00 Per Da’
$2022.00 Total Amount Due for Invoice # 202035
Payment Terms: Net 30. Late Fee Charge: 2% Per Month—24% APR
Please make check payable to Great Plains Probing Services, LLC
Taxpayer ID Number: EIN# 74-3190380
Thank you.
Exhibit CCg ee —
AAvane e OH] Cor 49
_ Claim 647648
"PO Box OBS
CITY, STATE, ZIP , ;
[1 AaAy eY fe @)
ROB.
Sauie/e5)
Preview
IN THE DISTRICT COURT OF OKMULGEE COUNTY STATE OF OKLAHOMA JOSHUA VOGLER and ) TIFFANY VOGLER, husband and wife, ) ) Plaintiffs, ) J v. ) Case No, CJ-2018-208 ) ADVANCE OIL CORPORATION, ) an Oklahoma domestic business ) IN mS D corporation, ) T COORT ) oKM| EP 22 2020 Defendant. ) CHaRce Coy Defendant, Advance Oil Corporation (“Advance”), by and through its undersigned counsel of record, respectfully requests that the Court enter a protective order pursuant to Okla. Stat. tit. 12, § 3226(C)(1)(b), governing the timing and cost allocation for certain discovery to be had in this case. Specifically, Advance seeks to avoid further discovery disputes with Plaintiffs by an order that provides: a) Plaintiffs must testify in deposition before further discovery in this case may occur; b) Within three weeks after Plaintiffs’ depositions are completed, pursuant to Okla. Stat. tit. 12, § 3226(B)(4)(a)(1), Plaintiffs must disclose any expert who will testify in this matter on behalf of Plaintiffs and supplement their responses to Advance’s Interrogatory No. 16; c) Within six weeks after Plaintiffs’ depositions are completed, pursuant to Okla. Stat. tit. 12, § 3226(B) (4)(a)(1), Defendant must disclose any expert who will testify in this matter of behalf of Defendant and supplement its response to Plaintiffs’ Interrogatory No. 5; andd) Within one week after Plaintiffs’ depositions are completed, provided that Plaintiffs have paid Defendant one-half of the cost for the sampling, testing and analysis of samples taken from Plaintiffs’ property, Defendant shall provide to Plaintiffs a copy of the results of said testing. L equir ificatio’ Advance’s counsel has in good faith conferred or attempted to confer, either in person or by telephone, with counsel for Plaintiffs in an effort to resolve this dispute without court action. However, such efforts were unavailing, and Advance must look to the Court to resolve this dispute through an appropriate order. I. Applicable Legal Standard In general, “a party may not discover documents and tangible things that are prepared in anticipation of litigation or for trial by or for another party or its representative, including the other party's attorney, consultant, surety, indemnitor, insurer or agent” unless “the party shows that it has substantial need for the materials to prepare its case and cannot, without undue hardship, obtain their substantial equivalent by other means”. See Okla. Stat. tit. 12, § 3226(B)(3)(a). Even when a court orders discovery of such materials, “the court shall protect against disclosure of the mental impressions, conclusions, opinions or legal theories of a party's attorney or other representative concerning the litigation”. A special rule applies to such materials once a party discloses its testifying expert witness(es). Once a party has disclosed such expert(s) in accordance with Okla, Stat. tit. 12, § 3226(B) (4)(a)(1), the adverse party may seek to discover certain facts known and opinions held by such expert(s), even though they were acquired or developed in anticipation of litigation or for trial. See id. at § 3226(B)(4)(a). Among the categories of discoverable information available under this Section are communications between a 2party's attorney and an expert retained or specially employed to provide expert testimony in the case when such communications “identify facts or data that the party's attorney provided and that the expert considered in forming the opinions to be expressed”. See id. at § 3226(B)(4)(b)(2). The Oklahoma Discovery Code recognizes that, in certain circumstances, justice may require the entry of a protective order “to protect a party or person from annoyance, harassment, embarrassment, oppression or undue delay, burden or expense”. See id. at § 3226(C)(1). Upon motion, and for good cause shown, the Court may order “that the discovery may be had only on specified terms and conditions, including a designation of the time, place or the allocation of expenses”. See id. at § 3226(C)(1)(b). II. licable Fact On July 3, 2020, the parties cooperatively performed sampling upon the Plaintiffs’ Property. Advance paid all costs associated with the sampling, even though Plaintiffs insisted that each of the samples be split so that they could be independently tested. See Gray emails dated April 30, 2019, and August 26, 2020, attached respectively hereto as “Exhibit A” and “Exhibit B”. Dr. Bert Fisher was present for the sampling on behalf of Plaintiffs and oversaw the Proper splitting of the samples. Jerry Wollaston was present for sampling on behalf of Advance, determined the locations on the property from which each of the samples would be taken, obtained the necessary personnel and equipment to conduct the sampling and, afterwards, arranged for the testing of the samples and received the results. Advance incurred costs of $4,424.00 directly attributable to the sampling and analysis of the samples, See Invoices, attached hereto as “Exhibit C’”.Neither Dr. Fisher nor Mr. Wollaston has been endorsed in this litigation as a testifying expert. In their February 7, 2019, answers to Advance’s expert interrogatory, Plaintiffs each responded: Plaintiff objects that this Interrogatory calls for an improper marshalling of evidence or proof and is premature. Subject to and without waiving the foregoing objections: Plaintiff will designate and disclose its expert witnesses in accordance with any scheduling or pretrial order, the applicable local rules, and the Oklahoma Rules of Civil Procedure. See “Plaintiff, Joshua Vogler’s Verified Response to Defendant's First Set of Discovery Request to Plaintiff Joshua Vogler”, pp. 12-13 (Interrogatory No. 16 and Response), and “Plaintiff, Tiffany Vogler’s Verified Response to Defendant's First Set of Discovery Request to Plaintiff Tiffany Vogler”, pp. 12 (Interrogatory No. 16 and Response), attached respectively hereto as “Exhibit D” and “Exhibit E”, In its March 21, 2019, answer to Plaintiff's expert interrogatory, Advance responded: This interrogatory seeks information protected from disclosure under Okla. Stat. tit. 12, § 3226(B)(3) and (B) (4). Without waiving the foregoing objection, and in a good faith effort to respond, Advance states that it has not determined at this time which experts, if any, it will call as experts at trial, but Advance states that it will disclose all such witnesses in accordance with any order of the Court. See “Defendant Advance Oil Corporation’s Responses to Plaintiffs’ First Set of Interrogatories”, p. 3 (Interrogatory No. 5 and Answer to Interrogatory No. 5), attached hereto as “Exhibit F”, To date, no scheduling order has been entered in the case and neither Plaintiffs nor Advance have endorsed an expert for trial. On August 25, 2020, Plaintiffs’ counsel asked Advance to provide the testing results 4from the analysis Mr. Wollaston facilitated on the samples from the Plaintiffs’ property. See Gray and McDaniel email exchange of August 25, 2020, attached hereto as “Exhibit G”. Advance’s counsel responded by Proposing an exchange of Advance'’s testing results with Plaintiffs’ testing results and by requesting dates for the depositions of the Plaintiffs. See id. On August 26, 2020, Plaintiffs’ counsel informed Advance, “We took splits but decided not to send ours to the lab.” See Gray email of August 26, 2020, attached hereto as “Exhibit H”. He also stated, “I am fairly flexible to do the depo. We can do it in my Tulsa office—preferably on a Monday ora Tuesday”. See id. On September 1, 2020, Advance’s counsel proposed completing the Plaintiffs’ depositions on Tuesday, September 8th, See McDaniel and Gray email exchange of September 1, 2020, attached hereto as “Exhibit I”. Plaintiffs’ counsel responded that he had not yet spoken with his clients about the depositions and informed Advance, “I can’t do next Tuesday.” See id. The same day, Advance’s counsel informed Plaintiff's counsel that Advance was willing to provide its analysis of the samples after the depositions of the Plaintiffs were completed. See id. When Plaintiffs’ counsel objected to this, Advance’s counsel explained that Plaintiffs did not need the benefit of samples analyzed by experts in order to provide “the facts they know on which they base their claims against my client or about the damages they have sustained”. See id. Plaintiffs’ counsel responded by threatening to prevent his clients from answering “any questions about pollution” during their upcoming depositions. See id. Advance’s counsel requested dates once again so that Advance could notice the Plaintiffs’ depositions for a date that would not inconvenience Plaintiffs or their counsel.See McDaniel and Gray email exchange of September 2, 2020, attached hereto as “Exhibit J”. Plaintiffs’ counsel responded that he would be available to present his clients at his law office on September 15, 2020, but he stated that he would not agree to any date for the depositions before receiving Advance’s analysis of the samples. See id. On September 2, 2020, Plaintiffs’ counsel delivered to Advance a subpoena duces tecum and notice for the deposition of “Expert Jerry Wallaston”. See Notice of Deposition, attached hereto as “Exhibit K”. Inan email of the same date, Plaintiffs’ counsel stated, “get me the test results and we can postpone the depo and I'll also get you dates to do my folks.” See Gray email of September 2, 2020, attached hereto as “Exhibit L”. The following day, Plaintiff's counsel advised “We were not able to get Mr. Wallaston [sic] served so you can disregard the notice provided to you earlier in the week”. See Gray email of September 3, 2020, attached hereto as “Exhibit M”. On September 3, 2020, Advance provided a notice of deposition for each of the Plaintiffs. See Deposition Notices, attached hereto as “Exhibit N”. The depositions were scheduled to take place on September 15, 2020, at Plaintiffs’ counsel's office. See id. The same day, Plaintiff's counsel advised that he would be filing a motion to quash the depositions unless he received Advance’s testing results. See Exh, M. On September 9, 2020, Plaintiffs filed their “Motion to Quash Deposition Notice and Motion for Protective Order and Request for Expedited Hearing” and their “Motion to Compel Defendant to Respond to Plaintiffs’ Requests for Production of Documents”. The latter motion seeks an order requiring production of Advance’s analysis of the samples. IV. Argument A. The parties have not yet disclosed their testifying expert witnesses.In Oklahoma, disclosure of expert witnesses is governed by Okla. Stat. tit. 12, § 3226(B)(4)(a)(1): “a party may, through interrogatories, require any other party to identify each person whom that other party expects to call as an expert witness at trial and give the address at which that expert witness may be located.” In practice, a party may be unable to identify its expert witnesses until sometime after the deadline for responding to an expert interrogatory has passed, and the parties often look to the Court to include a deadline for disclosure of expert witnesses in a scheduling order or other order. No scheduling order has been entered in this case, and both Plaintiffs and Advance responded to expert interrogatories by agreeing to disclose expert witnesses in compliance with an order of the court. It is not uncommon for courts to stagger expert disclosures so that the plaintiff, who bears the burden of proof, discloses its experts before the defendant. Indeed, such a disclosure schedule furthers the interests of justice by allowing the defendant to identify as testifying experts only those experts who possess the necessary education, training and or expertise to critically evaluate the expertise and opinions of the plaintiff's testifying experts, if any. In the present case, Plaintiffs claim that Advance has polluted their property, and they bear the burden of proof on this claim. To the extent they intend to rely upon expert opinion to meet this burden, the Court should set a deadline for Plaintiffs’ expert disclosures that precedes the deadline for Advance’s expert disclosures. B. The documents sought by Plaintiff receive protection as work product. A document “prepared in anticipation of litigation or for trial by or for another party or its representative, including the other Party's attorney, consultant, surety, indemnitor,insurer or agent” is not subject to disclosure except as provided under Section 3226(B)(3) and (4). This protection extends to “communications between the party's attorney and any expert witness retained or specially employed to provide expert testimony in the case” except in limited circumstances not presently at issue. Subsection (B)(4) provides for discovery of facts known and opinions held bya testifying expert even though developed in anticipation of litigation or for trial, but only after disclosure of the expert pursuant to subsection (B)(4)(a)(1). See Okla. Stat. tit, 12, § 3226(B)(4)(a)(2) and (3). Until disclosed as a testifying expert, the expert is merely a consultant and should receive the same protections as a non-testifying expert under subsection (B)(4)(c). A party may not, by interrogatories or deposition, discover facts known or opinions held by such an expert absent a showing of exceptional circumstances under which it is impracticable for the party to obtain facts or opinions on the same subject by other means. See Okla. Stat. tit. 12, § 3226(B)(4)(c). Plaintiffs seek to discover the analysis of the samples taken from their property. This analysis was necessarily prepared for trial by Advance’s consultant for Purposes of the litigation. Accordingly, it is entitled to protection as work product. Plaintiffs possess the split samples that they required Advance to provide for them as a condition of taking samples from their property. They have elected not to test these samples. No exceptional circumstances exist that would make it impracticable for Plaintiffs to obtain their own analysis of these samples, C. Plaintiffs are not entitled to the benefit of Advance’s protected work product before providing their depositions in this case. Because Plaintiffs have alleged that Advance polluted their property, Advance is 8entitled to discover the facts known to Plaintiffs. Fact witnesses such as the Plaintiffs are competent to testify as to their perceptions and observations—what they have seen, tasted, smelled, heard or felt. Advance is entitled to such testimony to understand the facts upon which Plaintiffs base their claims and what resulting damages Plaintiffs believe they have sustained. The expert analysis of samples taken from the Plaintiffs’ property should not influence such testimony one way or another. D. Plaintiffs should be required to disclose their testifying expert witness(es) and supplement their responses to Advance’s expert interrogatories before Advance is required to disclose its testifying expert witness(es) and supplement its response to Plaintiffs’ expert interrogatory. It is not uncommon for courts to stagger expert disclosures so that the plaintiff, who bears the burden of proof, discloses its experts before the defendant. In the present case, Plaintiffs claim that Advance has polluted their property, and they bear the burden of proof on this claim. To the extent they intend to rely upon expert opinion to meet this burden, the Court should set a deadline for Plaintiffs’ expert disclosures that precedes the deadline for Advance’s expert disclosures. E. Plaintiffs should bear one-half of the cost of the sampling and analysis that led to the creation of the documents they seek. In the limited circumstances in which Oklahoma courts are permitted to allow discovery of facts known or opinions held by an expert who has not been disclosed asa testifying expert, the Discovery Code provides for the party seeking discovery to “pay the other party a fair portion of the fees and expenses reasonably incurred by the latter party in obtaining facts and opinions from the expert.” See Okla. Stat. tit. 12, § 3226(B) (4)(d)(2). In order to appropriately compensate Advance for waiving its work product protection in connection with the analysis sought by Plaintiffs, the Court should order thatPlaintiffs pay half of the costs Advance incurred in collecting, testing and analyzing the samples. The total amount of these costs is $4,424.00. F. The protective order sought herein is an appropriate tool for the Court to use to resolve the parties’ discovery dispute. Upon motion, and for good cause shown, the Court may order “that the discovery may be had only on specified terms and conditions, including a designation of the time, place or the allocation of expenses”. See Okla. Stat. tit. 12, § 3226(C)(1)(b). Advance has shown that it is entitled to take Plaintiffs’ depositions free from the influence of the analysis its consultant prepared for it. Advance has shown that a staggered disclosure of experts pursuant to Section 3226(B)(4)(a)(1) would further the interests of justice. Finally, Advance has justified the entry of an order that would require payment of one-half of the expenses it incurred in procuring, testing and analyzing the samples taken from the Plaintiffs’ property in exchange for Advance’s waiver of work product protections for the analysis provided to Advance by its consultant, Jerry Wollaston. For the foregoing reasons, Advance seeks an order of the Court that provides: a) Plaintiffs must testify in deposition before further discovery in this case may occur; b) Within three weeks after Plaintiffs’ depositions are completed, pursuant to Okla. Stat. tit. 12, § 3226(B)(4)(a)(1), Plaintiffs must disclose any expert who will testify in this matter on behalf of Plaintiffs and supplement their responses to Advance’s Interrogatory No. 16; c) Within six weeks after Plaintiffs’ depositions are completed, pursuant to Okla. Stat. tit. 12, § 3226(B)(4)(a)(1), Defendant must disclose any expert who will testify in this matter of behalf of Defendant and supplement its response to Plaintiffs’ Interrogatory No. 5; and d) Within one week after Plaintiffs’ depositions are completed, provided that Plaintiffs have paid Defendant one-half of the cost for the sampling, testing and analysis of samples taken from Plaintiffs’ property, Defendant shall provide to Plaintiffs a copy of the results of said testing. 10Respe. submitted, Michael J.JAcDaniel, OBA #18419 McDaniel Law 7107 South Yale Ave, #424 Tulsa, OK 74136-6308 918-695-5855 Michael@mcdaniel-law.com Counsel for Advance Oil Corporation CERTIFICATE OF SERVICE This is to certify that on the 10th day of September, 2020, a true, correct and exact copy of the above and foregoing instrument was sent via U.S. Mail to: Trae Gray Austin Meyer Landowner Firm, PLLC 37500 State Highway 31 Coalgate, Oklahoma 74538 Il . McDanielFrom: Trae Gray Sent: Tuesday, April 30, 2019 4:05 PM To: Michael McDaniel Ce: Austin Meyer Subject: Vogler Mr. McDaniel, As I think Austin told you, he is leaving our firm. I have prior commitments in another case on the 6th through the 8t (a site visit in Love County) with experts and opposing counsel that has been scheduled for months. If opposing counsel (or experts) visit my clients properties, I always reciprocate. For the reasons outlined above, I cannot meet your request to do the site visit on the 6". If you will get with your expert and get me the testing protocol that they want to conduct on the property, I will forward the same to our expert, then provide dates when we can get done all that you need to do on the property. I need the materials from your expert so we know the testing protocol and have the appropriate information to conduct split sampling. Thanks, TG Exhibit AFrom: Trae Gray Sent: Wednesday, August 26, 2020 12:41 PM To: Michael McDaniel Subject: Re: Vogler v. Advance Oil We took splits but decided not to send ours to the lab. You already have all of the other testing results from us related to previous testing so I don’t have anything to give you that you don’t already have. If you could have Gerry send that to Dr. Fisher when he can it would be appreciated. Lam fairly flexible to do the depo. We can do it in my Tulsa office — preferably on a Monday or Tuesday. TG From: Michael McDaniel Date: Tuesday, August 25, 2020 at 4:34 PM To: Trae Gray Ce: Matt Irby , Trisha Elliott , Gerald Wollaston Subject: Vogler v. Advance Oil Hey, Trae. I would be glad to do so. Since the samples were split and tested by Plaintiffs’ expert as well, let's arrange for an exchange. I'll get back to you as soon as | learn how quickly I will be able to make them available. I hope you and your clients are staying well during this difficult season. Recognizing the need for appropriate Social distancing, I would like to arrange their depositions to take place in a fairly large conference room, but I will need to reserve it ahead of time. Would you please visit with them to check on their availability and get back to me with some possible dates? ! look forward to hearing from you. Please note that I am no longer with Coffey Senger McDaniel, as that firm is now operating under a different name. My new contact information is below. Yours very truly, Michael J. McDaniel, Attorney MED McDaniel Law 7107 S. Yale Ave., #424 - Tulsa, OK 74136 918.695.5855 - michael @mcdaniel-law.com lls message and any documents accompanying this transmission may contain Privileged and/or confidential information and are intended solely for the addressee(s) named above. Please reply to the sender advising of any error in transmission and immediately delete /destroy the message and any accompanying documents, Thank you. Exhibit Bsree Original Message----- From: Trae Gray ‘uesday, August 25, 2020 2:47 PM like McDaniel Cc: Matt Irby Subject: Test results from Jerry Walaston Can you get me the test results from Walaston’s testing on the Vogler case? Exhibit BInvoice Soil, Water Forage Analytical Laboratory Invoice # 330331 Oklahoma State University Date 07/24/2020 048 Agricultural Hall Account No 10928521 Stillwater, OK 74078 CustCode 195 405-744-6630 Page 1 of 2 GERALD WOLLASTON Fox Hollow Consultants Inc. Fox Hollow Consultants Inc, 5354 Brock Rd. 5354 Brack Rd. ARDMORE OK 73401 ARDMORE OK 73401 Please Note : Send your payments to the OSU Bursar's Office, NOT SWFAL - T] hank You Sample Lab ID Login Date Description Sub Total 301 959597 07/08/2020 Soil - Comprehensive Salinity 55.00 302 959598 07/08/2020 Soil - Comprehensive Salinity 55.00 303 959600 07/08/2020 Soil - Comprehensive Salinity 55.00 304 959601 07/08/2020 Soil - Comprehensive Salinity 55.00 305 959602 07/08/2020 Soil - Comprehensive Salinity 55.00 306 959603 07/08/2020 Soil - Comprehensive Salinity 55.00 307 959604 07/08/2020 Soil - Comprehensive Salinity 55.00 308 959605 07/08/2020 Soil - Comprehensive Salinity 55.00 309 959606 07/08/2020 Soil - Comprehensive Salinity 55.00 310 959607 07/08/2020 Soil - Comprehensive Salinity 55.00 311 959608 07/08/2020 Soil - Comprehensive Salinity 55.00 312 959610 07/08/2020 Soil - Comprehensive Salinity 55.00 313 959611 07/08/2020 Soil - Comprehensive Salinity 55.00 314 959612 07/08/2020 Soil - Comprehensive Salinity 55.00 315 959613 07/08/2020 Soil - Comprehensive Salinity 55.00 316 959614 07/08/2020 Soil - Comprehensive Salinity 55.00 317 959615 07/08/2020 Soil - Comprehensive Salinity 55.00 318 959616 07/08/2020 Soil - Comprehensive Salinity 55.00 319 959617 07/08/2020 Soil - Comprehensive Salinity 55.00 320 959618 07/08/2020 Soil - Comprehensive Salinity 55.00 321 959620 07/08/2020 Soil - Comprehensive Salinity 55.00 322 959621 07/08/2020 Soil - Comprehensive Salinity 55.00 323 959685 07/08/2020 Water - Irrigation 15.00 324 959686 07/08/2020 Water - Irrigation 15.00 325 959687 07/08/2020 Water - Irrigation 15.00 326 959688 07/08/2020 Water - Irrigation 15.00 327 959622 07/08/2020 Soil - Comprehensive Salinity 55.00 328 959623 07/08/2020 Soil - Comprehensive Salinity 55.00 329 959624 07/08/2020 Soil - Comprehensive Salinity 55.00 330 959625 07/08/2020 Soil - Comprehensive Salinity 55.00 330,331 10928521 67530 C 1,490.00imple Lab ID Login Date Description Sub Total Total Amount Due $1490.00 Oklahoma State University The Office of the Bursar 113 Student Union Stillwater OK 74078 Remember to put your account number on your check. This Invoice will appear on your next Billing Statement from OSU Bursar’s Office. SUS 330,331 10928521 67530 C Exhibit C 1,490.00Direct Push Environmental Drilling Louis Novotny Phone (405) 245-3258 335753 E. 998 Road gppsnumber7@aol.com Meeker, OK 74855-5744 Bitco Insurance July 03, 2020 clo Fox Hollow Consultants, Inc. Claim # 647648 Jerry Wollaston Advanced Oil Ardmore, OK (GP-1 thru 7) OWRB # 201083 Mobile (580) 221-4546 (GP-8 thru 13; 8A) OWRB # 201084 Invoice # 202035 Advanced Oil Saltwater Release, Vogler Property 35.676444, -96.1241 58; 12435 Dentonville Rd., Okmulgee, OK 74447 (13) Soil Borings to 4 Feet TD; (1) Soil Boring to 8 Feet TD $1600.00 (1) Regular OSHA Level “D” Day Rate @ $1600.00 Per Day $ 272.00 Mob/Mileage/Demob Charge (170 Miles @ $1.60 Per Mile) 150.00 4) Rig, Tool & Equipment Decontamination 150.00 Per Da’ $2022.00 Total Amount Due for Invoice # 202035 Payment Terms: Net 30. Late Fee Charge: 2% Per Month—24% APR Please make check payable to Great Plains Probing Services, LLC Taxpayer ID Number: EIN# 74-3190380 Thank you. Exhibit CCg ee — AAvane e OH] Cor 49 _ Claim 647648 "PO Box OBS CITY, STATE, ZIP , ; [1 AaAy eY fe @) ROB. Sauie/e5)