United States District Court, E.D. Louisiana
M. AFRICK, JUDGE
ORDER AND REASONS
van Meerveld, United States Magistrate Judge
the Court is Nester Tercero's Motion for Sanctions. (Rec.
Doc. 127). For the following reasons, the motion is DENIED.
case concerns an injury allegedly suffered by Nestor Tercero
when he fell from a ladder while cleaning the ceiling of the
M/V OCEAN INTERVENTION. Trial was set to begin on February
11, 2019, but on January 22, 2019, the trial was continued
because Tercero intended to argue at trial that he was the
borrowed servant of defendant Oceaneering International, Inc.
at the time of the accident. Trial is now set to begin on
April 8, 2019. At the time the trial was continued, the
discovery deadline had passed, but the district court ordered
that “the parties can agree to the date of
plaintiff's deposition, as well as any deadlines
regarding additional discovery that must be taken, which
shall be limited to the borrowed servant issue.” (Rec.
February 7, 2019, the undersigned held a discovery status
conference with the parties and granted plaintiff's then
pending motion to compel in part. (Rec. Doc. 119). The court
By February 22, 2019, Oceaneering shall produce the insurance
policy for which it has already produced the declaration
sheet; Oceaneering shall supplement its response to request
for production 12; and Oceaneering shall supplement its
response to requests for production 18 and 19, provided that
the time period shall be limited to two weeks before and two
weeks after the incident.
Id. The parties were also ordered to conduct certain
perpetuation depositions of Oceaneering employees with a
discovery deposition on the borrowed servant issue to be
conducted immediately beforehand. Id. A dispute
arose as to the scheduling of those depositions, and the
undersigned held a telephone status conference with the
parties on February 21, 2019. At that time, the court ordered
that Oceaneering “determine when Walsh will be
disembarking from his vessel, and the parties shall schedule
his deposition as soon as possible thereafter in the New
Orleans area.” (Rec. Doc. 125). The parties
subsequently notified the court that they scheduled the Walsh
deposition in Morgan City, Louisiana, on February 27, 2019.
February 22, 2019, Oceaneering served its answers to
Tercero's supplemental discovery requests as ordered.
However, Oceaneering failed to produce responses to
plaintiffs' requests for production 12, 18, and 19 as the
court had also ordered. When Tercero inquired as to the
status of the documents, Oceaneering's counsel responded
that he had not yet received the documents from his client
but hoped to have them by Tuesday, February 26, 2019 and
would produce them immediately.
Sunday, February 24, 2019, Oceaneering had still not produced
the documents and Tercero filed the present motion for
sanctions arguing that he would be prejudiced in his ability
to depose Walsh as a result of Oceaneering's delay.
Tercero submits that Oceaneering has engaged in a pattern of
delay that is evidenced by its response to Tercero's
supplemental interrogatory 2, which asked Oceaneering to
identify witnesses who would testify on the borrowed servant
issue. Oceaneering objected, stating that the response was
protected by the “attorney-client privilege since
plaintiff never took the time to depose the appropriate
persons employed by Oceaneering to discover the answers to
this Interrogatory.” Tercero submits that sanctions are
appropriate under Rule 37(b)(2). He seeks an order striking
Oceaneering's defenses, an order prohibiting
Oceaneering's witnesses-including Walsh-from testifying,
an order establishing Tercero is the borrowed servant of
Oceaneering, and any other just order.
ultimately produced the documents on February 26, 2019.
Oceaneering points out this was only two business days after
the ordered date. It explains that the delay was due to a
misunderstanding between counsel and client regarding the
exact nature of the documents to be produced. It insists that
Tercero cannot establish any bad faith, willfulness, or
contumacious conduct. Oceaneering argues that Tercero has not
suffered any prejudice, noting that his counsel was able to
conduct an effective examination of Walsh using the documents
produced. Oceaneering adds that it had a Rule 37 conference
with Tercero regarding the discovery responses described in
the motion and that Oceaneering provided supplemental
responses and additional documents on February 26, 2019.
Oceaneering notes that prior to the delayed production at
issue here, it has not violated any other court orders and it
insists that sanctions are not appropriate here.
reply, Tercero notes that the documents produced by
Oceaneering the day before the Walsh deposition amounted to
over 1, 400 pages. Of this, about 556 pages were manuals.
Tercero complains there is no reason Oceaneering could not
have produced the manuals earlier. Tercero points out that to
prepare for the deposition, his counsel had to pull relevant
documents from the 1, 400 pages and prepare questions related
thereto. Counsel also had to drive to Morgan City for the
deposition. Tercero adds that it appears Walsh was not on a
vessel as previously reported by Oceaneering. Instead he had
been in Amelia, Louisiana for a month and would be leaving to
return home to Pennsylvania a few days following the
deposition on a flight departing out of New Orleans. Tercero
suggests that the deposition could have been conducted on
another date or that it might have been possible to produce
Walsh in New Orleans.