United States District Court, E.D. Louisiana
WELLS ROBY CHIEF UNITED STATES MAGISTRATE JUDGE.
the Court is Claimants' Emergency Motion to Quash
Depositions (R. Doc. 149) filed by the Claimants
Robert Pitre (“Pitre”) and Joseph Hebert
(“Herbert”) seeking an order from this Court
quashing the depositions of Robert Pitre, Joseph Hebert, and
Dr. Todd Cowen unilaterally noticed for Friday, October 4,
2019. This motion is opposed. R. Doc. 156. This motion was
originally set for submission on October 16, 2019, but
Claimants sought expedited consideration of the issues. R.
Doc. 150. The Court granted that Claimants' Motion to
Expedite (R. Doc. 150) and held oral argument on October 3,
2019, at 10:30 a.m. via telephonic conference call. R. Doc.
Tara Crosby, L.L.C. and Crosby Tugs, L.L.C. (collectively
“Crosby”), filed this instant action on May 31,
2017, in the United States District Court pursuant to Rule
9(h) of the Federal Rules of Civil Procedure following an
offshore naval incident. R. Doc. 1. The incident occurred on
May 29, 2017, when the M/V Crosby Commander encountered
severe weather and sank in the Eugene Island Block 159,
approximately thirty (30) nautical miles off the coast of
Louisiana. R. Doc. 1, p. 3. Claimants Robert Pitre
(“Pitre”) and Joseph Hebert
(“Herbert”) do not dispute suffering injury when
the M/V Commander sunk but allege that severe weather was not
the sole cause of injuries as Petitioners knew about the
conditions and the size of the load the vessel was pulling,
and knowingly and negligently sent them into harm's way
anyway. R. Doc. 11, p. 8.
specifically, Claimants Herbert and Pitre allege that, in the
course and scope of their employment as seamen for Crosby,
and while attempting to tow an over-loaded barge, the M/V
Crosby Commander encountered previously forecasted rough
weather with winds speeds reaching sixty-five (65) miles per
hour, which combined with the wave heights, caused the M/V
Crosby Commander to sink. R. Doc. 11, p. 10-11. While the
four-man crew was able to evacuate the vessel and enter the
water, Claimant Herbert was thrown from one side of the wheel
house to the other sustaining severe back and bodily
injuries; Claimant Pitre also sustained injuries to his back,
neck, and body. R. Doc. 11, p. 11.
this instant motion, Petitioners seek to redepose, for a
second time, Claimant Pitreand Claimant Hebert and to depose,
for the first time, Dr. Todd Cowen, M.D. (“Dr.
Cowen”), Claimants' retained expert and physician
life care planner. R. Doc. 149-1, p. 2. The current
scheduling order imposes a discovery deadline of October 4,
2019. R. Doc. 123.
move to quash the depositions of the following witnesses: (1)
Todd Cowen, M.D.,  (2) Joseph Hebert,  and (3) Robert
Pitre to avoid undue burden and expense,
unnecessarily cumulative and duplicative discovery, and to
preserve judicial economy and orderly trial. R. Doc. 150-1,
p. 1. More specifically, Claimants contend that the
depositions should be quashed (1) because the notice does not
comply with Federal Rule of Civil Procedure
30(a)(2)(A)(i)-(ii), (2) that there is no good cause or new
development that would warrant a second deposition, and (3)
that Petitioner waited until the last day of discovery to
depose Claimants and their life care expert, Dr. Cowen.
See R. Doc. 150-1.
opposed the motion, orally, contending that they (1) do not
need leave of court to redepose Claimants, even on the eve of
trial, and (2) need to depose the life care planner expert to
guard against the development of any new information. Also,
in opposition, filed post-hearing but orally communicated to
the Court, Petitioners contend that (1) second pretrial
update depositions of personal injury plaintiffs are common
and relatively standard practice and, as such, should be
allowed to proceed as a matter of course; (2) a second
updated deposition is proper and appropriate for Crosby to
learn of complaints of medical condition, life style,
re-employment efforts, any intervening accident, illnesses or
trauma, and what Claimants have done in preparation for
trial; and (3) the notices of deposition are reasonable as
the depositions have been noticed to take place within the
discovery deadline at a reasonable location. R. Doc. 156, p.
Standard of Review
Rule of Civil Procedure (“Rule”) 30(b)(1),
governing the noticing of depositions by oral examination,
provides “[a] party who wants to depose a person by
oral examination must given reasonable written notice to
every other party.” Fed. R. Civ. Pro. 30(b)(1). Rule
30(b)(1) further provides that “[t]he notice must state
the time and place of the deposition and, if known, the
deponent's name and address.” Id. In
addition, Rule 30(a)(2)(A)(ii) provides where “the
deponent[s] ha[ve] already been deposed in the case”
that in order for a deposition by oral examination to be
taken “[a] party must obtain leave of court, and the
court must grant leave to the extent consistent with Rule
26(b)(1) and (2).” Fed. R. Civ. Pro. 30(a)(2).
discovery rules are accorded a broad and liberal treatment to
achieve their purpose of adequately informing litigants in
civil trials, Herbert v. Lando, 441 U.S. 153, 176
(1979), discovery, nevertheless, has “ultimate and
necessary boundaries, ” Oppenheimer Fund, Inc. v.
Sanders, 437 U.S. 340, 351 (1978) (quoting Hickman
v. Taylor, 329 U.S. 495, 507 (1947)). Under Rule
26(b)(2)(c), “the court must limit the frequency of
extent of discovery allowed by these rules if it determines
that (i) the discovery sought is unreasonably cumulative or
duplicative, or can be obtained from some other source that
is more convenient, less burdensome, and less expensive [and]
(ii) the party seeking discovery has had ample opportunity to
obtain the information by discovery in the action.”
Fed. R. Civ. Pro. 26(b)(2)(C)(i)-(ii). “[I]t is well
established that the scope of discovery is within the sound
discretion of the trial court.” Coleman v. Amer.
Red Cross, 23 F.3d 1091, 1096 (6th Cir.1994).
initial matter, the Court takes special note of the
reinstituted discovery deadline imposed by the Scheduling
Order-October 4, 2019. R. Doc. 123. Here, the Court is of the
opinion that Petitioners' dilatory act of unilaterally
noticing three (3) depositions for the day of the discovery
cutoff, with little notice to Claimants and their expert
witness, and in hopes of pressuring Claimants to agree to
reschedule the deposition beyond the time limits imposed by
the Scheduling Order (R. Doc. 123) is not the sort of
permissible discovery processes contemplated by Federal Rules
of Civil Procedure. See Fairley v. Wal-Mart Stores,
Inc. No. 14-0462, 2016 WL 2992534, at *1 (Roby, K.) ...