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Krekorian v. FMC Technologies, Inc.

United States District Court, E.D. Louisiana

April 6, 2017


         SECTION: “H” (4)



         Before the Court is Motion to Compel (R. Doc. 21) and Motion for Expedited Submission Date (R. Doc. 22) filed by the Plaintiff Jon Krekorian seeking an order from the Court to compel the production of surveillance obtained by Defendant FMC Technologies Offshore, LLC d/b/a FTO Services (“FMC”) prior to the Plaintiff's deposition. For the following reasons, the Motion to Expedite is GRANTED and the Motion to Compel is GRANTED IN PART AND

         DENIED IN PART.

         I. Background

         This action was filed in the District Court on August 26, 2016 asserting claims under the Jones Act, General Maritime Law, and Diversity. R. Doc. 1. Jon Krekorian (“Plaintiff”) asserts that on or about June 27, 2016 while employed by FMC Technologies Offshore, LLC d/b/a FTO Services (“FMC”) as a Jones Act Seaman aboard the M/V ISLAND PERFORMER that he experienced an accident which resulted in serious painful injuries to his back and other parts of his body. Id. at p. 2-3. On March 21, 2017, the Plaintiff amended his complaint to add Island Offshore X KS and Island Services, LLC as defendants. R. Doc. 19. The Plaintiff alleges that the sole and proximate cause of the accident was the result of the negligence of the Defendants. R. Doc. 1, p. 3-4. As such, the Plaintiff seeks both compensatory and punitive damages, costs, and maintenance and cure benefits. Id. p. 4-6.

         At this time, the Plaintiff has filed a motion to compel. R. Doc. 21. On March 13, 2017, FMC served its responses to the Plaintiff's First Request for Production of Documents. R. Doc. 21-3. In that response, FMC objected to the production of “copies of any and all written reports, surveillance evidence, or video tape prepared or obtained as a result of any investigation of the plaintiff, either prior to or subsequent to the occurrence, relative to his activities, background, and/or extent of his injuries.” Id. at p. 2. In particular, FMC objected to the request on the grounds that it required production of impeachment evidence that was not discoverable at this stage of litigation and to the extent that it sought documents privileged under work product or attorney client privilege. Id. Thereafter, the Plaintiff conferred with FMC about the surveillance evidence, noting that such evidence should be produced pursuant to Chiasson v. Zapata Gulf Marine Corp., 988 F.2d 513 (5th Cir. 1993). R. Doc. 21-4. Again, FMC refused to provide any surveillance evidence until after the Plaintiff's deposition. R. Doc. 21-5. As such, the Plaintiff filed the instant motion to compel to obtain that material prior to the Plaintiff's deposition. R. Doc. 21-1.

         The Plaintiff has also filed a motion to expedite. R. Doc. 22. The Plaintiff argues that the submission date should be expedited to address this matter far enough in advance of the Plaintiff's deposition, currently noticed for April 20, 2017. R. Doc. 22-1.

         II. Standard of Review

          Federal Rule of Civil Procedure (“Rule”) 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).

         Discovery of documents, electronically stored information, and things is governed by Federal Rule of Civil Procedure 34. Rule 34 allows a party to request the production of “any designated documents or electronically stored information” or “any tangible things.” Id. Similarly, Rule 33 allows a party to serve another party written interrogatories which “must, to the extent it is not objected to, be answered separately and fully in writing under oath.” Fed.R.Civ.P. 33(b)(3). Both Rule 33 and 34 allow a party to ask interrogatories and request production to the extent of Rule 26(b). Fed.R.Civ.P. 33(a)(2); 34(a).

         Federal Rule of Civil Procedure 37 provides sanctions for failure to cooperate in discovery. Rule 37(a) allows a party in certain circumstances to move for an order compelling discovery from another party. In particular, Rule 37(a)(3)(b)(iii)-(iv) allows a party seeking discovery to move for an order compelling an answer or production of documents where a party “fails to answer an interrogatory” or “fails to produce documents.” An “evasive or incomplete” answer or production is treated the same as a complete failure to answer or produce. Fed.R.Civ.P. 37(a)(4).

         III. ...

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