Fucich Contracting, Inc. v. Shread-Kuyrkendall and Associates, Incorporated et al

Filing 463

MINUTE ENTRY & ORDER for proceedings held before Chief Magistrate Judge Karen Wells Roby: Motion Hearing held on 10/14/2020 re 447 Motion to Quash Notice of Video Deposition. IT IS ORDERED that the 447 Motion to Quash is GRANTED IN PART and DENIED IN PART as detailed herein. Signed by Chief Magistrate Judge Karen Wells Roby. (Court Reporter Cathy Pepper.) (mp)

MINUTE ENTRY
ROBY, M.J.
10/14/2020
UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF LOUISIANA
FUCICH CONTRACTING, INC.

CIVIL ACTION

VERSUS

NO. 18-2885

SHREAD-KUYRKENDALL &
ASSOCIATES, INC.

SECTION: “M” (4)

LAW CLERK:
COURT REPORTER:
Appearances:

Destinee Andrews
Cathy Pepper

Steven Michael Lozes for Timken Gears and Services, Inc. d/b/a
Philadelphia Gear.
Albert D. Clary for Shread-Kuyrkendall & Associates, Inc.
MINUTE ENTRY AND ORDER

Before the Court is Philadelphia Gear’s Motion to Quash Notice of Video Deposition
of Glen Olivi (R. Doc. 447) filed by Third-Party Timken Gears & Services Inc., d/b/a Philadelphia
Gear (“Philadelphia Gear”) seeking an order quashing the video deposition of one of its engineers,
Glen Olivi, unilaterally scheduled by Shread-Kuyrkendall and Associates, Inc. (“SKA”) to take
place on October 20, 2020 at 10:00 a.m. The motion is opposed. R. Doc. 462. The motion was
heard via videoconference on October 14, 2020.
I.

Background
On March 19, 2018, Plaintiff Fucich Contracting, Inc. (“FCI”) filed this action in diversity

in the District Court against SBPG, the Lake Borgne Basin Levee District (“LBBLD”), and
Shread-Kuyrkendall and Associates, Inc. (“SKA”) seeking declaratory relief and monetary
damages arising from a contractual dispute. R. Doc. 1. The contract in dispute involved the
improvement and installation of four new diesel engines at existing Pump Stations in the St.

MJSTAR: 00:33

Bernard Parish (the “Project”). A main question in this suit is who is responsible for the decision
to order the engine, which could not be used, Fucich, the contractor, or the engineer, SKA.
The central issue of this dispute is the rotational conflict, which involves the purchase and
corresponding Project engineering design of “Caterpillar 3512 C Diesel Engines.” R. Doc. 244.
Essentially, the new engines rotated in the opposite direction of the existing engines, which
rendered the new engines’ alignment to the refurbished gearboxes not possible and effectively
prevented the installation of the new engines, halting the project in its entirety. R. Doc. 302-2, p.
85, ¶¶ 337-338. As a result of the rotational conflict, SBPG’s ability to operate its pumping system
at full capacity has been hindered during multiple Hurricane Seasons, since 2017, and the Project
remains incomplete
FCI and SKA eventually sought to bring third-party claims against Philadelphia Gear. See
R. Docs. 189, 364. Philadelphia Gear (operating under the name Western Gear) manufactured the
pumps’ original right-angle gear reducers, which were manufactured, purchased, and installed in
approximately 1968, and which rotate counterclockwise. Id. In connection with FCI’s bid and
contract, a written agreement between FCI and Philadelphia Gear was executed for Philadelphia
Gear to recondition or refurbish two of the four old right-angle gears and those gears were
delivered to the pump stations for use on the Project. The factory overhaul requested by FCI
maintained the existing counterclockwise rotation. SKA alleged that Philadelphia Gear knew, or
should have known, the Caterpillar engines to which the gear reducers would be connected turned
in the opposite direction. SKA, thus, attempted to assert product liability and detrimental reliance
claims against Philadelphia Gear. FCI also attempted to assert claims of negligent
misrepresentation, detrimental reliance, and breach of contract against Philadelphia Gear.
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On December 17, 2019, the District Judge issued an Order and Reasons dismissing SKA’s
third-party claims against Philadelphia Gear. R. Doc. 373. On April 24, 2020, the Court over this
matter issued an Order and Reasons dismissing FCI’s third-party claims against Philadelphia Gear.
R. Doc. 416.

Notwithstanding these opinions, which, taken together, dispose entirely of

Philadelphia Gear as a party in this litigation, the Court denied Philadelphia Gear’s motion for
entry of final judgment pursuant to Federal Rule of Civil Procedure 54(b) in this case noting the
policy against piecemeal appeals. R. Doc. 422.
On August 31, 2020, Gayle Quinlan, Philadelphia Gear sale representative, was deposed
as the most knowledgeable person about the Project but was not knowledgeable about the engines’
design. R. Doc. 447-1, p. 4. Notwithstanding this deposition, SKA now seeks to depose Glen Olivi,
an engineer employed by Philadelphia Gear, which Philadelphia Gear contends is moot and not
relevant to the matter before the Court because of the dismissal order. R. Doc. 447-1, p. 4-5.
In opposition, SKA contends that the deposition testimony of Glen Olivi is relevant and
necessary where the Court has ruled that it can present evidence of Philadelphia Gear’s fault and
include a blank on the verdict for Philadelphia Gear’s fault. See R. Doc. 462, p. 1. SKA also
contends that Olivi’s testimony is relevant to the issue of remediation of the engine-gear rotational
conflict. R. Doc. 462, p. 2.
II.

Standard of Review
Federal Rule of Civil Procedure (“Rule”) 45(d)(3) governs the quashing or modifying of

subpoenas. The Court must quash or modify a subpoena that “(i) fails to allow a reasonable time
to comply; (ii) requires a person to comply beyond the geographical limits specified in Rule 45(c);
(iii) requires disclosure of privileged or other protected matter, if no exception or waiver applies;
or (iv) subjects a person to undue burden.” Fed. R. Civ. P. 45(d)(3)(A)(i)-(iv).
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In addition, “[b]oth Rules 45 and 26 authorize the court to modify a subpoena duces tecum
when its scope exceeds the boundaries of permissible discovery or otherwise violates the
parameters of Rule 45.” Hahn v. Hunt, No. 15-2867, 2016 WL 1587405, at *2 (E.D. La. Apr. 20,
2016) (Wilkinson, C.M.J.). Federal Rule of Civil Procedure 26(b)(1) provides that “[p]arties may
obtain discovery regarding any non-privileged matter that is relevant to any party’s claim or
defense. . .” Rule 26(b)(1) specifies that “[i]nformation within the scope of discovery need not be
admissible in evidence to be discovered.” Rule 26(b)(1) also specifies that discovery must be
“proportional to the needs of the case, considering the important of the issues at stake in the action,
the amount in controversy, the parties’ relative access to relevant information, the parties’
resources, the importance of the discovery in resolving the issues, and whether the burden or
expense of the proposed discovery outweighs its likely benefit.” Id.
Under Rule 26(b)(2)(C), discovery may be limited if: (1) the discovery sought is
unreasonably cumulative or duplicative, or is obtainable from another, more convenient, less
burdensome, or less expensive source; (2) the party seeking discovery has had ample opportunity
to obtain the discovery sought; or (3) the proposed discovery is outside of the scope permitted
under Rule 26(b)(1).
III.

Analysis
Philadelphia Gear contends the proposed deposition of Glen Olivi is SKA’s futile search

for someone to blame for its own failures on this Project and lists topics of inquiry that are
unrelated to the rotation compatibility issues at the heart of this lawsuit. R. Doc. 447-1, p. 11.
SKA lists seven topics of inquiry for Olivi’s proposed deposition:
1) engineering of the right-angle gears – both for the original project in for reversal
of the gear;
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2) knowledge of standard rotation;
3) design of the right-angle gears – which have never been produced;
4) the backstop – design and construction;
5) providing the draft specification and use of the final construction specifications;
6) determination of the correct rotation for these right-angle gears; and
7) The Job Traveler.
R. Doc. 447-4.
Philadelphia Gear contends that it is undisputed that SKA had knowledge that the old
engines rotated in a nonstandard manner as opposed to the new engines which rotated
counterclockwise which is SAE standard rotation. R. Doc. 447-1, p. 5-6. As such, Philadelphia
Gear contends no amount of testimony given by Glen Olivi could relieve SKA of its own
responsibilities as design engineer. R. Doc. 447-1, p. 6.
Specifically, considering Topics 1-3, Philadelphia Gear argues that the District Judge has
already determined that the gear specifications within the Contract Documents did not call for a
rotation reversal of the existing gear box. Id. In addition, Philadelphia Gear argues that an
examination into the design of the right-angle gear will not shed any light on the engine rotational
conflict, which is the true issue of dispute in this litigation. Id. Finally, Philadelphia Gear argues
that it is undisputed that it the gears were upgraded with the gear specification contained in the
contract, and its only task was to upgrade the right-angle gears to conform to the gearbox
specifications. Id. As such, Philadelphia Gear maintains that inquiry into the SAE standard rotation
for land diesel engines is not relevant because Philadelphia Gear made no representation that it
would provide a working pump replacement system. Id.
In addition, Philadelphia Gear argues that Topic 4 is not relevant because the backstop is
completely unrelated to the engine. R. Doc. 447-1, p. 8. A backstop is a mechanical brake designed
to prevent the gear box from rotating backwards. Id. Philadelphia Gear contends that the backstop
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it designed was in accordance with the existing rotation of the gear box, and the gear box
specifications did not call for any change in rotation. Id. As such, Philadelphia Gear contends that
an inquiry related to this topic will not show that Philadelphia Gear was aware, or should have
been aware, of the rotation of the gear box when adding a backstop of the existing gear box is
speculative and misplaced. Id.
Next, with respect of Topics 5, Philadelphia Gear contends that the Court already
determined any reliance by SKA on the sample specifications provided by Philadelphia Gear was
not justified where SKA and its world-class team of engineers were ultimately responsible for the
design of the project. Id. (citing R. Doc. 373, p. 19).
Finally, considering Topics 6 and 7, Philadelphia Gear contends Philadelphia Gear
contends these topics have been discussed ad nauseum in prior discovery. R. Doc. 447-1, p. 9-10.
With respect of Topic 6, Philadelphia Gear contends SKA obtained schematic drawings of the
existing gears which clearly showed the gear rotation, and SKA incorporated these drawings in
Appendix 1. Id. With respect to Topic 7, Philadelphia Gear contends “Job Traveler” is essentially
the job paperwork carried along a particular work order’s lifespan and refers to this material as the
internal job file, which contains manufacturing specifications, vendor/supplier information, and
drawings necessary to upgrade the right angle gear to conform to the new gear specifications. R.
Doc 447-1, p. 10. Notwithstanding, Philadelphia Gear has already produced all documents in its
possession, including confidential, proprietary and trade secret documents pursuant to the
Protective Order entered by this Court, and has produced the witness most knowledgeable about
this Project for deposition. Id. As such, Philadelphia Gear maintains that there is no information
Mr. Olivi could provide that would lead to any relevant evidence. Id.
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SKA, in opposition, does not analyze the relevance of each topic of inquiry in its brief but
generally contends the fault of Philadelphia Gear is found in both the design of the gears and in
the construction of the gears. R. Doc. 462, p. 5. SKA, therefore, contends Mr. Olivi’s deposition
testimony is necessary for the defense and proper apportionment of fault in this case. R. Doc. 462,
p. 4.
In addition, SKA argues that Mr. Olivi’s testimony is relevant to the determination of the
scope and cost of the previous and ongoing remediation of the rotational conflict. R. Doc. 462, p.
6. Specifically, SKA contends the testimony Mr. Olivi can explain how Philadelphia Gear changed
the rotation of the gears to allow the project to go forward after discovery of the engine/gear
rotation conflict and that the engineering change was performed no later than January 2018. This
testimony will show the answer to the rotational conflict has been known now for almost three (3)
years. Id. As such, SKA contends that this testimony can be used to show FCI failed to properly
coordinate the engine with the gear, avoided the rotational conflict entirely, and/or perhaps
mitigated the damages in this case. Id.
Although these seven topics were addressed in the briefing of the motion, at the hearing
the motion was distilled into three topics of dispute. In considering the various contentions, the
Court takes this motion in three parts: 1) the fault of Philadelphia Gear, 2) the liability of Fucich,
and 3) damages and the remediation of the Project.
Turning first to the topics pertaining to the fault of Philadelphia Gear, this Court finds the
District Judge’s order dismissing SKA’s claims against Philadelphia Gear in this case instructive.
See R. Doc. 373. Among other things, Judge Ashe states “[i]f, for example, SKA is found negligent
for incorporating deficient specifications into the contract documents, that Philadelphia Gear
provided those specifications cannot mean SKA was not actually negligent in incorporating
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deficient specifications into the contract documents for which it was responsible as the Project
engineer.” Id. at p. 17. As a matter of law, the Court determined that Philadelphia Gear had no
duty to raise the proverbial red flag concerning the gear rotation in its design because public bid
law prevented it from dictating the rotation given that the brand of engine selected could have
called for a different rotation. Id. at p. 19. As such, Judge Ashe likewise determined “even if
Philadelphia Gear ‘is an expert in these highly specialized gears’ and ‘represents it has a worldclass engineering team,’ SKA and its engineers were ultimately responsible for the design of the
Project.” Id. at p. 19.
Considering the opinion on this subject matter, the Court has determined as a matter of law
that the incorporation of Philadelphia Gear’s deficient specs in the contract documents does not
absolve the fault of the engineer, SKA, in this matter. As such, based on Judge Ashe’s rulings, the
topics related to the fault of Philadelphia Gear are simply not relevant to this matter. As such, the
Court grants Philadelphia Gear’s motion to quash with regard to topics related to the fault of
Philadelphia Gear.
Considering next the liability of Fucich, while it is undisputed that Fucich failed to read
Appendix 1 to the Contract Documents, which showed that the old German engines rotated in the
opposite direction as the newer American Caterpillar engines, SKA seeks to question Olivi as to
the incorporation of the engine’s rotational direction in other documents, such as the submittals.
Here, the Court is of the opinion that SKA is entitled to question Olivi as to this matter
where it is probative of Fucich’s and FCI’s attentiveness to the project. As such, Philadelphia
Gear’s motion to quash is denied with respect to topics relating to the liability of Fucich.

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Finally, the Court considers damages and the remediation of the project. SKA contends
that these topics are intended to show that the solution to the rotational conflict has been known
for years. The topics also are intended to show the work needed to fix the gear conflict.
As to this topic, the Court is of the opinion that the process and monetary figure related to
fixing the gears, even if just a scope as opposed to a precise dollar amount, is a relevant to the
potential cost-savings on the Project. Therefore, SKA is entitled to ask Olivi questions on this
topic. As such, the Court denies Philadelphia Gear’s motion to quash with respect to those topics
related to the damages and remediation of the Project.
IV.

Conclusion
Accordingly,
IT IS ORDERED that Philadelphia Gear’s Motion to Quash Notice of Video

Deposition of Glen Olivi (R. Doc. 447) is GRANTED IN PART and DENIED IN PART.
IT IS FURTHER ORDERED that the motion is GRANTED to the extent that SKA seeks
to question Glen Olivi on topics relating to the fault of Philadelphia Gear.
IT IS FURTHER ORDERED that the motion is DENIED to the extent that SKA seeks
to question Glen Olivi on topics relating to the liability of Fucich and FCI, as well as damages and
the remediation of the project.
New Orleans, Louisiana, this 16th day of October 2020.

KAREN WELLS ROBY
CHIEF UNITED STATES MAGISTRATE JUDGE
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