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Fairley v. Art Catering, Inc,

United States District Court, E.D. Louisiana

August 10, 2017

MARY FAIRLEY
v.
ART CATERING, INC, ET AL

         SECTION: “A” (4)

          ORDER AND REASONS

          KAREN WELLS ROBY, CHIEF UNITED STATES MAGISTRATE JUDGE.

         Before the Court is a Motion for Protective Order Quashing Deposition (R. Doc. 47) Motion to Compel Production (R. Doc. 54) filed by the Plaintiff Mary Fairley seeking an order of the court quashing the discovery deposition noticed by the Defendant ART Catering, Inc. of Dense Battle. The motion is opposed. R. Doc. 60. The motion was submitted on August 9, 2017 and heard with argument that same day.

         I. Background

         The instant action was filed in the District Court on April 20, 2016, asserting claims under the Jones Act and general maritime law. R. Doc. 1. The Plaintiff alleges that during July and August of 2015 her husband, Ronnie Lee Fairley, was employed by Defendant ART Catering, Inc. (“ART”) working as a laundry worker aboard the D/S Titanium Explorer, owned by Defendant Vantage Deepwater Drilling, Inc. (“Vantage”) Id. at p. 2. During that time, the Plaintiff alleges that her husband became gravely ill and ART placed him on “no work” status. Id. She further alleges that Vantage failed to provide appropriate medical care. Id. at p. 3. Her husband's medical condition allegedly worsened into an acute infection in his leg while he was forced to remain aboard the Titanium Explorer for the duration of his twenty-eight (28) day schedule. Id. When he finally was transported ashore, the Plaintiff's husband was rushed to the Minden Medical Center. The infection allegedly had led to gangrene-related sepsis and the amputation of his right foot. Id. He died on August 22, 2015 allegedly because his septic condition caused acute respiratory failure and a myocardial infarction. Id. As such, the Plaintiff has filed claims under the Jones Act and General Maritime Law seeking damages as a result of the Defendants' negligence.

         At this time, the Plaintiff has filed a Motion for Protective Order Quashing Deposition seeking that ART's noticed discovery deposition of Denise Battle be quashed. R. Doc. 47. While the Court has suspended the deposition of Battle at this time, the Plaintiff's motion essentially seeks to quash ART's later noticed discovery deposition prior to the Plaintiff's “for all purposes” deposition, including the perpetuation of the testimony for trial as Battle is beyond the Court's subpoena power. R. Doc. 47-2, p. 1.

         The Plaintiff has also filed a motion to compel seeking an order compelling ART to produce a copy of its insurance policy as well as a copy of any statement taken of Denise Battle. R. Doc. 54. The Plaintiff states that ART has not produce a copy of its insurance policy despite being required to produce its insurance policy under initial disclosures and a request for the policy in discovery. R. Doc. 54-2, p. 1-2. Similarly, the Plaintiff argues that it has recently learned that ART has a recorded statement of Battle. The Plaintiff had previously requested a copy of witness statements obtained in connection with the incident. Id. at p. 2. The Plaintiff argues that ART has not produce the statement despite acknowledging that it had a copy of it.

         ART opposes both motions. R. Doc. 60. ART essentially argues that it should be allowed to depose Battle prior to her trial deposition to avoid a trial ambush. Id. at p. 8. ART also argues that the Plaintiff lacks standing to challenge the subpoenaed deposition. As to the discovery at issue, ART argues that they have provided the insurance policy at this time. R. Doc. 60-8. ART further argues that the only statement taken of Battle was by a claims adjuster at the direction of Counsel, who received that statement on July 25, 2017 and noted such on a privilege log provided to the Plaintiff on August 3, 3017. R. Doc. 60-7.

         II. Standard of Review

         A. Motion for Protective Order

         Rule 26(c) governs the issuances of Protective Orders in discovery. A Court may “for good cause, issue an order to protect a party or person from annoyance, embarrassment, oppression, or undue burden or expense.” Fed.R.Civ.P. 26(c)(1). The rule offers a variety of potential options that the Court may use to protect the moving party, including forbidding or limiting the scope of discovery into certain matters or requiring that a trade secret or other confidential commercial information not be revealed or be revealed in only a certain way. Fed.R.Civ.P. 26(c)(1)(D), (G). “The party seeking the protective order bears the burden to show ‘the necessity of its issuance, which contemplates a particular and specific demonstration of fact[.]'” Cazaubon v. MR Precious Metals, LLC, 14-2241, 2015 WL 4937888, at *2 (E.D. La. Aug. 17, 2015) (quoting In re Terra Int'l, 134 F.3d 302, 306 (5th Cir.1998)). The trial court enjoys wide discretion in setting the parameters of a protective order. See Seattle Times Co. v. Rhinehart, 467 U.S. 20, 36 (1984) (“To be sure, Rule 26(c) confers broad discretion on the trial court to decide when a protective order is appropriate and what degree of protection is required.”). Finally, Rule 26(c)(1) requires a certification that the moving party has conferred or attempted to confer in good faith with the other affected party to attempt to resolve the issue without the court's interference.

         B. Motion to Compel

         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 ...


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