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Nolan v. Omega Protein, Inc.

United States District Court, E.D. Louisiana

November 1, 2017

VERNON NOLAN
v.
OMEGA PROTEIN, INC.

         SECTION: “B” (1)

          IVAN L. R. LEMELLE JUDGE

          ORDER AND REASONS

          JANIS VAN MEERVELD UNITED STATES MAGISTRATE JUDGE

         Before the Court is the Motion to Compel the Production of Documents and a Supplemental Privilege Log filed by plaintiff Vernon Nolan. (Rec. Doc. 12). The Motion raises the following four issues: 1. Whether Defendant has met its burden to provide a privilege log, 2. Whether the Defendant must produce Plaintiff's recorded statement to him prior to the Plaintiff's deposition, 3. Whether the recorded statements of other employees of the Defendant are protected by the work product doctrine, and 4. Whether the Phillips & Associates Inc.'s Interview Report should be produced. At oral argument, held on October 25, 2017, Defendant's counsel provided further explanation regarding the privileged documents being withheld and counsel for Nolan agreed he was satisfied with the representations. Accordingly and for the following reasons, the Motion to Compel is DENIED as moot in part as to the privilege log, and GRANTED in part as to the remaining issues: Omega shall produce Nolan's statement within 14 days and, in any event, in advance of his deposition; Omega shall produce the employee statements; and Omega shall produce the Phillips Interview Report.

         Background

         Mr. Nolan filed this Jones Act lawsuit against his employer Omega Protein, Inc. (“Omega”) alleging injuries arising from an April 22, 2014, incident onboard a vessel owned and operated by Omega. The only specific allegation regarding the incident is that “While the purse boats were coming together, a co-worker improperly threw the stop line into the press line, causing the press line to contact Plaintiff, injuring him.” (Rec. Doc. 1, at ¶ 4.3). He filed this lawsuit on April 3, 2017. Trial is set to begin on May 7, 2018.

         Law and Analysis

         1. Plaintiff's Statement

         The parties agree that plaintiff Nolan's statement is subject to disclosure. Indeed, Rule 26(b)(3) provides that “[a]ny party or other person may, on request and without the required showing, obtain the person's own previous statement about the action or its subject matter.” Fed.R.Civ.P. 26(b)(3); Miles v. M/V Mississippi Queen, 753 F.2d 1349, 1351 (5th Cir. 1985) (explaining that a party's statement is “discoverable as of right”). The issue is whether Omega can withhold the statement until after Nolan's deposition.

         The comments to the Federal Rules of Civil Procedure explain that:

Ordinarily, a party gives a statement without insisting on a copy because he does not yet have a lawyer and does not understand the legal consequences of his actions. Thus, the statement is given at a time when he functions at a disadvantage. Discrepancies between his trial testimony and earlier statement may result from lapse of memory or ordinary inaccuracy; a written statement produced for the first time at trial may give such discrepancies a prominence which they do not deserve. In appropriate cases the court may order a party to be deposed before his statement is produced.

Fed. R. Civ. Proc. 26 advisory committee's comments to 1970 amendment. Courts have held that a “defendant may withhold the [plaintiff's] statement until after plaintiff's deposition only if the Court permits defendant to do so, in its discretion, upon the particularized showing that defendant must make pursuant to Rule 26(c)(2) or 26(d).”[1] Baggs v. Highland Towing, L.L.C., No. CIV. A. 99-1318, 1999 WL 539459, at *3 (E.D. La. July 22, 1999) (emphasis in original). Rule 26(c) protective orders are issued upon a showing of good cause, “which contemplates a particular and specific demonstration of fact as distinguished from stereotyped and conclusory statements.” In re Terra Int'l, Inc., 134 F.3d 302, 306 (5th Cir. 1998) (quoting United States v. Garrett, 571 F.2d 1323, 1326 n.3 (5th Cir. 1978)). Under Rule 26(d), the Court can order a particular sequence of discovery when the moving party makes a showing that a particular sequence is “for the convenience of the parties and in the interests of justice.” Chaney v. Kansas City S. Ry. Co., No. CIV A 06-3469, 2007 WL 2463311, at *1 (E.D. La. Aug. 27, 2007) (quoting Fed. R. Civ. Proc. 26(d)(2)).

         As observed by Magistrate Judge Roby, [2] courts have not found good cause to delay production of a plaintiff's statement based on “the suggestion of entitlement to the unrefreshed testimony, ” where the “plaintiff did not report the accident immediately after the accident, ” or in order to preserve the “statement for solely impeachment purposes.” Monceaux v. Bayou Fleet, Inc., No. CIV.A. 05-2634, 2006 WL 1236055, at *2 (E.D. La. May 5, 2006). For example, in Monceaux, the court found the mere fact that the accident was unwitnessed did not establish good cause to delay production of the plaintiff's statement. Id.; see Bertucci Contracting Co. v. M/V JULIE MARIE, No. CIV.A. 11-1328, 2013 WL 592889, at *3 (E.D. La. Feb. 14, 2013) (finding the plaintiff had not established good cause by alleging that the deponent was the opposing party's only witness to the incident). In Hill v. Hornbeck Offshore Servs., LLC, the accident was unwitnessed and the plaintiff returned to work and did not allege injury until two years later. No. CIV.A. 10-2121, 2011 WL 2550510, at *3 (E.D. La. June 27, 2011). The court found these facts were insufficient to establish good cause to delay production of the plaintiff's statement. Id. In Vinet v. F & L Marine Management, Inc., Magistrate Judge Wilkinson allowed the plaintiff to receive his statement prior to his deposition, finding the defendant had not established good cause by arguing that the facts and circumstances surrounding the plaintiff's unwitnessed accidents raised questions as to their authenticity. 2004 WL 3312007, at *2. The court found the defendant's arguments were conclusory and unsubstantiated and underscored that “[c]ivil discovery is not a game of ambush.” Id. The court went on to explain that “[t]o conclude that a witness would lie because his accidents were unwitnessed or would testify truthfully only because of the threat that his prior statements might contradict him is simply stereotyping, as is the assumption that his post-accident statements are the only ‘true' versions of the facts.” Id. at *3.

         Yet not all cases have demanded a particularized showing of good cause. Defendants cite Complaint of L.L.P.&D. Marine, Inc., where the court observed that “[j]udges in this District generally follow the practice of requiring the production of statements only after a party has been deposed, in order to maintain the integrity of the statement.” No. CIV. A. 97-1668, 1998 WL 113937, at *1 (E.D. La. Mar. 11, 1998). The court put the burden on the plaintiff to show why he should be allowed his statement prior to the deposition and found he had not met that burden. Omega also cites Crenshaw v. R & B Falcon Drilling, USA, Inc. where Judge Fallon reviewed the plaintiff's statement in camera and ordered that plaintiff was not entitled to the statement prior to his deposition. No. CIV.A. 02-3699, 2003 WL 21010746, at *1 (E.D. La. May 1, 2003). Judge Fallon provided no explanation for his ruling. Id. And in Atlantic Sounding Co. v. Sullivan, the district court found sufficient the plaintiff's demand to examine the unrefreshed recollection of the defendant and Jones Act counterclaimant. No. CIV.A. 04-0508, 2004 WL 1737933, at *2-3 (E.D. La. July 30, 2004). Finally, Omega cites an unreported discovery order issued by Magistrate Judge Shushan in 2012 in a case where Omega was also the defendant. Reels v. Omega Protein, Inc., Civ. A. No. 11-2593, Rec. Doc. 19 (E.D. La. Apr. 18, 2012). There, Omega alleged that the plaintiff's statement materially ...


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