anschutz filings 12-28-11

UNITED STATES DISTRICT COURT WESTERN DISTRICT OF NEW YORK

JASON BAKER, JOHN BREWSTER, JOANN BREWSTER, MAXINE CONDON, KAREN FARRELL, BROOKS LIDDIARD, JANET LIDDIARD, JAMES MCDERMOTT, HEIDI MCDERMOTT, PAUL MOREY, DONETTA MOREY, JOE TODD, BONNIE TODD, TOM WHIPPLE and PAULINE WHIPPLE, Plaintiffs, v. ANSCHUTZ EXPLORATION CORPORATION, CONRAD GEOSCIENCE CORPORATION, PATHFINDER ENERGY SERVICES, INC. and JOHN and JANE DOES 1 through 100, Defendants.

Case No. 6:11-cv-06119-CJS-JWF

NOTICE OF MOTION OF DEFENDANT ANSCHUTZ EXPLORATION

CORPORATION FOR ENTRY OF A MODIFIED SCHEDULING ORDER

PLEASE TAKE NOTICE that upon the accompanying Declaration of Margot Timbel,

the accompanying Affidavit of Michael J. Guzman, and the accompanying Memorandum of

Law, dated December 28, 2011, Defendant Anschutz Exploration Corporation (“AEC”) hereby

moves this Court, before the Honorable Jonathan W. Feldman at the United States Courthouse,

100 State Street, Rochester, New York, at a date and time to be determined by the Court, for an

Order pursuant to Rule 16 of the Federal Rules of Civil Procedure, for a modified scheduling

order. The basis and authority for this motion are set forth in the attached Declaration, Affidavit,

and Memorandum of Law.

PLEASE TAKE FURTHER NOTICE that Defendant intends to file and serve reply

papers and that Plaintiffs are therefore required to file and serve opposing papers at least fourteen

(14) business days before the return date, or at such other time as the Court may direct.

Case 6:11-cv-06119-CJS -JWF Document 44 Filed 12/28/11 of 2

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Dated: December 28, 2011 Christopher D. Thomas NIXON PEABODY LLP 1300 Clinton Square Rochester, New York 14604 Telephone: (585) 263-1000 Fax: (585) 263-1600

By: /s/ Michael J. Guzman Mark C. Hansen pro hac vice Aaron M. Panner pro hac vice Michael J. Guzman pro hac vice KELLOGG, HUBER, HANSEN, TODD, EVANS & FIGEL, P.L.L.C. 1615 M Street, N.W. Suite 400 Washington, D.C. 20036 Tel. (202) 326-7900 Fax (202) 326-7999

Counsel for Anschutz Exploration Corporation

Case 6:11-cv-06119-CJS -JWF Document 44 Filed 12/28/11 of 2


JASON BAKER, JOHN BREWSTER, JOANN BREWSTER, MAXINE CONDON, KAREN FARRELL, BROOKS LIDDIARD, JANET LIDDIARD, JAMES MCDERMOTT, HEIDI MCDERMOTT, PAUL MOREY, DONETTA MOREY, JOE TODD, BONNIE TODD, TOM WHIPPLE and PAULINE WHIPPLE, Plaintiffs, v. ANSCHUTZ EXPLORATION CORPORATION, CONRAD GEOSCIENCE CORPORATION, PATHFINDER ENERGY SERVICES, INC. and JOHN and JANE DOES 1 through 100, Defendants.

Case No. 6:11-cv-06119-CJS-JWF

DEFENDANT ANSCHUTZ EXPLORATION CORPORATION’S

MEMORANDUM OF LAW IN SUPPORT OF A MODIFIED SCHEDULING ORDER

Defendant Anschutz Exploration Corporation (“AEC”) moves for entry of a Modified

Scheduling Order (attached hereto) that will focus the next phase of discovery on alleged

contamination, injury, and causation. Defendant Pathfinder Energy Services, Inc. (“Pathfinder”)

supports the motion.1

1 Counsel for AEC and Counsel for Plaintiffs have met and conferred pursuant to L.R Civ. P 7(d)(4) by phone and by email on several occasions during the week of December 19, 2011, but have been unable to agree on what the next phase of discovery should include. AEC and Pathfinder seek focused discovery as described in this motion. Plaintiffs prefer to move directly into fact depositions and then expert discovery. Pursuant to this Court’s Scheduling Order of May 4, 2011 (Dkt. No. 29), the parties will submit a joint pleading outlining their competing proposals for the next phase of discovery.

As set out in detail below, good cause exists for deviating from the normal

course of discovery. See Fed. R. Civ. P. 16(b)(4). Plaintiffs’ written discovery responses

coupled with well testing results show obvious deficiencies in their allegations. In a nutshell,

Plaintiffs refuse to specify what contamination they allege is in their wells, what physical injuries

Case 6:11-cv-06119-CJS -JWF Document 44-7 Filed 12/28/11 Page 1 of 18

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(if any) they allege as a result, or how Defendants’ activities could have caused the alleged

contamination and injury. Before the Court orders the Parties to embark on a burdensome and

time-consuming round of depositions and then proceed to expert discovery, Plaintiffs should be

required to (1) demonstrate that their wells are contaminated with substances known to cause

whatever physical injuries, including cancer, that they claim, (2) specify whether any of them

alleges physical harm arising from alleged contamination, and (3) show a causal link between the

alleged exposure, the alleged physical harm, and Defendants’ natural gas drilling activities

approximately half a mile away. In a near-identical case brought by the same lawyers who are

counsel for Plaintiffs here, a Colorado court recently entered such an order.2

INTRODUCTION

A copy is attached

for the Court’s convenience.

Plaintiffs claim that Defendants’ drilling of two natural gas wells in Chemung County,

New York (the “Dow Wells”) contaminated their residential water wells. But Plaintiffs did not

test their wells prior to filing their Complaint. As a result, the Complaint does not specify the

type of alleged contamination in the water wells or the nature of Plaintiffs’ claimed physical

injuries (if any). The Complaint also makes no attempt to link any alleged contamination to any

particular injury; nor does the Complaint attempt to plead a theory for how Defendants’ activities

actually caused the alleged contamination. Instead, Plaintiffs’ whole case seems to rest on a res

ipsa loquitur theory of causation – i.e., they never had problems with their wells before

Defendants arrived.

Defendant AEC highlighted these deficiencies at the outset of the case and sought

discovery focused on specificity and causation. Plaintiffs resisted, insisting that notice pleading

2 See Modified Case Management Order, Strudley v. Antero Res. Corp., No. 2011 CV 2218 (Colo. D. Ct. Nov. 10, 2011) (“Strudley Modified CMO,” attached hereto as Exhibit A).


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under the Federal Rules requires nothing further from them. Recognizing the disproportionate

burden of discovery on Defendants in this action, this Court limited the initial phase to written

discovery only and ordered the Parties to submit a joint pleading recommending a course of

action for the next phase once written discovery was complete.

The results of written discovery show the Court’s wisdom in proceeding with measured

steps. The post-Complaint well testing shows that Plaintiffs’ wells are free from allegedly toxic

contamination, industrial wastes, and sludge. While some wells showed elevated levels of

methane and/or ethane, isotopic testing by the New York State Department of Environmental

Conservation (“DEC”) — the regulatory body responsible for overseeing oil and natural gas

development in New York — showed that natural gas in Plaintiffs’ wells was shallow gas with

an identifiably different chemical composition than the deep gas tested from the Defendants’

10,000 feet deep wells. The DEC found that natural gas is not toxic and is common in residential

water wells in the area. The DEC recommended “venting” wells that contain shallow methane

so that the gas can escape harmlessly into the atmosphere. Several plaintiffs did so. See Condon

Resp. to AEC Interrog. No. 9 (June 30, 2011); Todds Resp. to AEC Interrog. No. 9 (June 30,

2011); Whipples Resp. to AEC Interrog. No. 9 (June 30, 2011).3

Discovery to date also shows that not a single plaintiff claims material physical injuries

caused by any alleged contamination.

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3 Plaintiffs’ answers to AEC’s interrogatories are attached hereto as Exhibit C.

Instead, Plaintiffs refuse to produce any medical records

on the ground that they have not “knowingly sustained personal injuries that have manifested,

have been treated by medical professionals, nor that are personally known to the Plaintiffs.”

4 Plaintiff Donetta D. Morey claims “emotional distress and mental anguish,” specifying that she “went into depression,” and suffered from “insomnia, mood swings, a change in personality, apath[y] towards life and activities once enjoyed, [and] loss of energy even when rested.” Morey Resp. to AEC Interrog. No. 8 (June 30, 2011).


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E.g., Liddiards Resp. to Interrog. No. 8 (June 30, 2011). Similarly, Plaintiffs refuse to identify

treating physicians or other medical service providers because they claim that they “have not

placed their health or physical condition at issue in this litigation in any other manner and [their]

medical condition(s), diagnoses and treatment for unrelated issues is privileged . . . . Plaintiffs

are only asserting damage claims requiring medical monitoring, including fear of cancer.” E.g.

id.

In contrast to Plaintiffs’ obstructionist approach to written discovery, Defendants have

produced a large volume of documents detailing their activities at the Dow Wells. These

documents show that the wells were designed and constructed to the current state of the art and

in complete conformance with all applicable regulations. The DEC inspected the wells nearly

daily during the construction phase and did not issue a single citation or notice of violation.

Defendants have already incurred substantial costs in defending against this frivolous

case. See Declaration of Margot Timbel (AEC defense costs have surpassed one million dollars).

Proceeding with additional discovery in the traditional manner ensures that those costs will

escalate further. Unfocused discovery will involve deposing more than two dozen fact witnesses

and then eliciting expert testimony in a variety of disciplines, including well construction,

hydrogeology, toxicology, medical causation, and property valuation.

Rather than begin an expensive and disruptive round of general purpose depositions,

Defendants respectfully renew their request for entry of a Lone Pine order and ask this Court to

stage the next phase of discovery like the Colorado court did in Strudley. The purpose of a Lone

Pine order, which derives its name from Lore v. Lone Pine Corp., No. L-33606-85, 1986 WL

637507 (N.J. Sup. Ct. Nov. 18, 1986), is “to identify and cull potentially meritless claims and

streamline litigation in complex cases.” Baker v. Chevron USA, Inc., No. 1:05-cv-227, 2007 WL


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315346, at *1 (S.D. Ohio Jan. 30, 2007). Here, a Lone Pine order would require Plaintiffs to set

forth a prima facie case on the issues of exposure, injury, and causation.

FACTUAL AND PROCEDURAL BACKGROUND

Plaintiffs are “individuals who are and/or were residents and/or property owners in the

Town of Horseheads,” in New York State. Compl. ¶ 2. Plaintiffs “complain . . . of

environmental contamination and polluting events caused by the conduct and activities of the

defendants,” which allegedly “caused releases, spills, and discharges of combustible gases,

hazardous chemicals and industrial wastes from its various oil and gas drilling facilities.” Id. ¶ 1.

In alleging that Defendants’ drilling activities released “combustible gases, toxic

pollutants, and hazardous chemicals” into Plaintiffs’ water wells, Plaintiffs allege the presence of

“[e]levated levels of dissolved methane, propane, or other natural gases,” “[n]atural gas,”

“[p]ollutants, including but not limited to toxic sediments, and industrial and/or residual waste,”

and “[d]rilling muds and fluids.” Id. ¶¶ 97, 107.

Plaintiffs allegedly suffered harm because “their potable water and their property” was

“exposed to . . . hazardous gases, chemicals and industrial wastes,” causing “damage to . . .

natural resources” and “causing plaintiffs to incur health injuries, loss of use and enjoyment of

their property, loss of quality of life, emotional distress and other damages.” Id. ¶ 1.

The Complaint names three defendants: AEC, alleged to be a Delaware Corporation with

its principal place of business in Colorado; Pathfinder Energy Services, Inc. (“Pathfinder”),

alleged to be a Louisiana Corporation with its principal place of business in Louisiana; and

Conrad Geoscience Corporation (“Conrad”), alleged to be a New York Corporation with its

principal place of business in New York. Id. ¶¶ 20, 48, 60. According to the Complaint, AEC

“engaged in drilling activities, and owned and operated” two gas wells near Plaintiffs’ properties.

Id. ¶ 83; see also id. ¶ 85. Pathfinder allegedly “engaged in drilling activities” at those wells. Id.


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¶ 84. Plaintiffs do not allege that Conrad engaged in any drilling activities. The sole allegations

concerning Conrad in particular are that it was “retained by [AEC] to investigate groundwater

contamination complaints caused by the drilling activities” at the two wells; and that Conrad

“failed to conduct a reasonable and prudent investigation . . . that would have warned plaintiffs

and the public about the subsurface contamination.” Id. ¶¶ 89, 90; see also ¶ 101 (alleging that

“Defendants provided no warning of the risk of groundwater contamination”); compare

Plaintiff’s [sic] Memorandum of Law in Support of Motion To Remand Pursuant to 28 U.S.C.

§ 1447(c) at 2 (Dkt. No. 20-5).

The Complaint includes ten counts arising out of a single set of operative facts:

negligence, negligence per se, private nuisance, premises liability, trespass, strict liability under

Navigation Law Article 12, strict liability for an “abnormally dangerous activity,” deceptive

business acts and practices, “fear of developing cancer,” and “future medical monitoring.” The

Complaint seeks $2 billion in damages.

On May 4, 2011, the Court entered a scheduling order calling for mandatory disclosures

under Rule 26(a)(1) to be completed by June 1, 2011, and document discovery (including

interrogatories) to be completed by December 2, 2011. See Scheduling Order (Dkt. No. 29).

Between May 4, 2011 and December 2, 2011, AEC and Conrad propounded

interrogatories, requests for production, and requests for admission upon Plaintiffs. In response,

Plaintiffs produced 2,015 pages of documents and one video clip. Plaintiffs also answered short

informal questionnaires.

ARGUMENT

The Court should focus discovery on exposure, injury, and causation for four reasons.

First, Plaintiffs’ claims have lacked foundation and specificity from the outset. Second, six

months of written discovery has done nothing to focus or substantiate their claims. Post-


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Complaint well testing shows that Plaintiffs’ wells are clean but for some elevated levels of

natural gas. Plaintiffs’ discovery answers and document production seem to disclaim alleged

physical injuries from contamination, but Plaintiffs also ambiguously suggest that the injuries

may not yet have manifest themselves and reserve the right to update their interrogatory answers.

Third, Plaintiffs make no attempt to rebut DEC’s investigation and conclusion that the presence

of methane in some of Plaintiffs’ wells is a naturally occurring event that has been well-known in

the area for decades. Finally, focusing discovery now will streamline issues and simplify the

case. The deposition phase of the case will be more efficient and less burdensome if Plaintiffs

are required to first state definitively what contamination they allege, what injuries they claim

resulted, and how they believe Defendants caused the alleged contamination.

I. Plaintiffs’ Pre-Complaint Investigation Was Deficient

In their Complaint, Plaintiffs asserted that Defendants’ actions in drilling, constructing,

and operating the Dow Wells caused hazardous substances to be discharged into the well water

Plaintiffs use for their water supply. See Compl. ¶ 97. But they did not identify (1) what

substances in their water wells were toxic, (2) in what amounts they were toxic, (3) how those

substances resulted from Defendants’ drilling activities, or (4) how those substances caused

current or future injury to people or property. Indeed, other than methane and ethane, Plaintiffs

did not identify any chemicals by name as present in their well water. This is no surprise

considering Plaintiffs and their counsel conducted minimal investigation and no testing prior to

filing their Complaint.

To be sure, Plaintiffs clearly alleged that natural gas contaminates their well water. See

Compl. ¶ 100. But methane is a common gas found throughout the local aquifer. Plaintiffs did

not allege a basis for considering it “toxic” or explain how it resulted from Defendants’ activities


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rather than naturally-occurring sources. They have also not specified any physical injuries they

claim were caused by natural gas.

Moreover, government investigations have already ruled out the possibility that methane

is toxic and resulted from Defendants’ activities. In a November 2010 fact sheet, summarizing

the results of a preliminary investigation, the DEC stated that methane “commonly occurs in

residential water wells since it is often present in bedrock at shallow depths” and it is “not toxic.”

DEC Fact Sheet at 1 (Nov. 2010) (Dkt. No. 22-2).

The DEC went further and rejected any connection between the gas wells and water

wells. There was “clear evidence that methane and turbidity were present in the area’s water

wells years before either of the Dow gas wells was drilled,” the DEC reported. DEC

Memorandum Report at 1 (Jan. 31, 2011) (Dkt. No. 22-3). It was “unlikely” that drilling and

operation of the Dow Wells could cause “gas from deeper formations [to] migrate through

multiple cemented casing strings [surrounding the Dow Wells] into any aquifers near the

surface.” Id. at 1-2. Moreover, after conducting an isotopic analysis of gas found in Plaintiffs’

wells and gas from one of the Dow wells, the DEC concluded that the deep gas from the Dow

test had a distinct isotopic composition from gas found in the Plaintiffs’ wells and thus the two

were from “different sources of gas.” Letter from T. Santulli to Mr. & Mrs. R. Sixt at 2 (Apr. 6,

2011) (Dkt. No. 22-4). Plaintiffs have not addressed these findings in discovery.

II. Plaintiffs’ Failed to Produce Facts in Discovery that Substantiate Their Allegations

Despite six months of written discovery, Plaintiffs have carefully avoided providing

specificity or narrowing their case. The initial disclosures, interrogatory and questionnaire


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responses, and document production in the first stage of discovery did not fill the gaps left by

their Complaint or rebut the conclusions of the government investigation.5

• Identification of Toxic Substances: Plaintiffs provided the results of post-Complaint

laboratory testing of their well water, which show that Plaintiffs’ wells are generally

clean. Plaintiffs did not identify which, if any, of the substances found in the wells

are toxic (i.e., capable of causing injury), much less identify whether they claim

injuries caused by some particular contaminant used at the Dow well sites. When

asked to “describe . . . the nature of the alleged contamination,” and “state which of

the alleged contaminants are present in [each Plaintiff’s] well,” AEC Interrog. Nos. 5,

11 (attached hereto as Exhibit B), Plaintiffs objected to each request “on the grounds

that it is vague, ambiguous, requires interpretation” and “seeks expert testimony,” e.g.

Baker Resp. to AEC Interrog. Nos. 5, 11 (June 30, 2011). They otherwise repeated

their vague descriptions of alleged contamination.

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5 Plaintiffs’ document production was largely duplicative of their Rule 26(A)(1) disclosures. Both Plaintiffs’ document production and Rule 26(A)(1) disclosures consisted primarily of AEC’s own files as submitted to the New York Department of Environmental Conservation in response to Freedom of Information Law requests.

See Baker Resp. to AEC Interrog.

No. 11 (“gassy water, milky water, or sediment”); Liddiards Resp. to AEC Interrog.

Nos. 5, 11 (“methane gas,” “gas bubbles,” “cloudiness,” “and seems to have

sediment”); Brewsters Resp. to AEC Interrog. No. 11 (June 30, 2011) (“elevated

methane levels and sediment of unknown makeup”); Moreys Resp. to AEC Interrog.

No. 11 (“elevated methane levels and sediment of unknown makeup”); Todds Resp.

6 There was one exception: Plaintiff Maxine Condon did specifically allege the presence of “barium” and “fecal coli form.” Condon Resp. to AEC Interrog. Nos. 5, 11 (“natural gases, barium, fecal coli form, odors, brown sediment, and grey sediment”).


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to AEC Interrog. No. 11 (“elevated methane levels and toxic sediment of unknown

makeup”); Whipples Resp. to AEC Interrog. No. 11 (“elevated methane levels and

sediment of unknown makeup”); Farrell Resp. to AEC Interrog. No. 11 (June 30,

2011) (not even a general description of contamination). To the extent that Plaintiffs

alleged the presence of methane, ethane, or turbidity, they did not provide evidence

showing that methane, ethane, or turbidity are toxic.

• Injury to Person or Property: Plaintiffs have not produced evidence that alleged

contamination in Plaintiffs’ well water caused any sort of personal injury or loss of

property value. Instead, Plaintiffs equivocate and defer any specificity regarding their

claims to their experts. To avoid producing medical records now, for example,

Plaintiffs disclaim damages for any past or current physical conditions, arguing that

they are “only asserting damage claims requiring medical monitoring, including fear

of cancer.” E.g. Baker Resp. to AEC Interrog. No. 8.7

Plaintiffs should not be allowed to equivocate about present health effects,

claim to live in fear of future health effects, and yet refuse to disclose anything about

their existing baseline health or personal habits. Plaintiffs’ current physical state and

fitness levels are obviously relevant to their claims for either current or future health

concerns. And even claims of medical monitoring and fear of cancer require

Similarly, Plaintiffs have

produced no evidence explaining how a substance in their well water might cause

cancer, or any other future disease. Yet, Plaintiffs also suggest that they may already

be suffering from some undiscovered health effects, and they “reserve the right to

supplement th[eir] response[s] up to and including the time of trial.” E.g. Brewsters

Resp. to AEC Interrog. No. 8.

7 Plaintiff Donetta D. Morey alleges emotional and mental damages. See supra note 4.


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Plaintiffs to specify their exposure to a hazardous substance, at toxic levels, sufficient

to cause disease and thereby provide a rational basis for the fear of contracting

disease. See In re Methyl Tertiary Butyl Ether (MTBE) Prods. Liab. Litig., 379 F.

Supp. 2d 348, 430 (S.D.N.Y. 2005); Sorrentino v. ASN Roosevelt Ctr., 579 F. Supp.

2d 387, 390 (E.D.N.Y. 2008); Abbatiello v. Monsanto Co., 522 F. Supp. 2d 524, 539

(S.D.N.Y. 2007); Jones v. Utilities Painting Corp., 198 A.D.2d 268, 268 (2d Dep’t

1993).

With respect to claimed losses in property value and enjoyment of property,

Plaintiffs object to requests for specificity and do not quantify or detail any such

losses, instead responding with conclusory platitudes. E.g. Brewsters Resp. to AEC

Interrog. No. 13 (“Plaintiffs’ property has diminished in value due to water

contamination and discoloration that has resulted from Defendants’ activities.”); id.

Interrog. No. 14 (“Plaintiffs have lost enjoyment of property and quality of life

through the diminished quality of water and this diminished water quality has created

emotional stress and economic burden.”).8

• Causation: Plaintiffs also did not produce evidence demonstrating a causal

connection between Defendants’ activities and the presence of any substance in

Plaintiffs’ water wells. When asked to “describe with specificity any problems the

Plaintiff had with his/her ground water wells . . . especially problems such as

contamination,” and “identify . . . the cause or suspected cause of the problem,” AEC

8 The Liddiards and the McDermotts provide some more detail. The McDermotts elaborate on, but do not quantify, their losses, noting some “anxi[ety] that disclosure of these water quality issues will deter prospective buyers.” McDermotts Resp. to AEC Interrog. No. 14. The Liddiards cite a purchase offer they received on their home for $125,000; the offer “was disapproved with suspicion that disapproval occurred due to methane contamination”; the house eventually sold for $117,000. See Liddiards Resp. to AEC Interrog. No. 13.


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Interrog. No. 4, Plaintiffs demurred, noting that they “are not experts of hydrogeology

or any science related to ground water and thus cannot answer this part of the

question.” E.g. Brewsters Resp. to Interrog. No. 4.

If anything, Plaintiffs’ discovery responses actually undermine their claims. Several

Plaintiffs state or imply that their well water was of poor quality long before Defendants began

operating in the area. See Todds Resp. to AEC Interrog. No. 2 (used water filter since at least

1988); Liddiards Resp. to AEC Interrog. No. 2 (used water filter and softener since at least

1990); Moreys Resp. to AEC Interrog. No. 2 (used water filter since early 1990s); Baker Resp. to

Interrog. No. 2 (used water softener since May 2009).

III. Plaintiffs’ Answers Do Not Address the DEC’s Findings

The DEC performed a thorough investigation into the water levels and turbidity

conditions of Plaintiffs’ residential well water as soon as the first complaints were raised in

September 2010. As part of its several-month investigation, the DEC consulted private well

owners, interviewed water well drillers, tested water samples, inspected the Dow Wells,

consulted the personnel and files of the Chemung County Health Department (“CCHD”), and

analyzed well-inspection records.

DEC released a series of findings discounting and dismissing Plaintiffs’ complaints of

toxic contamination from the Dow Wells. First, the DEC noted that methane is “not toxic,” “is

often present in bedrock at shallow depths,” and as a result “commonly occurs in residential

water wells.” DEC Fact Sheet at 1.

Second, the DEC found that the presence of methane in residential water wells had long

predated Defendants’ activities in the area. Its investigation revealed “clear evidence that

methane and turbidity were present in the area’s water wells years before either of the Dow gas

wells was drilled.” DEC Memorandum Report at 1. “Water well drillers . . . informed DEC that


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they encountered naturally occurring shallow methane gas during drilling and have been aware

of the presence of methane in this area’s water wells prior to the drilling of the Dow wells in

2008 (perhaps as early as 1997. . . .).” Id. at 4. Indeed, methane “was present in [at least] one

residential water well in the neighborhood currently experiencing problems for some time prior

to the drilling of” the Dow Wells. DEC Fact Sheet at 1.

Third, the DEC concluded that, as a simple matter of physics, it was “unlikely” that

drilling and operation of the Dow Wells could cause “gas from deeper formations [to] migrate

through multiple cemented casing strings [surrounding the Dow Wells] into any aquifers near the

surface.” Id. This conclusion was buttressed by DEC’s inspection of the Dow Wells and testing

that demonstrated that the wells were properly constructed and not leaking gas at any depth.

DEC staff “confirmed that there were no gas migration problems at the Dow well sites, no

violations were found and that the casing cement was in fact at the surface as reported.” DEC

Memorandum Report at 4.

Fourth, CCHD-commissioned isotopic testing demonstrated that the gas found in four of

the Plaintiffs’ wells was different in kind from the gas found in Dow Well #2: their chemical

compositions were distinct. This finding established that the gas in Plaintiffs’ wells and the gas

in Dow Well #2 derived from “different sources of gas.” Letter from T. Santulli to Mr. & Mrs.

R. Sixt at 2.

IV. Focusing the Case Now Will Streamline and Simplify the Litigation

Without evidence to support their claims, Plaintiffs nonetheless seek unfettered discovery

in the hopes of finding a cause of action. The Federal Rules of Civil Procedure, and well-

established case law, empower this Court to focus and prioritize discovery to avoid burden and a

broad fishing expedition. The Federal Rules give this Court broad discretion to “take appropriate

action” to facilitate “the just, speedy, and inexpensive disposition of the action” by, among other


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things, “adopting special procedures for managing potentially difficult or protracted actions that

may involve complex issues, multiple parties, difficult legal questions, or unusual proof

problems.” Fed. R. Civ. P. 16(c)(2)(L), (P). Indeed, in a recent case involving the same

Plaintiffs’ firm and a strikingly similar complaint, the Court ordered a “more efficient procedure”

than what is routine by requiring Plaintiffs, “before full discovery and other procedures are

allowed, to make a prima facie showing of exposure and causation.” Strudley Modified CMO at

2. The required showing included producing an expert report discussing exposure to

contaminants and how such exposure causes injury, identifying Plaintiffs’ exposure to

contaminants, and providing access to medical records that presumably would evidence any

injury. See id. at 3.

It was fully within the Court’s authority to demand such detail. As courts in this circuit

have observed, the “purpose of Lone Pine style CMOs . . . is to protect defendants and the Court”

from the costs and burdens of litigating complex actions that may not have merit. Abbatiello v.

Monsanto Co., 569 F. Supp. 2d 351, 354 (S.D.N.Y. 2008). “Lone Pine orders have been

routinely used by courts” where, as here, a plaintiff’s allegations appear to conflict with well

established facts; under such circumstances, allowing Plaintiffs to proceed to unfettered

discovery threatens to waste the parties’ and the courts’ resources. Id. at 353 n.3 (internal

quotation marks omitted); see also In re Rezulin Prods. Liab. Litig., 441 F. Supp. 2d 567, 570

(S.D.N.Y. 2006).9

9 Lone Pine orders enjoy widespread support in other circuits as well. See, e.g., Avila v. Willits Envtl. Remediation Trust, 633 F.3d 828, 833-34 (9th Cir. 2011); In re Vioxx Prods. Liab. Litig., 388 F. App’x 391, 397-98 (5th Cir. 2010), cert. denied, 131 S. Ct. 1477 (2011); Steering Comm. v. Exxon Mobil Corp.,461 F.3d 598, 604 n.2 (5th Cir. 2006); Acuna v. Brown & Root, Inc., 200 F.3d 335, 340 (5th Cir. 2000); Burns v. Universal Crop Prot. Alliance, No. 4:07cv00535, 2007 WL 2811533, at *1, *3 (E.D. Ark. Sep. 25, 2007); Morgan v. Ford Motor Co., No. 06 Civ. 1080, 2007 WL 1456154, at *7 (D.N.J. May 17, 2007); Baker v. Chevron USA, Inc., No. 1:05-cv-227,


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Lone Pine orders are especially appropriate in cases involving allegations of

environmental contamination because of the complicated causation issues involved in the claims.

See Pinares v. United Techs. Corp., No. 10-80883-CIV, 2011 WL 240512, at *1-2 (S.D. Fla. Jan.

19, 2011) (where plaintiffs sued manufacturer for contamination by toxic wastes, but plaintiffs

failed to allege “that their property is contaminated, much less that Defendant contaminated their

property,” the case was the “classic expansive, time-consuming, and highly expert dependent

case that gave birth to the Lone Pine case management method.”); see also, e.g., Wilcox v.

Homestake Mining Co., No. Civ. 04-534, 2008 WL 4697013, at *1 (D.N.M. Oct. 23, 2008)

(court entered order giving plaintiffs 120 days to “produce expert affidavits which make a prima

facie showing of harmful exposure and specific causation for each injury the particular Plaintiff

claims was caused by the Defendants’ alleged contamination”), aff’d, 619 F.3d 1165 (10th Cir.

2010); Burns, 2007 WL 2811533, at *2–3 (Lone Pine order “necessary for efficient case

management” where plaintiffs alleged contamination of cotton fields by herbicide applied to

nearby rice crops and “many variables including temperature, wind speed, field location, aircraft

speed, and use of drift control products are pertinent to the causation issue in this case”); In re

1994 Exxon Chem. Plant Fire Litig., No. 94-MS-3-C-1, 2005 WL 6252312, at *1–2 (M.D. La.

Apr. 7, 2005) (Lone Pine order appropriate where complaints “did not identify the particular

injury, illness, loss or other harm sustained by each individual named plaintiff” and did not

“identify which contaminant caused which injury or damage,” but instead “broadly alleged that

substances were released, [plaintiffs] were exposed to the substances, and they were injured or

otherwise suffered damages from the exposure”).

2007 WL 315346, at *1 (S.D. Ohio Jan. 30, 2007); In re Silica Prods. Liab. Litig., 398 F. Supp. 2d 563, 576 (S.D. Tex. 2005).


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V. The Court Should Require Plaintiffs to Make a Prima Facie Showing of Exposure, Injury, and Causation

Before further discovery is permitted to proceed in this case, the Court should require

Plaintiffs to provide the Court and each Defendant with the following items, within 90 days of

the Court’s ruling:

1. Expert Opinions. A sworn affidavit(s) from a qualified expert(s), with supporting data

and facts in the form required by Federal Rule of Civil Procedure 26(a)(2)(B), that will,

for each Plaintiff:

a. Identify, by name, the substances in Plaintiffs’ water wells that are toxic and

caused them injury.

b. Identify the amount or concentration of each toxic substance necessary to cause

injury.

c. Explain how those toxic substances resulted from Defendants’ activities. For

methane and ethane, Plaintiffs must identify a basis for finding that methane and

ethane in Plaintiffs’ well water is anything other than naturally occurring, shallow

gas that pre-dates Defendants’ drilling activities.

d. Identify how those toxic substances cause injury to person and property. For

injury to person, this must include medical evidence explaining how each alleged

toxic substance caused the disease or other health injury in question. For injury to

property, this includes evidence explaining how the presence of a toxic substance

in well water has reduced property values.


17

2. Contamination Findings. Plaintiffs must cite each and every report or analysis that

contains any finding of contamination of Plaintiffs’ residential well water. Plaintiffs

must also identify and quantify any alleged contamination.

3. Medical Records. A list of the name and last known address and phone number of each

health care provider who has provided each Plaintiff with health services in the past five

years (whether physical, mental or emotional) along with a release authorizing the health

care providers to provide Plaintiffs’ and Defendants’ counsel with all of each Plaintiffs’

medical records, in the form of Exhibit A-1 hereto, within twenty-one days of the date of

this Court’s entry of this Modified Case Management Order.


18

CONCLUSION

For the foregoing reasons, the Court should grant Defendant Anschutz Exploration

Corporation’s motion to modify the scheduling order in this case.

Dated: December 28, 2011 Christopher D. Thomas NIXON PEABODY LLP 1300 Clinton Square Rochester, New York 14604 Telephone: (585) 263-1000 Fax: (585) 263-1600

By: /s/ Michael J. Guzman Mark C. Hansen pro hac vice Aaron M. Panner pro hac vice Michael J. Guzman pro hac vice KELLOGG, HUBER, HANSEN, TODD, EVANS & FIGEL, P.L.L.C. 1615 M Street, N.W. Suite 400 Washington, D.C. 20036 Tel. (202) 326-7900 Fax (202) 326-7999

Counsel for Anschutz Exploration Corporation


EXHIBIT C


UNITED STATES DISTRICT COURT WESTERN DISTRICT OF NEW YORK -------------------------------------------------------------------)( JASON BAKER, JOHN BREWSTER, JOANN BREWSTER, MA)(INE CONDON, KAREN FARRELL, BROOKS LIDDIARD, JANET LIDDIARD, JAMES MCDERMOTT, HEIDI MCDERMOTT, PAUL MOREY, DONETTA MOREY, JOE TODD, BONNIE TODD, Case No. 11-CV-06119-CJS TOM WHIPPLE and PAULINE WHIPPLE,

PlaintiffS, District Judge Charles J. Siragusa -against-

ANSCHUTZ E}(PLORATION CORPORATION, CONRAD GEOSCIENCE CORPORATION, PATHFINDER ENERGY SERVICES, INC. and JOHN and JANE DOES 1 through 100,

Deftndants. ------------------------------------------------------------------------)(

PLAINTIFF JASON BAKER RESPONSES TO ANSCHUTZ EXPLORATION CORPORATION'S FIRST SET OF INTERROGATORIES

Pursuant to Rule 33 of the Federal Rules of Civil Procedure, Plaintiff Jason Baker, by and

through his attorneys, Napoli Bern Ripka & Associates LLP, makes the following Objections

and Responses to Defendant Anschutz Exploration Corporation's First Set oflnterrogatories.

GENERAL OBJECTIONS AND RESERVATIONS

1. Plaintiff objects to the definitions and instructions set forth in Defendant's discovery requests to the extent they deviate from or purport to impose requirements other than or in addition to those required by the Federal Rules of Civil Procedure.

2. Plaintiff objects to these discovery requests to the extent they seek information outside the restricted scope of discovery permissible under the Local Civil Rules of this Court.

3. Plaintiff objects to these discovery requests to the extent that they seek documents or information covered by the attorney-client privilege, the work product doctrine, or any other applicable privilege or immunity. None of these responses are intended as, or should be construed as, a waiver or relinquishment of any part of the protections afforded by the attorneyclient privilege, the work product doctrine, or any other applicable privileges or immunities.

4. Plaintiff objects to these discovery requests to the extent they seek information that does not pertain to or is beyond that in Plaintiffs possession, custody, or control, and/or information that is equally available to defendant.


5. Plaintiff objects to these discovery requests to the extent they seek information that cannot be located after a reasonable search of its records reasonably believed most likely to contain the responsive information on the grounds that any such requirement would be unduly burdensome and oppressive.

6. Plaintiff objects to these discovery requests to the extent they are umelated to any claim or defense in this case.

7. Plaintiff objects to these discovery requests to the extent that they contain vague or ambiguous terms as such requests are overbroad, unduly burdensome and oppressive, and not reasonably calculated to lead to the discovery of admissible evidence.

8. Plaintiff objects to these discovery requests to the extent they request information beyond the limitations and parameters agreed among the parties or imposed by the Court. Plaintiffs responses are subject to all such limitations and parameters and incorporate by reference the discovery parameters imposed by the Court.

9. The information plaintiff produces in response to these discovery requests, if any, is produced solely for the purpose of this action. Plaintiff expressly reserves all objections to the admissibility of such information at trial, including all objections regarding relevance, authenticity, materiality, propriety and admissibility and any other objections that would require exclusion of the information, if such information were offered as evidence at trial.

10. Plaintiffs decision to provide information notwithstanding the objectionable nature of any of the discovery requests should neither be construed as a stipulation that the information is relevant nor a waiver of Plaintiffs general or specific objections.

11. These General Objections apply to each discovery request as though restated in full therein.

12. Plaintiffs responses to these discovery requests are based on information available as a result of a good faith search in the time allowed before submitting its responses. Plaintiff reserves the right to supplement its responses consistent with its obligations under the Federal Rules of Civil Procedure.

13. Plaintiff reserves the right to amend or supplement its responses as well as the right to object to other discovery directed to the subject matter of Defendants' Discovery Requests.

FIRST SET OF INTERROGATORIES

INTERROGATORY N0.1: For each Plaintiff, identify (i) the date that each Plaintiff purchased

his or her Property, (ii) the amount oftime that each Plaintiff has lived on the Property; and (iii)

the date that each Plaintiffs ground water well was installed on the Plaintiffs property.

2


RESPONSE TO INTERROGATORY NO. 1:

Upon the advice of counsel, Plaintiff objects to this request on the grounds that it is

vague, ambiguous and not limited in terms oftime or scope. Subject to and without waiving the

foregoing, upon knowledge and belief, Plaintiff responds as follows:

(i): April15, 2009

(ii): Approximately 3 years

(iii): Unknown

Plaintiff reserves the right to supplement this response up to and including the time of trial.

INTERROGATORY NO.2: For each Plaintiff, describe with specificity the Plaintiffs ground

water well and any other ground water well(s) located on any property near Plaintiffs' Properties

for which the Plaintiff possesses information. For each well, describe, with specificity, (i) the

date the well was installed, (ii) the installer, (iii) the depth of the well, (iv) whether well is lined,

(v) the type of lining or casing, if applicable, (vi) whether the well is vented, (vii) if so, when the

venting was installed, and (viii) any other equipment or systems designed to filter, purify or

otherwise improve the quality of the well water.

RESPONSE TO INTERROGATORY NO.2:


vague, ambiguous and not limited in terms of time or scope. Subject to and without waiving the


(i):Upon information and beliefthis is unknown to Plaintiff.

(ii): Upon information and belief this is unknown to Plaintiff.

(iii): Upon information and belief this is unknown to Plaintiff.

(iv): Upon information and belief this is unknown to Plaintiff.

3


(v): Upon information and belief this is unknown to Plaintiff.

(vi): The ground water well is not vented.

(vii): Upon information and belief this is unknown to Plaintiff.

(viii): A water softener was installed in May 2009 by Culligan.


INTERROGATORY NO. 3: For each Plaintiff, describe the servicing and maintenance of each

Plaintiffs ground water wells since 2000, including (i) every date that each ground water well

was inspected, serviced, maintained, or tested; (ii) the name of any Person, including that

Person's employer, that performed the inspection, service, maintenance, or testing; and (iii) a

detailed description of the type of and the results of the inspection, service, maintenance, or

testing performed.



vague, ambiguous and requires interpretation as to what "servicing" and "maintenance" would or

may entail. Subject to and without waiving the foregoing, upon knowledge and belief, Plaintiff

responds as follows:

(i): Plaintiff did not own the property until 2009 and is therefore unaware of any

information regarding the well between 2000 and April15, 2009. In May of2009

Plaintiff had Culligan test the ground water well.

(ii): Upon information and belief this is unknown to Plaintiff.

(iii): Upon information and belief this is unknown to Plaintiff.


4


INTERROGATORY NO.4: For each Plaintiff, describe with specificity any problems the

Plaintiff had with his/her ground water wells or any other ground water wells located on any

property near Plaintiffs' Properties, since 2000 - especially problems such as contamination,

discoloration, odors, or turbidity in the well water. For all problems described, identify (i) the

nature of the problem, (ii) when the problem occurred, (iii) the resolution of the problem (if any),

and (iv) the cause or suspected cause of the problem.



vague, ambiguous and requires interpretation as to what "problems" would be defined as or may

entail. Subject to and without waiving the foregoing, upon knowledge and belief, Plaintiff

responds as follows: A water softener was installed by Culligan in May 2009 to resolve the hard

water issues Plaintiff experienced. In September of 2010 Plaintiff noticed water from ground

water well to be gassy and "milky". Plaintiff is unaware of any resolution ofthis problem and

plaintiff is not water ofthe cause or suspected cause because he is not an expert ofhydrogeology

or any science related to ground water and thus cannot answer this part of the question. Plaintiff

reserves the right to supplement this response up to and including the time of trial.

INTERROGATORY NO.5: For each Plaintiff, describe with specificity the nature of the

alleged contamination the Plaintiff claims was caused by the drilling activities of Anschutz

Exploration Corporation in 201 0. In your response, for any alleged contamination, state whether

you tested for that substance in any Plaintiffs' ground water well or any other ground water well

5


located on any property near Plaintiffs' Properties prior to filing the complaint and provide the

results or the basis for such allegation.



vague, ambiguous, requires interpretation as to what "nature" would be defined as or may entail

and seeks expert testimony. Furthermore, this request is not reasonably calculated to lead to the

discovery of admissible evidence to the extent that it prematurely seeks information and

documents relating to the subject matter and opinions of expert witnesses, whose disclosure is

governed by Fed. R. Civ. P. 26. Subject to and without waiving the foregoing, upon knowledge

and belief, Plaintiff responds as follows: Plaintiff had no testing on ground water well prior to

the filing of the complaint.

Plaintiff reserves the right to supplement this response up to and including the time of

trial.

INTERROGATORY NO. 6: For each Plaintiff, describe with specificity all damages claimed

to date, including personal, mental, emotional, physical, property and punitive damages.


Upon the advice of counsel, Plaintiff objects to this request on the grounds that the

information that has been requested is not limited in time or scope. Plaintiff also objects to this

interrogatory on the grounds that it is unduly burdensome, oppressive, and calls for an exhaustive

enumeration of every document supporting a broad array of facts. Fmihermore, this request is

not reasonably calculated to lead to the discovery of admissible evidence to the extent that it

prematurely seeks information and documents relating to the subject matter and opinions of

6


expert witnesses, whose disclosure is governed by Fed. R. Civ. P. 26, Case Management Orders,

or Pre-Trial Orders.

Without waiving the general objections and prior objections, plaintiff also objects in that

this request for production of documents duplicates prior discovery. The documents sought in

this request have long been in the possession of the Defendants and indeed many have been

created by the Defendants in large part. Plaintiff further objects to this request on the ground it

asks plaintiffto summarize information contained in documents from plaintiff's files. Pursuant to

Fed. R. Civ. P. Rule 33(d), plaintiff is not required to summarize all responsive information

contained in business records which Plaintiff has previously produced or will produce in

response to discovery demands. Subject to the foregoing, Plaintiff's damages include, but are

not limited to the costs of purchasing water, the destruction of all water fixtures and pipes due to

gas and sediment, loss of enjoyment of property, a diminishment of property value.

Plaintiff continues its investigation of all relevant facts in this case and reserves its right

to supplement or modify its response to Defendant's' interrogatories up to and including the time

of trial.

INTERROGATORY NO.7: For any damage claimed in response to Interrogatory No.6

above, state with particularity Plaintiff's allegation for how the drilling activities of Anschutz

Exploration Corporation caused the claimed damage.





7


enumeration of every document supporting a broad array of facts. Furthermore, this request is





Without waiving the general objections and prior objections, Plaintiff also objects in that




asks plaintiff to summarize information contained in documents from Plaintiffs files. Pursuant

to Fed. R. Civ. P. Rule 33(d), Plaintiff is not required to summarize all responsive information

contained in business records that Plaintiff has previously produced or will produce in response

to discovery demands. Subject to the foregoing, Plaintiff claims that the negligent drilling

activities of Anschutz Exploration Corporation proximately caused the ground water well

contamination because for the years before any drilling activities occurred in the affected area

water was not experiencing any of the issues now present. Plaintiff continues his investigation of

all relevant facts in this case and reserves its right to supplement or modify its response to

Defendant's interrogatories up to and including the time of trial.

INTERROGATORY NO. 8: Identify any physician or other medical service provider from

which any Plaintiff received medical care during the period from June 1, 2000 to the present,

including (i) the name of the physician visited; (2) the address where the visit occurred; (3) the

reason that Plaintiff visited the physician; and ( 4) the outcome of the treatment.

8



Upon the advice of counsel, Plaintiff objects to this request because it seeks irrelevant

information that will not lead to the discovery of relevant information and improperly and unduly

invades the Plaintiff's privacy because the Plaintiff has not knowingly sustained personal injuries

that have manifested, have been treated by medical professionals, nor that are personally known

to the Plaintiff. Plaintiff further objects on the grounds that no physician or other medical

provider's examination of plaintiff is properly the subject of this litigation or interrogatories or

other discovery connected therewith unless said examination, treatment or diagnosis was related

to the subject matter of this litigation, as Plaintiff has not placed his health or physical condition

at issue in this litigation in any other manner and her medical condition(s), diagnoses and

treatment for unrelated issues is privileged and said privilege has not been waived. Upon the

further advice of counsel, Plaintiff is only asserting damage claims requiring medical monitoring,

including fear of cancer.

INTERROGATORY NO.9: Identify whether any Plaintiff has ever installed any venting

equipment on any ground water well(s) located on any of the Properties. For any venting

equipment that has been installed, identify (i) on which Plaintiffs property the equipment or

device was installed; (ii) a description of the type of equipment that was installed; (3) the date on

which the equipment was installed; (3) the name of the Person(s), including the Person's

employer, who installed the equipment; and (4) a description of why the equipment or device

was installed.


9



vague, ambiguous, requires interpretation as to what "venting" would be defined as or may entail

and seeks expert testimony. Subject to and without waiving the foregoing, upon knowledge and

belief, Plaintiff responds as follows: No venting equipment has been installed on the ground

water well located on Plaintiffs' property.


INTERROGATORY NO. 10: For each Plaintiff, specify whether the Plaintiff continues to use

his/her ground water well to supply water for drinking, cooking, washing, bathing or other daily

residential uses since the alleged contamination in approximately September 2010. If not, state

the alternative source of water for each activity.

RESPONSE TO INTERROGATORY NO. 10


vague, ambiguous and requires interpretation. Subject to and without waiving the foregoing,

Plaintiff uses bottled water from Culligan for drinking, cooking, and washing. Plaintiff still uses

ground well water for bathing as there are no other alternatives.

INTERROGATORY NO. 11: For each Plaintiff, state the basis as of the filing of the

Complaint for the allegations in paragraphs 97 and 98 in the Complaint that Plaintiffs' wells are

contaminated with "[p ]ollutants, including but not limited to toxic sediments, and industrial

and/or residual waste," "[drilling muds and fluids," and "diesel fuel." For each Plaintiff, state

which of the alleged contaminants are present in his/her well.


10



vague, ambiguous, requires interpretation and seeks expert testimony. Furthermore, this request

is not reasonably calculated to lead to the discovery of admissible evidence to the extent that it


expert witnesses, whose disclosure is governed by Fed. R. Civ. P. 26. Subject to and without

waiving the foregoing, upon knowledge and belief, plaintiff responds as follows: Before

September of2010 Plaintiff never experienced gassy water, milky water, or sediment.


trial.

INTERROGATORY NO. 12: For each Plaintiff, state whether the Plaintiff claims any damage

as a result of actual fires or explosions or whether the Plaintiff's claim is for the threat of such

fires or explosions. Describe any steps taken to mitigate claimed damage from actual or

threatened fires or explosions- e.g., moving out of the house, venting the well, disconnecting the

household water system from the well, etc.



vague, ambiguous, requires interpretation and seeks expert testimony. Subject to and without

waiving the foregoing, Plaintiff's claim at this time is the imminent threat of such fires and

explosion. Methane is known as a combustible gas and asphyxiate and plaintiffs are concerned

about a possible explosion and illnesses associated with contaminates.


trial.

11


INTERROGATORY NO. 13: For each Plaintiff, state the specific basis for the allegation that

Plaintiffs' properties "have been harmed and diminished in value." (Complaint ~103(c)).



vague, ambiguous, requires interpretation, seeks legal conclusions and seeks expert testimony.

Furthermore, this request is not reasonably calculated to lead to the discovery of admissible

evidence to the extent that it prematurely seeks information and documents relating to the subject

matter and opinions of expert witnesses, whose disclosure is governed by Fed. R. Civ. P. 26.

Subject to and without waiving the foregoing, upon knowledge and belief, Plaintiff responds as

follows: Plaintiff's property has diminished in value due to water contamination that has

resulted from defendants' activities.

INTERROGATORY NO. 14: State with specificity how each Plaintiff has "lost the use and

enjoyment oftheir property, and the quality oflife they otherwise enjoyed." (Complaint~

103(d)).





evidence to the extent that it prematurely seeks information and documents relating to the subject '



follows: Plaintiffhas lost enjoyment of property and quality oflife through the diminished

12


quality of water and this diminished water quality has created significant emotional stress and

economic burden.

INTERROGATORY NO. 15: For each Plaintiff, state with particularity when each Plaintiff

claims that his/her well became contaminated and the basis for the allegation.








follows: Plaintiffs' ground well water became contaminated on or around September of2010.

Date: June 30, 2011 New York, New York

13

Tate J. Kunkle, sq. (NY4468542) 350 Fifth Avenue, Suite 7413 New York, New York 10118 (212) 267-3700


CERTIFICATE OF SERVICE

I certify that on June 30, 2011, I caused a copy of the foregoing document to be served on all counsel of record and on defendants' counsel by First Class Mail:

Christopher D. Thomas, Esq. NIXON PEABODY LLC 1300 Clinton Square Rochester, New York 14604 cdthomas@nixonpeabody .com

Michael J. Guzman, Esq. KELLOG, HUBER, HANSEN, TODD, EvANS & FIGEL, PLLC 1615 M Street N.W., Suite 400 Washington, DC 20036 [email protected] Attorneys for Defendant Anschutz Exploration Corporation

James T. Potter, Esq. HINMAN STRAUB PC 121 State Street Albany, New York 12207 [email protected] Attorneys for Defendant Conrad Geoscience Cmporation

Christopher C. Loeber, Esq. MORGAN, LEWIS & BOCKIUS LLP 502 Carnegie Center Princeton, New Jersey 08540 [email protected] Attorneys for Defendant Pathfinder Energy Services

14

NAPOLI BERN RIPKA & ASSOCIATES, LLP

Attorn;;;:~~

Tate J. Kunkle, Esq. (NY 4468542) 350 Fifth Avenue, Suite 7413 New York, New York 10118 (212) 267-3700


UNITED STATES DISTRICT COURT WESTERN DISTRICT OF NEW YORK -------------------------------------------------------------------)( JASON BAKER, JOHN BREWSTER, JOANN BREWSTER, MA)(INE CONDON, KAREN FARRELL, BROOKS LIDDIARD, JANET LIDDIARD, JAMES MCDERMOTT, HEIDI MCDERMOTT, PAUL MOREY, DONETTA MOREY, JOE TODD, BONNIE TODD, TOM WHIPPLE and PAULINE Case No. 11-CV-06119-CJS WHIPPLE,

P laintijfs, District Judge Charles I. Siragusa -against-

ANSCHUTZ E){PLORATION CORPORATION, CONRAD GEOSCIENCE CORPORATION, PATHFINDER ENERGY SERVICES, INC. and JOHN and JANE DOES 1 through 100,

Dijendants. )(

PLAINTIFFS JOHN BREWSTER AND JOANNE BREWSTER RESPONSES TO ANSCHUTZ EXPLORATION CORPORATION'S FIRST SET OF INTERROGATORIES

Pursuant to Rule 33 ofthe Federal Rules of Civil Procedure, Plaintiffs John and Joanne Brewster,

by and through their attorneys, Napoli Bern Ripka & Associates LLP, make the following Objections and

Responses to Defendant Anschutz Exploration Corporation's First Set of Interrogatories.


1. Plaintiffs object to the definitions and instructions set forth in Defendant's discovery requests to the extent they deviate from or purport to impose requirements other than or in addition to those required by the Federal Rules of Civil Procedure.

2. Plaintiffs objects to these discovery requests to the extent they seek information outside the restricted scope of discovery pennissible under the Local Civil Rules of this Court.

3. Plaintiffs object to these discovery requests to the extent that they seek documents or information covered by the attorney-client privilege, the work product doctrine, or any other applicable privilege or immunity. None of these responses are intended as, or should be construed as, a waiver or relinquishment of any part of the protections afforded by the attorney-client privilege, the work product doctrine, or any other applicable privileges or immunities.

4. Plaintiffs object to these discovery requests to the extent they seek information that does not petiain to or is beyond that in Plaintiffs possession, custody, or control, and/or information that is equally available to defendant.

5. Plaintiffs object to these discovery requests to the extent they seek information that cannot be located after a reasonable search of their records reasonably believed most likely to contain the


responsive information on the grounds that any such requirement would be unduly burdensome and oppresstve.

6. Plaintiffs object to these discovery requests to the extent they are unrelated to any claim or defense in this case.

7. Plaintiffs object to these discovery requests to the extent that they contain vague or ambiguous terms as such requests are overbroad, unduly burdensome and oppressive, and not reasonably calculated to lead to the discovery of admissible evidence.

8. Plaintiffs object to these discovery requests to the extent they request information beyond the limitations and parameters agreed among the parties or imposed by the Court. Plaintiffs responses are subject to all such limitations and parameters and incorporate by reference the discovery parameters imposed by the Court.

9. The information Plaintiffs produce in response to these discovery requests, if any, is produced solely for the purpose of this action. Plaintiffs expressly reserve all objections to the admissibility of such information at trial, including all objections regarding relevance, authenticity, materiality, propriety and admissibility and any other objections that would require exclusion of the information, if such information were offered as evidence at trial.

10. Plaintiffs' decision to provide infonnation notwithstanding the objectionable nature of any of the discovery requests should neither be construed as a stipulation that the information is relevant nor a waiver of Plaintiffs' general or specific objections.


12. Plaintiffs' responses to these discovery requests are based on infonnation available as a result of a good faith search in the time allowed before submitting its responses. Plaintiffs reserve the right to supplement their responses consistent with their obligations under the Federal Rules of Civil Procedure.

13. Plaintiff reserves the right to amend or supplement their responses as well as the right to object to other discovery directed to the subject matter of Defendants' Discovery Requests.


INTERROGATORY N0.1: For each Plaintiff, identify (i) the date that each Plaintiff purchased his or

her Property, (ii) the amount of time that each Plaintiff has lived on the Property; and (iii) the date that

each Plaintiff's ground water well was installed on the Plaintiff's property.


Upon the advice of counsel, Plaintiffs object to this request on the grounds that it is vague,

ambiguous and not limited in terms of time or scope. Subject to and without waiving the foregoing, upon

knowledge and belief, Plaintiffs respond as follows:

2


(i): On or about November 14, 1985

(ii): Approximately 26 years.

(iii): Unknown.

Plaintiffs reserve the right to supplement this response up to and including the time of trial.

INTERROGATORY NO.2: For each Plaintiff, describe with specificity the Plaintiffs ground water

well and any other ground water well(s) located on any property near Plaintiffs' Properties for which the

Plaintiff possesses information. For each well, describe, with specificity, (i) the date the well was

installed, (ii) the installer, (iii) the depth of the well, (iv) whether well is lined, (v) the type of lining or

casing, if applicable, (vi) whether the well is vented, (vii) if so, when the venting was installed, and (viii)

any other equipment or systems designed to filter, purifY or otherwise improve the quality of the well

water.





(i): Unknown;

(ii): Unknown

(iii): Unknown.

(iv): The well is not lined.

(v): Unknown.

(vi): Unknown.

(vii): Unknown.

(viii): Unknown.


3


INTERROGATORY NO.3: For each Plaintiff, describe the servicing and maintenance of each

Plaintiffs ground water wells since 2000, including (i) every date that each ground water well was

inspected, serviced, maintained, or tested; (ii) the name of any Person, including that Person's employer,

that performed the inspection, service, maintenance, or testing; and (iii) a detailed description of the type

of and the results of the inspection, service, maintenance, or testing performed.



ambiguous and requires interpretation as to what "servicing" and "maintenance" would or may entail.

Subject to and without waiving the foregoing, upon knowledge and belief, Plaintiffs respond as follows:

(i): The well has never been serviced or tested.

(ii): Not applicable.

(iii): Not applicable.


INTERROGATORY NO.4: For each Plaintiff, describe with specificity any problems the Plaintiff had

with his/her ground water wells or any other ground water wells located on any property near Plaintiffs'

Properties, since 2000 - especially problems such as contamination, discoloration, odors, or turbidity in

the well water. For all problems described, identify (i) the nature of the problem, (ii) when the problem

occurred, (iii) the resolution of the problem (if any), and (iv) the cause or suspected cause of the problem.


Upon the advice of counsel, Plaintiff objects to this request on the grounds that it is vague,

ambiguous, calls for expert testimony and requires interpretation as to what "problems" would be defined

as or may entail. Subject to and without waiving the foregoing, upon knowledge and belief, Plaintiffs

respond as follows: (i): Water spits when taps are run, and methane bubbles are present in the dispensed

water. Water is discolored, appearing black; (ii) problems were first noticed in or around October 2010;

4


(iii) no resolution of the issues has occurred; (iv) Plaintiffs are not experts of hydrogeology or any science

related to ground water and thus cannot answer this part of the question.


INTERROGATORY NO.5: For each Plaintiff, describe with specificity the nature of the alleged

contamination the Plaintiff claims was caused by the drilling activities of Anschutz Exploration

Corporation in 2010. In your response, for any alleged contamination, state whether you tested for that

substance in any Plaintiffs' ground water well or any other ground water well located on any property near

Plaintiffs' Properties prior to filing the complaint and provide the results or the basis for such allegation.



ambiguous, requires interpretation as to what "nature" would be defined as or may entail and seeks expert

testimony. Furthennore, this request is not reasonably calculated to lead to the discovery of admissible

evidence to the extent that it prematurely seeks information and documents relating to the subject matter

and opinions of expert witnesses, whose disclosure is governed by Fed. R. Civ. P. 26. Subject to and

without waiving the foregoing, upon knowledge and belief, Plaintiffs respond as follows: the New York

State Depatiment of Environmental Conservation conducted a water test in September 2010. See also

Response to Intenogatory No.4 above.


INTERROGATORY NO.6: For each Plaintiff, describe with specificity all damages claimed to date,

including personal, mental, emotional, physical, propetiy and punitive damages.


Upon the advice of counsel, Plaintiffs object to this request on the grounds that the information

that has been requested is not limited in time or scope. Plaintiffs also object to this interrogatory on the

grounds that it is unduly burdensome, oppressive, and calls for an exhaustive enumeration of every

5


document supporting a broad array of facts. Furthennore, this request is not reasonably calculated to lead

to the discovery of admissible evidence to the extent that it prematurely seeks information and documents

relating to the subject matter and opinions of expert witnesses, whose disclosure is govemed by Fed. R.

Civ. P. 26, Case Management Orders, or Pre-Trial Orders.

Without waiving the general objections and prior objections, Plaintiffs also object in that this

request for production of documents duplicates prior discovery. The documents sought in this request

have long been in the possession of the Defendants and indeed many have been created by the Defendants

in large part. Plaintiff further objects to this request on the ground it asks Plaintiffs to summarize

information contained in documents from plaintiffs' files. Pursuant to Fed. R. Civ. P. Rule 33(d),

Plaintiffs are not required to summarize all responsive information contained in business records which

Plaintiffs have previously produced or will produce in response to discovery demands.

Subject to the foregoing, Plaintiffs' damages include, but are not limited to: Plaintiffs have been

inconvenienced by having to purchase water for their daily use, and forced to suffer financial detriment

through these expenditures. They are subjected to further inconvenience and financial harm by being

forced to do their laundry away from home at a laundromat. Further, Plaintiffs' property has to be

cleaned on an almost constant basis. The water in their sinks, toilet, and bathtub, as well as all other

water-using appliances, leaves behind residues that require frequent cleaning and attention.

Plaintiffs reserve their right to supplement this response up to and including the time of trial.

INTERROGATORY NO.7: For any damage claimed in response to Interrogatory No.6 above, state

with particularity Plaintiffs' allegation for how the drilling activities of Anschutz Exploration Corporation

caused the claimed damage.





document supporting a broad array of facts. Furthermore, this request is not reasonably calculated to lead

6


to the discovery of admissible evidence to the extent that it prematurely seeks infonnation and documents

relating to the subject matter and opinions of expert witnesses, whose disclosure is governed by Fed. R.




have long been in the possession of the Defendants and the Defendants have created indeed many in large

part. Plaintiffs further objects to this request on the ground it asks Plaintiffs to summarize information

contained in documents from Plaintiffs' files. Pursuant to Fed. R. Civ. P. Rule 33(d), Plaintiffs are not

required to summarize all responsive infonnation contained in business records that Plaintiffs have

previously produced or will produce in response to discovery demands. Subject to the foregoing and

without the objections, Plaintiffs claim that the drilling activities of Anschutz Exploration Corporation

caused the ground water well contamination because for the 25 years which plaintiffs lived in their house

before any drilling activities occurred in the affected area, the water supply did not experience any of the

contamination and issues now present.


INTERROGATORY NO.8: Identify any physician or other medical service provider from which any

Plaintiff received medical care during the period from June 1, 2000 to the present, including (i) the name

of the physician visited; (2) the address where the visit occurred; (3) the reason that Plaintiff visited the

physician; and (4) the outcome of the treatment.


Upon the advice of counsel, Plaintiffs object to this request because it seeks irrelevant

information that will not lead to the discovery of relevant information and improperly and unduly invades

the Plaintiffs' privacy because the Plaintiffs have not knowingly sustained personal injuries that have

manifested, have been treated by medical professionals, nor that are personally known to the Plaintiffs.

Plaintiffs further object on the grounds that no physician or other medical provider's examination of

7


plaintiff is properly the subject of this litigation or interrogatories or other discovery connected therewith

unless said examination, treatment or diagnosis was related to the subject matter of this litigation, as

plaintiff has not placed her health or physical condition at issue in this litigation in any other manner and

her medical condition(s), diagnoses and treatment for unrelated issues is privileged and said privilege has

not been waived. Upon the further advice of counsel, Plaintiffs are only asserting damage claims

requiring medical monitoring, including fear of cancer.

Plaintiffs reserve the right to supplement this response up to and including the time oftrial.

INTERROGATORY NO.9: Identity whether any Plaintiff has ever installed any venting equipment on

any ground water well(s) located on any of the Properties. For any venting equipment that has been

installed, identity (i) on which Plaintiffs property the equipment or device was installed; (ii) a description

of the type of equipment that was installed; (3) the date on which the equipment was installed; (3) the

name of the Person(s), including the Person's employer, who installed the equipment; and (4) a

description of why the equipment or device was installed.



ambiguous, requires interpretation as to what "venting" would be defined as or may entail and seeks

expert testimony. Subject to and without waiving the foregoing, upon knowledge and belief, Plaintiffs

respond as follows: (i): Upon information and belief the Plaintiffs are not in possession of any venting

equipment; (ii): Upon information and belief the Plaintiffs are not in possession of any venting

equipment; (iii): Upon information and belief the Plaintiffs are not in possession of any venting

equipment; (iv): Upon infonnation and belief the Plaintiffs are not in possession of any venting

equipment; (v): The Plaintiff, not being an expert in hydrogeology or well drilling cannot respond as to if

or why a well cap was or would be installed.


8


INTERROGATORY NO. 10: For each Plaintiff, specify whether the Plaintiff continues to use his/her

ground water well to supply water for drinking, cooking, washing, bathing or other daily residential uses

since the alleged contamination in approximately September 2010. If not, state the alternative source of

water for each activity.



ambiguous and requires interpretation. Subject to and without waiving the foregoing, Plaintiffs purchase

their drinking water. Plaintiffs have no choice but to use well water for all other residential uses.


INTERROGATORY NO. 11: For each Plaintiff, state the basis as of the filing of the Complaint for the

allegations in paragraphs 97 and 98 in the Complaint that Plaintiffs' wells are contaminated with

"[p]ollutants, including but not limited to toxic sediments, and industrial and/or residual waste," "[drilling

muds and fluids," and "diesel fuel." For each Plaintiff, state which ofthe alleged contaminants are present

in his/her well.



ambiguous, requires interpretation and seeks expert testimony. Furthermore, this request is not

reasonably calculated to lead to the discovery of admissible evidence to the extent that it prematurely

seeks infonnation and documents relating to the subject matter and opinions of expert witnesses, whose

disclosure is governed by Fed. R. Civ. P. 26. Subject to and without waiving the foregoing, upon

knowledge and belief, plaintiff responds as follows: Plaintiffs' ground water well was contaminated from

Anschutz's drilling activities with known contaminants that include but are not limited to, elevated

methane levels and sediment of unknown makeup. According to County Executive Thomas Santulli,

Isotech Laboratories Inc. found that there are 3 different sources of gas contamination currently in the

private water wells.

9



INTERROGATORY NO. 12: For each Plaintiff, state whether the Plaintiff claims any damage as a

result of actual fires or explosions or whether the Plaintiffs claim is for the threat of such fires or

explosions. Describe any steps taken to mitigate claimed damage from actual or threatened fires or

explosions- e.g., moving out of the house, venting the well, disconnecting the household water system

from the well, etc.



ambiguous, requires interpretation and seeks expert testimony. Subject to and without waiving the

foregoing, Plaintiffs' claim at this time is the imminent threat of such fires and explosion. Methane is

known as a combustible gas and asphyxiate and Plaintiffs are concerned about a possible explosion and

illnesses associated with exposure to contaminants.


INTERROGATORY NO. 13: For each Plaintiff, state the specific basis for the allegation that Plaintiffs'

properties "have been hanned and diminished in value." (Complaint ~103(c)).



ambiguous, requires interpretation, seeks legal conclusions and seeks expert testimony. Furthermore, this

request is not reasonably calculated to lead to the discovery of admissible evidence to the extent that it

prematurely seeks information and documents relating to the subject matter and opinions of expert

witnesses, whose disclosure is governed by Fed. R. Civ. P. 26. Subject to and without waiving the

foregoing, upon knowledge and belief, Plaintiffs respond as follows: Plaintiffs' property has diminished

in value due to water contamination and discoloration that has resulted from Defendants' activities.


10


INTERROGATORY N0.14: State with specificity how each Plaintiff has "lost the use and enjoyment

of their property, and the quality of life they otherwise enjoyed." (Complaint ~1 03( d)).



ambiguous, requires interpretation, seeks legal conclusions and seeks expe1t testimony. Furthermore, this




foregoing, upon knowledge and belief, plaintiffs respond as follows: Plaintiffs have lost enjoyment of

property and quality of life through the diminished quality of water and this diminished water quality has

created emotional stress and economic burden.


INTERROGATORY NO. 15: For each Plaintiff, state with particularity when each Plaintiff claims that

his/her well became contaminated and the basis for the allegation.







foregoing, upon knowledge and belief, Plaintiffs respond as follows: Plaintiffs noticed well water became

contaminated in or around September 2010 and it is believed that Anschutz Exploration Corporation gas

drilling activities were the direct and proximate cause.


11



12

NAPOLI BERN RIPKA & ASSOCIATES, LLP Attorneys for Plaintiffs

Tate J. Kunkle, q. ( Y 4468542) 350 Fifth Avenue, Suite 7413 New York, New York 10118 (212) 267-3700






James T. Potter, Esq. HINMAN STRAUB PC 121 State Street Albany, New York 12207 [email protected] Attorneys for Defendant Conrad Geoscience Corporation


13


Attorneys for Plaintiffs } /"'

~~ Tate J. Kunkle, ~2) 350 Fifth Avenue, Suite 7413 New York, New York 10118 (212) 267-3700


Verification

I certify that the foregoing Answers and Objections to Defendants' First Set of

Interrogatories are true and correct to my knowledge. I am aware that if any of the foregoing

responses are willfully false, I am subject to punishment.

I further certify that certain facts and matters set forth in these responses are not within

my personal knowledge, and that such facts and information have been assembled by my

attorneys, Napoli Bern Ripka & Associates, LLP based upon records, documents and other

information collected by myself and my attorneys.

DATE: v)lf/1

.,.,.•


Verification










P laintifft, District Judge Charles J. Siragusa -against-

ANSCHUTZ EJ{PLORATION CORPORATION, CONRAD GEOSClENCECORPORATION,PATHFlNDERENERGY SERVICES, INC. and JOHN and JANE DOES 1 through 100,

Dtjendants. ------------------------------------------------------------------------)(

PLAINTIFF MAXINE CONDON RESPONSES TO ANSCHUTZ E)(PLORATION CORPORATION'S FIRST SET OF INTERROGATORIES

Pursuant to Rule 33 of the Federal Rules of Civil Procedure, PlaintiffMaxine Condon, by

and through her attorneys, Napoli Bern Ripka & Associates LLP, makes the following

Objections and Responses to Defendant Anschutz Exploration Corporation's First Set of

Interrogatories.






4. Plaintiff objects to these discovery requests to the extent they seek information that does not pertain to or is beyond that in Plaintiffs possession, custody, or control, and/or infmmation that is equally available to defendant.


6. Plaintiff objects to these discovery requests to the extent they are umelated to any claim or defense in this case.


8. Plaintiff objects to these discovery requests to the extent they request information beyond the limitations and parameters agreed among the parties or imposed by the Court. Plaintiffs responses are subject to all such limitations and parameters and incorporate by reference the discovery parameters imposed by the Court.

9. The information Plaintiff produces in response to these discovery requests, if any, is produced solely for the purpose of this action. Plaintiff expressly reserves all objections to the admissibility of such information at trial, including all objections regarding relevance, authenticity, materiality, propriety and admissibility and any other objections that would require exclusion of the information, if such information were offered as evidence at trial.





2




his or her Property, (ii) the amount of time that each Plaintiff has lived on the Property; and (iii)




vague, ambiguous and not limited in tetms of time or scope. Subject to and without waiving the


(i): Maxine Condon and her husband Walter Condon (deceased) purchased the property

located at 10 Wolcott Dr. Horseheads, New York 14845 in August of 1968.

(ii): Maxine Condon has lived at the property located at 10 Wolcott Dr. Horseheads, New

York 14845 for 43 years.

(iii): The date the original ground water well located at 10 Wolcott Dr. Horseheads, New

York 14845 was installed is approximately 1962 when the house was built on the property.

Plaintiff reserves the right to supplement this response up to and including the time oftrial.









3





(i): A new ground water well was installed at the property located at 10 Wolcott Dr.

Horseheads, New York 14845 on June 16,2008.

(ii): Mr. Ken Wilcox installed the ground water well located on the property at 10

Wolcott Dr. Horseheads, New York 14845

(iii): The depth of the ground water well is approximately 138ft.

(iv): The well is lined with a steel casing that extends approximately 68ft.

(v): The well is lined with a steel casing that extends approximately 68 ft.

(vi): The well is vented.

(vii): The well vent was installed on June 19,2008

(viii): None.







testing performed.




4




(i): The ground water well located at 10 Wolcott Drive, Horseheads NY 14845 was tested

on: 10/9/07, 7/29/08, 8/12/08, 12/8110, and 4/28111

(ii): Ken Wilcox, of Wilcox Well Drilling

1158 Pleasant Street, Horseheads NY 14845

Pump Doctors, 76 Brown Road, Horseheads NY 14845

(iii): See testing results attached to responses to Defendant's demand for documents.




propeliy near Plaintiffs' Propeliies, since 2000 - especially problems such as contamination,







entail. Subject to and without waiving the foregoing, upon knowledge and belief, plaintiff

responds as follows: Plaintiff has had no problems with her well since 2000. Plaintiff has had

some slight sulfur smell of rotten eggs. Plaintiff is unaware of any resolution of this problem and

plaintiff is not water of the cause or suspected cause because she is not an expeli of

5


hydrogeology or any science related to ground water and thus cannot answer this part of the

question. Plaintiff reserves the right to supplement this response up to and including the time of

trial.



Exploration Corporation in 2010. In your response, for any alleged contamination, state whether











and belief, plaintiff responds as follows: Plaintiffs ground water well was contaminated from

Anschutz's drilling activities with known contaminates of natural gases, barium, fecal coli form,

odors, brown sediment, and grey sediment. Testing was carried out by the Chemung County

Health Department and Environmental Health Services. Plaintiff reserves the right to

supplement this response up to and including the time of trial.

6


INTERROGATORY NO.6: For each Plaintiff, describe with specificity all damages claimed















asks plaintiff to summarize information contained in documents from plaintiffs files. Pursuant to

Fed. R. Civ. P. Rule 33(d), Plaintiff is not required to summarize all responsive information

contained in business records which Plaintiff has previously produced or will produce in

response to discovery demands. Subject to the foregoing, Plaintiffs damages include, but are

not limited to the discoloration of clothing due to water used in laundry, discoloration of

appliances such as washing machines, sinks, toilet, and bathtub, costs for the purchase of bottled

water used in washing, cooking, and consumption, emotional stress caused by contaminated

water and economic hardship caused by fixed income being used for the purchase of water,

7


ruined plumbing pipes and appliances, inconvenience damages and the diminution of value of

property.


to supplement or modify its response to Defendant's' interrogatories up to and including the time

of trial.


above, state with particularity Plaintiffs allegation for how the drilling activities of Anschutz















asks plaintiff to summarize information contained in documents from plaintiffs files. Pursuant

to Fed. R. Civ. P. Rule 33(d), Plaintiff is not required to summarize all responsive information

8





contamination because for the 41 years before any drilling activities occurred in the affected area

water was not experiencing any of the issues now present. Plaintiff continues its investigation of

all relevant facts in this case and reserves its right to supplement or modify its response to

Defendant's' interrogatories up to and including the time of trial.

INTERROGATORY NO.8: Identify any physician or other medical service provider from







invades the Plaintiffs privacy because the Plaintiff has not knowingly sustained personal injuries



provider's examination of plaintiff is properly the subject ofthis litigation or interrogatories or


to the subject matter of this litigation, as plaintiff has not placed her health or physical condition



9


further adviCe of counsel, Plaintiff is only asserting damage claims requiring medical monitoring,


INTERROGATORY NO.9: Identify whether any Plaintiffhas ever installed any venting


equipment that has been installed, identi:ty (i) on which Plaintiffs property the equipment or




was installed.





belief, plaintiff responds as follows: a venting well cap was installed on June 19, 2010 on the

ground water well located at 10 Wolcott Drive, Horseheads NY 14845 by Ken Wilcox of Wilcox

Well Drilling. Plaintiff, not being an expert in natural gas contamination, natural gas operations,

hydrogeology, geology or well drilling cannot respond as to why a well cap was installed after

defendant contaminated the potable water supply with combustible gases and other toxic

substances. Plaintiff reserves the right to supplement this response up to and including the time

of trial.

10









Plaintiff uses the well ground water for washing and bathing. Plaintiff has been forced to

purchase water for cooking and drinking due to defendants' activities.

INTERROGATORY NO. 11: For each Plaintiff, state the basis as ofthe filing of the


contaminated with "[p]ollutants, including but not limited to toxic sediments, and industrial





vague, ambiguous, requires interpretation and seeks expert testimony. Fmihermore, this request




waiving the foregoing, upon knowledge and belief, Plaintiff responds as follows: Plaintiffs

ground water well was contaminated from Anschutz's drilling activities with known

11


contaminates of natural gases, barium, fecal coli form, odors, brown sediment, and grey

"sediment". Testing was carried out by the Chemung County Health Department and

Environmental Health Services. Plaintiff reserves the right to supplement this response up to and

including the time of trial.


as a result of actual fires or explosions or whether the Plaintiffs claim is for the threat of such







waiving the foregoing, Plaintiffs claim at this time is the imminent threat of such fires and




trial.




12







Subject to and without waiving the foregoing, upon knowledge and belief, plaintiff responds as

follows: Plaintiffs property has diminished in value due to water contamination that has

resulted from Defendants' activities.


enjoyment of their property, and the quality oflife they otherwise enjoyed." (Complaint~

103(d)).

RESPONSE TO INTERROGATORY N0.14:








quality of water and this diminished water quality has created significant emotional stress and

economic burden.

13











follows: on or about September 9, 2010.


14


~~ Tate J. Kunkle, sq. (NY 4468542) 350 Fifth Avenue, Suite 7413 New York, New York 10118 (212) 267-3700



I cetiify that on June 30, 2011, I caused a copy of the foregoing document to be served on all counsel of record and on defendants' counsel by First Class Mail:

Christopher D. Thomas, Esq. NIXON PEABODY LLC 1300 Clinton Square Rochester, New York 14604 [email protected]




15


Attorn;;;J~~ Tate J. Kunkle, Esq. (NY4468542) 350 Fifth Avenue, Suite 7413 New York, New York 10118 (212) 267-3700


Verification








DATE:

NAME:

TITLE:

ADDRESS:



-------------------------------------------------------------------)( JASON BAKER, JOHN BREWSTER, JOANN BREWSTER, MA)(INE CONDON, KAREN FARRELL, BROOKS LIDDIARD, JANET LIDDIARD, JAMES MCDERMOTT, HEIDI MCDERMOTT, PAUL MOREY, DONETTA MOREY, JOE TODD, BONNIE TODD, Case No. 11-CV-06119-CJS TOM WHIPPLE and PAULINE WHIPPLE,


ANSCHUTZE){PLORATION CORPORATION, CONRAD GEOSCIENCE CORPORATION, PATHFINDER ENERGY SERVICES, INC. and JOHN and JANE DOES 1 through 100,

Defendants. ------------------------------------------------------------------------)(

PLAINTIFF KAREN FARRELL RESPONSES TO ANSCHUTZ EXPLORATION CORPORATION'S FIRST SET OF INTERROGATORIES

Pursuant to Rule 33 of the Federal Rules of Civil Procedure, Plaintiff Karen Farrell, by

and through her attorneys, Napoli Bern Ripka & Associates LLP, makes the following


Interrogatories.






4. Plaintiff objects to these discovery requests to the extent they seek information that does not pertain to or is beyond that in Plaintiff's possession, custody, or control, and/or information that is equally available to Defendant.


6. Plaintiff objects to these discovery requests to the extent they are unrelated to any claim or defense in this case.


8. Plaintiff objects to these discovery requests to the extent they request information beyond the limitations and parameters agreed among the parties or imposed by the Comi. Plaintiffs responses are subject to all such limitations and parameters and incorporate by reference the discovery parameters imposed by the Court.

9. The information plaintiff produces in response to these discovery requests, if any, is produced solely for the purpose of this action. Plaintiff expressly reserves all objections to the admissibility of such information at trial, including all objections regarding relevance, authenticity, materiality, propriety and admissibility and any other objections that would require exclusion of the information, if such information were offered as evidence at trial.





2










(i): In or about July 1986.


(iii): Unknown.













3


(i): Unknown.

(ii): Unknown.

(iii): Unknown.

(iv): Unknown.

(v): Unknown.

(vi): Unknown.

(vii): Unknown.

(viii): Unknown.







testing performed.






(i): Unknown.

(ii): Unknown.

(iii): Unknown.

4





property near Plaintiffs' Properties, since 2000- especially problems such as contamination,







entail. Subject to and without waiving the foregoing, upon knowledge and belief, Plaintiff

responds as follows: In Fall of2010, Plaintiff noticed discoloration, sediment, and the presence

of gas in her water. Since this time, Plaintiffs water supply has smelled of rust, and all

appliances that use water have visibly rusted. Plaintiff is unaware of any resolution of these

problems. Plaintiff is not aware of the cause or suspected cause of these problems because she is

not an expert of hydrogeology or any science related to ground water and thus cannot answer this

part of the question. Plaintiff reserves the right to supplement this response up to and including

the time of trial.




5












and belief, Plaintiff responds as follows: no testing of Plaintiffs ground water well has occurred.


trial.










6




Without waiving the general objections and prior objections, plaintiff also objects in that




asks plaintiff to summarize information contained in documents from plaintiffs files. Pursuant to

Fed. R. Civ. P. Rule 33(d), Plaintiff is not required to summarize all responsive information


to discovery demands. Subject to the foregoing, Plaintiffs damages include, but are not limited

to problems of rusting, discoloration, and other malfunction of appliances and other fixtures that

use water.


to supplement or modify its response to defendant's' interrogatories up to and including the time

of trial.


above, state with pmiicularity Plaintiffs allegation for how the drilling activities of Anschutz






7











asks plaintiff to summarize information contained in documents from plaintiff's files. Pursuant

to Fed. R. Civ. P. Rule 33( d), Plaintiff is not required to summarize all responsive information




contamination because for the years before any drilling activities occurred in the affected area

water was not experiencing of the issues now present. Plaintiff continues its investigation of all

relevant facts in this case and reserves its right to supplement or modify its response to

Defendant's interrogatories up to and including the time of trial.




reason that Plaintiffvisited the physician; and (4) the outcome ofthe treatment.

8





invades the Plaintiffs privacy because the Plaintiff has not knowingly sustained personal injuries



provider's examination of Plaintiff is properly the subject of this litigation or interrogatories or


to the subject matter of this litigation, as Plaintiff has not placed her health or physical condition



further advice of counsel, Plaintiff is only asserting damage claims requiring medical monitoring,


INTERROGATORY NO. 9: Identify whether any Plaintiff has ever installed any venting





employer, who installed the equipment; and (4) a description ofwhy the equipment or device

was installed.


9





belief, Plaintiff responds as follows: no venting has been installed on Plaintiff's property.









Plaintiff uses bottled water from Tops Brand, Poland Spring, and/or Deer Park for her drinking

and cooking needs. Plaintiff has no choice but to use well water for her washing, bathing, and

other daily residential water uses.







10




reasonably calculated to lead to the discovery of admissible evidence to the extent that it



waiving the foregoing, Plaintiff continues her investigation of all relevant facts in this case and

reserves its right to supplement or modify its response to Defendant's' interrogatories up to and





threatened fires or explosions - e.g., moving out of the house, venting the well, disconnecting the





waiving the foregoing, plaintiffs claim at this time is the imminent threat of such fires and




trial.

11



Plaintiffs' properties "have been harmed and diminished in value." (Complaint '1!103(c)).








follows: Plaintiffs property has diminished in value due to water contamination that has

resulted from defendants' activities.


trial.


enjoyment of their property, and the quality oflife they otherwise enjoyed." (Complaint 'I!

103(d)).








12



quality of water and the emotional stress and economic burden that this diminished water quality

has caused.


trial.










follows: in or about the Summer of2010.


13


~~ Tate J. Kunkle, sq. (NY4468542) 350 Fifth Avenue, Suite 7413 New York, New York 10118 (212) 267-3700








14

NAPOLI BERN RIPKA & AsSOCIATES, LLP

Attorn;;:~~

Tate J. Kunkle, Esq. (NY4468542) 350 Fifth Avenue, Suite 7413 New York, New York 10118 (212) 267-3700


Verification

I certifY that the foregoing Answers and Objections to Defendants' First Set of

Interrogatories are true and correct to my knowledge. I am aware that if any ofthe

foregoing responses are willfully false, I am subject to punishment.

I further certify that certain facts and matters set forth in these responses are not

within my personal knowledge, and that such facts and information have been assembled

by my attorneys, Napoli Bern Ripka & Associates, LLP based upon records, documents

and other information collected by myself and my attorneys.

DATE: 0 lU\J._



-------------------------------------------------------------------)( JASON BAKER, JOHN BREWSTER, JOANN BREWSTER, MA)(INE CONDON, KAREN FARRELL, BROOKS LIDDIARD, JANET LIDDIARD, JAMES MCDERMOTT, HEIDI MCDERMOTT, PAUL MOREY, DONETTA MOREY, JOE TODD, BONNIE TODD, TOM WHIPPLE and PAULINE Case No. 11-CV-06119-CJS WHIPPLE,

P laintif.IS, District Judge Charles J. Siragusa -against-

ANSCHUTZ E){PLORATION CORPORATION, CONRAD GEOSCIENCE CORPORATION, PATHFINDER ENERGY SERVICES, INC. and JOHN and JANE DOES 1 through 100,

Dqendants. )(

PLAINTIFFS BROOKS LIDDIARD AND JANET LIDDIARD RESPONSES TO ANSCHUTZ E){PLORATION CORPORATION'S FIRST SET OF INTERROGATORIES

Pursuant to Rule 33 of the Federal Rules of Civil Procedure, Plaintiffs Brooks and Janet Liddiard,

by and through their attorneys, Napoli Bern Ripka & Associates LLP, make the following Objections and

Responses to Defendant Anschutz Exploration Corporation's First Set oflnterrogatories.



2. Plaintiffs object to these discovety requests to the extent they seek information outside the restricted scope of discovery permissible under the Local Civil Rules of this Court.

3. Plaintiffs object to these discovety requests to the extent that they seek documents or information covered by the attorney-client privilege, the work product doctrine, or any other applicable privilege or immunity. None of these responses are intended as, or should be construed as, a waiver or relinquishment of any pati of the protections afforded by the attomey-client privilege, the work product doctrine, or any other applicable privileges or immunities.

4. Plaintiffs object to these discovery requests to the extent they seek information that does not pertain to or is beyond that in Plaintiffs' possession, custody, or control, and/or infonnation that is equally available to defendant.

5. Plaintiffs object to these discovery requests to the extent they seek information that cannot be located after a reasonable search of its records reasonably believed most likely to contain the


responsive infonnation on the grounds that any such requirement would be unduly burdensome and oppressive.



8. Plaintiffs object to these discovery requests to the extent they request infonnation beyond the limitations and parameters agreed among the parties or imposed by the Comi. Plaintiffs' responses are subject to all such limitations and parameters and incorporate by reference the discovery parameters imposed by the Court.




12. Plaintiffs' responses to these discovery requests are based on information available as a result of a good faith search in the time allowed before submitting its responses. Plaintiffs reserve the right to supplement their responses consistent with its obligations under the Federal Rules of Civil Procedure.

13. Plaintiffs reserve the right to amend or supplement its responses as well as the right to object to other discovery directed to the subject matter of Defendant's Discovery Requests.


INTERROGATORY N0.1: For each Plaintiff, identify (i) the date that each Plaintiff purchased his or


each Plaintiffs ground water well was installed on the Plaintiffs property.




2



(i): The property located at 22 Wolcott Drive, Horseheads NY was purchased on July 27, 1978.

(ii): Plaintiffs lived on the property from August 28, 1978 thru October 16, 2010. Also stayed

temporarily at the property from November 24,2010 thru November 27, 2010, and from December 23,

2010 thru December 31,2010.

(iii): Upon information and belief, Plaintiffs are unaware of when the ground water well was

installed on the property.




Plaintiff possesses infonnation. For each well, describe, with specificity, (i) the date the well was

installed, (ii) the installer, (iii) the depth of the well, (iv) whether well is lined, (v) the type oflining or


any other equipment or systems designed to filter, purify or otherwise improve the quality of the well

water.





(i): Upon information and belief Plaintiffs are unaware of the date the ground water well was

installed at the property located at 22 Wolcott Drive, Horseheads NY.

(ii): Upon information and belief Plaintiffs are unaware of the installer the ground water well was

installed at the property located at 22 Wolcott Drive, Horseheads NY.

(iii): Upon information and belief the ground water well is approximately 115 feet deep.

(iv): Upon information and belief Plaintiffs are unaware ifthe ground water well has a lining.

3


well.

cap.

(v): Upon information and belief Plaintiffs are unaware ofthe type of lining the ground water

(vi): Upon information and belief Plaintiffs are unaware if the ground water well is vented.

(vii): Upon infonnation and belief Plaintiffs are unaware who might have installed a well vent

(viii): Upon information and belief a greensand filter and water softener was installed by

Chemung Soft Water Service around 1989 or 1990.










Subject to and without waiving the foregoing, upon knowledge and belief, Plaintiffs responds as follows:

(i): The well located at 22 Wolcott Drive, Horseheads NY was not inspected, serviced, or

maintained since 2000, but was tested on September 21, 2010 for E. Coil and total chloroforms. A flow

test was also done on September 21, 2010.

(ii): Mark Costanza, owner of Water Wizard LLC conducted the testing on September 21,2010.

(iii): The test for E. Coli by method SM9223B -- <1.0 MPN/1 OOmL. The test for Total

Cloriforms by method SM9223B -results < 1.0 MPN/1 OOmL. See attached documentation.


4




Properties, since 2000- especially problems such as contamination, discoloration, odors, or turbidity in


occurred, (iii) the resolution of the problem (if any), and (iv) the cause or suspected cause of the problem.




as or may entail. Subject to and without waiving the foregoing, upon knowledge and belief, Plaintiffs

respond as follows: (i); Gas bubbles and cloudiness was found in the water. (ii) Water issues were first

noticed approximately in July of2010; (iii) The water issues have not yet been resolved; (iv) Plaintiffs are

not experts of hydrogeology or any science related to ground water and thus cannot answer this part of the

question.









ambiguous, requires interpretation as to what "nature" would be defined as or may entail and seeks expert

testimony. Furthermore, this request is not reasonably calculated to lead to the discovery of admissible



5


without waiving the foregoing, upon knowledge and belief, Plaintiffs respond as follows: the nature of the

contamination is that there is methane gas in the water. The water also has cloudiness and seems to have

sediment. There have been no tests for methane. See also Response to Interrogatory No. 4 above.



including personal, mental, emotional, physical, property and punitive damages.












in large part. Plaintiff further objects to this request on the ground it asks Plaintiffs to summarize

information contained in documents from Plaintiffs' files. Pursuant to Fed. R. Civ. P. Rule 33(d),

Plaintiffs are not required to summarize all responsive information contained in business records which

Plaintiffs have previously produced or will produce in response to discovery demands. Subject to the

foregoing, Plaintiffs' damages include, but are not limited to: the water well being contaminated with

methane gas, the economic burden and nuisance of purchasing bottled water for drinking and cooking for

Plaintiffs and pets, and property damages for the inability to sell their home at a fair market value due to

water contamination.

6




with particularity Plaintiffs' allegation for how the drilling activities of Anschutz Exploration Corporation








relating to the subject matter and opinions of expert witnesses, whose disclosure is govemed by Fed. R.






contained in documents from Plaintiffs' files. Pursuant to Fed. R. Civ. P. Rule 33(d), Plaintiffs are not

required to summarize all responsive information contained in business records which Plaintiff have


without the objections, Plaintiffs claims that the drilling activities of Anschutz Exploration Corporation

caused the ground water well contamination because for the 32 years which Plaintiffs lived in their house

before any drilling activities occurred in the affected area, the water supply did not experience any of the

contamination and issues now present.


7





physician; and ( 4) the outcome of the treatment.


Upon the advice of counsel, Plaintiffs Brooks and Janet Liddiard object to this request because it

seeks irrelevant information that will not lead to the discovery of relevant information and improperly and

unduly invades the Plaintiffs' privacy because the Plaintiff has not knowingly sustained personal injuries

that have manifested, have been treated by medical professionals, nor that are personally known to the

Plaintiffs. Plaintiffs further objects on the grounds that no physician or other medical provider's

examination of Plaintiffs is properly the subject of this litigation or interrogatories or other discovery

connected therewith unless said examination, treatment or diagnosis was related to the subject matter of

this litigation, as Plaintiffs have not placed their health or physical condition at issue in this litigation in

any other manner and her medical condition(s), diagnoses and treatment for unrelated issues is privileged

and said privilege has not been waived. Upon the further advice of counsel, Plaintiffs are only asserting

damage claims requiring medical monitoring, including fear of cancer.


INTERROGATORY NO.9: Identify whether any Plaintiff has ever installed any venting equipment on

any ground water well(s) located on any ofthe Properties. For any venting equipment that has been

installed, identify (i) on which Plaintiffs property the equipment or device was installed; (ii) a description





8





respond as follows: (i-iv) No venting equipment was installed while Plaintiffs were residing at the

property. (v): Plaintiffs, not being experts in hydrogeology or well drilling cannot respond as to if or why

a well cap was or would be installed.




since the alleged contamination in approximately September 20 l 0. If not, state the alternative source of




ambiguous and requires interpretation. Subject to and without waiving the foregoing, Plaintiffs continued

to use well water from September 2010 until October 16, 2010 for cooking (only if boiling water),

washing clothes, washing dishes, and bathing. Plaintiffs did not use well water for drinking and resorted

to bottled water for this purpose.





muds and fluids," and "diesel fuel." For each Plaintiff, state which of the alleged contaminants are present

in his/her well.


9



ambiguous, requires interpretation and seeks expe1i testimony. Furthermore, this request is not


seeks infonnation and documents relating to the subject matter and opinions of expe1i witnesses, whose


knowledge and belief, plaintiff responds as follows: Plaintiffs were aware of gas bubbles in the water

supply and a cloudiness in the water that was never present before the drilling activities of Anschutz

Exploration Corporation.






from the well, etc.



ambiguous, requires interpretation and seeks expert testimony. Subject to and without waiving the

foregoing, Plaintiffs' claim at this time is the imminent threat of such fires and explosion. Methane is

known as a combustible gas and asphyxiate and plaintiffs are concerned about a possible explosion and

illnesses associated with exposure to contaminants.



properties "have been banned and diminished in value." (Complaint ~l 03( c)).


10







foregoing, upon knowledge and belief, Plaintiffs respond as follows: Plaintiffs' property has diminished

in value due to water contamination and discoloration that has resulted from defendants' activities.

Plaintiffs had a purchase offer dated September 15,2010 from real estate agent Michele M. Locey, 102

Lee Avenue, Horseheads NY, for $125,000- with no commission payable by Plaintiffs. This offer was

disapproved with suspicion that disapproval occurred due to methane contamination of the ground water

well. Home was eventually sold on March 12, 2011 for $117,000 through Realty USA, Carl Romans as

the agent.



of their property, and the quality of life they otherwise enjoyed." (Complaint ~103(d)).



ambiguous, requires interpretation, seeks legal conclusions and seeks expert testimony. Fmthermore, this




foregoing, upon knowledge and belief, Plaintiffs respond as follows: Plaintiffs have lost enjoyment of


created emotional stress and economic burden.


11








prematurely seeks infonnation and documents relating to the subject matter and opinions of expe11


foregoing, upon knowledge and belief, Plaintiffs respond as follows: Plaintiffs believe the ground water

well became contaminated on or around July 2010 as this is when the gas bubbles first appeared.



12

NAPOLI BERN RIPKA & ASSOCIATES, LLP Attorneys for Plaintifjs






Michael J. Guzman, Esq. KELLOG, HUBER, HANSEN, TODD, EVANS & FIGEL, PLLC 1615 M Street N.W., Suite 400 Washington, DC 20036 [email protected] Attorneys for Defendant Anschutz Exploration Corporation

James T. Potter, Esq. HINMAN STRAUB PC 121 State Street Albany, New York 12207 [email protected] Attorneys for Defendant Conrad Geoscience Cmporation


13


Attorneys for Plaintiff.s . ) /. /



Vcrifkation

I ccrtil\' that the foregoing Answers and ()bjections to Defendants' First Set of

lnteJT·)gatories are true and correct to my knowledge. I am aware that if any of the foregoing

resp<nses are willfully false, 1 am st1bject to punishment.

l further certify that certain facts and matters set 1~)fth in these responses are not within

my pnsona.l knmvledge, and that such facts and information have been assembled by my

attorneys, Napoli Bern Ripka & Associates, LLP based upon records .. documents and other

infornation collected by myself and my attorneys.

"') ,1 v· . ~ .. -. Ide l-') · _....,.._.1,;'1.·'. I . !(· / _____ ,!l'-..,,tt::c::J:,,.,:J!!!'_/::.'Z. .. '!L .• _, __ O(_.Ac .. _._ . • . ik:J,_~~

. ~ <I., NAME: f:>,t:.-o· d!C:? L L If) l> !f:1Jff)

TITLE:

ADDRESS: /.'-"_--... -// ..1 l? (~.( !v'? o je) l D


Verification


lnterr)gatorics are true and correct to my knowledge. lam aware that if any of the foregoing

respn1.ses are willfrdly false, I am subject to punishment.

I further cerli fy that certain facts and matters set forth in these responses are not within

my p< ~rsonal knowledge, and that such facts and information have been assembled by my

attorr·eys, Napoli Bern Ripka & Associates, LLP based upon records, documents and other

infonnation collected by myself and my attorneys.

DA·r~:

·-· -···------~~(~{i:.~:~::~~:~c?i~~:r.il:~.c.~?~~~~::r?:: ________ . NAME: ,J'/(i-1,/(t" ~-, L. /l)t) .o9 12 ()

'ITfLE:

ADDRESS: i-5"11 RtA.iif:J( o ~<.J t.-1!J .. ,....., 'I '}. Chlh.t 0 1.1 [L. .. ct) S c. ..2 'i 3 L2,__ . j


UNITED STATES DISTRICT COURT WESTERN DISTRICT OF NEW YORK -------------------------------------------------------------------)( JASON BAKER, JOHN BREWSTER, JOANN BREWSTER, MA)(INE CONDON, KAREN FARRELL, BROOKS LIDDIARD, JANET LIDDIARD, JAMES MCDERMOTT, HEIDI MCDERMOTT, PAUL MOREY, DONETTA MOREY, JOE TODD, BONNIE TODD, TOM WHIPPLE and PAULINE Case No. 11-CV -06119-CJS WHIPPLE,

P laintifft, District Judge Charles J. Siragusa -against-

ANSCHUTZE){PLORATION CORPORATION, CONRAD GEOSCIENCE CORPORATION, PATHFINDER ENERGY SERVICES, INC. and JOHN and JANE DOES 1 through 100,

D<fondants. )(

PLAINTIFFS JAMES McDERMOTT AND HEIDI McDERMOTT RESPONSES TO ANSCHUTZ E){PLORATION CORPORATION'S FIRST SET OF INTERROGATORIES

Pursuant to Rule 33 of the Federal Rules of Civil Procedure, Plaintiffs James and Heidi

McDermott, by and through their attorneys, Napoli Bern Ripka & Associates LLP, make the following

Objections and Responses to Defendant Anschutz Exploration Corporation's First Set oflnterrogatories.


1. Plaintiffs object to the definitions and instructions set fmth in Defendant's discovery requests to the extent they deviate from or purport to impose requirements other than or in addition to those required by the Federal Rules of Civil Procedure.

2. Plaintiffs object to these discovery requests to the extent they seek infonnation outside the restricted scope of discovery permissible under the Local Civil Rules of this Court.

3. Plaintiffs object to these discovery requests to the extent that they seek documents or information covered by the attorney-client privilege, the work product doctrine, or any other applicable privilege or immunity. None of these responses are intended as, or should be construed as, a waiver or relinquishment of any part of the protections afforded by the attorney-client privilege, the work product doctrine, or any other applicable privileges or immunities.

4. Plaintiffs object to these discovery requests to the extent they seek information that does not pertain to or is beyond that in Plaintiffs possession, custody, or control, and/or information that is equally available to defendant.

5. Plaintiffs object to these discovery requests to the extent they seek information that cannot be located after a reasonable search of its records reasonably believed most likely to contain the


responsive infonnation on the grounds that any such requirement would be unduly burdensome and oppressive.


7. Plaintiffs object to these discovery requests to the extent that they contain vague or ambiguous tenus as such requests are overbroad, unduly burdensome and oppressive, and not reasonably calculated to lead to the discovery of admissible evidence.


9. The information Plaintiffs produce in response to these discovery requests, if any, is produced solely for the purpose of this action. Plaintiffs expressly reserves all objections to the admissibility of such information at trial, including all objections regarding relevance, authenticity, materiality, propriety and admissibility and any other objections that would require exclusion of the information, if such information were offered as evidence at trial.



12. Plaintiffs' responses to these discovery requests are based on information available as a result of a good faith search in the time allowed before submitting its responses. Plaintiffs reserve the right to supplement its responses consistent with its obligations under the Federal Rules of Civil Procedure.

13. Plaintiffs reserve the right to amend or supplement its responses as well as the right to object to other discovery directed to the subject matter of Defendants' Discovery Requests.


INTERROGATORY N0.1: For each Plaintiff, identifY (i) the date that each Plaintiff purchased his or


each Plaintiffs ground water well was installed on the Plaintiffs property.





2


(i): On or about November 25, 2009

(ii): Approximately 19 months.

(iii): Upon infonnation and belief, the ground water well was installed in when the house was

constructed in 197 5.




Plaintiff possesses information. For each well, describe, with specificity, (i) the date the well was

installed, (ii) the installer, (iii) the depth of the well, (iv) whether well is lined, (v) the type of lining or


any other equipment or systems designed to filter, purifY or otherwise improve the quality of the well

water.





(i): Upon information and belief, the well was installed at the time of construction in 1975.

(ii): Unknown

(iii): Unknown.

(iv): Unknown.

(v):There is some sort of metal casing on the well.

(vi): The well is vented.

(vii): Unknown.

3


(viii): In April of 2011, a chlorination system, including an injection and retention tank, and a

Carbon Filtration System were professionally installed in an attempt to reduce the grey-water

contamination and bacteria content of the well, and to increase the overall water quality.










Subject to and without waiving the foregoing, upon knowledge and belief, Plaintiffs respond as follows:

(i): The well has been tested three times: on October 20, 2009, as part of closing procedures on

the purchase ofthe residence; on November 22, 2010; and again on December 6, 2010.

(ii): The October 20, 2009 testing was sampled by Water Wizard LLC, of Corning, New York

and analyzed by Benchmark Analytics, Inc. of Sayre, Pennsylvania. The November 22, 2010

testing was conducted by Benchmark Analytics, Inc. of Sayre, Pennsylvania. The December 6,

2010 testing was conducted by Gary Roll from Culligan Water.

(iii): The October 20, 2009 water sample was designated "in compliance." The November 22,

20 I 0 water sample was designated "not in compliance" due to the presence of excessive coliform

bacteria in the sample. The December 6, 20 10 water sample resulted in a proposal of abatement

measures to reduce the methane gas, clay, iron bacteria, and coliform bacteria in the water.

4





Properties, since 2000- especially problems such as contamination, discoloration, odors, or turbidity in


occuned, (iii) the resolution of the problem (if any), and (iv) the cause or suspected cause of the problem.




as or may entail. Subject to and without waiving the foregoing, upon knowledge and belief, plaintiff

responds as follows: (i) Water from the tap appears white and dirty. Inside of toilets are coated with

grey/black coating that requires daily scrubbing, and parts frequently become clogged. Inside of water

tanks are slimy and coated with bacteria growth and settled particles; (ii) problems were first noticed in

or around September 2010; (iii) no resolution ofthe issues has occuned; (iv) Plaintiffs have investigated

the causes of this and have included their findings and notes with their document production.









ambiguous, requires interpretation as to what "nature" would be defined as or may entail and seeks expett

5


testimony. Furthermore, this request is not reasonably calculated to lead to the discovery of admissible



without waiving the foregoing, upon knowledge and belief, Plaintiff responds as follows: After noticing,

in September 2010, that water was becoming discolored and/or contaminated, Plaintiffs contacted the

county Department of Health and the local water company, Pump Doctors. At this time, they learned that

the Anschutz Exploration Company had just capped a gas well proximate to their property, and that

several other area residents were experiencing similar problems. Plaintiffs consulted with Pump Doctors

and Culligan Water for advice as to the source of the problem. Drawing on opinions of these companies

based on their experience with similar situations arising from other energy companies operations,

Plaintiffs formulated the idea that Defendants' gas drilling activities was related to their water quality

problems. See also Response to Interrogatory No. 4 above.



including personal, mental, emotional, physical, prope1ty and punitive damages.







relating to the subject matter and opinions of expe1t witnesses, whose disclosure is governed by Fed. R.




6



in large pati. Plaintiff futiher objects to this request on the ground it asks Plaintiffs to summarize

infonnation contained in documents from Plaintiffs' files. Pursuant to Fed. R. Civ. P. Rule 33(d),

Plaintiffs are not required to summarize all responsive infonnation contained in business records which

Plaintiffs has previously produced or will produce in response to discovery demands. Subject to the

foregoing, Plaintiffs' damages include, but are not limited to:

Plaintiffs are unable to drink their water, so have installed a water cooler in their kitchen, which

requires them to purchase and transport five gallon containers of drinking water from a local store.

Plaintiffs, too, do not feel comfortable using this contaminated water for bathing, and have installed a

rented water filtration system to fulfill their daily residential water needs.

Plaintiffs' water supply has changed drastically since the time that they purchased their home;

this is well documented in water testing conducted before and after their purchase of the property. Now,

the water contains a visible amount of combustible gas and a great deal of particulate matter leading to

darkening and discoloration ofthe water and its containing appliances. Plaintiffs have been required to

install a water filtration system due to their water no longer meeting safety standards, and the value of

their home has been drastically reduced by the need to disclose these issues to any prospective buyers and

the dramatic change in water quality.



with patiicularity Plaintiffs' allegation for how the drilling activities of Anschutz Exploration Corporation




that has been requested is not limited in time or scope. Plaintiffs also object to this interrogatmy on the


7


document supporting a broad anay of facts. Furthermore, this request is not reasonably calculated to lead








contained in documents from Plaintiffs' files. Pursuant to Fed. R. Civ. P. Rule 33( d), Plaintiffs are not

required to summarize all responsive information contained in business records which Plaintiff has


without the objections, Plaintiffs claim that the drilling activities of Anschutz Exploration Corporation

caused the ground water well contamination because prior to purchasing their house, the water supply was

tested and revealed no contamination or other issues. Months later, after Anschutz Exploration Company

drilled in the area, their water supply became severely contaminated, discolored, and unsafe for

consumption. Plaintiffs' opinions are based in part on the statements of water professionals Pump

Doctors and Culligan Water.





physician; and ( 4) the outcome of the treatment.


Upon the advice of counsel, Plaintiffs object to this request because it seeks irrelevant

information that will not lead to the discovery of relevant information and improperly and unduly invades

8


the Plaintiffs' privacy because the Plaintiffs have not knowingly sustained personal injuries that have

manifested, have been treated by medical professionals, nor that are personally known to the Plaintiffs.

Plaintiffs further object on the grounds that no physician or other medical provider's examination of

plaintiff is properly the subject of this litigation or interrogatories or other discovery connected therewith

unless said examination, treatment or diagnosis was related to the subject matter of this litigation, as

Plaintiffs have not placed her health or physical condition at issue in this litigation in any other manner

and her medical condition(s), diagnoses and treatment for unrelated issues is privileged and said privilege

has not been waived. Upon the further advice of counsel, Plaintiffs are only asserting damage claims

requiring medical monitoring, including fear of cancer.


INTERROGATORY NO. 9: Identify whether any Plaintiff has ever installed any venting equipment on

any ground water well(s) located on any of the Properties. For any venting equipment that has been

installed, identify (i) on which Plaintiffs property the equipment or device was installed; (ii) a description








respond as follows: (i): Upon information and belief the Plaintiffs are not in possession of any venting

equipment; (ii): Upon infonnation and belief the Plaintiffs are not in possession of any venting

equipment; (iii): Upon information and belief the Plaintiffs are not in possession of any venting

equipment; (iv): Upon information and belief the Plaintiffs are not in possession of any venting

9


equipment; (v): Plaintiffs, not being experts in hydrogeology or well drilling cannot respond as to if or

why a well cap was or would be installed.




since the alleged contamination in approximately September 2010. If not, state the alternative source of




ambiguous and requires interpretation. Subject to and without waiving the foregoing, Plaintiffs have

purchase their drinking and cooking water, even after the installation of a water filtration system on their

property. They have no choice but to use their well water for washing, bathing, laundry and other similar

residential uses.





muds and fluids," and "diesel fuel." For each Plaintiff, state which of the alleged contaminants are present

in his/her well.





seeks information and documents relating to the subject matter and opinions of expert witnesses, whose

10



knowledge and belief, Plaintiffs respond as follows: See Responses to Interrogatories Nos. 3 through 7.






from the well, etc.



ambiguous, requires interpretation and seeks expet1 testimony. Subject to and without waiving the

foregoing, Plaintiffs respond as follows: In April, 2011, a chlorination system, including an injection and

retention tank, as well as a Carbon Filtration System was professionally installed on the property in an

attempt to lessen the grey-water contamination, presence of bacteria, and to improve the water.



properties "have been harmed and diminished in value." (Complaint ~1 03( c)).





prematurely seeks information and documents relating to the subject matter and opinions of expet1


foregoing, upon knowledge and belief, plaintiff responds as follows: Plaintiffs' property has diminished

11


in value due to their well water problems, the installation of a necessary water filtration system due to

their water not meeting codes, disclosures that will have to be made to prospective buyers on the presence

of combustible gas in the water, and other detriments to the value of the home due to the water

contamination and discoloration that have resulted from defendants' activities. Plaintiffs currently have

no alternative but to live with their poor water quality because the cost of installing gas vent equipment

and the amount of waste water that would be produced from the process makes it financially and

physically impractical.



of their property, and the quality oflife they otherwise enjoyed." (Complaint ~l03(d)).



ambiguous, requires interpretation, seeks legal conclusions and seeks expert testimony. Furthennore, this




foregoing, upon knowledge and belief, plaintiffs respond as follows: Plaintiffs have lost enjoyment of


created emotional stress and economic burden. Prior to the discovery of water contamination, Plaintiffs

used their well water for drinking, washing, and bathing, as they would have in any other residence.

Plaintiffs and their children drank directly from the taps, a practice that has since ceased with the change

in water quality. Plaintiffs are concerned about the inevitable continued decrease in the value of their

home, and anxious that disclosure of these water quality issues will deter prospective buyers.


12






ambiguous, requires interpretation, seeks legal conclusions and seeks expert testimony. Furthennore, this




foregoing, upon knowledge and belief, Plaintiffs respond as follows: Plaintiffs noticed well water became

contaminated in or around September 2010 and it is believed that Anschutz Exploration Corporation gas

drilling activities were the direct and proximate cause. See also Response to InteiTogatory No. 4 above.



13







Michael J. Guzman, Esq. KELLOG, HUBER, HANSEN, TODD, EVANS & FIGEL, PLLC 1615 M Street N.W., Suite 400 Washington, DC 20036 [email protected] Attorneys for Defendant Anschutz Exploration Corporation



14


Attorneys for Plaintiffs . ) / ~



Verification








DATE:


Verification








DATE: b2'6'- i\

NAME: l+t~.di /11 {.))cray_,-f-f

TITLE:

ADDRESS: ~~ f'f,t-flLTl:A"'fe<_<:e.

l-brs~h.c?<-6l.s .~~v-( /lf5rl{5




ANSCHUTZ EJ{PLORATION CORPORATION, CONRAD GEOSCIENCE CORPORATION, PATHFINDER ENERGY SERVICES, INC. and JOHN and JANE DOES 1 through 100,

Defondants. ------------------------------------------------------------------------)(

PLAINTIFFS DO NETTA D. MOREY AND PAUL MOREY RESPONSES TO ANSCHUTZ EXPLORATION CORPORATION'S FIRST SET OF

INTERROGATORIES

Pursuant to Rule 33 of the Federal Rules of Civil Procedure, Plaintiffs Donetta and Paul

Morey, by and through their attorneys, Napoli Bern Ripka & Associates LLP, make the

following Objections and Responses to Defendant Anschutz Exploration Corporation's First Set

of Interrogatories.



2. Plaintiffs object to these discovery requests to the extent they seek information outside the restricted scope of discovery permissible under the Local Civil Rules of this Court.

3. Plaintiffs object to these discovery requests to the extent that they seek documents or information covered by the attorney-client privilege, the work product doctrine, or any other applicable privilege or immunity. None of these responses are intended as, or should be construed as, a waiver or relinquishment of any part of the protections afforded by the attorneyclient privilege, the work product doctrine, or any other applicable privileges or immunities.


4. Plaintiffs object to these discovery requests to the extent they seek information that does not pertain to or is beyond that in Plaintiff's possession, custody, or control, and/or information that is equally available to defendant.

5. Plaintiffs object to these discovery requests to the extent they seek information that cannot be located after a reasonable search of its records reasonably believed most likely to contain the responsive information on the grounds that any such requirement would be unduly burdensome and oppressive.





10. Plaintiffs' decision to provide information notwithstanding the objectionable nature of any of the discovery requests should neither be construed as a stipulation that the information is relevant nor a waiver of Plaintiffs' general or specific objections.


12. Plaintiffs' responses to these discovery requests are based on information available as a result of a good faith search in the time allowed before submitting its responses. Plaintiff reserves the right to supplement its responses consistent with its obligations under the Federal Rules of Civil Procedure.


2





the date that each Plaintiff's ground water well was installed on the Plaintiff's property.


Upon the advice of counsel, Plaintiffs object to this request on the grounds that it is


foregoing, upon knowledge and belief, Plaintiffs respond as follows:

(i): On or about July 17, 1987


(iii): Unknown.













3


(i): Unknown;

(ii): Unknown

(iii): Approximately 100 feet.

(iv): The well is lined with a steel casing.

(v): The well is lined with a steel casing.

(vi): The well is not vented

(vii): Unknown.

(viii): Water Softener installed in early 1990s; sediment filter installed October 2, 2010.







testing performed.




may entail. Subject to and without waiving the foregoing, upon knowledge and belief, Plaintiffs


(i): A new pump was installed on June 9, 2009 by Pump Doctors; a water test was

conducted on November 16,2010 by Chemung County Health Department; a water test was

again conducted on December 8, 201 0 by Chemung County Health Department.

4


(ii): Pump Doctors, 76 Brown Road, Horseheads NY 14845

(iii): See testing results attached to responses to defendant's demand for documents.






nature ofthe problem, (ii) when the problem occurred, (iii) the resolution ofthe problem (if any),




vague, ambiguous, calls for expert testimony and requires interpretation as to what "problems"

would be defined as or may entail. Subject to and without waiving the foregoing, upon

knowledge and belief, Plaintiffs respond as follows: (i): Banging of pipes and moments of

forceful water pressure dispensing was cause by the high level of methane in the water. Heavy

toxic sediment causing water to appear brownish-black and leaving a sediment residue in sinks,

toilet and tub. Turbidity of water in well could be heard at the top of the well. A metallic smell

in water with a cloudy appearance occurred as well. Methane bubbles could be seen and heard

when a glass of water was poured. Sediment clogged up washing machine and made the

refrigerator produce gray ice cubes; (ii): noticed problems around September 4, 201 0; (iii): no

resolution of the issues has occurred. Plaintiffs have stopped using water except to shower; (iv):

Plaintiffs are not experts of hydrogeology or any science related to ground water and thus cannot

5


answer this part of the question. Plaintiffs reserve the right to supplement this response up to and















and belief, Plaintiffs respond as follows: (i): a water test was conducted on November 16, 2010

by Chemung County Health Department; a water test was again conducted on December 8, 201 0

by Chemung County Health Department. See also Response to Interrogatory No. 4 above.




6



Upon the advice of counsel, Plaintiffs object to this request on the grounds that the

information that has been requested is not limited in time or scope. Plaintiffs also object to this







Without waiving the general objections and prior objections, Plaintiffs also object in that



created by the Defendants in large part. Plaintiffs further object to this request on the ground it

asks plaintiffs to summarize information contained in documents from Plaintiffs' files. Pursuant

to Fed. R. Civ. P. Rule 33(d), Plaintiffs are not required to summarize all responsive information

contained in business records which Plaintiffs has previously produced or will produce in

response to discovery demands. Subject to the foregoing, Plaintiffs' damages include, but are

not limited to:

(i): Physical: When Plaintiffs first noticed the water was bad plaintiffs asked brother-in

law and sister-in-law to come observe water. A neighbor could light on fire his kitchen faucet

with a lighter so plaintiff attempted to duplicate. The kitchen faucet did not light on fire, so

plaintiffs and brother-in-law went to observe well. While observing well a lighter was used for

light and as plaintiffs leaned over well opening with lit lighter and flames shot up about 15-20

7


feet high. Plaintiff Don etta Morey experienced singed eyebrows and hair caught on fire.

Plaintiff Don etta also experienced a rash on her back as a result from showering in contaminated

water. When Plaintiff Don etta went for a hair appointment it was noticed by the normal

hairdresser that hair was damaged and smelled like chemicals.

(ii): Emotional/Mental: Plaintiffs live in constant fear of house exploding from gases.

Plaintiffs have had high levels of stress as a result frustration, which set in after placing calls to

the Health Department for help with water issues. Lindsay Brown stated that no one else in the

area reported any problems with water, which was known to be false because Plaintiffs'

neighbor, Joseph Todd, also contacted Mr. Brown about water issues. Mr. Brown acknowledged

he had seen on television Mr. Todd's kitchen sink on fire. Plaintiffs then stated upon their

knowledge and belief that Mr. Todd had contacted health department for assistance as well.

Plaintiffs continued to describe the issues experienced with water such as a metallic smell, to

which Mr. Brown claimed he had never heard of something like that occurring previously. Mr.

Brown's recommendation was to "not smoke in the shower" a comment that deeply hurt

Plaintiffs. Mr. Brown passed the issue to the Department of Environmental Conservation. Mr.

Joe Yarosz from DEC called and asked for Plaintiffs' email address so he could send information

regarding water situations. Plaintiffs also have to deal with immense stress from interactions

with local government officials. Plaintiffs attempted to contact Big Flats Superintendent Theresa

Dean and left a message, which was never returned. When finally granted a meeting with local

town officials to discuss water issues the meeting was brief and plaintiffs left with the impression

that nothing can or would be done to remedy the water contamination issues. A town official,

Mr. Santulli, agreed for the county to provide water testing. Weeks went by and Plaintiffs saw

Mr. Santulli at a local Sam's Club where they questioned him about water testing results Mr.

8


Santulli said they were waiting for them to come in. In truthfulness the water testing was never

started. It has been draining to have to keep jugs of water filled and keep track of going to get

them filled because they are heavy. Plaintiffs argue with each other about whose tum it is to

refill the water jugs, creating a marital hostility that would not be present if water contamination

had not occurred. Plaintiffs feel as though they are camping out. Plaintiff Don etta Morey went

into a depression and sought out medical attention. During that time Plaintiff has had husband,

Plaintiff Paul Morey, co-workers, and friends acting differently. Such differences include, but

are not limited to, Christmas shopping, choir practice, mood swings, insomnia, and leading a

hermit lifestyle. Plaintiffs have also had to worry about appliances being damaged from the

water contamination, such as a new dishwasher and washing machine. Plaintiffs also have had

to worry about pets drinking contaminated water. Finally, Plaintiffs have stress from not being

able to have their children come and visit, as water contamination does not allow for guests to

stay overnight.

(iii): Property: Plaintiffs' refrigerator icemaker has been damaged due to sediment from

water contamination. Plaintiffs front-loading washing machine could not go through a full cycle

because of sediment clogging the filter. The dishwasher and toilet have been stained with no

amount of cleaning able to remedy the discoloration. Plaintiffs have disconnected a water

softener due to fear of damaging a rented piece of equipment.



above, state with particularity Plaintiffs' allegation for how the drilling activities of Anschutz


9













this request have long been in the possession of the Defendants and the Defendants have created

indeed many in large part. Plaintiffs further objects to this request on the ground it asks plaintiffs

to summarize information contained in documents from plaintiffs' files. Pursuant to Fed. R. Civ.

P. Rule 33(d), Plaintiffs are not required to summarize all responsive information contained in

business records which Plaintiffs have previously produced or will produce in response to

discovery demands. Subject to the foregoing and without the objections, Plaintiffs claim that the

drilling activities of Anschutz Exploration Corporation caused the ground water well


water was not experiencing any of the issues now present. Plaintiffs reserve the right to


10







Upon the advice of counsel, Plaintiff Paul Morey objects to this request because it seeks

irrelevant information that will not lead to the discovery of relevant information and improperly

and unduly invades the Plaintiff's privacy because the Plaintiff has not knowingly sustained

personal injuries that have manifested, have been treated by medical professionals, nor that are

personally known to the Plaintiff. Plaintiff further objects on the grounds that no physician or

other medical provider's examination of Plaintiff is properly the subject ofthis litigation or

interrogatories or other discovery connected therewith unless said examination, treatment or

diagnosis was related to the subject matter of this litigation, as Plaintiff has not placed his health \

or physical condition at issue in this litigation in any other manner and her medical condition(s),

diagnoses and treatment for unrelated issues is privileged and said privilege has not been waived.

Upon the further advice of counsel, Plaintiff is only asserting damage claims requiring medical

monitoring, including fear of cancer.

Plaintiff Donetta Morey objects to this interrogatory on the grounds that it is vague,

ambiguous and requires interpretation. Subject to the foregoing general and specific objections,

she answers as follows as support of her claim for emotional distress and mental anguish: (i):

Tina Burt, NP, (ii): Arnot Medical Service 100 John Roemmelt Dr., Suite 301, Horseheads NY,

14845, (iii): Plaintiffwent into depression. Suffered from insomnia, mood swings, a change in

personality, apathetic towards life and activities once enjoyed, loss of energy even when rested,

11


(iv): Tina Burt, NP prescribed an antidepressant, which helped with depression symptoms and

allowed for a normal course of life.

Plaintiffs reserve the right to supplement this response up to and including the time of

trial.







was installed.





belief, plaintiffs respond as follows: (i): Upon information and belief the Plaintiffs are not in

possession of any venting equipment; (ii): Upon information and belief the Plaintiffs are not in

possession of any venting equipment; (iii): Upon information and belief the Plaintiffs are not in

possession of any venting equipment; (iv): Upon information and beliefthe Plaintiffs are not in

possession of any venting equipment; (v): The Plaintiffs, not being experts in hydrogeology or

well drilling cannot respond as to if or why a well cap was or would be installed. Plaintiffs

reserve the right to supplement this response up to and including the time of trial.

12







Upon the advice of counsel, Plaintiffs objects to this request on the grounds that it is


Plaintiffs obtain drinking water, cooking water, water for pets and plaints, and cleaning of dental

apparatus from friends, relatives, or it is purchased. Plaintiffs have no choice but to use well

water for washing and bathing. Plaintiffs reserve the right to supplement this response up to and












13



waiving the foregoing, upon knowledge and belief, Plaintiff responds as follows: Plaintiffs'


contaminates that include but are not limited to, elevated methane levels and sediment of

unknown makeup. According to County Executive Thomas Santulli, Isotech Laboratories Inc.

found that there are 3 different sources of gas contamination currently in the private water wells.










waiving the foregoing, plaintiffs claim at this time is the imminent threat of such fires and


about a possible explosion and illnesses associated with contaminates. Plaintiffs have lifted the

well cap leaving it askew so ventilation can occur. Plaintiffs disconnected the water softener so

as not to damage the equipment. See also Response to Interrogatory No. 6 above. Plaintiffs


14





Upon the advice of counsel, Plaintiffs objects to this request on the grounds that it is






follows: Plaintiffs' property has diminished in value due to water contamination that has



trial.


enjoyment oftheir property, and the quality oflife they otherwise enjoyed." (Complaint

~103(d)).







15


Subject to and without waiving the foregoing, upon knowledge and belief, plaintiffs respond as

follows: Plaintiffs have lost enjoyment of property and quality of life through the diminished

quality of water and this diminished water quality has created emotional stress and economic

burden.


trial.









Subject to and without waiving the foregoing, upon knowledge and belief, Plaintiffs respond as

follows: Plaintiffs noticed well water became contaminated on or around September 4, 2010 and

it is believed that Anschutz Exploration Corporation gas drilling activities were the direct and

proximate cause.


trial.


16


17





I certify that on June 30, 2011, I caused a copy ofthe foregoing document to be served on all counsel of record and on defendants' counsel by First Class Mail:





18


Attorn;;;?~~ Tate J. Kunkle, Esq. (NY 4468542) 350 Fifth Avenue, Suite 7413 New York, New York 10118 (212) 267-3700


Verification








DATE:

TITLE:

ADDRESS: 5 ~\IJttl-8 G-~-.e

ktDrse~&J;s tJ-1 I Yt')Lt 5


Verification








DATE:

TITLE:

ADDRESS: s-· !YJEJ-f//1'/S J-A-JIIE

HDPSE'HG'f}s; I'I·Y JLfJI/.5



Plaintifft, District Judge Charles J. Siragusa -against-

ANSCHUTZ ETILORATION CORPORATION, CONRAD GEOSCIENCE CORPORATION, PATHFINDER ENERGY SERVICES, INC. and JOHN and JANE DOES 1 through 100,

Defendants. ------------------------------------------------------------------------)(

PLAINTIFFS JOSEPH AND BONNIE TODD RESPONSES TO ANSCHUTZ EXPLORATION CORPORATION'S FIRST SET OF INTERROGATORIES

Pursuant to Rule 33 ofthe Federal Rules of Civil Procedure, Plaintiffs Joseph and Bonnie

Todd, by and through their attorneys, Napoli Bern Ripka & Associates LLP, make the following


Interrogatories.



2. Plaintiffs objects to these discovery requests to the extent they seek information outside the restricted scope of discovery permissible under the Local Civil Rules of this Court.

3. Plaintiffs object to these discovery requests to the extent that they seek documents or information covered by the attorney-client privilege, the work product doctrine, or any other applicable privilege or immunity. None of these responses are intended as, or should be construed as, a waiver or relinquishment of any part of the protections afforded by the attorneyclient privilege, the work product doctrine, or any other applicable privileges or immunities.


4. Plaintiffs object to these discovery requests to the extent they seek information that does not pertain to or is beyond that in Plaintiffs possession, custody, or control, and/or information that is equally available to defendant.




8. Plaintiffs object to these discovery requests to the extent they request information beyond the limitations and parameters agreed among the parties or imposed by the Court. Plaintiffs responses are subject to all such limitations and parameters and incorporate by reference the discovery parameters imposed by the Comi.

9. The information plaintiffs produce in response to these discovery requests, if any, is produced solely for the purpose ofthis action. Plaintiffs expressly reserves all objections to the admissibility of such information at trial, including all objections regarding relevance, authenticity, materiality, propriety and admissibility and any other objections that would require exclusion of the information, if such information were offered as evidence at trial.





2









foregoing, upon knowledge and belief, plaintiffs respond as follows:

(i): On or about April 4, 1988


(iii): Upon information and belief the water well located at 9 Melvins Lane, Horseheads

NY was installed approximately the year the house was built, 1964.


INTERROGATORY NO. 2: For each Plaintiff, describe with specificity the Plaintiffs ground








3




foregoing, upon knowledge and belief, plaintiffs respond as follows:

(i): Upon information and belief the water well located at 9 Melvins Lane, Horseheads

NY was installed approximately the year the house was built, 1964.

(ii): Unknown

(iii): Approximately 96 feet.

(iv): The well is lined with a steel casing.

(v): The well is lined with a steel casing.

(vi): The well is vented

(vii): The well was vented when Plaintiffs became aware of water contamination with

methane gas on approximately September 13, 2010.

(viii): A sediment filter was installed on or about September 9, 2010 after sediment

contamination caused by defendants' activities was discovered by Plaintiffs. A Culligan

Charcoal Filter System to remove sulfur odor was installed before Plaintiffs assumed control of

the property in 1988.







testing performed.

4





may entail. Subject to and without waiving the foregoing, upon knowledge and belief, plaintiffs


March 12, 2006- Had well pump replaced and extended well casing. Project done

by Hughsons Well Drilling.

September 13, 2010- Installed inline valve to help reduce vapor lock in water line.

Vapor lock created by high levels of methane. Project done by Pump Doctors.

September 14,2010- Well tested for methane levels. Project done by Chemung

County Health Department- Lindsay Brown, and Department of Environmental

Conservation- Joseph Yarosz.

October 6, 2010- Used test kit provided by Chemung County Health Department

to test water. Sample ID # 10101212-001

November 10, 2010- Microbac Laboratories tested water due to high turbidity.

Ernest Spencer completed a Tier 1 and Tier 2 test. MNY Work Order # 1 0 11 2 5 4

February 17, 2011- Isotope test on water well by Chemung County Health

Department. Tests were sent to Isotech Inc. Tests conducted by Lindsay Brown (of

Chemung County Health Department) and Joseph Yarosz (ofD.E.C.) Isotech Inc. Job#

14763.


5




property near Plaintiffs' Properties, since 2000 - especially problems such as contamination,


nature ofthe problem, (ii) when the problem occurred, (iii) the resolution ofthe problem (if any),

and (iv) the cause or suspected cause ofthe problem.





knowledge and belief, plaintiff responds as follows: (i) high methane levels causing our water

pump to lock; black pressurized water fizzing in washing, toilet bowl, and sink; pipes and

plumbing fixtures clogged with sediment, unable to use water as a result of these issues. (ii) The

dates when the aforementioned issues were first noticed were on or about September 9, 2010 and

September 11, 2010. (iii) There has been no resolution of the aforementioned problems. (iv)

Plaintiffs are not experts of hydrogeology or any science related to ground water and thus cannot

answer this part of the question. Plaintiffs reserve the right to supplement this response up to and






6











and belief, plaintiff responds as follows: (i): methane gas migration, turbidity, and sediment. See

also Response to Interrogatory No. 4 above. Plaintiffs reserve the right to supplement this

response up to and including the time of trial.










7




Without waiving the general objections and prior objections, plaintiffs also object in that




asks plaintiffs to summarize information contained in documents from plaintiffs' files. Pursuant

to Fed. R. Civ. P. Rule 33(d), plaintiffs are not required to summarize all responsive information


response to discovery demands. Subject to the foregoing, plaintiffs' damages include, but are

not limited to: Contamination of ground well water, water pump vapor locking for long periods

of time due to high methane gas levels, disrupting water usage for washing and drinking

creating unsanitary conditions, sediment clogging plumbing fixtures such as the hot water tank,

mental and emotional stress due to contaminated water and as a result of water contamination the

inability to access clean water when needed, costs for new plumbing fixtures, filter systems,

bottled water, and laundry facility usage.

Plaintiffs reserve their right to supplement this response up to and including the time of

trial.





8










Without waiving the general objections and prior objections, plaintiffs also object in that


this request have long been in the possession of the defendants and the defendants have created

indeed many in large part. Plaintiffs further objects to this request on the ground it asks plaintiffs

to summarize information contained in documents from plaintiffs' files. Pursuant to Fed. R. Civ.

P. Rule 33(d), plaintiffs are not required to summarize all responsive information contained in

business records which Plaintiff has previously produced or will produce in response to

discovery demands. Subject to the foregoing and without the objections, plaintiffs claims that

the drilling activities of Anschutz Exploration Corporation caused the ground water well


water was not experiencing any of the issues now present. Plaintiffs reserve the right to




9





Upon the advice of counsel, Plaintiffs Thomas and Pauline Whipple objects to this

request because it seeks irrelevant information that will not lead to the discovery of relevant

information and improperly and unduly invades the Plaintiffs privacy because the Plaintiff has

not knowingly sustained personal injuries that have manifested, have been treated by medical

professionals, nor that are personally known to the Plaintiff. Plaintiff further objects on the

grounds that no physician or other medical provider's examination of plaintiff is properly the

subject of this litigation or interrogatories or other discovery connected therewith unless said

examination, treatment or diagnosis was related to the subject matter of this litigation, as plaintiff

has not placed her health or physical condition at issue in this litigation in any other manner and

her medical condition(s), diagnoses and treatment for unrelated issues is privileged and said

privilege has not been waived. Upon the further advice of counsel, Plaintiff is only asserting



trial.






10


employer, who installed the equipment; and (4) a description ofwhy the equipment or device

was installed.





belief, plaintiffs respond as follows: (i): A gooseneck type vent was installed on Plaintiffs'

property located at 9 Melvins Lane, Horseheads NY; (ii): A gooseneck type vent; (iii):

September 15, 2010; (iv): Joseph Todd; (v): The Plaintiffs, not being an expert in hydrogeology

or well drilling cannot respond as to if or why a well cap was or would be installed. Plaintiffs









Plaintiffs obtain drinking water, cooking water, through water being purchased via Sam's Club

Bottled water though Nestle. Plaintiff also obtains water from relatives when possible. Plaintiffs

have no choice but to use well water for washing and bathing, but only after a check for

11


turbidity. Plaintiffs reserve the right to supplement this response up to and including the time of

trial.



contaminated with "[p ]ollutants, including but not limited to toxic sediments, and industrial

and/or residual waste," "drilling muds and fluids," and "diesel fuel." For each Plaintiff, state








waiving the foregoing, upon knowledge and belief, plaintiff responds as follows: Plaintiffs


contaminates that include but are not limited to, elevated methane levels and toxic sediment of

unknown makeup. Plaintiffs reserve the right to supplement this response up to and including

the time of trial.




12







waiving the foregoing, plaintiff's claim at this time is the imminent threat of such fires and


about a possible explosion and illnesses associated with exposure to contaminates. Plaintiffs

have also installed an inline check valve to prevent pump from vapor locking. See also

Response to Interrogatory No. 6 above. Plaintiffs reserve the right to supplement this response

up to and including the time of trial.


Plaintiffs' properties "have been harmed and diminished in value." (Complaint ~1 03( c)).








follows: plaintiffs' property has diminished in value due to water contamination that has resulted

from defendants' activities.

13



trial.


enjoyment of their property, and the quality oflife they otherwise enjoyed." (Complaint

~103(d)).










burden.


trial.




14










proximate cause.


trial.


15


~,b Tate J. Kunkle, sq. (NY 4468542) 350 Fifth Avenue, Suite 7413 New York, New York 10118 (212) 267-3700







Christopher C. Loeber, Esq. MoRGAN, LEWIS & BOCKIUS LLP 502 Carnegie Center Princeton, New Jersey 08540 [email protected] Attorneys for Defendant Pathfinder Energy Services

16


Attorn:;;?/~~ Tate J. Kunkle, Esq. (NY 4468542) 350 Fifth Avenue, Suite 7413 New York, New York 10118 (212) 267-3700


Verification









Verification








DATE: 6 ;·i s·j 1;

NA -;](isG//1-( c.. To DV

TITLE: f't- /}I ;VI t ;::: ;.:::

ADDRESS: Cf ,M&'t-Ul/1/:J t-/9

l{Ol(SEH6'/l t:>S .A.J Y l Lffrlf,:S



-------------------------------------------------------------------)( JASON BAKER, JOHN BREWSTER, JOANN BREWSTER, MA)(INE CONDON, KAREN FARRELL, BROOKS LIDDIARD, JANET LIDDIARD, JAMES MCDERMOTT, HEIDI MCDERMOTT, PAUL MOREY, DONETTA MOREY, JOE TODD, BONNIE TODD, Case No. 11-CV-06119-CJS TOM WHIPPLE and PAULINE WHIPPLE,

P lainti.ffs, District Judge Charles J. Siragusa -against-

ANSCHUTZ E}(PLORATION CORPORATION, CONRAD GEOSCIENCE CORPORATION, PATHFINDER ENERGY SERVICES, INC. and JOHN and JANE DOES 1 through 100,

Difendants. ------------------------------------------------------------------------)(

PLAINTIFFS THOMAS AND PAULINE WHIPPLE RESPONSES TO ANSCHUTZ EXPLORATION CORPORATION'S FIRST SET OF INTERROGATORIES

Pursuant to Rule 33 ofthe Federal Rules of Civil Procedure, Plaintiffs Thomas and

Pauline Whipple, by and through their attorneys, Napoli Bern Ripka & Associates LLP, make

the following Objections and Responses to Defendant Anschutz Exploration Corporation's First

Set of Interrogatories.


1. Plaintiffs object to the definitions and instructions set forth in Defendant's discovery requests to the extent they deviate from or purpmi to impose requirements other than or in addition to those required by the Federal Rules of Civil Procedure.

2. Plaintiffs object to these discovery requests to the extent they seek information outside the restricted scope of discovery permissible under the Local Civil Rules of this Court.

3. Plaintiffs object to these discovery requests to the extent that they seek documents or information covered by the attorney-client privilege, the work product doctrine, or any other applicable privilege or immunity. None of these responses are intended as, or should be construed as, a waiver or relinquishment of any pati of the protections afforded by the attorneyclient privilege, the work product doctrine, or any other applicable privileges or immunities.


4. Plaintiffs object to these discovery requests to the extent they seek information that does not pertain to or is beyond that in Plaintiffs' possession, custody, or control, and/or information that is equally available to defendant.




8. Plaintiffs object to these discovery requests to the extent they request information beyond the limitations and parameters agreed among the parties or imposed by the Court. Plaintiffs' responses are subject to all such limitations and parameters and incorporate by reference the discovery parameters imposed by the Court.

9. The information Plaintiffs produce in response to these discovery requests, if any, is produced solely for the purpose of this action. Plaintiffs expressly reserves all objections to the admissibility of such information at trial, including all objections regarding relevance, authenticity, materiality, propriety and admissibility and any other objections that would require exclusion of the information, if such information were offered as evidence at trial.





2










(i): Thomas and Pauline Whipple purchased the property located at 1169 Lewis Lane,

Horseheads NY, 14845 on September 2, 2010.

(ii): Thomas and Pauline Whipple have lived at the property located at 1169 Lewis Lane,

Horseheads, NY, 14845 full time since purchase- 9 months.

(iii): Approximately 1961.













3


(i): Approximately 1961

(ii): Unknown.

(iii): Approximately 132 Feet

(iv): Unknown.

(v): Unknown.

(vi): Yes

(vii): Unknown.

(viii): A water softener and green sand filter.







testing performed.




may entail. Subject to and without waiving the foregoing, upon knowledge and belief, Plaintiffs


(i): From the date of purchase of Plaintiffs' property on September 2, 2010- September 8,

2010 & Winter of2011.

(ii): Blake- Pump Doctors, 76 Brown Road, Horseheads NY

4


Kathy- Pump Doctors, 76 Brown Road, Horseheads NY

(iii): Subject to information and belief a tests were performed for methane gas and

floating clay. No results have been given to Plaintiffs.







and (iv) the cause or suspected cause ofthe problem.





knowledge and belief, Plaintiffs responds as follows: Since the purchase of the property by the

Plaintiffs on September 2, 2010: (i): Strong presents of methane gas, floating clay, sulfur odor,

and cloudiness; (ii): noticed problems around September 4, 2010; (iii): no resolution of the

issues has occurred. (iv): Plaintiffs are not experts of hydrogeology or any science related to

ground water and thus cannot answer this part of the question. Plaintiffs reserve the right to


5















and belief, Plaintiffs respond as follows: (i): a strong presents of methane gas, floating clay,

sulfur odor, and cloudiness. Pump Doctors (76 Brown Road, Horseheads NY) performed a

water test on September 8, 2010- invoice number 441489. See also Response to Interrogatory

No. 4 above. Plaintiffs reserve the right to supplement this response up to and including the time

of trial.




6







prematurely ·seeks infonnation and documents relating to the subject matter and opinions of






created by the Defendants in large part. Plaintiffs further object to this request on the ground it

asks plaintiffs to summarize information contained in documents from plaintiffs' files. Pursuant

to Fed. R. Civ. P. Rule 33(d), Plaintiffs are not required to summarize all responsive information


response to discovery demands. Subject to the foregoing, Plaintiffs' damages include, but are

not limited to: A loss in property value as a result of a contaminated water well, which includes

but is not limited to: the inability to drink well water, the inability to cook or consume food that

comes in contact with the contaminated well water, the inability to wash clothing because of fear

of contaminated water destroying clothes, the inability to run the washing machine due to clay

deposits clogging components, the inability to bathe with the contaminated well water.

7


Plaintiffs reserve their right to supplement this response up to and including the time of

trial.















this request have long been in the possession of the defendants and the defendants have created

indeed many in large part. Plaintiffs further object to this request on the ground it asks plaintiffs

to summarize information contained in documents from Plaintiffs' files. Pursuant to Fed. R. Civ.

P. Rule 33(d), plaintiffs are not required to summarize all responsive information contained in

business records that Plaintiffs had previously produced or will produce in response to discovery

demands. Plaintiffs reserve the right to supplement this response up to and including the time of

trial.

8





reason that Plaintiff visited the physician; and (4) the outcome of the treatment.


Upon the advice of counsel, Plaintiff Thomas Whipple objects to this request because it

seeks irrelevant information that will not lead to the discovery of relevant information and

improperly and unduly invades the Plaintiffs privacy because the Plaintiff has not knowingly

sustained personal injuries that have manifested, have been treated by medical professionals, nor

that are personally known to the Plaintiff. Plaintiff further objects on the grounds that no

physician or other medical provider's examination of plaintiff is properly the subject of this

litigation or interrogatories or other discovery connected therewith unless said examination,

treatment or diagnosis was related to the subject matter of this litigation, as plaintiff has not

placed his health or physical condition at issue in this litigation in any other manner and her

medical condition(s), diagnoses and treatment for unrelated issues is privileged and said

privilege has not been waived. Upon the further advice of counsel, Plaintiff is only asserting


Plaintiff Pauline Whipple objects to this request because it seeks irrelevant information

that will not lead to the discovery of relevant information and improperly and unduly invades the

Plaintiffs privacy because the Plaintiff has not knowingly sustained personal injuries that have

manifested, have been treated by medical professionals, nor that are personally known to the

Plaintiff. Plaintiff further objects on the grounds that no physician or other medical provider's

9


examination of plaintiff is properly the subject of this litigation or intenogatories or other

discovery connected therewith unless said examination, treatment or diagnosis was related to the

subject matter ofthis litigation, as plaintiff has not placed her health or physical condition at

issue in this litigation in any other manner and her medical condition(s), diagnoses and treatment

for unrelated issues is privileged and said privilege has not been waived. Upon the further advice

of counsel, Plaintiff is only asserting damage claims requiring medical monitoring, including fear

of cancer.


trial.







was installed.





belief, Plaintiffs respond as follows: (i): venting equipment was installed on the Whipple

property, 1169 Lewis Lane, Horseheads NY; (ii): Rager; (iii): September 14, 2010; (iv): Wilcox

10


Well Drilling, 1158 Pleasant Street, Horseheads NY; (v): The Plaintiffs, not being expetis in

hydrogeology or well drilling cannot respond as to if or why a well cap was or would be

installed. Plaintiffs reserve the right to supplement this response up to and including the time of

trial.








Plaintiffs obtain drinking water and cooking water by purchasing Culligan Water. Plaintiffs have

no choice but to use well water for washing and bathing, but only after checking daily the water

clarity. Plaintiffs reserve the right to supplement this response up to and including the time of

trial.







11







waiving the foregoing, upon knowledge and belief, Plaintiffs respond as follows: Plaintiffs'


contaminates that include but are not limited to, elevated methane levels and sediment of

unknown makeup.


trial.




threatened fires or explosions - e.g., moving out of the house, venting the well, disconnecting the





waiving the foregoing, Plaintiffs claim at this time is the imminent threat of such fires and

explosion. Methane is known as a combustible gas and asphyxiate and Plaintiffs are concerned

about a possible explosion and illnesses associated with contaminates. See also Response to

12


Interrogatory No. 6 above. Plaintiffs reserve the right to supplement this response up to and



Plaintiffs' properties "have been harmed and diminished in value." (Complaint ,-ri03(c)).








follows: Plaintiffs' propetiy has diminished in value due to water contamination that has



trial.


enjoyment of their property, and the quality of life they otherwise enjoyed." (Complaint

,-rl03(d)).




13








burden.


trial.












proximate cause.

14



trial.


15







Michael J. Guzman, Esq. KELLOG, HUBER, HANSEN, TODD, EvANS & FIGEL, PLLC 1615 M Street N.W., Suite 400 Washington, DC 20036 [email protected] Attorneys for Defendant Anschutz Exploration Cmporation



16


Attorn;;;;:~~

Tate J. Kunkle, Esq. (NY 4468542) 350 Fifth Avenue, Suite 7413 New York, New York 10118 (212) 267-3700


Verification








DATE: ~ /13/d)_ d II

NAME:

TITLE:

ADDRESS:

II Ia 1 ·~~ of Ct.~ Nt/"i<:U. /u:_r~b-· ) 71 ·!J I(/ i" ~-


Verification








TITLE:

ADDRESS: I/ 6 tj; L£ WI~· /... /J tV 1:·

l../orc<>H·Hfi'VO{[)S) IY~ llf??lj~


anschutz filings 12-28-11

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