United States District Court, E.D. Louisiana
L. R. LEMELLE JUDGE
ORDER AND REASONS
VAN MEERVELD UNITED STATES MAGISTRATE JUDGE
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
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
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
comments to the Federal Rules of Civil Procedure explain
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).” 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)).
observed by Magistrate Judge Roby,  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.
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 ...