MarkWest Liberty Midstream & Resources, LLC v. Clean Air Council
71 A.3d 337
| Pa. Commw. Ct. | 2013Background
- MarkWest seeks review of a Board order partially granting/denying protective orders and granting to CAC some discovery, in CAC v. DEP and MarkWest (EHB Docket No. 2011r 072-R).
- MarkWest operates natural gas gathering/processing facilities in Washington County focused on the Marcellus Shale; substantial investments were made in 2010.
- In 2010 MarkWest filed a fourth plan approval with the DEP to install/operate a fractionator tower and process heaters at the Houston Plant; DEP approved on April 13, 2011 (Plan Approval 63-00936D).
- CAC appealed the DEP approval to the Board on May 13, 2011, alleging improper aggregation of MarkWest sources for permitting under state and federal law.
- From August to October 2011 CAC conducted discovery; MarkWest objected to production of documents as trade secrets/confidential information pending protective orders; Board denied MarkWest’s protective-order requests on December 1, 2011.
- In 2012 the Board issued a mixed order (protective orders granted for some categories, others produced under seal, others produced with no restrictions) and identified 60 Documents of concern; MarkWest appealed the order seeking reversal/remand.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether the Board’s order is an appealable collateral order under Rule 313. | MarkWest argues the order is appealable as a collateral order. | CAC/Department contend the order is not appealable as a collateral order. | Yes; the order satisfies Rule 313(a)-(b) and is appealable as a collateral order. |
| What standard governs protective orders under Rule 4012(a)(9) for trade secrets/confidential information. | MarkWest favors Crum, shifting burden to the requester to show relevance/necessity. | CAC argues for Pansy balancing, or that Crum is not controlling. | The court adopts Crum’s standard for protective orders under Rule 4012(a)(9). |
| Whether the Board adequately applied Crum’s factors to identify trade secrets and determine necessity. | Board failed to apply Crum’s factors to separate trade secrets from non-secrets. | Board should determine relevance/necessity after identifying trade secrets. | Remand to identify trade secrets/confidential information and apply Crum factors; determine necessity outweighing harm. |
| Whether the Board should address use/disclosure restrictions for documents produced. | Board should impose restrictions on CAC’s use/disclosure. | Board reserved jurisdiction on post-litigation protective orders. | Court declines ruling on use/disclosure; remand to address consistent with Crum. |
Key Cases Cited
- Crum v. Bridgestone/Firestone North American Tire, LLC, 907 A.2d 575 (Pa. Super. 2006) (adopts federal 26(c)(7) balancing for protective orders; trade secrets require showing compelling need)
- Pansy v. Borough of Stroudsburg, 23 F.3d 772 (3d Cir. 1994) (case-by-case balancing test; not adopted for Rule 4012 analysis here)
- Rhodes v. USAA Casualty Insurance Company, 21 A.3d 1253 (Pa. Super. 2011) (discovery-disclosure issues may be immediately appealable when disclosure can’t be undone)
- Dibble v. Penn State Geisinger Clinic, Inc., 806 A.2d 866 (Pa. Super. 2002) (public policy in trade secrets; relevance to protective orders)
- Seattle Times Co. v. Rhinehart, 467 U.S. 20 (1984) (discovery is not public; restraints on disclosed information permissible)