Shell Offshore Inc. v. Tesla Offshore, L.L.C. et al

Filing 243

ORDER AND REASONS denying 232 Motion to Quash trial subpoena served Roy Nugent. Signed by Judge Lance M Africk on 1/21/2016. (blg)

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF LOUISIANA
SHELL OFFSHORE, INC.

CIVIL ACTION

VERSUS

NO. 13-6278

TESLA OFFSHORE, L.L.C., ET AL.

SECTION I

ORDER AND REASONS
Before the Court is a motion1 filed by plaintiff, Shell Offshore Inc. (“Shell”), to quash a trial
subpoena served on its employee, Roy Nugent (“Nugent”). Oppositions have been filed by Tesla2
and International.3 For the following reasons, the motion to quash is denied
There is no dispute that Nugent was properly served with a trial subpoena.4 “On timely
motion, the court for the district where compliance is required must quash or modify a subpoena
that . . . subjects a person to undue burden.” Fed. R. Civ. P. 45(d)(3)(A)(iv). As the Fifth Circuit has
explained:
Whether a subpoena subjects a witness to undue burden generally raises a question
of the subpoena’s reasonableness, which requires a court to balance the interests
served by demanding compliance with the subpoena against the interests furthered
by quashing it. This balance of the subpoena’s benefits and burdens calls upon the
court to consider whether the information is necessary and unavailable from any
other source.
Positive Black Talk Inc. v. Cash Money Records, Inc., 394 F.3d 357, 377 (5th Cir. 2004) (alterations,
citations, and internal quotation marks omitted) abrogated on other grounds by Reed Elsevier, Inc.

1

R. Doc. No. 232.
R. Doc. No. 234.
3
R. Doc. No. 242.
4
R. Doc. No. 231. The Court has ordered that “all subpoenas previously served remain in
effect.” R. Doc. No. 230, at 1.
2

1

v. Muchnick, 559 U.S. 154 (2010). The burden of proof is on the party moving to quash the
subpoena. See Wiwa v. Royal Dutch Petroleum Co., 392 F.3d 812, 818 (5th Cir. 2004).
In support of quashing the subpoena, Shell contends that Nugent’s testimony would be both
minimally relevant and redundant of the testimony of other witnesses.5 Shell also contends that
Nugent’s testimony can be presented through his deposition, which is “almost 300 pages,” of which
“Tesla has already designated 168 pages” for use at trial.6 With respect to the purported burden of
having Nugent testify at trial, Shell submits an affidavit from David Loeb, Shell’s Operations
Manager for Floating Deepwater Operations stating that “[t]he round-trip cost to fly Mr. Nugent by
helicopter from the rig to New Orleans would cost approximately $20,000. Plus, Shell would need
to identify a suitable replacement to put aboard the Bully 1.”7
The Court is not persuaded that the subpoena subjects any person to “undue burden.” Fed.
R. Civ. P. 45(d)(3)(A)(iv). First, the parties agree that Nugent is the only Shell or Transocean
witness who was on board the NAUTILUS at the time of the incident who can be subpoenaed to
testify live at trial. The Court is not persuaded that a witness in Nugent’s position, whose deposition
transcript is almost 300 pages, has negligible additional relevant testimony to offer at trial.
Furthermore, although his testimony certainly could be presented to the jury through his deposition,
testimony from a live witness is preferable. See In re Vioxx Prods. Liab. Litig., 438 F. Supp. 2d 664,
668 (E.D. La. 2006) (“As an alternative to live trial testimony, the Court, the parties, and, most
importantly, the jury is left with the deposition–a ‘second best.’”) (citation omitted).8

5

R. Doc. No. 232-2, at 2-4.
R. Doc. No. 232-2, at 4.
7
R. Doc. No. 232-3, at 2.
8
The copy of Nugent’s transcript submitted to the Court reflects that Nugent was deposed
on September 9, 2014, and it does not reflect (nor does Shell suggest) that the deposition was taken
6

2

Second, Shell has not carried its burden to show that an expenditure of $20,000.00 to
produce Nugent at trial is a “substantial expense and undue hardship” in the specific circumstances
of this case.9 The February 16, 2016 trial date in this matter was set on July 8, 201510 and Shell has
had ample notice and time to take steps to reduce or obviate any burden to produce Nugent at trial.
Furthermore, considering that Shell demands $9,200,000.00 in damages from defendants, the Court
is not persuaded that $20,000.00 to produce its own employee as a witness is an undue burden.
Accordingly,
IT IS ORDERED that the motion to quash is DENIED.
New Orleans, Louisiana, January 21, 2016.
________________________________
LANCE M. AFRICK
UNITED STATES DISTRICT JUDGE

specifically to preserve Nugent’s testimony for trial. The vintage of the deposition, as well as the
fact that no party contemplated at the time that Nugent’s deposition would be introduced at trial,
weigh against finding the deposition to be an adequate substitute for live testimony at trial.
9
The Court’s holding is limited to the facts of this matter. Certainly in many if not most other
cases, $20,000.00 would be a disproportionate and undue burden for producing a witness whose
testimony could be presented through deposition.
10
R. Doc. No. 221.
3