Latimer v. Chet Morrison Contractors L L C et al

Filing 92

RULING AND ORDER denying 90 Motion to Quash Deposition. Participation by the plaintiff or his attorney may be by telephone. Signed by Magistrate Judge Patrick J Hanna on 10/31/2013. (crt,Alexander, E)

UNITED STATES DISTRICT COURT
WESTERN DISTRICT OF LOUISIANA
LAFAYETTE DIVISION
BRANDON W. LATIMER

CIVIL ACTION NO. 11-CV-806

VERSUS

JUDGE MELANCON

CHET MORRISON CONTRACTORS

MAGISTRATE JUDGE HANNA

RULING AND ORDER
Before the Court is Plaintiff’s Motion to Quash Deposition (Rec. Doc. 90)
filed on October 30, 2013 seeking to quash a deposition properly noticed for
November 1, 2013. Expedited consideration was not requested, however, the
motion was opposed by the defendants on October 31, 2013. (Rec. Doc. 91) For
the reasons set out below, the motion is DENIED.
The defendants noticed the deposition of a non-party witness, Shawn Ryan,
for 8:00 a.m. on Friday, November 1, 2013, in Mobile, Alabama. Ryan is
identified to be a former employee of Chet Morrison Contractors and was the
plaintiff’s supervisor on the date of the accident made subject of this litigation.
Ryan resides in Alabama, outside the subpoena power of this Court. He is not a
party to this litigation, nor is he currently affiliated with or employed by any party.
He is considered by the defendants to be a critical witness in this case. Because
he cannot be subpoenaed to appear for trial, the defendants seek to perpetuate his
testimony by deposition.

The deposition notice served upon the plaintiff on October 17, 2013
indicates the defendants’ intent to take the videotaped deposition of Ryan “for
perpetuation and all other purposes.”(Rec. Doc. 91-1, p. 1) The defendants assert
that the date was mutually agreed upon with plaintiff’s counsel Mr. Riley, and it
was selected to accommodate the witness’s difficult schedule. The defendants
further point out that the witness agreed to the deposition on his way home from
offshore employment, and therefore, it is unlikely cancellation can be
communicated to the witness at this late date creating an unnecessary hardship for
the witness.
There is no objection to the notice or the scope/necessity of the deposition,
rather, On October 28, 2013, a Motion to Withdraw as Counsel of Record was
filed by plaintiff’s counsel, Mark L. Riley, citing “irreconcilable differences”
between the plaintiff and his attorney regarding how to proceed in this matter1.
(Rec. Doc. 88) That motion is set for hearing on November 6, 2013. At present,
Mr. Riley remains as ‘enrolled counsel’ for Brandon Latimer, and he remains
available to participate in the deposition on Mr. Latimer’s behalf.
In the motion, however, Mr. Riley represents that “there is a real issue in

1

Latimer was previously represented by another attorney, who sought and was
granted leave to withdraw as counsel in July, 2012. (Rec. Docs. 38, 44)
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Mr. Latimer’s mind over whether it is appropriate for Mr. Riley to defend the
deposition and Mr. Latimer is not in a position on this notice to do so himself.”
(Rec. Doc. 90-1) (Emphasis added) With all due respect to the plaintiff’s concern,
this Court does not have such an issue.
Mr. Riley is personally known by this Court to have over 30 years
experience as a litigator in the area of personal injury and accidents in the
workplace, and his capabilities, zeal, ethics and professionalism in representing
his clients are not questioned by this Court in any respect. He is a member of a
firm rated “AV” by the Martindale-Hubbell Rating System and has been
personally rated “AV” by his peers in that Rating System demonstrating his
capabilities and ethics are above reproach. He is well respected both personally
and professionally in the community in which he lives.
Further, Mr. Riley is bound as an attorney under the Rules of Professional
Conduct to represent his client zealously within the bounds of the law, and the
record demonstrates that he has admirably done so in this matter. Therefore, this
Court is confident that Mr. Riley can and will adequately represent the interests of
the plaintiff in the deposition at issue.
The record will reflect that Mr. Latimer has traveled this path before with
the attorney who originally filed this suit on his behalf. [Rec. Doc. 38, 42, 44] This
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case was set for trial in the very near future with the pre-trial conference only a
week away and the issue with Mr. Latimer’s perceived dissatisfaction with his
attorney’s performance has arisen yet again. It has created unnecessary uses of
judicial resources and this Court will not countenance further unnecessary delay
and expense to the parties (and non-parties) on misperceptions by the plaintiff as
to the professional performance by his attorney(s).
The Court has discretion pursuant to Fed.R.Civ.P. 26(c) to issue an order
forbidding discovery if it is to “protect a party or person from annoyance,
embarrassment, oppression or undue burden or expense.” The plaintiff has not
met its burden to allow this deposition, which was properly noticed, to be
cancelled at this late date on the grounds set forth.
For these reasons, in the exercise of the Court’s discretion, the Motion to
Quash is DENIED. Participation by the plaintiff or his attorney may be by
telephone.
Signed at Lafayette, Louisiana this 31st day of October, 2013.

_________________________________
Patrick J. Hanna
United States Magistrate Judge

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