Johnston v. Transocean Offshore Deepwater Drilling, Inc. et al
Filing
51
ORDER AND REASONS: IT IS ORDERED that the 35 motion is GRANTED. IT IS ORDERED that all additional written responses, together with actual production of additional materials, if any, must be provided no later than April 24, 2019 as set forth in document. Signed by Magistrate Judge Joseph C. Wilkinson, Jr on 4/10/2019. (mmv)
UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF LOUISIANA
JACOB W. JOHNSTON
CIVIL ACTION
VERSUS
NO. 18-491
TRANSOCEAN OFFSHORE
DEEPWATER DRILLING, INC. ET AL.
SECTION “E” (2)
ORDER AND REASONS ON MOTION
This is a marine personal injury case instituted by Jacob W. Johnston ("Johnston
or "plaintiff") against Transocean Offshore Deepwater Drilling, Inc. ("Transocean") and
Spencer-Ogden, Inc. ("Spencer-Ogden"). According to his complaint, Johnston, an
employee of Spencer-Ogden, was injured while working as a borrowed employee for
Transocean aboard its vessel, the M/V DEEPWATER THALASSA. Complaint, Record
Doc. No. 1 at ¶¶ 4-6. Plaintiff seeks relief as a seaman under the Jones Act, 46 U.S.C. §
30101 et seq., alleging negligence and unseaworthiness, and damages, including punitive
damages, and maintenance and cure benefits under general maritime law. Id. at 9-12.
Plaintiff filed a motion to compel discovery responses from defendant Transocean.
Record Doc. No. 35. Transocean filed a timely opposition memorandum. Record Doc.
No. 40. Plaintiff was permitted to file a reply. Record Doc. Nos. 46, 47, 48. Having
considered the written submissions of the parties, the record and the applicable law, IT
IS ORDERED that the motion is GRANTED for the following reasons.
As an initial matter, defendant's “General Objections” to plaintiff's discovery
requests, Record Doc. No. 35-2 at pp. 1–3, fail to comply with the specificity
requirements of the applicable rules and only obfuscate and confuse both plaintiff and
the court concerning what objections defendant is actually making, what information it
has actually produced and whether a complete response has been made. The court will
ignore the “General Objections” asserted in defendant's responses. “In every respect
these objections are text-book examples of what federal courts have routinely deemed
to be improper objections.” St. Paul Reinsurance Co., Ltd. v. Commercial Fin. Corp., 198
F.R.D. 508, 512 (N.D. Iowa 2000) (citing Burns v. Imagine Films Entm’t, Inc., 164
F.R.D. 589, 592–93 (W.D.N.Y. 1996) (general objections not sufficiently specific to
allow court to ascertain objectionable character of discovery request); Chubb Integrated
Sys. Ltd. v. Nat’l Bank of Wash., 103 F.R.D. 52, 58 (D.D.C. 1984) (“General objections
are not useful to the court ruling on a discovery motion. Nor does a general objection
fulfill [a party’s] burden to explain its objections.”)); accord Sream, Inc. v. Hassan Hakim
& Sarwar, Inc., 2017 WL 878704, at *2 (S.D. Fla. Mar. 6, 2017); Fischer v. Forrest, 2017
WL 773694, at *3 (S.D.N.Y. Feb. 28, 2017); see also McLeod, Alexander, Powel &
Apffel, P.C., 894 F.2d at 1485 (The “party resisting discovery must show specifically
how . . . each interrogatory is not relevant or how each question is overly broad,
burdensome or oppressive.”) (citation omitted); Liguria Foods, Inc. v. Griffith Labs.,
Inc., 2017 WL 976626, at *9 (N.D. Iowa Mar. 13, 2017) (citing St. Paul Reinsurance Co.,
198 F.R.D. 512) (by the same judge who wrote St. Paul Reinsurance Co.: “The key
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requirement in both Rules 33 and 34 is that objections require ‘specificity’” and “there
is precedent too ample to cite, in both the Eighth Circuit and the Seventh Circuit, . . .
demonstrating the insufficiency of” boilerplate objections).
All of defendant's "General Objections" are overruled and stricken. If defendant
has a specific objection to a particular request, it must state the objection “with
specificity.” Fed. R. Civ. P. 33(b)(4), 34(b)(2)(B); accord McLeod, Alexander, Powel &
Apffel, P.C. v. Quarles, 894 F.2d 1482, 1485 (5th Cir. 1990). The court will consider
only objections included in the particular response at issue. To the extent that defendant
is ordered to supplement its discovery responses, defendant must delete any references
to “General Objections.”
Plaintiff's motion is granted as to Requests for Production Nos. 2, 3, 8, 9, 11, and
13. All objections are overruled. Defendant has provided vague written responses to
these requests, with objections, that state "could not locate,""see attached" or some
similar variation. Record Doc. No. 40-1 at pp. 4-8. Defendant's present written responses
are insufficient because they assure neither plaintiff nor the court that complete
production has been made, or that defendant has no responsive materials in its
possession, custody or control. Defendant must provide new written responses to these
requests, as limited herein and signed pursuant to Fed. R. Civ. P. 26(g), clearly stating,
without objections, either that defendant has produced all responsive materials in their
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possession, custody or control, and make actual production, or that they have no
responsive materials in their possession, custody or control.
While defendant has asserted attorney-client privilege and/or work product
objections to these requests, it has failed to provide a privilege log, thereby waiving its
objections, and has also failed to properly substantiate these objections by submitting
evidence necessary to sustain its burden of proof to establish these objections.
Fed. R. Civ. P. 26(b)(5)(A) provides:
When a party withholds information otherwise discoverable by claiming
that the information is privileged or subject to protection as trialpreparation material, the party must: (i) expressly make the claim; and (ii)
describe the nature of documents, communications, or tangible things not
produced or disclosed – and do so in a manner that, without revealing
information itself privileged or protected, will enable other parties to assess
the claim.
(emphasis added). The use of the word "must" in the privilege log requirement indicates
that production of a privilege log is mandatory, not to be ignored as Transocean has done.
When a party has failed to comply with the Rule 26(b)(5) requirement to provide
a privilege log, courts have found that all assertions of privilege or other protections
against the requested discovery have been waived. E.g., Burlington N. & Santa Fe Ry.
v. U.S. Dist. Court, 408 F.3d 1142, 1149-50 (9th Cir. 2005); Pensacola Firefighters’
Relief Pension Fund v. Merrill Lynch Pierce Fenner & Smith, Inc., 265 F.R.D. 589, 59294 & n.1 (N.D. Fla. 2010); Lee v. State Farm Mut. Auto. Ins. Co., 249 F.R.D. 662, 683
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(D. Colo. 2008); Lugosch v. Congel, 219 F.R.D. 220, 239 (N.D.N.Y. 2003); Nagele v.
Elec. Data Sys. Corp., 193 F.R.D. 94, 108 (W.D.N.Y. 2000); Bordonaro v. Union
Carbide Corp., No. 93-3355, 1995 WL 234545, at *2 (E.D. La. Apr. 20, 1995); Burns v.
Imagine Films Entm’t, Inc., 164 F.R.D. 589, 594 (W.D.N.Y. 1996); Mass. Sch. of Law
at Andover, Inc. v. Am. Bar Ass’n, 914 F. Supp. 1172, 1178 (E.D. Pa. 1996); see also
Haid v. Wal-Mart Stores, Inc., No. 99-4186-RDR, 2001 WL 964102, at *2 (D. Kan. June
25, 2001) (“As plainly indicated by Rule 26(b)(5), the question whether materials are
privileged is for the court, not the [party asserting the privilege], to decide, and the court
has a right to insist on being presented with sufficient information to make that
decision.”).
In addition, the party resisting discovery, Transocean in this instance, by asserting
any privilege, including work product protection, bears a burden of proof sufficient to
substantiate its privilege claims and cannot rely merely on a blanket assertion of
privilege. United States v. Newell, 315 F.3d 510, 525 (5th Cir. 2002); In re Santa Fe Int’l
Corp., 272 F.3d 705, 710 (5th Cir. 2001); Ingraham v. Planet Beach Franchising Corp.,
No. 07-3555, 2009 WL 1076717, at *1 (E.D. La. Apr. 17, 2009) (citing Hodges, Grant
& Kaufman v. United States, 768 F.2d 719, 721 (5th Cir. 1985)); Kiln Underwriting Ltd.
v. Jesuit High Sch., No. 06-04350, 2008 WL 108787, at *4-5 (E.D. La. Jan. 9, 2008)
(citing Hodges, 768 F.2d at 721); United States v. Impastato, No. 05-325, 2007 WL
5
2463310, at *2 (E.D. La. Aug. 28, 2007) (citing United States v. Harrelson, 754 F.2d
1153, 1167 (5th Cir. 1985); United States v. Kelly, 569 F.2d 928, 938 (5th Cir. 1978));
High Tech Comm’c’ns, Inc. v. Panasonic Co., No. 94-1477, 1995 WL 45847, at *1 (E.D.
La. Feb. 2, 1995)(citing Hodges, 768 F.2d at 721).
As one leading commentator has succinctly explained the procedure,
Once the proponent has properly asserted the privilege claim and the
requisite information about the allegedly privileged document provided to
the opponent, the proponent must substantiate all actual assertions about
the claim. This is usually done through supporting affidavits from
individuals with personal knowledge of the relevant facts, exhibits
attached to the motion and briefs, discovery responses, pleadings and other
undisputed facts. . . . To the extent that evidentiary support for the factual
basis of the privilege is not forthcoming, the claim is little more than a
bald, conclusory, or ipse dixit assertion. The court will deny such an
assertion because it forecloses meaningful independent inquiry by the
finder of facts (the judge) into the validity of the claim. . . . Although an
attorney’s word may be “taken on its face,” a privilege claim is not selfexecuting. It requires more proof than a conclusion by the party asserting
the claim (or his attorney) that it is justified.
P. Rice, Attorney-Client Privilege in the United States § 11:10 at 977-80 (Lawyers
Cooperative 1993) (emphasis added).
It is neither apparent nor self-evident from the face of these requests that the
materials sought are protected by either attorney-client privilege or the work product
doctrine. On the contrary, the titles of the requested materials (e.g. environmental
manuals, Management Review of Incident) indicate that they were more probably than
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not made in and for purposes of Transocean's ordinary course of business, rather than as
confidential attorney-client communications or in anticipation of litigation or trial.
Defendant's objections as to attorney-client privilege and/or work product are therefore
overruled because they have been waived and because Transocean has utterly failed to
meet its burden of proof.
Plaintiff's motion is granted as to Request for Production No. 14.1 Fed. R. Civ. P.
26(b)(1) provides, in pertinent part, that "[p]arties may obtain discovery regarding any
nonprivileged matter that is relevant to any party's claim or defense . . . ." (emphasis
added). Plaintiff seeks production of "complete copies of the 'Iron Roughneck Fatality
HSQ-HSE-OA-003' document referenced on page 5 of the produced 'Installing Auto
Slips'." Record Doc. No. 35-2 at p. 12. In its opposition, defendant argues that this
document is irrelevant . Record Doc. No. 40. Particularly, defendant references "a fatality
accident involving a piece of equipment known as an Iron Rough Neck [used to connect
and disconnect drill pipe]." Record Doc. No. 40 at p. 2. Defendant claims that this fatality
accident had nothing to do with plaintiff's accident because an Iron Rough Neck was not
in use at the time. Id.
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While plaintiff's motion states that he seeks documents responsive to Request for Production
No. 7, the Request at issue is in fact Request for Production No. 14. Record Doc. Nos. 35-2 at p. 12; 40-1
at p. 8.
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However, as plaintiff notes in his reply, defendant produced a document titled
"Controlled Procedure, Installing Auto Slips, Deepwater Thalassa" ("Controlled
Procedure document") in response to plaintiff's First Request for Production of
Documents. Record Doc. Nos. 49; 49-1 at pp. 15–16 (Plaintiff's Request for Production
of Documents No. 19, "Please produce a complete copy of any and all job procedure
forms, checklists, Job Safety Analysis . . . or other documents relative to the
job/task/procedure
being
performed
by
plaintiff
at
the
time
of
the
accident/injuries/event.") (emphasis added). "On page 5 of the Controlled Procedure
document, Transocean sets forth its first step-by-step procedure in this document, which
instructs the floorhands (plaintiff . . . at the time of this accident) [as follows:]
'WARNING: Ensure all personnel are clear at all times of the Iron Roughneck.' The next
line under the Warning states, '('Iron Roughneck Fatality HSQ-HSE-OA-003)'." Record
Doc. No. 49 at p. 2. Because this document explains the procedure in place at the time
of plaintiff's accident and explicitly includes a warning to workers like plaintiff about the
Iron Roughneck Fatality report, the Iron Roughneck Fatality report is relevant and
discoverable in accordance with Rule 26(b)(1).
IT IS ORDERED that all additional written responses, together with actual
production of additional materials, if any, must be provided no later than April 24, 2019.
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10th
New Orleans, Louisiana, this _________ day of April, 2019.
JOSEPH C. WILKINSON, JR.
UNITED STATES MAGISTRATE JUDGE
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