Marfork Coal Company, Inc. v. Smith

274 F.R.D. 193 (2011)

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Nature of the Case

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Facts

P, a West Virginia corporation, engaged in the mining of coal. P sued Ds, members of Climate Ground Zero, Mountain Justice and other environmental groups, for unlawfully trespassing upon P's property beginning on January 21, 2010, in protest of mountaintop mining. P sought damages (compensatory and punitive) for property and also injunctive relief. P alleged that the West Virginia State Police arrested Defendants Graupera and Rozendaal and Defendants Smith, Nitchman and Blevins evaded arrest by climbing trees on the property, and two of them remained on the property when P initiated this matter. The court issued a Temporary Restraining Order and eventually a Preliminary Injunction. Ds refused to answer most of P's allegations pertaining to their conduct on January 21, 2010, asserting their privilege under the Fifth Amendment of the United States Constitution. Ds asserted as their first affirmative defense 'the moral imperative . . . to protect the environment for future generations which governs any and all actions which they have taken.' Defendants further asserted in defense the pollution, destruction of future resources and local and regional heritage, threat to health, morals, safety, comfort, convenience and welfare and nuisance caused by P's illegal mining operations. P took depositions was permitted to inquire respecting whether and how Ds know each other and planned, convened and executed their plan to protest mountaintop removal mining. P may inquire very narrowly and by leading question only respecting their membership or affiliation with Climate Ground Zero or any other organization advocating against mountaintop removal mining. P was not permitted to inquire respecting any offices or positions which Ds may hold in such organization, the organization's training or recruiting practices, Ds' acquaintances within those organizations who are not Defendants herein or protests at other mine sites. During deposition, Nitchman admitted liability for trespass on behalf of the named defendants. P inquired whether about other people who went on P's property with her and helped her carry supplies and set her platform up in the tree who had not been named as defendants. D refused to answer. P asserted that those other persons may have recruited Ds to engage in their trespass upon P's property when they were enjoined from doing so. P filed a motion to compel, and D filed a motion for a protective order. Citing decisions of the Fourth Circuit and West Virginia Supreme Court of Appeals indicating that persons who aid and abet trespass are as liable as those who commit it, P asserts that information about others who assisted Defendants in their trespass is relevant to the claims or defenses herein or may lead to the discovery of admissible evidence and those others who did so are witnesses to the circumstances underlying this action. Ds urge that an exception to the general rule exists when the trespass is an act of civil disobedience as First Amendment rights are implicated. Ds also assert their Fifth Amendment privilege. Ds contend that an exception exists respecting such information in the context of civil conspiracy as well.