Dufrene v. American Tugs, Inc.

Filing 62

ORDER that the Motion to Quash and for Protective Order 12 and the Plaintiffs Motion to Compel Defendant to Respond to Discovery 18 are GRANTED IN PART and DENIED IN PART as outlined herein. FURTHER ORDERED that the Motion to Compel Production of Recorded Phone Calls 13 is GRANTED. FURTHER ORDERED that Plaintiffs Motion to Compel Tug and Barge Solutions, L.L.C. to Respond to Subpoena Duces Tecum and for Contempt 52 is GRANTED IN PART for the reasons expressed on pages 13-17 supra. FURTHE R ORDERED that the submission date on Plaintiffs Motion to Compel Tug and Barge Solutions, L.L.C. to Respond to Subpoena Duces Tecum and for Contempt 52 is CANCELLED but that for Plaintiffs Second Motion to Compel Defendant to Respond to Discovery and for Sanctions 51 remained in place on the briefs on 12/5/2018. The Court denies all requests for sanctions and attorneys fees at this time. Signed by Magistrate Judge Daniel E. Knowles, III on 12/10/2018. (caa)

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF LOUISIANA
ANNE DUFRENE

CIVIL ACTION

VERSUS

NO. 18-554

AMERICAN TUGS, INC.

SECTION “S” (3)
ORDER

Before the Court are the Motion to Quash and for Protective Order [Doc. #12], the Motion
to Compel Production of Recorded Phone Calls [Doc. #13], and Plaintiff’s Motion to Compel
Defendant to Respond to Discovery. [Doc. #18]. The parties argued the first two motions at an
oral hearing, and the Court took the third under advisement with the first two motions after the
oral hearing. Having reviewed the pleadings and the case law, the Court rules as follows.
I.

Background
Defendant American Tugs, Inc. (“defendant” or “American Tugs”) owned, operated, and

controlled the tug AMAZING GRACE, a vessel in navigation on navigable waters, and employed
her crew. Decedent, Carey C. Dufrene, was employed as a Captain by defendant. On August 15,
2017, decedent was working as a Captain aboard the tug AMAZING GRACE in the Industrial
Canal when he allegedly fell down a set of interior stairs on the tug and sustained a significant
head injury. Decedent was allegedly found in an unconscious state by Autry Dufrene, one of the
tug’s deckhands, or Stephen Gros, the tug’s other captain. Jerry LeBlue, another deckhand, was
also on the tug at the time of the casualty. Decedent was revived and placed in bed. Later the same
day, decedent was found unconscious and unresponsive in his bed. Sometime thereafter, someone
called 911. The New Orleans Police Department and EMS arrived on the scene, but despite their

efforts, decedent could not be resuscitated and was pronounced dead. An autopsy and toxicology
screen were performed on decedent and revealed the presence of drugs in decedent’s system. 1
Plaintiff thus sues defendants, American Tugs, Belle Chasse Dry Dock L.L.C., and
Travelers Property Casualty Company 2 for compensatory damages in an amount reasonable under
the circumstances of this cause, for decedent’s pre-terminal pain and suffering and mental anguish,
plaintiff’s past, present and future mental pain, suffering, and anguish, loss of consortium and
society, loss of financial support and services, loss of nurture and guidance, funeral and burial
expenses, for punitive damages and reasonable attorney’s fees for the unreasonable, arbitrary and
capricious failure to provide cure, for legal interest on those amounts for which plaintiff is entitled
to obtain legal interest, costs, and for any additional general and equitable relief as the facts of this
lawsuit permits.
II.

The Motion to Quash and for Protective Order
On July 18, 2018, plaintiff issued two subpoenas duces tecum, one to Autry Dufrene, Sr.

and one to Autry Dufrene, Jr. Autry Dufrene, Sr. (the father of decedent) is the president and
owner of American Tugs, a small family-owned business, and Autry Dufrene, Jr., is his son (and
brother of decedent) and an employee of the company. The subpoenas seek the production of the
Dufrenes’ personal cell phones to extract all cell phone information and data from June 2017
through the present. The subpoenas also require that once this “more than a year’s worth” of “cell

The autopsy allegedly reveals that decedent died from a drug overdose, not that he simply had
drugs in his system.
2
Plaintiff added the last two defendants through her second amended complaint [Doc. #31] and
after the parties filed the instant motions. Only American Tugs is involved in these three motions.
1

2

phone information and data” has been extracted and/or retrieved, (1) all “cell phone information
and data” from June 15, 2017 through October 15, 2017 (a period of four months) and (2) all “cell
phone information and data” from October 16, 2017 to the present (a period of ten months) must
be produced. Counsel for plaintiff advised that she has an expert who would take possession of
the individuals’ and company’s phones and would retrieve and/or extract essentially all “cell phone
information and data” from the phones. On the same day, plaintiff propounded requests for
production that seek the same information as the subpoenas, and, in addition, similar information
from the boat phone and any company-controlled or company-related cell phones.
Defendant raises several arguments in opposition to the subpoenas and asks the Court to
quash them and to issue a protective order. Defendant first argues that it has standing to bring this
motion because the Dufrenes own and work for it. Defendant next raises the subject of the privacy
interests implicated by the subpoenas. Defendant notes that the subpoenas seek production of ALL
“cell phone information and data” and that such a broad request will invariably invade the privacy
of the Dufrenes. Citing case law, it notes that cell phones today have very large capacities to store
information that is used by individuals daily, including medical, financial, and other personal
information. It maintains that allowing such an intrusion into these men’s personal privacy should
not be permitted without some showing of necessity or further explanation from plaintiff.
Defendant also contends that the subpoenas are vague and overbroad because they give
plaintiff’s expert complete and exclusive control of these several phones and the ability to snoop
through all texts, emails, and other recorded data to essentially “fish” for possible communications
that purportedly relate to discussions about drugs (presumably including any possible references
3

to both legal and illicit drugs). Citing the Advisory Committee’s notes, defendant maintains that
the addition of provisions on testing and sampling electronically-stored information did not create
a routine right of direct access to such information, and courts should guard against undue
intrusiveness resulting from such inspecting or testing.
Defendant argues that there is no indication that plaintiff has attempted to discover the
information through less intrusive means and that it might be possible for her to discover the
information through the propounded discovery requests. Defendant seeks a protective order with
respect to these requests consistent with its request to quash the subpoenas that requires more
specific protocols and parameters so that all interested parties are clear on what can permissibly
be requested, how it will be extracted or retrieved, and how it will be produced to plaintiff.
For her part, plaintiff maintains that she seeks two types of documents related to drug use
and activity and one type related to the events that occurred surrounding decedent’s death. She
maintains that this information is relevant because it will reveal evidence of a drug culture at
American Tugs and that this drug culture was known by defendant; that there was a cover-up of
drug activity by the crewmembers on the tug and by defendant; that the crewmembers were using
drugs on the day of the casualty; that there were discussions about whether to obtain drug tests on
the crewmembers but which drug tests were delayed as a way to cover-up known or suspected
drug activity by crewmembers; and that the crew of the tug communicated with each other,
defendant, and others about the casualty and had an opportunity to develop a narrative of the
casualty. She argues that this evidence will support her claims that defendant failed to provide a
safe place to work, failed to provide competent crewmembers to perform vessel functions, failed
4

to exercise managerial control of the vessel operations, failed to exercise due care and caution
under the then existing circumstances, failed to call 911 or to evacuate decedent when he was
initially discovered with a head injury, and other acts of negligence and unseaworthy conditions.
She proposes the following protocol: (1) Retain forensic electronic evidence retrieval
expert Johnette Hassell to extract and/or to retrieve and download all cell phone information and
data for the period of June 15, 2017 through the present from the cell phones. (2) The requested
cell phones will be provided to Hassell and a chain of custody form will be maintained for each
cell phone. Hassell has advised that it could take from 30 minutes up to three hours to download
data from a cell phone, depending on how much information is stored on it. Once the download is
complete, the cell phones will be provided back to their owners. (3) Plaintiff and defendant will
discuss and agree upon a list of search terms to be used to identify relevant information in the
downloaded material. (4) Hassell will perform a search for any information related to the agreed
upon search terms. (5) Hassell will perform a search for all incoming and outgoing calls on the
date of the casualty. (6) Hassell will prepare a report containing all the information related to the
agreed upon search terms and a call log. (7) Hassell will provide her report to defense counsel for
review, so that he can review the information for relevance and to assert any privileges. (8)
Defendant will produce Hassell’s report to plaintiff, subject to any objections and a privilege log.
(9) Hassell will sign a non-disclosure/confidentiality agreement. (10) Plaintiff will bear the costs
of Hassell’s services.
Plaintiff maintains that she cannot obtain this information from another source because
decedent is dead, and defendant has withheld almost every document related to this accident except
5

the Coast Guard report. She contends that because she has narrowly tailored the requests, no
privacy interests are implicated.
Rule 26(b)(1) of the Federal Rules of Civil Procedure sets forth the scope and limitations
of permissible discovery. Parties may obtain discovery regarding any matter, not privileged, that
is relevant to the claim or defense of any party. “The party resisting discovery bears the burden of
showing why discovery should be denied.” Cole v. Towers Perrin Forster & Crosby, 256 F.R.D.
79, 80 (D. Conn. 2009).
As to the discovery of electronically stored information, Rule 34(a) provides that, “A party
may serve on any other party a request within the scope of Rule 26(b) . . . to produce and permit
the requesting party or its representative to inspect, copy, test, or sample any . . . electronically
stored information . . ..” Fed. R. Civ. P. 34(a)(1). “This right to information, however, is
counterbalanced by a responding party's confidentiality or privacy interests. A party is therefore
not entitled to a routine right of direct access to a party's electronic information system, although
such access may be justified in some circumstances.” Genworth Fin. Wealth Mgmt., Inc. v.
McMullan, 267 F.R.D. 443, 446 (D. Conn. 2010) (citing Notes of Advisory Committee on 2006
Amendments; internal quotations omitted).
The implication of the individual parties’ privacy interests in the data stored on their cell
phones persuades the Court to deny plaintiff’s motion in part at this time. This conclusion is
reinforced by the recent Supreme Court ruling in Riley v. California, 134 S. Ct. 2473 (2014), which
recognized, albeit in the criminal context, the privacy concerns implicated by the modern cell
phone. As the Court noted, the modern cell phone's immense storage capacity “has several
6

interrelated consequences for privacy. First, a cell phone collects in one place many distinct types
of information – an address, a note, a prescription, a bank statement, a video – that reveal much
more in combination than any isolated record. Second, the phone's capacity allows even just one
type of information to convey far more than previously possible.” Id. at 2489. The Supreme Court
further recognized that “[a]lthough the data stored on a cell phone is distinguished from physical
records by quantity alone, certain types of data are also qualitatively different.” Id. at 2490. In this
regard, the Supreme Court points to an internet search and browsing history that may reveal an
individual's private interests and concerns, such as “symptoms of disease, coupled with frequent
visits to WebMD.” Id. Indeed, this is precisely the information that may be implicated by plaintiffs'
search of the individual defendants' cell phones and with which the Court takes issue.
The subpoenas and requests for production are – in part – not proportional to the needs of
the case. Allowing the production of “all cell phone information and data” for a specific time
period implicate the privacy interests of the Dufrenes and will reveal a plethora of irrelevant and
potentially highly personal information. See Tingle v. Hebert, Civ. A. No. 15-626, 2017 WL
2536584, at *4-5 (M.D. La. June 8, 2017). Accordingly, regarding the two “Exhibit As” attached
to the subpoenas, the Court strikes subsection (a) under each request as overbroad and not
proportional to the needs of this lawsuit. The other requests in the subpoenas – which address
decedent, the event, incidents of drug testing, etc. – may reveal relevant information, however,
since they are narrowly tailored to the needs of this lawsuit and the underlying incident. Similarly,
and for the same reasons, with respect to Request for Production (“RFP”) Nos. 35 and 36, the
Court strikes subsection (a) as well as they are identical to subsections (a) in the two subpoenas.
7

Regarding the rest of the requests in the subpoenas and the second set of RFPs, defendant
shall respond no later than fourteen (14) days from the date of this Order. However, the Court
finds plaintiff’s method tedious, time-consuming, and potentially expensive. Thus, defendant
shall cull the appropriate cell phones, email accounts, and the like for responsive information and
produce said information after reviewing it for privilege. To the extent that defendant withholds
any responsive information on the ground of privilege, defendant shall simultaneously produce an
appropriate privilege log. The Court is convinced that defendant and its counsel are well aware of
the sanctions that may be imposed should responsive information be withheld.
III.

Motion to Compel Production of Recorded Phone Calls
This motion seeks to compel plaintiff to produce recordings in her possession, or accessible

to her, of phone conversations that a non-party witness, Jordan Dufrene, surreptitiously made while
speaking with unsuspecting employees of defendant and/or co-workers of decedent, the contents
of which are purportedly germane to issues in this litigation. Plaintiff disclosed that she has
possession of phone recordings between Jordan Dufrene, who is the surviving daughter of Carey
Dufrene, and (1) Autry Dufrene, Jr. from August 18, 2017; (2) Harold (Tom) Mitchell from August
26, 2017; and (3) Stephen Gros from September 12, 2017. Jordan Dufrene, not a party to this
litigation, called these individuals and, without their consent or knowledge, recorded their
conversations. Plaintiff plans to use these recordings at trial.
Counsel for defendant has spoken to two of the persons, Stephen Gros and Autry Dufrene.
Jr., whose conversations were recorded by Jordan Dufrene and can represent that they want copies
of these recordings before they are deposed. Their depositions are currently scheduled for August
8

15 and 22, 2018, respectively. 3 Defendant argues that plaintiff cannot hold onto the recordings of
phone conversations between non-party Jordan Dufrene and critical fact witnesses and employees
of American Tugs to the exclusion American Tugs or the witnesses themselves. Under the
circumstance through which these recordings were obtained, combined with the fact that two of
the witnesses so far have expressed a desire for copies of the recordings, plaintiff cannot
demonstrate good cause or any justifiable reason to unilaterally withhold the recordings. Lastly,
defendant seeks its fees and costs.
In her opposition, plaintiff admits the underlying factual allegations but argues that the
documents are protected by the attorney-client and/or work-product privileges, and she maintains
that defendant has not shown and cannot show that it has a substantial need for these materials to
prepare its case and that it cannot obtain their substantial equivalent without undue hardship. She
notes that defendant has control of witnesses Gros and Dufrene as they are still employees of
defendant, and defendant can readily talk to them about the facts and circumstances of decedent’s
casualty and death and their conversations with Jordan Dufrene.
She also notes that defendant also has in its possession and has refused to produce to
plaintiff the prior witness statements of Gros, Dufrene, and LeBlue that were obtained by
defendant shortly after the casualty. Plaintiff submits that if the Court orders her to produce the
phone recordings on the basis that they are not privileged or are excepted from privilege, then the

It is not clear that these depositions proceeded as scheduled given that the District Court has only
recently signed an amended scheduling order. [Doc. #50].
3

9

Court should also order defendant to produce its witness statements of Gros, Dufrene and LeBlue
for the same reasons. 4
She maintains that the Gros, Dufrene, and Mitchell recordings discuss information related
to activities that were going on at and/or around the time of decedent’s casualty, which activity
contradicts information contained in the police and coroner’s reports of the casualty and
contradicts information provided by defendant in its discovery responses. She argues that such
contradictions and/or inconsistencies are evidence of untruthfulness.
Citing case law, she contends that the Court has considerable discretion in allowing her to
withhold the recordings for good cause until after the depositions of the witnesses even if it is a
prior statement. She argues that delaying production of the phone recordings until after the
witnesses’ depositions would serve the interests of justice because it would enable her to use the
recordings for impeachment purposes and to uncover inconsistencies and evidence of
untruthfulness. She is willing to turn over the tapes after the depositions or to the Court for in
camera review, which she has done.
“While statements of a party obtained by the opposing party might be considered work
product, the second paragraph of Rule 26(b)(3) creates an exception to the protection generally
provided for work-product material and gives a party an affirmative right to production of his own
statements.” Miles v. M/V Miss. Queen, 753 F.2d 1349, 1351 (5th Cir. 1985). This provision was
added to Rule 26 through the 1970 amendments and made a party's statement “discoverable as of
right.” Id. (quoting 8 C. Wright and A. Miller, FEDERAL PRACTICE AND PROCEDURE, §
4

Because no formal motion has been filed as to this relief, the Court will not address it.

10

2027 at 238). The Fifth Circuit has explained that Rule 26(b)(3)(C) is “mandatory, not
discretionary.” Samsung Elecs. Am. Inc. v. Yang Kun "Michael" Chung, – F.R.D. –, 2017 WL
896897, at *16 (N.D. Tex. Mar. 7, 2017) (quoting Miles, at 1351); see also Mayfield v. DeSoto
Par. Police Jury, Civ. A. No. 15-2374, 2017 WL 4019437, at *2 (W.D. La. Sept. 12, 2017).
Further, even if Rule 26(b)(3)(C) was not an exception to the work product doctrine, federal
courts in this state have held that the recording of conversations without the other party’s
knowledge vitiated any claimed privilege or immunity. See Pfeifer v. State Farm Ins. Co., Civ. A.
No. 96-1895, 1997 WL 276085, at *3 (E.D. La. May 22, 1997) (“Pfeifer's conduct in
surreptitiously taping conversations in which he deliberately engaged unsuspecting coworkers
vitiates the qualified protection of Rule 26(b)(3).”); Williams v. Gunderson Rail Servs., L.L.C., No.
07-0887, 2008 WL 145251, at *3 (W.D. La. Jan. 14, 2008) (“clandestine, unconsented recording
of the conversations vitiated the work product privilege. Thus, the tapes are discoverable.”); Griffin
v. Javeler Marine Servs., L.L.C., No. 15-106, 2016 WL 1559170, at *2 (W.D. La. Apr. 18, 2016)
(holding that Griffin's act of secretly recording the conversations he had with defendants . . .
vitiates any otherwise applicable work-product protection afforded the interviews.); Mayfield,
2017 WL 4019437, at *2.
The Court finds that plaintiff has waived any claim of privilege here. Jordan is neither an
attorney nor was she acting on the advice of counsel when she surreptitiously recorded the
conversations. Neither would that matter. Because Jordan recorded them without the knowledge
of the other party, any privilege is waived. This holding is in line with virtually all cases dealing
with this issue that have held that clandestine recordings of conversations with potential fact
11

witnesses, whether made by a party or by counsel, before or after counsel is consulted, are not
shielded under the work product doctrine. See Smith v. WNA Carthage, L.L.C., 200 F.R.D. 576,
578 (E.D. Tex. 2001); Otto v. Box USA Group, Inc., 177 F.R.D. 698, 701 (N.D. Ga. 1997); SeaRoy Corp. v. Sunbelt Equip. & Rentals, Inc., 172 F.R.D. 179, 183 (M.D.N.C.1997); Robertson v.
Nat’l R.R. Passenger Corp., No. Civ. A. 98-1397, 1999 WL 199093, *2 (E.D. La. Apr. 8, 1999);
Pfeifer v. State Farm Ins. Co., No. Civ. A. 96-1895, 1997 WL 276085, *2 (E.D. La. May 22, 1997);
Giladi v. Albert Einstein Coll. of Medicine, No. 97 Civ. 9805(DC), 1998 WL 183874, *1 (S.D.N.Y.
Apr. 15, 1998).
That issue resolved, the issue now is one of timing given that plaintiff has agreed to produce
the calls but seeks to hold the depositions of the recorded parties before producing the
conversations to defendant. Plaintiff argues that, even if the Court compels her to produce the
tapes, she should be permitted to produce them after the depositions of the taped witnesses in order
to use them for impeachment purposes. Because of the reasons already outlined and because
plaintiff has adduced no convincing evidence that compels this Court to deviate from the general
rule of liberal pre-trial discovery, she must produce the tapes prior to the depositions of the taped
witnesses. See Smith, 200 F.R.D. at 579 (ordering production of secretly-recorded tapes before
deposition); Robertson, 1999 WL 199093, at *2 (exercising discretion to order that secretlyrecorded tapes be produced before any depositions of the taped witnesses); Giladi, 1998 WL
183874, at *1 (holding that secretly recorded tapes, including ones with plaintiff's statements, had
value beyond impeachment). In this context, the federal rules will not allow plaintiff to hide the
ball.
12

IV.

Plaintiff’s Motion to Compel Defendant to Respond to Discovery
Plaintiff challenges the sufficiency of the responses of many of defendants’ responses to

her discovery requests. The Court addresses each seriatim.
Interrogatory (“Int.”) Nos. 7, 9, 10, and 11 and RFP nos. 4, 6, and 8:
These requests seek information and documents related to accident reports, incident
reports, injury reports, statements, investigative reports, and any other communications, writings
and/or reports, related to decedent’s casualty. They also request information and documents related
to any root cause analysis or similar analysis with respect to decedent’s casualty.
After responing, defendant withheld:
(1)
(2)
(3)
(4)
(5)
(6)
(7)
(8)
(9)

two personal accident/illness forms (both dated 8/15/17);
incident report (dated 8/15/17);
worksheets and lessons learned related to the casualty (both dated 8/15/17);
operational risk assessment (undated);
information discharge report (undated);
statement of Stephen Gros (dated 8/15/17);
statement of Autry Dufrene, Jr. for the U.S. Coast Guard (dated 9/1/17);
statement of Jerry LeBlue for the U.S. Coast Guard (dated 9/6/17); and
accident investigation safety meeting report (undated).

Defendant is amenable to producing (7) and (8) given that they were prepared for a
government agency. The motion is thus moot as to these two requests. That leaves (1)-(6) and (9),
to which defendant maintains its work-product privilege objection given its argument that the
materials were prepared by Marcos Carlucci, an employee of Tug and Barge Solutions, in
anticipation of litigation. 5 Plaintiff counters by maintaining that defendant prepared the materials

Tug and Barge Solutions is a company that provides professional service in marine safety and
casualty investigations.
5

13

in the ordinary course of business and that she has substantial need for the production of the
documents as she cannot obtain them from more less intrusive sources. 6
The work-product doctrine is codified in Rule 26(b)(3) of the Federal Rules of Civil
Procedure. Conoco v. Boh Bros. Constr. Co., 191 F.R.D. 107, 117-18 (W.D. La. 1998). This
doctrine 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. Id. at 118; see Hickman v. Taylor, 329 U.S. 495 (1947). The party who is seeking the
protection of the work-product doctrine has the burden of proving that the documents were
prepared in anticipation of litigation. Boh Bros., 191 F.R.D. at 117; In Re Leslie Fay Cos. Sec.
Litig., 161 F.R.D. 274, 280 (S.D.N.Y. 1995).
The work-product doctrine does not protect materials assembled in the ordinary course of
business, pursuant to regulatory requirements, or for other non-litigation purposes. Nat'l Union
Fire Ins. Co. of Pittsburgh, Pa. v. Murray Sheet Metal Co., Inc., 967 F.2d 980, 984 (4th Cir.1992);
Guzzino v. Felterman, 174 F.R.D. 59, 63 (W.D. La. 1997) (citing United States v. El Paso Co.,
682 F.2d 530 (5th Cir. 1982)). The threshold determination that the court must make is whether
the documents sought to be protected were, in fact, prepared in anticipation of litigation or whether
they were prepared in the ordinary course of business. Upjohn Co. v. United States, 449 U.S. 383
(1981); Caremark, Inc. v. Affiliated Computer Sys., Inc., 195 F.R.D. 610, 614 (N.D. Ill. 2000). The
Fifth Circuit has indicated that a document is prepared in anticipation of litigation “as long as the
Defendant also objected to the production of some of these documents on the ground that they
constitute subsequent remedial measures. Because defendant has not briefed that issue, the Court does not
address it.
6

14

primary motivating purpose behind the creation of the document was to aid in possible future
litigation.” United States v. Davis, 636 F.2d 1028, 1039 (5th Cir. 1981). To determine the primary
motivation for the creation of a document, courts look to various factors, including, “the retention
of counsel and his involvement in the generation of the document and whether it was a routine
practice to prepare that type of document or whether the document was instead prepared in
response to a particular circumstance.” Elec. Data Sys. Corp. v. Steingraber, No. 4:02 CV 225,
2003 WL 21653414, at *5 (E.D. Tex. July 9, 2003) (citing Piatkowski v. Abdon Callais Offshore,
L.L.C., No. Civ. A. 99-3759, 2000 WL 1145825, at *2 (E.D. La. Aug. 11, 2000)). “The
involvement of an attorney is not dispositive of the ‘in anticipation of litigation’ issue.
Nevertheless, involvement of an attorney is a highly relevant factor . . . making materials more
likely to have been prepared in anticipation of litigation.” Wikel v. Wal-Mart Stores, Inc., 197
F.R.D. 493, 495 (N.D. Okla. 2000). In addition, “[t]he mere fact that a document is prepared when
litigation is foreseeable does not mean the document was prepared in anticipation of litigation. . .
.” Arkwright Mut. Ins. Co. v. Nat'l Union Fire Ins. Co., 19 F.3d 1432, 1994 WL 58999, at *3 (6th
Cir. 1994) (citing Nat'l Union Fire Ins. Co. v. Murray Sheet Metal Co., 967 F.2d 980, 984 (4th
Cir. 1992)). Thus, “[i]f the document would have been created regardless of whether the litigation
was also expected to ensue, the document is deemed to be created in the ordinary course of business
and not in anticipation of litigation.” Global Oil Tools, 2013 WL 1344622, at * 6 (citing S. Scrap
Mat'l Co. v. Fleming, No. Civ. A. 01–2554, 2003 WL 21474516, at *6 (E.D. La. June 18, 2003);
Piatkowski v. Abdon Callais Offshore, L.L.C., No. 99-3759, 2000 WL 1145825, at *1 (E.D. La.
Aug, 11, 2000)).
15

Here, defendant had not retained current counsel at the time of Carlucci’s report, and
Carlucci contacted no attorney nor does it appear that he worked at the direction of any attorney.
This weighs against a finding that the work-product privilege applies here. In addition, it is a
routine practice in the maritime industry to prepare reports and to take statements, etc. after any
accident. In St. James Stevedoring Co. Inc. v. Femco Mach. Co., 473 F.R.D. 431, 433-34 (E.D.
La. 1997), the court cited with approval Spaulding v. Denton, 68 F.R.D. 342 (D. Del. 1975), in
which the court held that the motivating factor behind a defendant’s investigation after an accident
was to “find out everything possible, as soon as possible, after the accident.” St. James, 431 F.R.D.
at 433-34 (citing Spaulding, 68 F.R.D. at 346). The Spaulding court concluded that while the
insurer knew at the time when it had hired the marine surveyors that “there would be some sort of
claim,” until more was learned about the accident, “litigation was only a possibility. Indeed,
acquisition of such knowledge would appear to have been the purpose of the first two [marine
surveyor] reports.” 68 F.R.D. at 346. And while defendant here argues that the severity of the
accident meant only one thing – i.e., that litigation would follow – that does not defeat that
maritime companies routinely prepare these reports immediately following an accident, anticipated
litigation or not. See Carroll v. Praxair, Inc., No. 2:05CV00307, 2006 WL 1793656, at *2 (W.D.
La. June 28, 2006) (citing Binks Mfg. Co. v. Nat’l Presto Indus., Inc., 709 F.2d 1109, 1119 (7th
Cir. 1983) (“If in connection with an accident or an event, a business entity in the ordinary course
of business conducts an investigation for its own purposes, the resulting investigative report is
produceable in civil pre-trial discovery.”)). The Court finds that defendant has not met its burden

16

to demonstrate that the documents created by Carlucci would not have been created in the ordinary
course of investigating this or a similar accident.
Moreover, given that Tug and Barge Services is a company that provides professional
service in marine safety and casualty investigations, the Court has no information as to whether
defendant utilizes the company routinely when it has a need for an accident investigation.
Piatowski, 2000 WL 1145825, at *3. In addition, defendant admitted that much of Carlucci’s
investigation was to prepare the reports for the Coast Guard, to determine the cause of the casualty,
and to determine any post-accident remedial measures. This belies defendant’s arguments that the
sole purpose of Carlucci’s investigation was in anticipation of litigation. Simply put, the
information provided to the Court does not satisfy defendant's burden of demonstrating that the
primary motivating purpose in securing the witness statements and manufacturing the reports was
in furtherance of a sufficiently identifiable resolve to litigate, rather than a more or less routine
investigation of a possibly resolvable claim. See Fine v. Bellefonte Underwriters Ins. Co., 91
F.R.D. 420, 423 (S.D.N.Y. 1981). 7
RFP Nos. 17, 18, and 19:
These RFPs seek a complete copy of Autry Dufrene, Jr.’s, Steven Gros’, and Jerry
LeBlue’s personnel files. Plaintiff argues that these files are relevant to the extent that they contain

Plaintiff recently filed a Motion to Compel Tug and Barge Solutions, L.L.C. to Respond to
Subpoena Duces Tecum and for Contempt [Doc. 52], in which she reinforces these arguments by noting
Carlucci’s inconsistent statements as to, inter alia, who engaged him to conduct the investigation, why he
conducted the investigation, and to whom he disclosed the documents related to the investigation. Because
the Court has ruled in plaintiff’s favor on this issue, this motion is also granted in part for the reasons
outlined in this section.
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any certifications, licenses and/or training received and/or obtained by these individuals, any
performance evaluations, any training and orientation forms, any company policies and
procedures, any employment forms, any employment applications, any work status reports, any
history of employment, termination, and reprimands, and any drug tests. Plaintiff maintains that
any documents that may have personal (such as social security numbers, bank account numbers,
etc.) or medical information can be redacted by defendant prior to production.
While defendant argues that personnel files of non-party employees are irrelevant (except,
perhaps, in discrimination lawsuits), defendant has provided to plaintiff’s counsel a list of the
contents of the personnel files that are available to demonstrate that the files do not contain any
relevant or particularly noteworthy documents. Defendant maintains that if the plaintiff can
identify the excerpts from the personnel files that she wants, and she can demonstrate that they are
relevant, American Tugs will consider producing such records.
Defendant’s solution is no more than a subtle begging of the question: This Court has no
doubt that even were plaintiff to identify the excerpts that she wants from the personnel files,
defendant would still dispute their relevance, and this may lead to further motion practice.
Accordingly, the Court resolves this dispute here.
In the premiere case on personnel file production in this jurisdiction, the Fifth Circuit held
in Coughlin that the district court was incorrect in restricting discovery of personnel files. Coughlin
v. Lee, 946 F.2d 1152, 1155-57 (5th Cir.1991). The plaintiffs in Coughlin were former deputy
sheriffs who claimed that they were wrongfully discharged. Id. The deputies argued that the cited
reason for their discharge was pretextual and sought discovery of personnel files within the
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department to show that other employees who had committed similar infractions had not been
dismissed. The Fifth Circuit found that the district court had failed to weigh the competing privacy
and discovery interests at issue, and then ordered the district court on remand to consider the ten
factors outlined in Frankenhauser v. Rizzo, 59 F.R.D. 339, 344 (E.D. Pa. 1973). Coughlin, 946
F.2d at 1160.
Frankenhauser, a lawsuit under 42 U.S.C. § 1983, arose from the fatal shooting of an
unarmed man following an encounter and chase in a Philadelphia dyeworks. Frankenhauser, 59
F.R.D. at 339-40. The plaintiffs sought discovery of the defendants’ investigation materials
relating to the decedent, and the government asserted executive privilege. The Frankenhauser
court held that “when the executive privilege is asserted, the court must balance the public interest
in the confidentiality of governmental information against the needs of a litigant to obtain data. . .
. ” Id. at 344. The court then enumerated ten factors, six of which are relevant in a civil case against
a private defendant such as this one: (1) “the impact upon persons who have given information of
having their identities disclosed;” (2) “whether the information sought is factual data or evaluative
summary;” (3) “whether the party seeking the discovery is an actual or potential defendant in any
criminal proceeding either pending or reasonably likely to follow from the incident in question;”
(4) whether the plaintiff's suit is non-frivolous and brought in good faith;” (5) “whether the
information sought is available through other discovery or from other sources; and” (6) “the
importance of the information sought to the plaintiff's case.” Id. The court emphasized the
importance of particularity, calling for a “case to case” balancing of the variables before the court.

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Courts in the Eastern District of Louisiana continue to adhere to Coughlin and its reference
to Frankenhauser for cases involving personnel files. “Coughlin and its subsequent progeny make
clear that in resolving disputes regarding personnel files, the court is required to balance the
competing interests of the parties in a considered manner, with regard for the breadth of the federal
discovery rules.” George v. Entergy Servs., Inc., Civ. A. No. 09-3676, 2010 WL 3802452, at *4
(E.D. La. Sept. 17, 2010); see also Eckstein Marine Serv., Inc. v. M/V Basin Price, Basin Offshore,
Inc., 168 F.R.D. 38, 40 (W.D. La. 2009) (allowing discovery of a personnel file after in camera
review and noting that “the proper approach in deciding whether personnel files should be
disclosed is to balance the respective interests of the parties”). Privacy interests are not to be
weighed lightly in this equation; this Court has noted that the personnel files of non-party
employees present “special concerns” about the privacy rights of the individuals involved. See
Poseidon Oil Pipeline Co., L.L.C. v. Transocean Sedco Forex, Inc., Civ. A. No. 00-760, 2002 WL
1919797, at *4 (E.D. La. Aug. 20, 2002); see also Fieldwood Energy, L.L.C. v. Diamons Servs.
Corp., Civ. A. No. 14-650, 2015 WL 1415501, at *1 (E.D. La. Mar. 27, 2015) (quoting same).
Therefore, a court ruling on the discoverability of the personnel files of non-party employees must
balance privacy and discovery interests as informed by Frankenhauser and must give appropriate
weight to the “special concerns” presented by personnel files in each case. Poseidon Oil, 2002 WL
1919797, at *4.
Such personnel files have a specific discovery test in the Fifth Circuit for a reason: They
are special. See Poseidon Oil, 2002 WL 1919797, at *4. The privacy concerns implicated by a
personnel file are distinct from those presented by a custodial file, because they are far more likely
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to contain personal, sensitive material. See Williams v. Roy O. Martin Lumber Co. L.L.C., 51 Fed.
Appx. 483, 2002 WL 31319337 at *6 (5th Cir. 2002) (noting that “alimony and child support
garnishment, tax records, and drug test results” may be found in a personnel file). Personnel files
also present thorny issues of corporate policy; many files in a personnel file are not intended to be
shared with an employee or disclosed outside of the company. A deponent-employee may be
embarrassed or upset by the production of a critical performance evaluation or self-evaluation, and
allowing personnel records to be per se discoverable following a generalized showing of “rush to
the market” conditions or a need for evidence of bias would eviscerate any semblance of protection
afforded to employee privacy interests. Cf. In re Sunrise Secs. Litig., 130 F.R.D. 560, 580 (E.D.
Pa. 1989) (“Strong public policy exists against disclosure of the personnel records . . . because
disclosure would invade [the] employees' privacy, and firms might cease to frankly criticize and
rate their own [employees'] performance.”).
Courts applying Coughlin outside of the context of a discrimination suit have also restricted
discovery of personnel files to situations where the personnel files were highly relevant to the
theory of the case and the request was particularized. For instance, in Eckstein Marine Serv., Inc.
v. Anglo Am. Ins. Co., Ltd., 168 F.R.D. 38, 39-40 (W.D. La. 1996), the court allowed for the
discovery of a personnel file in a vessel collision case. The plaintiff in Eckstein sought evidence
of the employer-defendant's knowledge of drug use by the employee-captain. Id. at 39. The
plaintiff's theory of negligence partially hinged on the boat captain's marijuana intoxication at the
time of the accident, and the plaintiff provided a failed drug test by the captain in the wake of the
accident to support that theory. Id. at 39. The personnel file at issue was highly relevant and
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particularized to one critical witness, and consequently, the interest in discovery outweighed the
defendant's privacy interest in his personnel file.
This Court has weighed the Frankenhauser factors and finds that most of them weigh in
favor of plaintiff here. Moreover, the situation in Eckstein is similar to that here: Plaintiff’s theory
of the case revolves around, inter alia, accusations of a drug culture at American Tugs and the
failure to conduct drug tests after the accident. Moreover, plaintiff has requested the files with
particularity: She seeks any certifications, licenses and/or training received and/or obtained by
these individuals, any performance evaluations, any training and orientation forms, any company
policies and procedures, any employment forms, any employment applications, any work status
reports, any history of employment, termination, and reprimands, and any drug tests. Defendant
shall therefore review the three personnel files and produce the foregoing information to plaintiffs.
Defendant shall also redact all personal identifying information and any irrelevant medical
information 8 from the documents. Moreover, the parties shall meet no later than fourteen (14)
days from the date of this Order to confect a mutually-agreeable protective order that will
prevent the dissemination of any of this material to the public outside the context of this litigation.
Int. No. 18 and RFP No. 30:
These requests seek documents related to defendant’s excess insurers. Defendant has
produced to plaintiff its P&I policy that provides coverage up to $1 million. While the parties
dispute whether plaintiff’s damages may exceed $1 million, the Court finds these requests

Given plaintiff’s allegations, medical documentation related to drugs and/or drug tests, and the
like are relevant here.
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premature at this time and not proportional to the needs of this case. Should further discovery
reveal the necessity of this information, the Court will consider this issue at a later date.
V.

Conclusion
For the foregoing reasons,
IT IS ORDERED that the Motion to Quash and for Protective Order [Doc. #12] and the

Plaintiff’s Motion to Compel Defendant to Respond to Discovery [Doc. #18] are GRANTED IN
PART and DENIED IN PART as outlined above.
IT IS FURTHER ORDERED that the Motion to Compel Production of Recorded Phone
Calls [Doc. #13] is GRANTED.
IT IS FURTHER ORDERED that Plaintiff’s Motion to Compel Tug and Barge
Solutions, L.L.C. to Respond to Subpoena Duces Tecum and for Contempt [Doc. #52] is
GRANTED IN PART for the reasons expressed on pages 13-17 supra.
IT IS FURTHER ORDERED that the submission date on Plaintiff’s Motion to Compel
Tug and Barge Solutions, L.L.C. to Respond to Subpoena Duces Tecum and for Contempt [Doc.
#52] is CANCELLED but that for Plaintiff’s Second Motion to Compel Defendant to Respond to
Discovery and for Sanctions [Doc. #51] remained in place on the briefs on December 5, 2018.
The Court denies all requests for sanctions and attorneys’ fees at this time.
New Orleans, Louisiana, this 10th day of December, 2018.

DANIEL E. KNOWLES, III
UNITED STATES MAGISTRATE JUDGE
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