Bratkowski v. Cal Dive International

Filing 160

ORDER denying 132 Motion for Sanctions; granting 139 Motion to Quash; granting 139 Motion for Protective Order. Signed by Magistrate Judge Sally Shushan. (Reference: All Cases)(bwn)

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF LOUISIANA
KENNETH H. BRATKOWSKI

CIVIL ACTION

VERSUS

NO. 15-0294 c/w 15-0900
MLCF-SS

CAL DIVE INTERNATIONAL
ORDER
PLAINTIFF’S MOTION FOR SANCTIONS (Rec. doc. 132)
DENIED
DEFENDANTS’ MOTION TO QUASH AND FOR PROTECTIVE ORDER (Rec. doc. 139)
GRANTED
The two motions are related. The plaintiff, Kenneth Bratkowski (“Bratkowski”), contends
that the defendant, Cal Dive Offshore Contractors, Inc. (“Offshore Contractors”), intentionally
withheld documents and only produced them on March 29, 2016.1 He seeks sanctions. Rec. doc.
132. Bratkowski contends that because of the production of documents on March 29, 2016, he
noticed the depositions of three persons who have been deposed and a fourth person who was not
deposed. He contends that he needs a Rule 30(b)(6) deposition of Offshore Contractors and other
discovery. Offshore Contractors and its insurer, Aspen Insurance UK, Ltd. (“Aspen”), moved to
quash the depositions and for a protective order preventing further depositions. Rec. doc. 139.
The motion to quash was granted in part to provide time for the parties to brief the issues.
The two motions were set for expedited consideration. Rec. doc. 145.

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The original defendant was Cal Dive International. Rec. doc. 1. On May 5, 2016, Bratkowski substituted Cal Dive
Offshore Contractors, Inc. for Cal Dive International. Rec. doc. 156.

Background
The alleged accident occurred on August 6, 2012. Offshore Contractors retained outside
counsel, Ralph Kraft, in July 2013. Bratkowski sued Offshore Contractors on January 30, 2015.
Rec. doc. 1. On March 30, 2015, Offshore Contractors filed for bankruptcy under Chapter 11.
Rec. doc. 8. On April 20, 2015, its motion for stay was granted. Rec. doc. 22.
Bratkowski and Offshore Contractors entered into a stipulation. Offshore Contractors was
represented by its counsel in the bankruptcy proceeding in Delaware. The parties agreed to lift the
stay. Part 3(c) provided:
The Debtors will provide for inspection and copying those logs maintained in the
ordinary course of business on the Cal Diver I on or about August 8, 2012, in
Debtor’s physical possession currently, and to the extent existent, will undertake
good faith efforts to obtain physical possession of the requested logs, including but
not limited to:
i. Master Dive Logbook
ii. Cal Diver I deck log
iii. Cal Diver I SAT logs
iv. Cal Diver I decompression logs
v. Dive Bell Maintenance Logs
vi. Cal Diver I USCG Certificate of Inspection and Dive Bell Certification
vii. Any and all records concerning modification history to the involved dive bell,
inclusive of any records from any third party contractor.
Rec. doc. 26 (Exhibit A). On June 23, 2015, Mr. Kraft produced documents to Bratkowski. Rec.
doc. 132 (Memorandum at 5).
On September 1, 2015, Bratkowski moved to lift the stay. Rec. doc. 26. It was granted on
September 2, 2015. Rec. doc. 27. On September 3, 2016, Offshore Contractors moved to
substitute Charles Mouton, its current counsel, for Mr. Kraft. Rec. doc. 29. The order was granted.
Rec. doc. 30.
On September 25, 2015, Bratkowski served Offshore Contractors with a request for
production of documents. Rec. doc. 132 (Exhibit 3). On November 4, 2015, Offshore Contractors
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served responses. Rec. doc. 132 (Exhibit 4). The requests and responses for RFP nos. 5 and 13
are:
Request for production no. 5.
True copies of each and every maintenance record and/or modification
record, requested or performed prior to the accident, pertaining to the dive bell
herein for 10 years.
Response.
All records concerning the Cal Diver 1 Bell, including records regarding
work performed at Arc Controls, Inc. are attached.
Request for production no. 13.
True copy of the Certificate of Inspection for the M/V Cal Diver I at the
time the incident occurred and any vessel documentation pertaining to the dive bell
as well.
Response.
See attached Certificate of Inspection.
Rec. doc. 132 (Exhibit 4 at 2, 3 and 6).
On March 29, 2016, International served its seventh supplemental and amending response
to the initial request for production of documents. The response was limited to RFP No. 13 and is
as follows:
A.
B.
C.
D.

See attached Certificate of Inspection; (Previously Submitted);
CDS-89 ABS Approved documents (Bates 1094-1359);
Miscellaneous Sat System documents (Bates 1360-1420); and
“Sat System 2” documents (Bates 1421-1499).

Rec. doc. 132 (Exhibit 6).
Production of the Documents
Bratkowski contends that Offshore Contractors intentionally withheld production of
crucial documents that it agreed to produce in the stipulation associated with the motion to lift the

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bankruptcy stay. He urges that in June 2015 Offshore Contractors did not send any documents
concerning the modification history of the dive bell and in November 2015, it did not produce any
vessel documentation records in response to his request for production of documents. Thereafter
it did not supplement its discovery responses.
Bratkowski contends that the April 11, 2016 deposition of Offshore Contractors’ health
and safety manager, Terry Overland, demonstrates that the documents were located and shipped
to Mr. Kraft prior to the change in counsel for Offshore Contractors. Bratkowski suggests that Mr.
Kraft chose to withhold the documents.
Bratkowski served an interrogatory on Offshore Contractors requesting an explanation for
the March 29, 2016 production. Offshore Contractors responded:
Upon information and belief, the binder of records were in the possession of Cal Dive
until approximately August 2015 when they were delivered to the office of Cal
Dive’s previous counsel. In early September 2015, the documents were delivered to
undersigned counsel. At some point before discovery responses were due, the
documents were inadvertently placed in a box containing other documents, unrelated
to the dive bell in question, and were never copied or stored electronically. The
binder was found by a paralegal on March 28, 2016, and counsel for Cal Dive was
made aware of their existence on March 29, 2016. The documents were scanned and
sent via email to counsel for the plaintiff on March 29, 2016.
Rec. doc. 150 (Exhibit 3). Offshore Contractors adds that: (1) in accord with the bankruptcy
stipulation, Mr. Kraft produced records that were available to Offshore Contractors as of June
2015; (2) after June 23, 2015, additional records were obtained from Offshore Contractors’ Port
Arthur facility where the Cal Diver I was “cold stacked” since October 2013; (3) the records were
located by Terry Overland, as he testified in his deposition, and turned over to Mr. Kraft; (4) all
records were transferred to Offshore Contractors’ current counsel; (5) once it was determined these
documents did not contain any reference to modifications to the bell, they were inadvertently
placed in a box with documents unrelated to the bell until they were discovered by a paralegal on

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March 28, 2016; and (6) although not responsive to the discovery requests or the bankruptcy
stipulation, they were produced out of an abundance of caution.
Offshore Contractors’ explanation for the delay in the production of the documents is
accepted. Among the factors weighing in favor of the acceptance of the explanation are the
bankruptcy of Offshore Contractors with the attendant upheaval of its operations and attempts to
sell equipment and the change in counsel in this matter in September 2015. The most important
factor, however, is that if Offshore Contractors had intentionally withheld the documents in June
2015 with the bankruptcy production and again in November 2015 with the responses to
Bratkowski’s written discovery, it would not have produced them in March 2016.
Documents
Bratkowski attached two drawings from the documents produced on March 16, 2016. They
are dated August 9, 1984. Rec. doc. 132 (Exhibit 7). He refers to the documents as presenting the
modification history of the bell from its design and construction in 1977 through 1984. He reports
that the records suggest that the spring assist for the hatch was removed between 1984 and possibly
1992. Rec. doc. 132 (Memorandum at 7).
Offshore Contractors confirms that the records are dated 1992 or earlier. Rec. doc. 150 at
5-6. It contends that the documents were apparently created as part of what appears to be an ABS
certification process in 1984 by a prior owner of the diving bell. Rec. doc. 159 at 7.
Bratkowski’s requests for production of documents, including RFP nos. 5, 6, 14 and 16
seek records pertaining to the bell for ten years prior to the accident. The requests were served on
September 25, 2015. They sought records from 2002. All of the records produced on March 16,
2016 predate the response time period by ten years. The documents produced on March 16, 2016
are not responsive to RFP nos. 5, 6, 14 and 16.

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Offshore Contractors suggests the documents were prepared in 1984 as part of an ABS
certification process. It produced the documents as its seventh supplemental and amending
response to initial request for production of documents. That pleading describes the documents as
responsive to RFP no. 13 which sought “any vessel documentation pertaining to the dive bell. . .
.” Rec. doc. 132 (Exhibit 6). The March 29, 2016 documents are responsive to that discovery
request. Rec. doc. 132 (Exhibit 4).
The pertinent part of the bankruptcy stipulation referred to:
Any and all records concerning modification history to the involved dive bell,
inclusive of any records from any third party contractor.
Rec. doc. 26 (Exhibit A) (emphasis added). The stipulation is not limited to the ten years preceding
the accident. It refers to any and all records concerning modifications by Offshore Contractors,
including any records by any third party contractor for Offshore Contractors. Alternatively, it
refers to any modification of the bell at any time whether or not performed by Offshore Contractors
or by a contractor for Offshore Contractors.
Offshore Contractors states not once but several times that the records produced on March
16, 2016 do not contain any reference to any of modification of the diving bell. See for example:
Contrary to plaintiff’s assertion, the documents contain no reference whatsoever to
any modifications of the diving bell hatch in question.
Rec. doc. 150 at 2; and see also Id. at 3, 4 and 5.
Bratkowski states that the March 29, 2016 documents contain drawings which reveal that
when the diving bell was originally designed and constructed by Perry Submariners, there was a
spring assist for the hatch. Rec. doc. 132 (Memorandum at 7). This is not disputed by Offshore
Contractors. It did not acquire the bell until after 1992 at which time there was no spring assist on
the bell. Rec. doc. 150 at 2. Offshore Contractors reports that when it acquired the bell and during

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its ownership of the bell there was a double-hinge design that was used by divers throughout
Offshore Contractors’ ownership of the bell. Rec. doc. 150 at 3.
In summary:
1. In 1977, the bell was manufactured by Perry Submariners.
2. It was designed and constructed with a spring-assist mechanism on the hatch.
3. In 1992, the bell was owned by Offshore Petroleum Divers. Prior thereto it may have been
owned by Taylor Diving and Professional Divers of New Orleans.
4. After 1992, it was acquired by Offshore Contractors. At the time of its acquisition, the bell
did not have a spring-assist mechanism on the hatch. Instead there was a double-hinge.
5. In 2009, the bell was refurbished by Arc Controls at the request of Offshore Contractors.
The March 29, 2016 records do not contain any information concerning modifications to
the diving bell by Offshore Contractors or any contractor employed by Offshore Contractors.
Indeed, the records predate Offshore Contractors’ acquisition of the bell. The records are not
responsive to the bankruptcy stipulation.
Even if the stipulation refers to records of any modification of the bell at any time,
including modifications before Offshore Contractors acquired the bell, the March 29, 2016 records
are not responsive to the bankruptcy stipulation. These records do not reveal who removed the
spring-assist mechanism and when it was done. Offshore Contractors was not required to produce
them in response to the bankruptcy stipulation.
Motions
Bratkowski’s motion for sanctions is premised on: (1) the contention that the documents
produced on March 29, 2016 are responsive to the bankruptcy stipulation and the request for
production of documents; and (2) they were intentionally withheld. The documents are not

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responsive to the bankruptcy stipulation, but they are responsive to RFP no. 13 in Bratkowski’s
request for production of documents. For the reasons previously stated, Offshore Contractors’
explanation for the failure to produce the documents in November 2015 is accepted. Bratkowski’s
motion for sanctions will be denied.
Bratkowski contends that he requires the following discovery:
1. Retake the depositions of William Marrs, Andre Boudreaux and Joe Amoe, formerly of
Offshore Contractors, because they were the individuals most responsible for maintaining
the dive bell. They were deposed prior to the March 29, 2016 production.
2. Depose Steve Brazda a former VP of operations for Offshore Contractors concerning the
modification history of the dive bell.
3. Rule 30(b)(6) deposition of Offshore Contractors concerning the March 29, 2016
production and the subject matter contained in the documents. If it cannot produce a
representative with such knowledge, it should be required to identify the persons with such
knowledge so Bratkowski can subpoena them.
4. A Coast Guard expert – Bratkowski contends that he should be permitted to submit a report
from a David Cole, a Coast Guard expert.2
5. Re-inspection of the dive bell.
6. Depose Engineers with Perry Submariners. Bratkowski is seeking to identify engineers
employed by Perry Submariners who can testify about the design and construction of the
diving bell. He urges that the March 29, 2016 documents may aid him in locating these
engineers.

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The issue of whether Bratkowski will be able to present a report after the deadline is not before the undersigned.
That would come before the District Judge.

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Pursuant to Fed. R. Civ. P. 30(a)(2)(A)(i), a party must obtain leave of court, and the court
must grant leave to the extent consistent with Rule 26(b), if the parties have not stipulated to the
deposition and it would result in more than ten depositions being taken or the deponent has already
been deposed. Bratkowski has taken more than ten depositions. Defendants object to further
depositions. Among the considerations described in Rule 26(b)(1) are “the importance of the
discovery in resolving the issues, and whether the burden or expense of the proposed discovery
outweighs its likely benefit.” Fed. R. Civ. P. 26(b)(1).
Bratkowski argues that it is unjust to permit Offshore Contractors to produce the documents
at a late stage and deny him the opportunity to conduct discovery regarding the documents.
Offshore Contractors responds that: (1) the testimony indicates that the hatch was in the same
configuration at the time of its acquisition by Offshore Contractors as it was at the time of the
accident; (2) the report of Bratkowski’s expert recommended the installation of a spring-assist
system for the hatch; (3) Bratkowski questioned witnesses concerning a spring-assisted design for
the hatch; (4) the former Offshore Contractors witnesses Bratkowski seeks to depose only became
involved with the bell after it was acquired by Offshore Contractors; and (5) a Rule 30(b)(6)
deposition is not available because Offshore Contractors “closed its doors” and there is no
employee to be designated as a corporate representative.
Although documents response to RFP no. 13 were not produced until March 29, 2016,
Bratkowski was aware of the spring-assist design as an alternative to the double hinge on the hatch
at the time of the accident. He questioned one Offshore Contractors representative on the March
29, 2016 documents. These factors weight against the request for further discovery. It is
undisputed that the March 29, 2016 records predate Offshore Contractors’ acquisition of the dive
bell in 1992. There is no evidence that there was a spring assist mechanism on the hatch of the

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dive bell at the time that Offshore Contractors acquired it. Bratkowski has not demonstrated
prejudice.
The most important factor, however, is the trial schedule. The discovery deadline was May
5, 2016. The District Judge noted that there are thirteen motions pending before him. He set
motions for summary judgment for consideration on May 18, 2016. Motions in limine are set for
the morning of the trial on June 20, 2016. Rec. doc. 154. The pretrial schedule does not permit
further discovery.
IT IS ORDERED that: (1) Bratkowski’s motion for sanctions (Rec. doc. 132) is DENIED;
and (2) defendants’ motion to quash and for protective order (Rec. doc. 139) is GRANTED.
New Orleans, Louisiana, this ____ day of May, 2016.
9th

__________________________________
SALLY SHUSHAN
U.S. Magistrate Judge

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