the extent the stay request is an attempt to reargue the
court's prior decision to allow the installation of three additional
monitoring wells, the time to do so has long passed.
At oral argument, movants agreed to use their best efforts to develop a
DEC-approved work plan that includes sampling in the general areas
designated for the three wells plaintiff wishes to install. (Tr. at 128.)
If this comes to pass, many of movants concerns will be mooted, as they
will have the opportunity to conduct their own sampling under the
auspices of DEC. If not, movants may apply to the court for relief in the
event the sampling it wishes to conduct conflicts with a DEC order. The
court will then attempt to fashion an appropriate remedy with the
participation of DEC.
II. MOTION TO MODIFY THE CASE MANAGEMENT ORDER
On June 14, 2000, this court adopted the Case Management Order,
following extensive discussion among the court and the parties. The
Order, which was entered over DMJ's objections, provides for the orderly
staging of discovery in three phases. As explained earlier, Phase 1
explores whether there is contamination and endangerment at the Capasso
Property, Phase 2 examines who or what caused it, and Phase 3 seeks to
develop a remedy. The goal is to limit the unnecessary expenditure of
time and resources by first establishing the existence of contamination
and endangerment, if any, and then linking the contaminants to the
responsible parties. As noted in the Order, the parties anticipated that
Phase 1 would last four months. (Case Management Order ¶ 1A(1)).
Paragraph IX of the Order allows any party to move to modify the Order
upon a showing of "good cause for such modification." (Id.. at ¶ IX
Plaintiff now wishes to modify the Order to permit Phase 2 document
discovery.*fn14 Although Phase 1 has not concluded, plaintiff alleges
there is good cause to modify the Case Management Order because (1) many
of the documents they seek are old, and with the passage of time it will
become increasingly difficult to locate them and contact related
witnesses; (2) the documents are necessary for 30(b)(6) depositions under
Phase 1, and without them plaintiff would be forced to re-depose many of
the same witnesses during Phase 2 of discovery; (3) the documents will
help identify the sources of toxic materials found on the Capasso
Property and determine who is responsible for their presence; and (4) the
litigation is five years-old and should not be delayed further.
Defendants argue that it would be burdensome and expensive to require
them to locate, and in some cases reconstruct, old documents before
plaintiff has even established that there is contamination and, in
the case of the RCRA claims, endangerment on the Capasso Property. They
note that even DEC has not made such a determination. Defendants hope to
file summary judgment motions at the close of Phase 1 discovery that would
extricate them from this lawsuit and urge that it would be unfair to
force them to expend resources in locating documents which might
ultimately prove unnecessary if the claims against them are dismissed.
DMJ counters that there is already sufficient evidence of contamination
to warrant at least an exchange of documents and that its rights are
being prejudiced by the slow pace of this lawsuit.
In a perfect world, discovery would proceed swiftly according to a
well-ordered progression of issues. However, as Phase 1 discovery grinds
into its third year, the court finds that circumstances have changed and
there is good cause to begin the discovery of Phase 2 documents*fn15.
The court is persuaded by plaintiff's arguments that, with the passage of
time, it may become increasingly difficult to locate documents and
witnesses, and that provision of these documents may increase the
efficiency of the discovery process*fn16. It is one thing to delay Phase
2 document production four months, as the Order initially contemplated,
and another to defer it two to three years — and perhaps longer
with anticipated motion practice. The court is mindful of the burdens of
document production, but finds that the potential benefits of preventing
the loss of documents and witnesses and expediting the progress of this
litigation, in keeping with the spirit underlying Congress's
authorization of citizen's suits, outweighs those burdens.*fn17
Accordingly, DMJ's motion to modify the Case Management Order is granted
for the limited purpose of conducting Phase 2 document discovery as
discussed at oral argument.
For the reasons set forth above, the motion for a stay is denied and the
motion to modify the Case Management Order is granted.