Department of Toxic Substances Control v. Lisa Marie Rossi, an individual

Background

The Department of Toxic Substances Control brought the action against E-D Coat, Inc., Lisa Marie Rossi, Gerald F. Rossi, Lee Doslak Florence, and Patricia Rossi. The opinion states that E-D Coat had provided zinc, cadmium, and chromium electroplating services and that the Department alleged hazardous substances had been released while various defendants owned or operated the business.

The Department had issued an Imminent and/or Substantial Endangerment Determination and Order and Remedial Action Order in 2017. It alleged that the defendants did not comply with that order, requiring the Department and the United States Environmental Protection Agency to take actions to remove hazardous materials. The Department sought recovery of cleanup costs under section 107 of the Comprehensive Environmental Response, Compensation, and Liability Act, as well as other relief and penalties under state law.

Discovery disputes

In February 2021, the Department served requests for production and interrogatories on each defendant. After further discussions, the Department asserted that the defendants had not adequately responded to several requests. The defendants had provided some responses, asserted objections, and indicated that they might later produce additional discovery under a protective order. The Department stated that no further responsive discovery had been provided.

The defendants initially asserted numerous objections, including vagueness, overbreadth, burden, lack of relevance, duplication, harassment, attorney-work-product protection, and other objections. In response to the motions to compel, however, they abandoned those objections and instead submitted largely identical, undeveloped responses. The court said those responses did not provide details, argument, or legal authority.

Court’s analysis and ruling

The court explained that the Federal Rules of Civil Procedure generally favor full discovery and that the party resisting discovery must clarify, explain, and support its objections. It also stated that objections not raised and developed in opposition to a motion to compel may be treated as waived or abandoned.

The court found that the defendants’ objections that were not presented and developed in response to the motions had been abandoned. It also found that the few objections the defendants did present were nonspecific, unsupported, and totally undeveloped, and therefore had been abandoned as well. The court construed the defendants’ statement that they were consulting an accountant about relevant documents as a request to keep relevance objections available for later use. Judge Robert M. Illman denied that request and stated that any relevance objections had to be presented and argued at that time.

The court directed the parties to enter a protective order without further delay if the defendants believed one was needed. It granted all five motions to compel—Docket Nos. 32, 33, 34, 35, and 36—and ordered the defendants to produce all responsive discovery forthwith and without further objection.

The court denied the Department’s undeveloped request for costs and fees without prejudice. It stated that the Department could pursue attorney’s fees through a properly noticed motion complying with the court’s local rules, including detailed billing records and support for the reasonableness of the requested rates and hours.