Fairley v. Art Catering Inc et al

Filing 62

ORDER AND REASONS: ORDERED that 47 Motion for Protective Order Quashing Deposition is GRANTED. FURTHER ORDERED that ART Catering, Inc. may not take a discovery deposition of Denise Battle prior to the Plaintiffs notice deposition. FURTHER ORDERED that 54 Motion to Compel is GRANTED IN PART and DENIED IN PART. FURTHER ORDERED that the Plaintiffs motion is GRANTED to the extent that the recorded statements should be furnished to the Plaintiff immediately following the deposition of the individuals who provided the statements. FURTHER ORDERED that the Plaintiffs motion is DENIED AS MOOT to the extent that the motion seeks to compel the Defendants insurance policy.. Signed by Magistrate Judge Karen Wells Roby. (cml)

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF LOUISIANA
MARY FAIRLEY

CIVIL ACTION

VERSUS

NO:

ART CATERING, INC, ET AL

SECTION: “A” (4)

16-3488

ORDER AND REASONS
Before the Court is a Motion for Protective Order Quashing Deposition (R. Doc. 47)
Motion to Compel Production (R. Doc. 54) filed by the Plaintiff Mary Fairley seeking an order
of the court quashing the discovery deposition noticed by the Defendant ART Catering, Inc. of
Dense Battle. The motion is opposed. R. Doc. 60. The motion was submitted on August 9, 2017
and heard with argument that same day.
I.

Background
The instant action was filed in the District Court on April 20, 2016, asserting claims under

the Jones Act and general maritime law. R. Doc. 1. The Plaintiff alleges that during July and
August of 2015 her husband, Ronnie Lee Fairley, was employed by Defendant ART Catering, Inc.
(“ART”) working as a laundry worker aboard the D/S Titanium Explorer, owned by Defendant
Vantage Deepwater Drilling, Inc. (“Vantage”) Id. at p. 2. During that time, the Plaintiff alleges
that her husband became gravely ill and ART placed him on “no work” status. Id. She further
alleges that Vantage failed to provide appropriate medical care. Id. at p. 3. Her husband’s medical
condition allegedly worsened into an acute infection in his leg while he was forced to remain
aboard the Titanium Explorer for the duration of his twenty-eight (28) day schedule. Id. When he
finally was transported ashore, the Plaintiff’s husband was rushed to the Minden Medical Center.
The infection allegedly had led to gangrene-related sepsis and the amputation of his right foot. Id.
He died on August 22, 2015 allegedly because his septic condition caused acute respiratory failure

and a myocardial infarction. Id. As such, the Plaintiff has filed claims under the Jones Act and
General Maritime Law seeking damages as a result of the Defendants’ negligence.
At this time, the Plaintiff has filed a Motion for Protective Order Quashing Deposition
seeking that ART’s noticed discovery deposition of Denise Battle be quashed. R. Doc. 47. While
the Court has suspended the deposition of Battle at this time, the Plaintiff’s motion essentially
seeks to quash ART’s later noticed discovery deposition prior to the Plaintiff’s “for all purposes”
deposition, including the perpetuation of the testimony for trial as Battle is beyond the Court’s
subpoena power. R. Doc. 47-2, p. 1.
The Plaintiff has also filed a motion to compel seeking an order compelling ART to
produce a copy of its insurance policy as well as a copy of any statement taken of Denise Battle.
R. Doc. 54. The Plaintiff states that ART has not produce a copy of its insurance policy despite
being required to produce its insurance policy under initial disclosures and a request for the policy
in discovery. R. Doc. 54-2, p. 1-2. Similarly, the Plaintiff argues that it has recently learned that
ART has a recorded statement of Battle. The Plaintiff had previously requested a copy of witness
statements obtained in connection with the incident. Id. at p. 2. The Plaintiff argues that ART has
not produce the statement despite acknowledging that it had a copy of it.
ART opposes both motions. R. Doc. 60. ART essentially argues that it should be allowed
to depose Battle prior to her trial deposition to avoid a trial ambush. Id. at p. 8. ART also argues
that the Plaintiff lacks standing to challenge the subpoenaed deposition. As to the discovery at
issue, ART argues that they have provided the insurance policy at this time. R. Doc. 60-8. ART
further argues that the only statement taken of Battle was by a claims adjuster at the direction of
Counsel, who received that statement on July 25, 2017 and noted such on a privilege log provided
to the Plaintiff on August 3, 3017. R. Doc. 60-7.
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II.

Standard of Review
A.

Motion for Protective Order

Rule 26(c) governs the issuances of Protective Orders in discovery. A Court may “for good
cause, issue an order to protect a party or person from annoyance, embarrassment, oppression, or
undue burden or expense.” Fed. R. Civ. P. 26(c)(1). The rule offers a variety of potential options
that the Court may use to protect the moving party, including forbidding or limiting the scope of
discovery into certain matters or requiring that a trade secret or other confidential commercial
information not be revealed or be revealed in only a certain way. Fed. R. Civ. P. 26(c)(1)(D), (G).
“The party seeking the protective order bears the burden to show ‘the necessity of its issuance,
which contemplates a particular and specific demonstration of fact[.]’” Cazaubon v. MR Precious
Metals, LLC, 14-2241, 2015 WL 4937888, at *2 (E.D. La. Aug. 17, 2015) (quoting In re Terra
Int'l, 134 F.3d 302, 306 (5th Cir.1998)). The trial court enjoys wide discretion in setting the
parameters of a protective order. See Seattle Times Co. v. Rhinehart, 467 U.S. 20, 36 (1984) (“To
be sure, Rule 26(c) confers broad discretion on the trial court to decide when a protective order is
appropriate and what degree of protection is required.”). Finally, Rule 26(c)(1) requires a
certification that the moving party has conferred or attempted to confer in good faith with the other
affected party to attempt to resolve the issue without the court’s interference.
B.

Motion to Compel

Discovery of documents, electronically stored information, and things is governed by
Federal Rule of Civil Procedure 34. Rule 34 allows a party to request the production of “any
designated documents or electronically stored information” or “any tangible things.” Id. Similarly,
Rule 33 allows a party to serve another party written interrogatories which “must, to the extent it
is not objected to, be answered separately and fully in writing under oath.” Fed. R. Civ. P. 33(b)(3).
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Both Rule 33 and 34 allow a party to ask interrogatories and request production to the extent of
Rule 26(b). Fed. R. Civ. P. 33(a)(2); 34(a).
Federal Rule of Civil Procedure 37 provides sanctions for failure to cooperate in discovery.
Rule 37(a) allows a party in certain circumstances to move for an order compelling discovery from
another party. In particular, Rule 37(a)(3)(b)(iii)-(iv) allows a party seeking discovery to move for
an order compelling an answer or production of documents where a party “fails to answer an
interrogatory” or “fails to produce documents.” An “evasive or incomplete” answer or production
is treated the same as a complete failure to answer or produce. Fed. R. Civ. P. 37(a)(4).
In addition to alleging that the responding party has failed to properly cooperate with
discovery, a motion to compel under Rule 37(a) must also “include a certification that the movant
has in good faith conferred or attempted to confer with the person or party failing to make
disclosure or discovery in an effort to obtain it without court action.” Fed. R. Civ. P. 31(a)(1).
III.

Analysis
First, the Plaintiff has filed a motion seeking to quash ART’s noticed discovery deposition

of Denise Battle be quashed. R. Doc. 47. While the Court has suspended the deposition of Battle
at this time, the Plaintiff’s motion essentially seeks to quash ART’s later noticed discovery
deposition prior to the Plaintiff’s “for all purposes” deposition, including the perpetuation of the
testimony for trial as Battle is beyond the Court’s subpoena power. R. Doc. 47-2, p. 1. The Plaintiff
argues that is should not be forced to go through Battle’s deposition twice. In turn, ART argues
that it should be allowed to depose Battle prior to her trial deposition to avoid a trial ambush. 60
at p. 8. ART avers that the discovery deposition will not take a long time.
Federal Rule of Civil Procedure 26(d)(3) provides that discovery may be pursued in any
sequence and that discovery by one party does not require delaying discovery by any other party.
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As such, there is no rule stating that either the Plaintiff or ART is entitled to pursue discovery prior
to the other. However, the Court may issue a protective order to protect against “undue burden or
expense.” Fed. R. Civ. P. 26(c)(1). The Court similarly may limit duplicative discovery. Fed. R.
Civ. P. 26(b)(2)(C). As such, there is no reason why ART should be entitled to a separate, prior
“discovery deposition.” Indeed, even if such a deposition were to go forward, the Court is unsure
what would stop such a deposition from being used in trial given that Battle appears to be beyond
the subpoena power of this court. Fed. R. Civ. P. 32(a)(4). As such, there is no reason for the Court
to allow multiple depositions. Finding that the Plaintiff has demonstrated good cause given that
the extra deposition would be an undue burden, the Court grants the motion.
Second, The Plaintiff has also filed a motion to compel seeking an order compelling ART
to produce a copy of its insurance policy as well as a copy of any statement taken of Denise Battle.
R. Doc. 54. At this time, ART argues that they have provided the insurance policy at this time. R.
Doc. 60-8. As such, the motion is denied as moot to this extent.
As to Battle’s recorded statement, ART argues that the only statement taken of Battle was
by a claims adjuster at the direction of Counsel, who received that statement on July 25, 2017 and
noted such on a privilege log provided to the Plaintiff on August 3, 3017. R. Doc. 60-7.
In a typical situation, the Court would likely find the statement sought to be privileged.
“The work-product doctrine is codified in Rule 26(b)(3) of the Federal Rules of Civil
Procedure…[and] protects from discovery documents and other tangible things prepared by a party
or representative of a party, including attorneys, consultants, agents, or investigators, in
anticipation of litigation.” Fieldwood Energy, LLC v. Diamond Servs. Corp., No. 14-650, 2015
WL 1415501, at *2 (E.D. La. Mar. 27, 2015) (citing Conoco v. Boh Bros. Constr. Co., 191 F.R.D.
107, 117–18 (W.D.La.1998)).
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However, the Court finds the instant situation to be anything but typical given the seeming
deceptiveness employed by ART’s counsel. The Plaintiff originally requested in January of 2017
a copy of all witness statements obtained by ART. R. Doc. 54-2, p. 2; R. Doc. 54-5, p. 2. ART
responded that, subject to objections that the request sought statements that were privileged, that
there were “none.” R. Doc. 54-5, p. 2. Yet, according to ART’s own privilege log, a recorded
statement was taken of Matthew Jeffers on October 27, 2015. R. Doc. 60-7, p. 1. While ART’s
counsel may attempt to split hairs by stating that he had no possession of the recorded statement
until June 7, 2017, the recorded statement was certainly within ART’s “control” given that the
statement was taken by a claims adjuster at the alleged direction of ART’s counsel. See Fed. R.
Civ. P. 34(a)(1). Therefore, the Court finds ART’s response to not only be contrary to Rule 34’s
requirement that an objection “state whether any responsive materials are being withheld on the
basis of that objection” but also deceptive in that a recorded statement was taken and in existence
at the time.
Moreover, the privilege log identifying six other statements—including the statement at
issue—was only produced following the discovery of Battle’s statement by Plaintiff’s counsel and
the ensuing demand for its production and the resulting instant motion to compel. The Court
questions whether counsel would have furnished these statements or complied with its duty to
supplement under Federal Rule of Civil Procedure 26(e) but for the Plaintiff’s discovery. This
concern is bolstered by the fact that when the question was presented regarding why he had not
supplemented the responses, counsel suggested that he had been too busy to do so. The Court
cannot and will not condone conduct that borders on deceit given, as ART acknowledges, the
Fifth’s Circuit aversion to trial by ambush. See Ragan v. Gulf Oil Corp., No. 85-5841, 1986 WL
11763, at *1 (E.D. La. 1986) (“This result leads to ‘trial by ambush’, an evil which the discovery
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rules were expressly intended to eliminate. Fundamental fairness and the spirit and intent of the
federal discovery rules simply cannot and should not lead to such a regressive result.”). Therefore,
the Court finds that ART’s counsel has waived the work product privilege. As the Court ordered
during oral argument, the recorded statements should be furnished to the Plaintiff immediately
following the deposition of the individuals who provided the statements.
IV.

Conclusion
Accordingly,
IT IS ORDERED that the Plaintiff’s Motion for Protective Order Quashing Deposition

(R. Doc. 47) is GRANTED.
IT IS FURTHER ORDERED that ART Catering, Inc. may not take a “discovery”
deposition of Denise Battle prior to the Plaintiff’s notice deposition.
IT IS FURTHER ORDERED that the Plaintiff’s Motion to Compel (R. Doc. 54) is
GRANTED IN PART and DENIED AS MOOT IN PART.
IT IS FURTHER ORDERED that the Plaintiff’s motion is GRANTED to the extent that
the recorded statements should be furnished to the Plaintiff immediately following the deposition
of the individuals who provided the statements.
IT IS FURTHER ORDERED that the Plaintiff’s motion is DENIED AS MOOT to the
extent that the motion seeks to compel the Defendant’s insurance policy.
New Orleans, Louisiana, this 10th day of August 2017.

KAREN WELLS ROBY
CHIEF UNITED STATES MAGISTRATE JUDGE
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