Continental Resources, Inc. v. Fisher et al

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF NORTH DAKOTA
Continental Resources, Inc., an Oklahoma 	)
corporation, 	)
)
Plaintiff, 	)
)
)
)
)
vs.
Rick Fisher and Rosella Fisher, 	)
RULE 30(b)(6)DEPOSITION
RULINGS ANDEXCLUSION
OF CERTAIN THIRD-PARTY
AGREEMENTS
Case No. 1:18-cv-181
)
Defendants. 	)
The defendants (herein the “Fishers”) have stated they intend to offer portions of the Rule
30(b)(6) deposition 	taken of 	plaintiff 	Continental 	Resources, Inc. (herein “Continental”).
Continental has made a motion in limine seeking to exclude all of the Fishers’ evidence relevant to
the issue of compensation, including the admission of any third-party agreements for disposal of
saltwater. Continental has asserted a number of grounds for why the agreements are not relevant.
The court deferred ruling on Continental’s objections until the time of trial.
In addition to the objections already made, Continental (in accordance with court’s rules) has
made in writing additional objections to the specific the portions of the Rule 30(b)(6) deposition that
the Fishers’ intend to offer.
In ruling on the portions of the subject Rule 30(b)(6) deposition, the court is now required
to address Continental’s overarching objections as well as its additional objections. Portions of the
deposition testimony the Fishers intend to offer relate to a number of third-party agreements the
Fishers intend to introduce into evidence. This requires the court to rule on whether it is going to
allow these third-party agreements to be received.
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Prior to the trial, the court excluded the Fishers’ claim for compensation for loss of use of
their subsurface resulting from saltwater injections that may occur in the future as well as their
contention that past injections of saltwater have deprived them of use of all of their subsurface pore
space that may be available for storage of saltwater or other substances. The court on both counts
excluded the Fishers’ evidence as being too speculative. 	However, the court did conclude the
Fishers’ could seek compensation for the use of their subsurface for storage of amounts of saltwater
injected as of the date of the trial or some date close to it. The court also concluded that Fishers
would have the right to bring successive actions for use of their subsurface resulting from future
injections. Following these rulings, the Fishers elected to seek compensation only with respect to
the saltwater injected up to the time of trial.
The only basis the Fishers’s disclosed pursuant to Fed. R. Civ. P. 26(a)(1) for calculating
damages was what third parties were paying or receiving for the disposal of saltwater on a per-barrel
basis. Previously, the North Dakota Supreme Court ruled in response to certified questions from this
court in a similar case that such evidence may be relevant in determining the amount of
compensation property owners are entitled to receive for use of their subsurface for disposal and
storage of saltwater.
With this background, the court rules that it will conditionally receive evidence of third-party
agreements for the disposal of saltwater that provide as part of the compensation payment of a per-
barrel amount of saltwater but will not initially allow Fishers to introduce or discuss agreements that
do not contain a per-barrel amount of compensation. 	While it may be that certain of the other
agreements provide for amounts intended to compensate for the use of disposal of saltwater into the
subsurface, the court concludes these agreements are not sufficiently probative with respect to the
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Fishers’ method of calculating compensation. 	The court makes no ruling now, however, if
Continental seeks to mention or otherwise offer these other agreements. Also, as the trial progresses,
it may be that one or more of these other agreements might yet become sufficiently relevant for a
limited purpose. 	Finally, any evidence conditionally received may be struck later if the court
concludes it is not sufficiently relevant to allow the jury to consider it when it becomes time to
deliberate.
With this background, attached as Exhibit A are the court’s rulings in terms of what the
parties designated to be presented with respect to Continental’s Rule 30(b)(6) deposition. 	The
rulings eliminate any testimony with respect to the third-party documents the court excludes over
the Fishers’ objections, which they have preserved. Also, in making the rulings, the court overrules
the objections of the parties expressed in writing and sustains objections to certain designated
testimony.
Finally, based on the precedent cited by Fishers’ counsel, the court overrules Continental’s
objection to playing the video of the deposition.
IT IS SO ORDERED.
Dated this WKGD\RI2FWREHU
/s/ Charles S. Miller, Jr.
Charles S. Miller, Jr., Magistrate Judge
United States District Court
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