Usdc=mt

I. FACTS AND PROCEDURAL HISTORY

The Kapsners brought an action on July 12, 2002, against Burlington in the District Court of Montana for the Sixth Judi- cial District (Park County) for Burlington’s alleged inten- tional dumping of diesel oil and toxic solvents, resulting in contamination of the Kapsners’ land, and for Burlington’s intentional failure to contain and remediate this damage. Bur- lington removed to the United States District Court for the District of Montana on diversity grounds. The amended com- plaint seeks recovery for nuisance, negligence, strict liability, trespass, wrongful occupation, violations of the Montana Constitution, unjust enrichment, and misconduct warranting punitive damages.

Discovery has been underway since November 6, 2002, when the Kapsners served their first set of document requests pursuant to Federal Rule of Civil Procedure 34 (“Rule 34”). The discovery process has been characterized by delay, mis- understandings, and increasing acrimony between the parties. Burlington responded to the Kapsners’ first set of document requests on December 9, 2002. However, this response was not accompanied by a privilege log. The record suggests that both…