Clarke v. Pacific Gas & Electric Company

Opinion

1 2 3 4 UNITED STATES DISTRICT COURT 5 NORTHERN DISTRICT OF CALIFORNIA 6 7 DAN CLARKE, Case No. 20-cv-04629-WHO

8 Plaintiff, ORDER ON SECOND DISCOVERY 9 v. DISPUTE

10 PACIFIC GAS & ELECTRIC COMPANY, Re: Dkt. No. 52 et al., 11 Defendants.

12 13 Plaintiff Dan Clarke and defendants Pacific Gas and Electric Company and PG&E 14 Corporation (collectively “PG&E”) have submitted a joint letter to resolve a dispute concerning 15 Clarke’s Notice of Deposition of PG&E (the “Notice”). The parties dispute PG&E’s objections 16 and responses to three categories of information. Second Discovery Dispute Letter [Dkt. No. 52]. 17 I address each in turn. 18 Category No. 3: This category pertains to “Equitable’s use of the Cannery MGP and 19 Cannery MGP Site, including without limitation activities related to the generation, transport, 20 storage, and/or handling of manufactured gas and Waste.” Ex. A (PG&E Objections to Clarke’s 21 Notice of Deposition at 3–4). Equitable is the entity that operated the Cannery MGP from 22 approximately 1898 to 1903 before it transferred its business and property to San Francisco Gas 23 and Electric (“SFG&E”). PG&E has accepted liability for SFG&E’s acts. It denies liability for 24 Equitable’s acts and denies that SFG&E took actions that would create liability. 25 PG&E contends that it has already admitted, in its Answer, that Equitable operated the 26 Cannery MGP from 1898 through August 1903. Dkt. No. 48 ¶ 62. The details of that operation, it 27 argues, is not related to successor liability in Phase 1 discovery, but rather to Equitable’s potential 1 [Dkt. No. 37]. 2 Clarke contends that he needs information to connect liability between SFG&E and 3 Equitable. One way he claims he can do that is by showing that SFG&E and Equitable were in a 4 de facto merger. A relevant factor of a de facto merger is whether, post-acquisition, “[t]here 5 [was] a continuation of the enterprise of the seller corporation, so that there is continuity of 6 management, personnel, physical location, assets, and general business operations.” United States 7 v. Sterling Centrecorp Inc., 960 F. Supp. 2d 1025, 1042 (E.D. Cal. 2013), aff’d, 977 F.3d 750 (9th 8 Cir. 2020). To make this comparison, he argues that he needs to know about the predecessor’s 9 (Equitable’s) pre-acquisition enterprise in order to determine whether the successor (SFG&E) 10 continued that enterprise post-acquisition. 11 Clarke is entitled to information under this category. Although PG&E has provided when 12 Equitable was operational, Clarke would need to know the details of that operation in order to 13 compare it to SFG&E’s post-acquisition operation and support his de facto merger theory. See, 14 e.g., Sterling Centrecorp, 960 F. Supp. 2d at 1043 (finding the evidence established the 15 “continuation of enterprise” factor of a de facto merger because the former mine site owner’s 16 business operation matched the kind of operation continued by the successor company, including 17 “disposal” both before and after acquisition). 18 Category No. 34: This category asks PG&E to designate a witness to testify regarding 19 “The content and authenticity of Documents produced by Defendants and Plaintiffs in this 20 litigation.” Ex. A at 16. During the meet and confer process, Clarke reduced the scope of this 21 request to the approximately 200 documents produced by PG&E in this litigation (not in any 22 related litigation) and 8 documents produced by Clarke that were authored by PG&E. The parties 23 dispute whether PG&E is required to produce a witness to testify concerning the content of all of 24 these documents and as to the authenticity of the 8 PG&E documents produced by Clarke. 25 PG&E should designate a witness to testify about the authenticity of the 8 PG&E 26 documents produced by Clarke. To the extent that Clarke seeks a PG&E witness to testify about 27 the content of all documents, the request is denied without prejudice to the extent it becomes 1 adjudication or at some later point in the litigation. 2 Category No. 36: This category asks PG&E to designate a witness to testify regarding 3 “Whether the Documents created and/or produced by PG&E in this litigation and in Case No. 14- 4 cv-04393-WHO are business records, as that term is used in Federal Rule of Evidence 803(6); as 5 || party statements, per Federal Rule of Evidence 801(d)(2); and/or other hearsay exemptions.” Ex. 6 || Aat17. As before, Clarke agreed to limit this category to the 8 PG&E documents produced by 7 || him and the approximately 200 documents produced by PG&E in this litigation. 8 I agree with PG&E that this category improperly calls for a witness to testify about legal 9 conclusions regarding each of the documents, rather than facts about the documents. See Zeleny v. 10 || Newsom, No. 17-CV-07357-RS (TSH), 2020 WL 3057467, at *2 (N.D. Cal. Jun. 9, 2020) 11 (“[Q]uestions about legal contentions are ‘an improper topic for a Rule 30(b)(6) deposition.’”) 12 (quoting Lenz v. Universal Music Corp., 2010 WL 1610074, at *3 (N.D. Cal. April 20, 2010)). To 5 13 the extent that Clarke is concerned that PG&E may object to the admissibility of documents that 14 || he submits during summary judgment briefing, I will address that on a case-by-case basis, unless 3 15 the parties utilize a more practical approach to deal with the admissibility of documents. a 16 IT IS SO ORDERED. 2 17 |) Dated: July 8, 2021 18 : \ 19 liam H. Orrick 20 United States District Judge 21 22 23 24 25 26 27 28