Site Owner Must Allow Testing During Discovery

The possibility that contamination from a party's property contributed to a groundwater plume is sufficient to compel it to allow soil gas testing, a federal court held Jan. 13 (Voggenthaler v. Maryland Square LLC, D. Nev., No. 2:08-cv-1618, 1/13/11).

A magistrate judge for the U.S. District Court for the District of Nevada ruled that under the lenient standard imposed by federal civil procedure rules, the testing is not an abuse of the discovery process.

A dry cleaner located in the Maryland Square Shopping Center in Las Vegas allegedly discharged perchloroethylene (PCE) over a period of more than 30 years that migrated offsite and formed a plume in groundwater beneath an adjacent residential neighborhood. Residents filed a Resource Conservation and Recovery Act lawsuit against Maryland Square, among others.

Boulevard Mall is located on the opposite side of a parkway from Maryland Square. Maryland Square sued Boulevard, among others, as a third-party defendant, alleging PCE discharged by several of its tenants contributed to the plume. After negotiations over soil gas testing in Boulevard Mall's parking lots reached an impasse, Maryland Square served Boulevard Mall with a subpoena calling for testing to begin and moved to compel compliance. Boulevard Mall argued the motion should be denied because the proposed testing is irrelevant.

Under Fed. R. Civ. P. 26(b), the court said, the requesting party is not required to demonstrate in advance that the information sought will prove its case or even that it will be admissible at trial. The party only is required to make a threshold showing the discovery is relevant and calculated to lead to the discovery of admissible evidence.

Although the justification for the testing is borderline, the court said it must decide the motion under a more lenient standard than a summary judgment motion and concluded it is not unreasonable to allow the testing.

The ruling is available at