IN THE UNITED STATES DISTRICT COURT

FOR THE SOUTHERN DISTRICT OF OHIO

EASTERN DIVISION

Charles R. Ogle, et al., :

 Plaintiffs, :

 v. : Case No. 2:10-cv-1059

Columbia Gas Transmission, : JUDGE PETER C. ECONOMUS

LLC, fka Columbia Gas Magistrate Judge Kemp

Transmission Corp., et al., :

Defendants. :

OPINION AND ORDER

This case involves, as the Court of Appeals has put it,

Plaintiffs Charles and Melanie Ogle’s claim for “damages and

injunctive relief relating to the expansion of natural-gas

facilities on their land ....” See Ogle v. Columbia Gas

Transmission Co., LLC, Case No. 11-4155 (6th Cir. January 31,

2013), slip op. at 2. More particularly, Columbia Gas

Transmission asked, in 2008, for permission from the Federal

Energy Regulatory Commission to place a second storage well and

an access road on the Ogles’ property. Permission was granted,

and the Court has dismissed all of the Ogles’ claims for

injunctive relief, so the remaining issue in the case is damages. 

Those damages are limited to the effect that Columbia’s actions

had on the property prior to November 5, 2009, when the property

was transferred to Ogleshill Farm, LLC. See Opinion and Order of

August 9, 2013 (dismissing all other claims for lack of

standing). According to the most recent scheduling order, Doc.

117, fact discovery is to be completed by September 2, 2014, and

dispositive motions are due by January 15, 2015.

There are a number of discovery motions outstanding. They

include the Columbia Defendants’ motion for disclosure and to

compel discovery (Doc. 105), the Ogles’ motion for a protective

order (Doc. 112), the Ogles’ motion to compel discovery (Doc.

113), a motion to quash a subpoena served on Ogleshill Farm, LLC

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(Doc. 120), and a motion for investigation into a missing

colloquy that occurred during a deposition (Doc. 121). This

Opinion and Order will address all of these motions.

I.

In their motion to compel disclosure and discovery, the

Columbia Defendants ask the Court to force the Ogles to provide

information and documentation about their damages claims. The

Columbia Defendants served discovery on that issue in February,

2014, asking for specifics about each of the eight categories of

damages alleged by the Ogles. The Ogles responded that they had

not determined the extent of their damages at that time and had

no documents to produce. They were also deposed but did not

provide any more specifics in response to questions about

damages.

The Ogles have not specifically responded to the motion to

compel, but the Court understands their position to be that their

damages claims will all be covered by their expert witness

report. The Court had set a date of October 2, 2014, for

disclosure of that report, which the Ogles, by motion filed on

July 24, 2014, now seek to have postponed to December 1, 2014, on

grounds that their expert cannot do the necessary work until the 

month of November, 2014. The time for filing a response to that

motion has not yet passed.

The Ogles have an obligation, during either the fact or

expert discovery period, to specify their damages and to provide

the Columbia defendants with any and all documents which support

their claims. They may well need an expert to assist them in

quantifying their damages, and may also need help from that

expert to identify relevant documents (if, indeed, there are

any). As long as it does not disrupt the case schedule, there

would appear to be no harm to the Columbia Defendants if further

responses to their interrogatories and document requests are

deferred until the expert report is disclosed. If that report

does not address all areas of damage about which the Ogles intend

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to offer evidence (including their own testimony) at trial,

however, they must then supplement their prior answers with

information in addition to the expert report, and may be subject

to an additional deposition as to any supplemental information

they provide. The Court will resolve any issues arising from

those circumstances if and when that situation occurs, but it

will insure that prior to the end of all discovery, the Columbia

Defendants have all the information the Ogles possess, both by

way of testimony and documents, relating to their damages claims. 

If there is any information the Ogles do not provide during

discovery, they will not be able to use that information at the

trial. See Fed.R.Civ.P. 26(e)(1)(“A party who has ... responded

to an interrogatory, [or] request for production ... must

supplement or correct its disclosure or response ... in a timely

manner if the party learns that in some material respect the

disclosure or response is incomplete or incorrect, and if the

additional or corrective information has not otherwise been made

known to the other parties during the discovery process or in

writing”); Fed.R.Civ.P. 37(c)(1)(“If a party fails to provide

information ... as required by Rule 26(e), the party is not

allowed to use that information to supply evidence on a motion,

at a hearing, or at a trial”). 

II.

The Ogles’ motion for a protective order was filed on May 9,

2014. In their motion, they assert that the “Defendants’

attorneys have repeatedly harassed Plaintiffs throughout

discovery about answering questions related to Ogleshill Farm,

LLC” and that they have demanded that Ogleshill Farm be a party

to any settlement. Motion for a Protective Order, Doc. 112, at

1. They ask the Court to preclude the Defendants from any

additional questioning or demands about Ogleshill Farm. The same

issue is raised in their motion to quash, which is directed to a

deposition subpoena issued to Ogleshill Farm, LLC. According to

the Ogles, since the damages in this case are limited to those

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which occurred prior to the November 5, 2009 transfer of

ownership of the property to Ogleshill Farm, “Defendants can

offer no reasonable explanation as to why a deposition of

Ogleshill Farm, LLC is warranted.” Motion to Quash, Doc. 120, at

2.

The Columbia Defendants’ position on this issue is set forth

in their response to the motion for a protective order. In

addition to raising a number of arguments not directly related to

the merits of the motion, they contend that the relationship

between the Ogles and Ogleshill Farm, LLC is a relevant topic for

discovery because both the terms of the property transfer and the

Ogles’ ability to continue to reside on and otherwise use the

property relates to their damage claim. 

The Court understands the Ogles’ reluctance to permit

discovery concerning Ogleshill Farm given the prior ruling

limiting damages in this case to only the injury to the property,

or loss of value of the property, which occurred prior to the

transfer of ownership. But the Columbia Defendants have the

better of this argument.

Relevance, for discovery purposes, is broader than relevance

for trial purposes. Fed.R.Civ.P. 26(b)(1) permits discovery of

both evidence which would be admissible at trial and of

information “reasonably calculated to lead to the discovery of

admissible evidence.” Consequently, “just because something may

not be admissible under the Federal Rules of Evidence does not

mean that it is not discoverable.” Levick v. Malmonides Medical

Center, 2011 WL 1673782, *3 (E.D.N.Y. May 3, 2011). As this

Court has often recognized, “[t]he Federal Rules of Civil

Procedure authorize extremely broad discovery,” and

“[i]nformation subject to disclosure during discovery need not

relate directly to the merits of the claims or defenses of the

parties. Rather, it may also relate to any of the myriad of

fact-oriented issues that arise in connection with those claims

or defenses.” See Guild Associates, Inc. v. Bio-Energy

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(Washington) LLC, 2014 WL 2767605, *12-13 (S.D. Ohio June 18,

2014). 

Judged by these standards, at least some amount of

information about both the transfer of ownership of the property

to Ogleshill Farm, LLC, and the use of the property after

transfer may relate to the Ogles’ claim of damage to the property

prior to the transfer. One rule which applies to the type of

damage claim asserted by the Ogles has been stated this way:

“When, in a partial taking, the landowner asks the condemnation

court for damages to the remainder, the court asks whether the

remainder will be less valuable as a result of the taking.” 

United States v. 101.88 Acres of Land, More or Less, Situated in

St. Mary Parish, State of La., 616 F.2d 762, 768-69 (6th Cir. 

1980); see also United States v. 329.05 Acres of Land, More or

Less, Situate in Town of Newburgh, Orange County, N.Y., 156

F.Supp. 67, 71 (S.D.N.Y. 1957)(“[t]he valuation of an easement

necessarily must be measured by the loss or diminution in value

of the lands upon which the easements are imposed and which

directly result from the restrictions or limitations upon the use

of the land imposed by the easements appropriated”), aff’d sub

nom. United States v. Kooperman, 263 F.2d 331 (2d Cir. 1959). 

The actual use to which the land has been put after the partial

taking is relevant to this question. While it may not

definitively answer the question of whether the taking has

limited the use of the property, it would show that certain uses

have not been limited because the owner still uses the property

in that way even after the taking occurred. Further, in

condemnation cases, sales of similar or comparable properties may

be used to show the market value of the property in question, and

“[t]here is no absolute rule which excludes evidence of sales of

similar property made subsequent to the condemnation action.” 

See United States v. 691.81 Acres of Land, More or Less, Situate

in Clark County, State of Ohio, 443 F.2d 461, 462 (6th Cir.

1971). That would certainly include the sale of the exact

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property in question if the sale occurred in the context of an

arms-length transaction. Consequently, evidence about how the

sale to Ogleshill Farm, LLC took place, and the price paid, is

potentially relevant to the issue of how much value, if any, the

property lost as a result of the takings at issue. The

Defendants are therefore entitled to pursue discovery on these

issues.

The parties have also addressed whether Defendants may

legitimately insist on Ogleshill Farm, LLC being a party to any

settlement. That is simply not an issue for the Court to decide. 

While the Court has some authority over the settlement process,

which includes requiring parties to engage in mediation and doing

so in good faith, “a court cannot force a party to settle.” In

re A.T. Reynolds & Sons, Inc., 452 B.R. 374, 382 (S.D.N.Y. 2011). 

The parties ultimately choose the terms on which they will

settle, and if a particular term is important to one party, it is

not the Court’s job to second-guess that decision, nor does the

Court have the authority to veto it. Thus, that portion of the

Ogles’ motion raises an issue which the Court cannot properly

address. 

III.

The Ogles’ motion to compel discovery asserts that

Defendants have been evasive in the answers they provided to

written discovery. That includes, according to the motion to

compel, withholding the names of witnesses (including expert

witnesses) and failing to provide supplementary document

discovery. They have attached the discovery they served and the

answers from various Defendants, but have not stated more

specifically which interrogatories or document requests they

believe require further answers, other than their reference to

witnesses.

Both groups of remaining defendants have responded to the

motion. The Columbia Defendants’ response (Doc. 115) states that

(1) Columbia has provided the names of its involved employees,

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either by interrogatory answer or document, and does not know the

names of all individuals employed by its contractors (but the

contractors have provided such information in discovery); (2) the

Columbia Defendants will submit an expert report if deemed

necessary in response to any such report that the Ogles produce;

and (3) the motion does not sufficiently identify what

supplemental documents the Ogles are asking for - and if it

refers to documents relating to other landowners, the Ogles never

formally requested such documents. The Columbia Defendants also

point out that the motion to compel was not accompanied by either

an effort to resolve the issues presented on an extrajudicial

basis (that is, between the parties without the involvement of

the Court) or a certification that such an effort took place. 

That certification is required by Fed.R.Civ.P. 37(a)(1), which

reads in full: 

On notice to other parties and all affected persons, a

party may move for an order compelling disclosure or

discovery. The motion must include a certification that

the movant has in good faith conferred or attempted to

confer with the person or party failing to make

disclosure or discovery in an effort to obtain it

without court action. 

In their separate response to the motion to compel, see Doc. 118,

the Off Duty Services Defendants make essentially the same

response, also stating that they have no additional responsive

documents which they could produce even if ordered to do so.

The Defendants are correct that the motion is procedurally

defective because it is not accompanied by the certification

required by Rule 37(a)(1). This Court has, in the past, denied

motions to compel for this reason, even motions filed by pro se

litigants, stating that “Plaintiff's status as a pro se litigant

does not discharge him from adhering to the requirements of the

Federal Rules of Civil Procedure ....” Despot v. American Income

Life Ins. Co., 2012 WL 787387, *1 (S.D. Ohio March 9, 2012). The

rule is not just a formality; it was designed to “avoid

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unnecessary court intervention, protracted legal proceedings and

needless expense and fees.” See Hilton-Rorar v. State and

Federal Communications, Inc., 2010 WL 148127, *1 (N.D. Ohio Jan.

7, 2010), citing Naviant Mktg. Solutions, Inc. v. Larry Tucker,

Inc., 339 F.3d 180, 182 (3d Cir. 2003). Deciding discovery

motions which do not comply with the Rules is not an efficient

way to proceed; as this Court has also said, “[t]he Court does

not believe that disregarding the certification requirement of

Civil Rule 37 or Local Rule 37 in any way promotes efficiency.” 

Avis Rent A Car System, LLC v. City of Dayton, Ohio, 2013 WL

3781784, *5 (S.D. Ohio July 18, 2013). 

Having said that, it also appears that the motion lacks

merit. All responding defendants assert that they have

adequately disclosed the names of the people involved with the

construction on the property and have produced all documents

relevant to those operations. They are correct that the Ogles

have not asked for information about other properties, so there

is nothing to compel with respect to that issue. And, like the

Ogles, they may defer producing any expert opinions on the issue

of damages until the time set by the Court’s scheduling order. 

Therefore, the Court will deny the motion to compel.

 IV.

The final motion before the Court is the Ogles’ request for

an investigation into an exchange they had with counsel at Mr.

Ogle’s March 24, 2014 deposition. They claim that the colloquy

should have been on the record but that it is not. They have not

filed any portion of the transcript with the Court, and

Defendants have not responded to the motion.

The Court ordinarily does not initiate investigations into

matters which occur during discovery. Its powers over discovery

are generally set out in Rules 26-37 and Rule 45 of the Federal

Rules of Civil Procedure. It is difficult to determine which of

these rules is being invoked by Plaintiff’s motion. Without more

information, such as evidence that the transcript of the

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deposition is actually incomplete, and an explanation from

someone - perhaps the court reporter - as to why this particular

discussion did not appear on the record, the Court cannot enter

any type of order. If some type of sanction is being asked for,

the current record is simply too sparse to justify relief.

V.

For the reasons set forth above, the following motions are

denied: the Ogles’ motion for a protective order (Doc. 112), the

Ogles’ motion to compel discovery (Doc. 113), the motion to quash

a subpoena served on Ogleshill Farm, LLC (Doc. 120), and the

motion for investigation into a missing colloquy that occurred

during a deposition (Doc. 121). The Columbia Defendants’ motion

for disclosure and to compel discovery (Doc. 105) is granted to

this extent: no later than the expert witness disclosure date,

the Ogles shall disclose all information in their possession,

including any responsive documents, which explain or support

their claim for damages. Should they fail to do so, the Court

may preclude them from offering any evidence not disclosed in

response to this order. 

VI.

Any party may, within fourteen days after this Order is

filed, file and serve on the opposing party a motion for

reconsideration by a District Judge. 28 U.S.C. §636(b)(1)(A),

Rule 72(a), Fed. R. Civ. P.; Eastern Division Order No. 14-01,

pt. IV(C)(3)(a). The motion must specifically designate the

order or part in question and the basis for any objection. 

Responses to objections are due fourteen days after objections

are filed and replies by the objecting party are due seven days

thereafter. The District Judge, upon consideration of the

motion, shall set aside any part of this Order found to be

clearly erroneous or contrary to law.

 This order is in full force and effect even if a motion for

reconsideration has been filed unless it is stayed by either the

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Magistrate Judge or District Judge. S.D. Ohio L.R. 72.3.

/s/ Terence P. Kemp 

United States Magistrate Judge

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