In Re: In the Matter of Tara Crosby LLC

Filing 246

Minute Order. Proceedings held before Chief Magistrate Judge Karen Wells Roby: A Motion Hearing was held on 4/28/2021 re 238 MOTION to Quash In-Person Depositions. IT IS ORDERED that Claimants' Motion to Quash In-Person Depositions (R. Doc. 238) is GRANTED as set forth in document. (Court Reporter Jodi Simcox.) (jeg)

MINUTE ENTRY
ROBY, M.J.
4/28/2021
UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF LOUISIANA
IN THE MATTER OF TARA CROSBY
LLC

CIVIL ACTION
NO. 17-5391
SECTION: “M” (4)

LAW CLERK:
COURT REPORTER:
Appearances:

Destinee N. Andrews
Jodi Simcox

Matthew O'Neil Greenberg & Bobby J. Delise for Claimants Hebert
and Pitre.
Joseph E. Lee , III for Petitioners.
MINUTE ENTRY AND ORDER

Before the Court is a Motion to Quash In-Person Depositions (R. Doc. 238) filed by the
Claimants Hebert and Pitre seeking the Court order that the depositions of Pitre and Hebert be
taken by remote means. The motion is opposed. R. Doc. 242. The motion was heard on expedited
consideration on April 28, 2021. R. Doc. 241.
I.

Background
Petitioners Tara Crosby, L.L.C. and Crosby Tugs, L.L.C. (collectively “Crosby”), filed this

instant action on May 31, 2017, in the United States District Court pursuant to Rule 9(h) of the
Federal Rules of Civil Procedure following an offshore naval incident. R. Doc. 1. The incident
occurred on May 29, 2017, when the M/V Crosby Commander encountered severe weather and
sank in the Eugene Island Block 159, approximately thirty (30) nautical miles off the coast of
Louisiana. R. Doc. 1, p. 3.

MJSTAR: 00:11

Claimants Robert Pitre (“Pitre”) and Joseph Hebert (“Herbert”) allege suffering injury
when the M/V Commander sunk but also allege that severe weather was not the sole cause of
injuries as Petitioners knew about the conditions and the size of the load the vessel was pulling,
and knowingly and negligently sent them into harm’s way anyway. R. Doc. 11, p. 8. More
specifically, Claimants Herbert and Pitre allege that, in the course and scope of their employment
as seamen for Crosby, and while attempting to tow an over-loaded barge, the M/V Crosby
Commander encountered previously forecasted rough weather with winds speeds reaching sixtyfive (65) miles per hour, which combined with the wave heights, caused the M/V Crosby
Commander to sink. R. Doc. 11, p. 10-11.
While the four-man crew was able to evacuate the vessel and enter the water, Claimant
Herbert was thrown from one side of the wheel house to the other sustaining severe back and
bodily injuries; Claimant Pitre also sustained injuries to his back, neck, and body. R. Doc. 11, p.
11.
While the discovery deadline in this case has lapsed, the District Judge issued an order
allowing for limited discovery on August 14, 2020. R. Doc. 215. In that order, the Court decided
that Crosby may propound written discovery and take depositions, if necessary, directed to the
issue of what medical expenses have been incurred and/or paid by Claimants and their attorneys.
Id. In addition, the Court permitted Crosby to take updated depositions of Claimants Robert Pitre
and Joseph Hebert, limited to matters that could not have been covered in their original depositions
to include depositions questions regarding Claimants’ current activities, their current physical and
mental condition, their medical condition and treatment (including surgeries) since the date of their
original depositions, any employment and/or efforts to obtain employment since their original
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depositions, any intervening accidents or injuries, and the extent, if any, of their actual out-ofpocket payments for medical treatment. Id.
As to this instant motion, Claimants Pitre and Hebert contend that, in compliance with the
Court’s order, Crosby sent out notices of limited depositions for Pitre and Hebert to occur remotely
on April 1, 2021 via Zoom, but on March 29, 2021 Crosby without warning cancelled its notices
of deposition. R. Doc. 238-1. Thereafter, Crosby re-noticed the depositions to occur in-person on
April 14, 2021. Id. Pitre and Hebert contend that the deposition should proceed forth via Zoom as
the originally agreed upon method. Id. In support of this contention, Pitre and Hebert cite to the
Covid-19 pandemic and stating the risk of in-person depositions at the time outweigh the benefit.
Id.
In opposition, Crosby states while it originally noticed the deposition remotely, it always
wanted the deposition to occur in-person. R Doc. 242. Crosby also states that its closer for
claimants to travel to New Orleans than to their counsel’s office; claimants will eventually have to
travel to New Orleans for trial; and their counsel have been vaccinated against Covid-19 (although
the status of claimants, claimants’ counsel, the court reporter, and any potential staff is concededly
unknown). Id. As such, Crosby requests the Court deny claimants’ motion and require the
deposition go forth in-person. Id.
II.

Standard of Review
Federal Rule of Civil Procedure (“Rule”) 30 governs depositions by oral examination. Fed.

R. Civ. Pro. 30. Among other things, Rule 30 provides “[t]he parties may stipulate--or the court
may on motion order—that a deposition be taken by telephone or other remote means. For the
purpose of this rule and Rules 28(a), 37(a)(2), and 37(b)(1).” Fed. R. Civ. P. 30 (a)(4).
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“The party seeking to take depositions by video-teleconferencing must establish a
legitimate reason for its motion.” Brown v. Carr, 253 F.R.D. 410, 412 (S.D. Tex. 2008) (citations
omitted). “Any party opposing such depositions has the burden to establish good cause as to why
they should not be conducted in such manner.” Brown v. Carr, 236 F.R.D. 311, 312 (S.D. Tex.
2006). “Generally, leave to take depositions by remote electronic means should be granted
liberally.” Brown, 253 F.R.D. at 412 (citing Jahr v. IU Int'l Corp., 109 F.R.D. 429, 431 (M.D.N.C.
1986) (addressing telephonic depositions) and Robertson v. Vandt, No. 1:03–cv–6070, 2007 WL
404896 (E.D. Cal. 2007) (granting request for a deposition by video-teleconference)
(unpublished)).
III. Analysis
In this situation the Court is once again asked to reevaluate whether or not it will require
in-person depositions. The Court, including undersigned, has before addressed this issue in light
of the Covid-19 Pandemic. See, e.g., Antares Mar. Pte Ltd. v. Bd. of Commissioners of Port of
New Orleans, No. CV 18-12145, 2020 WL 7022752 (Roby, M.J.) (E.D. La. Nov. 30, 2020); Ross
v. Dejarnetti, No. CV 18-11277, 2020 WL 7495555, at *4 (Roby, M.J.) (E.D. La. Dec. 21, 2020);
SAPS, LLC v. EZCare Clinic, Inc., No. CV 19-11229, 2020 WL 1923146, at *1 (Van Meerveld,
M.J.) (E.D. La. Apr. 21, 2020).
Admittedly, when those decisions were rendered, a vaccine was yet to be distributed and
made widely available to all adult-Americans. The Court is now asked to address in-person
attendance at deposition in light of the fact that vaccines have been released to the general public
and that the current standing order at the Eastern District of Louisiana suspending civil and
criminal jury trials is set to expire on June 7, 2021. See COVID 19, General Order (21-4) available
at: http://www.laed.uscourts.gov/attorney-information/rules-and-orders/general-orders.
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Here, the Court is of the opinion that Crosby is asking a lot and going on little.
First, these depositions are update depositions and by their very nature limited. There is
nothing inherently complex about these depositions nor any indication that these depositions are
too voluminous to manage through remote means.
Second, while the vaccines may have some proven benefit, to say it completely safeguards
one of all risk is false. The fact remains that the vaccine does not comport 100% efficacy and postvaccination infections are common,1 and, should a person suffer from a compromised immune
system, the vaccine can have an even greater reduced efficacy.2 Moreover, in addition to
potentially still contracting the virus, the science is not clear whether people who are vaccinated
can transmit the virus to others.3
The Court, here, makes no assumptions about the health status of those needed to conduct
the depositions as, for many, the choice to return to a “normal” society and/or not participate in
social distancing practices is a personal one. As is alluded to, the Court does not know the
vaccination status of claimants, their counsel, the court reporter, or any support staff. The Court
will not assume because counsel for Tetra and Crosby are vaccinated that this means that others
are as well. In fact, current empirical data suggest only 25.83% of Louisiana’s current population
is vaccinated.4 Nor will the Court require the others involved in this deposition give their

1

See
https://www.theatlantic.com/science/archive/2021/03/vaccine-breakthrough-cases/618330/;
https://www.washingtonpost.com/health/how-did-that-happen-catching-covid-19-even-after-beingvaccinated/2021/04/23/a31983a6-a21b-11eb-a774-7b47ceb36ee8_story.html.
2

See
https://abcnews.go.com/Health/covid-19-vaccines-offer-complete-protection-peoplecompromised/story?id=77248931.
3

See https://www.healthline.com/health-news/if-youre-vaccinated-can-you-transmit-covid-19-what-weknow#Vaccines-may-reduce-virus-infectiousness.
4

See https://data.news-leader.com/covid-19-vaccine-tracker/louisiana/22/.
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vaccination status or auto-immune status and questions potential HIPAA implications of requiring
such.
In addition, the Court makes reference to the concept of social distancing and social pods
or groups. While counsel for Crosby states that they can safely socially distance in one deposition
room, the Court is not as sure. Since the beginning of this pandemic, the CDC has urged the
American people to avoid close interactions with those outside their core pod, especially those
larger group interactions. In adhering to this guidance, it is then logical for the Court then to assume
that two or three groups of people in smaller numbers in separate rooms would be safer than
requiring all the people necessary for this deposition in one single room.
Next, the Court addresses the fact that jury trials are set to resume June 7, 2021. The Court
first notes, the standing General Order suspending jury trials in this district has been amended
numerous times to further push back the dates in accordance with newer CDC guidance, scientific
data, and empirical information. Moreover, while it may be true the Court is currently acting under
the assumption that jury trials are to resume within the next two months, the fact of the matter
remains that they have yet to actually begin. In this case, the depositions are currently set for May
5, 2021. R. Doc. 238-2. That is more than one month before the suspension of jury trials is set to
expire. The Court, therefore, finds this argument as presented by Crosby of no great import.
The Court notes in its research on the matter where no other courts have yet begun to
require deponents attend deposition in-person despite the release of vaccinations. See, e.g., U.S. v.
Berglund, No. 20CR00200SRNTNL, 2021 WL 1589548, at *2 (D. Minn. Apr. 23, 2021) (noting
deposition could be taken by remote video means even though vaccination rates increasing where
some deponent refuse to travel until vaccine fully administered and other refused the vaccine—
also noting age and risks associated where one deponent was elderly and another lived with his
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elderly father); Novello v. Progressive Express Ins. Co., No. 8:19-CV-1618-KKM-JSS, 2021 WL
1597937, at *1 (M.D. Fla. Apr. 23, 2021) (granting motion for witnesses to testify by video means
during jury trial). While districts differ based on regional differences, variants, and possibilities
for a surge, the consensus remains that forcing someone to attend an in-person proceeding who
feels it would be unsafe for their health when remotely means are just as efficient and practical is
quite unnecessary.5
Finally, the Court notes that by agreement counsel had previously agreed to conduct these
depositions by remote means via Zoom. The Court will not allow Petitioners to now renege on its
earlier agreement considering the totality of circumstances aforementioned.
Still, to alleviate any concerns that opposing counsel may have in conducting remote
depositions, the Court institutes the following protocol:
1. The applicable Federal Rules of Civil Procedure and Eastern District of Louisiana Local
Rules shall be followed at all times.
2. The court reporter for the deposition conducted via video conference shall administer the
oath or affirmation to the deponent remotely and transcribe the deposition testimony
remotely.
3. No other attendees other than the parties to the subject lawsuit, their representative counsel,
and counsel for the witness, shall be allowed to participate in the video conference
deposition without prior consent of all counsel. This includes appearing individually within
the video conference platform and/or being present within the room where the attendee is
viewing the videoconference deposition.

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The Court further notes that the Parish of Orleans in particular has been quite strict in the easing of any
Covid-19 guidelines.
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4. No participant in the deposition may utilize the “chat” function (or similar private
communication function) of the video-conference platform, except to facilitate the sharing
of documents during the deposition. In no event shall the “chat” function be used for any
counsel to communicate directly with the witness.
5. At no time during the deposition shall any counsel text, message, email, or transmit any
messages to the witness(es) in order to help respond to any and all questions.
6. Before the witness is sworn, all cellphones shall be placed in the silent mode. All parties
and counsel will disable notifications on their devices to avoid disruption of the audio and
video stream during the deposition.
7. The witness and all counsel or parties appearing on the record shall state their appearances
clearly for the record, and they shall not disable their cameras during the deposition unless
there is a break.
8. All documents or other exhibits, except those to be used for impeachment, shall be shared
with all counsel no later than ten (10) days prior to the deposition and said documents shall
be bate-stamped, marked as exhibits, or both. No later than five (5) business days prior to
the deposition all documents shall be provided to the court reporting service. Those
documents or other exhibits used for impeachment must be shared with all participants
when introduced on the record via the share screen, or similar feature on the platform and
attached as an exhibit to the deposition.
Antares, 2020 WL 7022752, at *5 (citing Ross v. Dejarnetti (2:18-cv-11277-NJB-KWR), July 8,
2020 Minute Entry and Order (R. Doc. 64)).
IV.

Conclusion
Accordingly,
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IT IS ORDERED that Claimants’ Motion to Quash In-Person Depositions (R. Doc.
238) is GRANTED.
New Orleans, Louisiana, this 29th day of April 2021.

KAREN WELLS ROBY
CHIEF UNITED STATES MAGISTRATE JUDGE

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