Cashman Equipment Corp v. Rozel Operating Co. et al

Filing 241

ORDERED that 217 MOTION to Compel Plaintiff's Discovery Responses filed by Rozel Operating Co. is GRANTED in part, and DENIED in part as stated within document. (GEC)

UNITED STATES DISTRICT COURT
MIDDLE DISTRICT OF LOUISIANA
CASHMAN EQUIPMENT CORP.

CIVIL ACTION

VERSUS

NO: 3:08-cv-0363

ROZEL OPERATING CO., ET AL

SECTION S (1)
ORDER

DEFENDANT’S MOTION TO COMPEL (Rec. Doc. 217-8)
GRANTED in part, and DENIED in part
On May 4, 2012, Rozel Operating Company, (“Rozel”), filed a motion to compel the
plaintiff, Cashman Equipment Corp., (“Cashman”), to respond to several written discovery
requests and pay all costs associated with prosecuting the motion for reasons discussed in its
memorandum of law. Rec. doc. 217 at 1. Rozel further certified that it has conferred in good
faith with Scott Brownwell, counsel for Cashman, in an effort to resolve these issues without
Court involvement. Rec. doc. 217 at 1. On May 24, 2012, Cashman filed its response claiming
it had responded adequately to Rozel’s discovery requests, and the motion to compel should be
denied. Rec. doc. 224 at 1.
BACKGROUND
In June 2007, Rozel chartered two barges, the JMC 107 and JMC 109, from Cashman
under bareboat charter parties, intending to partially submerge the barges to alleviate wave action
while work was performed on its platform. Rec. doc. 214 at 1. During the sinking operation, the
JMC 107 came loose, and one or both of the tugs went to retrieve it. Rec. doc. 214 at 2. When
the JMC 107 was brought into position it struck the end of the JMC 109, causing damage to the
hull of the JMC 109. Rec. doc. 214 at 2. On August 15, 2007, Rozel tried to pump out the

barges to return them to Cashman. Rec. doc. 214 at 2. The JMC 107 was raised and returned to
Cashman on September 13, 2007. Rec. doc. 214 at 2. Rozel failed to raise the JMC 109 and
thus never returned it to Cashman. Rec. doc. 214 at 2. Further, Rozel ceased paying charter hire
for the JMC 109. Rec. doc. 214 at 2.
On June 18, 2008, Cashman filed suit against Rozel and CNA Insurance Company,
(“CNA”), which issued Rozel’s hull and machinery insurance policy on the JMC 109. Rec. doc.
214 at 2. Cashman alleges that Rozel breached the charter parties and that CNA acted in bad
faith in adjusting its claim. Rec. doc. 214 at 2. Cashman later amended the complaint adding
that Rozel was negligent in trusting the barges to Stokes & Spiehler Offshore, Inc. (“Stokes”), an
engineering and consulting company with which Rozel had a Master Service Contract. Rec. doc.
214. Cashman further claimed Stokes was negligent in the manner it sank and attempted to raise
the barges. Rec. doc. 214 at 2.
On November 26, 2008, Rozel answered, claiming the damage to the JMC 109 was
caused by the plaintiff’s comparative fault and/or the unseaworthiness of the barges. Rec. doc.
17 at 1. On February 18, 2009, Rozel counterclaimed for damages incurred due to Cashman’s
misrepresentation, breach of contract and bad faith breach of contract which served to vitiate its
insurance coverage. Rec. doc. 28 at 5. Rozel asserts that its agreement to the contract was based
on Cashman’s representations that the barges were suitable for breaker barges. Rec. doc. 28.
Rozel claims these barges’ wing walls rendered them unsuitable for that purpose.
ANALYSIS
Rozel has moved this court to compel Cashman to produce specific discovery requests
which it claims are relevant to the case. Rule 26(b) of the Federal Rules of Civil Procedure
states that relevant information “need not be admissible at the trial if the discovery appears

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reasonably calculated to lead to the discovery of admissible evidence.” The federal rules define
relevancy broadly in the interest of encouraging free and open disclosure. See Fed. R. Civ. P.
26(b) (1973 Advisory Committee noted that since “relevance to the subject matter of the action
are made for discovery purposes well in advance of trial, a flexible treatment of relevance is
required”). Furthermore, when objecting to a discovery request, a party must state the specific
reason for doing so; simply stating an objection theory is insufficient. Alonso v. Agrigenetics,
Inc., 2004 WL 2668801.
However, because of Rozel’s tardy filing of this matter1, this court is likely constrained
by Rule 26(b)(2)(C)(ii) which requires the court to limit the extent of discovery if “the party
seeking discovery has had ample opportunity to obtain the information by discovery in the
action.” Nevertheless, this court will still address the merits of several of Rozel’s requests for
production.
A. Request for Production no. 6
Rozel asks that Cashman produce all audit reports with respect to the JMC 103, JMC
104, JMC 111, and JMC 112 subsequent to the “filleting” of the JMC 103 and the JMC 104 in
April 2007. Rec. doc. 217 at 3. Rozel claims that Cashman failed to produce any audits for the
second, third, and fourth quarters of 2007 and further provided an incomplete audit report for
2008. Rec. doc. 217-8 at 3. In support, Rozel cites the 2010 deposition of Cashman’s chief
financial officer, Ray Riddle, where he stated that the 2007 audit for the JMC 112 was
completed, while the audits for the JMC 104 and JMC 111 were still in progress. Rec. doc. 2178 at 3.

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Two discovery motions had passed before the instant motion was filed: 1) March 18, 2012 (rec. doc. 142); and 2)
April 18, 2012 (rec. doc. 202).

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Cashman claims that Rozel has already received the complete audit reports for 2007.
Rec. doc. 224 at 2. Further, Cashman notes that Rozel seeks reports of the JMC 111 and the
JMC 112 even though it is aware those barges did not exist in 2007. Rec. doc. 224 at 6.
Essentially, Cashman asserts that Rozel’s motion to compel dramatically expands the scope of
reports in its original request for production. Rec. doc. 224 at 2.
Audit reports for periods after Rozel returned the JMC 107 are not discoverable in the
current matter. The court orders Cashman to: 1) certify Rozel has received the reports and
provides Bates numbers for them; and 2) certify that the 2007 reports for the JMC 111 and JMC
112 do not exist.
B. Request for Production no. 9
The defendant further seeks the production of Cashman’s accounting records showing
the Heavy Construction (HC) Codes assigned to the individual wing wall sections in 2006. Rec.
doc. 217-8 at 4. Rozel claims these records are directly related to the condition and value of the
wing walls prior to the charter hire. Rec. doc. 217-8 at 4. Cashman asserts all such records have
been produced to Rozel in full compliance with the original request. Rec. doc. 224 at 3.
Assuming Rozel is correct in asserting that Cashman has failed to produce all such requested
material; this material is relevant to the defendant’s counterclaim under Rule 26(b) because it
concerns the alleged defect of the barges under contract. The court orders Cashman to certify
that all such records have been produced and provide Bates numbers for them.
C. Request for Production no. 13
Rozel asks Cashman to produce its monthly reports of the insured values of its vessels
claiming the request is relevant as the value and condition of the barges is directly at issue in this
case. Rec. doc. 217-8 at 4. Cashman alleges that the insurance values of all its vessels are

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irrelevant to the matter and should be considered proprietary. Rec. doc. 224 at 3. In order for a
party to resist a discovery request on the basis it demands confidential information, the party
must establish that the information sought is a trade secret or other confidential information, and
its disclosure would cause significant harm. Stone Connection, Inc. v. Simpson, 2008 WL
1927033, at *1 (E.D. Tex. 2006).
Cashman has not proven that the disclosure of this information would cause irreparable
or significant harm as required by courts of this district. Id. Rozel has also stated it is willing to
enter into a confidentiality agreement regarding these documents, thus alleviating any threat of
harm to Cashman. Rec. doc. 217-8 at 5. However, reports on the insured values of Cashman’s
vessels not included in this matter are irrelevant under Rule 26(b). Thus, the court orders
Cashman to produce the insured values of the barges involved in this matter from the date of
filleting through the end of 2008.
D. Request for Production no. 14
Rozel also requests that Cashman turn over its Daily Log Reports for the year 2007,
which detail the location of every single vessel in Cashman’s fleet at that time. Rec. doc. 224 at
3. Rozel claims the request is relevant because it relates to the condition of the vessels prior to
when it chartered them. Rec. doc. 217-8 at 5. Cashman counters that such a request is wholly
irrelevant to the issues in the matter; and further that Rozel has already obtained the entire
history of the vessels involved. Rec. doc. 224 at 8.
This request presents a closer relevancy call under Rule 26(d), as it is questionable
whether the location of every one of Cashman’s vessels, many which may not be of the same
type as those in the charter hire, is relevant to this matter. The court orders Cashman to produce

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those Daily Log Reports which cover the barges at issue for the time period between when those
barges were put into service until September 13, 2007.
E. Request for Production no. 15
Rozel asks Cashman to produce its Barge Reports, which track the location of its barges
for the first six months of 2007. Rec. doc. 217-8 at 6. Cashman objects under the reasoning that
the documents sought are identical to those in Request no. 14. Rec. doc. 224 at 4. In comparing
the testimony of Brian Jones, vice president of Cashman, on the Daily Log Report requested in
no. 14 with the testimony of Jones’ secretary on the Barge Reports, it appears that the two
documents indeed serve the same function of tracking the vessels. Rec. doc. 217-8 at 6-7.
Accordingly, the court should apply the discovery exception in Rule 26(b)(2)(C)(iii) which
directs courts to limit discovery that is “unreasonably cumulative or duplicative.” The court
denies Rozel’s request for the Barge Reports.
F. Request for Production no. 17
Lastly, Rozel seeks Cashman’s Daily Barge Reports from plaintiff’s Baton Rouge office
for 2006, 2007, and 2008. Rec. doc. 217-8 at 6. Rozel claims these documents are discoverable
because the locations of the barges are relevant to the condition of the vessels prior to being
chartered to Rozel.

Rec. doc. 217-8 at 7.

Cashman alleges these requests are unduly

burdensome and duplicative. Rec. doc. 224 at 4. The request for the 2007 reports clearly
appears duplicative and thus is not discoverable under Rule 26(b)(2)(C)(iii). Further, the 2008
request is likely irrelevant to the matter at issue in this case because the events occurred in 2007,
and anything in the 2008 report would be unlikely to reveal admissible evidence at trial.
However, the 2006 reports detailing the location of the barges at issue is relevant as being
“reasonably calculated” to lead to admissible evidence as required by Rule 26(b)(1). The court

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orders Cashman to produce the Daily Barge reports for the barges at issue from the time they
were put into service until September 13, 2007.
G. Previously Produced Documents
Rozel alleges that Cashman’s responses to its previous document requests for numbers 2,
7, 8, 12, and 19, failed to specify the particular documents requested. Rec. doc. 217-8 at 7.
Thus, Rozel claims its unable to determine whether these documents have actually been
produced. Rec. doc. 217-8 at 7. Cashman argues that Rozel had all of its production for months,
yet failed to raise this issue until now. Rec. doc. 224 at 4. Cashman is correct in its assessment
that Rozel should lose its right to clarify these requests because of its failure to object in a timely
manner. The court denies Rozel’s request that Cashman specify these documents.
H. Memorandum Created by Cashman’s Prior Outside Counsel
Rozel asks that Cashman produce a memorandum created by its then outside counsel,
Andrew Saunders. Rec. doc. 217-8 at 7. Saunders prepared the memorandum following a
telephone interview with Wade Olsen, a marine surveyor and witness in the matter, regarding his
survey of the barges. Rec. doc. 217-8 at 7. Rozel alleges that because the requested document
was not included in Cashman’s protected log, the privilege is effectively waived. Rec. doc. 2178 at 8. Thus, Rozel demands that Cashman either supplement its privilege log in compliance
with Rule 26(b)(5) and/or produce the memorandum for in camera inspection by the Court. Rec.
doc. 217-8 at 8. Further, Rozel contends the document is not protected under work-product
because it reflects facts related to the survey and condition of the wing walls at issue in the suit,
and the privilege does not extend to the underlying facts relevant to litigation. Rec. doc. 217-8 at
8.

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Cashman counters that Rozel has failed to prove that it is unable to obtain any
information that Olsen may possess because he was deposed by all parties, including Rozel.
Rec. doc. 224 at 5. Further, Cashman claims that Rozel’s argument stating its entitled to
discover any “facts”, including Saunders’ belief in the accuracy of the witness’s statements,
undercuts Rozel’s position.

Rec. doc. 224 at 5.

Cashman asserts that Saunders’ belief

constitutes a mental impression of the attorney, and thus is accorded the highest degree of workproduct protection.
Because Rozel itself has deposed Olsen and has failed to show why it was not possible to
obtain the information from the witness; Rozel has not shown a substantial need for the workproduct information, or that less intrusive means to get the information are not available. See
Hickman v. Taylor, 329 U.S. 495, 511 (1947) (court held that “if the witnesses can readily
enough be found and interviewed or deposed, generally the work-product protection will not be
stripped”). Furthermore, it is questionable whether the memorandum would be discoverable
even if a hardship existed because it contains Saunders’ personal impressions of the interview,
and such opinion work-product is generally always protected from disclosure.

2 Edna S.

Epstein, The Attorney-Client Privilege and the Work-Product Doctrine 946 (5th ed. 2007).
Following in camera review, the court denies Rozel’s request for the memorandum created by
Cashman’s attorney.
I. Nonresponsive Documents
Rozel further requests that Cashman produce its Barge Fleeting Reports for May 25-26,
2007 as discussed in Saunders’ deposition, alleging that material had not yet been produced.
Rec. doc. 217-8 at 9. Cashman claims that Rozel has already received those documents within

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the stipulated time. Rec. doc. 224 at 224. The court orders Cashman to certify that those reports
have been produced and provide the Bates numbers for that material.
Rozel also seeks Cashman’s Material Transfer Records and all other specific document
requests that have not yet been produced. Rec. doc. 212-8 at 10. Cashman claims these
materials do not exist as it failed to locate them after diligent search. Rec. doc. 224 at 5. The
court orders Cashman to certify that, after diligent search, the Material Transfer Records and all
other requested documents do not exist.
CONCLUSION
IT IS ORDERED that: Rozel’s motion to compel plaintiff’s discovery responses (Rec.
Doc. 217-8) is GRANTED in part, and DENIED in part.
New Orleans, Louisiana, this 6th day of June, 2012.

_______________________________
SALLY SHUSHAN
United States Magistrate Judge

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