A month into the 14 lawsuits filed in response to the Orange County oil spill, District Judge David Carter ordered defendants to inform plaintiffs of any actions taken that could spoil evidence in advance following an ex-parte application from Ontario-headquartered firm McCune Wright Arevalo, LLP,* and co-counsel Larson LLP.
The Nov. 17 order found the multi-agency and multi-jurisdictional investigations into the spill, and the pipeline’s location on the seafloor, make evidence preservation difficult. Any repair, replacement, modification, alteration, update, removal, transportation, disposal relating to the pipeline or the oil platform needs to be communicated a day in advance.
Defendant response
Defendant’s counsel argued that the order was unnecessary, because they had already agreed to give advance notice to all plaintiffs’ counsel of any repairs or replacements of the pipeline, and because no repair work will be done until the Pipeline and Hazardous Materials Safety Administration approves a repair plan. This is according to a brief from Christopher Keegan of San Francisco’s Kirkland & Ellis LLP, counsel for defendants Amplify Energy.
Amplify Energy proposed a counter-order in which repairs, removals and replacements to the pipeline would be communicated to plaintiffs, but not alterations or updates. The counter-order would not apply to modifications to their oil platform.
Motion
MWA and Larson LLP filed the application Nov. 8, 20 days after litigants began discussing a notice agreement, 11 days after MWA attorney David Wright sent defendant’s counsel a draft agreement and three days after defendants disclosed they had already twice wrapped the area of the pipeline’s leak and begun removing marine life, according to Wright’s declaration.
Argument
Plaintiffs had not been able to inspect the oil system, and orders from government agencies to repair or test the pipeline raise questions of evidence preservation, Stephen Larson, of Larson LLP, wrote in a declaration. The 25,000-gallon spill is believed to come from a 13-inch fracture in the pipeline 4.5 miles offshore and 100 feet beneath the surface of the water, according to Larson’s declaration.
Defendants had publicly stated Oct. 3 that they would begin repairs of the pipeline after confirmation of the oil leak, and the United States Department of Transportation Pipeline and Hazardous Material Safety Administration told Amplify Energy to repair the damaged portion of the pipeline before investigations finished, according to Larson’s brief. The National Traffic Safety Bureau will analyze the cracked portion of the pipeline in an attempt to find when it was damaged and when it was going to leak, but the removal of other evidence is unknown, according to Larson.
Status
The pipeline will remain on the seafloor, and no repair work will be done, until the Pipeline and Hazardous Materials Safety Administration approves a repair plan, according to Keegan’s response. Divers working for both defendants and government agencies have been removing marine growth while inspecting the pipeline, according to Keegan’s response.
Judicial intervention should disrupt legislative and regulatory operations only as a last resort, and MWA did not fulfill meet-and-confer obligations for the application, Keegan also argued.
Parties
MWA represents the Seal Beach store Big Fish Bait & Tackle in a class-action lawsuit. They sued on seven claims, including negligence, violating the Oil Pollution Act and violating the Lempert-Keene-Seastrand Oil Spill Prevention and Response Act. Big Fish Bait & Tackle claims to have lost business from the spill, and will continue to lose business, due to the harm to fish, the temporary closure of the beach, and a loss of tourism.
Thirteen other entities have also sued Amplify Energy and their subsidiaries, including a gyro shop, an AirBnB renter and a minor alleging harm to health.
Amplify Energy does not have to reply to current complaints, the parties agreed in a Nov. 22 joint stipulation. After the cases are consolidated and plaintiffs submit amended complaints, Amplify Energy will have 60 days to respond.
Read the application here
Read the defendant’s response here
Read the order here
Read the complaint here
Read our prior coverage here
*MWA funds the publication of Follow Our Courts.
