A federal magistrate judge in Nevada has ordered a property owner to allow soil-gas testing on its property to determine whether a plume of perchloroethylene (PCE) lies beneath the property. Voggenthaler v. Md. Square, LLC, No. 08-1618 (D. Nev. 1/13/11).

Over a period of 30 years, a dry cleaner located at the Maryland Square Shopping Center in Las Vegas discharged PCE, which allegedly migrated off site and formed a groundwater (GW) plume beneath an adjacent residential neighborhood. The residential homeowners filed a RCRA complaint against the shopping center owner and others. Defendant sued another shopping center, located across a parkway from Maryland Square, alleging that PCE was discharged by several of its tenants and contributed to the plume. Maryland Square requested access to the other shopping center’s property to perform soil-gas testing and, after negotiations reached an impasse, served a subpoena on the center owner and moved to compel compliance. The other shopping center owner argued that the motion should be denied because the proposed testing was irrelevant.

Ruling that the testing must be completed, the court said, “[A]n opponent’s characterization of a discovery request as a fishing expedition should not prevent discovery of relevant and potentially admissible evidence possessed by opposing parties.” According to the court, to determine whether relevant evidence should be allowed, the factors in Federal Rule of Civil Procedure 26(b)(2)(c) should be weighed. Those factors include (i) the needs of the case, (ii) the amount in controversy, (iii) the parties’ resources, (iv) the importance of the issues at stake in the litigation, and (v) the importance of the discovery in resolving the issues. After weighing the factors, the magistrate judge concluded that it was not unreasonable or an abuse of the discovery process to allow the testing.