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Northern Natural Gas Co. v. Approximately 9117.53 Acres In Pratt, Kingman, and Reno Counties

United States District Court, Tenth Circuit

October 7, 2013

Approximately 9117.53 acres in Pratt, Kingman, and Reno Counties, Kansas and as further described herein; Tract No. 1062710 containing 80.00 acres more or less, located in Kingman County, Kansas, and as further described herein, et al. Defendants.


DONALD W. BOSTWICK, Magistrate Judge.

Presently before the court is a motion by Northern Natural Gas Company (Northern) seeking to compel defendant L.D. Drilling, Inc. to allow Northern to enter onto L.D. Drilling's leases in the "Section 28 Area"[1] for purposes of collecting gas samples. (Doc. 714). L.D. Drilling has filed a response objecting to any such testing (Doc. 730). The time has passed for the filing of any reply brief, D. Kan. Rule 6.1(d)(1), and Northern has not filed any reply. Therefore the matter is submitted on the briefs and the court is prepared to rule.

Factual Background

The wells sought to be tested are located to the West of the Western boundary of the Expansion Area which was authorized by the FERC in its June 2, 2010 Order as a buffer zone to protect the integrity of the Cunningham Storage Field, and which is the subject of this condemnation action. Some of the wells are in sections immediately adjacent to the Cunningham Storage field, while others are located more than a section away from the field boundaries.[2] Northern argues that

The results of the tests of the Wells to Be Tested are valuable evidence to demonstrate (1) whether a migration pathway exists between the western-most Expansion Area well areas; (2) the potential ratio of storage gas to native gas in these areas; and/or (3) pressure relationships between the Expansion Area and the Section 28 Area, which is needed for the opinions of Northern's experts with regard to volumes of storage gas and/or economically recoverable native gas in the western portions of the Expansion Area for which Northern has no well data.

(Doc. 714, at 4-5; Affidavit of Randal M. Brush, Doc. 714-3, at 2-3, ΒΆ 7). Northern points out that some of these wells were last tested by Northern in September 2010, and those tests established that the Section 28 wells were producing only native gas at that time.[3] (Doc. 714, at 4).

In August 2011, Judge Brown denied a request by Northern for a preliminary injunction that would allow Northern to test five of the L.D. Drilling's wells in Sections 28 and 33 on a semi-annual basis for several years. (08-1405, Doc. 477, at 5-6). Northern's request for testing at that time was based upon the statutory testing provisions of K.S.A. 55-1210(c)(2). In denying the request for testing, Judge Brown noted the "recent increase in overall production cited by Northern, "[4] but determined that Northern's motion also "implicitly recognizes that other measures to detect migration or to evaluate the effectiveness of its containment plan could be employed, such as observation wells...." Id. at 7. Finally, Judge Brown also noted that "given the particular history of the litigation, the court has some concern about over-use of the testing provisions as an unnecessary intrusion upon the defendants' property...." Id. at 7-8.

Northern's present desire to test the eight identified wells also results from Northern's analysis that gas production from the "Section 28 wells" has substantially increased since 2010 when other wells located in the Expansion Area were ordered to be shut in by Judge Brown's December 22, 2010 Preliminary Injunction in the related tort case. (Doc. 714, at 4-5). However, unlike the testing request in 2011, the present request for entry and testing is not based on the statutory provisions of K.S.A. 55-1210(c)(2), but is based solely on the discovery provisions of the Federal Rules of Civil Procedure.[5]


Fed. R. Civ. P. 34(a)(2) provides that a party may serve on another party a request within the scope of Rule 26(b) "to permit entry onto designated land or other property possessed or controlled by the responding party, so that the requesting party may... test, or sample the property or any designated object or operation on it." Requested discovery, however, must be relevant to the claim or defense of any party to the action. The general rules for determining relevance are well established.

Federal Rule of Civil Procedure 26(b)(1) provides that [p]arties may obtain discovery regarding any matter, not privileged, that is relevant to the claim or defense of any party.... Relevant information need not be admissible at the trial if the discovery appears reasonably calculated to lead to the discovery of admissible evidence." Relevancy is broadly construed, and a request for discovery should be considered relevant if there is "any possibility" that the information sought may be relevant to the claim or defense of any party. A request for discovery should be allowed "unless it is clear that the information sought can have no possible bearing" on the claim or defense of a party.
When the discovery sought appears relevant, the party resisting the discovery has the burden to establish the lack of relevance by demonstrating that the requested discovery (1) does not come within the scope of relevance as defined under Fed.R.Civ.P. 26(b)(1), or (2) is of such marginal relevance that the potential harm occasioned by discovery would outweigh the ordinary presumption in favor of broad disclosure. Conversely, when the request is overly broad on its face or when relevancy is not readily apparent, the party seeking the discovery has the burden to show the relevancy of the request.

Johnson v. Kraft Foods North America, Inc. , 238 F.R.D. 648, 652-53 (D. Kan. 2006) (footnotes omitted). See also, Union Pacific R. Co. v. Grede Foundries, Inc., No. 07-1279-MLB-DWB, 2008 WL 48591 at *2 (D. Kan., Sep. 3, 2008); High Point Sarl v. Sprint Nextel Corp., No. 09-2269-CM-DJW, 2012 WL 1533213 at *5 (D. Kan., Apr. 30, 2012); Northern Natural Gas Co. v. Approx. 9117.53 Acres, et. al., No. 10-1232-MLB-DWB, 2012 WL 1108547 at *3 (D. Kan., Mar. 31, 2012) (Discovery relevance is "minimal relevance, "meaning that it is possible that the requested information may reasonably lead to the discovery of admissible evidence).

While L.D. Drilling raises several arguments why the requested testing should be denied, the court believes the most important issue to consider is whether the requested discovery is relevant to claims or defenses raised in this condemnation action. As previously noted, Northern urges three reasons why the requested testing of the Section 28 wells ...

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