Fractivism Is But One Fiasco After Another in Dimock

shale gas outrages - Tom Shepstone ReportsTom Shepstone
Shepstone Management Company, Inc.


Reading the legal motions and decisions involved with Dimock cases on which fractivism is founded is a flight into a fantasy world of deceit and obstruction.

Dimock remains the siren song of fractivism; a call to action not unlike “Remember the Alamo,” but without the heroes. There’s no Davy Crocket, no Jim Bowie and no righteous cause; just a bunch of hucksters, damned lies and hype. The narrative that is Dimock has slowly collapsed over the years as one case after another has evaporated in the face of sunlight exposing the truth, beginning with the EPA finding the water was safe and discovering there was no weapons grade uranium pollution after all. Now comes one more legal decision that must be read to be believed; a decision demonstrating the incompetence and the dirty tactics that are the hallmarks of fractivism.

I’m talking about the case of Nolen Scott Ely vs. Cabot Oil & Gas, the one Mr. Ely begs for money to continue in the above video. Mr. Ely is the owner of a a new McMansion house on Carter Road in Dimock; a house apparently built with gas royalties and not pictured in the begging video. Several years ago, during that brief period when the Sautners were the favorite fracking victims trotted out by the NRDC and before Mrs. Sautner threatened to sic them on Phelim McAleer, Scott Ely saw opportunity to cash in big-time and joined them in suing Cabot, signing up with the infamous trial lawyers at Napoli Bern Ripka Associates.

Josh Fox tried to help, though, and worked behind the scenes to get the EPA to conduct its own special investigation; one he and the trial lawyers thought was sure to provide the smoking gun needed for a successful case. It backfired and fell apart when the EPA said the water was safe. Plaintiffs quickly settled to get whatever they could given their lack of evidence. Scott Ely held out, though, still hoping to score. His attorneys through shovel after shovel of manure against the wall hoping something—anything at all—would stick. A Federal judge threw out almost all of it a year ago saying Ely had “entirely failed to produce evidence to support these claims.” Judge John E. Jones III of the Middle District of Pennsylvania rejected all but two of the Ely claims.


Scott Ely’s 7,000 square feet McMansion and pond on Carter Road in Dimock (not pictured in his money-begging video). Frontal view available here.

Those two Scott Ely claims constitute what little remains of the Dimock cases forming the foundation of fractivism. They have moved forward, or perhaps we should say backward, over the last year or so with one fiasco after another. One of the plaintiff attorneys, in fact, was sanctioned by Judge Jones for “unprofessional and dishonest behavior towards the court and her adversaries.” That story is fascinating by itself and well worth reading about to understand the pathetic nature of fractivism from a legal perspective.

The latest story, though, provides some real in-depth insights into the nature of these slimy trial lawyers and the way they work; what the natural gas industry is up against with these bogus lawsuits that grab so much public attention while using plaintiffs as stooges in the pursuit of courtroom payoffs for the lawyers and political agendas on behalf of the instigators. This one involves the decision, exactly one week ago, by  United States Magistrate Judge Martin C. Carlson, to exclude late-filed exhibits from use in a trial of the Scott Ely case. Readers may want to peruse the entire 29 page decision to fully appreciate the tactics of fractivism, but let me share some of the most salient excerpts (emphasis added), which tell the story very effectively:

In this litigation we are now presented with a sad and shocking spectacle, a debacle and dilemma which is entirely of the plaintiffs’ own making.

This case comes before us for consideration of an extraordinary, unprecedented (1), unexplained and profoundly troubling development

(1) We do not use the term unprecedented lightly. In a career spanning 36 years as a federal district court litigator and judge, we have never observed a wholesale discovery default of this scope and dimension. Tragically, this is literally an unprecedented event in our experience.

This case has been pending for 2,276 days. Fact discovery closed more than 2 1/2 years ago, and limited supplemental fact discovery deadlines requested by the plaintiffs expired some six months ago. We are now on the very eve of trial. At the eleventh hour, in a completely unexplained, and wildly kaleidoscopic fashion the plaintiffs have now begun submitting voluminous, contradictory, cryptic, confused and confusing  exhibits list, lists which contradict one another and contain thousands of pages of material, and hundreds of exhibits, many of which have long existed but have never been previously disclosed.

Trial in this action, which is now more than six years old, is scheduled to commence on February 22, 2016. On the eve of trial, the Court is presented with a surprising and troubling development: the belated disclosure by plaintiffs of thousands of pages of exhibits, and more than 300 categories of exhibits, items which the plaintiffs did not timely identify, many of which it now appears were never even produced in this litigation that saw fact and expert witness discovery span for more than five years

Having carefully considered this matter, we find the conclusion inescapable that the plaintiffs have failed to demonstrate good cause for their failure to identify scores of documents in a timely or intelligible fashion. Indeed, what is most notable, and disappointing, is that the plaintiffs have provided no cause or justification for this behavior. Rather they simply acknowledge that their conduct looks bad. On this score they are doubtless correct. We further find that the defendant has demonstrated profound, actual prejudice from the manner in which the plaintiffs have identified their exhibits in a vague, ever-changing, and idiosyncratic form that continues to take still new shape even with trial approximately one week away. Recognizing the potential gravity of the Court’s decision, we nonetheless conclude that the plaintiffs’ disregard of their obligation to produce discovery in a timely manner, and to timely and intelligibly identify  trial exhibits in accordance with the Court’s local rules and prior orders, compels a finding that the plaintiffs should now be limited to using those 24 exhibits that they identified in their pretrial memorandum, along with any other late-disclosed exhibits as to which the defendants have not lodged an objection…

This trial date comes as no surprise to the plaintiffs. Quite the contrary, it was set by the Court at the joint request of the parties some four months ago, following a series of extensions of time granted to the plaintiffs to allow them to complete their pre-trial preparations. Further, this agreed-upon trial schedule comes on the heals of more than six years of litigation. Moreover, this schedule was set against a backdrop of repeated solicitude by the Court to the needs of the parties, a frequent revision of the litigation schedule upon request to accommodate those needs. In short the parties knew our expectations, and knew that timely and proper scheduling requests would be addressed fairly.

Yet on the eleventh hour, as the case proceeds towards trial, it is now apparent that the plaintiffs have failed to comply timely with their obligations under both Rule 37 and Local Rule 16.3 regarding the identification of trial exhibits – a failure that has seen the plaintiffs initially identify 30 exhibits; then reduce that list to 24 exhibits that they intended to use at trial; then to amend that list to identify more than 350 exhibits, many of which have apparently never been produced in the course of this litigation; then further amend the list to 323 exhibits in a haphazard fashion which saw previously excluded exhibits reinserted and newly created exhibits added to this list; before most recently settling upon a 188 exhibit list which appears plainly subject to further revision and amendment…

Moreover, this list of 351 exhibits did not represent the plaintiffs’ final exhibit list, as the plaintiffs apparently continued their efforts to generate new evidence even after the pretrial conference had ended, including additional testing of their water supplies – testing that even the plaintiffs’ counsel became aware of only after the fact (4)…

(4) This development provides yet another stark illustration of the profoundly prejudicial and wholly unworkable approach which the individual plaintiffs themselves have chosen to take to this litigation. Ignoring the Court’s orders, and the rules, the individual plaintiffs insist upon manufacturing new and previously undisclosed exhibits on the eve of trial in a manner which creates confusion, surprise and prejudice that is so complete that even their own lawyers are kept completely in the dark regarding their plans. The plaintiffs do a grave disservice to their own counsel in this regard and the Court underscores its sensitivity to the challenges that counsel faces when she is not even made aware of this additional testing, and purported data resulting therefrom, until her clients notify her after it has already taken place. In short, the individual plaintiffs must accept their share of the responsibility for this debacle, a debacle they create in part by concealing information from the court, opposing counsel and their own attorneys.

…On February 5, 2016, the plaintiffs furnished Cabot with a revised exhibit list that included five wholly new exhibits, four of which relate to water sampling that the plaintiffs had taken as recently as January 11, 2016. This sampling thus occurred just over a month before trial was to commence, without notice to Cabot and, it seems, without even notice to the plaintiffs’ counsel, who was then placed in the impossible position of having to vouch for the admissibility of this late created evidence at trial.

Cabot has maintained, without dispute, that it had no notice of this testing; was unable to attend the testing; and was unable to take split samples of the water being sampled on the date and time in question. Plaintiffs would now have Cabot defend against these recent samples after receiving the results from the plaintiffs three weeks before trial in a case that is over six years old. The Court cannot permit the use of this evidence, since to do so would create obvious unfairness to Cabot.

Furthermore, the sampling of the Ely water was taken years after fact discovery closed, and months after expert discovery expired. (Doc. 373, 604.) This evidence is substantially untimely, and Cabot should not be put to endeavoring to review and analyze this latest testing evidence, and to provide them to its experts for review, while otherwise preparing for a significant trial. The January 2016 testing (or any testing that may have been done after this time), and any other video or documentary evidence relating to this belated and unnoticed testing is precluded from being introduced at trial.

In closing, we make an observation that should be self-evident to all but which bears repeating: “The hallmarks of discovery in federal court are, and should be, openness, transparency, and candor. Gamesmanship, ambush, surprise, and concealment have no place in federal practice.” Styer v. Frito-Lay, Inc., No. 1:13-CV-833, 2015 WL 1243423, at *5 (M.D. Pa. Mar. 18, 2015). Here, presented with this sad spectacle of wholesale surprise on the eve of trial involving hundreds of exhibits and thousands of pages of material, and an inexplicable failure to engage in even minimal transparency over months and years of litigation, we must ensure that the rules are fairly and evenly applied to all. That fair application of the law to the facts created by the plaintiffs’ own regrettable choices in this litigation–choices which have included multiple and material episodes of concealment of information by individual plaintiffs from opposing counsel, the court and even their own counsel–now calls for the imposition of the sanctions required by law.

The judge’s words speak for themselves. Scott Ely’s case, the bulwark of fractivism as we know it today, is a farce, just like the movement itself.

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3 thoughts on “Fractivism Is But One Fiasco After Another in Dimock

  1. why is it the only ones that support these people are from NY when even their neighbors in PA wont support them…. Oh yeah… no drilling in NY so NY doesn’t recognize the crap they bought into

  2. Pingback: Fractivist Journalism: The Ultimate Con Game

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