Sistrunk et al v. Dake Corporation et al

Filing 50

ORDERED that 39 Motion to Quash Subpoena, and in the Alternative, for a Protective Order to Limit the Scope is DENIED AS MOOT. Signed by Magistrate Judge Karen Wells Roby. (cml)

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF LOUISIANA
JAMES SISTRUNK, ET AL.

CIVIL ACTION

VERSUS

NO:

DAKE CORPORATION, ET AL.

SECTION: “R” (4)

13-2983

ORDER
Before the Court is Pellerin Milnor Corporation’s (“Pellerin Milnor”), Sam Martinez’s,
and Robert Hamberger’s (collectively “Movers”) Motion to Quash Subpoena, and in the
Alternative, for a Protective Order to Limit the Scope (R. Docs. 39), seeking to quash
subpoenas for the deposition of two fact witnesses and a subpoena for a Rule 30(b)(6) corporate
deposition. The motion is opposed. See R. Docs. 42 (Defendant’s Opposition) and 43 (Plaintiff’s
Opposition). The motion was heard for oral argument on Wednesday, November 12, 2014.
This case arises out of the injuries Plaintiff, James Sistrunk, suffered in the course of his
employment with Pellerin Milnor, when a part of a shaft broke loose during the operation of a
hydraulic press that was designed and manufactured by the Defendants, Dake Corporation and
JSJ Corporation. See R. Doc. 1. Defendants have taken five (5) fact witness depositions of
Pellerin Milnor employees regarding supervision, training, safety, and the factual occurrences on
the date of the incident. See R. Doc. 39-3, at 4. During these depositions Pellerin Milnor
specifically stated on the record that the fact witnesses were not testifying on behalf of the
company. Defendants now seek to conduct a Rule 30(b)(6) corporate deposition of Pellerin

Milnor to obtain binding testimony from the company. Defendants also seek to depose Pellerin
Milnor engineers Sam Martinez and Robert Hamberger, who designed a safety cage to go around
the hydraulic press after the accident.
In the instant motion, the Movers, Pellerin Milnor, Martinez and Hamberger are seeking
to quash the subpoenas noticed for depositions on November 5, 2014 because: (1) the subpoenas
issued to Martinez and Hamberger were improperly served because they were not sent directly to
the engineers but to Pellerin Milnor; and (2) discovery of a non-party should be restricted when it
is unreasonably cumulative or duplicative and causes unnecessary harassment, inconvenience,
and expense. See R. Doc. 39-3. In the alternative, Movers argue that the scope of the depositions
should be limited in scope to relevant matters not already covered. Id.
A.

Improper service
The Movers argue that service to Martinez and Hamberger was defective because they

were not personally served. See R. Doc. 39-3, at 4. However, during oral argument, the Movers
informed the Court that the Defendants issued new subpoenas to Martinez and Hamberger that
were personally served to the deponents, thus rendering this issue moot.
B.

Quashing Subpoenas
The Movers argue that as non-parties the restrictions on discovery may be broader to

protect it from unnecessary harassment, inconvenience, expense or disclosure of confidential
information. See R. Doc. 39-3, at 5 (citing In re Candor Diamond Corp., 26 B.R. 847, 848
(Bankr. S.D.N.Y.1983). Movers contend that the depositions of Martinez and Hamberger are
irrelevant because the Defendants seek to inquire about the design and installation of the cage
installed after the accident in question. Id. at 6. Movers argue that testimony about subsequent
remedial measures is not admissible under Federal Rule of Evidence 407, and thus the

2

depositions are irrelevant. Id. Moreover, Movers contend that the depositions of Martinez and
Hamberger are duplicative of other evidence because the Defendants have already been provided
with design drawings of the cage, photographs of the cage, as well as information about the
circumstances surrounding the cage, which was covered in the previous depositions of Pellerin
Milnor employees. Id. As for the Rule 30(b)(6) deposition, the Movers argued that they would be
willing to stipulate that the testimony of previously deposed employees is sufficient to bind the
corporation.
In opposition, the Defendants argue that the Movers do not provide any evidentiary basis
for their contentions that the subpoenas are redundant, irrelevant, unduly burdensome, and
duplicative. See R. Doc. 42, at 4. Defendants argue that these contentions are mere argument of
counsel and that the Movers have not carried their burden of producing an evidentiary basis for
their arguments. Id. at 5-6 (citing Truswal Systems Corp. v. Hydro-Air Engineering, Inc., 813
F.2d 1207 (Fed. Cir.1987)). Defendants further assert that the depositions are not irrelevant as a
subsequent remedial measure because the Federal Rules of Civil Procedure allows for the
discovery of inadmissible evidence. Id. at 11. Moreover, Defendants argue that the additional
depositions sought are not duplicative of the previous five depositions because Martinez and
Hamberger are the engineers who designed the cage and only they can answer questions about
their process of designing and installing the cage. Id. at 8-9. Defendants also argue that the
installation of the cage goes to feasibility and it is important to inquire about the guard to prepare
their defenses.
Plaintiffs also filed an opposition to Movers motion and argue that as the employer and
the holder of the product that injured Plaintiff, Pellerin Milnor will play a substantial role in this
case and therefore the deposition of Pellerin Milnor, Maritnez, and Hamberger should be

3

allowed. See R. Doc. 43. Plaintiffs argue that subsequent remedial measures may be admissible
at trial to prove that an alternative design existed and that it was economically feasible, thus the
installation of the cage after the accident is relevant and may be admissible in this case to
determine the allocation of fault. Id.
During oral argument, the parties were excused to discuss setting dates for the
depositions at issue and any possible stipulations. After being excused for thirty (30) minutes, the
parties returned before the Court and represented that they agreed to the depositions of Martinez
and Hamberger to occur on November 19, 2014 at 1:00 pm and agreed to stipulate that the
previous testimonies of Pellerin Milnor employees are sufficient to bind the corporation,
eliminating the need for the 30(b)(6) deposition. However, the parties did not agree to the precise
format in which to convey the stipulations and were granted until Friday, November 14, 2014 to
confer.
On November 17, 2014, the parties filed Stipulations Relative to the Depositions of
Robert Hamberger, Sam Martinez, and Pellerin Milnor Corporation (R. Doc. 47) and Stipulations
Relative to the 30(b)(6) Deposition of Pellerin Milnor Corporation (R. Doc. 48) (collectively
“Stipulations”).1 The parties stipulate that Hamberger will appear for deposition on November
19, 2014 at 1:00 pm and Martinez will appear for deposition on November 19, 2014 at 1:30 pm.
See R. Doc. 47. The parties further stipulate that Sid LaCoste will appear for deposition on
behalf of Pellerin Milnor on November 19, 2014 at 2:00 pm. Id. The Stipulations also include
each topic for the corporate deposition and the testimony that is responsive to that topic. See R.
Doc. 48.
Therefore, based on the parties’ stipulations,

1

The two Stipulations filed in the record include a signature line for the undersigned. However, since these are
agreements between the parties, they do not require a judicial signature although it remains a part of the record.
4

IT IS ORDER that Pellerin Milnor Corporation, Sam Martinez, and Robert Hamberger’s
Motion to Quash Subpoena, and in the Alternative, for a Protective Order to Limit the
Scope (R. Docs. 39) is DENIED AS MOOT.
New Orleans, Louisiana, this 3rd day of December 2014.

____________________________________________
KAREN WELLS ROBY
UNITED STATES MAGISTRATE JUDGE

5