Motion to Quash Subpoena Duces Tecum - Arizona Office of ...

12345678910111213141516171819202122232425262728Agency (“EPA”) is not at issue. The information specifically sought by Requests 3 and 5of the Subpoena relate specifically to that permitting process and were not before ADEQwhen it issued the Permit. This appeal is not about what information Florence Copper –an intervenor in this appeal – has or does not have from the last 16 years of sampling at itsmine. It also is not about what information Florence Copper submitted to different state,federal, or local agencies or could have submitted to those agencies. This appeal is aboutADEQ and the process and decision that it undertook. The appeal challenges ADEQ’sactions in issuing the Permit and the terms of the Permit – not Florence Copper’s actionsor inactions. Accordingly, the Subpoena does not seek relevant informationThe 16 years of sampling information requested in the Subpoena does not have anytendency to make facts regarding whether ADEQ applied the Rule and whether the Permitcomplies with the provisions of the Rule more or less probable than it would be withoutthe information. Further, the requested information is not of consequence in determiningthe ultimate issues in this appeal. Accordingly, the Subpoena improperly seeks irrelevantinformation, and it would be unreasonable to force Florence Copper to produce theinformation pursuant to the Subpoena.B. The Subpoena is oppressive due to its scope and time allowed torespond.Appellant lodged the Subpoena on Friday, October 25, 2013, and requested thatFlorence Copper be given until Monday, October 28, 2013 – one business day – toproduce over 16 years of groundwater modeling and related information to them. TheSubpoena was issued on October 28, 2013 and required Florence Copper to produce all ofthis information on this same day. A subpoena ordering Florence Copper to produce avoluminous set of modeling data and information on the same day is both unreasonableand oppressive. Under the Arizona Rules of Civil Procedure, a subpoena will not beissued if it fails to allow a reasonable time for compliance. Specifically, under Ariz. R.Civ. P. 45(e)(2)(A), an issuing court must quash a subpoena if such subpoena “fails toallow a reasonable person time for compliance” and “subjects a person to undue burden.”4

12345678910111213141516171819202122232425262728information on the eve of the hearing in this matter and to inappropriately procureFlorence Copper’s internal and confidential groundwater modeling and informationrelating to the mine. This is an improper use of the subpoena power and therefore theSubpoena should be quashed.C. The Subpoena seeks information that qualifies as confidential businessinformation, and Florence Copper should not be forced to disclose thisinformation.Finally, the Subpoena seeks numerous “draft” documents and information,including a 1999 draft field test report, that were never disclosed to ADEQ. Accordingly,ADEQ could and did not consider this information when processing and issuing thePermit. Florence Copper maintains this information as confidential business information(“CBI”). The documents and information qualify as CBI because: (1) Florence Copperhas taken reasonable measures to protect the information from disclosure and it intends tocontinue to do so; (2) the information is not and has not been reasonably attainable bylegitimate means without Florence Copper’s consent; (3) the information is not required tobe disclosed to the public; and, (4) the disclosure of the information may cause substantialharm to Florence Copper’s competitive position. Because Florence Copper maintains thisinformation as confidential and has not disclosed it to ADEQ or other governmentagencies, it would be unreasonable and oppressive to force Florence Copper to producethe information to Appellant, who has received the administrative record and all relevantinformation to this appeal directly from ADEQ.III.CONCLUSIONFor the foregoing reasons, the Subpoena should be quashed in its entirety.6

12345678910111213141516171819202122232425262728RESPECTFULLY SUBMITTED this 1st day of November, 2013.ORIGINAL of the foregoing filedelectronically this 1st dayof November, 2013 with:Clerk of the Water Quality Appeals Board100 North 15 th AvenueSuite 202Phoenix, AZ 85007COPY of the foregoing sent electronicallythis 1 st day of November, 2013, to:James MannatoFlorence Town Attorney775 N. Main StreetP.O. Box 2670Florence, AZ 85132Attorney for Appellant Town of FlorenceLarry J. CrownRonnie P. HawksJanice L. BladineRussell R. YorkJENNINGS, HAUG & CUNNINGHAM, L.L.P.2800 N. Central Ave., Ste 1800Phoenix, AZ 85004-1049Attorneys for Appellant SWVP-GTIS MR, LLCChristopher D. ThomasPeter W. CulpFred E. Breedlove, IIISQUIRE SANDERS (US) LLP1 East Washington St., Ste 2700Phoenix, AZ 85004Attorneys for Appellant Johnson Utilities, LLCGALLAGHER & KENNEDY, P.A.By: /s/ Bradley J. GlassD. Lee DeckerBradley J. Glass2575 East Camelback RoadPhoenix, Arizona 85016-9225Attorneys for Intervenor Florence CopperInc.7

12345678910111213141516171819202122232425262728D. Christopher Ward16767 N. Perimeter Dr., Ste. 100Scottsdale, AZ 85260Attorney for Appellant Pulte Homes Corp.John Hestand, Assistant Attorney GeneralEnvironmental Enforcement SectionArizona Office of the Attorney General1275 W. WashingtonPhoenix, AZ 85007Attorney for Respondent ADEQ/s/ Joanne K. Clark3866265v1/23115-00058