Brookshire Times-Tribune SOAH Judges Ruling and Order No. 12

-Article as posted by the Brookshire Times-Tribune

SOAH Rules On Discovery Issues For Proposed Landfill

Ernest Kaufmann, CEO of Green Group Holdings is spelled two different ways in the SOAH DOCKET NO. 582-14-3597 TCEQ DOCKET NO. 2012-0302-MSW. For accuracy, it is reported as spelled with one “N’ in the ORDER NO. 12, it is spelled with two “n”s as seen in Attachement A to the order. The actual spelling is Kaufmann.

During the Contested Case process, the State Office of Administrative hearings (SOAH) received requests from the Citizens Against the Landfill in Hempstead and the City of Hempstead for information that had been withheld by Green Group Holdings/Pintail Landfill. The following is the ruling by SOAH. In its Order No. 11, the Administrative Law Judges (ALJ) requred the following activities to occur before stated deadlines:

1. Access to the Landfill Site

The parties were required to resolve the issue of a lack of access to the site or to provide documentation and evidence concerning whether the Applicant possesses or has acquired a sufficient interest in the proposed permitted property.

Ruling on Site Access

The ruling on site access from the ALJ says, “It appears that the parties have resolved the issues related to site visits. According to Applicant, Applicant has arranged to acquire, for the attorney and party representative of both the City and CALH, liability insurance coverage as required by the owner and to provide the indemnification required by the owners. The City and CALF have been asked to provide dates for the site visit. Therefore, the ALJs find that the matter has been resolved and no further rulings are necessary.”

2. Privilege Log

The privilege log supplied by Applicant did not meet the requirements of Texas Rules of Civil Procedure 193.3. Specifically, Applicant did not provide the nature of the information or material such that the protesting parties can determine the applicability of privilege, including the document number, author or source, recipient persons receiving copies, date, document title, document type, number of pages and any other relevant information.

Ruling on Privilege Log

The ruling on this matter states, “The ALJs have made an in camera inspection of the documents provided by Applicant…the applicant is hereby ORDERED to produce the documents as identified in Attachment A to all parties within fifteen days of the date of this Order.

The City and CALH allege that the answers to interrogatories filed by Applicant consist of “numerous boilerplate objections without answers to any of the interrogatories, except for one to which Applicant responded, “No.”

Ruling on Written Discovery

The ALJs ruling is, “Under the circumstances, the City’s and CALH’s Motion is GRANTED as to the interrogatories. Applicant is ORDERED to respond and fully answer all interrogatories within 15 days of the date of this order. All objections to the interrogatories are denied. Applicant has waived all objections it has not previously stated, and Applicant must reply to the interrogatories in full…Continued failure of Applicant to comply with the requirements of the discovery process may subject it to further appropriate sanctions, pursuant to 30 Texas Administrative Code 80.107, including being charged for any or part of other parties’ expenses for discovery.”

The City and CALH allege that Applicant knowingly impeded the depositions of Applicant’s witnesses, Bill Hutchinson, Stefan Stamoulis, and Ernest Kaufman, by not producing relevant evidence in the witnesses’ possession or by making objections and then instructing the witness not to answer the questions. Missing field notes and field logs were argued and objections over the refusal of Mr. Kaufman to testify by attorney objection and instruction. The City and CALH also argued that TRCP 199.5(1) only allows a party to instruct a witness not to answer if necessary to preserve privilege, comply with a court order, or protect the witness from an abusive question.

Ruling on Depositions

The ALJ ruled, “Given the nature of the deposition questions and objections, the ALJs agree that Applicant has failed to comply with TRCP 199.5(1) by repeatedly objecting and requesting that the witnesses, Mr. Kaufman and Mr. Stamoulis, not answer the question. The ALJs, therefore, ORDER Applicant to make both witnesses available for a second deposition and that Applicant pay for following costs related to the second deposition of Mr. Kaufman and Mr. Stamoulis: all court reporter costs, and other parties’ attorney time spent in the deposition only (and not preparation or travel time). The ALJs will rule on the objections made at the deposition when the deposition transcript is offered into evidence, if and to the extent such objections are reasserted at that time.”

As to the field logs requested in discovery, but not produced, the ALJs rule that, “If they exist, they shall be provided within five working days after the date of this order. In addition Applicant (including Mr. Stamoulis in deposition) must identify, if requested at the hearing and is part of discovery by the other parties, what logs existed at one time but were not turned over to the opposing parties and what portion of Applicant’s testimony is related to those logs. The ALJs will then decide what weight to give evidence whose basis was not produced as part of the discovery process, and /or what was altered or destroyed.

According to Attachment A to Order No. 12, the following documentation must be produced by the Pintail Landfill group:

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