Preview
Filed 12 September 5 A11:18
Chris Daniel - District Clerk
Harris Count
ED101) 017060937
By: Wanda Chambers
CAUSE NO. 2011-76724
HARRIS COUNTY, TEXAS, Plaintiff; § IN THE DISTRICT COURT OF
and
THE STATE OF TEXAS, acting by and
through the TEXAS COMMISSION ON
ENVIRONMENTAL QUALITY, a
necessary and indispensable party
HARRIS COUNTY, TEXAS
Vv.
INTERNATIONAL PAPER COMPANY,
MCGINNES INDUSTRIAL
MAINTENANCE CORPORATION,
WASTE MANAGEMENT, INC., AND
WASTE MANAGEMENT OF TEXAS,
INC., Defendants. § 295th JUDICIAL DISTRICT
DEFENDANTS’ REPLY TO HARRIS COUNTY’S RESPONSE TO
DEFENDANTS’ VARIOUS MOTIONS FOR PROTECTIVE ORDER
Defendants file this Reply to Harris County’s Response to Defendants’ Various Motions
for Protective Order, filed electronically on September 4, 2012, as follows:
1 Defendants ask the Court to defer their responses to the County’s onerous
discovery requests (to date, more than 1,000 unique discovery requests) until the threshold legal
issues in the case are resolved, the allowable scope of the County’s claims has been defined, and
the legality of the County’s use of contingent-fee counsel to prosecute this case has been
resolved, The Court’s denial of Defendants’ applications for temporary injunction is currently
on appeal. Both sides have filed their opening briefs. Defendants’ reply briefs are due on
September 17, 2012. The appeal—including whether it is moot or not—will be decided quickly
as it is accelerated and is nearly fully briefed.'
' As Defendants explained in detail to the Court of Appeals, their appeal is not moot for a variety of
reasons. The County’s amendment of its own contingency-fee contract does nothing to avoid Defendants’
arguments that prosecution of a penalties-only case by for-profit, contingency-fee counsel violates Defendants’
2 There is serious risk with proceeding with merits-based discovery before that
appeal is resolved. If the Court of Appeals holds that the County’s contingent-fee arrangement is
illegal and/or unconstitutional, any discovery conducted by the County’s illegal and/or
unconstitutional contingent-fee counsel will be tainted. It will call the entire proceeding into
question and, at the very least, create difficult issues for the Court to sort out. There is no reason
to take that risk or to create those potential issues. The County waited over forty (40) years to
bring this suit, and the County is not seeking relief of a time-sensitive nature. The County is not
seeking an injunction, remediation, or even out-of-pocket damages. The County is seeking
exclusively civil penalties and fines which the County admits stopped accruing in April 2008.2
Given the relief sought and the status of the pending appeal, there is no compelling reason to
proceed with merits-based discovery and depositions with attorneys that may not be permitted to
participate in this case. Under these admittedly unique circumstances, the Court should stay
discovery in this case, receive direction from the Court of Appeals, and then proceed in due
course.
Moreover, this suit was brought only after International Paper Company
(“International Paper”) and McGinnes Industrial Maintenance Corporation (“MIMC”) completed
the time critical responsive action at the San Jacinto Waste Pits (the “Site) under the direction of
the U.S. Environmental Protection Agency (“EPA”). International Paper and MIMC are now
conducting the Remedial Investigation of the Site and will then perform the Feasibility Study
federal constitutional right to due process and the separation of powers doctrine in the Texas constitution, In
addition, all of Defendants’ arguments remain live because the County’s initial contingency-fee agreement that led
to the filing of this suit was statutorily or constitutionally invalid, and no later amendment can cure the infirmity and
retroactively protect Defendants’ rights. Furthermore, the mootess doctrine, even if it were arguably implicated,
has settled exceptions for cases where a party attempts to evade review of its actions—just as the County has done
(and could continue to do) by amending its own contract.
? The County’s First Amended Petition makes clear that it is not seeking penalties or fines after April 2008.
(See, e.g, Am. Pet. at JJ 106, 108, 112, 116, 119, 120, 122, 132, 135, 138, 144, 148, 151, 153, 157, and 161.)
2.
which will determine the appropriate remedial action for the Site. All this work is being
conducted under the auspices of the federal Superfund program. Afinal decision by EPA on the
appropriate remedial action is not expected until 2014. There is therefore no compelling reason
why Defendants must engage right now in the breathtaking amount of merits-based discovery
served by the County’s contingent-fee counsel. The County will suffer no prejudice if the
Court’s ruling on the pending motions for protection is postponed until the threshold standing,
jurisdictional, and injunction issues are determined by the appellate courts.
4 Moreover, the County has access to voluminous discovery now, without forcing
Defendants to object and respond to more than 1,000 unique discovery requests. The County,
pursuant to a Memorandum of Understanding (“MOU”) with EPA, has access to every draft,
interim final, and final report prepared by MIMC and International Paper for submittal to EPA
regarding the Site, Moreover, the County has been directly involved in the remediation of the
Site alongside EPA and the Texas Commission on Environmental Quality (“TCEQ”). In fact,
International Paper and MIMC representatives have been meeting regularly with the County
(including representatives of the Harris County Attorney’s Office), as well as representatives of
TCEQ, and various other state agencies and non-governmental organizations, about the Site in
periodic Community Awareness Committee meetings since January 2010. Accordingly,
pursuant to the MOU and its own participation in the remediation process, the County already
has access to voluminous technical and historical information regarding the Site. Furthermore,
the County has availed itself of documents in EPA’s possession through the Freedom of
Information Act (“FOIA”). In addition to documents internal to EPA, the County has access
through FOIA to MIMC’s and International Paper’s responses to EPA’s requests for information
3-
about the Site. Therefore, it is not as if the County is unable to make progress on its case
pending resolution of threshold legal issues.
5 Under these circumstances, the Court should protect Defendants from the over
1,000 discovery requests served by the County until the pending threshold legal issues are fully
and finally resolved. See, e.g., In re Alford Chevrolet-Geo, 997 S.W.2d 173, 181 (Tex. 1999);
Sells v. Drott, 330 S.W.3d 696, 706 (Tex. App—tTyler 2010, pet. denied); Davis v. Star-
Telegram Operating, Ltd., No. 05-98-00088-CV, 2000 WL 898839, at *6 (Tex. App.—Dallas
Jul. 7, 2000, pet. denied) (not designated for publication) (trial court did not abuse discretion in
limiting discovery while threshold questions of law were resolved); Miller v. State and County
Mut. Fire Ins. Co., 1 8.W.3d 709, 717 (Tex. App.—Fort Worth 1999, pet. denied) (trial court
stayed discovery pending resolution of venue and summary judgment issues when defendants
had been served with 173 requests for production and 243 requests for admission); Johnson v.
Sandel, 895 S.W.2d 490, 491 (Tex. App.—Houston [1st Dist.] 1995, no pet. h.) (affirming trial
court’s issuance of a protective order until threshold issue of official immunity is resolved), USXY
Corp. v. West, 759 8.W.2d 764, 767 (Tex. App.—Houston [1st Dist.] 1988, orig. proceeding).
6, Alternatively, if the Court is inclined to proceed with discovery now despite
pending appellate resolution, the Court should protect Defendants’ from the magnitude and
scope of discovery served by the County’s contingent-fee attorneys. The following unique
discovery requests have been served by the County: 790 requests for production, 165 requests for
admission, four corporate representative deposition notices each covering more than 25 topics
and requesting more than 25 categories of documents, and subpoenas to Defendants’ consulting
experts requesting 24 categories of documents each. Altogether, Defendants face responding and
objecting to more than 1,000 discovery requests, many of which seek information that is
-4-
patently irrelevant. The Court should not require Defendants to serve objections to each of the
nearly 1,000 discovery requests at this time. Instead, the Court should order the County’s
contingent-fee counsel to reassess the discovery requested and to meet-and-confer with
Defendants’ counsel on reasonable discovery limits and a reasonable discovery schedule before
serving new discovery requests. If a reasonable discovery schedule and limits cannot be reached
by agreement, the Court can then reconvene the parties to set reasonable discovery parameters
itself.
7 Alternatively, if the Court declines to facilitate a meet-and-confer process and
instead orders Defendants to respond and object to all pending discovery now, the County too
should be required to respond to Defendants’ long-standing requests for admission,
interrogatories, and requests for production contemporaneous with Defendants’ responses. The
County’s Motion for Protection is also set for hearing on Thursday, September 6th. If
Defendants are to be ordered to respond to pending discovery right now, the County should be
so-ordered as well.
CONCLUSION
Defendants respectfully ask that the Court grant their pending Motions for Protective
Order or defer ruling on same until the pending appeal is fully and finally resolved. Defendants
further request such additional relief to which they may justly be entitled.
Respectfully submitted,
BRACEWELL & GIULIANI LLP
By: 4s/ Glenn A. Ballard, Jr.
Glenn A. Ballard, Jr.
Texas Bar No. 01650200
John A. Riley
Texas Bar No. 16927900
Christopher L. Dodson
5.
Texas Bar No. 24050519
K. Knox Nunnally
Texas Bar No, 24063995
711 Louisiana, Suite 2300
Houston, Texas 77002-2770
Telephone: 713-221-2300
Telecopy: 713-221-1212
ATTORNEYS FOR WASTE MANAGEMENT,
INC., AND WASTE MANAGEMENT OF TEXAS,
INC.
WINSTEAD PC
By: /s/ Thomas T. Hutcheson
Thomas T. Hutcheson.
Texas Bar No. 10336500
Albert R. Axe
Texas Bar No. 01457400
1100 JPMorgan Chase Tower
600 Travis Street
Houston, Texas 77002
Telephone: 713-650-8400
Telecopy: 713-650-2400
ATTORNEYS FOR MCGINNES INDUSTRIAL
MAINTENANCE CORPORATION
BAKER & HOSTETLER LLP
By: /s/ Matthew W._Caligur
James L. Moore
Texas Bar No. 114348600
Matthew W. Caligur
Texas Bar No. 24031788
1000 Louisiana, Suite 2000
Houston, Texas 77002
Telephone: 713-751-1600
Telecopy: 713-751-1717
ATTORNEYS FOR INTERNATIONAL PAPER
COMPANY
-6-
CERTIFICATE OF SERVICE
Thereby certify that a true and correct copy of the foregoing pleading has been forwarded
to all counsel of record in this cause by email and regular mail pursuant to the Texas Rules of
Civil Procedure on the 5th day of September, 2012.
Rock W. A. Owens Mary E. Smith
OFFICE OF HARRIS COUNTY ATTORNEY OFFICE OF THE ATTORNEY
1019 Congress, Room 1547 GENERAL OF TEXAS
Houston, Texas 77002 P.O. Box 12548, Capitol Station
Austin, Texas 78711
ATTORNEY FOR HARRIS COUNTY
ATTORNEYS FOR THE STATE OF
Debra Tsuchiyama Baker TEXAS
Michael Connelly
Earnest W. Wotring
CONNELLY BAKER WOTRING LLP
700 JPMorgan Chase Tower
600 Travis Street
Houston, Texas 77002
ATTORNEYS FOR HARRIS COUNTY
/s/ Christopher L. Dodson
Christopher L. Dodson
-7-
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Filed 12 September 5 A11:18 Chris Daniel - District Clerk Harris Count ED101) 017060937 By: Wanda Chambers CAUSE NO. 2011-76724 HARRIS COUNTY, TEXAS, Plaintiff; § IN THE DISTRICT COURT OF and THE STATE OF TEXAS, acting by and through the TEXAS COMMISSION ON ENVIRONMENTAL QUALITY, a necessary and indispensable party HARRIS COUNTY, TEXAS Vv. INTERNATIONAL PAPER COMPANY, MCGINNES INDUSTRIAL MAINTENANCE CORPORATION, WASTE MANAGEMENT, INC., AND WASTE MANAGEMENT OF TEXAS, INC., Defendants. § 295th JUDICIAL DISTRICT DEFENDANTS’ REPLY TO HARRIS COUNTY’S RESPONSE TO DEFENDANTS’ VARIOUS MOTIONS FOR PROTECTIVE ORDER Defendants file this Reply to Harris County’s Response to Defendants’ Various Motions for Protective Order, filed electronically on September 4, 2012, as follows: 1 Defendants ask the Court to defer their responses to the County’s onerous discovery requests (to date, more than 1,000 unique discovery requests) until the threshold legal issues in the case are resolved, the allowable scope of the County’s claims has been defined, and the legality of the County’s use of contingent-fee counsel to prosecute this case has been resolved, The Court’s denial of Defendants’ applications for temporary injunction is currently on appeal. Both sides have filed their opening briefs. Defendants’ reply briefs are due on September 17, 2012. The appeal—including whether it is moot or not—will be decided quickly as it is accelerated and is nearly fully briefed.' ' As Defendants explained in detail to the Court of Appeals, their appeal is not moot for a variety of reasons. The County’s amendment of its own contingency-fee contract does nothing to avoid Defendants’ arguments that prosecution of a penalties-only case by for-profit, contingency-fee counsel violates Defendants’ 2 There is serious risk with proceeding with merits-based discovery before that appeal is resolved. If the Court of Appeals holds that the County’s contingent-fee arrangement is illegal and/or unconstitutional, any discovery conducted by the County’s illegal and/or unconstitutional contingent-fee counsel will be tainted. It will call the entire proceeding into question and, at the very least, create difficult issues for the Court to sort out. There is no reason to take that risk or to create those potential issues. The County waited over forty (40) years to bring this suit, and the County is not seeking relief of a time-sensitive nature. The County is not seeking an injunction, remediation, or even out-of-pocket damages. The County is seeking exclusively civil penalties and fines which the County admits stopped accruing in April 2008.2 Given the relief sought and the status of the pending appeal, there is no compelling reason to proceed with merits-based discovery and depositions with attorneys that may not be permitted to participate in this case. Under these admittedly unique circumstances, the Court should stay discovery in this case, receive direction from the Court of Appeals, and then proceed in due course. Moreover, this suit was brought only after International Paper Company (“International Paper”) and McGinnes Industrial Maintenance Corporation (“MIMC”) completed the time critical responsive action at the San Jacinto Waste Pits (the “Site) under the direction of the U.S. Environmental Protection Agency (“EPA”). International Paper and MIMC are now conducting the Remedial Investigation of the Site and will then perform the Feasibility Study federal constitutional right to due process and the separation of powers doctrine in the Texas constitution, In addition, all of Defendants’ arguments remain live because the County’s initial contingency-fee agreement that led to the filing of this suit was statutorily or constitutionally invalid, and no later amendment can cure the infirmity and retroactively protect Defendants’ rights. Furthermore, the mootess doctrine, even if it were arguably implicated, has settled exceptions for cases where a party attempts to evade review of its actions—just as the County has done (and could continue to do) by amending its own contract. ? The County’s First Amended Petition makes clear that it is not seeking penalties or fines after April 2008. (See, e.g, Am. Pet. at JJ 106, 108, 112, 116, 119, 120, 122, 132, 135, 138, 144, 148, 151, 153, 157, and 161.) 2. which will determine the appropriate remedial action for the Site. All this work is being conducted under the auspices of the federal Superfund program. Afinal decision by EPA on the appropriate remedial action is not expected until 2014. There is therefore no compelling reason why Defendants must engage right now in the breathtaking amount of merits-based discovery served by the County’s contingent-fee counsel. The County will suffer no prejudice if the Court’s ruling on the pending motions for protection is postponed until the threshold standing, jurisdictional, and injunction issues are determined by the appellate courts. 4 Moreover, the County has access to voluminous discovery now, without forcing Defendants to object and respond to more than 1,000 unique discovery requests. The County, pursuant to a Memorandum of Understanding (“MOU”) with EPA, has access to every draft, interim final, and final report prepared by MIMC and International Paper for submittal to EPA regarding the Site, Moreover, the County has been directly involved in the remediation of the Site alongside EPA and the Texas Commission on Environmental Quality (“TCEQ”). In fact, International Paper and MIMC representatives have been meeting regularly with the County (including representatives of the Harris County Attorney’s Office), as well as representatives of TCEQ, and various other state agencies and non-governmental organizations, about the Site in periodic Community Awareness Committee meetings since January 2010. Accordingly, pursuant to the MOU and its own participation in the remediation process, the County already has access to voluminous technical and historical information regarding the Site. Furthermore, the County has availed itself of documents in EPA’s possession through the Freedom of Information Act (“FOIA”). In addition to documents internal to EPA, the County has access through FOIA to MIMC’s and International Paper’s responses to EPA’s requests for information 3- about the Site. Therefore, it is not as if the County is unable to make progress on its case pending resolution of threshold legal issues. 5 Under these circumstances, the Court should protect Defendants from the over 1,000 discovery requests served by the County until the pending threshold legal issues are fully and finally resolved. See, e.g., In re Alford Chevrolet-Geo, 997 S.W.2d 173, 181 (Tex. 1999); Sells v. Drott, 330 S.W.3d 696, 706 (Tex. App—tTyler 2010, pet. denied); Davis v. Star- Telegram Operating, Ltd., No. 05-98-00088-CV, 2000 WL 898839, at *6 (Tex. App.—Dallas Jul. 7, 2000, pet. denied) (not designated for publication) (trial court did not abuse discretion in limiting discovery while threshold questions of law were resolved); Miller v. State and County Mut. Fire Ins. Co., 1 8.W.3d 709, 717 (Tex. App.—Fort Worth 1999, pet. denied) (trial court stayed discovery pending resolution of venue and summary judgment issues when defendants had been served with 173 requests for production and 243 requests for admission); Johnson v. Sandel, 895 S.W.2d 490, 491 (Tex. App.—Houston [1st Dist.] 1995, no pet. h.) (affirming trial court’s issuance of a protective order until threshold issue of official immunity is resolved), USXY Corp. v. West, 759 8.W.2d 764, 767 (Tex. App.—Houston [1st Dist.] 1988, orig. proceeding). 6, Alternatively, if the Court is inclined to proceed with discovery now despite pending appellate resolution, the Court should protect Defendants’ from the magnitude and scope of discovery served by the County’s contingent-fee attorneys. The following unique discovery requests have been served by the County: 790 requests for production, 165 requests for admission, four corporate representative deposition notices each covering more than 25 topics and requesting more than 25 categories of documents, and subpoenas to Defendants’ consulting experts requesting 24 categories of documents each. Altogether, Defendants face responding and objecting to more than 1,000 discovery requests, many of which seek information that is -4- patently irrelevant. The Court should not require Defendants to serve objections to each of the nearly 1,000 discovery requests at this time. Instead, the Court should order the County’s contingent-fee counsel to reassess the discovery requested and to meet-and-confer with Defendants’ counsel on reasonable discovery limits and a reasonable discovery schedule before serving new discovery requests. If a reasonable discovery schedule and limits cannot be reached by agreement, the Court can then reconvene the parties to set reasonable discovery parameters itself. 7 Alternatively, if the Court declines to facilitate a meet-and-confer process and instead orders Defendants to respond and object to all pending discovery now, the County too should be required to respond to Defendants’ long-standing requests for admission, interrogatories, and requests for production contemporaneous with Defendants’ responses. The County’s Motion for Protection is also set for hearing on Thursday, September 6th. If Defendants are to be ordered to respond to pending discovery right now, the County should be so-ordered as well. CONCLUSION Defendants respectfully ask that the Court grant their pending Motions for Protective Order or defer ruling on same until the pending appeal is fully and finally resolved. Defendants further request such additional relief to which they may justly be entitled. Respectfully submitted, BRACEWELL & GIULIANI LLP By: 4s/ Glenn A. Ballard, Jr. Glenn A. Ballard, Jr. Texas Bar No. 01650200 John A. Riley Texas Bar No. 16927900 Christopher L. Dodson 5. Texas Bar No. 24050519 K. Knox Nunnally Texas Bar No, 24063995 711 Louisiana, Suite 2300 Houston, Texas 77002-2770 Telephone: 713-221-2300 Telecopy: 713-221-1212 ATTORNEYS FOR WASTE MANAGEMENT, INC., AND WASTE MANAGEMENT OF TEXAS, INC. WINSTEAD PC By: /s/ Thomas T. Hutcheson Thomas T. Hutcheson. Texas Bar No. 10336500 Albert R. Axe Texas Bar No. 01457400 1100 JPMorgan Chase Tower 600 Travis Street Houston, Texas 77002 Telephone: 713-650-8400 Telecopy: 713-650-2400 ATTORNEYS FOR MCGINNES INDUSTRIAL MAINTENANCE CORPORATION BAKER & HOSTETLER LLP By: /s/ Matthew W._Caligur James L. Moore Texas Bar No. 114348600 Matthew W. Caligur Texas Bar No. 24031788 1000 Louisiana, Suite 2000 Houston, Texas 77002 Telephone: 713-751-1600 Telecopy: 713-751-1717 ATTORNEYS FOR INTERNATIONAL PAPER COMPANY -6- CERTIFICATE OF SERVICE Thereby certify that a true and correct copy of the foregoing pleading has been forwarded to all counsel of record in this cause by email and regular mail pursuant to the Texas Rules of Civil Procedure on the 5th day of September, 2012. Rock W. A. Owens Mary E. Smith OFFICE OF HARRIS COUNTY ATTORNEY OFFICE OF THE ATTORNEY 1019 Congress, Room 1547 GENERAL OF TEXAS Houston, Texas 77002 P.O. Box 12548, Capitol Station Austin, Texas 78711 ATTORNEY FOR HARRIS COUNTY ATTORNEYS FOR THE STATE OF Debra Tsuchiyama Baker TEXAS Michael Connelly Earnest W. Wotring CONNELLY BAKER WOTRING LLP 700 JPMorgan Chase Tower 600 Travis Street Houston, Texas 77002 ATTORNEYS FOR HARRIS COUNTY /s/ Christopher L. Dodson Christopher L. Dodson -7-