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SCF Waxler Marine LLC v. Aris T

United States District Court, E.D. Louisiana

June 13, 2017

SCF WAXLER MARINE LLC,
v.
M/V ARIS T

         SECTION: “A” (1)

          ORDER AND REASONS

          Janis van Meerveld United States Magistrate Judge

         Before the Court is the Motion to Compel filed by Genesis Marine, LLC of Delaware (“Genesis”) (Rec. Doc. 129). For the following reasons, the Motion is DENIED.

         Background

         This case involves a northbound ship, the M/V ARIS T, that allided with various facilities and vessels near mile 123 of the lower Mississippi River. Genesis, the movant here, is the owner and operator of the towing vessel ELIZABETH M. ROBINSON. It submits that the ARIS T and a third vessel, the LORETTA CENAC, alone and/or combined, are responsible for the incident. (Genesis Answer and Third-Party Complaint, Rec. Doc. 42). Genesis notes that one issue in this case is that the ARIS T continued to navigate northbound at full maneuvering speed at all times prior to the first impact. The parties recently deposed Michael Leone, the pilot of the ARIS T, and asked him where he expected the LORETTA CENAC to be based on radio calls and his experience maneuvering. Leone replied:

Well, I assumed that the [ELIZABETH] ROBINSON was going in on the right descending bank. She was going to be well on the right descending bank, west bank, if you will; that the LORETTA [CENAC] would probably be in the middle of the river at that point; and I would have my side of the river.

(Rec. Doc. 129-2, at 21). Pilot Leone testified several times that he assumed that the ELIZABETH ROBINSON was going in on the right descending bank and backing and stopping into Bayou Fleet. He explained “[t]hat was her intentions. That's what she stated, she was going to be stopping, backing in there.” Id. at 22. Genesis describes this testimony as Leone's “‘assumption' factual version.”

         Genesis obtained the New Orleans Baton Rouge Steamship Pilots Association (“NOBRA”) Pilot Incident Report that was signed by Michael Leone and provided to the NOBRA Board of Examiners. This NOBRA Pilot Incident Report includes a narrative description of the event. Leone declared that:

[R]adio contact was made on Ch 67 with the Elizabeth M. Robinson (a downbound tow pushing three barges, strung out) wherein the Elizabeth M. Robinson proposed to meet Capt. Leone on the east bank in the deep water channel, as is customary. The Elizabeth M. Robinson advised he was heading for a Bayou Fleet located just downriver; therefore, the Elizabeth M. Robinson would be slowing down and backing into Bayou Fleet. The Elizabeth M. Robinson also stated that the Loretta Cenac (a small tow) was astern of the Elizabeth M. Robinson, and that the Loretta Cenac and the Elizabeth M. Robinson had an agreement for the Loretta Cenac to overtake the Elizabeth M. Robinson on two (2) whistles, wherein the Elizabeth M. Robinson would be favoring the west bank.

(Rec. Doc. 129-2, at 10). In addition to this statement, Genesis obtained the Marine Accident Brief published by the National Transportation and Shipping Board (“NTSB”). Genesis insists that none of the records reference the “assumption” version of events as Pilot Leone testified.[1]

         At Pilot Leone's deposition, he also testified that he prepared a handwritten statement prior to the typewritten statement that was included in the NOBRA Pilot Incident Report and elsewhere. Leone stated that he “wrote everything out” and then provided the document to his attorney. Genesis seeks to determine whether the “assumption” version of the events is corroborated or contradicted by the handwritten statement, which Genesis describes as “contemporaneous.”

         Genesis subpoenaed Leone and requested “all statements prepared by you or on your behalf regarding the January 31, 2016 ARIS T incident including but not limited to the handwritten statement referenced by you in your deposition on April 11, 2017.”[2] (Rec. Doc. 129-2, at 1). Leone's counsel responded with objections, asserting that “any statements by Capt. Leone were prepared at my direction and were provided to me as attorney for Capt. Leone for the purpose of seeking legal advice.” Genesis filed the present motion to compel, arguing that the statements are not protected by the attorney client privilege because 1) they are merely factual recitations, which are not entitled to protection and 2) even if they were privileged, Leone waived the privilege because the statements were relied upon heavily to produce the typewritten NOBRA Pilot Incident Report that was produced to the U.S. Coast Guard, the NTSB, the NOBRA Board of Examiners, and to Genesis in response to a subpoena. Leone has made an appearance in the matter for the purposes of opposing the Motion. The Court ordered that Leone submit the documents at issue for in camera review, which Leone has done.

         The in camera Review

         As a preliminary matter, the Court wishes to clear up some confusion about what documents do, and do not, exist. Given Leone's statements at his deposition, Genesis understandably believed that there is a contemporaneous handwritten statement prepared by Leone, one where he “wrote everything out” and submitted it to his attorney. However, the documents produced for in camera inspection and Leone's counsel's description of the sequence of events leading to the typed NOBRA Pilot Incident Report reflect that in his deposition, Leone was either mistaken in his recollection of what he prepared or revised more than a year previously, or inartful in describing the documents he created or completed and his role in preparing or revising them. The confusion caused by his testimony was likely compounded by Leone's counsel's objections, asserting that “any statements by Capt. Leone were prepared at my direction and ...


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