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Cook v. Rockwell Int'l Corp.

ELR Citation: 27 ELR 20072
Nos. 90-K-181, 935 F. Supp. 1452/(D. Colo., 08/08/1996)

A district court denies property owners' motions to sanction the U.S. Department of Energy (DOE) for violating discovery orders in the owners' toxic-tort suit against DOE contractors that operate the Rocky Flats nuclear weapons production facility. The court also denies, for the most part, the contractors' and DOE's motions for protective orders. The court first refuses to impose additional contempt sanctions against DOE for violating court orders regarding production of approximately 677,000 pages of classified documents. Noting that the sanction of civil contempt serves the two remedial purposes of enforcing compliance and compensating for losses caused by noncompliance, the court holds that no further sanctions against DOE are warranted. DOE has increased its document declassification staff and expended significant additional resources in an effort to purge itself of contempt and to comply with the court's prior stipulated order, contempt order, and rulings at status conferences. Further, the property owners have been compensated by DOE to a degree for the loss caused by noncompliance by being awarded their costs incurred in enforcing compliance with the discovery requests. The court next refuses to order DOE to exercise its right under the Price-Anderson Act and its contracts with defendant contractors to control the case's defense so that it may submit to an order imposing preclusive sanctions. The court further refuses to impose the sanction of default on the contractors or strike any of their defenses for the contemptible actions of DOE, a nonparty. The court holds that although it may order U.S. Marshals to impound the documents, doing so would serve no remedial purpose. The court also holds that DOE's delay in producing documents from the Los Alamos National Laboratory does not warrant barring the contractors from contesting the property owners' evidence regarding the health effects of exposure to plutonium and other radionuclides.

The court next denies one of the contractor's motion for a protective order requiring the property owners to demonstrate the materiality of documents they requested from DOE relating to materials unaccounted for (MUF) at Rocky Flats. The contractor, as a party, has standing to file the motion under Fed. R. Civ. P. 26. But because DOE is near completion of its declassification review of the documents, the contractor should raise the issue of their relevance in the context of their admissibility at trial. The court next grants DOE a protective order relieving it of its obligation to undertake declassification review of 14 categories of MUF documents. The documents in those categories contain data that is restricted under the Atomic Energy Act, and would have to be redacted to the point that only information about yearly inventory differences would remain. The court also relieves DOE of its deadline for review of the remaining MUF documents and orders it to submit a status report on which the court will base a new deadline. The court refuses, however, to relieve DOE of its obligation to undertake declassification review of those documents. Finally, the court denies the property owners' motion to hold DOE in contempt for failing to produce documents relating to studies it has conducted of the declassification of MUF information at Rocky Flats, and orders the property owners and DOE to submit a status report regarding the production of those documents.

Counsel for Plaintiff
Robert M. Pomeroy Jr., Steven W. Black
Holland & Hart
555 17th St., Ste. 2900, Denver CO 80201
(303) 295-8000

Counsel for Defendants
David L. Dain
Environment and Natural Resources Division
U.S. Department of Justice, Washington DC 20530
(202) 514-2000