United States District Court, D. Maine
ORDER ON MOTION IN LIMINE CONCERNING SUMMARY
A. WOODCOCK, JR., UNITED STATES DISTRICT JUDGE
anticipation of trial on Portland Pipeline Corporation's
(PPLC) Commerce Clause challenge to the city of South
Portland's (the City) ordinance prohibiting bulk loading
of crude oil onto ships (the Ordinance), the City filed a
motion in limine to exclude two tables unless PPLC produces
the underlying data upon which the tables are based. The
tables contain monthly averages of flow volumes through a
pipeline segment. Federal Rule of Evidence 1006 applies
because the flow tables are summaries containing calculations
based on voluminous records, the contents of which PPLC seeks
to prove, and therefore, the Court grants the City's
February 6, 2015, PPLC and the American Waterways Operators
filed a nine-count complaint with this Court against the city
of South Portland and Patricia Doucette. Compl. (ECF
No. 1). On March 31, 2015, the Defendants filed a motion to
dismiss the Complaint. Defs.' Mot. to Dismiss the
Compl. Pursuant to Rule 12(b)(1) (ECF No. 16); Mem.
of Law in Supp. of Defs.' Mot. to Dismiss Pursuant to
Rule 12(b)(1) (ECF No. 17). The Court denied the motion
to dismiss on February 11, 2016. Order on Defs.' Mot.
to Dismiss (ECF No. 29). Accordingly, the Defendants
filed an answer to the Complaint on February 29, 2016.
Answer of Defs. City of South Portland and Patricia
Doucette (ECF No. 30).
November 17, 2016, the Plaintiffs filed a motion for summary
judgment. Pls.' Mot. for Summ. J. (ECF No. 87).
That same day, the Defendants filed a consolidated motion to
dismiss pursuant to Rule 12(b)(1) and a cross motion for
summary judgment. Defs.' Consolidated Mot. to Dismiss
Pursuant to Rule 12(b)(1) and Mot. for Summ. J. (ECF No.
88). On August 8, 2017, the Court held a testimonial hearing
and heard oral arguments on the City's renewed Motion to
Dismiss. Min. Entry for Hearing (ECF No. 179). At
the hearing, for purposes of the Motion to Dismiss, the Court
determined that the underlying data for a similar table
containing monthly average flows through the Enbridge Line 9B
pipeline was not discoverable. The Court denied the renewed
Motion to Dismiss on August 24, 2017. Order on Defs.'
Consolidated Mot. to Dismiss Under Rule 12(b)(1) (ECF
No. 185). On December 29, 2017, the Court granted summary
judgment in favor of the City on all issues except the
Commerce Clause challenge in Count V. Order on Mots. for
Summ. J. at 228 (ECF No. 200).
is set for June 18 to June 22, 2018. Notice of Bench
Trial (ECF No. 204). On April 25, 2018, the City filed a
motion to have the court view certain properties in the city
of South Portland, including PPLC's tanks and pier
facilities. Defs.' Mot. for View (ECF
No. 206). On June 1, 2018, the Court deferred ruling on the
City's motion until trial. Order Deferring Ruling on
Defs.' Mot. for View (ECF No. 218). On May 11, 2018,
PPLC filed a motion in limine to admit certain statements of
City officials and members of the public, and the City filed
a competing motion to exclude those statements. Pls.'
Mot. in Limine to Admit into Evidence Statements by
City Officials and Members of the Public (ECF
No. 208); Defs.' Mot. in Limine to Exclude
Irrelevant and Inadmissible Statements (ECF No.
209). The Court determined that the evidence was admissible,
so it granted PPLC's motion and denied the City's on
June 13, 2018. Order on Mots. in Limine Concerning
Statements of City Officials and Members of the
Public (ECF No. 230).
11, 2018, the City filed a motion in limine to exclude two
summary tables PPLC intends to introduce unless PPLC first
produces the underlying data upon which the tables are based.
Defs.' Mot. in Limine to Exclude New Summ.
Tables Produced by Pls. without Underlying Data
(ECF No. 210) (Defs.' Mot.). On June 1, 2018,
PPLC filed a response to the City's motion. Pls.'
Obj. to Defs.' Mot. in Limine to Exclude
Enbridge Line 9B Crude Oil Volume Data (ECF No. 221)
(Pls.' Opp'n). The City filed its reply on
June 8, 2018. Reply in Supp. of Defs.' Mot. in
Limine to Exclude New Summ. Tables Produced by
Pls. without Underlying Data (ECF No. 227)
THE PARTIES' POSITIONS
The City's Motion
City argues that, despite the Court's ruling on
“the discoverability of the underlying data for an
earlier iteration of one of these tables . . . in connection
with the evidentiary hearing on justiciability, ”
PPLC's intent to introduce the tables at trial without
disclosing the underlying data “would be fundamentally
unfair and contravene Rule 1006.” Defs.'
Mot. at 3. The City claims it would not be burdensome
for PPLC to procure the underlying data from MPLL, as it did
just that for one month's worth of the data in a single
day in August 2017. Id. at 4. The City also claims
that the tables are of questionable relevance because they do
not contain flows for Enbridge Line 9A-the pipeline bringing
oil to refineries in Ontario before remaining volumes proceed
to Line 9B-which means that the tables do not indicate
whether a bottleneck exists that would prevent PPLC from
obtaining committed shippers for a pipeline reversal project.
Id. at 4 n.6. Finally, the City claims the codes in
the data indicating the country and state of origin of
batches of oil are “directly relevant to the Commerce
Clause claim of discrimination.” Id. at 5.
emphasizes that the tables are not central to its Commerce
Clause claim, but will only “serve[ ] as rebuttal
evidence to [the City's] anticipated re-presentation of
facts concerning the economic viability of PPLC's
pipeline project.” Pls.' Opp'n at 5.
PPLC argues the City's motion is an attempt to get the
Court to revisit several of its prior rulings, and serves as
an untimely request for reconsideration in violation of Local
Rule 7(g). Id. at 5-6. PPLC contends that it did not
create the document as a way of “‘proving'
the content of other, voluminous documents; the data
contained with the spreadsheet are themselves the
documents.” Id. at 6. It maintains that Rule
1006 does not apply because “PPLC did not take a number
of separate, independent documents and tally them to create
the spreadsheet at issue; it simply retrieved the numbers and
wrote them down.” Id. at 6-7. PPLC asserts
that the City does not seek information for the verification
purposes contemplated by Rule 1006, but actually “seeks
backdoor discovery into an issue it failed to pursue. . .
.” Id. at 7. PPLC also maintains that the
“the data reflected on the spreadsheet concerning the
amount of throughput that arrives in Montreal serves as
relevant evidence concerning the utilization of the entirety
of Line 9.” Id. at 8. PPLC also offers to
withdraw the newer table:
In order to reduce and simplify the pretrial disputes the
parties and the Court must contend with, Plaintiffs withdraw
as a proposed exhibit the additional report attached as
Exhibit 1 to Defendants' Motion. Although Plaintiffs
disagree with the City's argument concerning Exhibit 1,
Plaintiffs agree to limit their presentation on this issue to