Fareed v. Cent. Rivers Power Ma, LLC

CYNTHIA FAREED AND JAMES MASELAN, CO-PERSONAL REPRESENTATIVES OF THE ESTATE OF JASER AL-RAKAH, CYNTHIA FAREED AND JAMES MASELAN, CO-PERSONAL REPRESENTATIVES OF THE ESTATE OF THEEB AL-YAMI, ANNA SEPANEK, INDIVIDUALLY, TYLER SAN JURJO, PPA ANNA SEPANEK, ISABELLA SAN JURJO, PPA ANNA SEPANEK, JENNIFER GALLUCCI, INDIVIDUALLY, BRAYDEN GALLUCCI PPA JENNIFER GALLUCCI, and SOFIA GALLUCCI PPA JENNIFER GALLUCCI, Plaintiffs, v. CENTRAL RIVERS POWER MA, LLC, WARE RIVER POWER, INC., and JOHN DOE #1, Defendants.

Civil Action No. 3:20-11053-MGM

United States District Court, D. Massachusetts

August 17, 2021

MEMORANDUM AND ORDER CONCERNING WARE RIVER POWER INC.'S MOTION TO COMPEL FEDERAL ENERGY REGULATORY COMMISSION TO RESPOND TO DOCUMENT ONLY SUBPOENA (Dkt. No 51)

KATHERINE A. ROBERTSON, U.S. MAGISTRATE JUDGE.

I. Introduction

Defendant Ware River Power, Inc. (“WRPI”) operates a hydroelectric dam known as the Red Bridge Project in Wilbraham. Below the dam, on the Chicopee River, there is a recreational area known as the Red Bridge State Park that was deeded to the Commonwealth of Massachusetts to serve as a public recreational area. On or around June 29, 2018, there was an unanticipated release of water from the dam, allegedly causing the deaths and injuries that are the subject of this suit. Before the court is WRPI's motion to compel the Federal Energy Regulatory Commission (“FERC”) to comply with its subpoena requiring FERC, a non-party responsible for licensing the dam, to produce documents related to the Red Bridge Project, the Red Bridge State Park, and the events at issue in this case (Dkt. No. 51). For the reasons set forth below, the court denies WRPI's motion without prejudice.

II. Background

A. Allegations in the Complaint.

The plaintiffs allege that on or around June 28, 2018, lightning struck the Red Bridge Project, damaging parts of the dam's computer operating system (Compl. ¶ 14). On June 29, 2018, John Doe #1, the plant operator, discovered the damage and reset certain dam functions for manual operation (Compl. ¶ 16). In the afternoon, after attempting to repair the operating system, John Doe #1 brought the dam back on-line and restarted the dam's operations in auto mode (Compl. ¶ 17). His actions caused a rapid and massive release of water through and over the dam (Compl. ¶ 18). The result was tragic for Theeb Al-Yami, Jaser Al-Rakah, Tyler San Jurjo, Isabella San Jurjo, Anne Sepanek, Brayden Gallucci, Sofia Galluci, and Jennifer Galluci, all of whom were in the recreational area downstream. Theeb Al-Yami and Jaser Al-Rakah drowned while trying to save the lives of Tyler San Jurgo, Brayden Galluci, Jennifer Gallucci, and Anna Sepanek (Compl. ¶¶ 32-35). Tyler San Jurgo, Brayden Galluci, Jennifer Gallucci, and Anna Sepanek struggled in the water “for the better part of a half of an hour” while Isabella San Jurjo and Sofia Gallucci watched from the shore (Compl. ¶¶ 31, 38). Plaintiffs' claims of negligence, gross negligence, and emotional distress arise from these events.

B. Subpoena to FERC.

The Red Bridge Project is licensed by FERC and maintained by Massachusetts state agencies (Compl. ¶ 6). On August 14, 2020, WRPI served a Documents Only Subpoena on FERC (Dkt. No. 52-1) requesting:

(1) A certified copy of any and all documents, reports, memoranda, notices, letters, e-mails and any other communications and/or correspondence from June 1, 2013 to present regarding the [Red Bridge Project] between the Federal Energy Regulatory Commission, its employees, agents, or representatives (including their attorneys) and (i) Central Rivers Power MA, LLC (f/k/a Nautilus Hydro, LLC);

(ii) Ware River Power, Inc.; (iii) Essential Power Massachusetts, LLC; (iv) Commonwealth of Massachusetts Department of Conservation and Recreation; and (v) any other agency or department of the Commonwealth of Massachusetts, including any of the agents, servants, contractors, subcontractors, and/or employees of the aforementioned (including their attorneys).

(2) A certified copy of any and all documents, reports, memoranda, notices, letters, e-mails and any other communications and/or correspondence from June 1, 2013 to present regarding Red Bridge State Park between the Federal Energy Regulatory Commission, its employees, agents, or representatives (including their attorneys) and (i) Central Rivers Power MA, LLC (f/k/a Nautilus Hydro, LLC);

(ii) Ware River Power, Inc.; (iii) Essential Power Massachusetts, LLC; (iv) Commonwealth of Massachusetts Department of Conservation and Recreation; and (v) any other agency or department of the Commonwealth of Massachusetts, including any of the agents, servants, contractors, subcontractors, and/or employees of the aforementioned (including their attorneys).

(3) A certified copy of any safety inspections, assessments, or studies done regarding the [Red Bridge Project] from June 1, 2013 to present.

(4) A certified copy of any safety inspections, assessments, or studies done regarding the Red Bridge State Park from June 1, 2013 to present.

(5) A certified copy of any and all documents, reports, memoranda, notices, letters, e-mails and any other communications and/or correspondence relating to an alleged incident of June 29, 2018 involving, inter alia, the above captioned parties.

(6) A certified copy of any and all documents, reports, memoranda, letters, charts, graphs, photographs, videos, letters, e-mails, and any other communications and/or correspondence related to an August 7, 2018 inspection and test flow condition simulation.

(7) A certified copy of any and all documents, reports, memoranda, notices, letters, e-mails and any other communications and/or correspondence relating to signage at the [Red River Project] from June 1, 2013 to present.

(8) A certified copy of any and all documents, reports, memoranda, notices, letters, e-mails and any other communications and/or correspondence relating to signage at Red Bridge State Park from June 1, 2013 to present.

(9) A certified copy of any and all documents, reports, memoranda, notices, letters, e-mails and any other communications and/or correspondence relating to any incidents, accidents, injuries, or other events involving personal injury and/or property damage related to the [Red River Project] from June 1, 2013 to present.

(10) A certified copy of any and all documents, reports, memoranda, notices, letters, e-mails and any other communications and/or correspondence relating to any incidents, accidents, injuries, or other events involving personal injury and/or property damage related to Red River State Park from June 1, 2013 to present.

The subpoena was accompanied by a cover letter that directed FERC to produce the requested records accompanied by an affidavit certifying, pursuant to Mass. Gen. Laws ch. 233, § 79J, that the enclosed documents were a true, accurate, and complete set of records on file at FERC related to the Red Bridge Project (Dkt. No. 52-1 at 1, 6).

On September 18, 2020, FERC responded to WRPI's subpoena, noting that the production of documents by federal agencies is governed by an agency's Touhy regulations and setting forth the regulations for WRPI's information (Dkt. No. 52-2). FERC's regulations governing responses to subpoenas, set forth in 18 C.F.R. § 388.111, require a requesting party to provide a statement of the party's interest, the relevance of the requested documents, and a discussion of whether the documents are available from other sources. See id.

In response, on October 13, 2020, WRPI sent a letter to FERC's Office of the General Counsel purportedly requesting the documents listed in the subpoena pursuant to FERC's Touhy regulations (Dkt. No. 52-3). The letter briefly described the pending litigation, WRPI's understanding of FERC's role in regulating the Red Bridge Project and an investigation WRPI believed FERC had conducted into the events at the Red Bridge Project and the Red Bridge State Park on June 28-29, 2018, and asserted that “as FERC was the government agency responsible for regulating the Red Bridge Project, these documents [were] not reasonably available from other sources” (Dkt. No. 52-3 at 2). In summary, FERC's response to WRPI was that most, if not all, of the documents WRPI was seeking were most likely available from sources other than FERC and that WRPI was required to demonstrate that it had exhausted other sources for the requested documents before FERC had an obligation to produce documents in response to a subpoena (Dkt. No. 52-6 at 1).

On January 20, 2021, WRPI submitted a Freedom of Information Act (“FOIA”) request to FERC seeking all of the documents listed in the subpoena (Dkt. No. 52-4). FERC's response identified FERC's eLibrary database as a source of publicly available documents, requested that WRPI narrow its request for non-public documents so that the request could be processed, and explained that material released pursuant to FOIA generally was not certified (Dkt. No. 52-5).

WRPI then renewed its demand to FERC for production of all of the documents it had requested, stating that it required certified copies of documents for purposes of admissibility at trial, and informed FERC (politely) that it would file a motion to compel if FERC did not comply with the subpoena as served (Dkt. No. 57-1 at 32-33).

III. Discussion

A. Standard of Review

“The Housekeeping Act, 5 U.S.C. § 301, authorizes federal agencies to create rules governing discovery and disclosure. [United States ex rel.] Touhy [v Ragan, 340 U.S. 462 (1951)] affirms this authority.” Cabral v. U.S. Dep't of Justice, 587 F.3d 13, 22 (1st Cir. 2009) (citing Puerto Rico v. United States, 490 F.3d 50, 61 (1st Cir. 2007), cert. denied, 552 U.S. 1295 (2008)). Such rules and regulations are commonly referred to as “Touhy...