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In re Tara Crosby, LLC

United States District Court, E.D. Louisiana

October 31, 2019

IN THE MATTER OF TARA CROSBY, LLC, ET AL.

         SECTION: “M” (4)

          ORDER

          KAREN WELLS ROBY CHIEF UNITED STATES MAGISTRATE JUDGE.

         Before 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. 158.

         I. Background

         Petitioners 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.

         More 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.

         As to this instant motion, Petitioners seek to redepose, for a second time, Claimant Pitre[1]and Claimant Hebert[2] 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.

         Claimants move to quash the depositions of the following witnesses: (1) Todd Cowen, M.D., [3] (2) Joseph Hebert, [4] and (3) Robert Pitre[5] 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.

         Petitioners 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. 1-3.

         II. Standard of Review

         Federal 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).

         While 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).

         III. Analysis

         As an 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.) ...


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