United States District Court, W.D. Pennsylvania
MUNICIPAL AUTHORITY OF WESTMORELAND COUNTY, on behalf of itself and all others similarly situated, Plaintiff
CNX GAS COMPANY, LLC, et al., Defendants
Christopher C. Conner, Chief Judge.
the court is a motion (Doc. 87) to quash or, in the
alternative, for protective order filed by defendant CNX Gas
Company, LLC (“CNX”) in response to the subpoenas
(Docs. 87-5, 87-6, 87-7) issued by plaintiff Municipal
Authority of Westmoreland County (“MAWC”) to
third parties CONE Midstream Partners LP (“CONE
Midstream”), CONE Gathering LLC (“CONE
Gathering”), and Joseph Fink (“Fink”). For
the reasons that follow, the court will grant in part and
deny in part CNX's motion to quash.
Factual Background & Procedural History
commenced the instant class action on February 26, 2016 in
Pennsylvania state court against defendants CNX and Noble
Energy, Inc. (“Noble”) (collectively,
“defendants”). (Doc. 1 ¶ 1; Doc. 1-1).
Defendants removed the case on April 11, 2016. (Doc. 1). MAWC
filed an amended complaint on November 7, 2016. (Doc. 50).
Therein, MAWC, on behalf of itself and all others similarly
situated, alleges breach of contract and conversion claims
against defendants. (Id.)
and defendants are parties to oil and gas leases under which
MAWC receives royalty payments from CNX and Noble. (See
id. at ¶¶ 12, 14, 17-20, 25-26; Doc. 88 at 4,
Doc. 96 at 2). CONE Gathering provides “midstream gas
gathering services” to CNX and Noble through CONE
Midstream. (Doc. 50 ¶ 27). CONE Midstream is controlled
by CNX, Noble, and CONE Gathering. (Id. at ¶
28). CNX is owned by CNX Gas Corporation, which is a wholly
owned subsidiary of CONSOL Energy, Inc.
(“CONSOL”). (Doc. 88 at 1 n.1). MAWC contends
that it is being underpaid because defendants are deducting
post-production costs that are either prohibited under the
leases altogether or are higher than allowed under the
leases. (See Doc. 50 ¶ 57). MAWC also alleges
that its royalty deductions are higher due to defendants'
affiliation with CONE Gathering. (See Doc. 88 at 4).
27, 2017-three days prior to the close of fact discovery-MAWC
deposed Fink as an individual fact witness and as corporate
designee for CONE Midstream and CONE Gathering pursuant to
Federal Rule of Civil Procedure 30(b)(6). (See Doc.
78 at 14; Doc. 84 at 4:3-13; Doc. 87-1, Joseph M. Fink Dep.
1, 10:3-15) (July 27, 2017) (“Fink Dep.”)). Fink
is currently vice president of CONSOL's midstream
operations as well as chief operating officer of CONE
Midstream. (Fink Dep. 51:6-13). He has held those positions
since 2012 and 2014, respectively. (Id. at
49:13-51:13). From 2011 to 2016, Fink also acted as president
of CONE Gathering. (Id. at 51:14-52:19).
testified during his deposition that he and others, including
Jason Mumford (“Mumford”), were parties to a
“series of emails” about “appropriate
deduction[s]” from “royalty payments.”
(See id. at 308:24-309:16; 312:14-314:11). Fink
could not recall when the communications occurred but stated
that he “thought” it was sometime prior to an
audit of MAWC in December 2014 into early 2015. (See
id. at 317:15-22). MAWC asked Fink to speak to the
content of the emails but counsel for CNX objected on
privilege grounds because CONSOL attorney Bridget Furbee
(“Furbee”) was a party to these communications.
(See id. at 309:5-310:19, 314:19-315:23). MAWC
requested that these emails be produced. (Id.
August 1, 2017, MAWC filed a motion to compel against CNX
seeking production of the emails and further depositions of
Fink and Mumford for the limited purpose of questioning
related to same. (Doc. 81). The next day, at an already
scheduled hearing before the court, counsel for CNX testified
that CNX did not have the emails in its possession because
its “normal document retention policy would not have
documents from 2012.” (See Doc. 84 at 2:3-6,
2:17-5:8). CNX admitted that the emails were
“potentially. . . responsive” to a prior MAWC
discovery request. (See id. at 3:14-21). The court
denied the motion to compel based on CNX's
representations and directed MAWC to file a third-party
subpoena pursuant to Federal Rule of Civil Procedure 45.
(See id. at 7:2-9:5). The court extended the
deadline for fact discovery to afford MAWC an opportunity to
review the emails and take related depositions, if necessary.
(See id. at 9:6-14). CNX stated the emails may be
privileged. (See id. at 8:9-23).
August 7, 2017, MAWC served identical subpoenas on CONE
Midstream, CONE Gathering, and Fink. (See Doc. 87-8;
see also Doc. 87-5, 87-6, 87-7). Less than two weeks
later, counsel for the subpoena recipients sent the
responsive emails to CNX and stated that they intended to
produce the emails unless CNX wished to assert a privilege.
(See Doc. 87-9). On August 28, 2017, CNX filed its
instant motion to quash or, in the alternative, for
protective order. (Doc. 87). MAWC responded in opposition on
September 12, 2017. (Doc. 96). On October 11, 2017, the court
directed CNX to produce the emails for in camera
review. (Doc. 98). The court received the emails on October
20, 2017. The court has completed its review of the emails
and the motion is fully briefed and ripe for disposition.
Rule of Civil Procedure 45 requires a court to quash or
modify any subpoena that: (1) does not allow a reasonable
compliance period; (2) seeks compliance beyond the geographic
limits set forth elsewhere in the Rule; (3) requires a person
to disclose privileged or protected matter in circumstances
when waiver or other exceptions do not apply; or (4) subjects
a person to an “undue burden.” Fed.R.Civ.P.
45(d)(3)(A). The moving party bears a “heavy
burden” of demonstrating that an enumerated basis for
quashing the subpoena exists. See Malibu Media, LLC v.
John Does 1-15, No. 12-2077, 2012 WL 3089383, at *5
(E.D. Pa. July 30, 2012) (citation omitted).
avers that the emails are privileged communications between
CONSOL employees and CONSOL attorneys regarding issues that
required legal advice.MAWC responds that communications to which
attorneys are recipients are not automatically privileged and
the court should independently review the content of
each. The court's in camera review
of the emails reveals, as discussed infra, that only
some contain privileged attorney-client communications.
purpose of the attorney-client privilege “is to
encourage full and frank communication between attorneys and
their clients and thereby promote broader public interests in
the observance of law and administration of justice.”
Upjohn Co. v. United States, 449 U.S. 383, 389
(1981). While recognizing the value served by the privilege,
courts must also be mindful that the privilege obstructs the
truth-finding process; as such, it should be applied
“only when necessary to achieve its purpose.”
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