United States District Court, N.D. Oklahoma
KUNNEMAN PROPERTIES LLC, On behalf of itself and all others similarly situated, Plaintiff,
MARATHON OIL COMPANY, Defendant.
OPINION AND ORDER
F. JAYNE JUDGE
the Court is Plaintiff's First Motion to Compel (ECF No.
50), which is GRANTED IN PART and
DENIED IN PART as set forth below.
Factual and Procedural Background
case involves the alleged underpayment, late payment, or
non-payment of royalties and oil and gas production proceeds
from gas-producing wells operated by Defendant Marathon Oil
Company (“Marathon”). Plaintiff Kunneman
Properties, LLC owns royalty interests in Marathon-operated
wells and purports to bring this action on behalf of itself
and others similarly situated in two separate classes.
Plaintiff claims Marathon “underpaid royalty by
deducting the costs necessary to make gas marketable when
Marathon bears the sole burden of shouldering those costs
under Oklahoma law.” ECF No. 50 at 4 (citing Compl.
¶¶ 61-89). Proposed Class I consists of all persons
who own or owned minerals in Oklahoma subject to an oil and
gas lease from September 1, 2011, to present wherein Marathon
improperly reduced royalty payments by charging the owners
for the cost of marketing, gathering, compressing,
dehydrating, treating, processing, or transporting
hydrocarbons produced. Proposed Class II consists of all
persons or entities who received untimely payments from
defendant or its designee for oil and gas proceeds from
Oklahoma wells, and whose payments did not include interest
required by statute.
in the case, when the parties filed their Joint Status
Report, Plaintiff argued that “discovery should not be
stayed, limited, or bifurcated.” ECF No. 39.
Conversely, Marathon argued that “discovery should be
bifurcated, with discovery prior to the class certification
hearing being limited to class certification issues and those
merits issues directly related to class certification.”
Id. On February 6, 2019, United States District
Judge John Dowdell issued a scheduling order setting a
discovery deadline of January 6, 2020, without making any
reference to bifurcation. ECF No. 42. Although the Scheduling
Order did not set a trial date or other pretrial motion dates
requested by Plaintiff, it otherwise tracks Plaintiff's
proposed schedule. Compare ECF No. 39 with
ECF No. 42. Accordingly, Judge Dowdell rejected
Marathon's proposal to bifurcate discovery into phases
and set one discovery deadline governing the case.
February 22, 2019, Plaintiff issued the discovery requests
currently at issue. On May 24, 2019, upon joint motion of the
parties, Judge Dowdell extended all deadlines but did not
revisit the issue of bifurcation. That amended scheduling
order, which currently governs the litigation, sets a
class-certification hearing for April 29, 2020, and sets a
discovery deadline of July 20, 2020. ECF No. 49. Shortly
after Plaintiff filed the pending motion to compel, Marathon
caused new counsel to enter an appearance, and the case was
reassigned to United States District Judge Gregory Frizzell.
Upon his entry to the case, Judge Frizzell did not issue a
new scheduling order or otherwise revisit scheduling issues.
On September 24, 2019, Judge Frizzell ruled on Marathon's
pending motion to dismiss. Pursuant to this ruling, the
remaining Class I claim is breach of lease, and the remaining
Class II claims are (1) breach of statutory obligation to pay
interest; (2) accounting and disgorgement; and (3) injunctive
relief. See ECF No. 83. No class has yet been
Standard of Review
Rule 26 of the Federal Rules of Civil Procedure, parties may
obtain discovery “regarding any nonprivileged matter
that is relevant to any party's claim or defense and
proportional to the needs of the case.” Fed.R.Civ.P.
26(b)(1). Discoverable information need not be admissible at
trial. Id. Rule 26 provides six factors to consider
regarding proportionality: (1) the importance of the issues
at stake in the action; (2) the amount in controversy; (3)
the parties' relative access to relevant information; (4)
the parties' resources; (5) the importance of the
discovery in resolving the issues; and (6) whether the burden
or expense of the proposed discovery outweighs its likely
benefit. Fed.R.Civ.P. 26(b)(1). This analysis often means
“that the burden of responding to discovery lies
heavier on the party who has more information, and properly
so.” Fed.R.Civ.P. 26(b) advisory committee's note
(2015 amendment). Rule 26's proportionality requirement
is not “intended to permit the opposing party to refuse
discovery simply by making a boilerplate objection that it is
not proportional.” Fed.R.Civ.P. 26(b) advisory
committee's note (2015 amendment).
requests must describe what is being sought with
“reasonable particularity.” Fed.R.Civ.P.
34(b)(1)(A). Objections to discovery requests must be stated
“with specificity.” Fed.R.Civ.P. 34(b)(2)(B).
Mere boilerplate objection language, such as “vague,
over-broad, unduly burdensome, not reasonably calculated to
lead to discovery of admissible evidence, ” without
more, is not sufficient. See Howard v. Segway, Inc.,
No. 11-CV-688-GKF-PJC, 2013 WL 869955, at *1, *3 (N.D. Okla.
Mar. 7, 2013). “When the district court does intervene
in discovery, it has discretion in determining what the scope
of discovery should be.” In re Cooper Tire &
Rubber Co., 568 F.3d 1180, 1189 (10th Cir. 2009).
District courts managing discovery matters are subject to
review only for abuse of discretion. See Caves v.
Beechcraft Corp., No. 15-CV-125-CVE-PJC, 2016 WL 355491,
at *1 (N.D. Okla. Jan. 29, 2016).
their brief and during the hearing, Marathon raised three
principal objections to Plaintiff's discovery requests:
(1) the requests are not relevant to class-certification
issues; (2) the requests will require extensive searches of
Marathon's electronically stored information
(“ESI”), which is overly burdensome prior to
class certification; and (3) all challenged individual
requests are facially overbroad or vague. Defendant contends
that, based on the thousands of documents it has already
produced related to oil and gas royalty calculations,
“both parties will have everything they need to fully
analyze and argue class certification” and that the
disputed requests are merely designed to “create
settlement leverage.” ECF No. 70 at 2.
response and during the hearing, Plaintiff argued: (1)
relevance is not limited to class certification issues and,
regardless, the disputed requests are relevant to class
certification; (2) Marathon's global objection to
producing any ESI is without merit; and (3) the challenged
individual requests are not overbroad or vague, in light of
Plaintiff's offer to limit ESI searches to specific
search terms and custodians. Plaintiff contends Marathon is
attempting to “curate document production to match
[its] sham defenses against class certification” and
that it “object[s] on relevancy and proportionality
grounds for the types of documents - i.e., internal
communications - that most clearly contain common answers for
class certification.” ECF No. 50 at 7.
Court holds: (1) discovery is not limited to
class-certification issues; (2) Marathon must search and
produce ESI, subject to agreed ESI protocols; and (3) certain
requests are vague or overbroad and will be limited by the
Discovery Is Not Limited to Class Certification
explained above, the district judge has not bifurcated
discovery into stages, and there is one discovery deadline
governing the litigation. Marathon has not moved for
modification of the scheduling order or for bifurcation, and
the Court will not revisit the issue of bifurcation under the
guise of sustaining Marathon's discovery objections. Nor
will the Court jeopardize the current scheduling order by
postponing the production of ESI until after a ruling on
class certification. Further, the Court finds the vast
majority of requests are relevant to class certification,
rather than merely merits issues, such that bifurcation would
not significantly limit the discovery being compelled.
Marathon's objections based on the requested
discovery's lack of relevance to class-certification
issues are overruled. Marathon's objections premised on
the discovery's lack of proportionality to this
“stage” of the proceedings are also overruled, as
discovery is not staged or bifurcated.
ESI Must Be Searched With Established ESI Protocols
multiple requests for production, Plaintiff is requesting
that Marathon search, review, and produce ESI. Specifically,
Plaintiff is requesting searches of email accounts, shared
folders, and desktop folders. Plaintiff stands willing (and
has been willing) to negotiate search terms, custodians, and
other ESI protocols for these requests. In support of its
global argument that ESI searches are overly burdensome,
Marathon relies on the affidavit of James Cashion, eDiscovery
Support Analyst at Marathon. Cashion explained that, prior to
March 26, 2018, emails not otherwise governed by a litigation
hold order were retained for 45 days. Id. at ¶
14. Cashion further represented that no backup data has been
retained for emails prior to February 9, 2018. Id.
at ¶ 15. ...