Shell Offshore Inc. v. Eni Petroleum US LLC et al

Filing 287

ORDER AND REASONS re 268 MOTION to Seal Document Impeachment Exhibits filed by ENI Petroleum U.S., L.L.C. - The Court HEREBY DENIES Defendant Eni Petroleum US LLC's motion to file impeachment exhibits under seal. It is FURTHER ORDERED that Eni's motion, with attachments, be unsealed and filed on the record. Signed by Judge Susie Morgan on 2/12/2018.(bwn)

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

CIVIL DOCKET

VERSUS

NO. 16-15537

ENI PETROLEUM US LLC, ET AL

SECTION: “E”(2)

ORDER AND REASONS
Before the Court is Defendant Eni Petroleum US LLC’s (“Eni”) motion to file
impeachment exhibits under seal.1 For the reasons that follow, the motion is DENIED,
and Eni’s motion shall be unsealed and filed on the record.
On February 5, 2018, Eni filed a motion to file impeachment exhibits under seal.
The Court granted the motion and conducted in camera review of the proposed exhibits.2
Eni wishes to use two exhibits as impeachment evidence for Lance Labiche, one of
Plaintiff Shell Offshore, Inc.’s (“Shell”) expert witnesses. The two exhibits are emails sent
by Mr. Labiche to Eni’s counsel before Shell retained Mr. Labiche as expert witness in this
case.3
In deciding this motion, the Court must decide whether the evidence is
impeachment evidence or is, at least in part, substantive evidence.4 In Chiasson v. Zapata
Gulf Marine Corp., the Fifth Circuit analyzed the distinction between impeachment
evidence and substantive evidence.5 The court held that evidence which is useful solely
for impeachment purposes need not be disclosed prior to trial, but evidence that is “at the

R. Doc. 268.
R. Doc. 268.
3 Mr. Labiche was retained by Eni’s counsel as an expert witness in an unrelated matter. Apache Corp. v.
W&T Offshore, Inc., No. H-15-0063 (S.D. Tex. 2016).
4 See, e.g., Chiasson v. Zapata Gulf Marine Corp., 988 F.2d 513 (5th Cir. 1993); Williams v. Gaitsch, No.
5:08-cv-0772, 2011 WL 2223813, at *2 (W.D. La. June 8, 2011).
5 Chiasson, 988 F.2d at 517-18.
1

2

very least in part substantive” must be disclosed.6 “Substantive evidence is that which is
offered to establish the truth of a matter to be determined by the trier of fact.” 7
“Impeachment evidence, on the other hand, is that which is offered to ‘discredit a witness
. . . to reduce the effectiveness of [his] testimony by bringing forth evidence which explains
why the jury should not put faith in [his] or [her] testimony.”8
In the first email, dated January 25, 2017, Mr. Labiche recommends that Eni’s
counsel contact Geoffrey Kimbrough as a possible expert witness in this matter. He writes,
“I think he would be perfect for making the case that these subsea wells can be abandoned
much cheaper than the majors are currently doing them for.” 9 Eni contends that this
email discredits Mr. Labiche’s statement during his deposition that he never stated the
Popeye abandonments could have been completed at a lower cost.
Eni exaggerates, or perhaps even misrepresents, the meaning of Labiche’s
statements in the email, however. Mr. Labiche does not express the opinion that the wells
could have been abandoned at a lower cost; he is recommending only that Geoffrey
Kimbrough would be the type of expert who would be qualified to express such an
opinion. Read in context, the email has no value as impeachment evidence, as it does not
“reduce the effectiveness of [Mr. Labiche’s] testimony.”10 Nor is the email admissible as
substantive evidence. The email does not have “any tendency to make a fact [of
consequence] more or less probable than it would be without the evidence,” and thus is
not relevant under Rule 401. The Court finds the email in Exhibit 1 may not be used at
trial.

Id.
Id. at 517.
8 Id.
9 R. Doc. 168-1.
10 Chiasson, 988 F.2d at 517.
6
7

In the second email, dated October 11, 2016, Mr. Labiche describes Shell’s
Gyrfalcon well as “the one that started the whole open water mess.”11 Eni argues that this
email impeaches Mr. Labiche’s deposition testimony that he “always respected
everything” Shell did, and “didn’t envision [him]self ever disagreeing with anything
[Shell] said or did.”
The Court has already ruled that (1) neither party may refer to the fact that an
expert was retained by opposing counsel in another case, and (2) that neither party will
refer to other lawsuits in which the parties have been involved.12 Specifically regarding
Mr. Labiche’s deposition testimony, the Court made clear at the February 8, 2018 Pretrial
Conference that Shell will not be allowed to elicit testimony at trial that Mr. Labiche
“always respected everything” Shell did, because such testimony is not relevant. Because
Mr. Labiche will not be allowed to testify that he always respected everything Shell did,
the email in Exhibit 2 is irrelevant, and Eni may not use the email in order to impeach Mr.
Labiche.
Accordingly;
The Court HEREBY DENIES Defendant Eni Petroleum US LLC’s motion to file
impeachment exhibits under seal.13 It is FURTHER ORDERED that Eni’s motion, with
attachments, be unsealed and filed on the record.
New Orleans, Louisiana, this 12th day of February, 2018.

________________________________
SUSIE MORGAN
UNITED STATES DISTRICT JUDGE
R. Doc. 168-2.
Order on R. Doc. 276 at ¶ 12. [UPDATE AFTER MILS ARE DOCKETED]
13 R. Doc. 268.
11

12