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United States v. STABL, Inc.

United States District Court, D. Nebraska

October 2, 2018

UNITED STATES OF AMERICA, Plaintiff,
v.
STABL INC., LANT, INC., LEON JOHNSON, and ANN JOHNSON, Defendants. STATE OF NEBRASKA, Plaintiff,
v.
STABL, INC., LANT, INC., LEON JOHNSON, and ANN JOHNSON, Defendants.

          ORDER

          MICHAEL D. NELSON UNITED STATES MAGISTRATE JUDGE.

This matter comes before the Court following a discovery conference held with counsel for the parties by telephone on September 25, 2018, before the undersigned magistrate judge. The parties requested the conference to resolve a dispute in the scope of topics set forth in Defendants' revised 30(b)(6) deposition notices to the governmental plaintiffs. In advance of the conference, the Court received the following documents from the parties by email: Defendants' Revised Notice of 30(b)(6) Deposition to the United States (Exhibit A) and to the State (Exhibit B), a letter from the United States to defense counsel dated August 24, 2018, (Exhibit C), a letter from the State of Nebraska to defense counsel dated August 24, 2018, (Exhibit D), and defense counsel's letter in response dated September 19, 2018, (Exhibit E). During the telephone conference, all parties agreed that the Court may enter a ruling on the dispute raised in the above documents without formal motion practice.

         Previously, the Court granted the plaintiffs' motions for a protective order regarding the scope of topics noticed in Defendants' original Rule 30(b)(6) notices. The Court instructed Defendants to “re-notice the depositions and limit their topics of inquiry to factual issues relevant to these cases.” (Filing No. 149 in the Lead Case). According to the parties, Defendants' revised noticed deposition topics 9, 10, 13, and 16 remain in dispute for the United States, and topics 8, 9, 11, and 13 remain in dispute for the State, set forth below:

         United States' Topics in Dispute

         Topic 9: The identities of all individuals employed by the USA or the State of Nebraska who were involved in decisions to take steps to enforce and or collect the judgment entered by this Court on January 31, 2014[, ] against Stabl or Nebraska By-Products, Inc.

         Topic 10: The identities of all individuals employed by either the USA or the State of Nebraska who had “material responsibility” regarding compliance with the applicable statutes of limitations confronting the State of Nebraska in the collection and enforcement of the January 31, 2014 Judgment in the underlying case.

         Topic 13: All policies, written, oral, or procedural, regarding adherence to applicable statutes of limitations when enforcing judgments in favor of the USA.

         State's Topics in Disputes

         Topic 8: The identities of all individuals employed by the State who were involved in decisions to take steps to enforce and or collect the judgment entered by this Court on January 31, 2014[, ] against Stabl/Nebraska By-Products, Inc. in the underlying case (No. 8:11CV274).

         Topic 9: The identities of all individuals employed by the State who had “responsibility” regarding compliance with the statute(s) of limitations applicable to the causes of action contained within the State's Amended Complaint.

         Topic 11: All policies, written, oral, or procedural, or written form of the State regarding adherence to applicable statutes of limitations when enforcing judgments in favor of the State.

         Topics in Dispute for both Plaintiffs

         Topic 16 to the United States and Topic 13 to the State ask the plaintiffs to prepare a witness to testify as to “All facts which support each of Defendants' affirmative defenses set forth in this case and what documents reflect or contain such facts (if any).” (Ex. A and Ex. B).

         Defendants argue that their noticed topics seek factual information relevant to their affirmative defenses. As explained by Defendants in their brief in opposition to the United States' earlier motion to strike, their affirmative defenses in these cases largely relate to the government's conduct prior to obtaining the judgment in (or even the filing of) the underlying Clean Water Air action. (Filing No. 108 in the Lead Case). For example, Defendants' waiver defense asserts that “[The United States'] waiver arose from [its] approval of the 2010 Asset Purchase Agreement and the related sale, the [The United States'] failure to object to the sale, and [the United States'] ...


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