BRAXTON MINERALS, III, LLC, et al., Plaintiffs, v. ANTERO RESOURCES CORPORATION, Defendant CIVIL ACTION NO.: 1:21-CV-119 United States District Court, N.D. West Virginia Filed August 02, 2024 Counsel Brian R. Swiger, John A. Budig, Jonathan R. Marshall, Samuel A. Hrko, Victor S. Woods, Bailey & Glasser, LLP, Charleston, WV, George A. Barton, Pro Hac Vice, Barton and Burrows, LLC, Mission, KS, Larry Lee Javins II, Taylor M. Norman, Bailey, Javins & Carter, LC, Charleston, WV, Scott A. Windom, Windom Law Offices, PLLC, Harrisville, WV, Stacy A. Burrows, Pro Hac Vice, Barton and Burrows, LLC, Mission, KS, William E. Ford III, Ford Law Office, Hobe Sound, FL, for Plaintiffs. Alexandra I. Russell, Pro Hac Vice, Daniel T. Donovan, Pro Hac Vice, Holly R. Trogdon, Pro Hac Vice, Kirkland & Ellis, LLP - DC, Washington, DC, Amy M. Smith, Lauren K. Turner, McKenna Elysse Meadows, W. Henry Lawrence, Steptoe & Johnson, PLLC, Bridgeport, WV, Michelle Kathleen Schaller, Shaina L. Richardson, Steptoe & Johnson, PLLC, Morgantown, WV, for Defendant. Aloi, Michael J., United States Magistrate Judge ORDER RESULTING FROM FURTHER MOTION HEARING AND GRANTING PLAINTIFFS' MOTION TO COMPEL [ECF NO. 80] AS TO REMAINING ISSUES THEREIN *1 Presently pending before the Court is a motion to compel discovery [ECF No. 80] filed by Plaintiffs on April 19, 2024. By Referral Order [ECF No. 81] entered on April 24, 2024, the Hon. Thomas S. Kleeh, Chief United States District Judge, referred the motion [ECF No. 80] to the undersigned Magistrate Judge for hearing and disposition. The Court also is in receipt of Defendant's response [ECF No. 80] in opposition to the motion, filed on May 3, 2024, as well as Plaintiffs' reply [ECF No. 84] in support of their motion, filed on May 10, 2024. After a Motion Hearing on May 28, 2024, the undersigned entered an Order [ECF No. 92] on May 29, 2024 denying Plaintiffs' motion in part and otherwise holding it in abeyance in part. The undersigned ultimately convened the matter again for a Motion Hearing on July 1, 2024, at which the Court heard argument about the remaining issues presented by Plaintiffs' motion. I. FACTUAL AND PROCEDURAL BACKGROUND In very general terms, Plaintiffs seek to certify a class action, with claims concerning Defendant's oil and gas royalty payments and the propriety of deduction of post-production expenses under its oil and gas leases. Plaintiffs base their claims on prior, seminal oil and gas royalty cases such as Estate of Tawney v. Columbia Natural Resources, LLC, 633 S.E.2d 22, 27-30 (W. Va. 2006) and Wellman v. Energy Resources, Inc., 557 S.E.2nd 254, 265 (W. Va. 2001). As in Tawney and other such cases, Plaintiffs claim that Defendant was to pay royalties on prices it received at the point of sale, without deducting Defendant's post-production expenses. Plaintiffs challenge the deduction of such expenses. By the prior Order [ECF No. 92], the Court denied Plaintiffs' motion insofar as it sought production (with some exceptions) of all of Defendant's West Virginia oil and gas leases into which it entered from May 1, 2010 to the present. Rather, by the prior Order, the Court directed that the parties were to collaborate on search terms for electronically stored information. In so doing, the goal was to generate a more tailored (and less voluminous) production of materials which nonetheless have bearing on Plaintiffs' claims. At the motion hearing of July 1, 2024, the Court received updates from the parties as to search terms on which there is (and is not) mutual agreement. Counsel for the parties indicated that there is some further agreement as to search terms, but that there also is some dispute concerning other search terms. To put it broadly, Plaintiffs wish to compel Defendant to utilize search terms which are broader (and presumably more encapsulating of information and yielding of greater search results) than search terms which Defendants wish to use. For example, Plaintiffs request that the search terms “sold” and “marketed” be used when, say, the term “sold” is used in a class lease but the term “marketed” is not. Plaintiffs' argument is that regardless of the term used, the contractual royalty obligation does not change. In other words, Plaintiffs wish to focus on discovery of leases with the same substantive royalty obligations. Defendant, on the other hand, resists such broadened search terms. Defendant would agree to using variations of certain search terms, such as “casinghead” and “casing head.” But Defendant objects to, for example, being compelled to use search terms “sold” and “saved” when they are both not in the a class lease; to Defendant, such terms have different meanings in practical application and disposition of natural gas which has been leased. In other words, Defendant argues that “sold” gas is different from “saved” gas vis-à-vis the types of claims Plaintiffs are pursuing. Defendant's counsel candidly acknowledged that Defendant had not utilized all of the search terms in dispute to ascertain how much more voluminous the search results may be. *2 At bottom, Defendant is agreeable to searching for terms which are in the lease but not agreeable to searching for terms which are not in the lease. Plaintiffs emphasize that the search terms they wish to use are designed to yield leases which are materially the same for purposes of their claims herein. II. REVIEW AND ANALYSIS As is well-established, under the Federal Rules of Civil Procedure: Parties may obtain discovery regarding any nonprivileged matter that is relevant to any party's claim or defense and proportional to the needs of the case, considering the importance of the issues at stake in the action, the amount in controversy, the parties' relative access to the relevant information, the parties' resources, the importance of the discovery in resolving the issues, and whether the burden or expense of the proposed discovery outweighs the likely benefit. Fed. R. Civ. P. 26(b)(1) (emphasis added). Importantly, information need not be admissible to be discoverable. Id. In this context, as the Fourth Circuit has instructed: All civil discovery, whether sought from parties or nonparties, is limited in scope by Rule 26(b)(1) in two fundamental ways. First, the matter sought must be “relevant to any party's claim or defense.” Fed. R. Civ. P. 26(b)(1). Relevance is not, on its own, a high bar. There may be a mountain of documents and emails that are relevant in some way to the parties' dispute, even though much of it is uninteresting or cumulative. Rule 26 therefore imposes another requirement: discovery must also be “proportional to the needs of the case.” Id. Proportionality requires courts to consider, among other things, “whether the burden or expense of the proposed discovery outweighs its likely benefit.” Id. This relieves parties from the burden of taking unreasonable steps to ferret out every relevant document. Virginia Dep't of Corr. v. Jordan, 921 F.3d 180, 188–89 (4th Cir. 2019). The undersigned also, of course, is mindful that Plaintiffs seek to certify a class action and are undertaking discovery with that aim. Thus, the parties and the Court also consider these issues with an eye toward Rule 23: Prerequisites. One or more members of a class may sue or be sued as representative parties on behalf of all members only if: (1) the class is so numerous that joinder of all members is impracticable; (2) there are questions of law or fact common to the class; (3) the claims or defenses of the representative parties are typical of the claims or defenses of the class; and (4) the representative parties will fairly and adequately protect the interests of the class. Fed. R. Civ. P. 23(a). See also Wal-Mart Stores, Inc. v. Dukes, 564 U.S. 338, 349 (2011)(explaining that “The Rule's four requirements – numerosity, commonality, typicality, and adequate representation – effectively limit the class claims to those fairly encompassed by the named plaintiff's claims.” (citations and quotations omitted)). Moreover, in addition to satisfying Rule 23(a), to maintain a class action, claimants must also demonstrate that the action falls within one of the three types of actions set forth in Fed. R. Civ. P. 23(b). Thus, in the context of a discovery dispute such as this one involving a putative class, the undersigned is mindful of the rather permissive standard set forth by Rule 26, and discovery which might be sought to attempt to satisfy the requirements for defining a class under Rule 23. *3 For the hearing before the undersigned of July 1, 2024, Plaintiffs provided a chart with lease Categories A through K, which sets forth the royalty clauses as to each category. This mirrors the categories of leases set forth in the Third Amended Complaint. [ECF No. 66]. The chart also shows the progression of the parties' negotiations as to search terms and the remaining areas of disagreement. In the undersigned's review of the chart, and having received the arguments of the parties' counsel, Plaintiffs have helpfully narrowed their discovery requests from the too-broad discovery sought at the outset of the dispute. The search terms which Plaintiffs now propose are reasonably focused to discover leases which fall into the putative class. Plaintiffs' revised search terms do not always precisely mirror the lease language cited in the Third Amended Complaint. Nonetheless, these search terms substantively are crafted to discover leases with relevant royalty provisions – especially in view of the idiosyncrasies of Appalachian mineral title and the variations by which gas was leased in this region over the course of several decades. By all appearances, Plaintiffs have proposed search terms that are permutations of words pertaining to gas royalties which, for purposes of their claims, have the same meaning and effect. Defendant's objections to the search terms reflect a degree of hair-splitting which could well exclude lease information which should be discovered. Of course, if search results reveal leases which Defendants believe do not contain the relevant royalty provisions, they can argue more appropriately at a later stage of the litigation about excluding them from the class. But to not even conduct the search with the narrowed terms is counter to the policy and purpose of the above-noted Rules. On a related note, at the hearing of July 1, 2024, the parties raised two issues which had arisen shortly before the hearing. First, as to the “Category E” leases, Defendant represents that these leases were modified as part of the “Jones settlement.” Defendant would agree to produce information about the modifications but objects to producing the “base” leases. However, Plaintiffs persuasively argue that there has been no showing that those leases actually have been modified, and thus should not be excluded from discovery in the instant case. Thus, to the extent which there still has been no demonstration that the modifications in “Category E” have been effectuated, Defendant must produce not only information about the modifications, but also must produce the “base” leases from this category. Second, the parties raised an issue about “Category I.” But as to “Category I,” at the July 1 hearing, the parties appeared to be agreeable to a resolution, and so the undersigned does not further address “Category I” or order any resolution here with respect to it. III. CONCLUSION Accordingly, for the reasons set forth herein, Plaintiffs' motion to compel [ECF No. 80] is hereby GRANTED as to the remaining issues not previously resolved in the Court's prior Order [ECF No. 92] of May 29, 2024. More particularly, it is ORDERED that Defendant shall produce information as Plaintiffs proposed with their narrowed and revised search terms presented at the hearing herein on July 1, 2024. It is further ORDERED that Defendant shall produce information as to “Category E” leases as set forth above. It is all so ORDERED. The Clerk of the Court is DIRECTED to provide a copy of this Order to any parties who appear pro se and all counsel of record, as provided in the Administrative Procedures for Electronic Case Filing in the United States District Court for the Northern District of West Virginia.